Fall on your sword

There is a really interesting exchange between Fed #84 and Professor Yin touching on the proper role of trial counsel in the post-conviction relief process.

Yin's approach seems premised on the assumption that the greater problem is all these criminal defense attorneys lying and readily willing to lie to help clients after they lose. After setting up some straw men (such as, a criminal defense lawyer forges a document post-trial to get his client off) then knocking them down, Yin concludes that "it's in the long term interest of the system to have defense attorneys not fall on their sword unless warranted". He doesn't quite tell us how and when it would be warranted.

Fed #84 states that, "... offering self-critical but subjective sentiments are what I consider falling on one's sword. After all, the person saying those things is insulting himself." This is actually what the profession could use more of. I think that Fed #84 gets the better part of this discussion from the point of view of the trenches.

In my experience, the bigger problem than criminal defense lawyers telling lies about their deficient performance has been to get criminal defense lawyers to tell the truth about their deficient performance. When an old client files a PCR petition, too many trial attorneys have too much ego invested in their Spence-like self-image to come forward and concede that they might just possibly have made at least one mistake in the handling of the case. Each one of us likely can think of at least one attorney whose work objectively isn't up to Strickland standards - and the sooner that lawyer owns up to it, the better! (hey, it's not me! I have been on the stand and have signed affidavits in PCR proceedings. Where I've done a good job, I've said so; where I didn't, I've said so too.)

We all make mistakes, even our President. And like our President, fessing up to them doesn't come easy. But fessing up not just good for the soul, it's good for the system. The integrity of the criminal courts is troubled less often I think by attorneys lying that they performed poorly, than by attorneys fighting ineffective assistance claims tooth and nail when the old client has a valid point. "When warranted" is not much of a bright line rule for responding to an old client's PCR claims, even IAC claims. It seems that a continuing duty of loyalty to the client, combined with a continuous duty of candor to the courts, requires us criminal defense attorneys to fall on our swords every time it's the truth, not just when we decide it's warranted.