Fall on my sword time
This is one of the scariest things I've ever received:
It's an invitation to an evidentiary hearing in the U.S. District Court for Idaho. A week from now, I'll be on the witness stand answering questions about what I recall discussing or not discussing with a client of mine 5 1/2 years ago, prior to his entry of a guilty plea, and prior to his being maxed out by a judge known as Hang 'Em Higher.
After twenty years it's a first for me: first federal habeas, first testimony in federal court. I've reviewed my own advice to myself; if any of you have any good words, please e-mail me at senor_bosnia at hotmail d0t com .
4 Comments:
Hey Skelly. I hope you don't mind my putting in my 2 cents in a comment. I've testified a few times in federal court. It's actually kinda fun, when you think about it. When the first question they ask you is if you are a "criminal lawyer," you get to respond, "Well, I prefer to think of myself as a criminal defense lawyers." It gets the judge laughing, which is always a good thing.
Anyway, consider that this is about what the defendant understood, rather than about what you did and can remember after all this time. One can try one's best to make everything clear, but one can never been certain that the communication has been effective. It's an enormously stressful time for defendants, and they often lack the degree of clarity or comprehension necessary. Unfortunately, it's often impossible for a lawyer to fully appreciate whether the client fully understands. So don't let the "attack" on your representation cloud your perspective or desire to do no harm to your client. His back is to the wall. Yours is not. I'm sure you will know what to say when you're called to the stand.
Yikes! I'm sure you'll be alright. I tell you what though, if a pro like you can get hit with one of these, it makes me wonder if I'm fit to practice criminal law.
Side note: I went to law school with the son of Judge Boyle, in front of whom you'll be testifying.
Actually, this is a very complex problem you have (and one I have studied at length, having testified at least three times in post-conviction matters about my representation of clients). I really think, ethically, we have to try not to hurt our clients. We also have to tell the truth. Sometimes that is oxymoronic. Plus, the whole memory issue is interesting. Unless you have a memory super-power, you probably don't remember everything you told a client five-plus years ago. Don't disclose more than you have to; remember it is all about your client; if you don't remember, say "I don't remember." Try not to get sucked into the "is the client lying" series of questions the state will ask. Good luck! Let us know how it turns out.
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