Ineffective Assistance of Counsel and Me

I used to joke that, since every lawyer needs a specialty, I would focus on ineffective assistance of counsel.  That is, I would become the number one lawyer in the whole state of Pennsylvania, or the nation even, at providing ineffective assistance of counsel.

I may joke but, I have to admit, I have had my moments.

One time, during my second week doing misdemeanor trials as a public defender in Philadelphia, I was splitting the list with a more senior defender.  Of the 15 or 20 cases on my half of the list, probably four or five cases were ready for trial.  The first thing a defense lawyer is supposed to do before starting a trial in Philadelphia is to waive arraignment and plead not guilty.

I probably had an equal number of cases that were ready for a motion to suppress based on some violation of my clients’ constitutional rights. Such motions in misdemeanor cases in Philadelphia are argued orally prior to trial and, with testimony by government witnesses, look a lot to the average spectator like a trial.  In these cases, the defense attorney begins by stating the grounds for the motion.

I was particularly excited about one case I had on my list because, based on the police report, there seemed to be a very strong motion to suppress. It was a busy day, and I had already done a couple of trials and motions before this case was called. I had alerted both the judge and the prosecutor at the call of the list that this would be a motion.

The case was initially called earlier in the day and the defendant had been brought out of custody and seated next to me when the prosecutor found out that, contrary to what he been told, the police officer was not yet in the room.  So the judge sat the case back, the client was taken back into the holding cell, and I did another trial or motion before the case was eventually recalled.

I say all of this as a partial excuse as to how I could have made the bone-headed mistake I am about to relate. I was feeling harried by the numerous clients and witnesses and family members who needed to speak to me.  (One woman told me she had left her children in the car with the meter running, and was concerned about getting a ticket.)  When the case was recalled, I was distracted by my client being brought back out of custody and asking me why the case had been continued the first time.  I was trying to find the right file.  I was focusing on the line of questioning to use with the police officer.

So when the crier prompted me as to whether I waived arraignment and pleaded not guilty on behalf of my client, I said yes and yes without thinking about it.  Big mistake.

The officer got up on the stand and began to testify. And he testified exactly according to the police report, almost as if he were reading it verbatim.  This was great. This was what I had been hoping for.  The officer clearly did not have reasonable suspicion or probable cause to search my client.

Hot dog!  I was going to win this motion!  Already I was thinking about my arguments to the judge.  Something short and sweet, right?  That’s how confident I felt.  Now the judge was even looking over at me with a scowl on his face. Even better! He too was offended by the officer’s conduct.

Then it occurred to me:  I had never stated the grounds for my motion. Waiiiit a second. Did the judge think we were at trial?  In that case, whatever reasons the officer had for searching my client would be irrelevant. The question would be whether or not my client possessed the contraband.  And there was no question that he had.

“Your Honor,” I said, interrupting the officer’s testimony.  “This is a motion to suppress, right?”  I tried to say it assertively, as if OF COURSE this was a motion, but the “right” at the end clearly betrayed me.

“Motion to suppress?” the judge responded.  “No, counsel.  You waived arraignment and pleaded not guilty.  We are at trial.”

Oh my god, I thought.  What have I done?

“But Your Honor.  I clearly stated during the call of the list that this was to be a motion to suppress.”

The record confirmed this fact.  But it also confirmed the fact that I had waived arraignment and pled guilty.  We were in fact at trial.

“Both counsel,” the judge said.  “Chambers!”

We filed back into the judge’s “robing” room in back.  My PD colleague came with us, talking the whole time. My colleague was a very experienced attorney and an excellent trial lawyer.  Unfortunately, she had only one speed – full steam ahead — and that speed was not working here.  The situation called for contrition, throwing ourselves on the mercy of the court, not bluster.

The judge finally got her to stop talking and allowed me to speak.  I took a second to get my wits.  “Your Honor,” I said.  “You’ve heard the officer’s testimony. You know that the officer had no reason to search my client.  The evidence should be suppressed.”

When this didn’t seem to work, I took another approach.  “Your Honor.  This is my second week in your court. I made a mistake. Surely you are not going to allow my incompetence, my ineffective assistance of counsel, to prejudice the rights of my client.”

The judge thought about this for a second.  “Counsel,” he said.  “You waived arraignment and you pled not guilty.  I cannot undo that.  If I tried, the Commonwealth could appeal and would have my decision overturned. Besides, jeopardy has attached. No, we are at trial.”

He thought about this a little bit longer.  Then he turned to the prosecutor, who was as junior as I was.  “Counsel,” he said.  “You too heard the testimony.  I’m sure you will agree that, had a motion been litigated, my decision would have been to suppress the evidence.”

The judge paused.  “I can’t tell you what you need to do,” he said, still addressing the prosecutor.  “You need to decide that for yourself. But I can suggest to you the following.  If we continue at trial and the defendant is convicted, he will have very good grounds for appeal. On the basis of ineffective assistance of counsel.  It will take up a lot of time.  And, given the facts of this case, he is likely to win the appeal.  You need to decide what you want to do.  I hope you will do the right thing.  But it is your decision, not mine.”

The prosecutor was ashen-faced.  “Your Honor,” he said.  “This is not a decision I can make on my own.  I will need to call my office to get a supervisor’s approval.”

We went back out to the courtroom where my client still sat at the counsel table. He had no clue what had just happened.  I tried to tell him what was going on, but the sheriff had to take him back to the holding cell so that other cases could be called while the prosecutor made his call back to his office.

I tell you it is not an easy thing to tell a client you have just completely bungled his case.   Hey but the good news, you could say, is that I have just been such a lousy lawyer that you are going to win this thing on appeal!   That is, after you have sat in custody for however many months on a detainer while the appeal crawls through the system.

Needless to say, this was a very low point for me during my time as a public defender.  I tried to focus on the other cases and the other clients who still needed to see me, but I couldn’t help thinking about this case. I couldn’t help thinking about how, during the appeal, I was going to have to get up on the stand and testify as to my own incompetence.

Finally, a supervisor from the prosecutor’s office came over to the courtroom.  The prosecutor himself was at the bar of the court on another case when she arrived so I took this opportunity to ask if I could talk with her outside in the hall.

The supervisor listened to me.  She then talked with the prosecutor, who confirmed what I had said about the officer’s testimony.  Then she came back to me.  “You’re absolutely right,” she said.  “It makes no sense to have this thing go to appeal.  We will dismiss the case.”

I went back to the cell room to tell my client that his case had been thrown out.  He thanked me.  He thanked me profusely. He clearly thought I had done all of this on purpose, as part of some clever strategy. I couldn’t bring myself to tell him otherwise.  “Yeah,” I told him without much enthusiasm.  “Things worked out okay in the end.”

Things were quieting down in the courtroom when I returned.  The gallery was now empty, and the judge was signing a few things before the court adjourned.  The prosecutors were packing their briefcases and preparing to leave.  It’s a moment in the day I normally like.  The clients and the witnesses and the family members are all gone, along with the formality.  It’s the time we all turn back into people.

I sat down in the gallery directly behind where my colleague at the PD’s office sat at the counsel table. She too was clearly tired.  I was thinking about my becoming forever known as the idiot defender who thought he was doing a motion when he was at trial, when she turned in her seat and looked back at me.

“Forget about it,” she told me, as if she could read my mind.  “We have all done stupid things at one time or another. You have no idea.”  She smiled to herself sadly, as if remembering one of her own mistakes from starting out.  “Believe me,” she said.  “You have no idea.”

I will be forever grateful to her for telling me that.

The prosecutor and I came across each other many times in the years that followed, and we often joked about the incident.  Thus was born my lame joke about being the state’s leading practitioner of ineffective assistance of counsel.  (Hey, as I tell my children, when a joke works, you stick with it.)  I also thanked his supervisor – many times – for agreeing to dismiss the charges.

But, apart from that, no one else ever said anything about it to me. The judge never mentioned it again. Nor did I hear anything from my supervisors at the PD’s office.  The incident seems to have been relegated to the long list of mistakes made by a junior, harried and very human public defender working within an imperfect system that in the end, despite these errors, still arrived at the right outcome.