The Problems with Criminal Defense Lawyers And the Steps a Suspect/Defendant can take to Avoid Them

I recently read a Reddit thread on the topic of criminal defense attorneys wherein the individual who started the thread opined that criminal defense lawyers are detestable villains who share the morality of the criminals they defend. The thread was roundly criticized in multiple comments all of which extolled the virtues of criminal defense lawyers who are the guardians of constitutionally guaranteed rights and who serve to limit the reach of powerful governmental forces.

While we, who are criminal defense lawyers. do represent reprehensible people from time to time, the services we provide in those contexts are important. Remember that in this country, no one is guilty of an offense unless their guilt can be established by the government by evidence proving the defendant to be guilty. If the evidence does not exist, the individual is not guilty. It’s that simple. We do not rely upon suspicion or inuendo in this country to convict people of crimes. Only evidence can establish guilt.

But even if the Reddit thread was based upon an inaccurate understanding of the criminal justice system, we must acknowledge that there are numerous problems with the current American justice system. The Supreme Court for generations has curtailed the rights of those accused of crimes as Congress almost continuously expanded the scope of criminal jurisprudence.[1] The problem I wish to talk about in this article, however, is not with courts or prosecutors or legislatures. It’s with criminal defense lawyers themselves. Too many of the members of the criminal defense bar fail to perform the tasks necessary to defend the innocent and make sure that even those who are guilty are treated fairly.[2]

[1] Of course, this phrase may refer to a by gone era when Congress accomplished more than sham hearings and partisan bickering. It is probably an overstatement to suggest the current Congress is accomplishing anything.

[2] I am reminded of a case I observed in state court one day about twelve years ago. The Assistant District Attorney, the defense lawyer, and the defendant were present for a guilty plea. The defendant was pleading guilty to “possession of a firearm”. As the Judge began the guilty plea inquiry, he asked counsel if it was illegal to possess a firearm. The Assistant District Attorney immediately stated that the defendant had offered to plead guilty. The defense attorney quickly retorted that the prosecutor had offered probation. The charges were dismissed that day because it is not illegal to own a firearm in the United States. However, the defense counsel had never checked the statute before agreeing to a guilty plea.

Don’t get me wrong, there are many very fine criminal defense lawyers. These people do everything in their power to defend those accused of crimes, and it is not these lawyers I am talking about. But there are criminal defense lawyers who are lazy, stupid, and/or corrupt, and these lawyers send innocent people to prison. These people stand at the center of the problems with the criminal justice system.

Now, being a criminal defense counsel is difficult and stressful under the best of circumstances. We operate in a system that, for the most part, does not want or appreciate us. Law enforcement and prosecutors see us as obstacles to their goals. Judges see us as impediments to their schedule. Defendants see us as the reason why they are “still” incarcerated and blame us for their circumstances. The system is weighted against us, and jurors, despite the fact that they are told of the presumption of innocence at the beginning of every trial, start each trial believing the defendant to be guilty. It is a tough world.

Victories for criminal defense lawyers, in terms of acquittals, are rare, and trials are long and stressful. There are no magic tricks we are taught in law school or criminal defense college (if there were such a thing) that enables us to force witnesses “to tell the truth”. We ask questions, and we make arguments. But, in the final analysis, it is difficult to shake a well-prepared witness. So, in the white-collar world where I normally practice, if the CFO decides to cooperate with the government and testify against the CEO, we cannot file a motion, in most circumstances, to make that not happen.

But sometimes, every so often, we do find a piece of evidence or ask the right question that destroys the prosecutor’s witness and with it, their case. But these events only occur when the attorney is fully prepared and knows how to impeach a witness. An unprepared lawyer will not know the right questions. They may not even know how to properly ask a question.

If the lawyer does not investigate the case, carefully interview the person they represent, find and interview other witnesses, and search for and locate documents, the person who is charged with a crime is in a lot of trouble. If the lawyer merely meets with the prosecutors and casually brings up the client’s case as they discuss their most recent gold score, the defendant is not helped in any way. When the lawyer tells the person they represent that “I examined all of the evidence, and there is no defense”, the hopelessness most defendants face is amplified, and the chances of a wrongful conviction are increased.

There are lawyers who take cases, attend a conference or two with prosecutors, and talk to clients once or twice and then pressure the person who hired them into pleading guilty. Do innocent people plead guilty? The answer is “yes”, they plead guilty all the time. In fact, at this time, we know that 18% of exonerees plead guilty to charges they could not have committed, often after they falsely confessed to the crime they did not commit. To look at this issue from a criminal defendant’s perspective, is it better to plead guilty to a crime you did not commit for a three-year sentence or go to trial and lose and receive a fifteen-year sentence for a crime you didn’t commit? Most people pick the lower sentence—that’s just the way it is. They do not trust the system.

For too many defense lawyers, the practice of law is easy. They may have an excellent internet presence that brings in lots of calls. They may charge a lower fee, perhaps $7,500 for a felony case, and, if they do ten cases a month, they make $75,000 that month. If they put in five or six hours of work for each case, they’ve only worked fifty or sixty hours to earn those fees. They pick up a file, plead a client guilty, and then move on to the next client, but the reality is that the fee they charge is not enough to fully investigate and prepare a case for trial, let alone go to trial.

I first learned of this problem thirty years ago when I was a prosecutor. I remember meeting with a defense lawyer to discuss a case. The attorney took about twenty minutes to explain to me why his client was innocent. It was a compelling argument, but as I started to consider his points, he asked me if the Commonwealth would consider a sentence of probation.

“But you just spent so much time explaining your client’s innocence,” I said.

“Well,” he countered, “if you can’t do probation, can you at least do a county sentence?” At the time, a county sentence was a sentence of less than two years. I do not remember how that case was resolved.

So why do we not discuss these problems more openly or more forcefully? Is it because we have all faced frivolous post-trial or federal habeas corpus motions? Defendants who have been convicted and sent to prison often file these motions, frequently, because they have nothing else to do. They waste our time and resources, and, for those of us who care about our clients, they are emotionally trying. After putting one’s heart and soul into a case, the only thing worse than losing is having a client lie about what you said or did. Maybe this is what causes us to avoid issues with our brethren.

But setting aside those personal, stressful moments, in post-trial relief avenues for those convicted of crimes are woefully inadequate. In the case of Shinn v. Ramirez, a case in which the defendant was sentenced to death, the Supreme Court held that defense counsel in a 28 U.S.C. 2254 habeas action could not introduce evidence that had not previously been introduced in state court proceedings. This means that even if uncontroverted evidence of ineffectiveness exists, it cannot be introduce in a federal hearing if it was not previously presented in a state hearing. The case represents the Court’s most recent interpretation of the ill-advised Antiterrorism and Effective Death Penalty Act of 1996, but the bottom line is that even someone sentenced to death is limited in their ability to prove that the attorney who represented them at trial was ineffective.

The problem of incompetent, lazy, or corrupt defense counsel arises mostly in state court proceedings where a defendant seeking to avoid the public defender retains a private attorney to represent them. The attorney may have an excellent social media presence complete with videos and whatever else marketers recommend they have. The attorney may have an excellent understanding of Search Engine Optimization (SEO). What the attorney may not have, however, is either the concern necessary to represent someone whose life hangs in the balance or the tenacity (or maybe even ability) to fight a case. Over the course of months, the attorney will either convince their client to plead guilty or go to trial unprepared. The result is injustice.

How to Avoid the Wrong Lawyer.

For attorneys, the discussion over whether other attorneys are incompetent or not is largely academic. Amongst us attorneys as we talk to each other about this problem, we have an interest in the issue. But that interest is not as personal as it is for someone facing charges or trial. For the person facing charges, there are some important warning signs to consider when hiring the “right” attorney. Some of these are:

• Promises of Specific Results. Except in the most basic of cases (Driving Under the Influence of Alcohol, for example), it is difficult to predict how a case will end. When a criminal defense lawyer meets with someone charged with a crime, they will always have to review the facts before they can even begin to talk about what might happen. Attorneys who promise a particular result (e.g. “I can get you probation”) should be avoided. False promises of light punishment may entice a desperate client to hire the lawyer, but they are poor indicators of the lawyer’s competence.
• Relationships to Particular People. I often hear people say that they hired a particular criminal defense lawyer because he knew the judge, the prosecutor, or someone else connected to the case. It does not (and should not) work that way. At this point in my career, many of my friends are judges or senior prosecutors, but I would never try to use my relationship with them to further a client’s case. None of the prosecutors or judges I know would be receptive to such an approach. The key to success is understanding the facts and the law. The question should be “how good are you?”, not “who do you know?”.
• Inability or Unwillingness to Investigate. Does the attorney you are interviewing investigate cases, or do they merely read the discovery they receive from the government? It is a fair question to ask. I have learned so much from visiting crime scenes and talking to people unrelated to the case about what they saw, heard, or thought. If the attorney does not investigate the underlying facts, that attorney will never to able to mount an effective defense.
• Too Many Cases. This should be a self-evident question, but it is important to know the quantity and type of cases a criminal defense lawyer has. In my experience, a single wire fraud defense may take as much work as fifty DUIs. If an attorney has too many cases, that attorney does not have time to expend on a complex case that may result in a month-long trial.
• Fees that are Too Low. There are price shoppers out there; people who think that all lawyers are the same and that they get the best deal when they hire the cheapest lawyer. Legal costs should not be a factor in hiring a criminal defense lawyer. Who is going to spend more time on a case, an attorney who is paid $4,000 to handle the matter or an attorney who is paid $40,000 to handle the matter? The answer should be obvious. If the fee charged cannot cover the work that must be performed, the attorney should not be retained.

If a criminal defense lawyer screws up a minor case, the results are not normally horrible. Someone charged with a DUI, for example, might end up spending a weekend in jail instead of having their charges dismissed after completing a pretrial diversion program. But for more serious charges, state or federal felonies, a mistake can be catastrophic. Rather than spending two or three years in jail, or possibly a dismissal of charges or a not guilty verdict, the defendant might face twenty or more years in prison. The wrong lawyer can ruin a person’s life. Hiring the right attorney is one of the most important decisions anyone under investigation or charged with a crime can do.