I find this article to be so interesting that I had to link it my post. Please read my response to Bad Lawyering. Thanks
When I read this article, I understood perfectly the concept of bad lawyering. The worst thing about bad lawyering is that you do not realize that you have a bad lawyer until it is too late. There is always talking about public defenders being bad lawyers because of the excessive amount of cases that they have. They do not have enough time to dedicate to one case for too long. A public defender’s best strategy is for the accused to a plea, whether the person is guilty or not; whether there is no substantial evidence against the accused. Why? Because the public defender does not have the time or resources to properly investigate the case.
However, what excuse can be used for private attorney? These are attorneys that are paid $10,000, $15,000, $18000 or more? What reason can they possibly have for bad lawyering?
What happens when one sells all of their possessions for a private attorney(s) to represent the accused, only to find that they are not doing their job?
By the time it is realized that the attorney doesn’t care, there isn’t any money left to attain another attorney. It is too late.
Don speaks of a recognized approach to defending a case, generally known as the “reasonable doubt” approach. In my opinion, the article is saying that bad lawyering comes from lack of proper training. This may be true in some cases but definitely not all. There appears to be a new trend (or maybe not so new) among attorneys that put efforts in the cases they desire to put an effort into. I do not know if they are trading on cases with the prosecutors or if they are just buddying up to the prosecutor for their own agenda.
Some attorneys talk of a payment plan. They take your deposit and promise to represent the accused. However, what they do not mention is that they will continue and continue hearings, etc. until they have been paid in full. Then in the 13th hour, they will begin to work on your case. In most cases, they have not done even minimal preparation.
I agree that we always talk of prosecutor misconduct. However, I also feel that prosecutors cannot engage with misconduct if the defense attorney is on top of the case.
It is hard to believe that the private defense attorneys are in cahoots with the prosecutor? I think not.
Is it hard to believe that criminal defense attorney work against their client? I think not
Is it hard to believe that defense attorneys work with bail bondsmen? I think not.
What does an attorney have to lose by not properly investigating a case? Nothing.
They take the money and run. They do just enough to say that they did their job.
I could go on and on.
How did I become such an expert?
Experience is my teacher.
In June 2011, my son was accused of attempted robbery. I retained an attorney that was referred to me by a bail bondsman. I did not know that this was against the law in Florida. The reason for this law is because the attorney and bail bondsman tend to work together for monetary gain. They are only concerned with concluding the case as soon as possible.
This same attorney did absolutely no investigations at all. She only talked of pleas. She even went to the extent of having me talk directly with the prosecutor. I did not know that this is not a practice. All talks are to go through the attorney. This talk caused prosecutor vindictiveness.
The attorney had many continuances that we did not know about. The attorney never gave me receipts for the money that I paid. I gave her $5000 down and was paying $200 bi-weekly. I also paid for all depositions in advance, which amounted to several hundred dollars. In fact, she had me make deposits directly into her bank account. A practice that I recently learned is not ethical. The attorney was trying to break me financially. There was always money due for depositions, fees, etc. Then when the trial was scheduled, I had to pay an additional amount of $4000 for the trial. So far, she had been paid $20000. The trial never took place. The one thing the attorney did do for me, of which I am highly grateful was to email me everything that the prosecutor sent them. This included documents in which I was not to be in possession of. I still have these documents, 3 years later. I have documents that could have gotten an acquittal for my son. I even have a crime line for the same incident describing a person with dreadlocks. My son does not have dreadlocks. It also named the individual in the crime line. Is this not enough for reasonable doubt?
The attorney was late for a pre-trial conference. She did not try to get evidence suppressed. Rather, she sent me an email of why she could not ask for the suppression of evidence. She also did not go for a youthful offender until one week before my son’s 21st birthday. The list of things that she did not do goes on and on. I had enough.
Well, with the help of the Catholic Church, I was able to procure another attorney. He charged $18000. Well, due to a conflict in interest, he requested to be removed as my son’s attorney and returned $17000+ of the $18000 fee. Very generous. Yes indeed. However, one wonders of the true reason why he no longer wanted to be my son’s attorney.
Is it possible that he did not want to go against the first attorney? Or is it possible that the he was friends with the prosecutor and did not want to be party to her misconduct? We will never know.
This brings me to the “The Elephant in the Room” Scenario. Dan says the following, “Bad lawyering” takes many forms – “failing to investigate properly; failing to factually, legally and scientifically challenge the prosecution’s evidence; and what I call “The Elephant in the Room” scenario, i.e., the simple failure to sit down with the known evidence as well as the LACK of evidence and to just think about it. Yes, the old “thinking cap” approach or in more modern linguistics, cerebration”.
This is what I have to say about “The Elephant in the Room” Scenario. I retained our 3rd attorney via the internet “AVVO”. I then went to the firm’s website which claims the following
“Everyone Deserves a Second Chance”. It went on to say, “We don’t believe that your life should be defined by one mistake. Contact us today and learn how we can help you move on with your life. Well, there were no second chances for my son. Maybe they mean the attorneys deserve a second chance. My son did not even get a first chance
Our new attorney only charged $10000. (I guess you pay for what you get) As I had all documents, he did not have to do anything whatsoever. I had everything laid out for him. After two years, I had become my son’s attorney. I only needed someone to present the case.
I had court documents showing that the police detective lied during her depositions. I had the original police report where the officer on the scene said that the victim could not identify the suspect. She said that she would only be able to identify the assailant if they were looked. She said that the person was wearing a mask and she could only see the eyes. There were 2 photo lineups with my son as the only common denominator in the photos. For the 1st lineup, she said she could not identify the suspect. By the 2nd lineup, she said that the nose looked familiar and that she was 60% it was my son. By trial, almost 3 years later, she said the cheeks and nose looked familiar and that my son’s did not skin like a baby. Whatever that means.
I also had emails confirming the prosecutor inappropriately called and talked directly to me. The new attorney chose to tell the prosecutor of my complaint and the prosecutor removed herself from the case.
In addition, I had everything highlighted and in bold letters. What did I learn? I later learned that the attorney shared this information with the prosecutor. How do I know you ask?
I know because in the official transcript, the one that the appeal attorney received; my handwritten notes are on one of the depositions. This means that my notes and intake on the case was being shared. Let’s talk about a conspiracy theory.
In Don’s article, he says, “Providing a (single) very weak defense can raise confidence in the prosecution’s case because jurors might think, ‘‘if this is the best the defense can do, he must be guilty’’ But, add to this a SODDI [or TODDI] defense, i.e., “Some [This] Other Dude Did It” and point to the suspect, and the odds of a “not guilty” verdict increase dramatically”.
Our attorney did nothing at trial. He did not even play the 911 tape. He did not question the officer at the scene. The list goes on. He objected to nothing.
After the conviction, he told me that he was sorry and that we could throw him under a bus in an appeal. He then left his firm a few days after my son’s conviction. I was unable to contact. Later he called and recommended an appeal firm for me to use. What he did not tell me was that he went to work for that firm. Imagine that. He wanted me to hire a firm that he was going to work for without my knowledge. Thank God I was smart enough not to follow his recommendation. He knew that a member from our church had a deposit of $9000 toward an appeal attorney. He was after the money.
What do I think of Florida Criminal defense attorneys? Not much. We would have been better off using a public defender.