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Judicial errors, misconduct and ineffective assistance of counsel

18 Sep

I’ve always been interested in the way the courts characterize mistakes made by prosecutors, criminal defense attorneys and judges. I’m not talking about intentional wrongdoing, just mistakes.

When a judge makes a mistake, they call it an “error.” Maybe they soften it a bit more and call it a “judicial” error. It may or may not be important but either way, it’s just an error.

  • Now the prosecutor does not get off so easily. If he (or she) says or does something he shouldn’t have (even inadvertantly) it’s not a mistake. It’s not an error. It is called “misconduct.” Prosecutors really hate that. Prosecutorial misconduct. It sounds evil.
  • But the criminal defense attorney, I think, gets it even worse. When he makes a mistake, they don’t call it an “error.” They don’t call it “misconduct.” They call it “ineffective assistance.” What could that mean?

Now we all know that “ineffective” means. It means without effect. So I guess if my client gets convicted of the charge, then I’m “ineffective,” right? Well no. Actually, to provide “ineffective assistance of counsel” a defense lawyer must bumble through two hoops:

  1. He must make a mistake; and
  2. Lose because of it.

If he makes no mistakes, but is simply ineffective by the common definition (i.e., he lost), he’s still OK. And if he messes up, but his failure is not the reason he lost, then he’s still OK. (He’s OK. Yeah. His client is not.)

When I was a prosecutor, I tried not to do anything that wasn’t allowed. I knew that if I failed, I’d have to try the case over again. So it sort of annoyed me to see mistakes labeled “misconduct.” If I’m going to be labeled a bad boy, I’d at least like the pleasure of being one intentionally.

Still, it beats being labeled “ineffective,” which sounds like a nice way to avoid hurting someone’s feelings. Come on just say it: “Somebody screwed up and somebody else went to prison!”

So you have this baggage that goes with the lawyers’ mistakes. They are either a devil or a dummy. Maybe they got it right by simply calling mistakes by judges “errors.”

 
4 Comments

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  1. Missouri Criminal Defense Lawyer » It’s not so great to be the State . . . except when it is.

    December 5, 2007 at 11:50 am

    […] As I’ve mentioned in another post, even the prosecutor and the defendant attorney are treated differently if they make an error in the trial. The prosecutor’s mistake is called “misconduct,” while bumbling defense attorney is called “ineffective.” […]

     
  2. criminal defense lawyer

    May 13, 2008 at 4:28 pm

    Criminal Defense Lawyers really do have it the worse.

     
  3. Amy Tyler

    October 27, 2010 at 11:19 am

    I disagree with who comes out “the worst”. The person who got cheated, such as myself, is very painful and it takes over your life for a very long time and it feels and is very personal. I do agree the judge is rarely disciplined. Isn’t that inviting trouble? No doubt it has much to do with the errant judges who do come under scrutiny so that they can keep their arrogant disdain of the people they harm as insignificant.

     
  4. Amy Tyler

    October 27, 2010 at 11:32 am

    It’s one thing to realize you have been mistreated by the court system, bad enough. The worst part, I think, is that even your acquaintances wish you’d just confess you are a liar to say such horrid accusations about a judge. It’s about roadblocks put in your way, it’s about becoming an odd mixture of ghost and pariah. And this remarkable transformation is swift and terrible. Those of the “regular people” who don’t know because they haven’t experienced it are in denial and very comfortable to lay the blame of me, surely I must be wrong.