Judicial errors, misconduct and ineffective assistance of counsel

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.”