If you can't stand losing reasonably often, you will hate being a criminal defense attorney — particularly in federal court, where the feds cherry-pick winning cases and devote comparatively massive resources to them. It doesn't matter whether you are a great lawyer or not — you're not always going to win, unless you are cherry-picking cases yourself. So the occasional victory keeps your chin up and allows you to tell clients with a straight face that there is always hope.
I have a client I've written about before. He was horrifically badly used by his trial attorney, a now-disbarred mentally ill man who used a "jailhouse lawyer" to refer cases to him. I have compassion for that lawyer — there but for the grace of God go I — but as a result of his condition, my client, a man then in his early thirties, faced life in federal prison for his third drug beef. We came in after the conviction and did everything we could on direct appeal, but trial counsel had left such an awful record that there was little chance. Judge Kozinski chewed on me and on the AUSA for about forty minutes, but ultimately the panel affirmed. The family asked us to make a last-ditch effort — a Section 2255 motion (the habeas corpus vehicle to attack a federal conviction and sentence) and we filed one based on an ineffective assistance theory. For a year we litigated over things like getting trial counsel's state bar record, which revealed his admissions about his mental and physical condition during the client's trial. The government fought tooth and nail, arguing very credibly that the evidence was so overwhelming that the ineffective assistance made no difference to the result.
Today the judge granted our motion and vacated the conviction and life sentence. The government has to decide whether to re-try our guy — it won't be terribly easy, as we demonstrated that the informant lied on the stand and trial counsel failed to catch it.
If the government decides to re-try, it will be a rough fight. But today, it tastes sweet.
Last 5 posts by Ken White
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