The Effective Assistance of Counsel

Photo by verkeorg on / CC BY-SA

On April 9, 2019, the Houston Chronicle ran two interesting stories regarding the appeals of two Texas death penalty cases.

In the first case, U.S. District Judge Lynn Hughes of Houston ruled that it was permissible for one of the defendant’s two lawyers to sleep during the defendant’s trial. According to the story, Judge Hughes ruled that while the attorney’s dozing was “appalling” and “regrettable”, it didn’t matter because at least one of the defendant’s attorneys was awake at all times, so the accused was never entirely without counsel. However, the counsel that was awake had never before tried a death penalty case and the sleeping attorney only cursorily prepared for the case, barely consulted with his co-counsel, put on no evidence, dozed through key parts of a 4 day trial, and had not tried a capital murder case in more than 20 years.

In the second case, the Texas Court of Criminal Appeals stayed the execution of a condemned man because his lawyer agreed that all black jurors could be struck from the jury panel based upon his personal belief that black jurors would be less sympathetic to a white defendant. According to the story, in a 1997 hearing the attorney said he would be “more than happy to violate anybody else’s rights” in an effort to defend his client. Also, according to the story, the defense lawyer and the prosecutors agreed to “indulge each other” in their “prejudices”. I interpret this to mean that the prosecutors wanted to strike all the black jurors and so did the defense lawyer, so all black jurors were struck either by agreement of counsel or by virtue of the defense lawyer’s failure to object to the prosecutor striking all of the black jurors.

With news stories like these it is hard to know where to begin. As folks say nowadays, “this is wrong on so many levels.”

It is NEVER O.K. for a lawyer charged with protecting a man’s life to sleep and doze through a trial, even if another defense lawyer is awake. It is hard to imagine how it is possible for a lawyer to sleep through a criminal trial of any kind, much less a death penalty case, but it is never acceptable and the trial judge should have acted immediately to stop it.  In this case the only evidence linking the accused to the crime was the tentative identification of a single eyewitness and the description she initially gave police did not match that of the accused. Another interesting fact is that the trial lasted only 4 days. This is unheard of in death penalty cases. The speed of the trial implies lack of trial preparation, lack of experience, lack of skill and lack of effort.

The Constitution guarantees criminal defendants the right to the effective assistance of counsel.  The conduct of the sleeping lawyer is reprehensible and Judge Hughes’s decision is, in my opinion, wrong.  As for the lawyer who was awake for the trial, one can only imagine how unnerved, overwhelmed and helpless he must have felt trying his fist death penalty case while his slightly more experienced co-counsel slept and, by sleeping, conveyed to the jury the impression that he didn’t believe in his client’s innocence enough to stay awake.

The case involving the striking or agreed dismissal of all black jurors is more difficult to analyze. In the case of Batson v. Kentucky, the US Supreme Court decided that it was impermissible to dismiss jurors solely on the basis of race. However, that principle is typically raised by those of the same race as the race of those jurors who were dismissed.

The issue here will be whether it was error to excuse jurors based solely upon race if it is the trial strategy of the defendant’s attorney (however foolish, misguided and just plain wrong it may be) to do so. This question involves not only the rights of the defendant, but also the civil rights of the dismissed jurors to participate as citizens in public life as jurors and the right of the public to the open, transparent, fair and even-handed administration of justice.

The Chronicle’s story does not state whether the defendant agreed with his lawyer’s strategy to dismiss black jurors, acquiesced in it or even knew about it while the trial was in progress. Should this make any difference? What if a defendant is a white supremacist, doesn’t trust black jurors to determine his fate, and instructs his lawyer to strike all the black jurors based on their race? As I said, this case may be more complex than deciding whether jurors were dismissed based upon race.

I once served as a prosecutor in the court of District Judge Tom Thorpe in Dallas. Most of us prosecutors were very young and relatively inexperienced. Judge Thorpe’s court, like all courts in Dallas at the time, were often crowded with prosecutors, defense lawyers, defendants, the families of defendants, court personnel, victims, witnesses, police officers and just plain spectators. Things could get loud and seem a little out of control to those who weren’t accustomed to the frenetic pace, particularly on Fridays which was the day set aside for pleas of guilty, sentencing and last minute haggling over plea bargains. On one such day, Judge Thorpe asked for quiet. For a short time he got it. When the noise got loud again, he called a recess and told the prosecutors to join him in his office. Judge Thorpe read us the riot act and told us to think about how it looked to all those in the courtroom who had never been in a courtroom before and might never be again. For them, that chaotic courtroom scene was what justice looked like. A cattle auction might have made a better impression. I had to confess I had never thought of that before and I had to admit he was right.  Judge Thorpe explained, with as much patience as he could muster at the time, that what he called “the appearance of justice and fairness” was of critical importance to public confidence in the judicial system and to the administration of justice. If jurors and the public as a whole don’t witness proper behavior in the courtrooms, they won’t believe in the judicial system. If public confidence is lost, our judicial system will suffer. I thank Judge Thorpe for that lesson.

If we apply Judge Thorpe’s  test to these two (2) cases, what grade would they get?