U.S. Capitol Building

Checking The Rules. Checking Them Twice.

Jamison KoehlerCriminal Procedure, Evidence, Law Practice, Professional Responsibility/Ethics

One of the things I miss most about working at the public defender’s office was the ability to get immediate feedback from colleagues on an issue. Do you know this judge or prosecutor? Have you faced this type of situation before and, if so, how did you handle it? And so on.

A major drawback to this ability, however, is that, when confronted with an overwhelming workload, it is too easy to cut corners and to rely solely on the advice of these colleagues. Information is only as good as its source, and you can sometimes find yourself being misadvised. Without anyone taking the trouble to actually consult the rule or case law, bad information can be disseminated until everyone is getting it wrong.

I was thinking of this recently when reading a 1975 case on “character evidence” from the U.S. Court of Appeals for the D.C. Circuit:  U.S. v. Agurs, 510 F.2d 129, 167 U.S. App. DC 28 (1975).  With the defendant in that case charged with second-degree murder, defense counsel became aware during preparations for trial that the victim of the offense might have been previously arrested or convicted for violent crimes.   Such evidence would have been admissible at trial.

However, mistakenly believing that the defendant needed to have been aware of this criminal history in order to introduce this evidence, the lawyer neglected to follow up on the leads himself as a “waste of time.”  He also failed to request this information from the government.

The lawyer did consult his mentor, a more experienced attorney, on the potential admissibility of this evidence.  But, failing to check the case law and rules himself, the mentor also got it wrong, and the defendant was ultimately convicted.

As it turns out, the deceased had in fact been convicted of two violent crimes, with a conviction for assault in 1963 and a conviction in 1971 for carrying a dangerous weapon.  The weapon in each instance had been the same weapon – a knife – used in the case at issue. Moreover, the government did have this information in its files, ready to turn over to the defendant upon request.

Evidence that the deceased had a history of violent behavior might well have swayed the jury in deciding for the defendant on the basis of self-defense.  That evidence could have been offered to show that the defendant reasonably believed she was in danger. It could also have been used to show that the deceased was a violent person.

The lesson from this case is that there is no substitute for checking case law and the rules yourself.  As Ronald Reagan used to say in the context of our relations with the former Soviet Union:  Trust.  But verify.

Just as we tell young people that they – and only they – will face the consequences of their actions, the lawyer who makes such an egregious mistake cannot hide behind the excuse of having relied on bad advice of someone else.  It must be extremely humiliating to go in front of the bar disciplinary committee or the appellate court on a claim of ineffective assistance of counsel.  At the same time, you can’t point the finger at someone else.  You can’t say he made me do it.

And that’s where the rules of evidence and criminal procedure come in.

When I took tax in law school, I was intimidated by the 3-inch-thick tax code when I first picked it up at the book store. By the end of the semester, that tax code had become my best friend.  I feel the same way today about the rules of criminal procedure.

Michael Bruckheim tells me there is an app for the I-Phone that provides access to all D.C. Superior Court rules at a single touch of the screen.  Maybe someday.  In the meantime, I treasure the marked-up, dog-eared, and coffee-stained copy of the rules I pulled out from the D.C. code manual to keep in my briefcase. I like the look of the small print and the way the pages feel between my finger. I like the fact that it seems to have the answer to anything I might possibly want to know. Except for the meaning of life.  Because I already know the answer to that one.