On trial counsel and falling on your sword

Basically, I’m always arguing IAC generally for failing to object. It’s lame. It’s like oh this lawyer said 352 but not due process. I mean the person got the point, objected, really….this is IAC? But I do what the law requires to get around waiver and I take no joy in that. I do it knowing ain’t no court is going to find that there wasn’t a 352 but there was a due process problem and trial counsel is Iac. Even if that happened, Ain’t no one getting disbarred over that bullshit.

It’s very easy to come up with a legal argument when you read a transcript, make notes typing wacky shit in bold (I literally write “is this an issue?” “weird”), spend weeks mulling over issues and talking to your client. posting on an appellate group….does anyone think it’s an issue? Researching cases and then realizing which facts need to be elicited to make a good record. There is no joy in arguing IAC in the scenario when, for example, someone argues involuntariness but not Seibert after I’ve spent 10 hours researching both and looking at interrogations after having researched the law extensively.

I’ve tried three cases. I lost sleep over a no driving DUI. Trial lawyers are heros who do what I can’t, and what many lawyers won’t.

But my one wish is that more often they would fall on their sword. I know many who do. They recognize they did their best, they missed the issue, and they want their client to win. They reply to my emails. They send me their file. They sign declarations. And they gladly do it.

When my clients insist on arguing a frivolous issues I refuse to raise, I send them a declaration for a habeas. Gladly. If I was negligent or wrong, more power to him. a State Bar Card is a sword our client’s don’t have. If they go down because we didn’t use it properly, it’s our job to hand it to them while trying to lift them up.

The State Bar has made clear to appellate projects that no one is being disbarred for IAC unless it’s like caused by cocaine on the job. Even then folks, come on. No one is getting disbarred for IAC. Also, courts are not in the habit of finding IAC.

So it is beyond me that my job requires harassing trial counsel for the file and to answer my questions. It is beyond me that the LA Public defender has a blanket policy that the appellate unit must review any answers to questions from successor counsel, and also will not turn over conversations they have about those answers. I’ve received answers months and multiple follow up emails later where it is clear that the attorney is making a bullshit tactical reason when the reality is (s)he simply didn’t see the issue at the time, which I dont blame her for.

At the end of the day each of us is doing our best. Trial lawyers preserve 99% of issues and I’m always looking for the one they didn’t. I spend hours, days, identifying issues, figuring out how decent they are, often speaking to multiple attorneys for their opinion. I still wonder why I didn’t move to dismiss under Brady in my second DUI trial. There’s no shame in recognizing this job is absurd and demands more than a human can give. Own it. Love it. Use on the privilege we have to do this work by falling on your sword.

I’m just venting. I’m venting because I’m currently harassing three trial lawyers about their files and to answer my questions. And the , when they ignore me for months, and I remind them of their state bar duties, I’m the asshole.

Fall on your sword. I fall on mine.

Published by Jenny Brandt

About Me: sociology, african american studies, chicano/a studies, critical race studies, and criminal law scholar. public school kid from kindergarten-J.D. Former public defender. I am a post-conviction guru. Appeals. Sentencing. Withdraw Pleas. Habeas. Published author in the Criminal Law Bulletin and California Defender. "I do it for the joy it brings, because I'm a joyful girl, because the world owes me nothing, and we owe each other the world." Why I started JJC: My PD buddy suggested it. What and who JJC is inspired by: public defenders I have worked for, with, and next to. my clients who have battled things no one should and are still here. innocence and guilt and everything in between. My coworkers, who fight just as hard as the PDs I love, for many of the same reasons. My husband who was once voted "most Christ like" (every Jewish girl's dream). My Corgi who loves everyone. The constitution. Tabloids. My mom, for giving me a voice. My dad, for teaching me what to say. My brother, for teaching me how to say it.

2 thoughts on “On trial counsel and falling on your sword

  1. Agree. One caveat, though. You don’t have to raise IAC for a section 352/due process issue. People v. Partida (2005) 37 Cal.4th. 428 says the 352 objection preserves the due process argument.

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