Lawyer Goes to Jail Rather Than to Trial

by Rick Wetzel on June 15, 2012

I once worked on a case in which the prosecutor approached a defendant during trial and said: “You’re drowning and your lifeguard doesn’t know how to swim.”  That incident resulted in a reversal of the conviction on criminal appeal.  Had the criminal appeal not be successful, it would have been a strong ground on habeas corpus review in a Texas criminal appeals court.

The Times-Picayune is reporting that two days into a rape trial, the defense attorney stood and confessed to the judge that he’d done an inadequate job representing his client accused of raping two young girls. The lawyer refused to proceed, despite the judge’s threats to hold him in contempt of court.  Essentially, the lifeguard stood before the drowning victim and professed his inability to swim.

How Did I Get Here?

The defendant had hired an attorney from out of state, who in turn hired a New Orleans’s lawyer as his local co-counsel. The out-of-state lawyer did not show up for the trial and local counsel was stuck with trying a case for which he was not prepared or competent to try.

By the second day of trial, counsel filed a motion stating he was unqualified to provide adequate counsel.  The defendant’s family hired a consultant to watch over counsel’s shoulder during the trial.  The consultant found the lawyer to be incompetent and the lawyer agreed.

Too Late to Quit

The judge responded it would set a “horrible precedent” to call off the trial with no obvious signs that the lawyer was incompetent.  But counsel did not concede. “I cannot further participate,” he insisted.  “We’re not going to play these games,” the judge said incredulously. “That’s all I see this as — game playing.”

The lawyer apologized but held his ground. “Is there any reason I shouldn’t hold you in contempt?” the judge asked.  “No, your honor,” counsel replied. He then was led out of the courtroom in shackles by the bailiffs.  The judge apologized to the jurors and released them.  The trial has been rescheduled to July 30.  The duration of counsel’s incarceration is unclear.

Lessons Learned

The Sixth Amendment right to counsel includes the right to effective counsel.  Know your lawyer.  Be sure your lawyer has the abilities to undertake a vigorous defense either at trial, on criminal appeal, or habeas corpus review in a Texas appellate court.  You don’t want someone afraid of the water to be your lifeguard.

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