How bad can SD lawyer be and still be deemed "effective"? Pretty bad.

[Guest Law of Self Defense]

Hey folks,

 

One of the most common questions I get at seminars is, “How do I pick a good self-defense lawyer if I’ve had to use force in defense of myself (or my family, my home, business, etc.)?”

 

That’s too lengthy a topic for a forum post, but it does touch upon an interesting facet of choosing a lawyer that just came up in a TN Court of Appeals case this past April—that of picking a “good” lawyer, and just how bad a lawyer can be and still be deemed by the courts to have provided "effective counsel."

 

We all have a Constitutional right to legal representation, and further we have the right that such representation be “effective.”  If a lawyer is bad enough, a guilty verdict may be overturned on the basis of “ineffective assistance of counsel.”

 

Many people, however, don’t really understand just how bad a lawyer can be, and still be deemed to have been “effective.”

 

In the recently decided case of Hines v. State, 2014 Tenn. Crim. App. LEXIS 376 (TN Ct. App. 2014) we see that the answer is apparently, pretty darn bad.

 

In that case the defendant had shot and killed someone, and his lawyer chose to argue self-defense.  This was never going to be a very robust self-defense claim, as the facts strongly supported a scenario in which the victim, a drug dealer, was shot by the defendant in the course of purchasing drugs from him, and perhaps robbing as well.

 

What makes this case interesting, however, isn't the defendant’s self-defense claim was (as is very common) ridiculously weak.  Rather, it’s the fact that his defense attorney apparently didn’t understand a basic tenet of Tennessee self-defense law until he actually got the case to trial.

 

In most states, one’s core right to claim self-defense as a justification for using force against another is independent on whether you are, at the moment, engaged in a criminal act.  That is, the mere fact that you might have been engaged in some illegal activity doesn't automatically strip you of the right to justify defensive force as self-defense.

 

It’s true that in many states some facets of self-defense can be impacted by a person being engaged in unlawful activity.  In many “Stand-Your-Ground” states, for example, being engaged in illegal activity strips you of the benefits of “Stand-Your-Ground” and re-imposes a legal duty to retreat.  It does not, however, strip you of self-defense entirely.

 

In TN the law is different.  39-11-611. “Self-defense” provides:

 

(b)(2) [A] person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury, if:

 

(A) The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;

(B) The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and

(C) The belief of danger is founded upon reasonable grounds.

 

This statute has been interpreted by the Tennessee courts to mean “"To prevail on a theory of self-defense, a defendant must show that he or she was 'not engaged in unlawful activity' and was 'in a place where the person has a right to be.'"  State v. Hawkins, 406 S.W.3d 121, 128 (Tenn. 2013).  So, if you use force against another, and you are engaged in any unlawful activity, no self-defense for you--period.

 

OK, all of that was really just the foundation for the point with which I started this post, which is this:

 

In Hines, the defense lawyer’s strategy at trial was self-defense—that is, his client was justified in killing the victim as an act of self-defense.

 

But, as I’m sure we can all see, there was a serious problem with this strategy.  And that is that the defendant himself had conceded that “admitted he entered the victim's car to purchase drugs, and therefore, was not entitled to a self-defense instruction, which is premised on the "non-engagement of illegal activity."

 

I’m sure you’re wondering why in the world would the defense lawyer have based his trial strategy on self-defense when his client was so clearly ineligible to argue self-defense?

 

The lawyer’s explanation?  He didn’t actually understand the self-defense statute until he had already begun the trial by arguing self-defense. 

 

No, I’m not kidding.

 

Counsel testified that prior to trial he was not aware of the language regarding "unlawful activity" in the statute; however, after learning of the limiting language, he believed that the Petitioner was not entitled to a self-defense instruction because the Petitioner admitted that the shooting occurred during a drug deal with the victim. Accordingly, he shifted his defense strategy. . .

 

 

Naturally, the defendant was unhappy that his lawyer was apparently not only learning his job for the first time on the defendant’s case, but not even doing that much until the trial had actually begun.  Following his conviction, the defendant appealed on the basis that he had received ineffective counsel at trial, on this basis. 

 

I expect that most of us, in a similar situation, would agree—it seems only reasonable to expect that our lawyer does his learning of the law prior to or (at the latest) while developing his defense strategy pre-trial, rather than waiting to do so until he’s actually arguing it at trial.

 

So, is this “oops!” enough for the appellate court to find that the lawyer’s work qualified as “ineffective assistance of counsel?”

 

Nope.  The appellate court concluded:

 

We note that, of course, the better practice for defense counsel is to familiarize oneself with the relevant statutes prior to trial. Notwithstanding, upon learning of the limiting language in the statute, counsel made the sound tactical decision to forgo further pursuit of a self-defense argument or jury instruction and instead focus on disproving the State's case. Based on the record, we cannot conclude that counsel's decision constituted deficient performance.

 

 

So, how bad can an attorney be and still be found to have provided “effective counsel”? According to Hines, pretty darn bad.

 

 

My advice? Know the law. :-)

 

--Andrew, @LawSelfDefense

[Sam1]

Not sure if this was a gouge at Chip or not...  will reserve judgement for now

[Dustbuster]

Chip doesn't practice crim defense....he does probate and business law.
But point well taken from the OP. You have to pick and choose attorneys wisely.
Always shop around and don't let cost be a factor when the rest of your life depends on it.




Sent from my iPhone using Tapatalk 2 of course it ate my spelling.

[Guest Law of Self Defense]

Not sure if this was a gouge at Chip or not...  will reserve judgement for now

 

I have no idea who Chip is. 

 

--Andrew, @LawSelfDefense

[Major Kong]

Not sure if this was a gouge at Chip or not...  will reserve judgement for now

How did you read that out of anything he wrote?

[RED333]

I think Chip will take a "self defense" case, if it truly a self defense.

[Guest Law of Self Defense]

I think Chip will take a "self defense" case, if it truly a self defense.

 

As I said, I don't know Chip.  I do, however, know lawyers. Most lawyers develop high-level skills within one or a few narrowly defined areas of the law.  While often legally permitted to practice in other areas, their skill level tends to be dramatically lower in areas that they do not regularly cover.  The law is complex, and no lawyer is an expert in all of it. 

 

I would be very surprised if any lawyer who focuses his practice on probate and business law would be eager to take on a self-defense case, and that's ESPECIALLY true if they believe the defendant to be innocent of the crime.  Blow a case where you believe the client's guilty--well, don't do the crime if you can't do the time.  Blow a case where you believe the client's innocent? Oofah, I couldn't sleep at night.

 

That is not, of course, to denigrate Chip's skills, or those of any lawyer.  In my case, for example, you couldn't pay me any amount of money to hold myself out as possessing expertise or even competence to counsel on probate and business matters.  I simply do not have that skill set, not practicing in those areas, and to claim I did would be a horrible disservice to my clients--although, technically speaking, there's nothing in the law (at least in MA) to prevent me from holding myself out as a probate and business lawyer.  It just would be a very bad idea, and I wouldn't do it.

 

What I would do, of course, is help someone inquiring for such a skill set to identify a lawyer that can competently meet their needs.

 

Perhaps Chip? :-)

 

--Andrew, @LawSelfDefense

[R_Bert]

Well, neither one is Stephen A. Burroughs :rock:

 

 

(with apologies :hiding:    ....the Knoxville crowd will get it)

Edited July 4, 2014 by R_Bert

[Guest Law of Self Defense]

Well, neither one is Stephen A. Burroughs :rock:

 

Hahaha, that's awesome. Is that a real PI attorney? 

 

--Andrew, @LawSelfDefense

[R_Bert]

Hahaha, that's awesome. Is that a real PI attorney? 

 

--Andrew, @LawSelfDefense

 

 

Yeah.

 

Do a web search for "Stephen A. Burroughs memes"

 

It started out as a UT student pulling a prank on the guy, and he took it in great humor.

[Sam1]

How did you read that out of anything he wrote?

 

Because they were bickering in the other thread concerning self-defense, and this came out of nowhere.

[Guest Law of Self Defense]

Because they were bickering in the other thread concerning self-defense, and this came out of nowhere.

 

Actually, it came out of a recently decided case: Hines v. State, 2014 Tenn. Crim. App. LEXIS 376 (TN Ct. App. 2014) , that I thought folks might find interesting.  But, whatever.

 

And I don't bicker. :-) 

 

--Andrew, @LawSelfDefense

[Guest Field Boss]

Andrew, I for one, enjoyed your posting. Found it very interesting and learned some TN law. Thanks

[Dustbuster]

It is interesting, also supports the fact that all shooters are responsible for anything they hit..


Sent from my iPhone using Tapatalk 2 of course it ate my spelling.

[Guest Law of Self Defense]

Andrew, I for one, enjoyed your posting. Found it very interesting and learned some TN law. Thanks

 

I appreciate that, many thanks.

 

Is this where I apologize abjectly for having dared to have written an authoritative book.  For holding seminars where lawyers pay a premium to earn Continuing Legal Education credits, and law enforcement officers earn POST continuing education credits? :-)

 

Just kidding, of course.  Haters will hate. Have a great 4th of July, everyone.  Anyone caring to read the full text of the Declaration of Independence, I have it posted up at my blog, in celebration of the day.

 

--Andrew, @LawSelfDefense

[Stegall Law Firm]

Folks, the Hines decision is really nothing more than a run of the mill post conviction case that happens to be about a shooting that the defendant tried to make into self defense.  It is not announcing any new law, and it is not a reported decision (meaning it has little precedential value).  Also, while I'm not going to go as far as TMF in the other thread, I do think there is some misleading information being conveyed by the OP that needs to be cleared up.

 

The trial lawyer in Hines did not do a bad job.  His client was charged with first degree murder, felony murder (essentially first degree murder) and especially aggravated robbery. He was convicted of the lesser included offenses of second degree murder on the two murder charges, and aggravated assault on the esp. agg. rob.  Guy was facing two life sentences for the murders (and I'm guessing this was a non-capital case) and an additional 15-25 on EAR.  A very, very long time if convicted as charged.

 

He got a total of 22 years.  That's very good, ok?  That's a great result. 

 

Furthermore, it looks like the failure to understand self defense law was the less important of two issues in this case.  The bigger one was the lawyer's failure to impeach state's witnesses, and the defendant actually got further on that issue.  On a post conviction petition in Tennessee you have to establish two things.  One is deficient performance by your attorney, and two is prejudice resulting from that deficient performance. You can have deficient performance but no prejudice, and that's what happened here with the failure to impeach.  The court said the lawyer should have impeached, but that they didn't was of little consequence to the outcome.

 

As for not understanding the self defense law, both the trial and appeals court said it wasn't even deficient performance (the trial court maybe not as clearly) so the defendant didn't even get past the first hurdle. In other words, the appeals court didn't think it was that big of a deal. Yes, they did send out a little side note to the lawyer to please read the law before trial next time, but they didn't by any means throw him/her under the bus.  In fact the court commended the attorney for being able to switch tactics like that in the middle of trial. 

 

So I disagree with OP that the trial lawyer was "pretty darn bad."  I think that lawyer did an excellent job with what he/she had to work with.  I think OP has latched onto a relatively minor issue and is trying to make it into the be-all-end-all of bad lawyering within the context of self defense cases.  Even the best lawyers have "oh crap" moments in the middle of trial.  Lawyers joke to each other that what we do is called the practice of law, meaning that we're continuously practicing it and never perfecting it.  

 

Like TMF I do question OP's intentions for coming onto TGO with all of this.  Is it to sell a book?  I don't know.  But I do believe facts are being twisted.  Finally I disagree with his first comment that finding the right lawyer is too long of a topic for a forum post.  It's really quite simple and I can boil it down for everyone in a few words: get the best criminal defense lawyer in your area that you can, period.

[Guest Law of Self Defense]

As for not understanding the self defense law, both the trial and appeals court said it wasn't even deficient performance (the trial court maybe not as clearly) so the defendant didn't even get past the first hurdle. In other words, the appeals court didn't think it was that big of a deal. Yes, they did send out a little side note to the lawyer to please read the law before trial next time, but they didn't by any means throw him/her under the bus.  In fact the court commended the attorney for being able to switch tactics like that in the middle of trial. 

 

Do I understand you to believe that a lawyer learning the law central to his legal strategy DURING TRIAL is appropriate legal practice and adequate representation for his client? 

 

Is that how you describe your legal services to your clients?  That you'll learn the law of their case during the actual trial? 

 

I can't imagine practicing law in that fashion.  

 

Furthermore, it looks like the failure to understand self defense law was the less important of two issues in this case. 

 

Well, sure.  Most self-defense cases involve numerous issues, of which self-defense is just one.  I focus on the self-defense issues, because that's my area of interest, and what I believe most gun owners find relevant to, well, self-defense.   Subtleties of criminal procedure, rules of evidence, less included charges, and the 1,000 other things that can and do routinely come up in a self-defense case, but they fall outside the scope of what lawful gun owners need to know to stay within the bounds of lawful self-defense.  

 

But feel free to provide your own analysis of those ancillary issues, if you like. Free country. :-)

 

Finally I disagree with his first comment that finding the right lawyer is too long of a topic for a forum post.  It's really quite simple and I can boil it down for everyone in a few words: get the best criminal defense lawyer in your area that you can, period.

 

Did you read the question? The question wasn't whether one NEEDS a good self-defense lawyer.  The question was "HOW DO I PICK" a good self-defense lawyer. If the answer to that is so simple, I fail to see it in your reply.  Does one ask their friends? Open the yellow pages? Google? I'd love to hear your thoughts on the matter, as I'm sure many here would.

 

Why so much hate? Enjoy your weekend! :-)

 

--Andrew, @LawSelfDefense

[DaveTN]

Why so much hate? Enjoy your weekend! :-)

Hate? He addressed the case you started a thread about and is obviously familiar with. He is a criminal defense attorney in this state.

I commend him for posting after you took your cheap shots at Chip. You obviously don’t like being told you are wrong. You came here to try to sell your seminar. If I were going to pay for a legal seminar on the use of deadly force would I rather pay for one from an attorney that practices in the county and state where the seminar is held, or one from Massachusetts? That’s a no brainer.

You said you weren’t trying to sell anything, but that’s BS you were trying to sell your seminar in the very first sentence you posted.

[TMF]

[quote name="Law of Self Defense" post="1165506" timestamp="1404536842"]Well, don't pussy foot around, man. Show me where I've promoted links here--or, hey, I'll be generous, where I've promoted links on ANY THREAD I'VE PARTICIPATED IN THIS YEAR--to my work product, and I'll send you a free copy of my book. Autographed, if you like (and many people do). Sure, I'll wait. But seriously, you few people don't have anything better to do than hate on someone trying to inform gun owners about how to not accidentally overstep the bounds of lawful self-defense? The vast majority of which I do for free--including 100% of what I post here? I mean, do you WANT them to go to jail? What kind of monsters ARE you? --Andrew, @LawSelfDefense[/quote] You're being obtuse, and we both know why. People add to the discussion around here all the time. The difference is when you do it you're trying to sell something. Yeah, it's been a while since you came here hocking your crappy book, but it remains a fact that it happened. Now you conveniently mention two seminars you have coming up in Tennessee in the first thread you start since then. We can look at the time stamps to see when you started the other threads, one of which you chose not to mention that part after I called you out here. I have a well calibrated BS meter. It utilizes an algorithm which is likely to get a classification once DARPA cracks it. Sometimes it detects trace amounts of BS. With you, my BS meter is at full tilt. If you had come here to discuss topics without bringing up your "business", I never would have given it a second thought to your ulterior motives. But you did, and this isn't the first time. If your "business" is legit then you can pay to be a vendor like others do. Otherwise, stop mentioning your crappy product. Remove mention of your upcoming side show-- er, seminar from the first entry in this thread and the other thread you posted. Bottom line, you're dishonest and unethical. We both know what you're doing. It is akin to a guy posting here for two seconds, then making mention of an upcoming training event that he's taking reservations for; for a fee. Sent from my iPhone using Tapatalk Sent from my iPhone using Tapatalk

[TMF]

I see he conveniently mentioned his seminars AND his book in this thread. Seems like if I was a TGO vendor who advertised classes here I'd be pretty pissed. Sent from my iPhone using Tapatalk

[gregintenn]

A lawyer from Boston posting on a Tennessee gun forum. I smell a rat! :cool:

[Guest Law of Self Defense]

A lawyer from Boston posting on a Tennessee gun forum. I smell a rat! :cool:

 

Hahaha! Sorry, didn't mean to alarm you. :-)

 

--Andrew, @LawSelfDefense

[tnhawk]

Must be really rough times for a lawyer in Boston.  If I ever need one, I'm sure I can find one in TN. 

[Sam1]

Guy was facing two life sentences for the murders (and I'm guessing this was a non-capital case) and an additional 15-25 on EAR.  

 

 

Not to change the subject, but on that multiple life sentences thing, I see that happen occasionally... Why is it necessary to convict someone of multiple life sentences?  Seems like a life sentence should only need one implementation to be effective.

[R_Bert]

Up front, Andrew should have followed TGO terms of use, and for no more than it cost, got a Vendor or at least a benefactor tag.

 

That said, (and I do not personally know him, just read a lot)

 

In spite of his approach, he is a known set of resources used by Drudge Report, Legal Insurrection, and TTAG, and I have seen him on Fox News, etc.

 

Say what you want, but he has captured the attention of the media, and voices out his opinion nationally.

 

It would have been really good to work out issues and get past the Forming and Storming stages with this guy, Boston, NYC, California or not.  Anyone that can call up Eugene Volokh or Alan Gotlieb to bend their ear probably has some decent information, once past the noise.