“It is not fair. I had no idea that the system was not fair.”
Over the past 20-plus years or so, many family members of potential clients have made statements like the above as I counsel them about their options moving forward with an appeal or post-conviction. These individuals are usually distraught over what happened in trial or at the appellate court. Often, these individuals are deeply troubled by how the system actually treated their loved ones. Through their lens of perception, they see the system as flawed, imperfect, and, therefore, unjust. There is a plethora of reasons for this perception but for the purposes of this blog let’s talk about a potential culprit, bad criminal defense attorneys.
Returning to their angst, some of the people are upset with the judge. Yet others are upset with law enforcement and their unfair tactics as they trample sacred constitutional rights. Others are upset with the jury and the verdict it returned. Few are upset with the prosecutor believing that the prosecutor may have a vendetta against them or their loved ones. Surprisingly, the vast majority are upset with the performance of their defense attorney. It is a common refrain and, in many cases, a well-founded gripe.
To pinpoint the precise reason for this common problem would require volumes of research and observation. To start, society (for some reason) holds attorneys in high regard (putting all the lawyer jokes aside). People just believe that attorneys are to be placed on a pedestal. Many attorneys cannot live up to the hype, unfortunately. There are quite a few attorneys out there who are “faking it until they make it” much to the chagrin of the clients who realize their fatal mistake too late in the game to make a difference. Most will not admit their limitations (or even say sorry for their mistakes or incompetence).
It goes without saying that the attorney has gone to college and law school and has successfully passed the bar exam and a professional fitness test to be a member of the bar, but that does not mean diddly-squat in the real world. When a mechanic finishes mechanic school, it is understood that he or she can turn a wrench and fix things.
Unlike physicians who are required to usually train at a hospital or the like and do a residency before becoming fully licensed and working long hours to perfect their trade, attorneys merely pass a test that requires a basic mastery of a few legal subject matters. There is no practical experience needed to be a criminal defense attorney. Immediately after being sworn in, a newly minted attorney can pick a jury and represent anyone – no residency required. No further training or experience is necessary.[i] Crazy, isn’t it?
While in theory, this sounds wild — the problem is that being a criminal defense attorney isn’t some theoretical postulate – – real people are involved – – lives and liberty are on the line. Being a criminal defense attorney is a calling that is made up of one part diplomat, one part technician, one part legal scholar, one part artist, and one part “guts.” Add in some personal integrity and voila – this is a prototype for a good criminal defense attorney.
All parts are necessary to excel at being a criminal defense attorney. Sure, an attorney might know the specific statute, evidence, or procedural rules involved, but to be a good defense attorney the person has to have the moxie, gumption, and chutzpah to put the government to the test and make it prove its case against the client. Standing up for those who cannot stand up for themselves whether the client is right or wrong is not easy and takes professional and personal courage.
Unlike the medical profession, law school does not prepare attorneys to be “trial attorneys.” This is something they must learn on their own. There is no podcast or YouTube video to teach these skills. Good trial attorneys, like good samurai, must be trained and self-disciplined. They must know when to pull their katana to fight and when to keep it sheathed to fight again another day. The same is true in criminal defense. A good criminal defense attorney knows when to negotiate a case versus putting the state to a trial. Getting this skill down is more of an art form than a technical feat.
And somehow criminal defense is more than all of that as well.
There are plenty of attorneys out there who claim to be “trial attorneys” who do nothing more than negotiate a quick plea agreement (and have no intention of ever trying a case). In fact, these individuals assume the client is guilty and work something out (and then push it on the client for better or worse regardless of whether the state can prove its case.) Read that again.
Shockingly, there are plenty of criminal defense attorneys who do not try cases in front of a jury for whatever reason. They are too scared or too lazy or too proud or too whatever. These attorneys “work out” the case (and work it out sometimes to the detriment of their client). Being able to negotiate without a viable threat to make the state go to trial is the very definition of an “idle threat and word travels fast that the defense attorney is a “paper tiger” not to be feared and will take whatever warm plate of dung offered up the prosecution. These attorneys often leave money on the table and get average to bad deals for their clients.
On the other hand, good trial attorneys know their skills. They have valuable experience. They have learned these skills over many years. Skills like cross-examination, case preparation, motion practice, jury selection, and error preservation to name a few. They have learned how to communicate with jurors in such a fashion that benefits the client and conveys compassion and empathy. They have learned to make concise arguments that make sense so that judges can easily understand. They have learned how to be effective at their craft. They bring value every time they appear in court.
Obviously, these attorneys have tried many cases and they have markedly improved their skills from trial to trial, case to case, year to year. The specific outcome of the case is never determinative because a jury trial is driven entirely by the particular facts of the case. There are, in fact, some cases that have terrible facts and not too much can be done to lessen the damage. Sometimes the client is overcharged or mischarged. Sometimes the client is guilty of something less than what has been charged. Sometimes the client is guilty, but the case needs to be tried to preserve a specific error or incorrect ruling on a motion to suppress. And sometimes the client is in fact innocent. There are a multitude of reasons that determine the outcome of the case.
Here is an example to illustrate the point. A surgeon is presented with a patient who was in a nasty motor vehicle accident. The patient’s body is mangled, nearly lifeless, and dying. Try as the doctor might, the patient expires on the table through no fault of the physician who was doing whatever she could to save his life. While this sucks for a patient and their family and friends, this is an acceptable outcome in our society because the surgeon was acting in “good faith.” Revisit the same general scenario, but this time around the patient is in rough shape as before, but the surgeon loses the patient through her negligence, arrogance, laziness, or incompetence. This would be an unacceptable outcome and possibly an outrage.
Unfortunately, this outcome happens all the time in criminal courts across the country to unsuspecting individuals and their families (and thus fuels the reoccurring resentment of the system). While there are quite a few very dedicated criminal defense attorneys across the country, there are many more who simply have no idea what they are doing in terms of negotiating a case, preparing a case, trying a case, or appealing a case. These attorneys have no business in a courtroom let alone representing a person charged with a serious felony offense. In fact, there are quite a few that cannot defend their actions and decisions later on when they are called out (but at that point it is too late because the loved one is serving a prison sentence and courts are reluctant to correct these errors.)
What the courts consider an injustice and what a normal person considers an injustice are completely different. Criminal defense attorneys are the only profession written into the Bill of Rights. The Sixth Amendment guarantees that a person charged with a crime shall be provided with “effective assistance of counsel.”
For instance, if an attorney falls asleep during a trial, that may not be considered “ineffective assistance.” The same could be said about an attorney who simply is incompetent and fails to properly object to improper arguments by the prosecutor to curtail that unlawful behavior. In some instances, the criminal defense attorney fails to properly investigate a witness or fails to raise a viable defense. Or just gives the client terrible advice. Sad. There are too many examples to list but know that the courts often do not want to reverse these convictions (even if the conviction seems like an injustice – this is why there are news article after news article about wrongfully convicted persons that are released from prison after years, even decades who ended up in prison because the initial attorney was terrible.)
The choice of a criminal defense attorney at the onset of the case is the most important decision that one can make. Choose wisely.
If you are looking at this as an option or want an honest opinion about a specific case, appeal, or sentence, then please do not hesitate to contact the Candela Law Firm and allow us to look into the matter for you.
Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog
THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter or a criminal appeal (either state or federal), we believe we can help you. Please contact www.candelalawfirm.com or call Anthony Candela at (813) 417-3645 to discuss your case. Please do not wait. The longer you wait the worse it could get without proper representation.
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No. 23-03 Injustice
[i] It is understood from the rules regulating the Florida Bar that a new attorney should get assistance from a more senior attorney or an attorney undertaking representation in an area of the law that is unfamiliar to the attorney that the attorney may associate with someone who knows that area of the law or simply study the subject matter.