The (So-called) Liability of Criminal Defense Attorneys: A System in Need of Reform

"[L]awyers in criminal courts are necessities, not luxuries."1 "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."2 IMAGE FORMULA6IMAGE FORMULA10 I. INTRODUCTION On trial for capital murder in Harris County, Texas3 in June of 1983, Calvin Burdine was represented by Joe Cannon, an experienced criminal defense attorney.4 Burdine was accused of murdering W.T. "Dub" Wise during a robbery. Both Douglas McCreight and Burdine were accused of committing this crimes.5 Although the evidence indicated that McCreight was the primary actor during the crime, the State of Texas entered into a plea arrangement with McCreight for which McCreight served an eight year prison sentence.6 At Burdine's trial, Cannon performed in a fashion that, apparently, was not unusual for him7-by sleeping through "substantial portions" of his client's trial,8 including occasions where the prosecutor was questioning witnesses.9 Cannon dozed with his chin on his chest, his head bobbing up and down during the proceeding.10 He had a particular affinity for napping during the afternoons of both the guilt/innocence and punishment phases of Burdine's trial.11 Cannon slumbered anywhere from a few seconds to about ten minutes at a time,12 and when he awoke, he often darted his head up suddenly and appeared quite startled.13 Of course, the record of Burdine's trial cannot possibly indicate precisely when Mr. Cannon was asleep or awake or what trial happenings Cannon observed or missed because he was asleep. However, it was established that he missed "substantial portions" of the case against Calvin Burdine.14 Therefore, it is not surprising that the jury convicted Burdine of capital murder and sentenced him to death. What is surprising is that when Burdine complained of his trial counsel's inexcusable behavior to Texas's highest court of criminal appeals, the court summarily held that, although Burdine did prove that Cannon slept through substantial portions of Burdine's capital murder trial, Burdine had not proven that he received ineffective assistance of counsel in violation of the Sixth Amendment.15 It was not until over sixteen years later that a divided court agreed with Burdine that the lawyering he received at his capital murder trial was constitutionally inadequate.16 Although ruling in Burdine's favor, the court did so over strong and vociferous dissent.17 Calvin Burdine's case is unique only insomuch as he was ultimately afforded relief on his ineffective assistance of counsel claim.18 IMAGE FORMULA14 What is not unique about his case is the deplorable legal representation that he received. There are a multitude of cases that reveal legal representation of criminal defendants as something that can be described as nothing less than "poor lawyering."19 Unfortunately, this phenomenon occurs more often than our legal system may care to admit.20 Evaluating the legal system as a whole, there are essentially three levels" on which to assess poor lawyering: the constitutional level, the civil level, and the disciplinary level.22 Each of these levels has different mechanisms for evaluating the conduct of criminal defense attorneys: (1) on the constitutional level, by means of an ineffective assistance of counsel claim;23 (2) on the civil level, by means of a criminal malpractice claim;24 and (3) on the disciplinary level, by means of a disciplinary action against the attorney.25 Unfortunately, the existence of this three-level system of safeguarding has done little to promote respectable criminal defense lawyering and has done even less to encourage the continued improvement of the criminal defense bar. Although unsettling, it is intellectually easy to explain why criminal defense lawyering is lacking: (1) ineffective assistance of counsel claims are difficult to win;26 (2) criminal malpractice claims are even more difficult to win;27 and (3) referrals to appropriate disciplinary bodies are both infrequent and unsuccessful. …