A Court of Appeals decision came out today that merits some comment, not for the opinion itself, but as a reflection of the current state of our profession.
The case is State v. Edwards. Two issues were raised: one (unpreserved) involved the merger of multiple counts of robbery in the first degree, and the court sent the case back for re-sentencing, having found plain error. The second (also unpreserved) involved the giving of an erroneous jury instruction on accomplice liability, i.e., the natural and probable consequences instruction. We know as a matter of law that the instruction is erroneous, and it apparently went to the heart of the defense case. But because of ORCP 59 H(1), the Court is prohibited from considering plain errors involving jury instructions.
A couple of points regarding the history of "natural and probable consequences." Like the reckless instruction, it had been a part of the standard jury instructions for decades before being recognized as erroneous. In 2000, in a case called St v. Anlauf, the COA reversed a conviction for Assault II based on the erroneous denial of a motion for judgment of acquittal. While the Anlauf opinion didn't discuss the "natural and probable consequences" instruction, the holding was completely incompatible with that instruction. In 2006, the excellent appellate attorney Mary Reese attempted to raise the issue as plain error, but the court wouldn't address the merits.
The COA did note in Mary's case that the validity of the instruction was an issue. And it so happened that I was on the OCDLA pond at the time (a listserve for Oregon criminal defense lawyers and investigators) and after that opinion came out, there was a thorough exchange about the problem with the instruction, that it wasn't good law, and that lawyers should be objecting to it. And in fact a number of lawyers let me know that they had been objecting to it, and that many times they'd won that objection.
It's not that I have such a great memory that I can recall e-mail exchanges from nearly 6 years ago. Rather, I was later hired as an expert in a M11 PCR case, and with the help of MPD attorney Michael Rees, I collected all the pond e-mails on "natural and probable consequences." They constituted contemporaneous evidence that defense lawyers in 2006 knew the instruction was flawed, were objecting to it, and oftentime winning that objection. And so they were helpful in Lawrence Taylor's PCR win, because the trial attorney hadn't objected to the instruction. (The state is now appealing.)
In 2008, at the OCDLA annual conference in Bend, Kendra Matthews did a presentation on accomplice liability in which she pointed out the instruction was erroneous. (Click here to order Kendra Matthews' written material and audio).
But it wasn't until July, 2010, that the COA issued an opinion officially declaring the instruction wrong.
I mention all of this for a couple of reasons. One, the trial attorney in Edwards blew it. He failed to raise an issue that other attorneys -- including attorneys in the same county -- were raising routinely. Even if he hadn't won the issue, had he raised it, he'd now have a slam dunk issue for his client on appeal.
But here's the thing: that attorney was almost certainly in the majority of defense lawyers in Oregon. While a few good attorneys were raising the issue, the overwhelming number of attorneys in Oregon didn't know it was an issue. Hundreds of co-defendants were convicted on evidence that was less than the law required.
This should come as no surprise to anyone. A minority of attorneys are on the pond on any given day. (And who can blame them? You have to have the patience to ignore and delete a lot of crap in order to get the gems.) The Library of Defense didn't exist in 2006 or 2008, but even now, a pretty small percentage of the defense lawyer community reads it regularly. And there are a lot of defense lawyers who don't go to the OCDLA conferences or get the materials.
Maybe twenty years ago, you could be a good criminal defense lawyer and not be part of the community of defense lawyers that are sharing ideas and motions and arguments. But that's just not true anymore: the law has gotten too complicated, and the consequences too severe. I was reminded recently to compare the criminal code from the 1980s with the criminal code from 2012. It looks like someone directly shot the 1980s criminal code with mutant growth hormone.
I could give all sorts of examples where criminal defense lawyers are deficient, in part because you need a PhD just to do sentencing. Merger shouldn't be all that complicated, but it is. And merger is grammar school stuff compared to the complexities of "separate criminal episodes." And M57? Fuggedaboutit.
And right now, there are a dozen or more issues like "natural and probable consequences." Issues where a few minutes with the search engine on this website will reveal arguments that any lawyer with a reasonable case load could use on at least some of his or her cases. And the result will be -- if not saving the client from prison entirely -- getting them out sooner.
So I am utterly sympathetic to the observations that (1) the law is substantially more complicated and difficult than it has ever been and (2) that defense lawyers are embarrassingly underpaid, and that has impacted the quality of lawyers willing to do criminal defense work.
But I am also unsympathetic to those defense lawyers who just, well, suck. Hell, there are whole counties in Oregon where the median quality of defense lawyer would have to work its way up to "suck." (And I'm NOT referring to Washington County, which is a tough place to work, but which also gives us these great appellate decisions because the defense bar fights hard.)
The reason I'm unsympathetic -- despite the substantial difficulties in doing a good job -- is because bad lawyers have no real interest in not being bad. It's apparent that they are satisfied with just getting out of the office by 5PM each day, because you won't see them at conferences, they aren't on the pond, they don't read Library of Defense. What made them okay attorneys 20 years ago just isn't enough to cut it anymore.
And here's the thing: no one is asking them to come up with brilliant arguments. Someone has already come up with an issue that could help get an acquittal. No one is even asking them to write a halfway decent motion. On the pond, or at the Library of Defense, or in OCDLA publications, you can usually get a motion on just about any topic. No, all they have to do is put themselves in a position so that when an issue comes up, they can hear about it and make use of it.
These attorneys are usually easy to recognize (and not just because they're a majority of defense lawyers). They almost never go to trial, which is just one of the reasons that, despite practicing criminal defense for a decade or more, they've never seen a conviction or sentence overturned at the COA. When they do go to trial, it's a bench trial, and they've made it pretty obvious it isn't their choice to go to trial. Their war stories are almost entirely about how horrible their clients are.
This isn't about making mistakes. I've made huge mistakes in cases. I've done some pretty dumb things. This is a tough job and we aren't always going to be 100%. It's too tough to do alone. We need each other to do the job well.
But collectively speaking, we aren't doing the job well.