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Legal Reasoning, the "Bad" Lawyer & the Legal Fiction of the "Defendant" - Shandean Postscripts to Politics, Philosophy, & Culture

About Legal Reasoning, the "Bad" Lawyer & the Legal Fiction of the "Defendant"

Previous Entry Legal Reasoning, the "Bad" Lawyer & the Legal Fiction of the "Defendant" Jun. 9th, 2006 @ 08:41 pm Next Entry
Legal reasoning can be a funny thing.

There is one part of the trial in Albert Camus's The Stranger, which should strike everyone who has been involved in the criminal justice system as true.: The real absence of the accused from the search for the truth.

In our system of criminal justice the defendant is supposed to have the right to face his accusers and to participate in his own defense. In the everyday legal process this right depends upon the diligence of the defendant's lawyer. But even with a lawyer's diligence the whole process can make the defendant feel that all that is being said about her is quite some distance away from the living reality. In short Camus picked his theme carefully, because there is nothing so existentially alienating as a criminal trial.

The first person narrator of The Stranger, Meursault says;

Even in the prisoner's dock it's always interesting to hear people talk about you. And during the summations by the prosecutor and my lawyer, there was a lot said about me, maybe more about me than about my crime. My lawyer raised his arms and pleaded guilty, but with an explanation. The prosecutor waved his hands and proclaimed my guilt, but without an explanation. One thing bothered me a little, though. Despite everything that was on my mind I felt like intervening every now and then, but my lawyer kept telling me, "Just keep quiet -- it won't do your case any good." In a way, they seemed to be arguing the case as if it had nothing to do with me. Everything was happening without my participation. [98]


Admittedly, given the whole novel, Meursault may be considered pathologically detached, not only from his trial but from his whole life. But the sense of exclusion from one's own story is a common feeling of the criminal defendant during trials.

It seemed to me as if my lawyer's summation would never end. At one point, though, I listened, because he was saying, "It is true I killed a man." He went on like that saying "I" whenever he was speaking about me. I was completely taken aback. I leaned over to one of the guards and asked him why he was doing that. He told me to keep quiet, and a few seconds later he added, "All lawyers do it.." I thought it was a way to exclude me even further from the case, to reduce me to nothing. [103]


I have never observed lawyers in our system use this form of rhetoric, assuming the first person singular, in the place of the client. But appellate judges do this kind of thing all the time. The trial is over and the original lawyers have gone home. Our American Joe Meursault is appealing his conviction. Of course it is his new lawyer that is appealing his conviction, on the grounds that his legal representation was inadequate because the original lawyer representing Joe never brought up the fact that Joe is handless and he was thus unable to lift the gun that killed the deceased. The judges hearing this case are liable to say something along the lines; "The original lawyer was breathing and therefore he must have represented Joe adequately. Furthermore Joe never brought up his missing hands during the trial, even though he had adequate opportunity, therefore Joe's handlessness is not new evidence. Thus Joe's petition for a new trial is denied."

Of course I am exaggerating, but only a bit.

Take the case of People v. Wong. "David" Wong was wrongly convicted of a murder and served sixteen years of his sentence before dedicated people proved his innocence. The actual details of the conviction are instructive and be found in a well written paper by Daniel S. Medwed at SSRN. ( "Anatomy of a Wrongful Conviction: Theoretical Implications and Practical Solutions" - DANIEL S. MEDWED http://papers.ssrn.com/sol3/papers.cfm?abstract_id=893831. More information about the case can be found at The David Wong Support Committee). The actual twists and turns of the case don't concern me here. But the reasoning behind why one of Wong's appeals was denied I think is instructive of the workings of legal reasoning.

Wong's English was near to inadequate. He spoke Chinese, but as many people know "Chinese" is a label we give to a family of related language communities, some of which are as distant as English and German. I quote from Medwed's article:

Compounding matters from Wong’s vantage point was his inability to contribute significantly to his own defense due to linguistic obstacles. To begin with, Wong’s English proficiency was limited at the time of trial... More importantly, the interpreter assigned to his case did not speak the regional Chinese dialect with which Wong was most familiar; instead, she spoke Mandarin, a language Wong barely understood..... The defense attorneys failed to recognize the barrier this distinction posed for their client, and opted against formally requesting a new translator even in the face of ample opportunities to do so. [p. 108, footnotes deleted.]


There is an old linguist's joke that the distinguishing characteristic of a "language" is that it comes equipped with an army and a navy, where-as a dialect is not defended by these national accoutrements. I once read a paper on the English language that referred to English as a "West German" dialect with historical roots on an island off the coast of Europe. Imagine, if you can, being an English speaker on trial in China and provided with a German interpreter. This is something close to Wong's situation.

So why didn't the lawyers representing Wong ask for a better interpreter? Quite simply they didn't know enough about Wong's situation to know that it made a difference. In one of Wong's appeals his new lawyers claimed that he was inadequately represented. There were many facts presented to show that Wong's lawyers didn't adequately investigate the foundations of the prosecution's case. The lawyers never interviewed the supposed witnesses to the murder. They never tried to find the person who might have a motive for the murder, even when Wong lacked all motive and didn't know the victim. State appointed defense attorneys are often so overworked and underpaid that they simply don't have the resources to do anything but the bare minimum for their clients and that was the situation in this case. But the clincher for inadequate representation of Wong by his attorneys should have been the fact that they did not request a translator who could actually understand their client.


This is what the court said on this issue:

As for defendant’s contentions that he was improperly denied the services of a competent interpreter at his arraignment or during the pretrial preparation period, and that the interpreter appointed for the trial was unsatisfactory due to her inexperience and inability to communicate in the particular dialects with which defendant was most familiar, his failure to raise these issues at any time during the trial, despite having been afforded numerous opportunities to do so, precludes their consideration at this juncture. [Quoted by Medwed @ p. 108 fn. 48 from "People v. Wong, 682 N.Y.S.2d 689, 691 (App. Div. 1998) (denying Wong’s ineffective assistance of counsel claims presented via New York Criminal Procedure Law Section 440.10 motion to vacate his conviction)", referenced from p. 107.].


For the good reader of Camus something should immediately jump out of this Appellate Division denial of a new trial. It is a legal fiction of Appellate judges that the defendant handles his own case. Wong is treated as if his lawyer's words were his words, and his lawyer's silence was his silence. So, according to the fiction, it was Wong who had been "afforded numerous opportunities" to ask the trial judge for a new translator. One wonders in the first place, if Wong was given the opportunity to actually speak for himself, whether the trial judge would have understood a word he said. But in reality, the Appellate court judges know, the trial judge knows, and we know that Wong himself was not afforded the opportunity to raise issues at trial, his lawyers were afforded these opportunities. They didn't take them.

Given Wong's real life situation, and I would argue the situation of most criminal defendants, this fiction of Wong's "speech" served to exclude him further from the case, to reduce him to nothing.

So what is exactly going through the minds of appellate judges when they conspire to maintain this legal fiction? What they need to assume, in order to maintain the larger fiction of equal justice for all, is that every defendant is fully competent to participate in his own trial, to understand the law, to direct his attorney, and have full knowledge of what he is up against. In other words they expect that every defendant will have the capacity to direct his trial as Kenneth Lay directed his trial. This is an image of the defendant as upper middle class, assertive, knowing, informed, and connected to a support group who will give him good advice. In other words the legal fiction of the defendant is constructed in the image of the judges who look down upon him. Thus if the lawyer failed to bring up a defense at a trial, and the lawyer is an adequate lawyer who informs his participating client of his alternatives, then it is assumed that the absence of a defense is because the defendant failed to speak. But very few criminal defendants have any of the qualities that are attributed to the fictional character of the defendant in the majesty of the law. What is also curious is that very few judges actually believe the fiction of this kind of defendant. It is truly the "law's" fiction as if the law was an author independent of human hands. The trial judges themselves must believe other fictions, which are constructed around the actual defendant in the case. These fictions which involve the defendants class, status, race, sex, etc. are constructed with varying amounts of sympathy, empathy, prejudice, and ignorance.

It doesn't matter if the legal fiction matches the reality because the court room creates its own "rationality" that confirms what is rational. From the judge's point of view what is rational must be real.

This brings us to the peculiar kind of legal reasoning that occurred in Wong's appeal. Shouldn't it have been enough to show the inadequacy of a lawyer in defending a client that the lawyer couldn't adequately communicate with his client and didn't rectify the situation? The reasoning of the judges in Wong 682 N.Y.S.2d 689 seems upside down. Because the lawyers were competent we must assume that Wong participated in his case and was not blocked from raising the issue of an inadequate translator. That the lawyers themselves didn't ask only shows that Wong let his opportunities pass at the time of the trial.

Here is one fiction piles on top of another. In the Supreme Court case of STRICKLAND v. WASHINGTON, 466 U.S. 668 (1984) the standard for attorney performance in such cases was established. To quote the holding at FindLaw.com :

The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. These standards require no special amplification in order to define counsel's duty to investigate, the duty at issue in this case. Pp. 687-691.


An adequate description of this standard is "if the lawyer is breathing he is a good enough lawyer for you," especially if you are poor and without connections. Lawyers have shown up for trials drunk, on drugs, and unprepared to the point that they didn't know their client's charges and still appellate courts have found that they were adequate under these standards. Lawyers have slept through their client's testimony and still have been found adequate. Strickland was a death penalty case so it should give pause at how low the standard is in such cases. Perhaps at a future date I will write about how good so many attorneys are and how bad attorneys can be. And then perhaps I will write about the system that often assures the inadequacy of representation of poor defendants even when their attorneys are zealous, dedicated, and brilliant. But for now I want to get back to the legal fictions in Wong's case.

The court found that Wong's attorneys provided effective assistance to their client under the Strickland test. This test provides judges with another legal fiction in order to construct their reasoning. Thus, even though Wong's attorney couldn't effectively communicate with or for their client one legal fiction (the fiction of "effective assistance" necessary for equality before the law) compounds another "legal fiction" (the fiction that constructs the "Defendant" as a participant in his own case even if he is literally unable to understand a damn thing anybody says). Thus it was irrelevant that Wong "denied the services of a competent interpreter" because he could have always brought this up during the trial, and the competency of his lawyers in not bringing up this problem during the trial is also irrelevant, because they were effective lawyers who spoke for their client.



New York City
9 June 2006


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From:warrbo
Date:August 14th, 2006 05:42 am (UTC)

does anyone ever understand anyone???

(Link)
Even if we got the best interpreter in the world, how could we really be sure that the defendant actually understood anything.

Since it can't know, why not restructure the system so it does not care.

Make the defendant irrelevant.
We simply want to know what was done.
We need not hear excuses and argumentative questioning from defendants who are biased and unskilled in the art of trial questioning.
They are invited to take the stand should they so choose. But they are advised to retain counsel and be active in their trial only through this bar-certified conduit.

No doubt many lawyers are ineffective. We probably need better oversight at 18b, more money for legal aid and all that stuff.

The thing is, I am not sure the moment of criminal trial is more existential alienating than any other moment of our lives. We are all Wong, in every moment, everyday.
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