Only Ineffective When The Judge Won’t Let You Do Your Job

Through the magic that is my aunt sending me press clippings, I learned of the story you’re about to read.

It takes one set of stones to argue ineffective assistance of counsel in a murder trial when the ineffective counsel is you.  It’s another matter entirely when the argument is a judge rendered you ineffective.

I don’t honestly expect anything less from Herb Moncier–he’s a guy who can talk his way out of nearly anything with optimal results.  This is the same lawyer who argued through a contempt charge that he was sleep deprived due to his CPAP machine not working properly and therefore talking out of turn in court.  Herb is a good attorney, though for precisely the same abilities.  This argument is one of his more novel ones, though, and I think it bears some review.

One of Herb’s recent cases involved a kid who ended his father’s life with a shotgun.  During trial, the defense produced an expert who stated the shotgun blast that killed daddy could have potentially been fired as an accident or in self defense.  This was a crucial component to the defense case, and a theory on which Herb was willing to rest his hat.

The judge, on the other hand, thought it hogwash and dismissed the expert’s point promptly.  He instructed the jury to ignore any theory of the case that allowed for accident or self defense and proceed accordingly.  The kid had said to police that he’d shot his father and that was that.  According to Herb, that ruling forced his trial strategy to adapt on the fly, and left him in a position where he didn’t know how best to represent his client.  Trials have rules, you see, just like a sport, and when the referee in a sport doesn’t follow the rules the players don’t know how best to proceed to win the game.  Since the referee in a game involving this child’s life as first prize didn’t follow the appropriate rules, then the game wasn’t fair and the attorneys didn’t know how to proceed.  This limited Herb’s effectiveness, and now his client his serving life in prison.  Herb’s remarks are remarkably clear on the subject:

Participating in a trial is like a sporting event that has rules.  When rules aren’t observed, results of the event are undetermined…The accused is entitled to the effective assistance (of counsel) at trial.  That is a cornerstone of the law.  The accused was not provided with the effective assistance of counsel…I convicted this defendant.  He is serving a life sentence because of what I did.  The blood’s on my hands…I was not only given defective tools, but I was given tools that misled me when I committed myself to that course of action.  I ended up looking like a fool, but more importantly I convicted [my client].  I did what I did based on what was given by the State of Tennessee…I was unable to present a complete defense.  I made the State’s case.

I tried to decide: Do I call their expert to the stand?  You made it clear that nobody’s going to come into this courtroom and say it was an accident.  That left me on a tightrope.  It adds up to an unfair trial.  That is why I implored you to let us start over again and play by the rules.

Another point of contention in this matter was a plea deal that according to defense counsel should have been left on the table but was not.  The entire trial mounted into a situation where the defense team could not accurately pinpoint the appropriate nature of the offense (i.e. was it really premeditated), or even establish a degree of culpability.  Once the plea was off the table, and the judge issued his ruling on whether the defense’s accident/self-defense theory would be allowed in, then the game was up because the referee had turned a blind eye to his own rule infractions.

The argument made sense, and I can see how Herb might have been put in a pickle with this turn of events.  Trials require careful preparation, especially when major liberties or one’s life is involved.  You develop a game plan through countless hours of work, and then you attempt to execute it.  When a judge says or does something that completely throws your game off, then you draw a blank.  You’re now calling audibles for the rest of the trial, and you may have to go home that night and rethink your entire strategy.  A ruling that eliminates one prong of your strategy could arguably make you ineffective for those purposes.

This hearing occurred in November of last year, and I have yet to find anything on a ruling for this trial.  When I do, I’ll come back and update this post to let you know how Herb did.  Regardless, my respect for Herb Moncier has increased for making an argument like this to a trier of fact: You screwed up, and because of that I couldn’t do my job.  That is representing a client.  That is suborning your personal interests.  And that is how you play the blame game right.

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