Thursday, December 6, 2012

Finishing Strong

Seems like someone is channeling my Paul Clement post in which I explained that lawyers are, first and foremost, professional writers.  Though the suggestion is hardly novel, I do appreciate that more esteemed lawyers share the sentiment. 

The above post also reminds me that the corollary to opening strong is to finish strong too.  Far too many lawyers finish their argument with a whimper: "In sum, the People failed to prove its case beyond a reasonable doubt, therefore, the defendant respectfully requests that the conviction be reversed and a new trial ordered."  Nothing says "give me the relief I want" with a meek "respectfully request."  

A somewhat recent experience illustrates the importance of finishing strong.  A few years ago I was responding to a federal habeas petition in which the petitioner alleged that his trial attorney was ineffective for failing to call a false confession expert at trial.  On habeas review, the petitioner was represented by a gaggle of BigLaw attorneys, all of whom collectively wrote a very persuasive brief.  Indeed, it was one of the few times where I thought we would have a difficult time crafting an equally convincing argument.  The circumstantial evidence supporting the conviction appeared weak, and the record lent a reasonable - if not, strong - inference that the police had procured a confession from a low intelligence individual, who was no match for the aggressive interrogation he confronted.

But, then I read the response to the petitioner's state court post conviction memo that a former colleague of mine, who had handled the case previously, drafted.  I was truly impressed.  Riveted would be more accurate.  So convincing was his response that it led me to firmly believe that the petitioner's claim was little more than one giant smokescreen.  What I particularly remember was the final paragraph, a coup de grace that left me wishing I had written it myself:

"In sum, throughout the investigation of [the victim's] murder, petitioner focused solely on minimizing his culpability.  In furtherance of that goal, he spun a web of lies, and in so doing, he made a number of missteps.  When confronted with those missteps, he skillfully invented new stories designed to meet his ultimate goal of evading responsibility, of pinning this murder on one of his two accomplices.  Indeed, the defeat evidenced in petitioner’s mannerisms during the last interview was the product not of coercion, but of the consequences of petitioner’s own actions finally catching up with him.  Petitioner’s attack against his attorney for not procuring a false confession expert, even though “[l]ess than a half-dozen New York State criminal defense attorneys had ever attempted to offer a false confession expert at the time of [his] trial”, is yet another final, futile gesture to place blame on someone other than himself.  He should not be permitted to do so here, years later after his conviction.  Since the state court’s rejection of his claim was based on a reasonable application of Strickland, his petition for a writ of habeas corpus must be denied."

A great finish to an excellent argument, for it accomplished two things: it reiterated our theory of the case - trial counsel cannot be ineffective for failing to procure inadmissible evidence - and removed the dispute from its legal context and placed it in a more human, real world setting.  This is the kind of conclusion that doesn't simply persuade the court to accept your argument as a legal matter, bur rather leaves no room for the court to doubt that the result you desire is the moral one.      

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