Monday, December 12, 2011

Spectacular incompetence

I once used the title "incomparable incompetence" to describe the conduct of attorneys and the judge in a particular case (see here).  Then a similar case came along and I again questioned the competence of those involved (here).  Now a judge has beaten me to the punch, calling the conduct of a criminal defense lawyer and the prosecutor in the case "spectacularly incompetent" according to the Houston Chronicle (here).

In this new case, the defendant was convicted and sentenced to life in prison for armed robbery.  He insisted he was innocent, but could not remember exactly where he was on the day of the robbery.  The fact is he had a pretty good alibi, he just did not remember it.  He was in prison; a fact that apparently was evident from the information provided to the defendant's lawyer and the prosecutor in the defendant's criminal record.

Defense counsel discovered the evidence of the alibi after the conviction and the court recently dismissed the charges.  In doing so, the judge reportedly stated,that "It boggles the mind that neither side knew about this during trial." . . . "Both sides in this case were spectacularly incompetent."

The newspaper article then quotes defense counsel as responding to the judge's comments this way: "I have freed a man from a life sentence, so if you want to say I'm incompetent for doing that, I'll accept that with a smile."

Interestingly, it seems the attorney's conduct did not result in injuries to the client, though.  True, he was convicted of a crime he did not commit, but the consequence of the conviction was about a month's stay in prison where the client would have been anyway since he is awaiting trial for a number of other charges.  In fact, he is still in custody for this reason.

In terms of malpractice, this is a very odd example of a case where the client could support the most difficult element of the claim, required in most jurisdictions (actual innocence), but can't support the claim because even though he was wrongfully convicted he may not be able to prove an injury.

In terms of discipline, should we impose sanctions for this conduct?

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