The Wheel and the well-meaning relative

The second case I helped defend when I returned to Texas was a nasty aggravated sexual assault case. The facts were very bad, but that was only if they could be proven and both sides knew that was questionable. The State ultimately made an offer that was very good. We spoke to the client and had advised him to take it. We felt that he would, but he wanted to think about it and talk to his mother about it first. She was flying in that afternoon.

As my boss, the great Tom Morgan of Midland, told me on the way out, "We're going to trial. He won't take the deal." I couldn't believe it. Was he in there with me? When I asked him how he knew that, he said one word," Mom."

Tom was right. After speaking to his mother, the client was convinced that he hadn't done anything wrong. He shouldn't plead to something just because his lawyer told him to do so. He didn't plead guilty. He took his mother's advice instead of his lawyer's advice and he is now serving 20 years instead of the five that was offered. (He'd be out by now by the way.)

What does this have to do with the wheel? Well, as you know, the wheel is the system by which attorneys are appointed to criminal cases. In order to qualify for a given level of appointment, an attorney has to have tried a certain number of that level of cases. It generally isn't a big deal to qualify. (I think the number is something like five felony trials to serve on everything other than the capital cases.)

But about two weeks ago, I was waiting to talk to a judge about a case. A trial was going on and I was sitting in the back. Another attorney came in presumably to do the same. As we sat there, we both thought of the same question: "Why is this being tried?"

Neither of us recognized the attorney, but he looked relatively young. (That's saying something since I still get carded.) But after we dealt with our business during a break, we both began asking what that case was about. Why was it in trial? But it was really more than that. He wasn't even really trying. I hate to say it, but he seemed to be going through the motions.

We all try cases at times that are dogs. It happens. Maybe it's because the jury's sentence can't be any worse than the State's offer. Maybe the client just wants his day in court. Maybe it's because the client has bigger fish to fry in another case or state or in federal court. Whatever the reason, cases are tried that in a vacuum might not otherwise be tried.

Despite that, I like to think that in those cases, the attorney does his best to defend the dog of a case. He crosses the cop with the zeal you would expect. He presents a cogent theory of the case. But sometimes that doesn't happen in these cases.

As the other attorney and I were talking about the case on the elevator down, it became clear to us why the case was being tried. The wheel. The attorney needed a trial to qualify for a certain level of the appointment process, and trying this case was a way to do that.

I certainly don't begrudge anyone trying to qualify for a certain level of appointments by trying the cases that should be tried. But what about when the attorney's desire to qualify for future court appointments influences his advice to his client?

Just as the mother's personal beliefs about our client's case convinced him to turn down that deal, does the wheel system do a similar disservice to defendants, usually the indigent? Are cases tried not for the benefit of the client, but rather for the benefit of the lawyer?

This certainly happens. It probably happens more than we want to admit. But should it happen? Should the qualifications requirements do a disservice to current defendants. I don't think so. But what the hell do I know.

Comments

[Other Steve]

You make a good point about how the rules shouldn't pit the lawyer's interests against the clients.

But the more important question is what you're going to do about it - perhaps starting a campaign to change the rules would be too much, but what about when you see a lawyer who appears to be "accumulating trials" at the expense of his/her clients for wheel-qualifications purposes?

What should somebody who witnesses a "trial accumulator" (TA) do? Talk to the offending attorney? The TA's client? The prosecutor or judge at the trial? The ethics board? (Are you even allowed to talk to some of those people? Would doing so do any good?)

Perhaps you can do something other than talk to people. Can you let an alleged TA share a seat with you at one of your trials, thus allowing the TA to gain a trial experience in a case that deserves one? And then you can encourage the TA to re-evaluate the needs of the client that's on trial, now that trial accumulation is no longer an issue?

[Dirnov]

Hi, Great job. But not enought info. Where can i read more? Have a nice day Dirnov