BeldarBlog

Blame the defendant? The lawyer? The mom? The judge?

I once cross-examined a man at trial who I later found out was on major sedatives and other meds to control his violent paranoid schizophrenia. I've occasionally seen witnesses who gave such unexpectedly stupid answers in court that I wondered if they were on drugs. But I've never had a client drop a bag of marijuana while standing up from counsel's table in court.

Obviously, the defendant — a newly-convicted robber — is to blame. But one wonders if he's the only one:

To make matters worse, his mother, a defense lawyer, was by his side at the time — representing him.

....

According to the [recorded record], Gwyn Hoerauf, his mother, said jail was not the answer to her [19-year-old] son's problems.

"I'm going to say it in a very crass way, and I hope he forgives me," she said.

"He is brain-damaged, your honor. I don't mean he's just a defendant who does dumb stuff. This is a boy with an IQ in triple digits. His brain is glued together with Silly Putty. He can't think his way out of a paper bag, but he can do physics."

I'll leave it to others to critique the parenting. As a lawyer, though, I'll say that no parent has any business defending his or her child in a felony criminal jury trial — ever. You certainly ought to help him or her find competent counsel for any important pretrial hearings, plea negotiations, and the trial. And immediately after the arrest, you might bail your kid out if you can. But if bail is contested, even that may be inappropriate. 

Every lawyer has an ethical obligation to refuse employment in matters in which his or her judgment is likely to be compromised. Rule 2.01 of the Texas Disciplinary Rules of Professional Conduct (for which I'm certain there's a reasonably close counterpart in Maryland, where this event took place) provides that "[i]n advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice." That independent judgment is going to be virtually impossible for any parent to deliver.

Likewise, Rule 1.06 on conflicts of interest provides that "a lawyer shall not represent a person if the representation of that person ... reasonably appears to be or become adversely limited ... by the lawyer's ... own interests." Comment 4 to that Rule provides:

Loyalty to a client is impaired not only by the representation of opposing parties ... but also in any situation when a lawyer may not be able to consider, recommend or carry out an appropriate course of action for one client because of the lawyer’s own interests or responsibilities to others. The conflict in effect forecloses alternatives that would otherwise be available to the client.... A potential possible conflict does not itself necessarily preclude the representation. The critical questions are the likelihood that a conflict exists or will eventuate and, if it does, whether it will materially and adversely affect the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

And while normally potential conflicts of this sort may be waivable after full disclosure to, and informed consent from, the client, Comment 7 states that "when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved should not ask for such agreement or provide representation on the basis of the client’s consent."

Let's take Lawyer-Mom's statements to the Court about her son's mental state at face value (giving her ethical credit for fulfilling her duties of candor to the tribunal). Any disinterested lawyer would immediately conclude that the parenting of a 19-year-old defendant might well be called into question in this case. Even if there's no basis for an insanity or other diminished responsibility defense, certainly competent counsel would want to consider whether to put on evidence for sentencing purposes about the defendant's upbringing and home life — in which Lawyer-Mom here is not only potentially a person onto whom competent counsel may want to try to shift some blame, but also a potential exculpatory witness! And she's the last person in the world who ought to be trying to decide which!

This is just wrong in so many ways that I wonder whether the presiding trial judge conducted an examination of the defendant to ensure whether his "consent" to the potential conflicts was in fact fully informed and voluntary. Were I the trial judge, I would have spent a solid fifteen minutes pointing out all the problems to this young man, and I would have made it clear to him that if he couldn't afford alternate counsel, I'd appoint counsel for him. I'd basically make him say he understood that only a crazy man would accept his mom as his lawyer — and if he said that, then I'd refer him for a psych exam to test his competency to assist in his own defense!

I'd also put some very, very hard questions to Lawyer-Mom — and not sympathetically, but just about as harshly as I could. I'd probably appoint stand-by counsel from outside the family to sit there at the table with them if she insisted on continuing. Any time Lawyer-Mom did anything even remotely questionable, I'd run the jury out of the room and again examine the defendant to see if he'd had a change of heart and wanted to switch to the stand-by counsel. (The "brain dead" speech would certainly be one such occasion.)

Finally, while there are, of course, constitutional dimensions to one's right to be represented by counsel of one's choice, I'm pretty sure, even without having researched the issue, that those rights aren't unlimited. And again, were I the trial judge in this situation, I'd probably give serious thought to disqualifying Lawyer-Mom on my own motion. This isn't a situation in which only the kid's interests were compromised. It reflects poorly on the entire justice system.

I'm surprised the WaPo didn't pick up on the ethical aspects of the story, in addition to the "how incredibly, tragically funny!" aspect. I'm certainly not trying to excuse the kid's stupidity. And it's possible that the trial judge did some or all of the things I've suggested here, and that the WaPo reporter simply didn't learn about that, or chose not to include it in the story if he did.

But Lawyer-Mom's role is just simply inexcusable. Her kid certainly wasn't the only one in that courtroom whose conduct was, shall we say, less than exemplary.

Vainilla

So this morning I'm out walking the dog over on the nearby campus of Houston Baptist University. As usual, I try to pay for the privilege of enjoying their running path and sidewalks by picking up and disposing of some litter, and I pick up what looks to be the plastic wrapper from a small cake or pastry. The largest word on the wrapper is a word I didn't recognize: "Vainilla." After some thought, I concluded it was probably Spanish, and confirmed that when I got home to the internet. It's probably pronounced something pretty close to "Vah-ee-NEE-ya." But I didn't recognize it as a Spanish word at first. Rather when I initially read it, I attributed an English pronunciation to it, resulting in a nonsense word: "Vain-IL-la." Sort of like a mix between "vain" and "plain vanilla."

"That's me!" I thought immediately.

*****

One thing that I believe is intrinsic to the notion of blogging is that one does it for fun, and only when and if one's so inclined. Thus, one doesn't owe anyone else explanations or apologies if one stops. Nevertheless, I apologize to those of you who've wasted clicks looking for new content here over the last year, and I thank what turned out to be the surprising number of you who emailed or otherwise contacted me with encouragement to return.

If you were wondering:

I just haven't felt like blogging for about a year. Some of it was frustration and burn-out from my frantic, futile efforts to defend the Harriet Miers nomination in October 2005. (No, I'm not going to blame the Republican party's loss of Congress on that intra-party bloodbath, and Justice Alito is fine. But I'm still angry at the elitism and the refusal to trust the President that brought down that nomination, and I despair of the chances of a courtroom lawyer ever getting a seat on the Supreme Court bench, even though that's a perspective that's badly needed there.) Another cause was a prolonged case of the blues that, in hindsight, had mostly to do with my employment circumstances from mid-2005 to -2006, and that seems to have lifted now that I'm again in solo practice.

I need to do some site maintenance — clear out about a zillion spam comments and such. And I might again find my blogging muse. We'll see.

In the meantime, I've much to be thankful for, including continued good health, fabulous kids, loyal clients, and a renewed enthusiasm for my law practice. I wish all of you a Happy Thanksgiving as well.