People v. Long

In civil cases, if your lawyer screws up, the only remedy you can receive is the right to sue him for the money damages that resulted from his malpractice. You have no right to counsel, so when your own lawyer screws up, it is not the state's problem.

In a criminal case, money damages are an inadequate remedy. The state, as well as the defendant, has been harmed when someone goes to prison or is executed because an attorney screwed up, rather than for reasons related to the merits of the case. This flows from the fact that a defendant has a constitutional right to competent representation from an attorney, something that it was not clear that the federal constitution guaranteed to state criminal defendants until the Gideon case established this right in the 1960s. The ability to challenge an underlying conviction on the grounds that it was tainted by constitutionally ineffective assistance of counsel follows logically from this right. Indeed, ineffective assistance of counsel is now a leading basis upon which to challenge a conviction in the federal courts.

The vast majority of criminal defendants have lawyers appointed by the same government that appointed the prosecutor, the judge and the cops. This creates a moral hazard for those governments. Convictions come easy if the defense attorneys are incompetent, and the evidence of death penalty cases in the South, where defense counsel pay is pathetic and the indica of gross incompetence like subsequent disciplinary cases, utter inaction and sleeping during trial are often present, is that many governments have a practice of appointing incompetent defense attorneys.

The rules of criminal procedure predate this right to counsel and the insights that flow from that right, however, and the criminal justice system is just starting to come to terms with the implications of this new analysis of the right to counsel. People v. Long decided by the Colorado Court of Appeals last week puts the problem in graphic relief. The defendant's appointed counsel in charge of his appeal made a classic, ordinary mistake. He blew the deadline to file an appeal on behalf of his client who faced fifteen years in prison if his conviction was not reversed on appeal. This is clearly incompetent representation if it was not an intelligently made decision, and there is a well established process that appellate lawyers can follow in criminal cases where they can't find any obvious mistakes at the trial court level which wasn't followed here, suggesting that it wasn't a strategic decision. It was just a mistake. (It is also possible that the actual mistake was made by the Court in not appointing an appellate lawyer in the first place).

In a civil case, no one would care. The defendant would lose and could sue his lawyer if he could show that a mistake was made (easy) and that he would have won on appeal if the mistake hadn't been made (hard). The appellate court, to remedy the ineffective assistance of counsel, in effect waived the appellate deadline by ordering the trial court to take another look into the status of the appeal. (Of course, while the defendant doesn't have to show that he would win if everything had been procedurally proper, he must show that a trial court mistake was not "harmless error", although the appeals court in this case held that it was never harmless to not even look at a case when a defendant asks that an appeal be filed). But, if deadlines on appeal mean nothing, why should anyone ever comply with them? The rules, designed for an adversary system where their are consequences for mistakes and lawyers do their utmost for their clients, as this situation illustrates, are ill suited for the system of criminal justice we now feel is constitutionally required.