Should The U.S. Really Be Litigating This?

What is the worst kind of lawyer to have defend you in a federal murder trial?  Well, the worst would be representing yourself.  But, the next worst thing is being represented by a lawyer who isn't really a lawyer, paying $70,000 for the privilege, and being convicted after a trial in which your fake lawyer acted erratically at trial.

Gwen Bergman had that privilege in May of 2008.  The fraud was revealed in June of 2008, after she was convicted and the fake lawyer was sent to prison for nine years as a result.  Cases of people pretending to be attorneys when they really aren't attorneys are sufficiently uncommon, that neither clients nor opposing counsel systemically check to make sure that the credentials are real.  However it happened, this case fell through the cracks.  She's served seven years in prison and is currently on supervised release as a result of the defective trial.

Bergman isn't requesting an acquittal.  She's requesting a new trial on the ground that she didn't receive effective assistance of counsel, a Sixth Amendment right of every criminal defendant, because her lawyer turns out not to have been a lawyer.

The office of the United States Attorney in Denver that prosecuted the case is arguing that it doesn't matter that her lawyer wasn't a lawyer, because he was competent enough to give her a constitutionally fair trial.  They also argue that the fact that a licensed lawyer was hired at the last minute to act in basically a paralegal capacity but had some participation at trial purges the case of the taint of having an unlicensed lawyer in the first chair position.

But, honestly, while there are close cases and there are few "per se" rules when it comes to effective assistance of counsel, murder cases where the defendant's lawyer is not really a lawyer should not be close cases.  Criminal prosecutors, unlike other kinds of lawyers, have a special obligation.  Their mission statement is supposed to be to put the right people in prison for crimes that they commit while maintaining the integrity of the criminal justice system, not simply to maximize their conviction rates and not simply to secure maximal sentences.  Sometimes, events conspire to prevent a fair trial from happening even in the absence of any apparent prosecutorial misconduct and this is such a case.  There is nothing inherently wrong about a prosecutor conceding that a rare, clearly case deserves a "do over" in the interests of justice.  Indeed, the fact that it took this long to get to a hearing on the merits shows just how deeply flawed our system of collateral review of convictions can be.