The Importance of Being a Good Witness at a Habeas or Motion for New Trial

There’s a side effect of having a robust appellate practice in Georgia. If you handled the appeal, and your client has a lengthy prison sentence, you will likely become a witness as your former client tries to demonstrate your ineffectiveness. In Georgia, the client has the right to effective assistance of counsel during the trial and during the direct appeal. You cannot raise your own ineffectiveness as an issue at trial. If you are new counsel on direct appeal, any issues of ineffective assistance are waived if you don’t raise them. So, if you do not raise the issue at all, you’ve waived your client’s right to raise it. Or if you raise it one way, you waive it with respect to other possible ways you could assert it.

The trouble is that Georgia’s system is a veritable pressure cooker for appellate counsel to raise ineffective assistance of counsel. The trouble is that it is hard to prove ineffective assistance of counsel. The law is extremely deferential to the trial lawyer. Strategy, even bad strategy, is not actionable in an ineffective assistance of counsel plea. Even demonstrable mistakes are not actionable unless there is a likelihood that they had an impact on the trial’s outcome.

No trial lawyer conducts a perfect trial. Mistakes get made along the way. Some things just don’t work, and we don’t realize that they won’t until trial is over. And some trials just aren’t going to go well for the defendant unless you manage to perfect time travel and remove the client from the crime scene before anything bad can happen.

Here’s the point where the attorney client relationship is most delicate. It’s a rare convicted appellate client who thinks his trial lawyer was awesome. I allow for the possibility that he messed up and engage in a dispassionate search for mistakes. When I find things, I raise them. When I don’t, I don’t. Sometimes, trial counsel will agree that he made a mistake in one area or that he “just didn’t consider” something but will won’t to fight you on some other issue. At that point, you have to jettison some issues to secure trial counsel’s cooperation on others.

When it’s all said and done, you will likely end up as a witness on a habeas if your appeal was unsuccessful. And when you do, the subject matter will likely be your decision not to raise ineffective assistance of counsel at all or your decison not to raise it on other issues.

If you were the trial lawyer, you may end up on the witness stand also. As I said above, sometimes mistakes get made.

As a guy who raises ineffective sometimes and who has taken his turn on the witness stand, I have thought of seven things that go into being a “good” witness. By good, I mean you are being honest, assisting your former client where you can, but taking pride in your hard work.

1. Work hard on appeal. I’m sure that you already are. But really work hard. Find the best issues. Research them every way you possibly can. Write. Then rewrite. Then rewrite again. Make your appellate brief a work of literature.
2. Paper the file. Criminal lawyers often are retained on a flat fee. So, we really don’t have the incentive to document our time the way civil lawyers do. Change that. I started managing my practice on RocketMatter. RocketMatter has a nifty feature where you can turn on a timer every time you speak to a client. Use it. Whenever you decide to exclude an issue, write about it. Whenever you decide that you will not pursue some issue your client suggests in a letter, write it down. Note why you are excluding. Make your file bad-ass.
3. Answer ever letter your client sends. Even if it is to say, “Dear Mr. Smith. I received your letter of August 2, 2010. I have read it and will consider carefully the important issues you have raised.” Then see item 2 aboce.
4. Read Jones v. Barnes. Then read Jones v. Barnes again. It is an appellate lawyer’s best friend. Thank you, Justice Burger. Thank you, too, Justice Jackson, for you eloquent words that made it into the opinion. It’s good when trial lawyers get on the United States Supreme Court
5. If habeas counsel calls you, by all means call back. See where he is coming from. Be honest. Help if you can. But I don’t advocate “falling on the sword.” People who fall on the sword die.
6. Take pride in your work. Be a craftsman in all that you do.
7. Dress up for the hearing. You’re a lawyer when you testify. So, dress like one. Even though you are driving as far as the interstate goes. Then you are exiting. Then you are driving on a two-lane road. Then you are driving down a dirt road. Then you are hacking your way to the parking lot at Shawshank with a machete, dress like a lawyer. Your not just any witness. You’re a lawyer who takes pride in your appearance. If you’re really feeling on your game, wear a bow tie.

Be a good lawyer, so that you can be a good witness. Reward the habeas counsel who calls you and prepares. Take a good hard look at your work. Be honest. And wear a red tie. Even if it’s a red bow tie