Ineffective Assistance of Counsel, Aussie Style

One of our worst moments as an appellate squawk was sitting in an Alabama courtroom watching a lawyer hand over his former client’s entire file to the prosecutor.  The idea being that if a defendant argues on appeal that his conviction was due to his trial lawyer’s screw-ups, all bets are off, attorney-client confidentiality-wise. It supposedly becomes A-ok for the lawyer to help the prosecution nail down his former client’s conviction.

Fortunately, since this Alabama lawyer had done almost nothing in this capital case, there was almost nothing in his file. Ha, ha!

Even here in client-centered New York, the turncoat school of representation has its adherents. There was the Bronx hack who furnished an affidavit to the People explaining that the reason she hadn’t consulted a DNA expert was that she knew her client was guilty. Very annoying, since post-conviction testing of the purportedly incriminating swab showed a complete absence of his DNA.

Then there was Kimberly Summers, a doll fresh out of law school who, after getting a bunch of time for her client, blogged and tweeted, while the appeal was still pending, that he was a rapist. This, in a purely he-said-she-said case where the client plausibly testified that it was a consensual encounter with a prostitute where she was bilked out of her fee.  The prosecutor put in so much improper hearsay that even the judge had to ask defense counsel if she didn’t object.  This zealous advocate ended by effectively telling the jury not to believe her client.  No doubt she was distracted by her eager participation in a film being made about the trial by a women’s-rights advocate to promote the Manhattan DA’s Sex Crimes Unit. The blog breathlessly lauds the film, which shows her client weeping as the judge derides him at sentencing. With a defense lawyer like that, who needs a prosecutor?

But for anti-client lawyering, nothing beats the Australian attorney known only as 3838, who spent years as a registered police informer against her clients.

Although her information enabled hundreds of her clients to be convicted, the police somehow managed to keep the Office of Public Prosecutions (OPP) in the dark about where it was coming from. Until a journalist broke the story about “Lawyer X, a prominent barrister who was recruited and registered as an informer.” An official investigation confirmed that she was indeed making a practice of ratting out her clients.

Her motive? “Charismatic, brash and witty, she loved a drink with cops and crims alike,” someone later explained. “She wanted to be wanted.”

This was a fair dinkum barbecue stopper, as they say in Oz. The OPP, shocked, shocked, concluded that the resulting prosecutions and convictions were “unsafe” and that the convicted persons had to be told. But Lawyer X and the cops demanded suppression of the investigation report, arguing that disclosure would create an “almost certain” risk of her being offed by disgruntled drug kingpins. Lawyer X flatly refused a witness protection program, since that would have put a damper on her drinking with cops and crims alike.

Too bad, said the Australia High Court. A lawyer grassing on her clients while pretending to defend them has committed “a fundamental and appalling” breach of her obligations, corrupting the entire process “in a manner which debased fundamental premises of the criminal justice system.” The convicted persons have to be informed, the Court concluded, and if Lawyer X refuses to be put in a witness protection program, “she will be bound by the consequences.” Or, as we say in Brooklyn, snitches get stitches.

The public comments in the Sydney Herald’s account of the scandal show that some people cared less about the debasing of fundamental premises of the criminal justice system than putting away drug kingpins. An understandable reaction, given that many of the crims were serious baddies who gunned down families in public, hardly the done thing even in Australia.

Our reaction is, how in the world did Lawyer X manage to fool all of her clients for all that time? Are kingpins really that dim?

Scene: Prison visiting room. Sounds of “Waltzing Matilda.”

Kingpin: G’day, Counselor. I’m sittin’ in this boob miserable as a bandicoot. Strewth, what are you doing?

Lawyer X: (fumbling under her blouse) Er, nothing, I think my bra strap broke.

Kingpin: Looks like I got the rough end of the pineapple being stuck with a Sheila lawyer.

Lawyer X: Testing, testing? Okay, it’s running. Um, I mean, my bra strap is fixed. The time is 2:30 p.m., and I’m in the counsel visiting room with Joey “Manslaughter” Gaboomba.

Kingpin: Why are you telling me this? I can see you’re here.

Lawyer X: Just a silly legal formality.

(loud acoustic whine from Lawyer X’s chest)

Kingpin: What’s that?

Lawyer X: Heh, heh. I shouldn’t have had that chili for lunch. Let’s talk about your case. Where were you when Bigfoot was shot?

Kingpin: Miles away. Camping by a billabong under the shade of a coolibah tree.

Lawyer X: With a bonzer alibi like that, it’s a fair go at trial. Who was Bigfoot?

Kingpin: A banana-bending lillywhacker from Queensland interfering with my bizzo.

Lawyer X: What bizzo?

Kingpin: We train kangaroos to deliver cocaine across state borders. Nobody ever thinks of searching a kangaroo.

Lawyer X: (fumbling under her blouse again) Bloody oath, it’s disconnected. Listen, could you write down a full description of your bizzo? Where you get the cocaine, how you launder the money and all that?  Oh, and the names and addresses of everyone involved?

Kingpin: No worries. Anything else I can do to assist in my defense?

Lawyer X: You could tell me how you rubbed out Horsie last year and what similar future plans you have.

Kingpin: (admiringly) Fuck me dead, it’s the ant’s pants to meet a lawyer who’s interested in me as a person for a change. Most lawyers don’t give a flying didgeridoo about their clients’ achievements and aspirations.

Lawyer X: Reckon I’m taking client-centered lawyering to a new level.

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
This entry was posted in Criminal Defense Appeals, Criminal law and tagged . Bookmark the permalink.

1 Response to Ineffective Assistance of Counsel, Aussie Style

  1. Alex Bunin says:



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