South Carolina Criminal Defense Blog

"Defense lawyers," more often than not, go far out of their way to protect themselves and their reputation when they are called as witnesses in post conviction relief hearings, and are quite content to help keep their former client in prison. Some common testimony that I hear:

"He told me that he was guilty." (why the hell would you testify to this?)

"I gave him a fair trial, that is what my job is and nothing more." (you are wrong)

"I can't remember what my advice to him was, but I always tell my clients [it is their choice to testify or not; it is their choice whether they plead guilty or not; etc.]." (if you don't remember, you don't remember, don't ad-lib to make sure your former client loses his hearing)

I have had some PCR hearings where the attorney-witness is open and truthful, and it is refreshing. The problem is that the most common claim made in a PCR petition is ineffective assistance of counsel - we are claiming that the defense lawyer's performance was so bad that it fell below the minimum standards required by the Constitution. No one wants to look bad. But - your duty to your client does not end after they have been convicted. If you screwed up, admit it - it's not about how you look, it's about your client sitting in prison because you f***ed up their case.

You still have a duty of loyalty and of confidentiality to that client - confidentiality is waived in the context of PCR only to the extent necessary to (truthfully) respond to the allegations of ineffective assistance. In most circumstances, testifying that "my client told me he was guilty" goes far beyond what is necessary to respond to the allegations. What you are saying is: "he was guilty, he told me he was guilty, so what's the big deal?"

I handled a recent PCR hearing based on an attorney's incorrect advice regarding immigration consequences (the client, a legal resident, was deported after his attorney advised him to plead guilty to an aggravated felony). Prior to the hearing, the attorney told me that he advised the client that he would not be deported unless he received a year in prison (wrong); later he told the state's attorney that he advised the client that he would probably not be deported unless he got time in prison (wrong).

At the hearing, the attorney would not give a straight answer, instead rambling about how guilty the client was, how the client admitted his guilt to him, how strong the evidence was against his client, everything under the sun except answering the very direct question, "did you advise him that he would not be deported." There is no shame in not understanding immigration consequences to a guilty plea. There is no possibility that you are going to be sued for your mistake. You are not going to be disciplined. But you are determined to not look bad - in the process of trying to make yourself look good you are causing your client to remain separated from his family, a country and thousands of miles apart.

And you did not save face, by the way. You came across on the stand as someone who does not care for your clients, someone who is dishonest, and someone who does not investigate before advising your clients to plead guilty.

PCR proceedings are not a personal attack on the defense lawyer. They are a necessary part of the process that ensures we are afforded a fair trial that at least meets the minimum standards required by the Constitution.