The Truth or Not? Sometimes a Difficult Choice

Habeas corpus work is not for the faint-hearted. The odds of success are generally low. The client's situation is dire. And the court is all but committed to the proposition that a final judgment should remain final. But sometimes things go wrong at trial, or between a lawyer and a client. And sometimes those things can only be addressed in a claim for post-conviction relief.

Consider the difference between appeal and a so-called collateral attack. An appeal is record driven, and consists entirely of transcript, exhibits and pleadings. Appellate counsel scours the record for error of sufficient magnitude for reversal. Habeas work permits creation of a new record. One can explore what went wrong below and why the malfunction has resulted in an unreliable verdict.

Here's an example. A client is convicted of a home invasion. Identification of the client is weak. However, he had an alibi. For whatever reason, his defense lawyer withdrew the alibi claim without even interviewing the alibi witness.

This is a good case as habeas claims go. It is a claim I pursued this very week. The contention was that the client had been deprived his Sixth Amendment right to counsel because his lawyer's actions were so far removed from what should have occurred.

After cross-examining his lawyer, the state then re-directed.

Q. "Sir, as a result of what your client said to you did you reach any conclusions about whether you needed to interview the alibi witnesses?"

A: "Yes. I concluded I did not need to do so."

Q. "Why?"

A. "Because it wasn't true."

In essence, the lawyer testified his client confessed, a contention the client denied.

As any habeas lawyer knows, these claims often falter on the prejudice prong. In other words, you have to prove not just that the lawyer erred, but that the error mattered. A lawyer failing to investigate an alibi his client tells him is false might not be faulted.

All of which is a long-winded way of finally arriving at the point: Truth can sometimes be a very dangerous thing.

I generally do not ask a client whether he committed the crime charged. Perhaps that is a tactical error on my part. It really doesn't matter to me whether the client has done the crime. My job is to defend. Period. But a client who confesses all but gives away any claim of prejudice in a post-conviction proceeding. If called as a state's witness in a habeas trial my obligation as advocate ceases and suddenly I am to tell the whole, unvarnished, and sometimes troubling truth. We are not permitted to lie for our clients, at least not under oath.

But not knowing the truth may well undermine the chances of success at trial. Even knowing that a client committed the crime, and how it was committed, might perhaps be the better strategy. Of course, in such a case the client cannot testify. Admissions are not good things.

The truth or not? Not an easy a question to answer as it is to pose.