Please read this blog post from Mark Bennett about a young Texas lawyer by the name of Maverick Ray taking on a Death Penalty case, after being a licensed attorney for only six months, for background.
Dear Mr. Ray,
Since I have not had the pleasure of meeting you, please let me introduce myself. My name is Daniel Partain. I am writing to you today concerning you taking a death penalty case only with six months of experience under your belt. The point of my letter to you today is the following: I am going to ask you to withdraw from the case, and allow someone else with proper experience in trying death penalty cases in Texas represent your client, Mr. Howard Lewis. Before I give my reasons to my request, I feel that it is proper that I give you a little background about myself.
I am an attorney in Georgia. I have been practicing for over 13 years, and the majority of that time, I was a public defender. I have only a modest number of jury trials under my belt, which is 33. I have had handled only four murders cases, one was as a second chair, and three as the lead counsel. Only one went to a trial. I am not the final authority on how to try a murder case, but I do have some experience in the matter. Just recently, I have decided to go out in private practice. So, I can relate to you about your desire to make a name for yourself so that clients will retain you, and to make a living for yourself. However, the path you have taken is not the right one for your client and for you. If you will indulge me, let me explain why I feel this way, and why you should withdraw from this case.
A. Murder cases are a huge time consuming affair.
First, to try a murder case takes an inordinate amount of time just to learn the facts of what transpired. Let’s start with the State’s account of what transpired. You will know the State’s case backwards and forward. You will have to go to the scene, you will have to speak with the witnesses, you have to speak with their experts. You will have to see if their account is based on facts or based on their perspective of what transpired, which is that Mr. Lewis is guilty. Next, you will have to know Mr. Lewis’ story backwards and forward, as well. You will have to track down his witnesses. You will have to speak with them. You will have to get them to co-operate with you, which is not always easy to do.
Second, keeping the State’s version and Mr. Lewis’ version of what transpired separate is going to take time, patience, and discipline. The reason is that usually these stories are going to different either in very minute, but critical details, to being different as night and day. These differences will make an important difference in any motions that you will argue in this case.
Third, when trying a murder case, the State is going to try to get into evidence every damning piece of evidence against you, and fight you to the gates of hell & back to keep out any evidence that may help your cause. You will need to research the case law on the admissibility of every piece of evidence, and be able to fight on a moment’s notice whether it be at a motion hearing or in the middle of trial.
Fourth, let’s presume that the jury finds your client, Mr. Lewis guilty of murder. The State of Texas wants to put him to death. If you want to stave off this horrendous act, you will have to show Mr. Lewis’ humanity to the jury, and you will have to persuade them to forego their desire to seek wergild, and to exercise mercy. This takes time. You will have to spend time speaking with his family, his friends, his co-workers, his preacher, and anyone else that can help you in this goal. In Georgia, this is a critical phase of any death penalty case. As such, in Georgia, the practice is that there are two criminal defense attorneys handling the case: one does the guilt-innocence phase, and the other does the penalty phase.
I do not believe that you have the ability to dedicate the time necessary to this case, Mr. Ray. As such, you will be doing a disservice to Mr. Lewis, your client.
B. Murder cases cost money to prepare for a trial and to try.
I know that you are only one man, Mr. Ray, and there are limits as to what you can do in a day. Let’s say you wish to employ some help in this case. Investigators are not cheap. Experts to review the State’s evidence for possible defense are not cheap. Getting the records to present either a factual defense of innocence or presenting a case for life in prison is not cheap. It costs money to do these things. Mr. Ray, I do not know how much Mr. Lewis’ family paid you. However, it is not enough to provide for you, your overhead, and the expenses that you will have to incur to try this case. Let’s say that you wish to seek funding from the court to employ an investigator or an expert. The Court is going to fight you tooth and nail on spending its limited funds on a murder case. The Court will opine to you why should it spend the taxpayers’ money on a murder suspect, especially when Mr. Lewis has the financial means to pay you. This leads me to my next point.
C. There is a difference between a legal education and the practice of law.
Mr. Ray, law school only trains people to think like lawyers. It does a shitty job of preparing its students for the actual practice of the law. You are going to get a real rude awakening to this fact, if you continue representing Mr. Lewis.
You already know from your bond reduction hearing that judges are not going to do what you ask for, even if the law is on your side. Unfortunately, the judges’ rulings on additional legal issues that arise in this case are going to get worse, and to go against you & your client, Mr. Lewis, the further you go along in this case. In fact, I am willing to bet that the judge is going to make rulings against your client on key issues, such as the jury viewing the autopsy photos, even if you think you have a case on point. While the judge is an attorney like you, he is an elected official or more pejoratively, he is a politician. This case is going to garner attention in the local media. While your judge may not be up for re-election today or soon, he will be in the future. He is not going to give any opponent any ammunition that he is “soft on crime” by granting the motions in favor of an alleged child killer.
In addition, while you may know the prosecutor, and he may be a nice guy to you outside of court, he is going to be relentless in court. As I said before, he is going to try to get every piece of evidence in against Mr. Lewis through every exception to the rules of evidence, and he will stymie every effort that you have to present a competent defense for Mr. Lewis. It may not be a bloodsport for him, but to the DA, he is speaking for the 18 month old child that cannot speak for himself. He is going to feel righteous in how he litigates this case not against your client, Mr. Lewis, but against you.
Putting that all aside, Mr. Ray. I do not believe that you have the necessary perspective to try a case of such magnitude, at this early stage of your career. To quote one of my favorite law school professors, Lyman Ray Patterson, “A legal education sharpens the mind by narrowing it.” To try a case of involving the death of a child takes more than a legal education. At the very least, it requires the defense attorney to be able to connect to the jury to put aside their desire to avenge the death of this child, an innocent, and to give Mr. Lewis a fair trial. Six months of practice is not enough time to obtain or to learn this skill. The one murder case that I tried involved the death of a three year old child, and I felt that I was not ready, even though I had been practicing over 11 years.
Let move from the usual high-brow reasons to more of the practical reasons why you should withdraw from Mr. Lewis’ case, Mr. Ray.
D. Murder cases do not leave much time for your other clients
Mr. Ray, one case, even a murder case, does not make a viable practice. To survive, you are going to try to have additional clients retain you to represent them. However, when you run into the reality of how much time it takes to prepare, much less, to try a murder case, you are going to spend the majority of your time on said murder case. When you do so, your other clients are going to notice your absence.
Even if it is a minor traffic offense or a relatively simple felony case, these clients are not going to care that you are preparing for or about to try a murder case. They are going to think that you should have exercised better judgment in deciding what cases to get involved in. I know this from my experience as a public defender, and to having to deal with this issue.
E. Murder cases take a lot out of you.
I do not know how old you are, Mr. Ray. However, murder cases age you, if not physically, but emotionally. They continue to drain your energy from you, even after the case has been tried. After my murder trial, it took me two weeks of vacation time just to recover, and regain some semblance of energy to handle my caseload. However, back then, I had the luxury of said time because I was a public defender. I did not have to worry about making a payroll or where my next paycheck would come from. Mr. Ray, you will not have this luxury. You will have to be able to endure and to carry on so that you can support yourself.
F. This one case may define your career, regardless of the outcome.
Mr. Ray, if you continue representing Mr. Lewis, and you take his case to trial, there is no way that this will end well for you.
If you get Mr. Lewis acquitted, then for a while, none of your clients are going to take your advice to enter a guilty plea because they will believe that you can win. To them, you helped get an alleged child killer off, you can do the same for them. You will be trying case after case, and you will have to lose case after case, before your clients will listen to you. All the while, your reputation will continue to fall from the meteor heights.
If you lose, this case will continue to be with you throughout the appellate process. Every decision that make will be scrutinized by an appellate attorney. And during the appellate process, you will have to make a decision: to help your former client, Mr. Lewis or to fight against your former client. If you help, then you will be admitting your mistakes and your subsequent clients will hold these mistakes against you and they will doubt your advice. If you fight against your client at this hearing, your subsequent clients are going to question your loyalty to them.
However, you may not get a chance to try the case, Mr. Ray, if things go badly. Another young lawyer, Joseph Rakofsky was in a similar boat as you. He attempted to try a murder case, even though he did not have the requisite experience. His incompetence became so apparent that the judge in that case removed him from the case to protect the defendant’s right to a fair trial. You have to be chance to learn from Mr. Rakofsky’s mistake, and not become the next lesson for new lawyers on what to avoid when starting a practice.
G. The practice of law is not about you. It is about serving your fellow man.
Mr. Ray, the practice of law is a calling. It is not simply a job. While I appreciate your entrepreneurial zeal and your sense of guile, this murder case is not about you. It is about Mr. Lewis. It is about protecting his rights and his life from the power of the state. You have his life in your hands the life. You are all that stand between Mr. Lewis and the State of Texas. Please do not let your desire for money, for fame, and for glory distort your sight from this basic fact. Please do the right thing. File a motion to withdraw from the case and let someone else that has more experience handle the case. There is no shame or dishonor in doing so. In time, you will be ready to try a case like this, but not right now.