July 21, 2009
If You Can't Say Something Nice...
Posted by Mike Frisch
An interesting post from my friend and former student Matthew Kaiser at The Kaiser Blog:
Last week the Sixth Circuit decided a case with stunningly bad conduct by a defense lawyer. The case is United States v. Herrera-Zuniga. In it, Richard Stroba of Grand Rapids, Michigan turned himself into a prosecutor against his own client.
Mr. Herrer-Zuniga was charged with entering the country illegally after having been previously deported subsequent to a felony conviction. He plead guilty in federal court in Michigan.
Instead of submitting a sentencing memorandum on behalf of his client, Mr. Stroba submitted a copy of a letter he had sent to Mr. Herrera-Zuniga. The letter is simply stunning. Here are some quotes from the Court’s opinion:
My duty now is to try to write a sentencing memorandum on your behalf. I knew this day was coming and I knew it would be a difficult task, but . . . I must admit that I am completely stymied (i.e., without a place to go). There is not one thing about your situation that lends itself to a positive thought, save that you have a good work history.
Wow, that’s quite a start. But wait, it gets worse . . .
You are clearly an alcoholic with either no ability or desire to quit drinking . . . . At some point either you will stop consuming alcohol on your own, or you will develop cirrhosis of the liver and you will die a slow, painful, horrible death. And then you will be done drinking for sure.
Does it seem to you that Mr. Stroba actually wants his client to die a slow, painful, horrible death? It seems that way to me. He continues,
I am sorry to be so blunt, but I have to honest with you, your case has left me without an expressible empathy. For this I am sorry because it leaves me almost unable to advocate on your behalf. (I say “almost” because as you are one of God’s creatures, any person can advocate for mercy or lenience premised upon your basic humanity. But that job is a tough one, made ever more so by your conduct.)
Mr. Stroba concludes by telling his client that he is “certainly at the bottom of society’s hierarchy.” I suspect that he didn’t need to actually come out and say that, I, at least, figured out that from the preceding discussion in his letter.
The Sixth Circuit “expressed concern” that Mr. Stroba’s advocacy on the government’s his client’s behalf was “professional malfeasance and, potentially, constitutionally ineffective assistance of counsel.” The Court also recommended that someone look into whether Mr. Stroba’s conduct violates the ethics rules applicable to Mr. Stroba.
This case made me incredibly angry when I read it. I have never had a client I felt I could not advocate for. Some clients I like more than others, but I don’t really feel that matters too much. Some clients present unique challenges. But a defense lawyer’s job at sentencing is to find the good, acknowledge the bad, and explain why the good deserves recognition. (for what it’s worth, the Court was able to determine that Mr. Herrera-Zuniga reentered the country to care for his sick daughter, a fact that is surely worth noting at sentencing)
There are, as I see it, two real problems with Mr. Stroba’s conduct. First, why does he think this is acceptable advocacy? Second, and equally fundamentally, why does he think this is an appropriate way to talk to a client? Can you imagine how Mr. Herrera-Zuniga felt, sitting in jail, when he got that letter from his lawyer.
Facing criminal charges, especially when you’ve been detained, is a lonely thing. Normally, you want a criminal defense lawyer who is in your corner, willing to fight for you, and explain things to you, and walk that very lonely road with you. Mr. Stroba not only left his client sitting alone at a crucial time in his life, but he kicked him as he walked away.
Lots of criminal defense lawyers do this kind of work for the wrong reason. They imagine that they’ll be only representing innocent clients, or that they’ll speak truth to power, or they’ll be saving lives. If a person goes into it with that expectation, realizing that’s not what the job is will be very frustrating. I suspect Mr. Stroba simply ought to find another line of work.
I think this case is instructive, though, for people who need to hire a lawyer as well. If a lawyer starts going south on you, or yells at you in an initial consultation, start to act on it immediately. The last thing you want is to get a letter like the one Mr. Stroba sent to his client.
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I wonder if there is any way to redeem or explain Stroba’s conduct as strategy? I can think of only two. Firstly, perhaps Stroba thought that if he beat up on his client before the Court, then the Court would rise to the defence of his client, which it apparently did. Perhaps the Court might even feel sympathy for the poor, abused client. Secondly, perhaps Stroba thought that this was a good mechanism to give the client an avenue of appeal?
Possible I suppose, but highly unlikely from a publicly appointed lawyer. And even if this was the tactic, then surely the client should have approved it first.
Posted by: FixedWing | Jul 22, 2009 9:04:27 AM