Imagine a trial where the defense lawyer sleeps during the proceedings. Unfortunately, one doesn’t have to imagine, for a number of people now know about quite a few cases where lawyers have slept in court during murder trials. The clients were convicted, appeals were denied, and they were later executed. Imagine a trial where the defense lawyer was drunk or on drugs.
As in the case of sleeping lawyers, the courts of the land have traditionally found a drunk or drugged lawyer to be an insufficient basis for reversing a conviction. Men have been executed in the United States of America after trials by judges where their lawyer was either drunk or drugged. Needless to say, These examples are serious challenges to the idea that some defense lawyers serve the interests of their clients first and foremost.
From North Carolina comes a case that makes drunken, drugged, or even sleeping lawyers look like paragons of virtue. It was in the post conviction hearings of Russel Tucker that David B. Smith, Esquire, was appointed for his defense. Shortly after meeting his client for the first time, Smith with later note, “At the end of the visit, I decided that I did not like Mr. Tucker.” Smith, the former prosecutor for over twenty years, would later state in a sworn affidavit, “My own beliefs against capital punishment were severely challenged as I read the trial transcripts in preparation for post-conviction relief.” That research and preparation led him to the conclusion that “Mr. Tucker should be executed.”
Smith’s affidavit stated his wishes cleanly: “I decided that Mr. Tucker deserved to die. And I would not do anything to prevent his execution.” Smith then deliberately missed a court deadline for filing an appeal in Tucker’s case, thereby setting the stage for his client’s execution. North Carolina set a deadline for Tucker that Smith couldn’t ignore, an execution set for December the seventh, the year 2000, which has since been stayed. Smith, in his own words, had become an agent of the state. What pushed him to file was his client’s pending execution.
But what if Tucker was doing life? What if he was doing 10 years or five years? And what about the hundreds of men, thousands of women, and untold number of juveniles who had trials or appeals or any kind of proceeding where their lawyer hated them and acted as an agent of the state? What is rare is not defense lawyers who act as agents of the state but lawyers who say they do. They serve the interests of the state, of the system, for how else can millions of their clients languish in jail cells across the nation.
When lawyers maybe drunk, drugged or even sleep during trials, and courts are free to utter nonsense about the constitutional right of the assistance of competent counsel, what consensual right truly mean? So empty is that phrase, that now a lawyer can double as defense counsel and prosecutor at the same trial. Meanwhile, as of this writing, Smith is still Mr. Tucker’s attorney of record. Given the system, this is somehow fitting, isn’t it?
From death row, this is Mumia Abu-Jamal.