One of the most common questions I get at Law of Self Defense Seminars is, “How do I pick a good self-defense lawyer if I’ve had to use force in defense of myself (or my family, my home, business, etc.)?”

That’s too lengthy a topic for a forum post, but it does touch upon an interesting facet of choosing a lawyer that just came up in a Tennessee Court of Appeals case just this past April:

Just how bad a lawyer can be and still be deemed by the courts to have provided “effective counsel”?

We all have a Constitutional right to legal representation, and further we have the right that such representation be “effective.” If a lawyer is bad enough, a guilty verdict may be overturned on the basis of “ineffective assistance of counsel.”

Many people, however, don’t really understand just how bad a lawyer can be, and still be deemed to have been “effective.”

In the recently decided case of Hines v. State, 2014 Tenn. Crim. App. LEXIS 376 (TN Ct. App. 2014) we see that the answer is apparently, pretty darn bad.

In that case the defendant had shot and killed someone, and his lawyer chose to argue self-defense. This was never going to be a very robust self-defense claim, as the facts strongly supported a scenario in which the victim, a drug dealer, was shot by the defendant in the course of purchasing drugs from him, and perhaps robbing as well.

What makes this case interesting, however, isn’t the defendant’s self-defense claim was (as is very common) ridiculously weak. Rather, it’s the fact that his defense attorney apparently didn’t understand a basic tenet of Tennessee self-defense law until he actually got the case to trial.

In most states, one’s core right to claim self-defense as a justification for using force against another is independent on whether you are, at the moment, engaged in a criminal act. That is, the mere fact that you might have been engaged in some illegal activity doesn’t automatically strip you of the right to justify defensive force as self-defense.

It’s true that in many states some facets of self-defense can be impacted by a person being engaged in unlawful activity. In many “Stand-Your-Ground” states, for example, being engaged in illegal activity strips you of the benefits of “Stand-Your-Ground” and re-imposes a legal duty to retreat. It does not, however, strip you of self-defense entirely.

In Tennessee the law is different. 39-11-611. “Self-defense” provides:

(b)(2) [A] person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury, if:

(A) The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;
(B) The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.

This statute has been interpreted by the Tennessee courts to mean “”To prevail on a theory of self-defense, a defendant must show that he or she was ‘not engaged in unlawful activity’ and was ‘in a place where the person has a right to be.'” State v. Hawkins, 406 S.W.3d 121, 128 (Tenn. 2013). So, if you use force against another, and you are engaged in any unlawful activity, no self-defense argument for you–period.

OK, all of that was really just the foundation for the point with which I started this post, which is this:

In Hines, the defense lawyer’s strategy at trial was self-defense—that is, his client was justified in killing the victim as an act of self-defense.

But, as I’m sure we can all see, there was a serious problem with this strategy. And that is that the defendant himself had conceded that “admitted he entered the victim’s car to purchase drugs, and therefore, was not entitled to a self-defense instruction, which is premised on the “non-engagement of illegal activity.”

I’m sure you’re wondering why in the world would the defense lawyer have based his trial strategy on self-defense when his client was so clearly ineligible to argue self-defense?

The lawyer’s explanation? He didn’t actually understand the self-defense statute until he had already begun the trial by arguing self-defense.

No, I’m not kidding.

Counsel testified that prior to trial he was not aware of the language regarding “unlawful activity” in the statute; however, after learning of the limiting language, he believed that the Petitioner was not entitled to a self-defense instruction because the Petitioner admitted that the shooting occurred during a drug deal with the victim. Accordingly, he shifted his defense strategy. . . (emphasis added)

Naturally, the defendant was unhappy that his lawyer was apparently not only learning his job for the first time on the defendant’s case, but not even doing that much until the trial had actually begun. Following his conviction, the defendant appealed on the basis that he had received ineffective counsel at trial, on this basis.

I expect that most of us, in a similar situation, would agree—it seems only reasonable to expect that our lawyer does his learning of the law prior to or (at the latest) while developing his defense strategy pre-trial, rather than waiting to do so until he’s actually arguing it at trial.

So, is this “oops!” enough for the appellate court to find that the lawyer’s work qualified as “ineffective assistance of counsel?”

Nope. The appellate court concluded:

We note that, of course, the better practice for defense counsel is to familiarize oneself with the relevant statutes prior to trial. Notwithstanding, upon learning of the limiting language in the statute, counsel made the sound tactical decision to forgo further pursuit of a self-defense argument or jury instruction and instead focus on disproving the State’s case. Based on the record, we cannot conclude that counsel’s decision constituted deficient performance. (Emphasis added.)

So, how bad can an attorney be and still be found to have provided “effective counsel”? According to Hines, pretty darn bad.

My advice? Know the law. 🙂

–-Andrew, @LawSelfDefense

P.S.  For folks in the Volunteer State, I have two Law of Self Defense Seminars scheduled for next weekend, one in Memphis (Saturday afternoon), and the other in Nashville (Sunday afternoon). The seminar will be specific to Tennessee self-defense law.  Each is approved for 4.0 hours of CLE credit, for the lawyers among you.

Also, today only, to celebrate America’s birthday, the discount code july4 is good for $5 off signed (if wanted) copies of the “The Law of Self Defense, 2nd Edition.” 


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces a series of Law of Self Defense Videocasts and Podcasts available on iTunes, Stitcher, and RSS).