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How bad can a lawyer be and still be deemed “effective”? Pretty bad

How bad can a lawyer be and still be deemed “effective”? Pretty bad

Winning a reversal on “ineffective assistance of counsel” grounds is always difficult, but many don’t understand just how hard it can be.

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 (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).


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Also, in this case , ‘no harm no foul’.

“(b)(2) [A] person who is not engaged in unlawful activity….’can claim self defense'”

OK, this camper is toast. Done deal. He admitted he was there to buy drugs (not legal), and he was (possibly, depending on who the jury believes) carrying a concealed handgun, and if so he’s an ex-felon (in possession of a gun) at that moment also.

He’s in the act of 1 to 3 separate concurrent felonies.

The lawyer, however, should be brought before the bar for admitting “He stated that he reviewed the self-defense jury instruction numerous times before trial but was unaware of the language in the self-defense jury instruction regarding illegal activity because he was either “looking at an older book or [he] just misread it.” “, even though it had no effect on this non-case.

    Milhouse in reply to pjm. | July 7, 2014 at 8:37 pm

    What do you mean by “no harm”? If the lawyer had known that his plan for the trial was legally impossible, and had instead researched and prepared a different defense, such as “he didn’t do it”, perhaps he would have won an acquittal. Switching strategies during trial is not a way to win; you do it if you have to, but it’s not likely to be effective.

The Colorado Supreme Court has made it clear that in Colorado it is NOT necessary that one be in a place one has a legal right to be. The “no duty to retreat” was first established in the 19th Century and has been upheld by both liberal and conservative justices ever since. So far, knock on wood, the legislature hasn’t messed with it.

Wyoming, thought to be the cowboy state, is just the opposite and would impose a duty to retreat in such a case.

After Harold Fish was convicted of 2nd Degree murder in Arizona in 2006 for shooting Grant Kuenzli in a shooting that surely was self defense, one juror commented that it was Fish’s use of hollow-point bullets that tended to convince them of his guilt. That should have been prima facia evidence of ineffective assistance of counsel.

    pjm in reply to TeeJaw. | July 5, 2014 at 11:01 am

    OK, did they also say that you can be in a situation you yourself created by act of committing a felony, and claim ‘self defense’ ?

    If a burglar kicks in your door, you pull your gun, he uses his ‘in reasonable fear for his life’ and kills you, does he get acquitted ? I hope not.

    In the case in question here, the instant precursor felony was a drug purchase.

      Essentially, yes they did say that. The facts were that a criminal was trying to burglarize a car. The owner came out and the criminal fled. The owner and some friends chased him through the neighborhood and cornered him in a yard. They threatened him with deadly force, he defended himself. The Supreme Court agreed it was self defense. He was not threatening anyone, he was trying to get away from them. The precondition for the use of deadly force by the car owner and his friends was not satisfied. Using deadly force to stop or capture a fleeing felon is limited to situations where the felon has shown himself to be so dangerous his continued freedom presents an unreasonable risk to innocent life. Burglarizing a car does not establish those facts. See Tennessee v. Garner, 471 U.S. 1 (1985).

wow, so a client picks a lawyer under the auspice that the lawyer understands the law and when its proven the lawyer doesn’t the client has no recourse?
I’ll admit, and please don’t take this personally, I am not a huge fan of the legal profession due to its tendency to parse words beyond their meaning to grant an outcome so there may be a bias in my opinion, but this seems wrong.

what can be done to correct this?
Is this a matter of courts not wanting to put a black mark on a lawyer so as to protect them?

    pjm in reply to dmacleo. | July 5, 2014 at 11:04 am

    Just because your lawyer ‘misses’ a tactic that in fact you had no legal basis to claim in the first place, that sould not be ‘reversible error’.

      missing a tactic is not the same as this:

      Counsel testified that prior to trial he was not aware of the language regarding “unlawful activity” in the statute.

      IOW counsel was not aware of the wording of the law he was using as defense.

        pjm in reply to dmacleo. | July 5, 2014 at 11:40 am

        Stupid on him, yes. Any effect on his client’s case ? No.

        Lawyer should suffer penalties from The Bar, having admitted ‘he did not know the law’ ? Yes.

        Client gains any legal advantage from his lawyer not raising a point of law that in fact was not applicable ? No.

        ‘No harm no foul’.

        IANAL, of course.

          Milhouse in reply to pjm. | July 7, 2014 at 8:39 pm

          No effect on his client’s case?! It had a huge effect. The new defense strategy that he was forced to adopt mid-trial didn’t have the chance it should have had, and would have had, had he begun to prepare it, and look for evidence to support it, a month before the trial, instead of after it had begun.

Know the law and don’t be afraid to quiz a prospective defense attorney before hiring them as to the law of self defense before hiring them!

    randian in reply to jdmac44. | July 5, 2014 at 5:14 pm

    How would you know if the lawyer was lying or incompetent except by knowing as much or more about self-defense law than a competent lawyer? That shouldn’t be necessary, licensed pros should know more than you do. Of course, we all know that the purpose of licensing lawyers isn’t to ensure competence, it’s to protect lawyer’s incomes from competition.

      Nov_Cubed in reply to randian. | July 5, 2014 at 6:11 pm

      (b)(2) [A] person who is not engaged in unlawful activity. . .

      Doesn’t seem like a lot of reading. You recommend NOT reading the law?

        tom swift in reply to Nov_Cubed. | July 5, 2014 at 7:07 pm

        Does he actually have to be buying drugs at the same time that he’s defending himself? If the drug transaction has concluded, so has the illegal activity he’s already admitted to. When does he regain his right of self defense?

        Milhouse in reply to Nov_Cubed. | July 7, 2014 at 8:41 pm

        The language quoted doesn’t say what Andrew informs us the Tennessee courts have ruled it means. There’s no way one could know that just by reading the statute. Even if it were a defendant’s job to read statutes, rather than relying on his lawyer to be familiar with them and with the case law that modifies them.

Well, campers! They don’t call it “practicing” law for nuthin! (Ahem)

When is the last time you heard a lawyer say “I’ve been perfecting law for twenty years!”

To me, this case turns on the doctrine of harmless error. The client has the burden of showing not only error, but harm that flowed from the error.

In this case, the attorney made an error of law, by assuming he understood the law. People make this attorney’s mistake all the time. They assume the law is as they think it should be, and argue as if that were true, rather than plunking their butts down, reading, and then working with the actual law. Sometimes they get shot down, like this guy, and sometimes they win.

If they win, everybody thinks they are a genius.

Here is a lawyer who thinks his client has two weak defenses, and he receives a wake-up call that tells him his client has only one weak defense. So he switches gears, and goes with the one weak defense. The result is not happy, but the result was not going to be happy.

If the client had had a good defense, and the lawyer had failed to advance it, then we have reversible error.

Replacing a bad lawyer is also cost prohibitive for many people seeking legal remedy. The inability to pony up a second retainer no doubt also protects many ineffective lawyers.

You have a right to an attorney.

You do NOT have a right to a Perry Mason, Johnny Cochran, or Andrew Branca.


As he neared retirement age, my late cousin agreed to become the local Public Defender on condition he be allowed to keep his private timber lease business, which didn’t conflict. The prosecutor was a law school classmate.

Every Monday morning they met for breakfast and bargained pleas through lunch. Every now and then some hard case would insist he was innocent and refuse to consider making a plea.

My cousin would pick up a stack of files and say, “See these? These are the new cases I got TODAY. I have one assistant attorney, one investigator, and one secretary. What I don’t have is time for your crap.

“If I thought there was a 10% chance you were innocent, I’d ask the court to appoint another attorney for you. But you aren’t. I’m your lawyer. But if you want to roll the dice with a jury for an extra X years of your life, let’s go for it.”

    Apart from the fact that I very rarely take on individual clients these days (but many thanks for the kind words), that anecdote strikes me as a pretty pragmatic description of how much of the criminal justice system actually works.

    Always remember: It’s a “criminal justice system.” A “system” about the “administration” of “criminal justice”. It’s got pretty much NOTHING to do with “truth” and certainly nothing to do with “fairness.”

    Amongst the many rent-seekers benefiting daily from the criminal justice system (e.g, judges, clerks, bailiffs, judge’s mistresses, clerk’s mistresses, bailiff’s “nieces,” etc.), the lone defendant is very, very, very far down the totem pole, unless he has skilled, respected, and vigorous representation in his favor. (I left out “costly,” but that goes without saying.)

    Conduct yourself appropriately. 🙂

    –Andrew, @LawSelfDefense

    –Andrew, @LawSelfDefense

filiusdextris | July 6, 2014 at 8:25 am

Is there (or at least grounds for arguing that there is) a constitutional substantive due process argument for a broader definition of self-defense? For example, what if the state offered NO self-defense claims to anyone ever? If the answer to that is that a criminal defendant (think of a home break-in with additional specific threat of violence) would be entitled to make such a minimal legal defense, could this particular defendant in the article avail himself? I think he has a decent argument to a federal court for overturning Tennessee’s common-law interpretation. (However, even then he could still well be guilty, not to mention morally guilty.)

    filiusdextris in reply to filiusdextris. | July 6, 2014 at 10:06 am

    Reading further, it appears that he is probably too late to appeal on those grounds. But a point not addressed above is that this was his first felony murder trial and he was appointed (not chosen, as the lead-in to the article suggests). This is important since it means that the supervisors of this “bad lawyer” are equally as guilty, if not more so. Surely, they could have pointed this out before trial. Almost definitely the state of Tennessee has to assume some moral guilt here as well for likely overworking and underfunding the public defense sector. I suspect the lawyer was not so much “bad” as undone by reasonable self-defense assumptions that anyone in his situation would have reasonably believed would have been pointed out as erroneous by his more experienced office colleagues. Sad case; I hope the defendant truly was guilty anyway (as seems superficially likely), but I hope the state points blame at itself more than anything.

    I was born and raised a Tennesseean but have little confidence in their ability to make progress here.

      filiusdextris in reply to filiusdextris. | July 6, 2014 at 10:12 am

      And to keep on talking to myself, I guess I incorrectly supposed his appointment was as public defender. I need to stop these early A.M. posts 🙂

I was a member of the jury and had the ‘privilege’ of watching a public defender of a man who was up on 2nd degree attempted murder charges in Maryland (if I remember the details right) because his buddy shot at somebody from the car they were in. I may have the exact details wrong there, but the point is that the public defender could barely stay awake during the trial, hardly paid attention, and fully appeared to simply be going through the motions. I felt kinda bad for the perp, but not THAT bad.

Gremlin1974 | July 7, 2014 at 4:24 pm

LOL, this guy should have read Andrew’s book, I am pretty sure that there is somewhere in there where he points out that you shouldn’t be doing stupid illegal stuff. Probably right there in the “Presumption of Innocence” section.

Andrew, see ya on Saturday at Range Masters.