A lesson in what not to do

At Appellate Law & Practice, the Sixth Circuit reporter tells us about a recent decision from that court, affirming a district court's granting of habeas corpus in a capital-murder case, based on ineffective assistance of appellate counsel. Part III of the opinion describes the seating of a biased juror, one who stated no less than five times that she expected the defendant to prove his innocence—an issue that appellate counsel missed. Part IV of the opinion describes numerous additional errors constituting ineffective assistance, such as failing to meet the client or even talk to him on the telephone (page 16) and ignoring the client's request to withdraw (id.).

But the piece de resistance was counsel's performance at appellate oral argument in the intermediate state court, and later in the state supreme court. The night before the oral argument in the intermediate court, one of the two appellate lawyers had a family emergency, and so could not attend the argument. The court denied a request to continue the argument, so the other lawyer had to carry the ball. She fumbled. She refused to discuss or answer any questions the panel asked about issues briefed by the other lawyer. The Sixth Circuit commented, "Having counsel refuse to address half of the issues raised before the appellate court is like having trial counsel refuse to attend half the trial. On those issues, therefore, Franklin suffered a total lack of meaningful advocacy." Slip op. at 16.

Then there was counsel's unprofessional behavior before the state supreme court, described thusly by the Sixth Circuit:

The transcript of their arguments include five instances of wholly inappropriate laughing on the part of both of Franklin’s lawyers, an admission by Dieffenbach that she may be wrong about one of her contentions, equivocal responses to questions from the justices, and Greenham’s introductory statement that she "wished we had more to say on Mr. Franklin's behalf." In addition, Franklin’s counsel displayed a lack of familiarity with the facts relevant to the arguments she made to the court. For instance, Greenham did not recall the length of the videotape she argued was gruesome and prejudicial, and stated that "apparently it was very graphic," strongly suggesting she had not even viewed the allegedly offending videotape herself. Dieffenbach did not know how many points of identification existed between Franklin’s fingerprint and the print lifted from the champagne bottle found in the Strauss apartment. Greenham displayed an astounding lack of solemnity under the circumstances when she employed the term "overkill" to describe the photographic and videographic evidence, then laughed and said "Excuse the pun." [Slip op. at 16.]

The first page of the opinion says that it's "recommended for full-text publication." Here's the lesson for the rest of us lawyers: If this isn't how you want to be immortalized in the Federal Reporter, then don't do what these lawyers did. When you show up for oral argument, be prepared, and be professional.