Good Lawyering Not Always Reflected In Result

One of my best professors in law school was Peter W. Tague. I took his evidence and criminal law courses at Georgetown Law, and he knew the subjects well. More importantly, unlike many of my other professors, he had actually practiced law before he taught. He had been a public defender in California during the late 1960’s and had tried a lot of cases. What really made Professor Tague stand out was his humility. I’m sure he won many cases at trial, and got many other clients great plea offers. But, he never talked about those cases. Instead, when he used a past case for a teaching point, he referred to cases he lost and what he learned from those losses. Often, the cases were hopeless from a defense standpoint, but Professor Tague tried something unique to win his client’s freedom, more often than not without success. He threw the proverbial “Hail Mary” when no other options existed. Rarely are Hail Mary’s caught, but it great to see a quarterback throw one when no other receivers are open. And, clients always appreciate a lawyer who is willing to try something, anything, on their behalf. I thought of Professor Tague today when I read the South Dakota Supreme Court’s decision in Garcia v. South Dakota. Garcia’s saga is one shared by many immigrants. He came to this country many years ago, worked hard, and generally obeyed the law. Unfortunately, Garcia was convicted in 2001 of a relatively minor felony. He got probation for the crime. However, ten years later, the U.S. Government sought to deport him based on that conviction. At the time he was in the criminal justice system, he was never told that his guilty plea could get him deported. This is a huge issue in the immigrant community as many lawful immigrants are deported each year based on convictions for relatively minor offenses. See my article on this issue. The Garcia case reminded me of Professor Tague because of the lawyering involved. The lawyer hired to do the case was faced with an insurmountable task. He needed to get his client’s 12 year old conviction vacated to try to prevent the client from being deported, or, at minimum, to better his client’s chances of pre-deportation release while his case was pending. His client’s right to appeal had expired ten years ago. His client’s ability to file a state and/or federal habeas challenge had expired more than five years ago. Most attorneys would have told the client that there was nothing they could do. Garcia’s attorney, Paul Eisenbraun, didn’t give up so easily. With no obvious legal remedies at his disposal, Paul filed a petition for a writ of error coram nobis on Garcia’s behalf. This is such a rarely used remedy that I bet less than 15% of practicing attorneys could tell you what it is. I’ve been in practice over 20 years and have never filed one. Like writs of mandamus and writs of prohibition, writs of coram nobis are often misunderstood and rarely successful. Garcia didn’t win his case. The trial court denied his petition for the writ, and the South Dakota Supreme Court affirmed that decision. But, for a while, Garcia’s case made everyone think. The courts had to consider whether Garcia’s situation wasn’t one of those rare cases when issuance of the writ would be appropriate. Young lawyers and non lawyers who read about Garcia’s case may just write it off as a loss. But for those of us who have been working in the criminal justice system for a couple decades know that wins and losses are not so easy to define. It is easy for a lawyer who only tries slam dunk cases to boast about their undefeated record, but that is a hollow boast at best. Eisenbraun didn’t win the case, but I’m not prepared to say he lost it either. He tried something novel that didn’t work out, but at least he tried something.