A Rakofsky Do-Over

Remember Joseph Rakofsky, who took a murder case straight out of the law-school gate, a mistrial was granted, the judge said mean things about his ineffectiveness on the record, the Washington Post picked up the story, the practical blawgosphere picked up the story, he sued the Internet, and he got poured out (after settling with a law school, seeking counsel on Craigslist, and an absurdist novelsworth of hijinks)?

Yeah. That Joseph Rakofsky.

If you could go back in time to before the trial started—when Rakofsky just knew he was going to win—and say something to young Joseph Rakofsky, what would it be? Would you tell him something to help protect his client? To help him save his own reputation and career?

Here’s your chance.

Maverick Ray has taken a capital murder case in Walker County, Texas (Huntsville is the county seat; think “juries packed with prison guards and their families”):

Judge Don Kraemer ordered Howard Wayne Lewis, 46, to remain jailed on a $1 million bond during a hearing Friday morning at the Walker County Courthouse. Lewis was indicted by a grand jury Thursday on a charge of the capital murder of a child under 10 in connection with the slaying of his son, 18-month-old Aiyden Benjamin Lewis, in July.

Walker County District Attorney David Weeks has yet to announce if his office will be seeking the death penalty in this case.

Howard Lewis’ defense attorney, Maverick Ray, of Houston, had filed a motion to set a reasonable bail for his client. Ray asked that the bond be reduced to $150,000 because, he argued, Lewis was not a flight risk, had no history of past violence and had ties to the community.

* * * * *

Weeks also challenged the defense attorney’s qualifications to try a capital case Friday morning. Ray has only been out of law school for six months. There are concerns that his lack of experience hampers Lewis’ right to a fair trial, thus bolstering Lewis’ chance at an appeal if he is found guilty.

Kraemer had appointed a lawyer to represent Lewis who is approved to defend capital cases in Walker County, but Lewis chose to hire his own counsel.

“I am extremely troubled about Mr. Ray’s lack of knowledge and training in taking this case,” Weeks said. “(Capital murder) is the most difficult and integral criminal case we have in this state.”

Ray argued that it was his client’s Sixth Amendment right to choose his own counsel. Kraemer agreed with the defense, but stressed the importance of the case to Ray.

“I caution you to be careful,” Kraemer told Ray. “This is a serious case you are taking on.”

Weeks said that he was considering taking the matter to the Texas Bar Association.

(I don’t know where prosecutors get this ridiculous idea that defendants choose less-than-competent counsel to bolster their chances on appeal. Defendants choose less-than-competent counsel because they don’t know that their counsel is less-than-competent.)

At any rate, here’s your chance at a Rakofsky do-over.

Here are the parameters:

  • Lawyer less than a year out of law school has taken on a capital murder case.
  • If client loses and is lucky, he will spend the rest of his life in prison.
  • If client loses and is not lucky, he will spend the rest of his life in prison and the State will kill him in the end.
  • The lawyer will listen to you, but may not accept what you have to say. He probably has the cognitive biases and blind spots that most of us have.

What do you tell the lawyer?

What else do you do?

If you have a blog and would like to answer the questions there, please do. Otherwise, the comments will be fine.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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