Defending Yourself

Face it, it’s going to happen to all of us.  An 11.07 writ alleging ineffective assistance of counsel (“IAC” for short).  Essentially, a client or former client is accusing the lawyer of representing them poorly or misleading them in some way, thereby causing their incarceration.  This happened to me this year.  I was initially pretty upset, but I was also prepared.

The details aren’t that important, but some basic facts are material.  My client, who we can call “Donnie” was accused of robbery.  He was on parole for murder and had been convicted of several prior felonies.  He has been incarcerated most of his adult life.  This offense was also committed in front of a surveillance video camera.  Making matters worse, and harder to defend, my former client Donnie confessed to every element of the offense on video after being Mirandized by a professional and thorough detective.  For some reason, the ADA on the case did not list the enhancements on the indictment but everyone was aware of their existence and the great leverage they provided.  Eventually, Donnie pled guilty and was sentenced to six years in prison.  I was very pleased with that result.  Donnie’s family was pleased with that result.  Donnie himself was ecstatic being sentenced to only six years with the indefensible facts and his numerous prior convictions and the possibility of facing a minimum of 25 years in TDCJ.

Flash forward to this year, I received a package from the clerk’s office containing the 11.07 Writ, the State’s Answer (basically punting) and an order for me (trial counsel) and an attorney from TDCJ to provide affidavits as to our memories of the case so that the trial court could make findings of fact and rule on the 11.07 writ.

While I was not anticipating such a matter in this case, I was aware it could happen.  And I was ready.  My client alleged I did not share the facts of the face with him, mislead him about the possibility of parole and was generally ineffective.

In this case, as well as all other cases, I followed the same practice.  I kept my physical file in storage (alphabetically for easy access but that may be some level of OCD) along with all discovery materials, my notes, work product and details of my meetings and correspondence with my client, the ADA, witnesses, and Donnie’s family.  I was able to detail my meetings with the client, the letters and correspondence I sent him and the ADA and the dates of the jail visits very easily.  I prepared an affidavit detailing what Donnie was told and when.

I certainly don’t relish the fact that Donnie will spend some more time in prison, but I sleep soundly at night that he knew exactly what was going to happen to him during our case and that his plea was done freely and voluntarily.  I also sleep soundly at night that I have detailed notes in his file as well as all my other cases so that I can defend myself if needed.

 

About Vik Vij

Vik Vij is a criminal defense attorney in Houston practicing in Harris, Galveston, Brazoria and Fort Bend Counties. He's the father of two amazing girls and is a fan of all things Houston. Connect with Vik on Twitter at @Vikvijlaw

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