Giving credit to lawyers for being smarter than they really


Occasionally you read a decision and your draw drops; just when you think you’ve seen everything, you learn something knew. I had that experience earlier this week when I read the Court of Criminal Appeals decision in Niswanger v. State. It seems Mr. Niswanger was at a grocery store selling raffle tickets to supposedly benefit firefighters and soldiers returning from Iraq. The local mayor complained, so an officer went to investigate. Mr. Niswanger told the officer he had the store’s permission, and after explaining the charity asked the officer if he wanted to buy a ticket. The officer asked for his identification, and as Mr. Niswanger was retrieving his license a Volunteer fire department badge appeared. The officer asked Mr. Niswanger if he was fireman, and he said he was.

So what happened next? Mr. Niswanger was arrested for impersonating a public servant. The state alleged he claimed he falsely claimed to be a fireman to dupe the officer and sell raffle tickets. The problem Mr. Niswanger had was that he had a prior criminal history, which the State of course threatened to use against him. Not wanting to face 25 years to life, he agreed to 10 years. So for carrying a volunteer fire department badge he gets to go to prison for 10 years. Talk about being tough on raffles!

Mr. Niswanger filed a writ of habeas alleging his lawyer was ineffective.  Counsel apparently agreed that he told Mr. Niswanger the state’s case was “rock solid” and that he was facing a sentence of 25 years to life.  Mr. Niswanger alleged his lawyer didn’t do an adequate job of investigating the case, and had he done so he would have realized that there was at least an issue as to whether selling raffle tickets was an “official act” and whether a volunteer fire fighter was a “public servant”.  Here’s where the reasoning goes off track. Counsel stated that there was no way to investigate the case because it was essentially a policeman said vs. defendant said case. Huh? The court accepted that explanation, explaining that given the uncertainty about what the evidence would show, and the certainty about the possible punishment, it was reasonable to advise the defendant to plead guilty.

The problem I  have with that logic is that counsel has a duty to investigate, which involves more than reading the police reports. There is no indication that counsel did that in this case. What’s worse is that the failure to investigate and learn about the case is used as the  reason for recommending a guilty plea. Surely we require more from lawyers than that.

The opinion gets better, because the lawyer all the sudden is given credit for being pretty bright. Mr. Niswanger alleged his lawyer should have challenged the indictment. The Court agreed there may have been defects, but that if they were challenged the State would have just re-indicted. They ignore the fact the new indictment may have contained information that was not included in the original – e.g. the facts they were relying on to show it was an offense. The Court also assumes that if that was done the State may have withdrawn the 10 year offer – even though there was absolutely no evidence that was the case. The court also assumes the lawyer considered those possibilities, and chose not to challenge the indictment. My guess is it never crossed his mind.

The end result is that a defendant gets 10 years for something that might not even be an offense. Can anyone truly say thats fair? Of course that’s not the right question, because habeas corpus is not concerned with fairness. This case shows just how hard it is to obtain relief – even when it should be granted.

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