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.

30 responses to “A Rakofsky Do-Over”

  1. Not a lot of people would do that, so assuming some aspects of his personality, I would probably just ask about the case. If this guy has any ability to self-assess and the courage to say when he was wrong, your hope is that he gets it earlier rather than later. Obviously he’s already been told he’s hopelessly out of his depth and likely been given examples of how bad it gets and decided he’s different. If there’s a chance he’ll recognize how deep he is, it’ll take time and someone else asking him why he hasn’t thought of x,y,z and done a-w already.

    And I can’t help but say that I think it’s terrible that Texas allows him to take on a murder case. I assumed all states had murder certified attorneys.

    • No lawyer who has been practicing for less than a year and who has any ability to self-assess would even need to be told he’s out of his depth trying to represent a defendant facing a capital murder charge.

  2. Mr Ray-
    My name is Robert Fickman. I have practiced criminal defense law for 30 years. I have tried and won cases in State & Federal Court. I went to law school with Gilbert. He and I are old friends. As Gilbert and I are old friends, I intend to speak to him about your present outragreous course.

    I spend much of my time fighting for the Defense Bar, as does Mark. Your present course is perilous for both you and your clients. Frankly, given your base line arrogance, I am far more concerned for your clients than I am for you.

    Your self confidence is not supported by your extraordinarily limited courtroom experience.
    In fact, you are over- confident. Over-confidence by you, a baby defense lawyer, will soon lead to disasterous results for your clients.

    A cool name has zero bearing on your trial skills.

    Are you truly foolish enough to believe after trying pieces of cases that you are now competent enough to be lead counsel in a capital murder case? I can assure you that you are not competent to to be lead counsel on a capital murder case.The fact you think you are belies common sense and indicates you put your own ego before your client’s interest. That does not speak well for you sir.

    Clients often are like children. They are vulnerable. It is easy to talk a client into hiring you at a reduced fee if you talk a big game. The ability to talk a client into hiring you does not equate to the ability to try their case. If your website which is replete with false claims is any indicator of your
    Integrity, I have serious concerns about how honest you are with prospective clients. A man that will lie in writing, will lie with his mouth. Your ridiculous appellations, are not humorous at all.
    They are misleading to the very people we all swore to defend.

    If you stay your present course, you will leave a bloody trail. Clients, their families, your colleagues and the State Bar will wonder what in God’s name were you thinking.

    You cannot fast forward experience. Experience takes time. There are NO SHORTCUTS TO GAINING THE WISDOM NECESSARY TO BE A GOOD DEFENSE LAWYER.

    Let me be BLUNT: You are taking short cuts with the truth in order to exoedite the growth of your practice, at your prospective client’s exoense.

    If you stay this course, I see Randy Schaffer & Brian Wice in your near future.

    Its not too late. Find your moral compass. Turn things around.

    Robb Fickman

  3. Good Gawd!

    I thought the first Maverick Ray post was bit much. Seeing this, I now think you were going easy on him. Eight months on the job and accepting a capital case against David Weeks?! He’s going to get his ass handed to him and his client’s setting himself up for a needle in his arm.

    My advice to Mr. Ray: Immediately advise your client to hire Danalynn Recer, or someone she recommends, then beg for the privilege of second chairing, or better, observe from the sidelines, if you want to learn how to try capital cases. This isn’t taking a knife to a gunfight, it’s taking a pea shooter.

    Unmockable, indeed!

    • I was with you until “or bet­ter, observe from the side­lines.” Why not second chair? If he has passion to throw himself into a case and the courage to push boundaries, he can do some good, while still ensuring has client has experienced representation. Mocking this guy is fun, but don’t discard this obvious solution that should benefit everyone.

  4. Maverick, I’m in the middle of my 3L year. You have about a year of experience more than me. I’m not sure if something divine happens once you leave law school, but I’m certain I will be shitting my pants working on and, being 100% responsible for, my first traffic ticket. I don’t understand how you could be so vain to think you are special enough to be able to handle this.

    To quote Dylan – Swallow your pride. You will not die (but your client may), it’s not poison

  5. I have had a law office in Walker County for 40 years. In the early days of my practice I tried a number of cases in that county, and the make up of personalities in that jury pool are much different from Harris County. I am lucky enough to have a practice that does not require I still do jury trial work in Walker Co, and only on rare occassions do I get involved in any jury trial work anywhere. However, I cannot imagine a defense lawyer, no matter one’s experience, taking on a case where the facts are well published as is this case,and where an “out of town lawyer” does not have the benefit of one of the several well qualified death penalty lawyers who reside in Walker Co. THIS IS NOT HARRIS COUNTY AND NEITHER ARE THE JURIES. In smaller counties such as Walker Co jury panel members can have political and family connections which someone from out of town will have no history to rely on . This lack of knowledge can do serious damage to the outcome of the verdict..

    There will be prison guards or their famly members on the juries. Having such a job does affect a jurior’s view of the criminal justice system. My office manager and I have avoided trials in Walker Co for years, however, in the past we both once tried cases there regularly. At the same time, we both have a high opinion of Judge Kreamer and we advise you to take notice of the ability of the D.A. and his staff. They will make a serious effort to kill your client.

    Since I do not know the defense lawyer involved in this matter, I have no comment as to his ability or lack thereof, but, get to know the communiity well before you put to test your jury selection abilities. This is NOT a popular cause or popular defendant in Walker CO.

    I once was a team member on a death penalty prison case out of Walker Co transferred to Galveston, where, thanks to the exceptional trial skills of Craig Washington we obtained a not guilty.. I came home to Walker County to find my house full of bullet holes.

    Bill Habern

  6. Maverick is hoping to plea this case. Surely he never had intentions of taking it to trial. Just a fast buck and his client’s signature on a form, then this case becomes mere fodder for his already impressive resumé.

    I am surprised though that Weeks didn’t come right out and seek the death penalty. This case does involve a double murder after all (the child’s grandmother) and the defendant is black (a prerequisite of a successful death penalty case).

    So, the fact that he didn’t announce for the death penalty in the first place probably means he’s trying to avoid expense, and if he’s trying to save tax dollars then he’s open to a plea. But Mr. Lewis is a former prison guard, so there’s the reason for him not wanting to take a plea and be subjected to the daily beatings and harassment he knows is awaiting him in General Population.

    The State supposedly has DNA evidence, so it’s likely a guilty verdict would be forthcoming at trial anyway, something even a maverick like Ray would know…

    • I’m told that I’m remiss for not addressing here the silliness of your idea that the State should set standards for retained counsel in criminal cases.

      It’s a silly idea.

      First, we don’t want the State that is trying to kill our clients acting as the gatekeeper over their counsel. Rest. Obv.

      Second, in a free country at some point we let people make their own mistakes, even if those mistakes will kill them. Ray is right: the Sixth Amendment protects a defendant’s right to retain counsel of his choosing. Wheat v. United States. The legislature couldn’t write around this any more than it could write around the First Amendment.

      • Mark, Ray is out there claiming to potential clients that “we have over 100 years combined experience at our Houston location,” so it’s not a question of allowing the client to make their own mistakes but of lawyers claiming to be experienced and competent when they’re not. In another post, you went to far as to say Ray was “com­mit­ting large-scale fraud on poten­tial clients.” If a client believes an attorney’s fraudulent claims and hires him on that basis, is that really just a defendant making his own mistakes? Or does the self-regulating legal profession have some responsibility to ensure lawyers are competent to handle the cases they take on?

        As for Wheat v. US, that was about waiving the right to conflict-free counsel with full knowledge of the situation. But as you know, “death is different.” I’m not sure SCOTUS would say the same about lawyers who misrepresent their level of experience to take on capital cases for which they’re unqualified.

      • I don’t see why the 6th Amendment precludes licensing requirements for lawyers for capital cases. The 6th Amendment has not been interpreted as allowing defendants to choose non-lawyers to represent them (unless they wish to appear pro se). If it is constitutional to require that a defendant be represented by a member of the bar, what makes it unconstitutional to make use of graduated licensing, where certain qualifications must be met to try capital cases?

        Leaving the 6th Amendment issue aside, there is precedent in civil matters for requirements beyond bar membership, namely in the requirements for patent attorneys. These have not, so far as I can see, led to any unfairness; they have helped to ensure the competence of counsel .

  7. I’m nearly two years out of law school and this is absolutely horrifying. In my first year, there was no way I could have been considered competent enough to handle a murder trial. I took every practical class my law school offered, clerked for two of my three years and participated in every mock trial and moot court event I could find. Despite all of this “preparation” I, like all newly minted attorneys, was woefully under-prepared to actually practice law.

    Law school gives little if any actual practice experience. Good for Mr. Ray that he is able to find clients and is taking cases. Shame on him for overestimating the seriousness of the situation and thinking that his education has prepared him to try a murder case. This is trial by fire to be certain, however it comes at a great cost. Here’s hoping that Mr. Ray has a bevy of qualified and capable mentors who don’t mind carrying him over the finish line in this one. His client’s life depends on it.

  8. Hi Maverick,

    I’d like to offer my 2 cents to try to convince you to find someone else to handle this capital murder case. Although I think it’s important for you to hear and take to heart the words of Mr. Bennett and other commenters, I’m concerned that their comments will cause you to dig in your heels instead of seeking more competent counsel. I’m hoping that a softer approach might persuade you to change course.

    First, a couple of things that I think most would agree are fundamentally true:
    (1) In practicing law you live and die by your reputation;
    (2) the name of the game, for you and your client, is survival.

    I’ve only been practicing for about 2 years, but I can tell you one thing based on experience. You will do plenty of damage to your reputation without even trying. The only indication will be some funny looks that you won’t understand until weeks or months later. These events will hurt your career, but not necessarily kill it as long as you learn from them.

    Indeed, you have done this damage already. Mr. Bennett’s post links to a widely-circulated article in which the judge questions your competence. This article was published almost a month ago, yet you seem to be completely unaware of the harm done to your reputation. So, you are faced with a choice: do you accept some serious but non-fatal reputation damage as the price for a valuable learning experience? Or, do you establish a reputation as “that guy who tried a capital murder case six months out of law school,” essentially ensuring that neither your client nor your career survives?

    I read your earlier comment, and I want you to survive. It appears that Mr. Bennett and other commenters want you to survive as well, but it might be hard to see this through their tough love. Tough love can make someone a better lawyer, but isn’t always taken in the spirit it’s given over the internet. So, if the tough love doesn’t resonate with you, maybe my approach will. In the end, it doesn’t really matter what reaches you as long as the end result is that you fix this mess, salvage your reputation, and maintain a fighting chance of survival for both you and your client.

  9. Maverick,
    I have testified as an expert witness in over 20 death penalty cases in Texas over the past 6 years. I can assure you that there are at a minimum two prosecutors that you do not want to deal with. They are David Weeks of Walker County and Bob Gill of Tarrant County. Please contact the Texas Defender Service or GRACE and beg for help. I doubt that you are qualified to even sit third chair in a Capital case. You WILL get your client killed if you proceed on your own.

  10. Mr. Ray-

    I work the opposite side of the desk as nearly everyone in this virtual room. I don’t have 20+ years of experience like many here, but I’ve been a practicing Assistant DA/CA since you were in law school. It is *my obligation*, under CCP 2.01, to see that justice is done. If you persist in this case, justice will not be done. That can become clear in three words:

    Howard Wayne Lewis.

    This isn’t a game. This isn’t a moot court. This isn’t a fact pattern. This is, quite literally, a matter of life and death- but not for you.

    Howard Wayne Lewis.

    I firmly believe that some people, through their actions, forfeit their right to be a part of this world. This may not be a popular opinion here. You may not agree. But, at least for the moment, the State of Texas agrees. It provides a mechanism by which that life may be declared forfeit, and then taken. That mechanism is complex, complicated, and sometimes opaque. But make no mistake, if it grinds to its final conclusion, then the forfeit life will be taken.

    Howard Wayne Lewis.

    In the end, this may not concern you. You will, I am sure, give what you personally believe to be the most you can give to your client. This may not be enough. It may not be POSSIBLE for this to be enough. A hundred years ago, Robert Falcon Scott gave every last drop of himself to attaining the pole and returning safely. It was not enough. His life was taken, and he died alone, laying on his back, anticipating his death for weeks until life slowly ebbed away.

    Howard Wayne Lewis.

    My obligation to see that justice is done, in my mind, requires that I ask you to admit that you cannot gain the competency necessary to first chair a capital murder trial in the short months before your client will face death. If you won’t do it for me, do it for Howard Wayne Lewis.

  11. DR 1.01 states that a lawyer is not to undertake representation that he knows or should know he is not competent to handle.

    It’s the First Rule. Mr Ray, the DRs exist, in part, so that the State Bar of Texas can sanction those
    Lawyers who put their interest before their clients.

    Get competent lead counsel or withdraw. Those are your choices. Your desire to learn is admirable. Your desire to learn potentially at the expense of your client’s life is unconscionable & detestable.

    Robb Fickman

    • Mr. Fickman, (awesome advice, as usual). Out of ‘all’ that chose to wade into the free-good-advice-pool, I can assure you, that ‘you’ are the only one that Ray respects enough to listen to, but isn’t going to be reading or commenting or hear elsewhere anytime soon. I can also assure you, that he and his client fully planned to take this to the Judge’s chambers during lunch recess on day one of the jury trial.

      If he were to have simply TappedOut prior to day one, he’d be labeled as just another member of the Plea-Mill aka: Defenseless Defense, aka: a Dabbler – a D.R. Jackson. Once he has a half or three quarters of day under his belt trying a Capital Case, the district clerk records would indicate ‘experience’ and his website, business cards and ads would reflect he’s ‘Experienced’, devoid any links to blawgs.

      As much as I’m Anti-TapOut, in the case, it’s the only thing that’s going to save a murderer from the needle and a career to boot. With that, please consider calling him directly and arranging a sit down with him and his mentor in an effort to educate him as to exactly why he should sit right behind the defendant (in order to obtain Real experience). If not for this client’s sake, then for the clients of tomorrow that consult with lawyers wishing to be mavericks in their own field (Ex: Divorce & Estate specialist dabbling in felony jury trials to wet their whistle). I hope you can convince him to consider performing due diligence during future consultations where those seeking legal representation on their behalf, or a family members, learn up front that he’s a ‘Fighter’ and to hire him equates to a jury trial to verdict. To not be on record as one of the Attorneys of Record in this death / plea bargain will allow him to rightfully proclaim – *I Don’t Do Plea-Bargains. *I Don’t Do Capital Cases. Both elevating him above the Dabblers & the Plea Millers everyone has grown accustomed to allowing to infiltrate the defense niche.

      Thanks for taking time to mentor the masses and individuals alike in time of need, whether they think they need it or, not.

  12. I tried a murder case 2 years out of school and it wasn’t anything “out of my league.” BUT a capital case?!?! I would tell the family that I would help but that they would need a more experienced death penalty lawyer to take the lead. Maverick should step aside and take a less active role. Hubris otherwise.

  13. Absolutely freaking incredible. If someone told me that I would think they were making it up or exaggerating.

    Any lawyer that would even begin to think they can handle a capital case with no experience should be forced to go back to law school. Under most indigent defense plans I’ve seen he wouldn’t even be qualified to handle misdemeanors. The fact that he is out there handling serious cases is frightening.

    Having defended several capital cases, I can tell Mr. Ray that unless you collected an extra $100,000 for experts there is no way you can provide an effective defense. At a minimum you will need a mitigation expert, psychiatrist, psychologist, neuro-psychologist, crime scene analyst, pathologist, and maybe a few others. You also need someone like Mr. Abuchon – although you can’t do any better. And if you don’t already know who he is you don’t have any business handling a capital case.

    And another thing you need to remember – you will have someone looking over your shoulder, analyzing your every decision after your client gets convicted and sentenced to death. The Capital Writ Office is staffed with very good lawyers who will not leave any stone unturned.

    As a lawyer, the one thing you have is your reputation. It takes years to develop, and a few seconds to destroy. Starting off getting lamblasted by the internet is not the best way to build your reputation.

    I did look at your website – you might want to take the picture down if your are trying to convince people you are experienced.

  14. Perhaps this is a good time to remember — though Maverick Ray is, unbelievably, to young to appreciate this — Donald Rumsfeld leading us into the fiasco that was the Iraq war.

    He blundered badly, and this was quite literally despite having an army of people working for him.

    But he did say this, which is worth repeating despite being mocked at the time:

    there are known knowns; there are things we know that we know.
    There are known unknowns; that is to say, there are things that we now know we don’t know.
    But there are also unknown unknowns – there are things we do not know we don’t know.

    Even with an army of people working for you, there are still known unknowns and unknown unknowns.

    The problem with being inexperienced is that you are too inexperienced to understand what it is that you do not know.

  15. I am absolutely astounded at this. In 27 years of practice, I’ve never seen anything of this magnitude. We used to joke about baby defense attorneys taking 1st degree felony appointments (this was back in the day before the so-called Fair Defense Act), and some of them did, I’m sure to their clients’ great detriment, but this is in a different league altogether. The best outcome, assuming this guy refuses to voluntarily withdraw, would be for the judge to appoint a “second chair” from the pool of qualified defense lawyers in Walker County, and of course, that lawyer would end up doing most of the heavy lifting while the potted plant next to him watches and gets experience.

  16. I beg him to associate more experienced counsel. I’m starting my fourth year of practice and I wouldn’t dream of touching a capital murder case if I practiced criminal law. I *might* second or third chair a capital murder case. *Might*.

    The expert witness issues alone are too much. And he needs someone *local* for voir dire.

  17. You can’t think you gained an education in eight months. So you must think you’re educated because you went to law school.

    Very well, trust that education: Go ask your Criminal Procedure or Criminal Law professor(s) for an opinion on your decision. Make sure to explain the situation in sufficient detail (including the fact that you’re up against David Weeks) and see what they say. Hell, see if you can get a single one of your professors to tell you that this is wise, ethical, or advisable. Good luck with that.

    Anything is possible, of course! You could take this all the way to the Supreme Court to get your client acquitted. You could argue so eloquently that they make a film of you, casting Brad Pitt to play your part. You could bust open corruption at the highest levels of the police department, eventually winning a Pulitzer for your expose. You could demonstrate your competence, get 1000 referrals/year, make millions, and go on to lead the Green Party. You could be forced to leave the trial early in order to accept a departmental chairship at Stanford Law.

    Those things are possible, but they are not probable. What IS probable is that you will lose; that your client will get a life term or death, and that you will have a scar on your professional career for the remainder of your life. And when your client suffers because of your hubris, you won’t sleep well for a while–if ever.

    Go find some people who you really trust and talk to them.

  18. The other piece of advice he may need to hear is that doing a Rakofsky is a bad idea. When the murder case goes badly, Rakofsky sued folks involved in the reporting. He wound up suning several tens of people. One school disgraced itself by settling. Everyone else fought.

    The only reason Rakofsky might not be known as “The Lawyer who Sued the Internet” is that he may no longer be a licensed lawyer.

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