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30 N. Ky. L. Rev. 487 (2003)
Bad Lawyering - How Defense Attorneys Help Convict the Innocent

handle is hein.journals/nkenlr30 and id is 497 raw text is: BAD LAWYERING
How DEFENSE ATTORNEYS HELP CONVICT THE INNOCENT
by Sheila Martin Berry
To 'know thyself must mean to know the malignancy of one's
own instincts and to know, as well, one's power to deflect it. -
Karl A. Menninger, M.D. (1893-1990).'
I. INTRODUCTION
At least one-fourth of wrongfully convicted individuals know what bad
lawyering is because it put them where they are today, in prison, even on death
row.2 Yet those of us who advocate for the wrongfully accused and convicted
often fail to recognize our own roles in bad lawyering, perpetuating the
problem and its tragic consequences.
Bad lawyering is generally understood to mean ineffective assistance of
counsel,3 a relatively new concept arising from the Sixth Amendment' right of a
criminal defendant to have the Assistance of Counsel for his defense.5
Guaranteeing persons charged with crimes the right to representation was, in its
time, a bold leap forward over English common law, even if counsel proved to be
little more than a warm body' with Esquire behind its name.6
0 Sheila Martin Bery is both an author and an advocate. Throughout the 1980s, sheserved as director of
prosecutor-based victim-witnmss assistance programs in Wisconsin. Ms. Brry initiated the use of victim impact
statements at sentencing hearing and successfully lobbied for the addition of victim impact state ents to
Wisconsin's Bill of Riglts for Crime Victims. During this period, Ms. Beny also developed the naion's first
Employee Victim Assistac= Program for Wisconsin mental health institions. in 1997, Ms. Bery and her
husband, Doug, founded Truth in Justice, an educational non-profit organization concaned with the conviction
of innocent people for crimes they did not commit The organization's website at hip//truthinjusticeorg was
the first of its kind on the Intemet, and reains the most credible and informative. Books written by Ms. Berry
include The Spy Who Never Was (1982, Hearst), Taking Care of  ur Own (1988, EAP training manual), My
Name i Legion (1999, Amher Books), Getting Ready for Court (1995, Kids Kount Pub.; 2000, Sage Pub.) and
Clrcumstantial Evidence: Anatomy ofa Midwestern Murder (sch. 2003, Public Eye Pub.). Her most recent
book, Full Circle: How a Veteran Cop was Sentenced to Life In Prison for Crimes That Never Happened, has
been optioned for production of a documentary film by Imagery Films, Inc.
1 See Quote Geek, Quotations from Karl Menninger, available at http://www.quotegeek.com/
Literature/MenningerKarl/ (visited Mar. 24, 2003).
2 BARRY SCHECK Er AL., ACTUAL INNOCENCE 263 (1999).
3 MODEL RULiS OF PROFESSIONAL CoN.Ducr 1.1 (1998) (A lawyer shall provide competent
representation to a client Competmt representation requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessaiy for the representation.).
4 U.S. CONST. amend. VI.
Ild.
6 See Mitchell Simpson, III, A Fair Trial: Are Indigents Charged with Misdemeanors Entitled to
Court Appointed Counsel, 5 RoER WIUAMS U. L REv. 417, 425 (2000) (providing that under
English common law a person charged with treason or a felony was not entitled to counsel, except

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