“We’re going for ineffective assistance and it doesn’t look good.”
“Never does.”
“The guy’s lawyer was one of the best in town. At least, that’s what everyone tells me. So it seems like there’s no way to win. The only thing is that our client had an alibi — a ridiculous one — but an alibi nonetheless, and his lawyer never even interviewed the people involved.”
Jendrek turned and raised his eyebrows again. “Well, that’s a little strange. But then, I remember a guy who claimed he couldn’t have done it because at the time of the murder he was receiving the dreaded anal probe by the aliens who’d picked him up out at Zuma beach. So, you know, some alibis aren’t worth checking into.”
“Well, this alibi isn’t that crazy, but there is absolutely no evidence to support it and the person our client blames has two witnesses who claim he was home all night.”
“Family members?”
“Yeah.”
“They have a pretty good reason to lie.”
“Sure, but their story makes sense and ours doesn’t.”
Jendrek shrugged. “Go talk to them. Shake the tree and see what falls off. You never know.” He took another drink and then pointed as he spoke. “But see them in person if you can. It’s easier to figure out what people are lying about if you see them in person. And they’re always lying about something.”
I smiled, as if to suggest I knew what he was talking about, but I didn’t. Still in the first half of my twenties, I was nowhere near as jaded as that statement required. But Jendrek had been a lawyer for a long time and seemed to speak it like a mantra.
I thought about Steele and Detective Wilson. I’d met both in person. Spotting the liar didn’t seem that easy. Jendrek sensed my uncertainty.
“Look,” he began. “The thing to remember in any ineffective assistance claim is that you can’t question strategy. I mean, if a lawyer looks at a case and makes a reasonable decision not to present a certain argument, a certain witness, then you can’t second-guess that years later. I mean, if your client insists on a ridiculous alibi, a lawyer may be right to avoid putting that on because no one will believe it and the client will lose credibility. It’s virtually impossible to win a habeas case by questioning strategy.”
Jendrek took a long pull on his beer and drained it. He waved to the bartender, signaling that he needed another, and turned all the way toward me. He was in lecture mode.
“But where you can win is on a failure to investigate claim. What you have to say is that, even if a story sounds incredible at first, any reasonable lawyer would at least do some investigation.”
“Well, that’s where we’re heading with this thing.”
“Of course. But the problem you have is the second half of the argument. There has to actually be something to investigate. If there’s not, if all you can say is that a reasonable lawyer would have checked into the alibi — an alibi that was useless — then you’ve got nothing. A judge will say you’re right, a reasonable lawyer would have picked up the phone, but the fact that this lawyer didn’t pick up the phone is harmless error. It’s a mistake that had no impact on the trial because the alibi was no good. But if you hit the jackpot, and there really was something to look into, then you’ve got a shot. It’s easier to prove the lawyer screwed up than it is to prove a guy’s innocent.”
The bartender brought two more beers despite the fact that I was only half done with mine. I took two big swallows of the first and said, “Yeah, that’s where we’re at. I still need to talk to the family members providing the alibi, but they’re probably just going to say the kid was home all night.”
I picked up my second beer. “Funny though,” I began, “I’m making these phone calls and it’s tough to interview people without having it sound like an interview. Sometimes you just run out of things to say and you’re just stuck. It’s hard.”
Jendrek just smiled. We sat for a minute or so and said nothing. Then I began again.
“The problem is,” I said, between swallows. “Our client tells a pretty good story. He’s very believable. He had no motive to kill his wife and the guy he blames supposedly hated his wife.”
“Murder?” Jendrek smiled. “You didn’t say anything about murder.” He