Mimesis Law
28 May 2017
paul mckernan hanging judge

The Lawyer Who Was Worse Than Nothing

Judge Lisa Richette was a sensitive soul. Reportedly, a pretty defense-friendly one too. Local lawyers would waive their right to a jury trial in front of her, hoping for a more favorable outcome. And this did not endear her to prosecutors or, as it turns out, to Charlton Heston, who dubbed her “Let ‘em Loose Lisa” at an NRA event in 1998.

This stung a bit. And as Richette presided over Paul McKernan’s 1998 murder trial, the wound was still fresh. Because this was a bench trial, she alone would decide whether he was guilty of murder, a lesser crime, or nothing at all.

McKernan had allegedly killed his roommate with one mighty swing of an aluminum bat. He claimed self-defense. But the victim’s family was unhappy about the judge presiding over the trial, writing on a website that they had lost the “judicial lottery.” When Judge Richette heard about what the family had written, she got upset. She called the victim’s family into chambers, along with the defense attorney, the prosecutor, the court reporter, but not the defendant. Then, she began a conversation whose inappropriateness the Third Circuit Court of Appeals would later say was difficult to convey in excerpts. Still, they did a pretty good job summarizing:

The judge said to Mrs. Gibson that the site was “vicious and unfair” and that the judge did not “want to hear this case if” Mrs. Gibson was “unhappy with” her.

And later:

The judge read a passage from the website stating “Lisa Richette is a bleeding heart judge that often sympathizes with murderers and other violent criminals and gives them light sentences,” which the judge characterized as “a total lie.” The judge then accused the Gibsons of writing “dreadful, slanderous things about [her]” throughout the website.

Then, somehow, it got worse. She described McKernan’s crime as a “horrible, horrible murder.” Bear in mind, his whole theory of defense was self-defense. It would be pretty awkward if she later changed her stance from “horrible, horrible murder” to “totally justified baseball batting.” It wouldn’t take Miss Cleo to tell you who was going to win at that point, although she might have provided more effective representation.

See, as this was going on, McKernan’s lawyer just sat there in the corner without saying anything. He didn’t object. He didn’t stand up. He didn’t leave a lawyer-sized hole in a wall and a whooshing sound as he deposited a recusal motion downstairs at the clerk’s office. It’s not clear if he was just really into playing Pokemon on his Game Boy or catching some shut-eye, but he reacted to all this the way most people react to hearing about a friend’s dream: By mentally leaving his body and praying for death.

Then the judge started regaling the victims with her “victimology” credentials:

Let me tell you something, I teach at Saint Joseph’s University in the criminal justice program, graduate, and I created a course in Victimology because I think that victims need to have rights. And I teach this course. This Mr. Heston doesn’t know.

People who use “victimology” in a sentence, like those who correct between “may” and “can,” should generally be slapped by anyone in range. But, perhaps numbed by the judge’s lecture on her harsh decisions in drunk driving cases, nobody managed to move their hands fast enough to make contact.

So, the defense lawyer walked out of all this, went to his client, and explained the situation. He’d argued plenty of cases before this judge before, he said, and she was just a “colorful jurist.” Sure she’d told the victims that she would be a good judge for them and wouldn’t live up to the reputation Charlton Heston had bestowed upon her, but that didn’t mean she wouldn’t decide his case fairly.

McKernan, to his credit, freaked right the hell out. He kept trying to get his lawyer to do something, get him a different judge, but the lawyer insisted that everything was fine. His lawyer then went back to the judge to complain that his client thought there might be a problem, despite his Trumpian promises that everything would work out at some vague future point. In other words, he provided assistance that the Third Circuit would later describe as worse than ineffective—worse than having no lawyer at all:

If counsel is ineffective only where his conduct was so deficient as to render his client de facto without counsel, McKernan’s counsel may have been worse: he convinced his client to proceed before a tribunal that objectively had the appearance of bias against him.

Instead of getting a new judge, McKernan’s lawyer negotiated a second wildly improper chambers conference, one where his client got to listen to the judge make a second set of crazy pronouncements. At this conference, she promised McKernan that she would “try and pray to God that I be fair to you.” Great.

In what would normally be followed by a smash cut, McKernan got popped with first-degree murder and the maximum possible sentence, life without parole. Court after court okayed defense counsel’s laissez-faire attitude, holding that there was nothing ineffective about allowing a judge to rule on your client’s guilt when she has already told you she is going to find your client guilty. It took until federal habeas, the last of all last chances, for the Third Circuit to point out the obvious:

In a case such as McKernan’s, where the defense theory of the case was at least partially based on arguing a lesser degree of culpability, Judge Richette’s actions would have caused any competent attorney to seek recusal immediately

So McKernan gets a new trial after losing nearly twenty years of his life. Let ‘em Loose Lisa strikes again, too, although this time for being incompetently harsh rather than unduly lenient. There’s a lesson here, and it’s worth paying attention to: a shitty judge who rules for you for dumb reasons one day may be just as likely to turn on you the next. So pick judges who rule on the law.

6 Comments on this post.

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  • Chris Seaton
    1 March 2017 at 11:14 am - Reply

    This whole incident makes me want to go flip a table now.

    Great analysis.

  • Vandy
    1 March 2017 at 12:02 pm - Reply

    According to the Pennsylvania Supreme Court no disciplinary charge was filed against the defense attorney for this incident. Shouldn’t a finding by any court that an attorney has provided “ineffective assistance of counsel” be grounds for automatic disbarment?

    • Andrew Fleischman
      1 March 2017 at 12:28 pm - Reply

      There are many great lawyers who have been ineffective on a case. Sometimes, you just aren’t paying attention or get distracted by another issue. While the name sounds stern, IAC is really just a way to rescue an issue that is otherwise waived so that a higher court can rule on it.

      While prosecutors often say we should disbar “ineffective” lawyers, what they really want is for lawyers to lie about their reasons for doing things at trial so that criminal defendants can’t get new trials.

      As for what the defense attorney should have done, probably a lot of options. Could have asked the judge not to meet in chambers, could have moved to recuse the judge after the meeting, and could have followed client’s wishes and gotten a new judge.

      • Vandy
        1 March 2017 at 1:43 pm - Reply

        I should be a bit more specific. There are many times that IAC is used as a basis for a collateral challenge. In my mind, a claim of IAC is pretty much meaningless in and of itself. In fact, is is probably IAC for an appellate attorney to not make an IAC claim in a habeas proceeding.

        However, given the “strong presumption”, Strickland, and the AEDPA, for a federal court to grant a habeas petition on the basis of IAC means that something serious must have been going on. (Strangely, in many states, for a state court to determine that may mean even worse conduct was present.)

        I agree, even great lawyers make mistakes that could arguably be classified as IAC. However, for an appellate court to make that determination these days means it is far beyond “run of the mill.” Or at least that is my impression. Given that reality, I would suggest that such a finding should at the very least cause the state ODC to take a hard look.

    • NickM
      2 March 2017 at 3:28 am - Reply

      Consider the facts of Smith v. Spisak, 558 U.S. 139 (2010).
      What should the defense lawyer have done to not leave himself vulnerable to second-guessing as to IAC?

  • Dwight Mann f/k/a “DM”
    1 March 2017 at 12:11 pm - Reply

    Out of curiosity, what would the objection be while in chambers? Moving for recusal afterward is obvious, but I am puzzling over the basis of objecting during the clusterfuck conference.