Norm Pattis ()
There is something perversely delightful about the state Supreme Court’s decision in the case of State v. Lishan Wang. Call it the revenge of informed consent in legal ethics.
The Lishan Wang case is unusual. The defendant is a physician accused of murder. He is alleged to have killed a colleague whom he believes to have cost him a job at a Brooklyn hospital. The state says Wang opened fire on the decedent in Branford, killing him.
Most folks facing a murder charge have the good sense to rely on a lawyer to defend them, but not Wang. Whether from the professional arrogance sometimes found among physicians, or some lesser form of madness, Wang has elected to represent himself.
Despite his credentials, Wang qualified for the services of a public defender. When he was found competent to stand trial, the court appointed a public defender to serve as standby counsel. Wang is in the driver’s seat on defense strategy and tactics.
Until the Supreme Court ruled just the other week, it was unclear whether the good doctor was going to be able to obtain the services of investigators and experts to help prepare his defense. Had he been represented by a public defender, there would be no question his lawyer would have the tools he or she believed necessary to present a defense.
But Wang doesn’t want a lawyer. Does his right to present a defense mean that he gets the experts and investigators he thinks he needs?
Yes, the Supreme Court said. After an unseemly display of bureaucratic tap-dancing in which both the Judicial Branch and the public defenders’ office claimed they should not be required to pay for Wang’s accoutrements, the court ruled the public defenders’ office is on the hook. Wang gets to hire his own experts and his own investigators, subject, of course, to the nebulous standard that such expenses are “reasonably necessary” to his defense.
And there’s the rub.
Who decides what is reasonably necessary?
In a bygone era, lawyers were regarded as the captain of their client’s ship. A defendant faced a crisis. In consultation with his lawyer, the client determined what his strategic objectives and goals were. The lawyer was then free to choose the tactical course.
Those days are gone. We now labor under the same regime common among doctors – informed consent. We are required to consult clients not just about strategy, but also about tactics. A lawyer who refuses to do so can face professional discipline.
Wang’s desire to hire Dr. Henry Lee as his expert, his hope to transform his murder trial into a show trial on whether the man he is accused of killing destroyed his medical career, whatever bobs and weaves he may make in the direction of trying to present an insanity defense – all this inchoate nonsense represents the desire of a client unfiltered by the professional discipline of experienced counsel. That the state’s highest court has decided to yield to Wang is less a triumph of the Sixth Amendment right to present a defense than it is an abdication of judgment to a weak-minded nihilism that regards professional experience with cynicism.
I have no idea whether Wang will be found guilty or not. I do know that the ruling in his case sends the wrong message to the defense bar in this state. We’re now told that we risk a claim of professional malfeasance if we don’t endorse the goofiest defense our clients can conceive.
Wang gets whatsoever he wants. Shouldn’t all clients, whether counseled or not? Welcome to the brave new world of informed consent run riot.
Norm Pattis is a criminal defense attorney and civil rights lawyer in Bethany. Most days he blogs at www.pattisblog.org,