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Legal Ouroboros

July 18, 2019

I just recently learned the name "Ouroboros" - the ancient symbol of a snake eating its own tail (or a dragon, but since no one has seen a dragon since Game of Thrones was last on about 16 years ago it seems, we're sticking with snakes).  Whenever I have seen the symbol, I have thought two things: 1) what happens when he gets to his head? and 2) is it the height of arrogance ("I'm so delicious I just have to eat myself") or the depth of diffidence ("I'm so horrible I should just eat myself") that causes Ouroboros to practice autocannibalism?

 

A recent Georgia Supreme Court opinion has me thinking similar thoughts.  In Davis v. The State, 301 Ga. 658, 802 S.E.2d 246 (2017),  Brandon Davis was indicted for malice murder and felony murder predicated on aggravated assault.  Pursuant to a negotiated plea agreement, the State nolle prossed the malice murder count and Davis pled guilty to felony murder; he received a life sentence. Two weeks later, within the same term of court, guilty plea counsel moved to withdraw Davis’ guilty plea alleging "manifest injustice."  The basis for the motion to withdraw?  Ineffective assistance of counsel.

 

The motion was denied - after a hearing in which the allegedly ineffective counsel still represented the accused.  The trial court did not find any evidence that there had been ineffective assistance of counsel.  And this is where my irony meter went on over to the red zone.  If an attorney is himself arguing that he was ineffective and loses this argument, perhaps that loss is prima facia evidence of his ineffectiveness?  The Supreme Court’s irony meter may have been spiking also, but they put the issue more eloquently (and with citation to precedent):  “...because Davis was represented by the same counsel at both his guilty plea hearing and on his motion to withdraw guilty plea, Davis could not have raised a claim of ineffective assistance at that time. See Hampton v. State, 272 Ga. 284 (10) (527 SE2d 872) (2000); White v. Kelso, 261 Ga. 32, 32 (401 SE2d 733) (1991) (“an attorney cannot reasonably be expected to assert or argue his or her own ineffectiveness”).”

 

The legal Ouroboros in the Davis case has me wondering, did that lawyer arguing against himself think he was just so great a lawyer that he could convince a judge that he was actually an ineffective lawyer or did he think that he was such an ineffective lawyer that no judge could deny it, even if he was the one advancing the argument?  Either way, I cannot imagine that eating his own tail was preferable to eating crow and letting someone else argue his ineffectiveness.  And apparently the Georgia Supreme Court agrees – autocannibalism will not be allowed in Georgia courts.

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