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Strategy & Tactics: Charging on lesser offenses

Your client starts a fight with someone, and gets in the "(un)lucky" punch -- through some weird physiological accident, the victim winds up dead, and you're defending a murder charge.  The facts would warrant a charge on a lesser-included, like involuntary manslaughter, and the judge offers to give one.  You don't want the jury to have an easy out, so you turn it down, preferring to go all-or-nothing.  Does the judge have to instruct the jury on the lesser anyway?

There's plenty of case law that says that a trial court has a duty to give an instruction on a lesser-included if the facts warrant.  As the 10th District recognized last week in State v. Riley, there's an important exception to that rule:  where defense counsel doesn't want one, as a matter of trial strategy.

Actually, the decision doesn't go quite that far.  The trial court had conducted an extensive colloquy, on the record, about the possibility of a lesser charge, and the defense attorney had clearly indicated that he didn't want one, as a matter of strategy.  It hadn't worked out, of course, and the appellate attorney had argued that the failure to charge could be considered under a plain error analysis.  The court didn't buy it, and the case should more correctly be read for the proposition that if counsel clearly indicates that the decision not to request a charge is a matter of strategy, appeal on plain error isn't available.

Appeal on grounds of ineffective assistance of counsel isn't going to cut it, either; tactical and strategic decisions are generally immune from review for IAC claims, and this is one of them.  Actually, Riley goes a little too far in that direction, citing two Supreme Court decisions which it says hold that a defense failure to request a charge on a lesser will be presumed to be a strategic decision.  That's not what those cases say, though; in the absence of something in the record to indicate that the decision not to ask for a charge was calculated, I think you've still got an IAC claim.  Of course, that's still subject to a plain error review, so you've got a tough road there.

Also, keep in mind that Riley doesn't say that the judge can't give the charge.  In other words, you don't have the right to keep him from charging the lesser if the facts warrant it just because that fits your strategic goals.  In fact, you could make a decent argument that, to the extent that a trial really is a "search for truth," your strategic decisions shouldn't play much of  a role in that.  Of course, the subset of people who subscribe to the "search for truth" theory largely coincides with the subset who believe in the Tooth Fairy, so we won't spend a lot of time on that, will we?

As I mentioned last week, this is my last post until September 24.  Tomorrow at this time I'll be sitting on an airplane, entranced by the flight attendant's explanation of the mysterious workings of a seat belt buckle.  (And for a gander at the kind of person for whom such an explanation might indeed prove mystifying, check this out.)  You might find some nice photos of Maui here in the next couple of weeks, but the closest you're going to get to anything of a legal nature is a picture of me applying for a job with the island's public defender's office.

And if that turns out, the posts here on the 24th will start taking a decidedly Polynesian twist.

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