Trial strategy and IAC claims
Trial lawyers in Cleveland are an incompetent lot. At least, that's what you'd think from reading the arguments of appellate lawyers. Ineffective assistance of counsel claims figured prominently in a third of the criminal decisions out of the 8th District last week.
State v. Cicerchi gets the ball rolling: at the end of voir dire, the trial judge pointedly notes that the State used three of its peremptories to get rid of black jurors. Cicerchi argues on appeal that if the trial judge was smart enough to pick up on that, his lawyer should have been, too, and should have raised a Batson challenge. The appellate court dismisses this in half a paragraph: there was no "pattern of strikes" against black jurors, the State didn't make any statements reflective of a discriminatory motive, and the final jury included three blacks.
Had Cicerchi's lawyer actually made a Batson challenge, none of those three reasons would have been sufficient to reject it: you don't have to show a "pattern" (a single strike will do), the presence of other blacks on the jury doesn't change that, and one struggles in vain to envision a prosecutor dumb enough to say something that would indicate a discriminatory motive. Still, it's hard to quibble with the result: given the difficulty in mounting a Batson challenge in the first place, it's virtually impossible to see how the failure to do so can be converted into an IAC claim. You'd have to show that if the lawyer had raised the challenge, the judge would have granted it.
The major difficulty with IAC claims is that appellate courts are quite willing to chalk up just about anything a lawyer does to "trial strategy," which is demonstrated by State v. Stone. The prosecutor says in opening statement that Stone robbed three people at gunpoint and subsequently confessed to having the gun. The defense responds that Stone didn't actually have one, but said he did because he was high on PCP when he made statement. After a few questions of the first State's witness, though, Stone -- presumably having come down from his high -- announces that he's changed his mind and wants to plead to the deal the State has offered. He does, but argues in a delayed appeal that his lawyer should have moved to suppress the statement.
The court could have rejected this claim by simply noting that a guilty plea waives all errors up to that point, including the failure to file a motion to suppress, unless you can show that the failure to file the motion rendered the plea involuntary. (Another panel provided just that explanation in a case a month ago.) Instead, the court held that counsel was following a superior trial strategy: given that a motion to suppress was "doomed to failure" because "Stone confessed after his arrest" and "the prosecutor's opening statement to the court indicated that although Stone was informed of his right against self-incrimination, he gave his statement voluntarily,"
defense counsel instead chose to pursue the only reasonable trial strategy available, viz., pointing out the state otherwise lacked evidence to support the firearm specifications.
This raises more questions than it answers. If we're going to give credit to what's said in opening statements, what about defense counsel's assertion that Stone was high when he gave his confession? And as long as that confession isn't challenged, how "reasonable" is a trial strategy that attempts to show that "the state lacked evidence to support the firearm specifications" -- other than the defendant's own statement, that is.
The result is probably right; there aren't a lot of cases out there suppressing a confession because the defendant was too zoned out to give a valid Miranda waiver. It would have been much better for the court to go that route rather than get into trial strategy. In fact, the failure to file a motion to suppress should rarely be ascribed to strategic considerations; it's not exactly typical for a lawyer to think, "Although I could get evidence against my client suppressed, I see a strategic advantage in letting it in."
State v. Smith also presents the question of trial strategy in the context of an IAC claim. The case presents this story line leading up to a murder:
on a prior occasion Johnnie had been at Roxanne's house, got sick from drinking too much, and vomited on her couch and carpet. Roxanne became upset, ordered Johnnie out of her house, and told him that he was not welcome there again... Nonetheless, Johnnie attended a cookout at Roxanne's house on the day of the murder. He drank alcoholic beverages, eventually got sick, and vomited in the living room. Roxanne put a bucket in front of Johnnie and pushed his head down into it.
That understandably led to words between the two, and Johnnie will be neither drinking nor throwing up anymore: Roxanne shot him. In appealing her murder conviction, she claims her lawyer was ineffective for not asking for the jury to be instructed on the lesser offense of voluntary manslaughter.
That's a much closer call. Smith argued self-defense, and the court correctly notes that her lawyer might have figured that throwing a lesser offense into the mix might have undercut that. In addition to the credibility problems of arguing two inconsistent defenses, there was the problem of creating an out for the jury: it might have settled on manslaughter as a compromise. Sometimes you have to go for the whole ball of wax. The court in Smith rightly focuses on the question of whether that strategy was reasonable, and rightly concludes that it was.
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