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Taking out the murder weapon

The State's murder case against David Allen was iffy.  His girlfriend was found shot dead in her apartment a couple of weeks after they'd had a fight, and she'd earlier confided in a friend that she was afraid of him.  A witness claimed to have seen him run into an apartment building right after the victim went in, shortly before the killing.  And Allen was arrested in Akron with a gun a month later.  But the gun was a .25, and didn't match the .22 caliber shell casing found at the scene of the crime.  Forensics turned up nothing.  To top it off, the defense located the eyewitness' boyfriend, who was sitting next to her when she supposedly saw the defendant run into the apartment building, and he didn't see anything.

That's where matters stood just before the State rested.  At which point they announced that they'd taken a belated second look at the shell casing found at the murder scene.  It was actually a .25 caliber, the same as the gun found on Allen a month later.  And ballistics tests showed that the casing came from that gun.

Damndest thing I ever saw.

In a span of two minutes, the judge first decided to grant the defense motion for a mistrial, then to prohibit the testimony, before finally settling on granting a continuance so that they defense could hire their own ballistics expert.  (This was a bench trial.)  They did, and he never testified when the trial resumed, so that tells you what you need to know there.  The judge convicted Allen of the lesser offense of murder, and assigned me the appeal.

My first argument was the failure to grant a mistrial.  There are a number of decisions you make in advance of trial, and finding out on the last day of trial that the evidence is vastly different from what you anticipated is manifestly unfair:  you've made all manner of strategic and tactical decisions -- plea bargaining, how to cross-examine witnesses, what witnesses of your own to present -- in reliance upon one set of facts, only to find that you're dealing with a different set.

Well, maybe.  The problem is that this probably falls under the heading, "shit happens."  I've never had a criminal case go exactly as I anticipated, and the difficulty here was that I was hard-pressed to come up with any specifics as to how the case might have been tried differently if the defense knew the gun would be introduced.

The second assignment of error, though, was more promising.  The Akron police had gotten an anonymous tip that two black males were in the library, describing how they were dressed, and advising that they would be leaving the library in 10 minutes, and that one of the males had a gun.  The police staked out the library, and ten minutes later two black males, fitting the description to a T, walked out of the library.  The cops promptly arrested them, and sure enough, one of the males -- David Allen -- had a gun.

The problem is that there's a US Supreme Court case exactly on point:  Florida v. J.L.   The cops got an anonymous tip that a black teenager in a plaid shirt at a certain bus stop had a gun, they went to the bus stop, there's a black teenager in a plaid shirt, and when they pat him down they find a gun.  The Supreme Court said that wasn't enough:  an anonymous tip doesn't furnish the basis for a stop where the only part of the tip the police can corroborate is the non-incriminatory information. 

The defense lawyers hadn't filed a motion to suppress the gun, but that was understandable:  before trial, the gun was irrelevant.  But they didn't file one in the four-month continuance the court gave them, either, so I made an ineffective assistance claim.  I felt bad; I know both the attorneys, and they're far better trial lawyers than I'll ever be.  But this one they missed.

So we go to oral argument, and it's clear that the entire case rests on the second prong of the Strickland standard for IAC claims:  whether the defendant was prejudiced by counsel's failure, i.e., whether counsel's failure undermines the confidence in the verdict.  In rebuttal, I had a brainstorm.  Imagine, I told the panel, if the situation were reversed:  the state had introduced the gun as the murder weapon at trial, and after conviction, it was learned that the tests were wrong and the gun really wasn't the weapon.  Would anybody still have the same confidence in the verdict?

There are times when your head tells you one thing but your gut tells you another.  This was one of them.  Normally, the 8th hands out its decisions two to three weeks after oral argument.  Last week, almost two months after oral argument, the decision came down, and I really wasn't surprised to see that Allen's conviction was affirmed.

Interestingly, the "majority" opinion isn't; the author distinguishes J.L., while the other two find it indistinguishable.  All three agree, though, that the prejudice prong wasn't established:  even without the gun, the evidence was "overwhelming" (the lead opinion) or "sufficient" (the two concurring judges).

There are some quibbles with that.  The eyewitness' testimony is cited, but not her boyfriend's contradictory testimony.  The court focuses on Allen's statement to his father that "I just snapped," but the statement was made during a discussion between the two about the domestic violence incident, not the killing.

But the bottom line is that you're asking a court to not only reverse a conviction where the defendant is tied to the murder weapon, but to send the case back for a retrial without that evidence.  And that the court just wasn't willing to do.

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