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8th District Roundup

There's ineffective assistance of counsel, and then there's really ineffective assistance of counsel.  My Cousin Vinnie was a great movie, but life doesn't always imitate art, as Charles Dobson learned to his sorrow.

Dobson and two other masked men -- neither of which, apparently, were the Lone Ranger -- were alleged to have broken into a home and beaten and robbed the occupants.  Dobson experienced problems with his attorneys;  his first one withdrew, and Dobson fired his second one before finally settling on retained counsel more to his liking, in the person of his sister, who'd just been admitted to the bar three weeks before trial, and another lawyer whose prior trial work consisted of "assisting" an attorney in two felony trials.  Showing uncanny prescience, the state moved before trial to disqualify the attorneys, arguing that "if there is a conviction, we would have an automatic reversal for ineffective assistance of counsel."

Well, not quite automatic, but close enough.  Dobson is convicted and given 60 years, and the appellate court, in State v. Dobson, surveys the wreckage, limiting itself to the "most egregious" of the twenty claimed instances of ineffective assistance.  That's quite enough, thank you.  Start with counsel's belief "that because there was no conspiracy charge in the indictment, if reasonable doubt existed as to which masked man defendant was, he could not be convicted," a position, the court notes, that "is not the law in Ohio," or just about anyplace else on this planet.  Then there are things like not asking to bifurcate the weapons disability charge, not cross-examining the alleged victim on her four prior felony convictions and her numerous mental health diagnoses, and attempting to use a peremptory challenge after the jury had been seated.

So back it goes, the concurring opinion noting that the trial judge has numerous weapons at its disposal in combating such an event:  it can discharge counsel, or even declare a mistrial.  Of course, if the judge guesses wrong on the first, it's reversal for denial of counsel of defendant's choice, and if on the latter, it results in double jeopardy forbidding retrial.

You're defending a case in which the victims point to your guy as the shooter, you announce in opening statement that you're going to show your client acted in self-defense, and then are nonplussed to find that all of the victims have suffered a memory lapse and can't identify who shot them.  In State v. Scales -- the "other brother" involved in the Tattoo Party Gone Wrong shooting highlighted last week -- the defendant argues that his lawyer was ineffective for abandoning the self-defense argument.  What was the lawyer to do?  Try to establish in cross-examination that the victims really could identify the defendant, but that he'd acted in self-defense?  The court affirms, finding that abandonment was a legitimate -- really, the only -- trial strategy at that point.

There's a temptation here to suggest that the real lesson is not to say much in opening statement.  Normally, that's a wise tactic, but I'm a firm believer in the theory that trials are a duel of competing narratives, and if the jury can't figure out what yours is, you're in trouble, especially with something like self-defense, where the defendant has the burden of proof.  The real lesson here is, you never know.

Assistance of counsel also plays a part in two civil cases.  In Kolick & Kondzer v. Baumanis, the defendant hired the plaintiff after being fired as a nurse.  They won her unemployment compensation claim, and also investigated a claim of wrongful discharge, ultimately advising her not to pursue it.  For all this they billed over $31,000, or almost four times what she'd received in unemployment benefits, and then sued her for the balance of $9,000 in fees she owed.  (With little sense of irony, the suit included a claim for unjust enrichment.)  Alas, Boumanis represented herself, and screwed up her responses to discovery and summary judgment.  After noting that the firm charged "what appears to be excessive fees," the court nonetheless affirmed, noting that pro se parties are held to the same standards as attorneys.

In fact, a higher standard than the original plaintiff's attorney in Render v. Belle, who'd managed to get the case dismissed by not showing up for case management conferences and pretrials, not answering discovery, and... well, basically, not doing anything.  The trial court dismissed the case with prejudice, but the appellate court reinstates it, deciding that in this case the sins of the attorney will not be visited upon the client.

Last, we come to the case of State v. Fortson, where the court affirms convictions for rape and sexual battery after an investigation revealed that Fortson, a prison guard at Northeast Prerelease Center, a minimum security state prison for female offenders, had used his position to engage in numerous sexual offenses against inmates.  The appeal cites 12 assignments of error; buried in this litany of woe is admission of "other acts" testimony.  The state had made extensive use of this, including surveillance tapes showing that "defendant spent unauthorized time in an inmate's room, bringing her coffee and dancing for her, which is against NPC's policy."  (And I'll bet you didn't even know that NPC had a policy about guards' dancing for inmates.)  The majority finds all this permissible, on the basis that the reference to Fortson's sexual banter and advances, while not criminal, demonstrated his modus operandi, and evidence of his falsification of his work logs proved opportunity:  if he wasn't where he said he was, this meant he had more opportunity to sexually assault inmates.

The problem with much appellate analysis is that it tends to view events in a vacuum, and the dissent by Judge Stewart makes an excellent case that that's exactly what happened here:  in 15 pages, Stewart convincingly demonstrates that none of the evidence was really admissible under the proposed theories, and that "the state's use of the other acts in the form of inmate testimony and altered log books was so pervasive that the jury could not have been expected to differentiate between acts of charged conduct and acts of uncharged conduct," especially given that counsel failed to ask for a limiting instruction.  By any account, Fortson was a boor, and he may well have used his position to gain sexual advantage over his charges.  But he also may well not have had a fair trial.

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