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Strategy and Tactics

Ineffective assistance of counsel claims get a pretty good workout in appeals, but they're rarely successful.  Oh, sure, every now and then there'll be a major screwup, like failing to file a motion to suppress that would obviously be successful. 

But the more usual result will be that the court will recite the Strickland test -- that the defendant has to show that counsel's performance fell below accepted norms, and that he was prejudiced thereby -- go into how attorneys are presumed to be competent, chalk up any argued error as "trial strategy," talk about how the appeals court must defer to counsel on those matters, and call it a day.  It's pretty unusual to see an appeals court reverse a conviction for something that clearly falls within the ambit of trial strategy or tactics.  It's highly unusual to see an appeals court do that twice in three weeks.  That's just what happened in the 8th District's decisions in State v. Moore and State v. Williams, both of which reversed rape convictions because the court determined that trial counsel screwed up.

The deficiency in Moore was a failure to object on two key occasions.  The first was on the cross-examination of the defendant, as to why he waited a month to make a statement to the police.  He testified that he was waiting for his attorney to return to town from other business.  More problematically, this came perilously close to questioning the defendant about his pre-arrest silence.  Normally, that's a violation of the defendant's right against self-incrimination, but there's an exception:  pre-arrest silence can be used to impeach a defendant if his statement at trial is inconsistent with his silence.  Say, for example, that a client testifies at trial to an alibi or claims that he was acting in self-defense, but made a statement to the police in which he didn't claim either, or even failed to make any statement to the police; it's appropriate for the prosecutor to ask why he didn't tell the nice detective about those claims when he first had the opportunity to do so.

But here, as the court notes, there was no inconsistency:  While acknowledging that he'd had sex with the alleged victim when first contacted by the detective with the accusation, Moore denied the rape and contended that the sex was consensual, a claim he repeated when he made the formal statement a month later.

Defense counsel didn't object to that, nor to the admission of all the police report and the victim's statement.  The trial judge, although indicating it was unusual to do so, agreed to the prosecutor's urging admission because both the report and statement had been used extensively during the trial, and had been marked as exhibits; the defense attorney voiced no objection to this, despite the fact that, as the panel notes, they were clearly hearsay.

That leads to the basic problem with the court's analysis in Moore.  The risk with the admission of the documents is that the jury would use the report and statement, rather than their recollections of the testimony, in determining guilt.  That risk would be greatly heightened if there was a substantial difference between the victim's testimony at trial and what was contained in the report and statement.  The court's opinion makes no mention of this, nor of how the cross-examination of the defendant on the silence issue might have impacted the trial.  (Although the latter, especially the prosecutor's highlighting of the defendant's hiring of an attorney, seem particularly unfair.)  In short, the court makes much of Strickland's first prong, the deficiency of counsel's performance, while giving relatively short shrift to the question of how Moore was prejudiced by it.

The obverse of that occurs in Lopez, where the counsel, in his cross-examination of the police officer, elicited that his client had told the detective that while he hadn't had sex with the victim, he had had "sexual contact" by "feeling her up."  The state promptly exploited this tactic:

On redirect, the State responded by presenting evidence of Williams's prior felony conviction to impeach him. Thus, Williams's trial counsel opened the door to the State's introduction of Williams's prior felony conviction.

I'm sorry, but I read that three times, and I still don't understand how questioning the detective about the sexual contact opened the door to allowing the use of Williams' prior conviction to impeach, when he never testified at trial.  The court's opinion doesn't explain that, nor does it mention the nature of the conviction.  (In the dissent we learn that the conviction was for gross sexual imposition, and that the trial court didn't let the jury know that; the prosecutor was only allowed to mention that it was a felony conviction.)  We do know that counsel failed to request a limiting instruction as to the use of the felony conviction, and failed to object to the blatantly prejudicial use of that in closing argument by the prosecutor, which basically told the jury that Williams' prior conviction could be used as evidence of his guilt.  (Again, though, in the dissent we find out that the prosecutor's comment that "Williams is a felon" was in response to defense counsel's claim in closing that Williams "is not a criminal.")

That was bad enough in the court's eyes, but the coup de grâce was the failure to request a charge on the lesser included offense of gross sexual imposition, a 4th degree felony as opposed to rape, a 1st degree felony.  To the court, the only purpose of asking the question of sexual contact was to establish sufficient evidence of GSI to warrant a charge on that.  To open the door to damaging evidence for the sole apparent purpose of seeking a charge on a lesser included offense, and then to not request a charge on that offense, was inexplicable.

An explanation is proffered in the dissenting opinion, which cogently argues that the purpose of cross-examining the detective on this point was not to prepare the groundwork for an instruction on GSI, but to establish that Williams had cooperated with the police, and had engaged in consensual sexual contact normal to a "boyfriend-girlfriend" relationship.  Indeed, asking for a lesser included instruction would have been antithetical to the defense's theme of consensuality.  And this decision -- the "all or nothing" defense -- is the very epitome of a trial strategy which the appellate courts should be very wary of second-guessing.  In fact, there are court decisions, like this one, which hold that the decision of whether to seek an instruction on a lesser-included offense is almost invariably a question of strategy, immune from review for ineffective assistance. 

That's not to suggest that either decision is wrong; as in most cases, legitimate arguments can be made both ways, and frankly, it's refreshing to find a case, let alone two, where the courts aren't willing to shrug off even the most egregious error and sweep it under the rug of "trial strategy."  (Exhibit "A" in that regard would be State v. Gonzaleza 6th District decision last year in which the court concluded that it must have been defense counsel's trial strategy to pursue total acquittal on a 4th-degree felony charge of assaulting a police officer, rather than request an instruction on lesser-included offense of disorderly conduct, a minor misdemeanor.) 

Unfortunately, the two decisions provide little guidance, and little precedent, for future such claims, simply because the cases are so fact-specific.  And the key fact in both is that they were date rape claims, which both courts described as "he said -- she said" cases with no corroborating evidence.  In a case like that, any misstep is going to be magnified.

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