I don’t care who it is, there’s never been a trial lawyer who’s lost a case and didn’t think, “What if I’d done this instead?  What if I’d asked this question, or not asked this one?  What if I’d made this argument?”  Any contest invites second-guessing by the loser.

For the most part, the questions are unanswerable.  It’s not like there’s another trial taking place simultaneously, where the other lawyer is doing the things that you don’t, and not doing the things that you do, and you can compare the outcomes and see how they were affected by the lawyers’ tactical and strategic decisions.

But what if there were?  That’s what happened in a couple of cases out of the 11th District on Monday, and the outcomes couldn’t have been more different, and couldn’t have been more dependent on the lawyers’ decisions.

Christopher Kernich died on the morning of November 15, 2009; he and several other Kent State students had gotten into a fight, and the evidence was that Arian Barker came running up behind Kernich and hit him in the back of the head, knocking him down, and Barker and Robert Kelly proceeded to kick Kernich while he lay on the ground.  Kernich suffered massive brain injuries, and was taken off life support six days later.  The grand jury indicted Barker and Kelly for two counts of murder — purposeful and felony murder — and felonious assault on Kernich and misdemeanor assault counts regarding two other people.  Barker also wound up with a tampering with evidence charge for trying to wipe blood off his shoe.  Both were convicted of the felony murder and felonious assault charges, which merged; Barker was convicted of straight murder (purposeful killing) and tampering as well. 

And that’s where our stories diverge.

State v. Kelly presents seven assignments of error, but the only one of real consequence is the first, regarding instructions on the felony murder charge.  Felony murder is a legal fiction:  it basically means that if somebody dies as a proximate result of your committing a violent felony of the first or second degree, you get tagged with the homicide.  You didn’t mean to shoot the victim of a robbery?  Too bad.  In fact, if the victim has a gun and shoots and kills your accomplice, you’re guilty of felony murder.

But take a closer look at that “proximate result” thing.  That’s a frequent concept in civil law, and introduces the element of foreseeability.  Go back to Palsgraf v. Long Island Railroad:  the train conductor wasn’t liable because, when he helped the passenger onto the train, there was no way for him to know that the package in the passenger’s hands contained fireworks, and that if the guard accidentally knocked the package out of the man’s hands, it would fall, explode, and cause some scales at the other end of the platform to fall over and strike the plaintiff.  So when the judge charges the jury on felony murder, part of that includes an instruction on foreseeability.

Unfortunately, the instruction is screwed up:

The test for foreseeability is not whether a person should have foreseen the injury exactly as it happened to the specific person. The test is whether under all the circumstances a reasonable careful person would have anticipated that an act or failure to act would likely cause some injury.

That would certainly be appropriate in a civil case, where “some injury” is all that’s required.  But, as the court notes, a murder prosecution is a different story; “the risk here is that the jury may be misled to think, with respect to the issue of foreseeability, that if the defendant simply intended ‘some injury,’ any resultant injury or death must be considered ‘foreseeable.’”  It would be preferable if it had been given as “where the risk of serious physical harm is present.”  In fact, that’s probably the way it should be given; way back in 1993 the Supreme Court stated that “the OJI foreeability instruction should be given most cautiously in future murder cases.”

Turns out it doesn’t matter, because, the court finds, there was no way the jury could have believed that Perry would be guilty if he only caused “some harm”:  the allegations and the evidence was such that the jury understood Perry could be convicted only if they showed he intended to cause serious physical harm.  So the conviction is affirmed, and Perry goes off to serve his life sentence.  He’s eligible for parole in 15, but he’ll probably do at least 20.

State v. Barker presents eight assignments of error, of varying significance; four of them, and ten pages of the opinion, are devoted to the tampering with evidence charge.  Barker also the same argument with regard to the foreseeability instruction, and adds some twists, but winds up in the same place:  the court concludes that, in the context of the evidence, it’s harmless error.  Arguments about the identifications various witnesses made of Barker are unavailing, too.

But Barker strikes paydirt with one assignment:  the failure of the trial judge to instruct on the lesser included offenses of assault, involuntary manslaughter, and reckless homicide.  And here’s why Barker is an extremely important case.  The trial judge found that Barker wasn’t entitled to an instruction on lesser offenses because he was denying the he was the person who struck or kicked Chernick, and there’s truckloads of law supporting the proposition that you can’t get a charge on a lesser offense if your defense is inconsistent with that:  if you’re claiming self-defense, you can’t ask for a charge on accident.  The Barker court correctly notes that what you’re claiming isn’t the determinant of whether a lesser-included instruction should be given:  it’s what the evidence shows.  If “the evidence, viewed in a defendant’s favor, could reasonably support an acquittal on the greater charge and a conviction on the lesser,” the instruction on the lesser should be given.  The court goes through the evidence and concludes that a jury could have found that Barker threw only the initial punch, and didn’t participate in the beating; if so, a finding of guilt on any of the lesser offenses, even simple assault, would have been justifiable.  So Barker has to do the time for the tampering charge, but gets a new trial on the murder.  That’s a pretty good outcome.

Hold it, you say.  What about the instruction on lesser included offenses in Perry?  Did the appellate lawyer forget to raise that issue?  No.  The trial lawyer never asked for one.  In a newspaper article about the cases, he indicated it was a calculated decision:  “Our strategy was to ask for a straight acquittal.  We felt Ronald was innocent of everything.”

He didn’t say whose strategy that was, and that’s something to keep in mind.  Six months ago, I did a post on the subject of whether the client should be the one who decides on whether to ask for a charge on a lesser-included offense.  It’s my opinion that he usually should be, since he’s the one that has to suffer the consequences.  So it may very well be that the lawyer — who’s a good one, by the way — laid everything out for Perry, and Perry was the one who decided to go with the all-or-nothing strategy.

At least, I hope that’s how it went down.  Because I’d sure as hell hate to be the lawyer who told my client that he shouldn’t ask for a charge-down, with the result that his co-defendant is getting a new trial while by the time my client gets out of prison, he’ll be a “protected class” under the age-discrimination laws.