The right to counsel is probably the cornerstone of our concept of due process.  The government won’t buy you a car, but if you get in trouble, it’ll pay for an attorney — not much, mind you — to make sure you have one.  If a judge screws up your confrontation rights, or just about any other one, the court will consider whether it affected the trial.  If you don’t have a lawyer when you should, though, that comes back automatically; it’s structural error.

That’s a recognition of the importance that a lawyer plays in a criminal case.  That’s not just a factor of money, although anyone familiar with the American justice system would readily agree that the man who said money can’t buy happiness never sat in a courtroom.  There’s a wide variety of skills among lawyers at all levels:  appointed or retained, young or old, male or female, black or white, defense lawyer or prosecutor.  And the difference in those skills sometimes means the difference between victory and defeat.  Not always; facts are facts and laws are laws, and if both weigh predominantly in favor of one side, there’s not much anybody can do about it.  But at the margins, yes, it makes a big difference.

Last week I might have taken an unfair shot at a lawyer, and a couple of weeks ago I missed an opportunity to congratulate a lawyer for a job well done, so today I’m going to make amends.

Last Thursday, I wrote about a couple of cases that came out of the 11th District on the stomping murder of a Kent State student back in 2009.  One of the defendants, Robert Kelley, had his convictions and sentence for murder affirmed; he’ll be lucky to be out in twenty years.  The other defendant, Adrian Barker, had his convictions reversed — he gets a new trial – because the trial court hadn’t given an instruction on lesser-included offenses of involuntary manslaughter, assault, and reckless homicide.  So why didn’t Kelley get his case reversed for the same reason?  Because his trial attorney hadn’t requested an instruction on lesser offenses.  He’d gambled on an acquittal, and came up empty.

I wrote that that was the kind of thing that could keep a lawyer up at nights, although, in fairness to me, I also pointed out that it could very well have been the the client’s decision.  But I’ve looked at it a bit closer, and it might be that there really wasn’t a decision to make.  It might have been that there was no basis for a charge on lesser-includeds for Kelley.

Remember what I said about not having the facts?  Here are the essential facts:  The state’s evidence is that while the victim, Kernich, and Kelley were squared off, Barker came running up from behind and sucker-punched Kernich in the back of the head, knocking him down, and that Kelley and Barker repeatedly kicking Kernich as he lay there.  Barker disputed both the fact that he punched Kernich and both defendants denied kicking Kernich, and there was some evidence supporting those claims.

So why would Barker be entitled to an instruction of lesser-includeds and Kelley not?  The jury could have concluded that Barker did punch Kernich, but didn’t participate in the stomping.  In that case, the jury could have concluded that Barker didn’t intend serious injury, let alone death, and found him guilty of one of the lessers.  But either a jury believed Kelley was involved in the stomping, which caused the death, or it believed that he wasn’t involved at all in any injury to Kernich; there was no middle ground, and no basis for a charge on a lesser.

A case of good lawyering was shown by the 8th’s decision a couple of weeks back in State v. Arguelles, which I discussed here.  The court affirmed the trial court’s ruling that the police didn’t have a reasonable basis for detaining  or arresting Arguelles, and thus his statements had to be suppressed.  The detention arose out of  a traffic stop, and the parties agreed that the trial judge could make his decision on the motion to suppress simply by looking at the police cruiser’s dash-cam video; no live testimony was proffered, although it seems there was audio on the tape as well.  This is what the trial judge found, based upon looking at the video:

At 1:25:19 [a.m.] the officer tells the defendant that he is free to leave but then begins to ask permission to search the interior of the defendant’s car. The defendant does not agree to allow the search and the officer continues to press the defendant to allow him to search the car. The officer begins to place handcuffs on the defendant at 1:25:55 [a.m.] and continues to interrogate the defendant. It was not until 1:27:00 [a.m.] that the officer advises the defendant of his Miranda rights.

What you find elsewhere in the opinion is that at 1:25:55, thirty seconds after the encounter begins and just before Arguelles is put in handcuffs, he admitted to the officers that he’d smoked a “blunt.”  And no, that’s not a cigar.

I know both the prosecutor and the defense lawyer in this case.  I have no idea what actually happened, but what I’m guessing is that the defense lawyer is the one who suggested having the judge decide the case solely on the basis of looking at the videocam footage.  And I’m guessing that the prosecutor, who at that point was fairly new and inexperienced, agreed because when you’re juggling forty or fifty cases you’re going to take the easy way out, especially if it means not having to mess around with subpoenaing your officers and hoping that they show up.  (As I mentioned in my Friday post, I got a very nice plea bargain in a case last week because the police officers didn’t respond to the state’s subpoenas.  One had been in court the day before, when we picked the jury, and simply didn’t come back the next day.)

So what’s the big deal?  Think about it for a minute.  When one party has the burden of proof, who benefits from the absence of testimony?  That’s right, the other party.  If I’m a plaintiff trying to prove a case, I’m not trying to decide how to present enough evidence to prove my case:  I’m going to put in all my evidence, and trust that it’s enough.

Would the defense have benefited from the actual testimony of the arresting officer?  It could’ve; it could have enhanced its case if the officer came across on the stand like the type of person who would try to bully somebody out of not exercising his constitutional rights. 

But what if the officer had testified — and I think this is the much more likely scenario — that when Arguelles came up to the car, he reeked of marijuana smoke, his pupils were dilated, and he was obviously under the influence of drugs.  That’s why the officer started asking him for permission to search the car, and the officer would clearly and unequivocally state that it would’ve been an abdication of his responsibilities as a law enforcement agent and, indeed, as a citizen to allow Arguelles to get in that car and drive away.  Do you think that might’ve made a difference to the trial court and to the court of appeals panel in deciding whether there was a reasonable basis for detaining Arguelles?

A nice job of lawyering.