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What's Up in the 8th

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The cop's on the stand, and the answers he gives are teres, but pointed:  the defendant was put in jail in February, and he's stayed there until the trial.  That's a no-no; you can't bring out the fact that the defendant's in jail, because the jury might draw the inference that he's there because he's unusually dangerous.  That's why jailed defendants come dressed for trial in street clothes, instead of the orange jumpsuits.  So this would certainly seem to provide a basis for appeal of the conviction, on grounds of prosecutorial misconduct.

Except it was the defense lawyer's questions which brought that out.

The defendant in the 8th District's decision last week in State v. Benitez raises that argument on appeal anyway, claiming ineffective assistance of counsel.  And so we are introduced to the doctrine of invited error; simply put, it "precludes a defendant from making an affirmative and apparent strategic decision at trial and then complaining on appeal that the result of that decision constitutes reversible error." 

A classic example of that is the case the court first cites, State v. Doss, which I handled.  Doss was hired by a convenience store to collect on bad checks, and developed a unique method of doing so:  posing as FBI agents, complete with blue jackets with yellow lettering, Doss and an associate would visit the home of the person who'd written the check and advise them that they'd be arrested if the check wasn't made good.  After the pair's arrest, Doss' associate had made a lengthy statement to police, unsurprisingly pinning most of the blame for all this on Doss.  This would normally require separate trials, under the Supreme Court's 1968 decision in Bruton v. US, which held that the introduction of a co-defendant's statement at trial implicating the defendant violated the latter's constitutional rights, since he had no opportunity to cross-examine the co-defendant.  The judge made Doss' attorney aware of this problem, but the attorney, for reasons known only to him and his god, not only agreed to a joint trial, but went on the record and specifically waived his right to claim a Bruton error on appeal. 

The court in Doss spent about 18 seconds disposing of my argument that this constituted ineffective assistance of counsel -- the opinion is a mere 10 paragraphs -- and given the record, that's probably the correct result; this wasn't a case where the defense attorney simply didn't recognize a Bruton issue.  There remains a slight opening here, though.  In Doss, the court held that the decision to waive the Bruton issue "involves the exercise of trial strategy, and the courts have repeatedly held that an appellate court will not question matters of trial strategy."  That's not entirely correct; you can find cases which hold that a trial strategy can be so flawed in formulation or execution that a tenable claim of ineffective assistance can be made.  Whether that was the case in Doss, it certainly wasn't in Benitez:  Benitez was charged with violating a protective order granted to his ex-girlfriend, which is why he'd been in jail for the past three months; the defense theory was that she'd done this to get him out of the way so she could be with someone else.

The court's work in State v. Gaston is more problematic.  Gaston and his girlfriend were playing pool in the recreation room of the Riverview apartments, with Glawacky next in line for a game.  An argument ensued between Gaston and somebody else, after which Gaston picked up two of the balls and walking into the hallway.  Glawacky chased after him, asking him to return the balls.  Gaston expressed his disagreement with this suggestion by hitting Glawacky twice in the face with one of the balls.

That was Glawacky's story, anyway.  Gaston's was that he took the balls to take to the security guard at the end of the hall to "straighten this out."  Glawacky entered the hall behind him and yelled, "you ain't nothing but a snitching mother-fucking bitch."  Gaston turned and said, "come say to that my face."  Glawacky took up the offer, charging Gaston and running into him, at which point Gaston struck Glawacky in self-defense.

That was Gaston's story, anyway, so imagine his dismay when the judge refused to instruct the jury on self-defense.

A defendant claiming the use of non-deadly self-defense has to show two things:  he wasn't at fault in creating the affray, and he had a reasonable fear of physical harm.  The court decides that Gaston's claim founders on the first element:  by taking the pool balls off the table so nobody else could play, by telling Glawacky to "come say that to my face," and then by waiting for Glawacky to come down the hall toward him, "although under Gaston's version of the events he did not throw the first punch, it is apparent that he was at fault in provoking Glawacky." 

To be sure, one does not have to throw the first punch in order to be the aggressor, and thus lose the right to self-defense; the court cites five separate cases for the proposition that "a person may not provoke an assault or voluntarily enter an encounter and then claim a right of self-defense."

But is that what Gaston did?  The cases cited by the court are not helpful to its decision; none involved a factual situation remotely like this one.  In most, the defendant had engaged in some deliberatively provocative act, such as following the victim into a parking lot to initiate a confrontation after an argument in a bar.  (In fact, in one of the cited cases, State v. Gillespie, the defendant, believing the victim had stolen from him, followed him to his mother's home, armed with a shotgun; the court nonetheless found that the judge had erred in not charging on self-defense.)

Gaston's act of telling Glawacky to repeat his slur to Gaston's face, and waiting for him as he approached, certainly cannot be deemed "provocative" to the point of forfeiting his right to self-defense when Glawacky instead charged him.  That leaves taking the pool balls.  While that may have exhibited poor sportsmanship, it seems a stretch to argue that this also sufficed to make Gaston the "aggressor."

So it's the wrong result, by why am I making a big deal about an obscure case?  You get the sense that the court didn't believe Gaston, and that's probably for good reason.  His story doesn't hold up well, especially his denial that he hit Glawacky with the balls, a claim that is wholly inconsistent with the damage Glawacky suffered.  The judge probably didn't believe him, either, which is why he didn't instruct on self-defense.  But it's not the job of the judge -- trial or appellate -- to weigh credibility in determining whether to give an instruction.  If the evidence raises it, give it, and then let the jury figure it out.  That's their job.

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