What's Up in the 8th
The average American spends a little over five hours a day watching television. Malik M. Al-Dor should watch more of it, especially crime shows. Criminal trial lawyers in Cuyahoga County are a sorry lot, at least according to criminal appellate lawyers. And one other thing we learn from the spate of decisions from the 8th District over the past two weeks - besides the fact that the number of them in 2013 declined by 13% over 2012 - is that New Year's is a more... um... challenging holiday than Christmas: the court spewed out 19 decisions the day after St. Nick's visit, but mustered the strength to dispense only one the day after the ball fell on Times Square. Make of that what you will.
Several years ago, I got drawn into a conversation on an elevator between a lawyer friend of mine and her client. The client was resisting her advice to take a plea deal, because a successful defense would require his testimony, and in doing so the jury would learn of his four prior felony convictions. "But I got an explanation for that," he insisted.
"Yeah, lemme guess," I said wearily, "you're going to tell the jury that in those other cases you pled guilty because you did it, but this time you're pleading not guilty because you didn't do it."
"That's right!" he said, smiling brightly.
"Yeah, well, the next jury that buys that routine will be the first."
The 8th District judges who decided State v. Holley should have been on that elevator. The East Cleveland police, not known for being an easy-going lot, responded to a disturbance call and found Holley enraged and intoxicated, and were assaulted by him before they finally managed to subdue him. Holley's witnesses told a different story, one in which Holley was docile as a lamb, and wound up being beaten and tasered for his troubles, but the jury unsurprisingly chose to believe the official version. The appeal claims that Holley's attorney was ineffective because in his direct examination of Holley he brought out Holley's felony convictions that were beyond the 10-year limit for impeachment. This is somewhat puzzling, since the panel notes that the conviction was in 2004. It proceeds to discuss the issue at length anyway, finding that even if the conviction was outside the range, it was a "reasonable trial strategy to disclose Holley's prior record in order to demonstrate for the jury that he admits his responsibility when he is guilty and was contesting the instant charges because he was not guilty." Yeah, sure.
Another court observation which conflicts with my personal experience comes in State v. Duncan. This claim of ineffective assistance was based on the fact that Duncan's lawyer told the jury in opening statement that the accusation against Duncan of burglary and robbery was a case of mistaken identity, but the lawyer then never called Duncan to testify to support the claim. Whether it was supportable was highly debatable. Duncan had been caught inside the home holding a jewelry box by the homeowner, and quickly bolted. The homeowner followed him to a neighboring house and called the cops, who arrived five minutes later, searched the house, and found Duncan hiding behind a dresser. The lawyer's explanation for this was that Duncan had approached the front door to the home to solicit work, just when the burglar happened to be fleeing the house, and the homeowner followed Duncan, not the burglar.
Duncan's claim that the lawyer rendered ineffective assistance by failing to call him founders on the fact that it was Duncan's right to testify, and unless he communicated his desire to do so to the trial court, he waived it; the trial court is under no obligation to inquire on its own. The panel further notes that Duncan must have understood this because he was evaluated for competency to stand trial, and found competent. If that were not enough proof, the panel finds, "Duncan demonstrated his competence by filing the pro se motion to dismiss his attorney." The more jaundiced practitioner might contend that there is an inverse relationship between competency and the desire to dismiss one's attorney.
The trifecta on the shoddy performance of attorneys comes via State v. Johnson, where Johnson claims that his counsel was ineffective in failing to file a motion to withdraw his guilty plea. But, as the court observes, it's not ineffective assistance in refusing to file a futile motion, and it's my observation that there are few motions more futile than one to withdraw a plea.
When defending a rape case where the defense is that the sexual conduct was consensual, the key is in coming up with a motive for why the woman would lie about it. The defendant in State v. Al-Dor had a potential argument there. According to the woman's testimony, she had snuck down in the basement with Al-Dor, who lived with his parents, to drink and smoke marijuana. She testified that after several hours, he raped her, then released her, whereupon she ran to the house of her boyfriend, who'd spent most of the night looking for her. The "she claimed rape to avoid trouble with her boyfriend" defense is a time-worn tactic, but a not infrequently successful one.
Not when the defendant denies to the police that any sexual conduct occurred, though. While inconsistent defenses and arguments are sometimes permitted by law, they're generally frowned upon by juries: they're not willing to accept the transition from "she was never in my house and I never touched her" to "yes, she was in my house and we had sex, but it was consensual." And that's exactly what Al-Dor did. Had he spent more time watching CSI, he might have been aware of developments in DNA, and the fact that police could find it in the victim's vagina. In fact, had he spent more time watching crime shows in general, he would've have known of the folly of making statements to the police in the first place, and wouldn't have given one in which he denied not only having sex with the victim, but that she'd never even been in his house. That gives the court an easy call on the manifest weight claim, the sole assignment of error: the defense of consensual sex "contrasts greatly with appellant's recorded statement that was played for the jury."