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Two good decisions

So you're doing an appeal on ineffective assistance of counsel for failing to object to evidence at trial.  Or you're claiming that the judge shouldn't have admitted certain evidence in a bench trial.  Eager lad or lass that you are, you log on to your favorite search engine to begin your research.

And the first thing you learn is that there are a hell of a lot of appellate decisions saying that failure to object is a tactical decision which appellate courts won't review, and there are a hell of a lot of appellate decisions saying that a judge in a bench trial is presumed to consider only relevant, admissible evidence.

Over the past couple weeks in State v. Pawlak and State v. Schillo, the 8th District has written two opinions that don't say those things, and reverse convictions. 

Pawlak's tale of woe began with the grand jury indicting him on 26 counts alleging he fondled five girls who were between the ages of 10 and 12.  He went to trial and was acquitted of twenty-two counts, but that proved a most Pyrrhic of victories:  one he didn't beat was a kidnapping with a sexual motivation specification, and that meant he went away for ten to life.  Don't get fooled by the ten; try to remember the last time you saw the headline, "Child Molester Paroled." 

I got assigned the appeal, and it was pretty easy.  During the direct examination of Pawlak's ex-girlfriend -- and the mother of two of the children he was accused of fondling -- the prosecutor led her through a series of questions which ultimately elicited from her that she broke up with Pawlak because he was sleeping around, and that the ages of the girls he was sleeping around with were 22, 17, 17, and 15.  The 8th agreed the failure to object to that was ineffective assistance of counsel, and reversed for a new trial.

Any claim of ineffective assistance is highly fact-dependent, but Pawlak's a good decision -- and a well-written one -- because it runs against the grain.  Probably the critical factor here was that this wasn't just a single question or answer, it was an extended colloquy; it took eight questions to elicit the 15-year-old's age.

And that's the way the law should look at it.  If you're sitting in trial and a witness blurts out something that's damaging, you might decide not to object, for fear of highlighting the evidence.  But if you just zone out, or you don't understand your case well enough to realize that when your thirty-year-old client is charged with fondling twelve-year-olds, you don't want the jury to hear that he's sleeping with a fifteen-year-old, well, I'm sorry, that's a bad job.

Schillo will have much broader legal significance.  Schillo, a local business owner, and his wife went out for dinner and drinks in Cleveland with four other couples one November night.  On the way back over the Carnegie Ave. Bridge, Schillo ran down a bicyclist, who was left a quadriplegic.  The evidence at Schillo's trial for aggravated vehicular assault was muddied; the other participants at the dinner testified that Schillo didn't appear to be intoxicated at any point, and there was even some uncertainty about that on the part of the cops. 

But during the cross-examination of the detective, he said that he'd received an anonymous letter during the investigation.  This hadn't been disclosed in discovery, and the defense asked to see it.  The prosecution went one better:  during re-direct, it had the detective read the letter, and the judge later accepted it into evidence.  The letter was devastating:  it was obviously from one of the participants of the dinner, and claimed that Schillo was "extremely intoxicated" that night, and the letter-writer was coming forward -- albeit anonymously -- to ensure that justice was done.  Schillo was convicted, and the judge imposed the maximum five-year sentence.

The admission of the letter is wrong on so many levels, but there was problem.  This was a bench trial.  Actually, there's some good case law for Schillo here:  a few years back, in In re C.T., the 8th reversed a delinquency adjudication because the judge had improperly admitted 404(B) evidence.  The court essentially held that where the judge admits the evidence over objection, that overcomes the presumption that the judge considers only admissible evidence:

when the juvenile court admits evidence over an accused juvenile's objection, it is counterintuitive to conclude that the juvenile court would then proceed to disregard that same evidence as being irrelevant, immaterial, or incompetent when rendering its judgment. If that were true, the juvenile court would have been bound to sustain the defense objection and exclude it in the first place.

Schillo extends that in a couple of ways.  First, C.T. probably didn't get much play because it was a juvenile case; Schillo's a felony case.  Second, the judge's "admission" was a bit more ambivalent in Schillo.  At one point during the discussions about the letter, the judge had said "there's no jury here," and you could certainly interpret that as saying, "let me see it and I'll make up my mind what to do with it," which would clearly fall within the presumption.  That was largely countered, though, by the judge's admission of the letter as an exhibit.

And Schillo is significant for another reason.  Sometimes how a court says something is as important as what it says, and here's the money quote from Schillo:

with all due respect to the various trial judges who sit as the trier of fact in countless cases each year, the fact that a defendant forgoes a jury trial is hardly an excuse to give the state free rein to admit any and all evidence on the presumption that the trial court will separate the wheat from the chaff.

So get back to your brief.


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