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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Meaningful adversarial testing

There are a variety of criminal defenses which defendants vigorously pursue, with little record of success.  One is the belief that the jury will discount their criminal history if they take the stand and explain that in all those other cases, they pled guilty because they were guilty, and in this one they're going to trial because they're not.  Another is the claim that nobody would be stupid enough to consent to a police search of their person knowing drugs would be found, or commit a crime in front of plenty of witnesses who could easily identify the perpetrator, and so forth.

Yet another is the big dick defense.

This one, used in child rape cases, is what it suggests:  an argument that the defendant could not have had sex with the child because his member is so big the child could not have accommodated it. 

Which brings us to the 8th District's decision a couple weeks back in State v. Quinones

Quinones was charged with multiple counts of the rape, including the anal variety, of his wife's 10-year-old sister.  (The rapes were reported about seven years later.)  His defense was that this type of assault would be anatomically impossible.  Despite the legal problems with that argument which inevitably doom it -- penetration, however slight, is sufficient for completion of the crime -- defense counsel chose to pursue it, and in perhaps the most offensive way possible.

It began with the cross-examination of the social worker, with inquiries as to whether the victim said "if she screamed at all," or if "he used lube of any kind."  It reached full crescendo with the cross-examination of the by-now ex-wife:

Q. Do you know what the charges against Andy are?

A. Yes.

Q. Anal sex and blow jobs; is that correct?

A. Yes.

Q. Being married to Andy for quite some time, did he ever pursue anal sex?

A. Did he pursue anal sex?

Q. Did he like it? Did you guys do it a lot?  Do you remember the first or second time it hurting?

Q. And was there lube involved?

Q. These are personal. I'm sorry.  Did you bleed?

It was topped off by calling a former girlfriend of Quinones for the defense and asking her to describe the size of Quinones' penis.  Then, after she testified that the two had not engaged in anal sex, we have this:

Q. Okay. And if Andrew -- actually, if Andy tried to have anal sex with you, can you tell this court how that would feel to you?

[PROSECUTOR]:  Objection.

Q.  Using your best guess.

Simply put, the trial was a train wreck.  In addition to this, we have the lawyer eliciting from the social worker, the ex-wife, and the detective that they all believed the victim.  As if further demonstration that criminal law was not the attorney's milieu, he asked for judgment notwithstanding the verdict at the close of the State's case.

The 8th District affirmed Quinones' conviction and 10-to-life sentence, and not without basis.  Much of the attorney's failings get swept under the rug of "trial strategy and tactics."  And one of the things I didn't tell you was that this was a trial to the bench, where the judge is deemed to have considered only admissible evidence; in fact, he stated on the record that he'd discounted the police officer's testimony about finding the victim credible and Quinones evasive.  (The latter was brought out by defense counsel in cross-examination.)

But one of the other things I didn't tell you is that this was the second trial.  The first was a jury trial, with a different lawyer, where the jury hung 6-6.  Given that, it's a little bit tough to swallow the panel's finding that there was no "reasonable probability that the outcome of the proceedings would have been different but for defense counsel's deficient performance." 

I wasn't at the trial, and I only have the transcripts to go by.  (One of the other things I didn't tell you was that I handled the appeal.)  Maybe the girl came across very credibly.  Maybe the jurors who wouldn't convict in the first trial got hung up on the late reporting or the lack of forensic evidence.  I don't really know.  The judge who tried the second case is a top-notch jurist, and he may very well have been able to separate the wheat from the chaff.

But there's a good quote from the Supreme Court's decision in US v. Cronic:

The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing...  [I]f the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated. . . While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators. 

The primary concern in a criminal case is the accuracy of the result; we don't want innocent people going to prison.  It's certainly possible, hell, I don't know, it may even be likely, that Andrew Quinones committed the crimes he was charged with.  But ensuring that the correct result was reached assumes that the procedure utilized in arriving at that result was fundamentally fair.  At a certain point, a trial goes so far off the rails that we cannot have any confidence in its outcome.  You can make a pretty good argument that Quinones' trial did, and that indeed the performance of his attorney resulted in little more than the sacrifice of an unarmed prisoner to gladiators.


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