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The right to counsel

It wasn't the worst case of ineffective assistance I'd ever seen, but it was a close second.

The worst was about five years ago.  The defendant was charged with gross sexual imposition and kidnapping, and the evidence was pretty shaky.  He got convicted, though, and was sentenced on the kidnapping charge; with the sexual motivation specification and the victim being under 13, that meant a sentence of 10 to life.

I got the appeal.  I won't go into the gory details about the ineffective assistance claim I raised, but during the oral argument, one of the judges said, "I'm sure none of us would want a lawyer like that representing us."  As I've said before, you can't tell what's going to happen from oral argument, except when you can.  The day after the argument, the judge granted a petition for post-conviction relief I'd also filed.  The defendant pled out to abduction, and was sentenced to time served.

This was almost as bad.  The defendant was charged with raping his sister-in-law, orally and anally, when she was eight and nine.  It was certainly a defensible case:  she hadn't reported it until six years later, and a first trial resulted in a hung jury.  The defendant, whom we'll call Arthur, had run out of money to pay the first lawyer, so he hired John Frenden.

He decided to go with what we in the Law Biz call the Big Dick defense:  that the defendant's engorged member is so massive that insertion in the girl's anus would have left lasting damage.

I've seen it used before, and maybe it's been effective, but rarely so.  First, there's the fact that even the anus can stretch, and the likelihood of there being evidence of penetration years later is minimal.  Secondly, it doesn't exactly play well with a jury.  You're probably getting a little uncomfortable reading this.  Imagine how you'd feel if you were sitting on a jury and heard Frenden ask Arthur's wife these questions:

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

A. Yes.

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

 A. Yes.

Q. Being married to Arthur 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?

           PROSECUTOR:  Objection, your Honor.

           THE COURT: I'm going to sustain it. I don't see where you're going with this.

           MR. FRENDEN: I'll retract.

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

That was only a small part of Frenden's work.  He examined one of Arthur's ex-girlfriends about whether the two engaged in anal sex, only to have the judge express his "absolute bafflement" that Frenden was bringing out "sexual behavior that is consistent with what the victim is alleging." 

And then there was Frenden asking the social worker and the police officer if they believed the victim - testimony that would have been barred if the prosecutor asked about it - and unsurprisingly eliciting affirmative answers. 

And then there was Frenden calling Arthur as a witness, only to have the judge learn that Frenden had never explained Arthur's 5th Amendment rights to him. 

And then... but you get the idea.

Or course, you wouldn't have been sitting on the jury.  There was no jury; this was a bench trial.  That fact doomed Arthur.  If this would've been a jury trial, the judge would have declared a mistrial in a heartbeat.  But it wasn't, and that's why the court of appeals affirmed Arthur's conviction:  the evidence was sufficient, and the judge could disregard the inflammatory aspects of Frenden's defense.

There are some things about the case that lead me to think that there could be a reasonable disagreement as to whether the result was wrong.  And, after all, it was a bench trial, and I have great respect for the fairness of the judge who tried it. 

But there's a certain point where the process goes so far off the rails that whether the result is correct becomes irrelevant.  I believe this was one of them.  Maybe the evidence was such that even a competent lawyer would've been unable to shake the victim's testimony, or present a reason why she would have lied about it.

We'll never know.

A couple of weeks ago, the court of appeals rejected Arthur's appeal of the denial of his petition for post-conviction relief, saying that the same arguments about ineffective assistance had been raised in the appeal, and were res judicata.

The same week, John Frenden was disbarred by the Ohio Supreme Court.  Not over this.  But it could've been.


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