Sunday, June 8, 2014

Risky Business

In re Lowry, 2013 VT 85

By Andrew Delaney

As a general rule, post-conviction-relief (PCR) complaints based on ineffective assistance of counsel can be tough sells. In prison, “everybody” is an amateur lawyer, and “everybody” got screwed over by his or her trial lawyer. It’s easy to be a Monday-morning quarterback. That certainly doesn’t mean that there aren’t legitimate gripes, but often it’s a take-it-with-a-grain-of-salt proposition.

The facts of this case don’t need any seasoning—trial lawyer probably made a mistake or three.

Here’s the deal: petitioner lived with his girlfriend (who later became his wife, then became his ex-wife and whom the SCOV, as will we, calls “witness”) and their two young children. Their infant daughter was hospitalized with head-trauma injuries. Petitioner “was charged with two counts of first-degree aggravated domestic assault for allegedly causing the child’s injuries.”

Petitioner’s lawyer “wanted to highlight that other people had access to the child and could have injured her” to raise reasonable doubt. More specifically, petitioner’s lawyer wanted witness to claim her Fifth Amendment privilege against self-incrimination so that the jury might think witness caused the injuries and petitioner wasn’t involved. Lawyer discussed this plan with petitioner and witness in a pretrial meeting and suggested witness discuss the idea with her own lawyer.

She did. And instead of exercising her Fifth Amendment privilege, she testified for the prosecution and disclosed the plan. Regarding the proposed tactic, she “explained that she thought that petitioner had hoped this tactic would make him appear innocent.”

Petitioner’s counsel objected to the testimony on attorney-client-privilege grounds and was overruled. Then he pretended it didn’t happen—no cross-examination on the matter and didn’t address it in closing argument. The prosecution, however, highlighted it and argued “that witness’s testimony revealed that petitioner had tried to manipulate the process because he knew he was guilty.”

Ouch. Ouch, ouch, ouch.

Not too surprisingly, the jury found petitioner guilty and he got five-to-fifteen years to serve.

So, petitioner filed for post-conviction relief, arguing that his lawyer messed up by first proposing that witness invoke the Fifth Amendment privilege; and second, by failing to cross-examine or deal with it in closing. I’ll buy that.

But the judge didn’t. The State moved for summary judgment and the trial court found a number of things supported the same, even though petitioner with his response included an affidavit from an experienced criminal-defense attorney, basically saying, “Yeah, trial counsel messed up.”

In a nutshell, the trial court concluded that trial counsel was obligated to follow the strategy if that’s what petitioner wanted; the strategy was reasonable; not to cross-examine was reasonable; and that witness’s testimony was too vague and ambiguous to establish the likelihood of a different outcome without it. So, uh, yeah, petitioner appealed.

The SCOV notes that we’re in the no-deference zone. Summary judgment is reviewed using the same standard as the trial court. First, it looks at whether there are any genuine issues of material fact; then it looks at whether any parties are entitled to judgment as a matter of law. The SCOV specifically mentions that its review of the questions of law is “plenary” and “nondeferential.” We ain’t playin’ around here.

Petitioner argues that there was a genuine question of material fact as to “whether and to what extent counsel anticipated risks and adequately advised petitioner before proposing the contested strategy.” Petitioner also argues that there’s no support in the record for the trial court’s counsel-had-to-do-what-petitioner-wanted-even-if-it-was-bad-for-petitioner rationale.

The SCOV frames the issue, more or less, as whether the facts “viewed in the light most favorable to petitioner, demonstrate that counsel’s conduct was reasonable and any errors did not prejudice the outcome at trial.” Here, the SCOV concludes both that there are factual disputes and that there was a potentially different outcome had trial lawyer not made mistakes.

In this regard, the SCOV “cannot conclude as a matter of law on the basis of the undisputed facts in this record that counsel’s performance fell within the broad bounds of professional reasonableness or that any errors did not prejudice the proceeding.” The SCOV notes that there is in fact a significant dispute over whether counsel anticipated the consequences of the proposed strategy or whether counsel adequately informed petitioner of the potential consequences. While a defendant is entitled to make certain tactical decisions, he or she should only do so after full consultation with counsel.

What this means is that the trial court screwed up by concluding as a matter of law that counsel’s performance was objectively reasonable, and hung its hat on counsel’s duty to abide by some of defendant’s strategic decisions. The SCOV notes that the record does not indicate that it was defendant’s decision anyway. “The court’s unsupported inference that petitioner directed the strategy was in error.”

The SCOV notes that trial courts don’t get to try factual issues on summary judgment motions. Here, the SCOV reasons that “the facts surrounding counsel’s anticipation and disclosure to petitioner of the risks associated with the strategy are neither clear nor undisputed” and need to be tried.

Petitioner’s expert opined: “Outside of a television script, this strategy was doomed to failure.” The SCOV reasons that the it-never-was-implemented-so-no-haram-no-foul reasoning of the trial court is flawed—the result of the proposed strategy is that witness testified for the State and it made it look like petitioner was trying to hide something.

The trial court also failed to consider two very key things in reaching its conclusion: (1) the State’s closing argument that made full use of witness’s defendant-was-trying-to-shift-the-blame statement; and (2) petitioner’s expert’s opinion that witness’s testimony was the most-damaging evidence and testimony in the trial and showed a guilty mindset on petitioner’s part.

The SCOV thus reverses the trial court and sends this one back for an evidentiary hearing.

Look, we all make mistakes. And to be fair to trial counsel, had the strategy played out exactly as imagined, we’d be calling it a “truly brilliant” trial strategy. But it backfired into a situation that—to borrow an Army acronym—was FUBAR. It was the trial-strategy equivalent of playing with dynamite. On some level, even with all due deference, the trial court should’ve seen that.

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