Mimesis Law
27 September 2020

Trial Strategy And IAC: Conception And Execution

September 29, 2016 (Fault Lines) — Ineffective assistance of counsel (IAC) cases are notoriously tough to win. The reason for this is pretty simple: the burden of proof is shifted. It’s not on the prosecution to prove that the defendant committed a crime. IAC comes after the damage is done.

As the defendant is already convicted, it’s up to the defendant to prove* not only that his attorney screwed up badly enough that the court should give him a new trial; but also that but for the screw-up, things would likely have turned out differently. That second prong is a bear, leading to surreal pronouncements like this from Muniz v. Smith:

This alleges only that Muniz’s attorney was asleep for an undetermined portion of a single cross-examination. The record shows that Muniz’s attorney was not asleep for the entire cross since he objected near the end of the questioning. This is especially significant, given that the total cross-examination was fairly short, spanning only 26 pages of trial transcript. Muniz’s lawyer therefore must have only been asleep for a brief period.

Muniz also raises a related ineffective assistance of counsel claim that asserts his attorney was ineffective because he was using cocaine at the time of his trial. Muniz’s lawyer was arrested in July 2004 and charged on August 4, 2004, for possession of cocaine. This charge occurred approximately three weeks before he entered the case as counsel of record. Though counsel’s license to practice law was subsequently suspended, he was licensed at the time of the trial.

Muniz offers no evidence to show his attorney was using drugs during the trial. […] However, given the incredible strength of the case against him, he cannot show he was sufficiently prejudiced by these mistakes. This claim fails as well.

In other words, so long as your lawyer only catnaps during trial, and his drug use doesn’t involve coming back from the bathroom all twitchy with white powder on his nose, everything’s good!

The other usual dodge on IAC cases is “trial strategy.” This is a little bit more subtle, because there’s no one right way to try a case, and sometimes a decision to do (or not do) something really is a tactical decision. The Sixth Circuit just issued an opinion which held, essentially, that the “trial strategy” trope doesn’t hold up when the lawyer has a strategy but doesn’t execute it.

The case went like this: the defendant was charged with the aggravated murder of his mother, who had a history of physically abusing him. The defendant’s claim was that his mother was threatening him with a knife, to which he overreacted and beat and choked her even after she was no longer a threat.

The distinction between aggravated murder and murder turned on whether the defendant had acted with “prior calculation or design,” while the defense lawyer argued that the proper conviction would be for voluntary manslaughter, a killing that occurs while

“under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force.”

The trial court rejected that argument, and convicted the defendant of aggravated murder (it was a bench trial). The appellate found that aggravated murder wouldn’t hold up, and reduced the conviction to regular murder. Then things got interesting.

The defendant had been evaluated, and a defense expert suggested that the defendant was likely suffering from Post-traumatic Stress Disorder as a result of his mother’s childhood abuse. For some reason, the defense attorney didn’t turn over the expert’s report to the judge at trial, waiting until after the verdict was announced, so that the judge would have that information for sentencing.

The Sixth Circuit found that decision to be ineffective assistance of counsel:

The record establishes that Bruner’s decision not to present PTSD evidence was not sound trial strategy. Bruner was clearly aware of Reddy’s PTSD diagnosis; he obtained Dr. Fabian’s report before trial, and brought it to the court’s attention immediately after the court announced its verdict. It is also clear that Bruner thought Dr. Fabian’s report was important; he raised the issue unprompted. […] Given the defense that Bruner chose to pursue, there could be no reasonable strategy in presenting PTSD evidence at sentencing and not at trial, especially given that the same finder of fact—the state trial court—determined both guilt and the sentence.

In other words, Bruner’s strategy was to argue for voluntary manslaughter based on “sudden passion or fit of rage” brought on by his mother’s threat. He had the best possible evidence to advance that theory, the PTSD diagnosis (which the panel distinguished from evidence of a history of abuse).  And yet he didn’t use it, despite his trial strategy. The Sixth Circuit said that wasn’t okay, and ordered a new trial.

Outrages in IAC cases are pretty commonplace, so it’s worth noting that the Sixth Circuit actually looked at the facts of this case, and decided that effective counsel means that if you have a strategy, you have to execute it.

*In Strickland v. Washington, the Supreme Court held that the two=prong test for ineffective assistance of counsel was that “the defendant must show that counsel’s representation fell below an objective standard of reasonableness” and “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”


4 Comments on this post.

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  • John Kindley
    29 September 2016 at 6:23 pm - Reply

    Out of curiosity more than anything, is there a particular reason why my comment saying Strickland does not require a defendant to show that things “likely” would have turned out differently was shitcanned?

    • shg
      30 September 2016 at 5:31 am - Reply

      Fished this out of the spam folder. Never saw any earlier comment. I can only assume it was deleted as spam, but your comment wasn’t shitcanned.

      • John Kindley
        3 October 2016 at 6:05 pm - Reply

        That’s good to know. Thanks for the clarification. My lost post simply pointed out that Strickland itself said: “[W]e believe that a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case;” while in my limited experience a number of attorneys and judges who should know better misunderstand this important point, including, for example, the Indiana Supreme Court, which wrote in footnote 1 of its opinion in Helton v. State 907 N.E.2d 1020 (Ind. 2009) this supreme display of judicial gibberish: “Helton cites United States ex rel. Hampton v. Liebach, 347 F.3d 219 (7th Cir. 2003), for the proposition that ‘[e]ven if the odds that the defendant would have been acquitted had he received effective representation appear to be less than fifty percent, prejudice has been established so long as the chances of acquittal are better than negligible.’ Id. at 246. We are not confident that this is an accurate construction of the Strickland prejudice standard. Taken at face value, the ‘better than negligible’ Hampton test would appear to find prejudice based on a reasonable possibility that the petitioner would have prevailed at trial. But Strickland requires a reasonable ‘probability’ that the outcome of the proceedings would have been different. In any event, we reach the same result in this case under either the traditional Strickland standard or the Hampton formulation.”

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