Wednesday, June 24, 2009

Botched trial "strategies" overturn criminal conviction

If a tree falls in the woods, does anyone hear it? If a habeas petition is granted but the inmate has already served his sentence, does it matter? The answer is yes.

The case is Wilson v. Mazzuca, decided on June 24. Wilson went to trial on a robbery charge. He was found guilty after a trial. But there were truckloads of problems with the trial, all of them the result of his lawyer's inexplicable strategies. The post-conviction proceedings took so long that Wilson actually served his 9.5 year sentence. But the habeas case is not moot. Wilson gets to clear his name.

What happened at trial? Many things. First, the prosecution's only witness did not show up for trial. When he finally testified, Wilson's lawyer asked him if he was afraid of Wilson. Bad question; the witness said yes, and that he was afraid of "reprisals." Now the jury thinks that Wilson is an intimidating man, precisely the kind of guy who would commit robbery.

Wilson's lawyer also made another mistake; in his opening statement, he attacked the reliability of the police investigation. Now, I don't try criminal cases, so I am not aware that this argument opens the door for the prosecution to show that the crime victim identified Wilson's photograph at the police station. Wilson's lawyer apparently did not know this, either. He learned the hard way when the prosecution asked the victim if he saw Wilson's "mug shot" at the station. This was bad. Mug shots imply guilt.

But it gets worse. The jury gets to see Wilson's photo as seen by the victim. The trial court said there was no way the jury would see the booking plate in the photo (it's the booking plate that makes the mug shot a mug shot). But Wilson's lawyer did not want a redacted photo. He insisted that the jury see the whole photo and nothing but the photo, booking plate and all. Not good for Wilson.

So what happens next? While cross-examining a police officer and detective, Wilson's lawyer "introduced an unredacted arrest report from Wilson's October 1994 arrest, which indicated that Wilson was arrested for 'attempted larceny (extortion), menacing with pipes ... and unlawfully entering a construction site." This was not the arrest report that resulted in this trial; Wilson was on trial for allegedly robbing someone in 1992. So what's going here? That's what the judge wanted to know. He asked Wilson if he really wanted to introduce this document, unredacted. Counsel said he wants it in. At this point, the jury has probably made up its mind. Wilson is vermin.

The judge was not sitting passive as Wilson's counsel was sending his client up the river. The judge put something remarkable on the record:

I am becoming increasingly disturbed and I’m going to put it right on the record, at some of the decisions apparently made by defense in this case and I’m not going to probe defense’s theories, I don’t know what defense has in mind, but I’m going to tell you right here and now, certain questions are being raised in my mind.

I understand that we have retained counsel. But so far, we have had an opening of the door on the investigation. We have had, although that I could see perhaps it was not anticipated but it happened, and it certainly should have been considered before the opening was made. That’s number one.

Number two, we had a questioning of the complaining witness as to why he didn’t come in which he elicited the answers, as much as I tried to delay it or prevent it, that he was afraid to come in, which was disastrous for the defendant.

Then we had the defense putting into evidence, the warrant and order and the ... supporting affirmation by the D.A., which again did not help the defendant.

Then we had several questions today that are going right into areas that I personally, as a defense lawyer, wouldn’t touch with a fifty foot pole.

I even found it necessary on my own motion, just a few minutes ago, to warn the jury not to draw too many conclusions from the mug book.

I have very serious problems with this case right now. The alarm bells are ringing in my head and I’m going right on the record. And the question concerns the representation of the defendant.

I’m sorry, there is no other way I can put it.

Wilson's lawyer forged ahead. He called a character witness for Wilson. The witness said that Wilson was a "role model for young adults." On cross-examination, the character witness admitted that she did not know that Wilson was convicted of drug dealing and that he was also convicted of a committing an armed shakedown at a construction site. And, oh yeah, the character witness did not know that Wilson was convicted of "snatching a gold chain and beating a woman in the face." Wilson's lawyer objected to this cross-examination, but the judge told counsel he should not have opened that door in the first place.

Let's wrap this up. The jury naturally found Wilson guilty. He exhausted his appeals in the state court system, and lost. He brought a habeas corpus action in federal court on the basis that he was denied effective assistance of counsel in violation of the Sixth Amendment. This is a difficult way to overturn a criminal conviction, but as you can imagine, the Court of Appeals (Cabranes, Walker and Raggi) agrees that Wilson got shafted. The Court of Appeals concludes, "none of the five errors identified by Wilson are justified by any strategy that [counsel] set forth at trial or at the July 13, 2005 [habeas corpus] hearing before Magistrate Judge Levy. The record indicates that defense counsel misinterpreted and misunderstood the law, failed to pay attention, acted recklessly, and did not appreciate the consequences of his decisions, even though in many cases he was explicitly warned of the risks by the trial court."

As the Court of Appeals thinks that counsel's deficient performance resulted in Wilson's conviction, particularly since the prosecution's relatively weak case rested entirely on an eyewitness identification made two years before trial, Wilson wins the habeas proceeding, and if the district attorney does not take active steps to re-try Wilson, then the conviction is overturned.

No comments: