How and when to present an ineffective assistance of counsel claim

April 17, 2013

Wednesday, April 17, 2013

Good afternoon to all.

Searching Mind has asked a series of good questions in comments to my article yesterday regarding whether a defendant can raise an ineffective-assistance-of-counsel claim (IAC) on direct appeal. Xena also asked me to discuss the experts I would contact about the case. I will not identify anyone by name, but I will mention the subject matter that I would want to discuss with an expert suitably qualified in that area.

First, let’s take a look at whether an IAC claim can be raised on direct appeal.

I agree with Searching Mind that IAC claims can be raised on direct appeal, if the record unequivocally supports the claim such that there are no disputed material facts and therefore no need to remand the case to the trial court with instructions to conduct an evidentiary hearing to resolve disputed facts. This is equivalent to saying that the DCA can decide the issue as a matter of law on a set of undisputed facts.

This situation does not happen very often. For example, one of the elements of an IAC claim requires a defendant to plead and prove the standard of practice at the time the alleged error was committed by defense counsel. The defendant also must plead and prove that defense counsel violated that standard, that the violation was material and not merely a tactical decision. In most cases, the parties dispute one or more of those issues and the DCA cannot determine whether the defendant has a valid IAC claim by reviewing the transcript on appeal. The answer isn’t there.

Therefore, the rule is the DCA will not review an IAC claim on direct appeal when material facts are disputed, the answer is not in the record, and the disputed facts cannot be resolved without an evidentiary hearing.

Every rule has an exception and the exception to this rule is that the DCA will consider an IAC claim on direct appeal when there is no genuine dispute of material facts and the DCA can resolve the claim as a matter of law.

Now let’s take a look at the defendant’s case and assume that O’Mara does not file a motion asking Judge Nelson to find the defendant indigent and authorize the appointment and compensation at public expense of an investigator and such experts as may be reasonably necessary to assist defense counsel in presenting a defense.

Let’s further suppose that O’Mara does not call any expert witnesses and the jury convicts the defendant.

Can the DCA decide an IAC claim on direct appeal?

Answer: Probably not, because an evidentiary hearing would have to be conducted to determine if the outcome of the trial probably would have been different, if the defense had presented the testimony of certain expert witnesses, who I am assuming would exist for the purpose of this demonstration. The identities of those witnesses and their testimony would not become known unless habeas counsel did what O’Mara did not do.

Under this set of circumstances, the IAC claim would have to be raised in a state habeas petition after the conviction was affirmed on direct appeal. The habeas petition would be granted, if we assume for the sake of argument that the standard of practice would have been to obtain an order of indigency appointing experts at public expense, that expert testimony would have materially supported the defendant’s claim of self-defense and the defendant probably would have been acquitted if the experts had testified.

At this point there are too many unknowns to predict an outcome, except to say that a murder conviction appears likely, given the evidence that has been released to the public.

Now, let’s tackle Xena’s question about which experts I would consult, if I were representing the defendant.

I would consult with a pathologist to review the autopsy report and the AME’s findings regarding the entry wound, trajectory of the bullet, and the distance between the muzzle of the gun and the entry wound when the shot was fired. I also would discuss what the evidence shows relative to the positions of the victim and the shooter when the shooter fired the fatal shot. I also would want to know if the pathologist disagrees with anything in the autopsy report and whether the defendant’s statement to police describing the shooting is consistent or consistent with the autopsy report. Finally, I would ask about the length of time the victim would have remained conscious after the shot, whether he could have said anything, and positional asphyxiation as a contributing factor to cause of death.

I would want to consult with a firearms expert to discuss the weapon used, the fatal shot, and whether the defendant’s statement about how he fired the fatal shot is consistent with the evidence. I also would want to review the crime lab analyst’s report and bench notes regarding the bullet holes in the sweatshirts and whether they align with the entry wound.

I would follow Lonnie’s advice and look for a kinesiologist or someone in a related field to discuss the relative positions of shooter and victim when the fatal shot was fired.

Next up, I would want to discuss the defendant’s injuries with a trauma surgeon, blood spatter expert, and DNA expert.

Consulting with an expert on GPS tracking would be high on my list as would consulting with an audiologist about identifying the person who uttered the shriek.

I probably also would have the defendant undergo thorough psychological testing because I suspect he may suffer from some kind of organic brain disorder that may affect perception and functioning.

I probably would consult with other experts, but that is all that comes to mind right now. This post has reached 1,000 words, so I am going to wrap it up and reserve further discussion for the comments.

The steps I have described here regarding consultations with experts in a case like this are what I would consider to be the standard of the profession. A failure to pursue and document this line of inquiry would fall below the standard and constitute ineffective assistance of counsel. To establish a valid IAC claim, however, the defendant would still have to establish that the result of the trial would probably have been different if counsel had done these things, discovered material evidence in his favor, and presented it at trial.

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