State v. Hicks

*495 ¶42

(concurring) — I agree with the majority that it was improper to inform potential jurors that Phillip Hicks and Rashad Babbs did not face the death penalty. However, I do not agree that defense counsel’s performance was deficient or fell below professional standards merely because he failed to object when the prosecutor and trial judge did so. See majority at 488.

Chambers, J.

¶43 We held in State v. Townsend, 142 Wn.2d 838, 846-47 , 15 P.3d 145 (2001), that jurors should not be informed during voir dire that a case involves the death penalty. Given our clear statement of the law, it was error for the trial judge to permit the issue of punishment to be addressed in jury selection, and it was, at least technically, an error for trial counsel not to object. Id. at 847. But cf. State v. Mason, 160 Wn.2d 910, 931 , 162 P.3d 396 (2007) CTownsend error can be harmless).

¶44 I write separately solely on the issue of whether this technical error on defense counsel’s part amounts to deficient performance thus meeting the first element of ineffective assistance of counsel. See State v. Davis, 119 Wn.2d 657, 664-65 , 835 P.2d 1039 (1992) (“[f]irst, the defendant must show that counsel’s performance was deficient . . . requiring] showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” (alterations in original) (quoting Strickland v. Washington, 466 U.S. 668, 687 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984))). It is an old adage among trial lawyers that when the law is on your side you argue the law, when it is not you argue the facts, and when you have neither you pound the table. While lawyers may not mislead the court, it is not always in the client’s best interest to energetically argue every technicality of the law. The real skill in advocacy is not in high flying oratory or in raising every possible objection, but in making the hard decisions as to if, when, and how to argue the facts and the law.

¶45 While we have instructed in Townsend that it is improper to raise the issue of punishment during jury selection, the truth is that for the trial lawyer, jury selection *496 is a mix of science, art, and gut feeling. What is a trial lawyer to do when she has three potential jurors whom she would love to have sit on her client’s case? The jurors share similar backgrounds, occupations, and experiences with her client, which causes her to believe they will relate to her client. They have made statements during jury selection which lead her to believe they will be sympathetic to the arguments she intends to advance on behalf of her client. But all three have made statements to suggest they are morally opposed to the death penalty. Trial counsel could be reasonably concerned that, if in doubt as to whether or not the case involves capital punishment, the jurors will simply declare that they cannot be fair and impartial. Trial counsel knows the law and knows her duty but could well make a calculated decision that her client has a significantly better chance of acquittal if these jurors are informed that the case is not capital and that they may, in good moral conscience, become a juror. While counsel may not mislead the court as to the law, in such a case counsel should not be faulted for not objecting to the jury being informed that the case does not involve the death penalty.

¶46 While I can follow precedent and enforce the law, I cannot impugn the competence, integrity, or effectiveness of trial counsel in such circumstances. There was no deficient performance of counsel in this case and, thus, no need to reach whether any failure should undermine our confidence in the jury’s verdict. I concur in result.