holding counsel ineffective for failing to present the testimony of exculpatory witnesses despite their potential drawbacks, where that decision left the defendant with the unpalatable choice of either testifying and being impeached with his prior criminal convictions or remaining silent and leaving the prosecution’s case uncontradicted
How later courts described this case
- holding counsel ineffective for failing to present the testimony of exculpatory witnesses despite their potential drawbacks, where that decision left the defendant with the unpalatable choice of either testifying and being impeached with his prior criminal convictions or remaining silent and leaving the prosecution’s case uncontradicted
- finding attorney deficient for failing to call witnesses, thereby forcing defendant to choose between testifying or presenting no defense
- court will not reach post-trial complaint about ineffective assistance of trial counsel until addressing pre-trial claim
- noting that “findings based on documents or other writings merit little deference or none at all”
Written by the judges who cited it.
The opinion
KERN, Senior Judge,
dissenting:
The majority overturns a verdict of guilty the jury rendered upon the authority of the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Strickland permits courts to reverse convictions after trial when the defendant shows that defense counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687 , 104 S.Ct. at 2064 . However, the Supreme Court admonished:
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction ... and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.
Id. at 689 , 104 S.Ct. at 2065 . Accordingly, the Supreme Court has placed upon the defendant the burden of overcoming the strong presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690 , 104 S.Ct. at 2065-66 .
In the instant case, the majority concludes that the defense attorney was the functional equivalent of no attorney at all because he called the defendant and two of his friends as witnesses at the preliminary hearing and then called only the defendant as a witness in his subsequent trial. However, neither defense counsel nor the defendant appeared at the post-trial hearing on appellant’s ineffectiveness claim. Rather, he baldly asserted by different counsel that the defense he had presented at trial through his own testimony without the testimony of his two friends was constitutionally defective. In support of his assertion he pointed only to the transcript of their testimony at the preliminary hearing. This assertion ignores the facts (1) that the defense attorney observed his two friends give their respective testimony prior to trial and thus was in a far better position than either the trial court or the majority to evaluate their effectiveness with the jury as witnesses, (2) that their testimony at the preliminary hearing was successfully shaken by the prosecutor’s cross-examination and, (3) that their testimony was to some extent at odds with the testimony presented by the defendant himself at trial as to what happened on the night of the arrest. Thus, appellant simply did not carry the burden placed upon him. 1
The majority by its decision in effect adopts a new per se rule: whenever and without regard to the circumstances, a defense attorney does not present an eyewitness as a witness at trial, he has thereby rendered constitutionally defective assistance of counsel. The Supreme Court in Strickland never intended that reviewing courts adopt such an extreme rule and so I respectfully dissent.
. The majority, in footnote asides, suggests that the defense attorney's performance was so ineffective as to constitute the functional equivalent of no attorney at all. The conscientious trial judge who presided over the trial did not so conclude and he obviously had more sense of the actual trial than does the majority upon the cold record.