2007: People v. Bailey,
___ N.E.2d ___, 2007 WL 1828443 (Ill. App. June 26, 2007).
Counsel ineffective in bench trial for possession of crack with intent to distribute for eliciting
damaging evidence in cross-examination. A police officer testified that he observed an
“unknown person” yelling “Rocks” to passing cars. When cars stopped, he would direct
them to an alley where the defendant would exchange money for drugs. The officer
witnessed four such transactions in about 35 minutes before arresting the defendant who had
cash and drugs on him. Counsel’s conduct was deficient because during cross counsel
elicited further information that the officer witnessed the defendant provide money to the
“unknown person” several times and included that information in his case report, which
counsel either had not read or did not think about. Counsel’s lack of knowledge of the
report, failure to move to strike the officer’s initial non-responsive answer, and “digging the
hole deeper” with further questioning was not explicable by any valid trial strategy.
Prejudice found because this was “key” evidence in the case and the trial court clearly relied
on it and said so.
State v. McCulloch,
733 N.W.2d 586 (Neb. App. 2007).
Counsel ineffective in first degree sexual assault case for introducing evidence of the
defendant’s age when the State had failed to establish that he was 19 years of age or older,
which was an essential element of the charge against him. Counsel’s conduct was deficient
and prejudicial and, because that state’s evidence was insufficient to support a conviction,
retrial was barred by double jeopardy.
Robertson v. State,
214 S.W.3d 665 (Tex. App. 2007).
Counsel ineffective in aggravated assault case for eliciting testimony from the defendant
that he was incarcerated on two convictions and that he was in possession of a knife at the time of the previous arrests.
Prejudice found because this testimony opened the door for the state to elicit testimony on cross-examination that the
defendant had two prior drug convictions with “deadly weapon findings on both charges.” The state used this evidence
in argument to undermine the defendant’s credibility in arguing self-defense.
2006: Glancy v. State,
941 So. 2d 1201 (Fla. App. 2006).
Counsel ineffective in burglary with a sexual battery case for eliciting damaging character
evidence against the defendant. Specifically, counsel’s conduct was deficient for eliciting testimony from the alleged victim
that she did not like the defendant because he gave her minor children pot, booze, and cigarettes and because she
believed that he had been breaking into her house for two years, stealing her underwear, and leaving “dirty magazines”
behind. Counsel also elicited testimony from her son that the alleged victim did not like the defendant because he had
been “in and out of prison.” Prejudice found.
Bowers v. State,
929 So. 2d 1199 (Fla. App. 2006).
Counsel ineffective in burglary and grand theft case for questioning the defendant concerning his
prior criminal convictions and eliciting numerous details that the State would not have been entitled
to elicit since the state's examination would have been limited to the number of felony convictions
or convictions for misdemeanors involving dishonesty or false statement. Prejudice found because
there was no physical evidence and the trial hinged on credibility issues. By eliciting information
concerning prior convictions for burglary and grand theft, trial counsel impugned his client's
credibility in front of the jury. While counsel's strategy to be completely candid with the jury so that
the defendant's testimony would be more believable, "counsel's execution of the strategy defeated
the intent" because the information was presented in such a manner, due to counsel's failure to
properly prepare with the defendant, that it appeared the defendant was trying to withhold some
information. Thus, the court held "that counsel's strategy to bolster his client's credibility with
candor was ‘patently unreasonable.'"
2005: Whitaker v. State
622 S.E.2d 916 (Ga. App. 2005)
Counsel ineffective in burglary case for introducing an unredacted copy of previous convictions for two of the state’s key witnesses that also showed that the defendant had been charged with the same crimes (possession of tools for the commission of a crime, criminal trespass, and burglary). Counsel’s conduct was deficient and not explained simply by counsel’s strategy to impeach the witnesses. Counsel “did not offer any explanation for failing to redact the exhibits, which she knew implicated her client in other crimes.” Prejudice found because the state’s case rested primarily on the testimony of these two alleged accomplices. The evidence showing that the defendant had been previously charged along with these witnesses was especially damaging because it “may have caused the jury to give additional credence to the testimony of the state’s star witnesses.”
People v. Orta
836 N.E.2d 811 (Ill. App. 2005)
Counsel ineffective in bench trial for possession of drugs with intent to deliver drugs case for eliciting testimony from police officers that enabled the State to prove an essential element of the charge. Counsel’s conduct was deficient because counsel elicited information that a prior “control transaction” in which the defendant sold drugs to an informant, over the state’s objection. Counsel also elicited testimony that there were a lot of male clothes in the apartment (when the defendant’s argument was that he had no control or possession) and the drugs were found in a shaving bag, along with money, a scale, and the defendant’s mail, which the state later attempted to move into evidence. Counsel’s conduct was deficient. “A person charged with a crime has the right to expect his lawyer’s questions to prosecution witnesses will not help the State prove its accusations.” Prejudice found primarily because counsel elicited testimony about the prior “control transaction” with the state objecting and the trial court trying to discourage counsel from presenting this evidence. Counsel’s reason for offering this evidence was because he was attacking the officer’s credibility. The court rejected this as a valid strategy. This evidence was prejudicial because the court relied on it in finding an intent to deliver. The evidence about the clothes was also prejudicial because the court relied on it in finding constructive possession. Without all of the evidence elicited by the defense counsel the state’s case for possession was solely that the defendant had keys to the apartment where the drugs were found.
2004: State v. Barr
814 N.E.2d 79 (Ohio Ct. App. 2004)
Counsel was ineffective in fleeing and eluding case for opening the
door in cross-examination of a police officer to admission of the
defendant’s statements that had previously been suppressed as
involuntary. Prejudice found because without the statements there was no
evidence the defendant knew he was being followed by police.
State v. Davis
872 So. 2d 250 (Fla. 2004)
Counsel ineffective in capital case for his statements during voir
dire expressing racial animus and admitting his own racial prejudice
where the Defendant, an African-American male who was 22 at the time,
was accused of stabbing to death a 73-year-old white woman, but there
was no apparent racial motivation for the crime. During voir dire
counsel stated, ASometimes I
just don't like black people. Sometimes black people make me mad just
because they're black.@ In
closing in sentencing, counsel reminded the jurors that none had
expressed the same feelings and that they promised not to consider race.
Counsel=s strategy in making
the comments was to get the jurors to "drop the mask" and acknowledge
hidden feelings about race. The court found that Aan explicit expression of racial
prejudice can[not] be considered a legitimate tactical approach. Whether
or not counsel is in fact a racist, his expressions of prejudice against
African-Americans cannot be tolerated.@ Prejudice was found because Athe expressions of racial animus
voiced by trial counsel@ would
have Aunnecessarily tended
either to alienate jurors who did not share his animus against African
Americans . . .or to legitimize racial prejudice without accomplishing
counsel's stated objective of bringing latent bias out into the
open.@ Counsel=s expressions of racial bias also
may have affected his performance in both the guilt and penalty phases
of trial. In the guilt phase, trial counsel rested without presenting a
case, rather than present two African-American witnesses whose testimony
would have implicated others in the murder because another white witness
would contradict their testimony and counsel found the white witness to
be more credible. The trial court also found counsel to be ineffective
in sentencing for failing to obtain records and witnesses and never
visiting the Defendant=s
family or neighborhood.
*People v. Morris
807 N.E.2d 377 (Ill. 2004).
Counsel ineffective in capital case for discussing in great detail an
unrelated murder committed by the defendant in opening, even though the
trial court had previously agreed to exclude all evidence of the
unrelated murder from trial. Defendant was charged, along with several
codefendants, with the robbery and murder in Chicago of someone believed
to be a drug dealer. Several days before, the defendant had killed a man
in a drug-deal gone bad scenario. In opening counsel conceded the
defendant=s participation in
the charged crimes and discussed the unrelated murder in great detail.
The defendant subsequently testified with respect to his involvement in
both murders and the state offered evidence on both. In closing
argument, the State repeatedly reminded the jury of the unrelated
murder. Counsel conceded guilt in opening because her strategy was to
minimize the defendant's culpability and essentially plead for jury
nullification. While this was a proper strategy, in light of the
significant evidence against the defendant, the problem in this case is
that counsel also conceded guilt to an unrelated murder that had been
excluded from the state=s case
prior to trial. Counsel did so because she misunderstood the court=s pretrial ruling to allow the
state to use this evidence in rebuttal. Likewise, the defendant=s acquiescence was immaterial
because it was undoubtedly based on the same misunderstanding. Thus,
counsel=s actions Awere not the product of an
informed, strategic choice. Rather, these actions were the product of a
mistaken belief that the trial court had ruled evidence of the
[unrelated] murder admissible at trial when, in fact, the trial court
had ruled just the opposite.@
Prejudice was found because of the Asevere repercussions at trial.@ First, counsel=s jury nullification strategy was
dependent on the jury sympathizing with the defendant to some extent.
This strategy was completely destroyed by evidence of the defendant=s guilt of the unrelated murder
committed just 36 hours before the charged offense. Thus, counsel=s actions Aeviscerated the minimal trial
strategy that was available to her.@ ACounsel's deficiencies in this case
are distinguishable from typical trial error >not [in] degree but [in]
kind.= Bell v. Cone,
535 U.S. 685, ----, 122 S.Ct. 1843, 1851, 152 L.Ed.2d 914, 928 (2002).
For in all practical effect, as a result of defense counsel's actions,
defendant stood before the jury throughout the trial with no defensive
strategy whatsoever.@
Counsel was ineffective in drug trafficking case for admitting
evidence of bad character. The defendant and his girlfriend had been
arrested following a traffic stop for drugs found in the car. The
girlfriend, who had been driving, pled guilty to a lesser offense and
testified at the defendant’s trial. During cross-examination of her,
counsel offered into evidence a letter the girlfriend had written the
defendant, which revealed that the girlfriend had asked the defendant to
commit a crime, but also included a statement that the defendant was
wanted in five different states. Counsel was ineffective for failing to
redact the damaging portions of the letter or to even inform the jury
that the defendant was not actually wanted in five states. Counsel’s
conduct was prejudicial because the bad character evidence created a
reasonable probability that the outcome would have been different since
the evidence of the defendant’s guilt was not overwhelming.
Counsel ineffective in armed robbery and murder case for eliciting
testimony concerning a prior identification of the defendant which had
been suppressed prior to trial. Evidence consisted of testimony of a
co-defendant who had entered a plea agreement in exchange for testimony
and several other witnesses. The co-defendant identified the defendant
as the shooter. One eyewitness was unable to identify. The defendant the
other eyewitness had tentatively identified the defendant from a
photographic lineup but qualified the identification by saying that the
robber had longer hair than the person in the picture. At a pretrial
hearing, the witness was unable to identify the defendant and the
prosecutor agreed not to ask for an in-court identification. The
identification from the photo line-up was excluded because the array was
unduly suggestive. The prosecutor also agreed not to use the defendant’s
statement to police that he had gotten a haircut a few days after the
murder because without identification from the photo line-up it was not
relevant. While excluding the evidence, the trial court warned counsel
not to open the door. During testimony from a detective, counsel asked
if he tried to have anyone identify the defendant or co-defendant as the
robbers. The detective stated that he could not recall and counsel asked
him to review his police reports to refresh his memory. The detective
then testified that the eyewitness identified the defendant. Counsel
then elicited testimony that the witness had qualified the
identification by stating that the robber had longer hair. The state,
without objection from the defense, then questioned the detective about
the identification. The detective stated that the eyewitness
"immediately selected" the defendant and co-defendant from the photo
array. The court then sua sponte interrupted the redirect and
called the attorneys to the bench. Counsel then objected to the
admission of the defendant’s statement about the haircut, but the court
overruled the objection because counsel had opened the door. The
prosecutor then elicited testimony from the detective that the defendant
stated he had gotten a haircut the day after the murder. Following the
claim of ineffective assistance, counsel stated that his strategy was to
show that no one other then the co-defendant could identify the
defendant. Counsel stated that as part of this strategy, he asked the
detective whether anyone else had identified the defendant because
counsel believed that the eyewitness statement was not a positive
identification, but the detective testified that the eyewitness
identified the defendant. Counsel stated that he then attempted to
impeach the detective with the eyewitness statement that he was unsure
because of the robber’s hair length. The appellate court initially
addressed the threshold question of whether the court is bound by
defense counsel’s actual statements of strategy or whether the court
could consider that there was any reasonable strategy to explain
counsel’s actions. The court held that "once the record establishes the
actual tactical explanation for counsel’s actions, the government is not
free to invent a better-reasoned explanation of it’s own." Id.
at108-09. The court found deficient conduct because counsel’s strategy
made no sense and in the introduction of the prior identification
eviscerated the defense strategy. Court rejected the government’s
argument that counsel could not have anticipated the testimony that the
eyewitness immediately identified the defendant. This argument violates
a cardinal rule of examination – "if the defense counsel did not know
what [the witness] would say, he should not have asked." Id. at
109. The court also found that counsel was aware of the testimony that
would be elicited. The defense counsel’s introduction of a prior
identification in light of the expressed strategy of the defense was
"simply illogical and could only be counterproductive." The court also
found prejudice because without the prior identification counsel could
have argued that the government’s case rested solely on the testimony of
the co-defendant who had a significant incentive to lie. The court
rejected government argument of no prejudice because defense counsel
argued that the detective was over Zealous in focusing the investigation
on the defendant and perhaps had even lied about defendant statement
about the haircut. The court noted that the arguments "were not part of
a defense strategy as much as they were necessary to contain the, damage
done by counsel’s mistakes." Id. at 111. The court also noted
that while the eyewitness identification was initially tentative, the
jury could have perceived this as a mark of his scrupulousness. In
addition, however tentative the identification was, it was corroborated
by the defendant statement that he had a haircut. Finally, the court
noted that the state focused on the eyewitness identification during
both its closing and rebuttal argument. The court concluded that without
the prior identification evidence there is a reasonable probability that
the jury would have had a reasonable doubt as to defendant’s guilt. The
court also discussed, in a lengthy footnote, counsel’s failure to object
to graphic photographs of the body or to at least try to limit their
use. The court noted that the photographs introduced in this case were
nether independently relevant or corroborative of other evidence during
closing argument and the closing rebuttal argument. The
government attorney also improperly showed each juror an enlarged
photograph of the body while arguing that the jury should reach a
verdict that it could live with. The trial court sua sponte noted
that the prosecutor’s display of the photographs was not relevant to any
issue and was improper. The defense counsel did not object or request an
appropriate curative instruction. The court declined to evaluate
prejudice from these errors because reversal was already required due to
counsel’s introduction to the prior
identification.
Counsel was ineffective in vehicular burglary and theft case for
asking the defendant to disclose his entire criminal history to the jury
when much of the history wad inadmissable otherwise. The state’s case
rested almost entirely on the testimony of three accomplices who were
arrested in possession of the stolen items but not charged with any
offense. The defendant also testified and claimed that he was a witness
to the state’s witnesses committing the burglary. Counsel then elicited
testimony from the defendant about his extensive criminal history. On
cross-examination the state elicited even more information and detail.
The defendant’s history included repeated bouts with underage drinking,
numerous episodes of trampling state property, two uninvited entries
into other people’s homes, misdemeanor thefts from a gas station and a
liquor store, a car theft at the age of 14, and obstructing police. The
appellate court held that none of this evidence was admissible with the
exception of possibly the defendant’s misdemeanor theft convictions and
the state’s cross-examination about those offenses would have been
limited if defense counsel had acted appropriately. Instead the
defendant was cross-examined extensively that he had actually committed
felony offenses, but escaped conviction solely due to plea bargaining.
Deficient conduct found because "[n]o reasonable defense lawyer would
ask his client to tell the jury about an extensive history of
criminality and have the client readily admit that he was guilty on
every occasion, in order to convince the jury that he is innocent of a
like crime because he denies his guilt instead of pleading guilty." The
court also found deficient conduct because if counsel had filed a motion
in limine prior to calling his client to the stand the trial court may
well have prohibited cross-examination on the misdemeanor convictions as
well because the probative value is outweighed but the undue prejudice.
Prejudice found because all of the state’s evidence of guilt was
evidence that needed to be viewed with great caution. The court also
noted that the defendant was charged with burglary and theft and that if
the jury had taken the state’s witnesses at their word they would have
convicted on both offenses. Instead the jury convicted only on the theft
offense.