Tuesday, May 26, 2020

In re Tom Smith (Cal. Ct. App. - May 26, 2020)

I'm starting to think that maybe I'm just a minority of one on this particular topic.

This is another case in which the defendant says his lawyer admitted his guilt at trial contrary to the defendant's wishes.  The Supreme Court recently held that you can't do that, and so the defendant here filed a habeas petition requesting the same relief (a new trial).  The Court of Appeal denied the petition (just like it denied defendant's original appeal), but the California Supreme Court then issued an order to show cause for the Court of Appeal to explain why the petitioner wasn't entitled to relief under the Supreme Court's precedent.  At which point, today, the Court of Appeal affirms its original conclusion and holds (again) that the defendant is not able to prevail on the merits.

I talked on Friday about one of these cases, and discussed at length why it seemed to me that the Court of Appeal in that case overlooked the significant factual discrepancy between the defendant's story and the defense counsel's version of the facts.  I thought that the defendant said one thing and the attorney said another, and so an evidentiary hearing was required -- even though the Court of Appeal thought there was no conflict at all.

Today's opinion -- the very next business day after Friday's opinion -- seems more of the same.

Maybe even worse.

I was struck by the strategy here.  It's a case involving a murder at Patton State Hospital.  One of the patients gets strangled in a fairly gruesome fashion, and the defendant gets charged.  The evidence against him is, quite frankly, pretty darn overwhelming.  He's virtually caught in the act, and then there are his repeated and unabashed confessions to the offense.  (For example:  "[W]e just wanted to see how it felt to kill someone” and "I killed him. I strangled him with the suspenders. . . . because [the victim] was a child molester.”)

Pretty tough to overcome.  Definitely.

Trial eventually comes around.  Defense counsel doesn't give an opening statement at all.  Then, at the defense stage, counsel puts his client on the stand (presumably because the defendant insisted on testifying) and the client insists that he's totally innocent and that this confession to the police was a lie.  There's no doubt that this is his defense:  as the Court of Appeal notes, at trial, defendant "denied killing Lucas, claiming it was Zamora and Porter who did it.  He said he was going to leave, but Porter threatened to get him too if he did."

Okay.  That's his story.  It's not a great one, given the confessions and evidence and all.  But it's his version of the facts, and the jury gets to decide.  A decision that's probably even a little easier after the rebuttal phase of the trial, in which a fellow inmate testifies that defendant told him that he "strangled the victim from behind, and it turned him on sexually" and "that if he could win at trial, he would go back to attack and rape other women as he had done in the past."  But, hey, that's life in the big city.  Defendant says he's innocent, the prosecution says he's guilty, and the jury chooses whether guilt has been established beyond a reasonable doubt.

Now it's time for closing arguments.  The prosecution's argument goes pretty much how you'd expect, the only drama being that, in the middle of it, the defendant stands up and says that he wants to leave the courtroom, saying "It’s just been so long, your Honor. I’m tired of hearing it. I didn’t do it."  But he ends up staying anyway.  The only point being this:  It's pretty darn clear the defendant's story is the one he told at trial:  That he's (allegedly) completely innocent, and that that's his defense.

Now it's time for defense counsel's opening statement.  Which begins in a way that, to me, is both understandable and yet bizarre.  Defense counsel tells the jury that the trial has made his job very very hard, telling them:  "But I’ll carry on. For all of you parents out there let me offer you some advice for a certain few who might meet this criteria in terms of for a job description. Undeterred by impossible odds. Ready to change your story at the drop of a hat. The ability to look 12 citizens in the eye and look sincere. Doesn’t mind losing once in a while. That would be a defense lawyer. And welcome to the defense bar.”

Look, I get that the job is tough sometimes.  But it's a murder case.  Maybe don't highlight that your job is to be "ready to change your story at the drop of a hat" and to try to "look sincere" even when you're arguing things you obviously don't believe.  That's something to complain about after the trial, in a bar or to your spouse or the like.  I'm not so sure it's an awesome strategy at trial.

Regardless, then, after talking about the presumption of innocence and the like, the defense counsel told the jury that it was "his belief that this was a second degree murder, not a first degree murder case."  At which point the defendant gets up and starts objecting to his own lawyer.  As the Court of Appeal notes, "[a]t that point, petitioner interjected, “Did I understand him correct? Did he just say—” The trial court asked petitioner to be quiet. Petitioner stated, “He said second-degree murder. I said I didn’t do it. [¶] . . . [¶] I object to that.”

So his counsel is saying that he's guilty of second degree murder, but the client is saying -- indeed, has testified under oath -- that he's completely innocent.  Seems a fairly stark divergence, no?

Lest there be any doubt, later on during the defense counsel's closing, there's this (classic) exchange as counsel continues to explain why his client is guilty to second degree murder:

“THE DEFENDANT: And that’s my lawyer saying that. 
THE COURT: Mr. Smith— 
THE DEFENDANT: I want to go back to my holding cell, man. I’m tired of this bull shit. I don’t want to be here, homie. 
THE COURT: Mr. Smith— 
THE DEFENDANT: I don’t care. I don’t want to listen to that bull shit. I did not commit murder. I didn’t kill that son of a bitch. 
THE COURT: Take Mr. Smith out of the courtroom. 
THE DEFENDANT: Thank you. You lying sack of shit.”

At which point the defense counsel continues his strategy.  Maybe one that makes tactical sense in light of both the evidence and all that's transpired, concluding with:

“You take your clients as you find them, okay. Despite his actions, despite his outbursts, despite his numerous problems, remember this is still a guy that it seems like the guy never caught—you can’t consider sympathy in your deliberations—but I can’t think of a time in this guy’s life when he caught a break. And I would like you to disregard his outbursts and think about the facts, that it took two people to hold and do the poking. And find him guilty of second-degree murder instead of first. Thank you.”

It's pretty clear from all this what went down, no?  Defendant insisted he was innocent, his counsel thought that was a terrible strategy, so defense counsel went with what he thought -- most likely, correctly -- made the most tactical sense notwithstanding the client's desires.

The only problem being that the Supreme Court's recent holding that you can't do that.

So reversal, right?

Not according to the Court of Appeal.

Justice Ramirez resolves this case just like the case on Friday:  By holding that there wasn't really a conflict in the evidence.  Even though it's crystal clear to me that there was.  Remember:  Defendant testified at trial that he was totally innocent, and yet, minutes later, you've got counsel contradicting that testimony and saying that his client's guilty (albeit of a lesser offense).  And when he heard his counsel conceding guilt, defendant immediately stood up and "objected" to that, insisting (yet again) that he was completely innocent.

How are these events even possibly consistent with one another?

Justice Ramirez has an answer.  He admits that, yes, at one point, defendant clearly wanted to insist that he was innocent (e.g., during his sworn testimony).  But Justice Ramirez insists that defendant must have changed his mind at one point -- namely, after the prosecution's opening argument.  Justice Ramirez appears to credit the defense counsel's testimony in this regard, saying:

"[Defense] counsel indicated that after the prosecutor’s argument, he informed petitioner that he believed there was no way the jury would buy his defense that he did not do it, based on all that had been said, and that he was going to go with the best defense he could. The record does not show petitioner made an express and unambiguous intent to maintain factual innocence at that time. Thereafter, defense counsel made his closing argument, conceding petitioner’s involvement in the murder, at which point petitioner objected."

Now, it's factually possible that's right.  It's possible that defense counsel told the defendant at that time that the "innocence" strategy was stupid and no longer viable, and that defendant at that point went along with that decision.  Truthfully, even on a stale paper record, it's very difficult for me to reconcile that fact with the undeniable reality that once counsel admitted for the first time during closing argument that his client was guilty (albeit of second degree murder), the client was both definitively surprised and went ballistic.  That certainly doesn't sound like someone who had agreed minutes earlier to that new strategy.  Sounds instead like someone who definitely did not agree with the strategy.

But we don't need to decide merely based on inferences like that, however persuasive.  Yes, Justice Ramirez is right that defense counsel says that he told his client about the change in strategy.  But Justice Ramirez's opinion also expressly states that "in fact, petitioner, in his declaration in support of his traverse, denies that defense counsel informed him of a proposed change of strategy during the prosecutor’s closing argument."  Which is certainly consistent with the events we subsequently see during defense counsel's closing, which which the defendant strenuously objects to what his counsel is saying to the jury.

So, yes, if the defense counsel is telling the truth, and there was agreement by the client that it was the best strategy to concede guilt, then the fact that the client later objected doesn't matter, and the habeas petition should be denied.  But if, instead, the defendant is right that there was never any agreement on this strategy -- e.g., that defendant always insisted (as he testified at trial) that he was innocent of the murder -- then the habeas petition should be granted.

A classic evidentiary conflict.  Which requires a hearing and a factual determination.  Because neither the trial court nor the justices on the Court of Appeal were there during the conversations between the defendant and his counsel.  Maybe (contrary to what defense counsel says) they never discussed at all the proposed "new strategy" of conceding guilt.  Maybe there was a discussion, but the defendant said "No freaking way; I'm innocent, and that's what I want you to argue."  Or maybe there was agreement after all.  You've got to figure out who's telling the truth.  Something we can't do on appeal.

So, again, maybe I'm a minority of one.  Maybe everyone else is happy -- just like every member of the panel in the Court of Appeal is happy -- deciding that, yep, the defense counsel is telling the truth here.  Just like in the case on Friday.

But, to me, you can't do that.  Particularly not here, when everything we can actually see (e.g., the outbursts during the closing argument) are totally consistent with defendant's version of the facts and his unwavering insistence on the same version of the facts he gave as his sworn testimony at trial.

Maybe I'm crazy.  But that's what I think.