Counsel's Decision to Avoid Risky Defense Not Second-Guessed

The decision to focus on an intoxication defense, rather than a PTSD defense was not manifestly unreasonable to the lawyer at the time.

 

Commonwealth v. Kolenovic, 2015 BL 197922, Mass., No. SJC-08047, 6/23/15

    A defense attorney decided to not change his client's defense when it was a "factually unassailable intoxication defense." After losing the case the client sued for ineffective assistance of counsel, and won.

    The Massachussetts High Court determined that the trial judge placed too much weight on an expert's evidence, given after the trial, that the defendant suffered from PTSD. The court also determined that the trial judge did not give enough consideration of what the defense lawyer's informed opinion had determined could be a successful defense.

   The court cautioned against using hindsight to assess the tactical decisions of lawyers. The court said, "[a]s we often have cautioned, a court may not apply the benefit of hindsight in assessing counsel's strategic choices."

   The court also indicated that medical experts should not be given too much deference regarding the establishment of trial strategy and tactics, especially when a retained expert is repudiating the role they played in the trial. "Although counsel's strategic choices are always open to review, we are hesitant to endorse an analytical approach to ineffective assistance of counsel claims that permits a retained expert to support or otherwise cooperate with the defense strategy at trial and later repudiate that participation by criticizing or attacking the very role he played in the trial."

    For an attorney's tactical or strategic decisions to be so flawed as to rise to the level of assistance of counsel, their decisions must have been "manifestly unreasonable" when made. The court stated that "[c]ounsel may strive for perfection, but only competence or the avoidance of a 'serious incompetency' is required."

  http://www2.bloomberglaw.com/public/desktop/document/Commonwealth_v_Kolenovic_No_SJC08047_2015_BL_197922_Mass_June_23_

Difference between "newly available" and "newly discovered" evidence.

 

 

United States v. Forbes, 2015 BL 199023, 2d Cir., No. 14-733

     A new trial will not be awarded to the convicted chairman of Cendant Corp. Fed. R. Crim. P. 33 generally limits the timing for filing a motion for a new trial to 14 days after the finding of guilty. A motion for a new trial based on "newly discovered evidence" may be filed up to three years later.

    The defendant argued that since the statute of limitations on offenses that had kept a potential defense witness from testifying had run, that witness should count as "newly discovered" evidence. Granting this would have allowed for a new trial including the testimony of that witness.

   The court rejected the defendant's argument saying that the potential witness was only "newly available" evidence. The court did indicate that, though the interpretation of Rule 33 here was narrow, it is the same as followed by the majority of court circuits that have addressed the issue.

   In United States v. Owen, 500 F.3d 83 (2d Cir. 2007) the court, facing a situation of 5th Amendment protections of co-defendants not being an issue anymore stated, "Rule 33 does not authorize disctrict courts to grant new trials on the basis of such evidence since it is not newly discovered, but merely newly available."

  The Owen court deterimined that the risks were too high and it was "rife for manipulation" and "raises the risk of encouraging perjury." Even though the witness here was not a co-defendant, the court ruled that       "[t]he same risks are present here."

   The overall ruling is that "[w]here, as here, a defendant is aware that a co-conspiritor could provide exculpatory testimony, but the co-conspiritor refuses to do so on the basis of his Fifth Amendment privilege, that testimony - made available post-conviction by the expiration of the statute of limitations as to that co-conspirator's alleged offenses - is not newly discovered after trial and, therefore, does not constitute newly discovered evidence within the meaning of Rule 33."

http://www2.bloomberglaw.com/public/desktop/document/UNITED_STATES_OF_AMERICA_Appellee_v_WALTER_A_FORBES_DefendantAppe

Broad Definition of "Violent Felony" Deemed Unconstitutional

The definition of "violent felony" in the Armed Career Criminal Act is unconstitutionally vague.

Johnson v. United States, 2015 BL 204915, U.S., No. 13-7120

 

     The Supreme Court looked to the history of "repeated failure[s] to craft a principled standard out of" the definition of "violent felony" in the ACCA. The Court indicated that "nine years' experience trying to derive meaning from the residual clause convinces  us that we have embarked upon a failed enterprise."

 

     The wording of the Act was vague and the Court said that "invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution's guarantee of due process."

 

     In this case, the defendant was convicted for being a felon in possession of a firearm. This conviction was enhanced inder the ACCA. He argued, as many others before, that his particular state offense did not qualify as a "violent felony."

 

     The old standard was a categorical approach, given in Taylor v. United States, 495 U.S. 575 (1990), and required sentencing courts to assess the crime "in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion."

 

    Justice Scalia, writing for the court, said that "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." Thus, increasing a defendant's sentence under the definition of "violent felony" given in the ACAA denies due process of the law.

 

    The lack of guidance within the clause was integral to the Court's decision. It fails to indicate how to estimate the risk posed by a crime, and how much risk it takes for a crime to qualify as a violent felony.

 

    This decision is a major change in the law that affects a large number of defendents who have been sentenced for firearms offenses.