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_