Deliver What You Promise – Update for October 13, 2016

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The State of Michigan accused Mike Thompson of some pretty unsavory child sex abuse charges. In his attorney’s opening statement to the jury, counsel told the jury:

The defendant I believe is going to testify in this case. He’s going to tell you—I know he’s going to testify—he’s going to tell you he did not commit criminal sexual conduct in first degree. He’s going to tell you that he did not [do what he was charged with]. Now, how—how is this going to happen? Well, he’s going to testify to that. He’s going to make himself available for cross-examination on everything that happened by taking the stand. The prosecutor I’m sure will ask him a lot of questions about some of these other things. My point is he’s going to testify that he did not [do what he was charged with].

(We took out the lawyer’s graphic description of what Mike is said to have done, because we want our blog to get through the browser filters).

                       The defendant did not testify.

The jury saw a 45-minute video of Mike’s questioning by the police. But the defense rested without Mike ever testifying. Before jury deliberations, the trial court instructed them that “every defendant has the absolute right not to testify. When you decide this case you must not consider the fact that he did not testify. It must not affect your verdict in any way.” The jury convicted Mike on all counts.

Mike filed a motion for new trial in the state court, asserting an ineffective-assistance claim based on his lawyer’s failure to call him as a witness after promising the jury they would hear his live testimony. A successful ineffective-assistance claim requires a movant to prove both deficient conduct and prejudice resulting from the deficiency, under the watershed Strickland v. Washington decision.

In a hearing on Mike’s ineffectiveness claim, his lawyer told the court that when he made his opening statement, his “strategy. . . would have involved Mike testifying.” However, he also wanted to “keep [his] options open” until he saw the video’s effect on the jury. Once the prosecution played the video at trial, counsel decided Mike’s statements in the video were more helpful to his defense than live testimony would have been, based on Mike’s state of mind and the jury’s reaction to the video, particularly because live testimony would have subjected Mike to cross examination.

The trial court denied a new trial, finding that Mike’s lawyer did not provide deficient representation, and that – even if he had – Mike was not prejudiced by it because his side of the story got told through the video. The Michigan Supreme Court upheld the denial, saying that “given the evidence of guilt, the limited harm, if any, of the broken promise that defendant would testify, and given the court’s instruction to the jury that it could not consider defendant’s failure to take the stand in rendering its verdict, we find that defendant has not shown that there existed a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different.”

Mike went to federal court with a motion under 28 USC 2254 (the state court version of a 2255). The district court granted his motion, finding that his lawyer’s promise to the jury that they’d hear from Mike, made even though counsel doubted whether he would call Thompson as a witness, objectively unreasonable.

This week, the 6th Circuit reversed. The appellate panel did not even evaluate the deficient representation decision, holding that “assuming defense counsel’s conduct was deficient, the Michigan Court of Appeals reasonably applied Strickland’s second prong when it decided that any error did not prejudice Thompson’s defense.

Be careful of what you promise in your opening... or it might bite your client in the butt.
      Be careful of what you promise in your opening… or it might bite your client in the butt.

The 6th cited three reasons: First, it said, the trial court instructed the jury not to consider Thompson’s failure to testify in reaching a verdict, and “juries presumptively follow the law.” Second, there was plenty of other evidence that Mike was guilty of the particular sex act with the child, independent of the jury speculating because he did not take the stand to deny it. Where evidence of guilt is substantial, a defense attorney’s failure is not as likely to hurt the defendant.

Third, “and most importantly,” the Court said, the jury heard Mike’s side of the story, directly from him through the video interview. To be sure, there are several cases where defense counsel’s broken promise inherently harmed the defense because, “in a he-said–she-said battle with minimal evidence of guilt, anything that diminishes the defendant’s credibility monumentally prejudices his defense.” However, here, defense counsel substituted a video interview for live testimony. “Thompson’s guilt for first-degree criminal sexual conduct turned on whether he penetrated the child. Thompson denied penetration in the video, as he would have through live testimony. Thus there was little for Thompson to add to his defense through live testimony. Indeed, live testimony easily could have done more harm than good through impeachment on cross examination. In fact, defense counsel found Thompson’s demeanor and statements in the video to be more effective than live testimony would have been.”

Thompson v. Rapelje, Case No. 15-1435 (6th Cir. Oct. 11, 2016)


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