In the reviews of the factual backdrop to the Supreme Court’s Osborne decision, one factor seems to weigh heavily in some people’s mind against concern that the State of Alaska’s refusal to allow William Osborne, at his own expense, to conduct a DNA test to prove his innocence.
Prior to trial, a tactical decision was made :
Mr. Osborne’s trial lawyer decided not to pursue a second kind of DNA testing that was more discriminating. The lawyer said she feared that the results might further incriminate her client. After his conviction, Mr. Osborne sued state officials in federal court seeking access to the DNA evidence for a third kind of yet-more-discriminating testing.
This bit of information takes the wind out of Osborne’s sails. He had the chance. He rejected it for strategic reasons. Now he wants a second chance, his strategy having failed. Claims of innocence aside, it smacks of disingenuity. We’re all for fairness, but he had a fair chance and chose not to take it. Screw him, right?
This is one of the most difficult constructs in criminal law: Tactical decisions are made by the attorney, often without the defendant’s approval and, even if with the defendant’s approval, based upon the relationship of trust and expectation of professional expertise that defendant’s have in their counsel. In other words, the lawyer chose a course and it turned out wrong.
The basis for the lawyer’s choice is subject to subsequent review on the issue of ineffective assistance of counsel. In other words, if the decision was strategic, then counsel was not ineffective. Counsel simply made a decision that didn’t pan out as well as hoped. The defendant is saddled with this strategic choice because of the need for finality of convictions. If we allow defendants to revisit every choice by his lawyer, then cases would go on indefinitely and nothing would ever be resolved. Institutionally, this would mean that the system would grind to a halt as every defendant challenged every decision made in a failed defense.
There are reasons why strategic decisions are left to lawyers rather than require the approval of defendants. At the top of the list is that defendants don’t ordinarily have a clue what will make for the best strategy, and commonly make incredibly foolish choices (which is often reflected in the conduct that got them in trouble in the first place). Lower down on the list are influences that are less lofty, such as the lawyer just isn’t very good or knowledgeable or hard-working. Lower still, perhaps the lawyer had dinner plans and didn’t feel like putting in the time to research, or simply think, about what he was doing. Nonetheless, the choice is viewed on appeal as strategic if there is some way to characterize it as having some potential tactical purpose, even if not the choice that makes sense after the fact.
It’s far easier to figure out that a choice wasn’t great after trial. Losing is a great indicator. On the other hand, there’s no evidence that the alternative choice would have resulted in victory, something often assumed by clients who have been convicted. Choices are sometimes limited to bad and worse, and the best decision is to pick the least harmful course when there isn’t a good course in sight. No defendant likes to admit this after a loss.
In considering the choice made by Osborne’s trial counsel, knowing that DNA analysis at the time was somewhat spotty and, more significantly, knowing that an inconclusive DNA test was better for the defendant than a conclusive DNA test that would have nailed him to the wall, one can appreciate why his attorney made the decision she did. It’s also quite possible that she didn’t believe her client’s protests of innocence. Defendants sometimes lie to their lawyers. Maybe Osborne had a bit of history of being less than truthful, and he suffered from the defendant who cried wolf syndrome.
But there is a difference in this case that removes the pall cast over the case that comes from the sense that he had a chance to test his DNA and left it behind. By seeking one final DNA test, at the defendant’s own expense and using a test that was better than what was available at the time of trial, it fell under the “no harm, no foul” rule. It would cost the State of Alaska nothing to let Osborne have his test. If it proved that he was not the rapist, a man would be proven innocent. No state has an interest in preserving a conviction against an innocent man. Either way, the state wins, and suffers nothing in the process.
As for Osborne, I have no idea whether he harbors any animosity at his trial counsel for making the decision that she did. The available information suggests that Osborne wanted his lawyer to do the test, and the lawyer made the decision to take a pass. It’s fair to say that Osborne should not be burdened with his lawyer’s decision when his choice was otherwise. But that opens the door to gamesmanship, since the lawyer and defendant could split on every decision, just for fun, and later claim an opening to revisit each of counsel’s strategic decisions. It also undermines the lawyers ability to defend, if she loses the authority to act in what she believes to be the defendant’s best interests.
Some here believe that proclamations of innocence trump all, and that defendants should be allowed to challenge and rechallenge every aspect of the defense, ad infinitum. It’s not going to happen. It can’t happen. It shouldn’t happen. In our zeal to protect personal freedom and constitutional rights, we sometimes forget that some defendants are people who have done some very bad, very harmful things. There is a legitimate, indeed important, reason to the finality of convictions, aside from the systemic need not to tie up resources by revisiting old cases.
But the exact same rationale that demands finality of the convictions of the factually guilty similarly demands the allowance of a test that will prove, with “unparalleled ability,” that a convicted defendant is innocent. That’s where the Osborne decision went so horribly wrong.
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Truth and justice are the ultimate values of the criminal justice system, not “finality”.
The concern about “gamesmanship” from relatively powerless criminal defendants is not entirely illegitimate, but it is terribly overblown. Gamesmanship from prosecutors and police is far more prevalent, far less likely to be discovered, and almost never corrected, but I don’t see much hand wringing about that from the Supremes, or any other court for that matter.
It’s that double standard again. Judges identify with the establishment litigant, which in criminal cases is the prosecutor. I can understand an honest prosecutor having a concern that a defendant is going to make a fool out of him, and through him the system. But there are countervailing concerns, such as that the sheer power of the state coming down on someone tends to overwhelm their ability to defend themselves, with the consequence that truth and justice get cheated from the other side.
Of course, you can have your trial. That’s due process.
But then that is not the answer for defendants in civil cases, because most often the establishment shoe is on the other foot. So in that context, we recognize that going to trial produces a lot of anxiety and uncertainty for defendants and we have “accelerated judgment” to spare them the trouble and expense. And yet going to trial in those instances is far less of a risk than it is for a criminal defendant, where the statistical deck is stacked pretty high.
Judges don’t worry too much about the disparity, though. I once asked a judge who was leaving the bench whether, in all those years he had ever dismissed an indictment. The answer was no. I then pointed out that he probably dismissed 50%-75% of civil cases brought by individuals either on the face of the complaint or on summary judgment. He did not deny this, and of course this would be typical of judges.
The disparity speaks for itself.
It’s not that that judge is a bad guy; far from it.
This is a deep – very deep – institutional problem.
The Supremes took the Osborne case on the prosecutor’s appeal. That’s why they bothered. At least four of the justices were anxious to make that ruling.
It’s a little unseemly, them sitting up there and going out of their way to deny to every lowly and despised but potentially innocent convict the right to get the evidence that might exonerate them.
But they simply do not – maybe cannot – identify with such people, at least not the way they identify with prosecutors and establishment litigants.
There’s a reason we have juries.
John, myopia is unattractive no matter which side of the fence you are on. It can be very hard to take your comments seriously when you demonstrate an inability to understand that the is a legitimate purpose to law enforcement. If truth and justice are the “ultimate values” of the criminal justice, then more defendants would be convicted than are now. Since we don’t know who you actually are, or what your experience actually is, it’s hard to tell where you’re coming from other than to say that your views tend to be terribly naive and impractical sometimes.
Your refusal to appreciate the purpose of finality is silly. Your inability to see any legitimacy in the other side is childish. Sometimes, the guy accused of murder is a killer. You can’t do this job effectively without understanding this.
Well, first off I didn’t say finality had no value or purpose, just that it was less important than truth and justice.
I don’t see how we could convict many more defendants. We already have more people in prison than any other country, maybe more per capita than any regime in history, not excluding the old Soviet Union or Communist China.
I’m perfectly well aware that a lot of accused people are guilty of this or that. The system functions reasonably well in those circumstances, because it usually offers mercy, though on rare occasions everyone is exceptionally pissed off for some reason and the only option, other than trial, is “plead to the charge and take what the judge gives you.” Then, from the defendant’s point of view, you go to trial, guilty or no, unless they made a big mistake undercharging you.
An utterly innocent defendant is a real problem, though, because it represents a moral challenge to the consensus. Moral threat might be a better term.
I have to plead not guilty to either naivete or impracticality. It is not naive to recognize that truth and justice are the goal; it is naive to think they are always achieved, but prosecutors and judges are much more inclined to that kind of naivete than defense lawyers.
As for impracticality, how can anyone be practical without taking into account the stark statistical realities? And not only take them into account, but understand them, so you know what you are up against and why.
Occasionally, you have an innocent defendant; and then the system is hell bent on murdering him, usually figuratively but sometimes literally, and always morally and spiritually. And then you have been thrust into a desperate moral struggle where you are at a severe disadvantage.
In that kind of circumstance, the concept of “practicality” does not apply, nor does its subset, “finality”. It is like war. It is a fight to the death. Finality and practicality in those instances are just euphemisms for surrender.
Where am I coming from? I’ve done some criminal defense work, not a lot, but from a practical standpoint too much. I do some PI. I’ve never represented a bank, or an insurance company, or the government.
I don’t think they need me, either.
You’re confused. Convicting and imprisoning are different issues. The system doesn’t function any better for the guilty than the innocent, and we have yet to figure out magic ways to tell which is which. You’re vision is simplistic, and it’s easy to sweep the system with a broad brush when you never see the eyes of individuals, whether defendants, victims or their children.
It’s just not as simple as you want it to be, John. And Gerry Spence notwithstanding, even banks and insurance companies sometimes deserve competent counsel.
I’m probably being naive too, but we seem to have this legal fiction that the jury system is infallible when given appropriate inputs, which is why a case involving possible very strong physical evidence of actual innocence is revolving around procedural issues and now maybe ineffective assistance of counsel.
I can see the need for finality of convictions, but the legal system has to (or ought to) have a means to correct its errors, including errors by the fact finder, or unintentional errors, such as when evidence is unavailable. And that means ought to be within the legal system itself, rather than some assurance that the truly innocent can get a pardon from the governor. (Although, in this case, even that won’t work without access to the evidence.)
Yes and no. It’s not that the jury system is infallible, but that the burden shift from prosecution to defense after a verdict of guilty. The problem is that while finality serves a purpose, it has become fashionable (and I use that word purposefully) for courts and legislative bodies to use procedural barriers to prevent review of claims that are truly deserving and demanding of review. These rules include preservation, time limits on habeas, post-conviction motions, etc., are applauded when defendants are seen as abusing the system, and are blamed when innocents are denied access to the courts, evidence, etc.
The problem is that interest groups lump everything together, without realizing that the same rules you love today you may hate tomorrow. The jury system is deeply flawed, and yet the legal fictions prevail because we haven’t figured out a better way to deal with the determination of guilt and most American’s like things simple and dirty, provided the dirt doesn’t get on them.
Most Americans like things simple and dirty, provided the dirt doesn’t get on them.
I would think we’d like things simple and clean, but you’re right, we’re generally willing to put up with a lot of dirt as long as it doesn’t affect us directly. That’s a really good line. I’ll have to remember it.
I thought justice was simple! That’s why I came to the Simple Justice Blog!
Seriously, though, 20 years of representing underdogs has taught me something, I think. I have to strongly disagree that the system isn’t any better for the guilty v. the innocent. And I think I’ve figured out why, not that I like the answer at all. But it explains wrongful convictions a lot better than chalking it up to things like “unreliable eyewitness testimony”.
The members of the establishment team, which includes police, prosecutors and judges, just naturally chafe at an assertion of innocence. To them it is moral effrontery. They can’t help it.
Jurors are less inclined toward reflexive hostility to innocence claims, but they are still affected by what I call the “institutional momentum” which is present at every trial I have done.
Winning a trial for a criminal defendant is incredibly difficult. I think it’s one of the most difficult things on earth to do. Having a winnable case is a very long way from winning it.
Of course you’re right we have no magic ways to tell the innocent from the guilty, although in particular cases the DNA stuff comes pretty close.
But still there are times you can know, because the evidence tells you.
And that’s when you’re up against the establishment hostility. They see the same evidence but they get stubborn. You’d think it’s maybe because they don’t understand, but then their hostility and panic when you try to actually use the evidence betrays them: they know exactly what the evidence means, otherwise they wouldn’t be so hostile.
You know what you have to do at a criminal trial when you have evidence that will almost certainly result in an acquittal? You have to try to disguise your purpose, offer it for some innocuous or silly reason and hope that the DA and the judge don’t figure out why you really want it in. Then you don’t say a word about it – until you close. By then it’s too late.
The trick is not to get bitter about this since it is so at variance with the way it ought to be. You can complain about juries or judges not really holding prosecutors to their burden of proof, or you can accept that they just won’t and assume the burden of proof is on you, which is far closer to reality. In practice, prosecutors have virtually no burden of proof at all: they can, and frequently do, convict on the testimony of a paid jailhouse snitch. It’s more like they have the burden of going forward; the defendant has the burden of proof.
I wish I were confused. Or simplistic. Or naive. Life would be a lot easier.
The fact is that my quibble with you is around the edges, not the core. Your problem is that you care, and life is never easy for anyone who cares.