Ineffective Assistance of Counsel

A while back, I did a post on the Trojan horse defense, which is basically a cyber-version of an old defense: Some Other Dude Did It, or the SODDI defense.

In this post, I want to talk about how a defense lawyer’s failure to raise a similar defense was found to constitute ineffective assistance of counsel.

The case is People v. Patterson, 2008 WL 886203 (Mich. App., April 1, 2008), and I’ll talk about the facts and charges in a minute.

First, I want to outline what a convicted defendant has to establish in order to win on an ineffective assistance of counsel claim:

The benchmark in evaluating a claim that trial counsel was ineffective is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668, 686 (1984. The defendant must show, first, that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the `counsel’ guaranteed by the Sixth Amendment. Second, the defendant must show prejudice. This requires proof that counsel's errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable.

People v. Patterson, supra. Here are the facts in the Patterson case:

This case stems from an investigation that Patterson had stalked an ex-girlfriend. Deputy Cuatt was a part of a team that executed a warrant to search defendant's residence. Cuatt has expertise in computers, which was needed so that evidence purportedly on a computer in the home would not be lost. Police located an old computer . . . in a small room and two hard drives. The computer was powered on even though no one was home. . . . Police seized the computer and Deputy Cuatt eventually subjected both hard drives to certain forensic programs. One . . . had a large amount of adult pornography on it. The same hard drive had four pictures of young girls who were obviously under the age of eighteen. The hard drives also contained photographs of defendant, family members, and friends, as well as e-mail to and from defendant.

People v. Patterson, supra. Mr. Patterson was charged with possessing child sexually abusive material, in violation of a Michigan statute. He was convicted, but moved to have the conviction set aside and a new trial ordered. At the hearing on the motion for a new trial, Mr. Patterson

testified that he had sent trial counsel a list of witnesses he wanted called at trial. According to defendant, several witnesses would have testified that he did not live alone and that a number of people, who either lived with him or assisted him because of his physical limitations, had access to the computer. Defendant also testified that some of those people were no longer friends and they had a reason sabotage his computer.

People v. Patterson, supra.

So according to Mr. Patterson, he wanted his defense attorney to raise a SODDI defense. At the hearing, his defense attorney, when asked why he decided not to call witnesses to show that others had had access to the computer, said he told Mr. Patterson “that the witnesses would . . . probably assert their 5th Amendment rights against self-incrimination.” People v. Patterson, supra. The trial court denied the motion for a new trial because it found that the defense attorney had “employed a proper trial strategy in not calling witnesses, even though he never contacted any of the dozen or more witnesses offered by defendant.” People v. Patterson, supra.

The Michigan Court of Appeals disagreed:

[T]rial counsel knew weeks before the trial that many others had access to the computer containing the illegal pictures yet failed to investigate or produce these individuals as defense witnesses. On these facts alone, we conclude that counsel's conduct fell far below an objective standard of reasonableness. . . . . We also conclude defendant was prejudiced. . . . Testimony that others were present in his home and had access to the computer would have created a reasonable probability that the result would have been different, especially considering that even the trial prosecutor was somewhat surprised by the jury's finding of guilt. Given that the prosecutor's case rested entirely on the premise that defendant was the only person who could have put the illegal images on the computer, and where defendant's trial counsel thought defendant lived alone, counsel's failure to investigate the witness list was ineffective and extremely prejudicial.

People v. Patterson, supra. I can certainly understand why the court of appeals reached this result, but here’s an aspect of this case that really puzzles me.

First, the prosecutor, who had the burden of proving the case beyond a reasonable doubt,

presented no witness to testify that the Defendant put the child sexually abusive images on the computer found in his home. The People called only two witnesses: the officer who analyzed the computer and an expert who gave an opinion about the age of the children whose images were on the computer. The officer acknowledged that there was no way for him to determine how the images became stored on the computer or who did so.

People v. Patterson, supra. If that’s all the prosecution presented, it clearly did not meet its burden of proving beyond a reasonable doubt that Mr. Patterson was responsible for the images’ being on the computer. All the defense needed to do was to move for a judgment of acquittal, based on the prosecution’s failure.

The defense did not do that, apparently because the defense attorney thought he had to prove that other people, maybe even specific other people, were responsible for the images’ being on the computer. That gets it backwards: As anyone who’s familiar with the O.J. Simpson murder trial knows, all the defense has to do is to raise “doubt” about the prosecution’s claim that the defense is guilty. Here, it was a slam dunk, since the prosecutor didn’t offer ANY evidence from which a reasonable juror could find that Mr. Patterson was the person who put the images on the computer. Makes you wonder what will happen at the new trial the court of appeals ordered.