The Alabama Supreme Court has ordered a new trial for a man convicted and sentenced to 35 years on a sex crime offense. The court ruled there was a reasonable probability the result of the first trial would have been different had his defense counsel not committed serious error on a number of fronts.
It's important to note the standard to prove ineffective assistance of counsel following a criminal conviction is a high one. The 1984 U.S. Supreme Court decision of Strickland v. Washington, cautioned courts must indulge a strong presumption that an attorney's conduct falls within the range of reasonable professional assistance because the harsh light of hindsight can make it too easy to conclude error.
Even when a lawyer's performance is deemed deficient, no relief is to be granted unless there is reasonable probability that but for those mistakes, the outcome of the proceeding would have been different.
In the case of Ex parte H. Whited, defendant argued his defense lawyer improperly waived a closing argument – following an impassioned closing argument from the prosecutor.
In and of itself, the decision of a trial counsel to waive a closing argument isn't considered ineffective counsel (per the 2004 Alabama Court of Appeals decision in Young v. State).
On appeal in this case, the appellate court in a split decision found that while defendant made a compelling argument that his attorney used poor judgment in waiving the closing argument, he'd failed to affirmatively prove he'd suffered prejudice as a result of that decision, or that it potentially affected the outcome of the trial.
However, the state supreme court reversed.
According to court records, this case involved the sexual assault of a teenage girl who was the daughter of defendant's longtime friend. A neighbor reported to police that on a particular night several years ago, he heard sounds that would seem to indicate the girl was under extreme distress and pain. He said he'd heard similar noises before, but did not report them until now.
When police investigated, the girl told them she had been sexually victimized by her father for years, but that on that particular night in question, two other men participated as well – one being defendant.
While defendant conceded to knowing the girl, he denied he was there on the night in question. Further, he had three witness alibis who testified he was at the home of his uncle on the night in question because he'd injured his back earlier in the day while mowing the neighbor's yard.
Initially, when his defense attorney was questioned as to why he gave no closing argument, the attorney could not provide a clear answer. He said his memory on the case was diminished because his wife had died suddenly a short time after trial concluded. He didn't recall discussing the decision to waive the closing argument with defendant. The appellate court surmised the waiver was likely part of a trial strategy to prevent the prosecutor from further underscoring other specific evidence in rebuttal.
Defendant argued to state supreme court that appellate court erred in finding counsel's choice to waive the closing argument was a “trial strategy.” Further, he alleged the appellate court didn't fully consider the waiver in light of prosecutor's strong argument and lastly, the appellate court failed to consider the strong arguments against guilt available to defendant.
Supreme Court agreed the attorney's lack of an explanation as to why closing argument was waived or even at what point in the trial the decision was made distinguished it from other cases. Further, there were a number of strong arguments available to defendant to refute his guilt. There was no physical evidence. The only evidence the state had directly linking defendant to the crime was victim's testimony. However, victim's testimony was inconsistent on a number of points.
The fact that these strong arguments against guilt were not underscored in a closing argument, the supreme court found, bolstered defendant's request for a new trial, which was granted.
It is imperative that defendants facing felony charges seek counsel from an experienced, capable criminal defense attorney – particularly for sex crime cases that are highly charged with emotion. The stakes are simply too high to do otherwise.
Ex parte H. Whited, Feb. 6, 2015, Alabama Supreme Court