I. State v. Barnaby Jones
1. Ineffective Assistance of Counsel (Conflict)
Barnaby Jones will first argue on appeal that his Sixth Amendment right to counsel was violated because his lawyer, Melvin Taylor, was representing him under a conflict of interests. There are two separate conflicts here. First, Melvin had previously represented Kate, the State’s key witness against Barnaby. Second, Melvin is the brother of Kate. The first brings up an issue of a successive multiparty conflict of interest, and the second is a personal conflict of interest. The first type of conflict is similar to the conflict presented in Mickens v. Taylor, where the Court presumed, but did not decide. that a successive conflict would be governed by the rules set down in Cuyler v. Sullivan. Consequently, some jurisdictions decide successive conflicts of interest under the Sullivan rule, and some decide it under the harsher standard of Strickland v. Washington. Personal conflicts of interest are usually decided under Strickland.
Addressing first the successive multiparty conflict under Sullivan, the test is whether there was an actual conflict of interest and whether the conflict adversely affected Melvin’s performance. It would appear there was an actual conflict as Melvin had previously represented his sister against Barnaby, who had allegedly punched her in the face. Now, he was representing Barnaby with his sister as the main State witness against him. The defense will argue that Melvin’s performance was adversely affected as a result of that conflict. While Melvin underperformed in several ways, there is one way in which it is clear his performance was adversely affected by the conflict. He did not cross-examine Kate. His reasons why he did not cross-examine the government’s main witness betrayed his conflict – he did not want to make her look bad. A lawyer not laboring under such a conflict would have clearly cross-examined Kate on her motive to lie and seriously damaged her credibility. The prosecution would try to argue that this was not an adverse affect since he made a logical strategic decision not to alienate the jury, but this is a weak argument.
If this is a jurisdiction that deals with successive multiparty conflicts under Strickland, then the defense has a larger hurdle. To prove ineffective assistance of counsel under Strickland, the defense must show that the attorney’s performance was deficient and that, but for the attorney’s poor performance, there was a substantial probability that the outcome of the trial would have been different. Strickland would also be the test used to discuss Melvin’s personal conflict as a relative of the main state witness.
In discussing whether an attorney’s performance was deficient, the court is to indulge in a strong presumption that the attorney was effective and must not use twenty-twenty hindsight. Usually, if an attorney makes a strategic decision, even though not the best decision, his actions will not be held to be deficient. Here, the prosecution will argue that both the choice not to move to suppress the statements and the choice not to cross-examine Kate were strategic decisions. Melvin knew moving to suppress the statements was futile and he thought that cross-examining Kate might alienate the jury. Barnaby will argue that both decisions fall far below an average performance – even if a judge is not sympathetic to a motion, it is simply ineffective not to move to suppress statements taken in violation of the Fifth Amendment which were the mainstay of the state’s case; and the decision to not cross-examine Kate because it would alienate the jury would be a decision never to cross-examine any witness.
As far as prejudice, the failure to file a motion to suppress Barnaby’s statements was crucial since the State likely did not have a case without the statements – they had a carpet fiber which could have come from anywhere and they had motive, but that was all. Barnaby’s statements sealed the case against him.
In addition, had the motion been filed, the defense will argue they would have won it. First, the defense will argue that Barnaby was in custody and was being interrogated when he made the incriminating statements and so the strictures of Miranda applied. The prosecution may respond that he was not in custody. Custody, for Fifth Amendment purposes, is similar to the level of detention of an arrest under the Fourth Amendment. Here, the prosecution will argue, this was a consensual encounter. The police, led by Officer Friendly who knew Barnaby and called him “Barn”, simply asked him to come down to the station to clear the matter up and Barnaby came voluntarily. They told him he was not under arrest. The defense will respond that three police officers showed up at two a.m. and banged on his door, scaring him. They were aware that he was “slow” and took advantage of the situation. They did not ask Barnaby to come but told him “it was best” to come, and then questioned him in a small room with no windows. This was custody.
Then, the defense will argue, it does not seem that Barnaby knowingly, intelligently and voluntarily waived his Miranda rights. Before he was even read the rights, Officer Friendly made the implied threat that if he did not talk to him he would not get back home. Hence, the defense will argue any subsequent waiver was involuntary because of the implied threat given to a man the officer knew was “slow.” The defense may even go so far as to say that any subsequent statement violated the due process clause, as the statement was not the product of his own free will. Then, he was read the rights and, when asked if he understood them, he responded, “Can I have a lawyer right now?” and was told he could not. With an IQ of 65, the police should have been careful to make sure he understood what he was giving up. He never explicitly waived his rights, but was simply told, “it seems you want to talk to me,” and Barnaby said “Okay.” The defense will argue that the waiver was not intelligent. The defense could also argue that “Can I have a lawyer right now?” amounted to an invocation of the right to counsel under the Fifth Amendment, but such an invocation must be unequivocal and this was clearly in the form of a question. If the defense won this argument, then the first statement, “I wanted to kill that S.O.B.” would have been inadmissible.
The prosecution will respond that the warning that Officer Friendly gave him before he read him his rights did not amount to a violation of due process. Implied threats of less than physical violence are usually not enough to amount to involuntariness. Even adding the fact that he was slow did not change the equation because there was simply not enough pressure to overcome Barnaby’s free will. Hence, such a statement also did not lead to an involuntary waiver of his rights. The prosecution will also argue that Officer Friendly simply responded truthfully to Barnaby’s question about a lawyer and then reminded him that he did not have to talk to him. If anything, the question shows Barnaby understood his rights and was merely asking a follow-up question. While the waiver was not explicit, by speaking to Officer Friendly after the clarification, Barnaby impliedly waived his rights.
Next, a motion to suppress would have argued that when Barnaby said “I am sad. Go away” it was an invocation of the right to silence, which then must be scrupulously honored by the police. Under Michigan v. Moseley, to scrupulously honor the invocation the officers should let some period of time pass and reread him his Miranda rights and get a new waiver before requestioning him. Here, an hour passed and Officer Friendly did not re-Mirandize him, but rather, lied to him about his lawyer coming and then told him he was not going anywhere. That does not appear to be scrupulously honoring his right to remain silent. Even if he had not invoked his right to silence, he invoked his right to counsel when he said Officer Friendly should call Melvin, that he wanted to talk to him. In that case, the officers could not talk to him again unless he re-initiated and was re-Mirandized. Edwards v. Arizona. He did not re-initiate a discussion about the crime when asking what was going on, but was simply inquiring into his status, why he was still being held. Oregon v. Bradshaw.
The prosecution will respond that this was not a winning issue either. First, the invocation of the right to silence was far from clear. Saying he was sad and wanted them to go away was not the same as invoking his right to silence. The officers honored his request that they leave him alone for awhile to be sad. Second, his request that they call Melvin was not an unequivocal right to counsel. The officers asked, “Your brother-in-law?” showing that they were unaware that he was calling him as a lawyer, as opposed to a relative. Then, in any case, Barnaby re-initiated when he asked what was going on.
The defense would also have argued that the officers overbore his will in violation of the due process clause when they lied about his lawyer having been called and then told him he was not going anywhere unless he told the “truth,” which the officer revealed to mean, that he killed Sal. That, plus the fact that the officers knew Melvin was slow, amounted to an overbearing of his will. The prosecution will respond tat lies plus intimations that he was not going anywhere do not mean that his will was overborne, as he seemed perfectly lucid and able to take care of his concerns.
In sum, the prosecution would argue that Melvin’s performance in not moving to suppress the statements was neither deficient nor prejudicial under Strickland. Melvin made a strategic decision that he would have made in any case – that the judge was never going to grant it because he never suppressed a statement taken by Officer Friendly and was not wrong that it was meritless in any case. The defense would respond that the motion did have merit and choosing not to make viable Fifth Amendment objections can never be a strategic decision. The defense will argue that if the statements had been suppressed, the state would not have had a case. And if Kate had been cross-examined, the jury would have seen her motive to lie and not credited her testimony. Hence, there was a strong probability that the outcome of the trial would have been different.
2. Ineffective Assistance of Counsel
Regardless of whether there was a conflict of interest leading to Melvin’s poor performance, the defense could simply argue straight ineffective assistance of counsel under either U.S. v. Cronic or Strickland v. Washington. The defense will first argue the Cronic standard for ineffectiveness because Cronic would allow the defense to bypass the prejudice prong of Strickland. Under Cronic,, in one of three situations, prejudice can be presumed. First, if there was a complete denial of counsel at a critical stage; second, if the defense completely failed to adversarily test the prosecution’s case; and third, if the circumstances were such that no counsel could be effective. The defense will argue that Melvin completely failed to test the prosecution’s case. He did not move to suppress the statements which were crucial and did not cross-examine the government’s main witness. The prosecution will respond that Melvin did cross-examine the police officer and put Barnaby on the stand to counter the government’s case. Typically, the Court has found that if the defense has done anything, they have not completely failed to test the government’s case. See Strickland v. Washington, Burger v. Kemp.
If the defense is unsuccessful under Cronic, it will argue ineffective assistance of counsel under Strickland. To prove ineffective assistance of counsel under Strickland, the defense must show that the attorney’s performance was deficient and that, but for the attorney’s poor performance, there was a substantial probability that the outcome of the trial would have been different. Strickland would also be the test used to discuss Melvin’s personal conflict as a relative of the main state witness.
In discussing whether an attorney’s performance was deficient, the court is to indulge in a strong presumption that the attorney was effective and must not use twenty-twenty hindsight. Usually, if an attorney makes a strategic decision, even though not the best decision, his actions will not be held to be deficient. Here, the prosecution will argue that both the choice not to move to suppress the statements and the choice not to cross-examine Kate were strategic decisions. Melvin knew moving to suppress the statements was futile and he thought that cross-examining Kate might alienate the jury. Barnaby will argue that both decisions fall far below an average performance – even if a judge is not sympathetic to a motion, it is simply ineffective not to move to suppress statements taken in violation of the Fifth Amendment which were the mainstay of the state’s case; and the decision to not cross-examine Kate because it would alienate the jury would be a decision never to cross-examine any witness.
As far as prejudice, the failure to file a motion to suppress Barnaby’s statements was crucial since the State likely did not have a case without the statements – they had a carpet fiber which could have come from anywhere and they had motive, but that was all. Barnaby’s statements sealed the case against him.
In addition, had the motion been filed, the defense will argue they would have won it. First, the defense will argue that Barnaby was in custody and was being interrogated when he made the incriminating statements and so the strictures of Miranda applied. The prosecution may respond that he was not in custody. Custody, for Fifth Amendment purposes, is similar to the level of detention of an arrest under the Fourth Amendment. Here, the prosecution will argue, this was a consensual encounter. The police, led by Officer Friendly who knew Barnaby and called him “Barn”, simply asked him to come down to the station to clear the matter up and Barnaby came voluntarily. They told him he was not under arrest. The defense will respond that three police officers showed up at two a.m. and banged on his door, scaring him. They were aware that he was “slow” and took advantage of the situation. They did not ask Barnaby to come but told him “it was best” to come, and then questioned him in a small room with no windows. This was custody.
Then, the defense will argue, it does not seem that Barnaby knowingly, intelligently and voluntarily waived his Miranda rights. Before he was even read the rights, Officer Friendly made the implied threat that if he did not talk to him he would not get back home. Hence, the defense will argue any subsequent waiver was involuntary because of the implied threat given to a man the officer knew was “slow.” The defense may even go so far as to say that any subsequent statement violated the due process clause, as the statement was not the product of his own free will. Then, he was read the rights and, when asked if he understood them, he responded, “Can I have a lawyer right now?” and was told he could not. With an IQ of 65, the police should have been careful to make sure he understood what he was giving up. He never explicitly waived his rights, but was simply told, “it seems you want to talk to me,” and Barnaby said “Okay.” The defense will argue that the waiver was not intelligent. The defense could also argue that “Can I have a lawyer right now?” amounted to an invocation of the right to counsel under the Fifth Amendment, but such an invocation must be unequivocal and this was clearly in the form of a question. If the defense won this argument, then the first statement, “I wanted to kill that S.O.B.” would have been inadmissible.
The prosecution will respond that the warning that Officer Friendly gave him before he read him his rights did not amount to a violation of due process. Implied threats of less than physical violence are usually not enough to amount to involuntariness. Even adding the fact that he was slow did not change the equation because there was simply not enough pressure to overcome Barnaby’s free will. Hence, such a statement also did not lead to an involuntary waiver of his rights. The prosecution will also argue that Officer Friendly simply responded truthfully to Barnaby’s question about a lawyer and then reminded him that he did not have to talk to him. If anything, the question shows Barnaby understood his rights and was merely asking a follow-up question. While the waiver was not explicit, by speaking to Officer Friendly after the clarification, Barnaby impliedly waived his rights.
Next, a motion to suppress would have argued that when Barnaby said “I am sad. Go away” it was an invocation of the right to silence, which then must be scrupulously honored by the police. Under Michigan v. Moseley, to scrupulously honor the invocation the officers should let some period of time pass and reread him his Miranda rights and get a new waiver before requestioning him. Here, an hour passed and Officer Friendly did not re-Mirandize him, but rather, lied to him about his lawyer coming and then told him he was not going anywhere. That does not appear to be scrupulously honoring his right to remain silent. Even if he had not invoked his right to silence, he invoked his right to counsel when he said Officer Friendly should call Melvin, that he wanted to talk to him. In that case, the officers could not talk to him again unless he re-initiated and was re-Mirandized. Edwards v. Arizona. He did not re-initiate a discussion about the crime when asking what was going on, but was simply inquiring into his status, why he was still being held. Oregon v. Bradshaw.
The prosecution will respond that this was not a winning issue either. First, the invocation of the right to silence was far from clear. Saying he was sad and wanted them to go away was not the same as invoking his right to silence. The officers honored his request that they leave him alone for awhile to be sad. Second, his request that they call Melvin was not an unequivocal right to counsel. The officers asked, “Your brother-in-law?” showing that they were unaware that he was calling him as a lawyer, as opposed to a relative. Then, in any case, Barnaby re-initiated when he asked what was going on.
The defense would also have argued that the officers overbore his will in violation of the due process clause when they lied about his lawyer having been called and then told him he was not going anywhere unless he told the “truth,” which the officer revealed to mean, that he killed Sal. That, plus the fact that the officers knew Melvin was slow, amounted to an overbearing of his will. The prosecution will respond tat lies plus intimations that he was not going anywhere do not mean that his will was overborne, as he seemed perfectly lucid and able to take care of his concerns.
In sum, the prosecution would argue that Melvin’s performance in not moving to suppress the statements was neither deficient nor prejudicial under Strickland. Melvin made a strategic decision that he would have made in any case – that the judge was never going to grant it because he never suppressed a statement taken by Officer Friendly and was not wrong that it was meritless in any case. The defense would respond that the motion did have merit and choosing not to make viable Fifth Amendment objections can never be a strategic decision. The defense will argue that if the statements had been suppressed, the state would not have had a case. And if Kate had been cross-examined, the jury would have seen her motive to lie and not credited her testimony. Hence, there was a strong probability that the outcome of the trial would have been different.