Have you ever had one of those Kafka-esque nightmares, or seen a movie where someone is convicted of a crime and sent to prison even though they didn’t commit the crime? Well, some people, no doubt, have suffered that fate. Others, no doubt, think they have been wrongfully convicted of a crime whether they actually committed the crime or not.
These are clearly tragic cases where, because of an error by one of the lawyers, or even the judge, a jury convicts a person, who if not for that mistake, might have been found Not Guilty. Some of these people may, in fact, actually have been innocent of the crime with which they were charged. As Henry Miller once wrote, “to be a victim of one’s own mistakes is bad enough, but to be a victim of the other fellow’s mistake as well is too much”. There is a forum in which such individuals can have their cases or, as they’re referred to, Petitions for Post Conviction Relief heard. This column will describe that process and will memorialize one of the premier practitioners of that specialized area of the law, Fred Warren Bennett.
Post conviction Relief is a form of legal recourse available to persons who believe they have been convicted of a crime due to an error by one of the participants in the trial. There are numerous types of allegations that a petitioner may assert in their Petition for Post conviction Relief. These include claims of misconduct or serious error by the prosecutor or the trial judge, a tainted jury, or a constitutionally or legally defective sentence. These allegations must not have been previously adjudicated or subject to adjudication at the trial or on appeal.
Of all the possible allegations, “ineffective assistance of trial defense counsel” is the most common. To better understand how an issue, which would give rise to a request for Post Conviction Relief could develop, take the following hypothetical example:
Last year Care allegedly broke into Kimberly and Sam’s house. While in the house Clare stuffed her book-bag full of poetry books which, considering the rising cost of fine verse, were collectively valued at $500. Soon after, the police apprehended Clare. At her trial she was found guilty of Theft Over $500 and Second Degree Burglary. She was sentenced to fifteen years in prison. While fifteen years would give her ample time to read the prison’s poetry collection, after three months in jail, Clare had other plans and obtained a lawyer, Public Defender Louis. On behalf of Clare, Louis filed a Petition for Post Conviction Relief alleging that the previous Public Defender, Matt was ineffective at trial and that if he had been effective, Clare would not have been found guilty.
In her Petition for Post Conviction Relief, Clare alleged three reasons why Matt was ineffective at trial. First: Matt failed to object to hearsay statements being offered by one of the State’s witnesses. Second: Matt was appointed to represent Clare only three days before the trial and therefore had time for only one conversation with Clare regarding the case. Third: in a criminal case four years ago, Matt successfully defended Kimberly and Sam. In order to sustain any or all of these allegations, The Petitioner, Clare will have the burden, at her Post conviction hearing, of proving that she was deprived of the effective assistance of counsel, and that, were it not for the deficiencies of her trial counsel’s performance, she would have been found Not Guilty.
Clare is going to face the most difficulty in proving her first allegation. A lawyer does not have to perform perfectly at trial in their representation of a client. The lawyer has to act as a reasonably competent attorney would have acted considering the circumstances of the case. In order to prove that Matt’s failure to object caused his presentation to be ineffective, Clare would need to prove that the outcome of the trial would have been different if Matt had acted as a reasonably competent attorney would have acted considering the circumstances. This is not easy to prove for two reasons.
First, when looking at the context in which his failure to object occurred, it may have been reasonable for him not to object, either because the testimony offered by the State’s witness was only potentially hearsay and not clearly so (a “gray area”), or previous Defense counsel could have reasonably refrained from objecting for “tactical reasons”. If either of these explanations of previous defense counsel’s action or inaction were believed by the Post Conviction Court, then Post conviction Relief would not be available to Clare. If Post conviction court can’t conclude that the statement was definitely hearsay and/or that the action of Defense counsel was not “tactical”, then the Post Conviction Court certainly could not conclude that the outcome of the trial would have been different had Matt objected. Therefore the Court could not grant Post Conviction Relief and the verdict of the Trial Court would stand.
Second, even if Matt should have objected and/or the hearsay statement should not have been allowed, Clare would still have to convince the Court that the hearsay statement was so important that had it not been uttered, she would have been found Not Guilty. These are not easy allegations for Clare to prove at her Post conviction Hearing and to make matters worse, the Appellate Courts of this State have ruled that there is a strong presumption that the trial counsel is effective and that these decisions are tactical and are not to be judicially second-guessed by a subsequent court.
Clare is more likely to succeed on her second claim. Because Matt was not appointed as public defender until a few days before trial, Clare may be able to make a strong argument that she was not accorded with her Sixth Amendment Right to Counsel. The Sixth Amendment of the Constitution guarantees assistance of counsel in criminal cases such as the one being described in this example. However, merely having a lawyer show up for the trial does not fulfill this duty of assistance of counsel.
If Clare can convince the court that Matt was unprepared for trial because he didn’t have time to learn the facts of the cases, that he did not effectively question and prepare witnesses for that reason and that because he only spoke briefly with Clare before the trial making Matt’s performance otherwise ineffective, then Clare may prevail. A trial counsel’s performance is “ineffective” if it falls below the standard required by the Court which was set in a Maryland case known as Strickland v. State.
Clare’s best chance of having the trial overturned is with her third allegation. Because Matt had previously represented the victims Kimberly and Sam, and at the trial he was called upon to examine them, there is potentially a conflict of interest and a presumption of prejudice. Before the trial, Matt should have informed his client and the Court of this potential conflict in his interests and because he did not do so, if the presumptive conflict can be shown to have affected his conduct at Clare’s trial and that the verdict was also affected, Post Conviction Relief in the form of a new trial may be required.
If Post Conviction Court does decide that one or more of Clare’s allegations have merit, the court has the authority to grant various types of relief. The court can vacate the conviction and sentence, order a new trial, grant a re-sentencing, as well as order other forms of specific relief depending upon the nature of the error committed.
Wiles it’s true that the error of one moment can become the sorrow of a whole life, with Post Conviction Relief, the error can be corrected and the sorrow avoided for the wrongfully accused. It is also true, however, that post trial second-guessing and finger pointing are easy to start, but quite difficult to successfully pursue and properly so.
Certainly one of the preeminent practitioners of Post Conviction Law, and an architect of some of it in this state, was tragically taken from us as a result of an automobile accident this past week. Fred Warren Bennett affectionately referred to by some of his friends on the Bench and in the Bar as “The Cold Case Lawyer”, was dedicated to his clients in a way that far exceeded most professional attorney-client relationships. His services were sought by those who had almost no hope for securing their freedom or even their future survival and in some cases deservedly so.
When Fred Warren Bennett agreed to represent that client no matter what that client had done, no matter what public opinion had been formed about him or her or what they did, Fred fought for them. He prepared and prepared! Prosecutors knew they had to be as thorough as him in their research and presentations. Fellow lawyers in the Criminal Defense Bar felt his zeal and his judgment of them, many times in their eyes- unfairly, as he argued vehemently for relief for his current client and their former client based on what he considered their deficient performance and representation of the clients interests in prior proceedings.
Agree with him or not, in a professional world not sought after by many, he excelled and he will not be forgotten by those of us who observed his caring and competent advocacy on behalf of clients who had no other advocate or friend in this world.