May-June 2014

See something, say something?

Shara Saget

Assistant Criminal District Attorney in Dallas County

What to do when a trial prosecutor notices a defense attorney who may not be doing his job?

True-to-form appellate lawyer disclaimer: While this article is intended as a helpful guide for trial prosecutors, most ineffective assistance of counsel (IAC) claims are raised in post-conviction proceedings. On direct appeal, IAC claims are frequently rejected because the trial record is silent regarding ineffectiveness and an appellate court cannot infer ineffectiveness based upon unclear portions of a trial record.1 For this reason, the majority of IAC claims are effectively raised in a post-conviction application for writ of habeas corpus because this is typically the first chance a record can be fully developed. Therefore, those who handle post-conviction writs are the most likely candidates to embark upon an in-depth review of IAC claims.
    That being established, do not stop reading—because a successful IAC claim can affect us all. (If this were a movie, here is where the scary music would start.)
    So you have encountered what could be deemed ineffective assistance of counsel. Do you—as a trial prosecutor—have an obligation to do or say anything? While your gut reaction may be, “No, that’s not my job,” remember that our role to seek justice calls for us to be concerned about whether a defendant is deprived of the effective assistance of counsel. So while it is technically not our job to perform the duties of both prosecutor and defense attorney, it is worth understanding how some IAC claims can be prevented to ensure that hard-earned convictions are upheld.

IAC overview
IAC claims can be raised in three places: in a motion for new trial, on direct appeal, and in a post-conviction writ of habeas corpus. A defendant has the difficult burden of proving, by a preponderance of the evidence, that:
•    counsel’s performance fell below an objective standard of reasonableness, and
•    a reasonable probability exists that, but for counsel’s errors, the result would have been different.2
    A “reasonable probability” does not require a showing that the result of the trial would actually have been different (i.e., a not-guilty verdict) had it not been for counsel’s ineffectiveness. Rather, the second prong is satisfied by a showing that, but for counsel’s unprofessional errors, the result of the proceeding most likely would have been different, e.g., evidence would not have been admitted. A reasonable probability is a probability sufficient to undermine confidence in the outcome.3
    These two prongs do not have to be addressed in order, and if a defendant fails to meet one prong, the court does not have to address the other prong. A defendant’s burden is difficult because a reviewing court will “commonly assume a strategic motive if any can be imagined and find counsel’s performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it.”4

The front line of defense
Unfortunately, there exist rare instances when a defense counsel’s representation is so outrageous that a reversal is warranted because no competent attorney would have engaged in such conduct.5 For this reason, it is worth keeping an eye out for those who hinder justice and double our workload by depriving a defendant of the effective assistance of counsel. Trial prosecutors are the front line of defense when it comes to detecting and possibly remedying the impact of a defendant being deprived of his right to the effective assistance of counsel.
    The following is a list of common IAC claims in non-capital trials that can be remedied at the trial level through simple preventative measures.

Failure to communicate a plea offer. To avoid a later claim that a plea offer was not communicated, a prosecutor’s best practice is to place any rejected plea offers on the record during a pre-trial hearing or prior to accepting a plea of guilty or nolo contendere. If you face resistance in placing pleas on the record, take measures to document plea offers. For example, in Dallas County, a section for plea bargain offers is provided on the pass slips that are filed with the court.
    It is worth noting that the United States Supreme Court handed down two decisions in 2012 that have made it a bit more difficult for defendants to establish prejudice under claims of ineffectiveness during plea negotiations.6 A defendant must now show, by a reasonable probability, that: 1) he would have accepted the earlier offer if counsel had not given ineffective assistance; 2) the prosecution would not have withdrawn the offer; and 3) the trial court would not have refused to accept the plea bargain.7

Involuntary plea. This argument is usually presented in a claim that the defendant was unable to understand the English language, did not understand the consequences of his guilty plea, or rejected a plea bargain based on the erroneous legal advice of counsel.
    If you suspect that a defendant has difficulty understanding English, the best practice is to gently remind the court, if necessary, to question the defendant regarding his ability to understand English. Furthermore, at the time of the plea, it is best to ask questions that will elicit a response beyond a simple “yes” or “no.” While this may seem bothersome, it is worth the effort. I handled a writ where the court determined that a plea was involuntary under this exact IAC claim. The trial record consisted of the defendant’s one-word responses at the time of his plea hearing. Years later, a habeas hearing was held and the court found that the defendant had a limited understanding of English at the time of his guilty plea and was not provided with an interpreter. Although counsel was not found to be ineffective, relief was granted and the defendant was permitted to withdraw his plea. Therefore, it is best to ensure that the defendant can understand English or to agree to a continuance if it is discovered that a defendant needs an interpreter.8 Finally, make sure the record reflects that any waivers and admonishments have been translated in the defendant’s native language.
    As with many consequences of a plea of guilty or nolo contendere, the best preventative measure is to ensure that all necessary admonishments are placed on the record. If you cannot place the admonishments on the record, make sure that the written documents are in compliance with Tex. Code Crim. Proc. art. 26.13, which include admonishments on immigration consequences,9 the punishment range for the charged offense,10 and the obligation to meet sex offender registration requirements.11 An omission on the record can lead to future IAC claims that are much easier to refute with clear written proof that the proper admonishments were given. That being said, the failure to receive an admonishment under art. 26.13 does not automatically mean that a defendant can meet the prejudice prong of the Strickland test, but it is better to avoid such risks.

Failure to investigate. For the most part, there is not a lot a prosecutor can do to ensure that defense counsel has properly investigated a case prior to the issue presenting itself in a motion for new trial (addressed below) or post-conviction proceedings. However, one way this claim may arise is in an allegation that defense counsel did not investigate a defendant’s claim of incompetency. Therefore, if you suspect that a defendant may have competency issues, it is best to place on the record why your concerns have been alleviated before continuing on to trial or permitting the defendant to enter a plea of guilty or nolo contendere. This could be as simple as making sure an admonishment under Tex. Code Crim. Proc. art. 26.13(b) is placed on the record.

Failure to obtain discovery. We are now all obligated to comply with the Michael Morton Act (SB 1611), the discovery rule enacted January 1, 2014.12 The best practice is to hand over any and all discovery requested by the defendant to avoid this IAC claim. If your office has not created forms to assist with the implementation of this act, make sure to document what discovery defense counsel has received and the date the discovery was turned over. Refute any claims that discovery was not received by placing the date(s) the discovery was handed over on the record.

Failure to file pre-trial motions. First, if defense counsel has indeed filed pre-trial motions, make sure the record is clear as to which motions were filed and the trial court’s rulings. This minor detail can prevent a claim being raised later, when it is more difficult to retrace pre-trial events.
    Second, this claim typically presents itself in a post-conviction proceeding long after defense counsel has decided not to pursue a pre-trial motion to suppress evidence. For this claim, a defendant must prove that, had defense counsel filed a motion to suppress (or any other pre-trial motion), it would have been granted.13 So, to state the obvious, make sure evidence is admissible and shore up its admissibility with testimony regarding the surrounding circumstances that led to its discovery.

Failure to call witnesses. This is an IAC claim that a trial prosecutor will not likely be able to remedy, but if it is clear that defense counsel is having difficulty securing a witness, including an expert, note on the record that the witness is not available. This will assist in refuting future IAC claims where the defendant must prove that a witness was available and willing to testify.14 Otherwise, this claim does not usually arise at trial unless a dissatisfied defendant makes it known in open court that his attorney has failed to call a witness or consult an expert—at which point, the State can agree to a continuance if necessary and/or request that the trial court ensure, on the record, that the defendant is satisfied with his representation.

Failure to object. While a defense attorney is not required to make meritless objections, there are times when an objection is warranted and the defense misses it.15 For this reason, we should not take a defense attorney’s silence as a license to continue down the road of improper questioning. A defense attorney’s failure to object today can become grounds for a post-conviction writ of habeas corpus tomorrow. The result will be a reversal due to a failure to object to an improper and prejudicial line of questions that could have been avoided.16 The same rings true for improper argument during closing.

Failure to request jury instructions. This is one area where a trial prosecutor can likely predict what the defense will do. Therefore, if the facts of a case clearly warrant a particular jury instruction and you have noticed that defense counsel has failed to make a request for the instruction, simply mention in the charge conference that you assume defense counsel will be making a request for the instruction. For example, it does not pay to turn a blind eye to the fact that defense counsel has clearly raised an affirmative defense but inadvertently failed to request a jury instruction for that affirmative defense.17 This will only give rise to subsequent IAC claims that may be successful.

Failure to present mitigation evidence. This claim is closely linked to the failure-to-investigate IAC claim. As such, there is not much a prosecutor can do in the form of preventative measures. While it is not uncommon for a defense attorney to forgo the presentation of mitigation evidence, when a defendant is facing a significant sentence such an omission may be cause for concern. The question is whether beneficial evidence was actually available and whether the failure to present mitigation evidence is so outrageous that it could not be considered sound trial strategy.18 Such a claim is dependent on defense counsel’s trial strategy which will not come to light until raised in a motion for a new trial or post-conviction writ of habeas corpus.

Obvious cases of IAC. If you encounter a defense attorney who cannot remain awake during proceedings, shows up inebriated or impaired in some way, or is meeting his client accused of murder for the first time on the day of trial, the best remedy is to notify the court and agree to a continuance.
    While this list is not exhaustive, it is easy to see that the over-arching theme is to place what you can on the record and document what you cannot. If all else fails, ensure that a defendant is pleased with his representation by requesting that the court question the defendant on the record.

The trial attorney’s final word
Finally, if an IAC claim is raised in a motion for new trial, an opportunity arises for defense counsel to explain his actions or inaction, so request that the court conduct a hearing. It is important to make sure that the record is clear as to the trial court’s findings regarding the IAC claim(s). Keep in mind that it does not matter if the court agrees with defense counsel’s trial strategy. The test is whether there exists “no reasonable trial strategy” to justify counsel’s acts or omissions because it is at this point that trial counsel’s performance “falls below an objective standard of reasonableness” as a matter of law.19
    During a motion for new trial, a trial prosecutor can still take preventative measures to refute IAC claims. Upon examination of defense counsel, make sure to ask specific questions regarding efforts to investigate, locate witnesses, retain experts; reasons why certain pre-trial motions were not filed; and reasons why mitigation evidence was not presented. This is also a good time to refute any claims that defense counsel did not meet with his client.
    In final argument, it is key to remember that the court must consider the “totality of counsel’s representation,” not isolated acts or omissions.20 Finally, minimize the effects of any ineffectiveness by distinguishing between the guilt-innocence and punishment phases if counsel acted within the realm of counsel guaranteed by the Sixth Amendment in the guilt-innocence phase but not during punishment.
    Although these steps can seem burdensome, they can help tremendously in ensuring that a conviction withstands an IAC claim. It certainly would be a lot easier to do nothing in a situation like this, but doing nothing now may mean that you or your colleague will have to try the case again later. Any comments or questions may be directed to me at shara [email protected].


1 Mata v. State, 226 S.W.3d 425 (Tex. Crim. App. 2007).
2 Strickland v. Washington, 466 U.S. 668, 687 (1984).
3 Strickland, 466 U.S. at 694 (“The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome”).
4 Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005) (emphasis added); see also Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007) (“If counsel’s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an ineffective assistance claim on direct appeal”).
5 State v. Morales, 253 S.W.3d 686 (Tex. Crim. App. 2008).
6 See Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012); Lafler v. Cooper, 132 S. Ct. 1376, 1384-85 (2012).
7 Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013).
8 See Ex parte Cockrell, No. WR-78,986-01, 2014 Tex. Crim. App. LEXIS 276 (Tex. Crim. App. Mar. 12, 2014) (defendant’s counsel found ineffective because failure to request an interpreter under Tex. Code Crim. Proc. art. 38.31(a) constituted deficient performance because a reasonably competent attorney would have realized that defendant’s condition met the definition for “deaf person” and he made ineffectual efforts to address the problem instead of invoking the mandatory provisions of art. 38.31).
9 Padilla v. Kentucky, 559 U.S. 356 (2010); Tex. Code Crim. Proc. art. 26.13(a)(4). See “Padilla changes everything” on page 32 of this issue for even more information about this case.
10 Tex. Code Crim. Proc. art. 26.13(a)(1).
11 See Carter v. State, 82 S.W.3d 392 (Tex. App. Austin 2002) (Tex. Code Crim. Proc. art. 26.13 does not require that a defendant be admonished regarding the specific details or effects of registration).
12 See Tex. Code Crim. Proc. art. 39.14.
13 See Yuhl v. State, 784 S.W.2d 714, 717 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d) (unless defendant can show unfiled motion to suppress would have been meritorious, he cannot show ineffective assistance of counsel).
14 See Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (“The failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony”).
15 See Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000) (trial counsel’s failure to object to that which is unobjectionable is not ineffective assistance of counsel, nor does it cause her performance to fall below an objective standard of reasonableness).
16 Gutierrez v. State, No. 05-12-01278-CR, 2014 Tex. App. LEXIS 3141, 20 (Tex. App.—Dallas Mar. 20, 2014) (not designated for publication) (“trial counsel failed to object to the prosecutor’s repeated statements and arguments that appellant’s immigration status meant he was not a candidate for probation, and further that appellant’s status and lack of citizenship should be used as an aggravating factor in assessing appellant’s punishment. We conclude this is one of those rare instances in which we can conceive of no possible basis in reasonable strategy or tactics for trial counsel’s failure to object”).
17 See Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987) (“This Court has consistently held that an accused is entitled to an instruction on every defensive issue raised by the evidence”); see also Villa v. State, 417 S.W.3d 455, 457 (Tex. Crim. App. 2013) (defendant convicted of aggravated sexual assault under Tex. Penal Code §22.021(a)(1)(B)(I) received ineffective assistance because trial counsel failed to request a jury instruction on the medical care defense where the evidence showed defendant touched the child for the sole purpose of applying diaper-rash medication).
18 See Rivera v. State, 123 S.W.3d 21, 31-32 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (holding that counsel’s failure to present mitigation evidence fell below an objective standard of reasonableness where court could not attribute failure to “trial strategy”); see also Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) (“While a single error will not typically result in a finding of ineffective assistance of counsel, an egregious error may satisfy the Strickland prongs on its own”).
19 Andrews, 159 S.W.3d at 102.
20 Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).