"(1) counsel's representation fell below an objective standard of reasonableness, and
(2) the deficient performance prejudiced the defense."
Since Strickland has two prongs, so will this post! Prong 2 will be up Monday.
Today we'll deal with prong 1; what does a defense lawyer have to do to prove himself unreasonably ineffective? First of all, what's an objective standard of reasonableness? For the purposes of this post, anything that makes you go "Now that's FUCKED UP!" is unreasonable.
Carlos Coy's 2003 Appeal (Denied)
Points of error 1, 2, & 3
Coy argues that it was wrong of the court to overrule these three objections by his lawyer:
"Your Honor, I'm going to object. My job is the same as theirs."
"I'm going to object, Your Honor, the State of Texas gets paid just like I do. Improper argument."
"Your Honor, I'm going to object. [The prosecutor's] personal feelings are improper."
The Appeals court ruled:
"Appellant's objections to the prosecutor's argument during trial do not conform to his argument on appeal."
Let me see if I have this right. It doesn't matter if the prosecutor's statements were permissable or prejudicial, what matters is that the defense lawyer couldn't think of the proper terms to use while objecting. How ineffective of him...One might even say incompetent.
Point of error 4
Coy argues that the court should have sustained(accepted) his lawyer's objection to hearsay testimony offered by Officer Ruiz.
The appeals Court ruled:
"The State does not dispute that the requirements of Article 38.072 of the Texas Code of Criminal Procedure were not satisfied. It argues that admission of the statements was harmless because the State had previously, without objection, introduced evidence that [*6] proved the same facts."
So the defense lawyer allowed unsatisfactory, hearsay testimony TWICE? And the appeals court uses the first instance to justify the second? Are they smoking crack? I know Coy used to be a slinger, maybe he was doing deals during the recess. 10 points for style, -2 for bad judgement.
Point of error 5
Coy argues that the defense lawyer should have objected to testimony by Susan Szczygielski, the prosecution's expert, about coaching because she was not necessarily an expert.
This one is all on the defense counsel. Instead of asking her prove that she was an expert at recognizing kids that had been 'coached' to make false accusations, the defense counsel asked the court to be brief about her qualifications. The judge proved her expertise like this:
"Okay. she's an expert."
That's it. Boom, she's an expert, and can, using the magical powers bestowed upon her, expertly tell you whether or not a child has been manipulated into giving false testimony. I wonder, was she counseling any of Collen Taft's 800 patients at this time? Was she able to tell if any of them had been coached? The appeals Court denied this appeal because he accepted her as an expert. But hey, at least Mr. Lewis didn't have to sit in court for an extra ten minutes that day.
Point of error 6
"The State contends that appellant waived error with respect to appellant's sixth point of error because defense counsel failed to object at the earliest opportunity...We agree."
"To preserve error, appellant must object at the earliest opportunity and continue to object each time the objectionable evidence is offered"
So, in order to appeal because of lawyerly ineffectiveness, your ineffective lawyer has to effectively object to objectionable evidence? Well, if he did that, he wouldn't be so fucking INEFFECTIVE, now would he?
Does all this prove that Chip Lewis was ineffective as defense counsel? I don't know. I do believe it proves that our appeals process is completely ridiculous, forcing convicts to move metaphorical mountains to prove that their lawyers were ineffective, even if the lawyer was actually, visibly sleeping in court. Don't laugh, it happened.
2002 - Testimony from those present at the trial in 1984 revealed that Cannon(defense attorney), who has since died, slept as the prosecutor was questioning witnesses and presenting evidence. A court clerk said Cannon would doze for several minutes at a time. "I saw his head going backward and forward the way people do when they fall asleep," the clerk said.
In its appeal, the Texas Department of Criminal Justice complained that the 5th Circuit wrongly equated a sleeping attorney with an absent one and incorrectly drew a line between sleeping and other attorney impairments that do not automatically compromise the defense.
That decision last year by the full U.S. Court of Appeals for the 5th Circuit reversed a ruling by a 5th Circuit panel that had sided with Texas against Burdine.
That's right; the TDCJ apparently believed that this snoozing lawyer was fully capable of defending his client effectively. Interestingly enough the other defendant in this case, Douglas McCreight, was sentenced to 45 years...and paroled after 8. If Coy had killed somebody, he'd be out by now.
http://www.leagle.com/xmlResult.aspx?page=3&xmldoc=In TXCO 20110615595.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7