In the last post, I said that one of the first issues brought up in Coy's Habeas Corpus was his lawyer's failure to object to the state referring to the complainant as 'the victim.' This is an incomplete description. The issue brought up was the suggestion that the lawyer failed to competently defend Coy, and the first illustration of this was his failure to object to the aforementioned assumption of facts not in evidence (that the girl was a victim.)
Clarity and truth are of the utmost importance, but sometimes I write with the assumption that everyone has just read the same thing I have, and that's wrong.
The appeal focused on Lewis's lawyering performance, which is not uncommon in Habeas Corpus appeals. The problem is, proving ineffectiveness is extremely hard because a bad strategy is not the same thing as incompetence.
I don't know if Chip Lewis did a good job or a bad job, but he seems to have known in advance that the prosecution, the prosecution's witnesses, and even their experts, were going to introduce 'facts not in evidence; their assumption that the child was a victim. Forewarned is forearmed, and he tried to prevent it by filing the (denied) motion in limine.
The Habeas Corpus says it was rejected because there was no precedence for it; after all, it seems a little ridiculous to ask the judge to make a rule requiring the other side follow the rules, right? So no prohibition was put into place, and in order to avoid 'antagonizing' the jury, the prosecution was allowed to present a fact to the jury that was not in evidence, unobstructed by any objection.
People suggest it's not that big a deal; how could one little word, even if used repeatedly, decide the outcome of a case? Well, according to the Houston Chronicle, the jury was leaning towards acquittal before suddenly reversing themselves. I would imagine, in close cases like this, that every word has meaning; any advantage that you can get, by any means, could turn the tide in your favor.
What would have happened if the State had not decided early on, before a single witness had spoken, that the complainant had been assaulted, and was therefore a victim? What outcome would that have lead to?