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Silence as a Very Poor Strategy for Appeal

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by: Ryan • September 3, 2011 • no comments

There is one sentence from a 2006 Oregon Supreme Court opinion which irritated me the moment I read it and it irritates me still. It's from a case called St v. Gornick, and it dealt with the question of whether the defendant's failure to object to the judge - rather than the jury - making the finding of the upward departure factors was a conscious decision. Now, the opinion doesn't hinge on this one bothersome sentence; the court would have reached the same result regardless. But it showed, I think, a total misapprehension of how competent defense lawyers operate.

The court first found that the defendant may have wanted the judge to make the findings all along, rather than a jury. That part I have no quarrel with. It's an additional inference that the court made that got under my skin.

"A third possible inference is that defendant did not want the trial court to find the facts but chose not to object for strategic purposes."

State v. Gornick, 340 Or 160, 170 (2006)

I won't belabor the logic, but I've gone over that quote a few times, and the only plausible implication is that the defendant did not object to the court doing something unconstitutional because the defendant wanted to get a reversal from the appellate courts under the theory of plain error. There really is no other logical reading of that quote.

Keep in mind that when Gornick's plea occurred, Blakely hadn't come out yet. So if the defendant (or defense counsel) was aware of the Apprendi argument he should make, and he wanted to get a reversal under plain error, he would have had to believe that the risk of making the proper objection is that the trial court would have agreed with him. So, while he wanted a jury trial, if the judge gave him the jury trial, unlike - I think - every other judge in the State of Oregon at the time, it would have cost him the issue on appeal.

This is of course absurd. There was no more than a negligible risk - and probably not even that - of the judge sustaining an Apprendi objection and ordering a jury trial on the aggravating factors. A defense attorney who hoped to win on appeal would have made the objection - and if he or she had attended any OCDLA conference where Jess Barton was speaking, the attorney would have been aware of the argument - and properly preserved the issue, and the last thing she would have done was remain silent and hope for plain error. She would have known, with great confidence, the trial court would never have sustained her objection.

And here, I think, gets at one of the qualities of the well-rounded defense attorney. We preserve arguments we fully expect to lose at the trial level, because it's part of our job to increase the chances of appeal if our client is convicted. And we are not afraid to lose arguments of first impression, because we know that the default position of every judge - when faced with an issue of first impression - is to rule in favor of the state. I'm not saying every judge always rules against the defense on an issue of first impression, but the presumption is strongly against the defendant. And losing at the trial level - following proper preservation of the issue - is usually the only way to get a reversal at the next highest court.

Silence, however, gets the attorney nothing most of the time. To be silent on an issue and still win on appeal requires a lot of other attorneys to do the heavy lifting, and to do it before the appellate attorney writes the brief, and even then, as in Gornick, you will still probably lose.

Let me take a a couple of real world examples. The Oregon Supreme Court has granted review of the issue of whether the court can properly submit lesser-included violations to a jury. If a defense attorney is going to trial on, say, a chippy Felony Attempt to Elude, where the defendant maybe didn't pull over as soon as he could have, the competent defense attorney will ask to submit to the jury the lesser-included violation of Failure to Yield to an Emergency Vehicle. The trial court will deny, not because this is an issue of first impression but because case law is against the submission, and if the defendant loses at trial, he has an issue for appeal that he otherwise wouldn't have. If the OSC overrules current case law on this issue, the reversal for this defendant is close to a sure thing - but only if the attorney raises and loses the issue at trial.

I've never quite understood the extent to which prosecutors care about increasing the odds that any conviction will be reserved on appeal. A win now may far exceed any pain they might feel 2 to 3 years from now, so the cost/benefit analysis may barely register. And I'm not complaining: the prosecutor who reflexively objects to everything the defendant argues is the defendant's best friend. (There is a reason that some of the most defense-friendly case law in the State of Oregon are in cases that disproportionately originate in Washington County.)

Another example is the improper joinder demurrer. As I have frequently mentioned, I think 10-20% of all cases have improper joinder issues. If the defendant files the demurrer, the prosecutor will almost certainly argue against it, instead of simply reindicting (or, at a minimum, moving to sever). But if the defendant loses the demurrer, he's got a great issue for the appellate courts, when a reversal doesn't just mean a new trial, it means dismissal - often, it will be too late following appeal for the state to reindict, though they easily could have done so at the time of the original trial. And mind you, it will lose most of the time, because it's an issue of first impression and judges, default, etc.

For samples of that demurrer, see here and here.

There is no strategic advantage to silence, at least not when it's motivated by a fear that by properly preserving an issue, you will convince the judge to rule in your favor on an issue of first impression and thereby lose the issue for appeal. So I say to all defense attorneys out there: have faith, faith in your ability - even when making a strong argument - that you will lose.

And then make good law for your client and the rest of us.