Loophole or Noose?
Reading the fine-print and asking the question, how real is a right?
Ink scribbled on ancient documents seemingly affords us certain inalienable rights that later judiciaries either uphold or dilute based on personal, political, or even religious ideologies that seemingly have little to do with the basis or premise of the original right afforded. Freedom of speech from the First Amendment, for example, originally expressed that "Congress shall make no law…abridging the freedom of speech, or of the press." And yet, we've all witnessed how the Department of Justice, under several presidential administrations, has treated certain dissident journalists for their exercise of that very clear right. The right to bear arms (Second Amendment), again, is another controversial topic and right that is either infringed upon or glorified depending on the underlying agenda at hand. In fact, it's the ongoing debate on rights, counter-rights and competing agendas that indelibly makes America both enviable and lamented, loved and hated, and ultimately trusted or feared. And, honestly, I don't pretend to have the answer as to how else rights could be afforded, upheld, defended, or otherwise eradicated, if not, through the ongoing and continual litigation process that is the state and federal judiciaries; because, as it stands, I've probably read more legal decisions than the vast majority of non-lawyers on the planet, and the more I read and comprehend, the less I seem to know, but also, the more I seem to understand about the notion of a right, in that: a right is only a right if you can successfully persuade a judiciary (perhaps more than one) that your case or situation is actually redeemable under a particular statutory or constitutional right; and then, that right will only remain a right for others when they are successfully able to convince future judiciaries that the right, in question, previously afforded, applies to them. Which means, that a right is subject to the fine print limitation of one's ability to persuade a judiciary one way or another on any given matter—forever.
As many of you know, I'm currently drafting a Petition for Habeas Corpus, and in doing so, searching for succinct statements on issues and the precise legal adage and arguments to persuade a state judiciary on the wrongful and illegal nature of my conviction. Here's how I currently see my relevant legal issues:
(1) The trial court violated the defendant's right to present a defense when a fair opportunity to rebut a hearsay accusation from a non-testifying declarant and alleged codefendant was denied in direct contravention of the Rules of Evidence; an issue enshrined on the record by trial counsel; but, an issue that was not flagged or presented by direct appellate counsel, thereby making appellate counsel's representation constitutionally "ineffective" under Strickland for not having presented the issue in the Defendant's Brief-in-Chief on direct appeal.
(2) The trial court's discretionary ruling under the Rule of Completeness (11-106 NMRA) clearly violated state law and prejudiced the defendant by placing him in the constitutionally untenable position of having to choose between the rebuttal of a hearsay accusation and his right to confront his accuser. Both trial counsel and direct appellate counsel were constitutionally "ineffective" under Strickland, respectively, for (a) failing to object to the court's misapprehension and flawed application of the Rule of Completeness in contravention of relevant state court appellate rulings and law; and (b) appellate counsel's failure to flag, present and brief the same in the defendant's Brief-in-Chief.
(3) The trial court abused its discretion in denying the defendant's directed verdict motion on the counts of felony murder, armed robbery, and tampering with evidence (alternative to Count 1, and Counts 2 and 7) because there was clearly an insufficiency of evidence to suggest that defendant had any contact with the victim's wallet, given the State's inability to present any evidence whatsoever that the defendant had any contact with the wallet; moreover, direct-appellate counsel was also constitutionally "ineffective" under Strickland for not having presented this issue in defendant's Brief-in-Chief.
(4) The petitioner's conviction and sentence for Count 2 (armed robbery) contradicts the law under New Mexico's felony murder doctrine as petitioner was convicted and sentenced to both the qualifying felony and the murder in direct contravention of Frazier.
Previously, I clearly stated that I didn't believe that my trial counsel was "ineffective" after finally having the trial record before me. But, unfortunately, what I personally believe isn't relevant to what the law affords or requires when attempting to have other rights upheld by a judiciary. Meaning, yes, I'm using lawyerly double-talk to justify having said one thing while justifiably doing something in contradiction to that! It's maddening on so many levels, but fundamentally, the only way from someone wrongfully convicted to present legal issues never before addressed on direct appeal is to say, "my trial and/or appellate counsel were 'ineffective' under Strickland for not having preserved this issue at trial, or collaterally on appeal, and if not for the prejudice suffered because of this ineffectiveness I wouldn't have been convicted." And, in my very limited and otherwise unqualified opinion, the very notion of having to prove that an otherwise imperfect human (and attorney) was "ineffective" under the guidelines of a U.S. Supreme Court decision, Strickland v. Washington, 466 U.S. 668, (1984), is about as ineffective as a cow, pig, or other four-legged source of food trying to convince a butcher that its meat isn't tasty and therefore shouldn't be served.
"Yeah right!" is all the butcher has to say as the clever comes down on the animal victim's neck.
In truth, state attorneys and courts don't even need to think real hard about how to counter an appellant's claim that his attorneys were "ineffective." Their standard response and forthcoming ruling is almost always trial or appellate "strategy" that is rarely ever deemed ineffective by a reviewing court. I've actually read cases where a trial attorney was asleep in the courtroom during the trial, and even then the reviewing court said that the petitioner hadn't demonstrated "sufficient prejudice" from having had legal representation that was sleeping during the trial proceedings. Obviously, not all courts are so obtuse, but nevertheless, it's an example that hopefully adds clarity to the onus of persuasion placed on a petitioner who claims to be wrongfully convicted before a judiciary meant to uphold the law.
So why persist, given the fact that the law only makes qualified appearances to real issues of fairness and constitutionality?
I've said this before, I don't do this because I believe that the inevitable outcome of my efforts will lead to my vindication. Obviously, that outcome is a legal possibility. But, more importantly, I do this because posterity needs points of reference and actual experiences on which to judge previous laws and policies as it looks to the pervasive possibility of a better tomorrow. Now, as a point of fact, I do believe that the totality of my legal claims rest on the domino-effect of injury and prejudice caused by the trial court's admission of an accusation by a non-testifying, alleged codefendant who had every reason and motive to lie; and, that that evidentiary admission of evidence during the state's case-in-chief should have been offset, under the premise of fairness, by the collateral admission of other evidence (likewise permissible under the Rules of Evidence) proffered by the defendant for the relevant purpose of impeaching the non-testifying declarant's credibility—i.e., the defendant's right to present a defense.
My trial attorney, Joseph Riggs, made numerous references to this elusive right at trial, meaning that the issue itself was well-preserved for appellate purposes. But, appellate counsel, Kathleen McGarry, either failed to identify the issue; did identify the issue, but deemed it a waste of time; or, identified the issue, but due to space constraints on the brief-in-chief, strategically opted to not present the issue. Which, of course, brings us to the doorway of necessity in needing to demonstrate to the district court that her legal representation was constitutionally "ineffective" under Strickland before the legitimacy of my legal claims can be heard.
According to the US Supreme Court, in Strickland, the basis of a defendant's right to the effective assistance of counsel stems from the Sixth Amendment's right to counsel—i.e., since the right of counsel is guaranteed, that guarantee obviously means that said representation must be effective. That being said, however, the guidelines set forth in Strickland for post-legal determinations of effectiveness are as subjective as any other right under the Constitution, strongly depending on one's ability to persuade the court(s).
Strickland demands two things: "that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial."
On the surface, the Court's two-pronged inquiry into the relevant facts of any given claim seem easy to understand. For instance, the obvious presentation of fact and argument that I would make is: (1) appellate counsel failed to flag an obvious evidentiary ruling, preserved on-the-record by trial counsel; and, (2) in having failed to present the issue for direct appellate review the defendant was prejudiced because the facts and relevant laws applicable to the issue at hand clearly demonstrate that the trial court's discretionary ruling violated the defendant's constitutional right to present a defense and, had the issue been presented on direct appeal the state supreme court would have overturned the conviction because: (a) the accusation introduced through the state's case-in-chief was, as a crucial point of fact, the only accusation presented by the prosecution alleging the defendant's guilt and was thereby non-cumulative; and, (b) the trial court's infringement upon the defendant's right to rebut the state's only accusation of guilt on a case constructed entirely of circumstantial evidence was prejudicial to the defendant given his constitutional right to present a defense—a right that does not yield to the vagaries of evidentiary rules (according to the Court's previous rulings¹).
So, why do I have a sardonic smile on my face as I establish the facts and arguments that establish the legitimacy of my claim?
Because the Strickland decision also established many loopholes that effectively serve as nooses to would-be defendant's making claims under the "ineffective assistance of counsel" rubric. For instance, the Court repeatedly reiterated that future courts "should keep in mind that the principles we have stated do not establish mechanical rules." In other words, the fact that a petitioner can establish both cause and prejudice doesn't necessarily mean that a reviewing court should deem an attorney's representation as constitutionally "ineffective," even though that might be exactly what it was. Which, helps explain why my smile is genuine.
I'm reminded that the law isn't a black-and-white question of right or wrong, it's more like a contentious debate on who gets to be right at this particular moment in time. There is no real winner or loser, it's only a question of who gets a momentary reprieve from needing to defend against incursions on a particular set of issues. Therefore, my smile is both sardonic and sad, because even considering for the briefest of moments that I prevail before the reviewing courts on the unconstitutionality of my conviction, I'm still left with the undeniable truth that future, wrongfully convicted petitioners will face denials on the same issues and similar facts, not because their claims lack merit, but because there's nobody to stand up and defend their claims. Because, arrogance aside, very few individuals possess the tenacity of spirit and sheer will to devote every waking moment of their lives to the legal fight of their wrongful convictions.
And, while the response of some might be, well, if someone isn't willing to learn the law and generally do everything that you've done to defend your constitutional rights, then, they don't deserve to have them. But, that's like saying that a poor person isn't deserving of medical treatment because given the fact that they can't afford treatment they should become medical experts capable of treating their own ailments and conditions. Such a premise is about as absurd as blaming a dog for its abusive owner. And, even though, there are countless attorneys throughout the world who donate their time and expertise to the defense of those who can't afford one, it's never enough, and that's heartbreaking because laws should improve our lives instead of tormenting them.
Fortunately, the Strickland decision gives hope to where there might not otherwise be any, in that, "the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." A holding that, if applied to the circumstances and facts of my case, just might make a reviewing court pause as it takes note of the facts that the only accusation of my alleged guilt came from a man who had every reason and motive to save his own life at my expense and, that said accusation was neither given under oath, nor could it be tested through cross-examination. And, given the domino-effect of constitutional infringements that followed in the wake of this one violation the trial was not fair under any reasonable conception of what "fairness" entails.
Certainly, like any fundamental law or right exposed to the challenges of differing ideologies and points of view over an extended period of time, the Strickland ruling has experienced substantial erosion to the principles of fairness that it attempted to uphold. Nevertheless, we cannot, as a matter of principle, relinquish our individual and collective responsibilities for making the rights that uphold our freedoms real, despite the fine print that a judiciary must repeatedly be convinced of said rights, because the alternative is a dystopia of life without universal rights that we cannot accept. In other words, a loophole may be used as a noose, but that truth entirely depends on us.
FOOTNOTE:
1. Chambers v. Mississippi, 410 U.S. 284 (1973); Holmes v. South Carolina, 547 U.S. 319 (2006); and Crane v. Kentucky, 476 U.S. 683 (1986)
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