Redefining ineffective assistance of counsel

People v Fisher, 2012 NY Slip Op 02416 [2012]

A defendant in a criminal case has the right to a lawyer. And not just a potted plant in a suit; an effective lawyer. A defendant's rights would mean little without a competent attorney on board to make sure that the rights guaranteed by the United States and New York Constitutions are not violated.

In the context of an ineffective assistance of counsel claim, the bar is set pretty low for defense attorneys. Courts reviewing a lawyer's performance chalk up all manner of mistake to trial strategy, or acknowledge mistakes but find enough moments of competent representation to disregard the bad moments.

But there are signs that, at least in New York, the standard is changing. The latest, clearest marker of that trend is People v Fisher, handed down last week by the Court of Appeals. The defendant in Fisher faced some pretty awful accusations that he sexually molested two of his nieces. But there were plenty of problems with the prosecution's case at trial. The mother of the alleged victims had a pretty strong financial motive to fabricate the allegations, and one of the main witnesses against Fisher was a jail-house snitch, a convicted murderer who bartered his testimony against Fisher in exchange for a favorable recommendation from the prosecutor to the parole board.

The prosecutor in Fisher gave a fairly typical closing argument in a child sex abuse case. She argued that the child had gone down a "long road" to testify at the trial, that the child had repeated her story multiple times to all sorts of people, and the story was consistent each time. One problem: there was no actual evidence before the jury that the child had made prior consistent statements, and any such evidence would have been inadmissible bolstering. The prosecutor went on to minimize the benefit the DA's office conferred on the snitch for testifying, an argument that the Court of Appeals found "less than frank" and "materially misleading." The prosecutor closed with the by-now standard line: "the day that the voice of the child is not evidence is the day that those doors [the doors to the courtroom] should be locked forever." The Court of Appeals noted that "it was not permissible for the prosecutor, an officer of the court, to admonish the jury that their acceptance of the testimony of the child witnesses was essential to the administration of justice."

What is amazing about this decision is that the Court of Appeals did not reverse the defendant's conviction based on the prosecutor's misconduct during closing argument. Indeed, the Court was without any authority to reverse on that ground, because defense counsel at trial let the prosecutor's closing argument flow by without objection. And that is precisely why the Court of Appeals did reverse the conviction. The Court held "defense counsel's failure to object to any, let alone all, of the prosecutor's egregiously improper departures during summation, particularly in the highly charged, potentially outcome determinative context in which they occurred, deprived defendant of the right to effective assistance of counsel."

This a doubly surprising result: appellate courts almost never reverse based on a prosecutor's misconduct, and a reversal for ineffective assistance of counsel is rarer still. The precedent is comprehensively laid out in Judge Smith's blistering dissent. To have a reversal, from the highest court in New York, based on ineffective assistance of counsel for failing to object to prosecutorial misconduct, is sort of mind-blowing.

The Fisher decision will change the way the Monroe County District Attorney's office prosecutes child sex abuse cases. They basically have to throw out their script and start over and try to obtain a conviction the old-fashioned way: by relying on the facts and evidence of the case, and not improper emotional pleas to the jury. Beyond that, Fisher should change the way defense lawyers practice. A lot of lawyers are taught, as a matter of strategy and courtesy, to let closing argument pass without objection unless the prosecutor does something truly outrageous. That conduct is now, according to the highest court in the state, the mark of an incompetent lawyer.

Beyond the context of closing argument, the Fisher decision could provide defendants another avenue for review on appeal. All too often, the intermediate appellate courts will refuse to reach issues that are not properly preserved for appeal by trial defense counsel. The Fisher decision gives appellate counsel the ability to argue, essentially, in the alternative: issue A should result in reversal, but if the Court finds issue A un-preserved, reversal is still required because trial defense counsel's failure to preserve the issue deprived defendant of effective assistance of counsel.

Kudos to Jan Somes, a friend and member of the excellent appeals bureau of the Monroe County Public Defender's Office, on the brief for Mr. Fisher before the high court.