A Conversation About Steve’s Appeals
Steve usually calls me every Saturday, and we talk for a half hour or so. Recently, we spent much of our conversation talking about the two posts before this one (read Part 1 here and Part 2 here). Here is an abridged version of part of our conversation. I’ll pepper the transcript of it with a few [explanations] about who we were referring to, and links to the court cases and Texas legal rules we were talking about. This conversation is typical of some of the talks we have had over the past dozen years or so. If it seems like we’re arguing, we’re really not. We just try to keep each other factually straight when we’re talking about his case and the law.
I’ve just finished telling him that I used Arguments 2 and 3 in the previous posts.
MICHAEL: And I posted about those two because, after the appeals judges gave their reasons for not siding with you, they said something like, “We think it’s important to say that — even if we were wrong about this issue — if that had affected your rights, the jury would have convicted you on all three counts, not on just one.”
STEVE: Yeah, I never did understand that reasoning, because it could have gone either way.
MICHAEL: That’s the point I’m trying to make, is that they didn’t convict you on all three, or acquit you on all three, because the jury made a deal…
MICHAEL: …which is illegal, and they shouldn’t have done that. So, the court, by ignoring that fact — and maybe they had to ignore it because of 606(b) — they didn’t take everything into account. [See the post about 606(b) to see why the appeals judges might not have been able to consider the illegal deal the jurors made.]
STEVE: But there’s totally another side to that too, though.
MICHAEL: What’s that?
STEVE: Part of the jury saw that it was all bullshit, but Nina Dixon saying that Hanna was telling the truth could have had just as much effect on them voting guilty on one count as not voting guilty on all three, but the result was still the same [that Steve still got convicted].
MICHAEL: I blame Ross, Henry Ross [the prosecutor].
MICHAEL: Just as much or even more than Jeff Goudy or Nina Dixon [the expert witnesses], because in his closing argument, Ross said, “You’ve got to believe her because Nina Dixon believed her and Jeff Goudy believed her and her friend Rhonda believed her and her mother believed her. All these people believed her, so you should believe her too.”
STEVE: Well, that was all part of my argument. It wasn’t part of Max’s [Max Sommers, Steve’s court-appointed appeals attorney]
MICHAEL: Well, the court’s argument was that you had to meet certain criteria to call it ineffective assistance of counsel.
STEVE: Oh, that’s automatic, Mike. That’s Strickland v. Washington, but you’re not seeing the other part of that picture.
MICHAEL: I understand that, but the appeals court said you didn’t meet the requirements in Strickland. I think if Max had argued 702…
STEVE: 702 is no truthfulness testimony allowed.
MICHAEL: Right. If he had argued on that basis, instead of ineffective assistance of counsel…
STEVE: But that’s not really what that argument is. You’d almost have to read those …one case is Miller v. State. It’s an older case. I don’t remember the number. When you talk about Strickland — and they use Strickland, of course — but they use Strickland because he made an isolated incident. He said it was only once. All those other cases only had one instance, Mike. And they never let it get to the Court [of Criminal Appeals], to an 11.07. They stopped it right there. Every one of those cases stopped at direct appeal. There are no other cases that do ineffective assistance of counsel at direct appeal. There is no such thing. They always try to push it on to an 11.07 to develop the record. But they claim there is no sound trial strategy for not objecting to this testimony, period. End of story. And that’s the argument that Max really didn’t make. The argument was ineffective assistance of counsel. He just didn’t make it. He only gave that one instance, and it was the one damn instance that the judge asked the jury not to look at.
STEVE: It was objected to. If Max had used the other six quotes from the trial, they all were about the same things, testifying to truthfulness, and bolstering that testimony. The problem was that the judges didn’t pay any attention to my supplemental brief [a brief that Steve added to Max’s]. They just ignored it, and Max ignored the fact that there was a whole bunch of them. So when I filed the 11.07, they just said, “They’ve already looked at that issue,” so they don’t consider it. So, I kind of got screwed both ways, but the way I look at it, ineffective assistance of counsel really was the argument. Max just made a horrible argument. 702 should have been a separate argument, and should have been in the appeal along with the others.
Here’s an explanation of the purpose of an 11.07, a writ of habeas corpus.
We talked a bit longer about Rule 702. I thought that the court would have looked at it differently if the appeal had simply argued that the truthfulness testimony and the bolstering of it were violations of the rule, but Steve insisted that the argument still had to be about ineffective assistance of counsel.
MICHAEL: It’s clear, though, that the court allowed the violation of Rule 702.
STEVE: No, it’s not the judge’s responsibility to ask for the voir dire. That’s what I’m getting at. He doesn’t have to do that.
MICHAEL: I understand, but I’m saying that if your attorney had objected to it, it…
STEVE: And if the judge refused it…
MICHAEL: …it would be a violation.
STEVE: Right. It’s weird, but that’s the way the law works. If he doesn’t object to it, and he doesn’t do his part in that process, it’s not a violation because they can say he was using it as part of trial strategy. He didn’t want to look like the guy who beat up the expert witness, which is stupid, you always voir dire. But they’ll use that argument that it’s not trial strategy, and that’s why I’m trying to tell you the other part of the truthfulness is so strong that — if you read those cases — they claim, period, we don’t care what anybody else said, there is no sound trial strategy for that. Those are the only cases I’ve ever read that say that. There’s no other cases that say “no sound trial strategy.” They will always have something, they’ll say, “Well, he could have been trying to do this, and trying to do that. They say, period, “No. That testimony of truthfulness should never go in front of any jury for any reason.”
MICHAEL: So, you’re agreeing with me then.
STEVE: No! [We both laugh] You’re saying that the experts should not even be able to testify, period.
MICHAEL: Exactly. It should have been stopped right then and there by Doug…
MICHAEL: …when the statements were made. He should have objected right then and there.
STEVE: That’s ineffective assistance of counsel.
MICHAEL: It is, but it’s still a violation of 702. Wasn’t that why he objected?
STEVE: The only way that helps you in an appeal is if the attorney asks for a voir dire and the judge says “No, I already know she’s qualified.” Then you’ve got an argument. Then you got something on appeal, because that would be abuse of discretion by the judge. And the judge knew that, but he didn’t tell them that, he let him correct it on his own. Judges don’t jump in and say, “Stop. You just cheated, or you didn’t do this, or you didn’t do that.” That’s Perry Mason stuff. Judges don’t do that. That’s up to the attorneys, and when they do the judge has to make a decision.
STEVE: And I see your argument. It is a violation. It’s a violation of their canon, it’s a violation of everything they’ve learned. The first thing they tell them in class is “You cannot testify to someone’s truthfulness.” You really should read Miller v. State.
MICHAEL: One of these days.
STEVE: Yeah, I know you got a lot going on. It’s a real short case, but it’s the controlling case.
MICHAEL: Miller is?
He may be right. I’ll have another look at Miller v. State when I get the time (not for a while now because I’m editing Aggravated), but that’s a sample of what our conversations are typically like. The main thing this one points out is that Steve is probably a lot more conversant in the law than I am.
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