Steve’s Appeals – Part 2

Parts of this post were used in Aggravated.

What the Court Got Wrong

Much of the following is directly quoted from court records (with names changed, of course). Just to recap, Argument 2 concerned Steve’s marijuana conviction. Steve thought it shouldn’t have been admitted because of its age (24 years before). Argument 3 charged that his trial attorney gave him ineffective representation by not asking for a mistrial after Ada Dixon’s violation of the rules (for testifying that Hanna was telling the truth when she, of course, had no way of knowing whether Hanna was lying or not). The appeals court ruled against both arguments. Here’s why they said Steve’s arguments weren’t valid.

Argument 2, The Marijuana Conviction: Remember, Steve didn’t testify in his second trial, but the prosecution read the testimony about his marijuana conviction from the first trial (in effect, forcing him to testify anyway). The court listed several factors that would establish whether or not prior testimony was admissible. Under Texas Rule of Evidence 609, if Steve had left a “false impression that he has never been arrested, charged, or convicted of any offense,” or a “false impression regarding his law-abiding behavior” he could “open the door” to examining that behavior. They cited several cases, like Theus v. State, which established that a defendant would have to give that impression before previous convictions could be admitted. The court agreed that Steve had not given that impression in his testimony. They said that when they compared Steve’s answers to the questions that were asked of him, which they said that “the 1982 marihuana conviction should not have been admitted into evidence under the theory that the witness [Steve] had opened the door to it.” That was good for Steve, right?

No. The next sentence was, “However, our inquiry doesn’t end there. We look to see whether the evidence was admissible under any theory.” Using these five criteria, they looked to see whether “the probative value of the evidence outweighs its prejudicial effect.” Whether there was any value to the jury knowing about this previous crime; how long ago the crime was; how similar that crime was to the current crime; how important the defendant’s testimony would be to the current case; and “the importance of the credibility issue.”

According to their analysis, the previous crime was “not a crime that involves untruthfulness or deception,” and that favored not admitting the conviction into evidence (one point for Steve). They also said that since the marijuana conviction was a long time ago and Steve had shown no “propensity to run afoul of the law” since then, that also worked against admitting the testimony (another one for Steve). But then they said that, because the two crimes weren’t alike, they didn’t think the jury would be prejudiced by knowing about the earlier one (one point against Steve). And finally, they said that, because the last two criteria involve both “the nature of the defense…and the means available to prove that defense,” and because offenses like sexual assault “are usually not committed in the presence of witnesses,” the credibility of both parties, Hanna and Steve, was “extremely important.” Since she said he committed the crimes and he said he didn’t, the court said that the importance of Steve’s testimony, and his and Hanna’s credibility, both “weigh strongly in favor of the admission of the prior conviction,” (two more points against Steve). Why, though, did they think it was fair to attack his credibility and not hers? If you’re counting, that was two points for Steve, and three against. But they also said that — even if they did happen to be wrong about whether the conviction was admissible — they did “not believe that any such error affected [Steve’s] substantial rights.”

They added one other comment then, but I’ll hold it back until we’ve looked at Argument 3, because the court used that same comment for both arguments.

Argument 3, Ineffective Assistance of Counsel: Steve and I have had several discussions about this one, and why it wasn’t accepted by the appeals court. We disagree on a few points, but I’ll give you my interpretation of it here, and the next post will include part of a conversation we had about this subject early in 2019. The crux of Argument 3 was that Steve’s trial attorney, Cleveland Sanford, was ineffective because, when Nina Dixon testified that she knew Hanna was telling the truth, Sanford should have asked for a mistrial, but didn’t, and also because he didn’t object to a later similar statement when the prosecutor was questioning her.

The appeals court said that, “to prevail on an ineffective assistance of counsel claim, the familiar Strickland v. Washington test must be met.” The test includes two parts that the defendant must prove. First, that their attorney’s “performance must be deficient,” and Second, that “the deficient performance must have prejudiced the defense so as to deprive the defendant of a fair trial.”  In other words, Steve and Sommers had to prove that Sanford’s job of defending Steve was so bad that Steve wouldn’t have been convicted but for Sanford’s performance. That, needless to say, is a tall hurdle. In addition, it means that most inmates who have to rely on an overworked and often inexperienced court-appointed appeals attorney (who is actually working for  — i.e., being paid by — the state) should expect that attorney will try to discredit their previous attorney. The former attorney and the assigned appeals attorney (especially in small towns) might likely know each other and would have to see each other on a regular basis as they continue their careers. That’s not a strong incentive for the appeals attorney to do well, is it?

The appeals court had a number of thoughts about Steve’s ineffective assistance of counsel argument. They mentioned that Steve, in his motion for a new trial, didn’t address the subject then. The motion for a new trial didn’t have anything to do with the effectiveness of Steve’s trial attorney, though. That motion was about misconduct on the part of the jury (misconduct that wasn’t discovered until after the trial was over. Read the post, “Legal Rules in Conflict” for details about the motion.

They also said (reading Sanford’s mind, in my opinion) that Steve’s attorney may not have moved for a mistrial because he knew he wouldn’t get one, and that would have made him look bad in front of the jury, so they reasoned that they couldn’t rule that an attorney was ineffective based on that single item of error, and said that he did a reasonable job overall. They added that, even if Steve’s attorney had been less than adequate, Steve would still have needed to prove that “the result of the trial would have been different.”

It was at that point that the appeals judges made the same comment they did at the end of their statement about Argument 2. They said:

“Had the jury been swayed by the testimony, appellant would have been found guilty on all three counts. All three counts depended upon testimony from the victim. We hold that appellant has not shown that there was a reasonable probability that the outcome of this trial would have been different but for his lawyer’s representation.”

The Keegan court overruled Arguments 2 and 3, and sided with the trial court.

Why I Think They Were Wrong on Both Arguments: They said, “Had the jury been swayed by the testimony, appellant would have been found guilty on all three counts,” which is a faulty argument. Even if they might not have been legally able to consider an alternative explanation because of 606(b), Steve’s jury made the decision (to convict him on one count and to acquit him on the other two) because of the deal they made. If they hadn’t made that deal, they could just as easily have convicted him on all three counts, or acquitted him on all three, or they could have remained hopelessly deadlocked and caused another mistrial. I believe that the Keegan court’s decision to ignore that makes their reasoning inaccurate at best and specious if done deliberately.

In 2017, I interviewed Steve’s attorney, Cleveland Sanford, now a district judge, and asked him if he had seen many juries where there had been split decisions like that. He said, “No. Not as a lawyer or as a judge.” He added that Steve’s was “the only case I ever had that happen where the case was sexual in nature. And I had quite a few. I tried quite a few sex cases…and as a judge I haven’t had any either where they split them. They have to be really distinct, separate events, for a jury to separate it out. And in this instance, it was all just this hodgepodge of…” He paused to think for a second, then continued. “Because Ada Dixon created a hundred events.”

He also said, about the jury’s split vote, “You either believe it or you don’t, because at the end of the day it comes down to the credibility of Hanna. And if Hanna’s not credible as to Count Two and Count Three, then Hanna wasn’t credible as to Count One either.” But, despite my belief, and Sanford’s belief, the appeals court in Steve’s first appeal sided with the jury’s verdicts.

Steve continued on his own (pro se is the Latin term for it) from then on, appealing his case through the state courts and then the federal courts, all the way to the Supreme Court. Each next higher court agreed with the court below them. We found new evidence, good evidence, and documented it thoroughly, and filed a writ with the district court for Steve to get an evidentiary hearing. They said Steve had waited too long, so none of that evidence was usable. Some of that evidence is detailed in Aggravated, but Steve’s appeals were about the unfairness of the system, not about his innocence. Aggravated is partly about how the system was stacked against Steve, but it’s mostly about proving that he actually is innocent.

The next post explores the court’s decision a little more, through a recent conversation I had with Steve.

Michael Sirois

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