Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Boston Appeals Court Finds Defense Lawyer in Drive-By Shooting Case Ineffective

On Tuesday, the state Appeals Court, located in Boston, granted Adam N. (hereinafter, the “Defendant”)’s appeal and Ordered that he receive a hearing in a drive-by shooting case in which he had been convicted in 2004. The basis of the ruling was that he had been deprived of a fair trial because his attorney was “ineffective”.

The Appeals Court sent the case back to Hampden Superior Court for the hearing. The Defendant’s appellate attorney said she is pleased with the Appeals Court ruling, although she would have preferred an order for a new trial without the hearing.

The case stems from December 20, 2002, when the Defendant is said to have participated in a drive-by shooting of two individuals, Akers and Cope, in downtown Springfield. According to the Court:

“The traffic light turned green. As Akers pulled away from the stop, he and the passenger in the other vehicle simultaneously rolled down their windows. At the same time, Akers reached to his right for the volume control on his car radio, in order to turn it down. He then heard gun shots. Akers saw the face of the front passenger and saw a flash coming from what he thought was a gun in the passenger’s hand; Cope saw flashes, but did not see the passenger’s face. The exchange lasted a few seconds. Both Akers and Cope were struck by bullets in their legs.”

The police were given the description of “three light-skinned black males, all very young looking.” The witnesses were also able to describe the vehicle as “a dark colored car, possibly a Nissan or Honda, with tinted windows”. Later, in the hospital, the shooting victims discussed their recollections and one stated that the shooter “looked like a [Defendant’s last name] that he went to school with that was younger.”

The police put together a photo array of eight photographs of young black males, with short hair and no facial hair. Akers selected the photo of the Defendant.. No one else who had been in his car was able to make an identification.

In 2004, the Defendant was convicted of assault and battery with a dangerous weapon and illegal possession of a firearm. He was convicted of shooting Akers but found innocent of shooting the second man. He is serving six to seven years in a state prison. His appeal was aired in October during a special session of the Appeals Court in Springfield
In the decision written by Judge Mark V. Green, the Appeals Court said prosecutors relied almost exclusively on that lone eyewitness who identified the Defendant as the assailant. The defense provided an alibi defense, claiming the he had been elsewhere at the time of the shooting.

At trial, while the defense attorney had pointed out to the jury that the photograph included in the array of her client had been two years old at the time it was presented as well as other weaknesses in the identification (such as ability for Akers to really observe the shooter), she never brought out perhaps the most significant basis to the theory of misidentification
Namely, the Defendant, at the time of the assault, no longer looked like he had back in school two years prior. In fact, he had looked dramatically different, as any photograph of witness could have demonstrated.

The court said that trial counsel, “inexplicably failed” to offer evidence that the Defendant’s appearance on the day of the shooting in 2002 was dramatically different from that depicted in a photograph of him selected by the witness from the police photo array. The court also concluded that Judge Constance M. Sweeney erred in denying him a new trial without a hearing to present evidence.

In an affidavit, the Defendant said he had a mustache and beard and wore shoulder-length braided hair at the time of the shooting in December 2002. He also appeared the same way at trial in October 2004.

The 2002 description of the Defendant is corroborated by a photo of him taken a month before the shooting and offered at his appeal.

Attorney Sam’s Take:

“What?”, you jump, spilling your coffee and awakening the rest of the house. “You mean, you can get a new trial just by saying your attorney was not effective enough at convincing the jury you are not guilty?”

Well, not really.

As any avid reader of this daily blog knows, our Constitution guarantees a defendant a “fair trial”. Yesterday, we spoke of that including the defendant being competent to stand trial. However, the attorney also has to be competent to adequately represent that defendant at the trial.

However, before you get too excited, let’s examine what “competency” means in terms of the defense lawyer.

Under Massachusetts law, there is a two-pronged test to determine whether a defense attorney has been “ineffective”, thereby necessitating a new trial. As the court stated, the two prongs are, ” (i) ‘whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer’; and (ii) ‘whether [such ineffectiveness] has likely deprived the defendant of an otherwise available, substantial ground of defence.'”

It is important to remember the words “an ordinary fallible lawyer”. A lawyer, like most people, can make a bad call. Sometimes an attorney can be inexperienced and so lacking in certain honed skins. Sometimes there is a defense strategy involved which turns out not to work. This does not meet that test.

Obviously, nor does simply not being able to persuade the jury to your way of thinking.

It takes a rather dramatic showing to pass the test of incompetent counsel to the extent necessary to overturn a conviction. In fact, the Appeals Court in this case did not even Order a new trial, but a hearing on the motion for a new trial.

So, the same old advice stands. It is up to you to choose adequate counsel. You are the one who needs to determine whether your counsel is adequately experienced and good at what you need him or her to do.

Because it is you who will pay the price if you choose wrong.

The full articles of this story can be found at http://www.masslive.com/hampfrank/republican/index.ssf?/base/news-17/1231920997282970.xml&coll=1 and http://masslawyersweekly.com/index.cfm/archive/view/id/446438

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