specially concurs.
‘Between the idea
And the reality
Between the motion
And the act
Falls the Shadow’
I quote from T.S. Eliot’s poem The Hollow Men to give point to the assertion that effective assistance of counsel does not require perfect assistance of counsel. Between the idea — a constitutional right to counsel — and the reality — a public defender; between the motion — preparing a defense — and the act— the implementation thereof in court — falls the shadow — judicial scrutiny of counsel’s constitutionally mandated performance.
In an age when high-profile criminal trials dominate the news and become a communal media event, taking on a life of their own — I only need allude to O.J. or Kobe — the public is regaled with a skewed vision of our criminal justice system: a scorched earth policy of no holds barred, no quarter asked, no quarter given; an adversarial mentality where literally everything is contested and litigated at the highest level. If this is the norm by which all defense counsel must be evaluated, then our system would surely implode.
In such a venue or theater, trial counsel would indeed be derelict in not fully pursuing all aspects of Laughlin’s arrest and the subsequent accumulation of state’s evidence to be used against him. After all, what has counsel got to lose? But here the benchmark is “objective reasonableness under prevailing professional norms.” Where the law is, at best, ambiguous, esoteric and unsettled, and where defendant’s claim is, at most, arguably plausible, I would not hold that counsel’s failure to rigorously pursue the issue now under judicial scrutiny undermined the
proper functioning of the adversarial process or that counsel made an error so serious that (s)he was not functioning within the guarantee of the Sixth Amendment.
Accordingly, I concur in the opinion of this Court. As such, we need not address the substantive issue related to Laughlin’s extraterritorial arrest.1
. If it is of any consolation to defendant, I would have been inclined to rule that his arrest was "legal” to begin with pursuant to I.C. § 67-2337(2)(b) — i.e. the officer possesses probable cause to believe a crime is occurring involving a felony.