William Benjamin Ward v. United States

SILER, Circuit Judge,

dissenting.

I respectfully dissent from the majority opinion, as I believe that the district judge *1323did everything he could to resolve the question of ineffective assistance of counsel at the most opportune time, that is, during the trial itself. Thus, I find no constitutional error here.

I agree with the majority opinion that the standards for ineffective assistance of counsel are set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2062, 80 L.Ed.2d 674 (1984). However, that ease also stated:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”

Id. at 689, 104 S.Ct. at 2065 (citation omitted).

In this case, during a recess, defense counsel indicated that he was engaged in a trial tactic that he did not want to reveal to opposing counsel. He also indicated that he told the defendant in advance what he was going to do, which shows acquiescence on the part of the defendant.

During trial, as the majority opinion shows, the court presented the issue of ineffective assistance of counsel to the defendant and his father. Certainly, the defendant was only 19 years old, but he is an adult under the law. There is nothing in the record to show that he did not have as much intelligence or ability as any other defendant. In addition, the court consulted defendant’s father. Both indicated in court that defense counsel had done a good job, and the only complaint that they had about their counsel was that he did not obtain enough discovery in advance of trial. However, as the court indicated, discovery is limited by the Federal Rules of Criminal Procedure.

Although defense counsel’s tactics in questioning Sturgeon might not be the same procedure that another lawyer would undertake, nevertheless, his intent was to show that the government witness Sturgeon thought that the conduct alleged in the indictment was not consistent with the defendant’s character. “Even the best criminal defense attorneys would not defend a particular client in the same way.” Id.

During the hearing in the middle of the trial, in which the court questioned the defendant and his father, the defendant was given every opportunity to suggest that his counsel was ineffective. Had he done so, counsel could have asked to be relieved, or the court could have relieved counsel and declared a mistrial, if too much prejudice had already occurred within the trial. Instead, the defendant essentially elected to proceed.

Although the majority opinion notes that the court observed jurors snickering at counsel, sometimes that, also, is a trial tactic. If every occasion in which a juror snickers would give rise to a mistrial, then courts might have to try many cases over several times. It is often a trial tactic to get jurors to laugh with counsel, so as to present an effect of a farce or a joke, not a serious proceeding. Certainly, the prosecution would never want this levity to arise during trial. The right to counsel may be waived, like any other constitutional right. Martin v. Rose, 744 F.2d 1245, 1251 (6th Cir.1984). In each case involving a waiver, the particular facts and circumstances must be considered, “ ‘including the background, experience and conduct of the accused.’” Id. (quoting Parshay v. Buchkoe, 427 F.2d 978, 980 (6th Cir.1970)). In this ease, the district court made every effort to allow the defendant and his father to show why counsel was ineffective. Their satisfaction with him as an attorney waived any conduct of his to that point, in view of the court’s inquiry. This is confirmed by the failure of the defendant to raise the issue until his direct appeal had been denied, some six months after the Supreme Court denied certiorari and almost one year after the mandate was entered from *1324this court. Therefore, I would affirm the district court’s denial of the motion to vacate.