Dobson v. United States

SCHWELB, Associate Judge,

concurring:

The offense in this case was committed on June 6, 1978, more than twenty-four years ago. Dobson’s § 23-110 motion was filed almost fifteen years after the rob*759bery. At the time of the hearing of the motion, Dobson’s trial attorney had little active recollection of what took place at trial and had to rely primarily on a reconstruction based on available written materials.

If Dobson’s convictions were now to be vacated so many years after the events in question, it would probably be impossible for the prosecution to present the case again. Such delay is a part of the court’s calculus that the court must consider, see Dobson II, supra, 711 A.2d at 84, and under all of the circumstances I do not believe that trial counsel’s performance was sufficiently deficient to warrant reversal under Strickland, supra.

My view of the case, however, is somewhat different from Judge King’s. Some of the justifications for trial counsel’s tactics in this case strike me as quite unpersuasive. An alibi defense is not an alternative to a defense based on the weakness of identification testimony; on the contrary, the two defenses ordinarily complement each other. A defendant with a strong alibi can argue that of course the identification testimony is weak, because the defendant was not there. Similarly, the weakness of the identification makes alibi evidence more credible.

If the alibi defense in the present case was strong enough for counsel to use his opening statement to promise to present it, then it did not lose its persuasiveness when the prosecution presented somewhat weaker identification testimony than had been expected. If, on the other hand, presentation of the defense was risky because it might require disclosure of other criminal activity on Dobson’s part, that danger existed at the .time counsel made his opening statement.1 Surely, under those circumstances, the sensible course of action would have been to defer any mention of the alibi defense until it became clear to Dobson’s attorney that the benefits of presenting it outweighed its risks, and that counsel therefore ought to use it. If the risk/benefit calculus was uncertain, then a prudent silence at the time of opening statement would have avoided the obviously unfavorable consequence of promising important testimony to the jury and failing to deliver it — a tactic which surely risked undermining the jury’s confidence in the reliability of counsel’s entire presentation.

I recognize that circumstances often change during a trial, and that almost a quarter of a century after the fact an appellate court has the benefit of 20/20 hindsight. Dobson’s attorney, on the other hand, had to make important tactical decisions quickly and while under the considerable pressure of a trial in which counsel’s client’s long-term liberty was at risk. I cannot say that Dobson’s attorney’s performance was so deficient that he did not function as the “counsel” guaranteed by the Sixth Amendment. See Strickland, supra, 466 U.S. at 687, 104 S.Ct. 2052. But if the prolonged delays which have distorted this litigation had not occurred, and if vacation of Dobson’s conviction would not require the government to prove events that took place nearly a quarter of a century ago, then I would regard the correct disposition of this appeal as a close call indeed.

. Judge King refers to D-Day as "Dobson Day." But June 6, 1978, was also the anniversary of D-Day, June 6, 1944, the date of the invasion of Normandy by the Allies during World War II.