Ineffective Assistance of Counsel: Criminal Defense Lawyer’s Questions about Defendant’s Post Arrest Silence Opens Door to Cross Examination
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Criminal defendants have a Sixth Amendment right to effective assistance of counsel in criminal prosecutions against them. The United States Supreme in 1984 handed down Strickland v. Washington which set forth the constitutional standard a criminal defendant must satisfy in order to establish that he/she was not effectively represented by their attorney. First, the defendant must prove that the defense attorney’s performance “fell below an objective standard of reasonableness,” and, second, the defendant must prove that counsel’s deficient performance so prejudiced his/her defense that the guilty verdict is unreliable and fundamentally unfair.
Every defense attorney walking into a criminal trial does so with the explicit understanding that his/her actions throughout the trial will be the subject to second-guessing should the result prove unfavorable to the defendant. That’s why the Supreme Court underscored the Strickland decision with the caveat to all state and federal courts reviewing ineffective assistance claims that a defense attorney’s tactical and strategical choices are presumed effective and insulated from second-guessing and hindsight. The Court specifically stated that “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.”
Still, a defense attorney must recognize that he/she has a narrow margin for error. That’s what happened with the defense attorney who represented Wendell Keith White in a 1998 murder trial. In April of that year White went to Koach’s Club where a pool tournament was underway. One of the tournament’s contestants was Tracey Johnson who was at the club with a large group of friends, including Latasha Vasquez. At some point during tournament play Johnson stepped away from a pool table leaving her custom cue stick behind. Upon her return, Johnson found White using the cue stick without her permission and hitting it against the table. Enraged, she began cursing White before the bartender told her calm down and not to cause any trouble. White apologized to Johnson and bought her and her entourage drinks.
The club closed at 2:00 a.m. Shortly before closing time a sequence of events took place which were hotly contested by the parties involved. Johnson said White came up behind her and rubbed up against her as he grabbed her breasts. That groping incident triggered a second cursing outburst with Johnson calling White “just about every name in the book.” Although there was no physical contact between the two parties, one of Johnson’s friends had to restrain her by pulling her away from White. Johnson went outside in the parking lot where she was joined by a large gathering of friends.
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