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.


White would later testify under oath that he exited the bar, walked away from Johnson and her friends, and headed toward his pickup truck. Johnson and one of her male friends followed White to his truck. Throwing her hands up in the air, Johnson started yelling at White who said he just wanted to “get out of there … [b]ecause I’m afraid they’re going to jump me.” One of Johnson’s male friends snatched the driver’s door of the truck open and punched White in the face several times knocking his glasses off while another man tried to pull him out of the truck. During all this confusion White managed to get the truck started and was forced to flee through the angry mob which, by then, had surrounded his vehicle. In the process driving away, White ran over Johnson and struck Vasquez. Johnson was critically injured and Vasquez was killed.


Not realizing he had hurt anyone, White managed to get away from the scene and drive home with several people from the mob giving chase. The police arrived at White’s residence and took him into custody. The suspect elected to remain silent, answering only those questions put directly to him by the officers. He did not tell the police anything about the mitigating and exculpatory events surrounding the mob attack. He did not know he had struck anyone until he was advised of the fact by the arresting officers. White was subsequently indicted and convicted of murder and aggravated assault. He was given a 40-year term for the murder conviction and a 20-year term for the assault conviction.


White’s defense at trial was that he struck the two women by accident and did not intend to run them over. The defense is recognized as a “lack of intent” defense. White was the only witness who could testify about the critical issue of what he intended that night in the parking lot of Koach’s Club. His defense attorney had no choice but to put him on the witness stand.


It is always a touchy, critical decision for a defense attorney: when to let a defendant testify. That decision should be made only after careful preparation and investigation by the defense attorney as to what questions should or should not be asked of the defendant. White’s attorney knew the defense rested exclusively on the lack of intent issue; therefore, he had a fundamental duty to avoid any line of questioning that would open the door to allow the prosecution on cross to undermine that defense. White’s attorney did not adhere to this strict duty. He carelessly asked several critical questions which revealed White had not told the police about the mitigating and exculpatory chronology of events on the night of the offense. Specifically, counsel asked White whether he had talked to the police while being driven to the downtown jail and White responded he had not. Counsel then asked White if he had given his “version of the events to anybody? Had he told them what happened?” White said “no.” The proverbial genie was loose.


Article I, Sec. 10 of the Texas Constitution gives broad protection against self incrimination, preventing both post arrest and pre-Miranda silence from being used against a defendant in a criminal proceeding.  In fact, Texas law goes further than federal law and prohibits a prosecutor from impeaching a testifying defendant with post-arrest silence as prior inconsistent conduct.  However, in White’s case, his attorney’s questions about his post arrest statements to police opened the door to the prosecutor’s cross-examination and subsequent remarks in closing arguments.


The prosecutor seized the moment on cross, grilling White extensively about his post-arrest silence. She in effect told jurors that they should not believe White’s “lack of intent” defense—that he accidentally struck the victims with his truck because he had lost his glasses during the melee as he tried to flee from the crowd—because he did not tell the police his side of the story after he was arrested that night. The prosecutor began her attack with the simple question as to whether White had “asked any questions about why you were in jail?” White said he asked the booking officer who reportedly informed him about the charges against him. The following devastating cross examination occurred:


Q. And I’m sure that when the Fort Bend officers arrived at your home that would have been a welcome sight for you.
A. It was.
Q. There was a mob of people out there ready to kill you, right?
A. It was a welcome sight.
Q. Because there was a mob of people that were about ready to kill you. Isn’t that your testimony?
A. Yes, that’s my testimony.
Q. And did you say to them, thank goodness you’re here officer because Lord Almighty I was scared to death. I was about to lose my life.
A. No, I didn’t say that.
Q. Why not?
A. I just didn’t say that.
Q. Well did you say anything? I’m so glad you’re here I’m scared to death. People have been chasing me all night. I thought I was about to die. Did you say any of those things.
A. They started with the initial conversation. I answered [the] the questions they asked me. What was my name and was I driving that white vehicle.
Q. And that’s when you –
A. That’s when I was handcuffed and put in the back of his squad car.
Q. And did you say to him why am I being handcuffed Lord Almighty I was just about to be killed out there. Did you say anything like that?
A. No, I didn’t say anything like that.
Q. Why not?
A. I don’t know why.
Q. Surely someone that was injured or misjudged would have wanted to set the record straight. Why didn’t you do that?
A. I didn’t say that.
Q. Well why didn’t you set the record straight? Does it make sense that you wouldn’t?
A. I didn’t say that.
Q. Why not?
A. I don’t know.
Q. Why didn’t you at any time tell them any of these things that you’re now telling the jury?
A. No one ever asked me any questions. Any questions that I was asked I gave a reply to.
Q. So it doesn’t matter if they ask you the question. If they don’t ask you’re just going to jail for something you didn’t do. They have to specifically ask you the question.
A. I was handcuffed. I asked why was I handcuffed. I did ask that. They didn’t answer my question. That was enough.
Q. But you didn’t tell them anything about the vicious beating that you received at Koach’s Club. You didn’t tell them anything about that?
A. They didn’t come to me to listen to a story. I was by myself.
Q. I guess my question is you’re telling the jury that you thought you were about to die that night?
A. That’s correct.
Q. And the police officer comes in and do you think the police officer is there to take care of what had happened to you?
A. I was thinking that he is, yes.
Q. You were thinking the police officer is there ‘cause your wife call him, right?
A. No. I think he’s there because of a traffic violation or something when we were, when they were trying to run me off the road. I thought they might have [seen] part of that.
Q. So you’re glad the police are there because you think –
A. Yes.
Q. You think they’re there because he witnessed you commit a traffic violation?
A. That’s correct.
Q. But yet [he] places you in handcuffs, right?
A. Right.
Q. And you’re thinking how unjust is this, right?
A. Right.
Q. I’m the victim here.
A. Right. I thought he was talking to the other people there and I thought he might have just been getting their stories first. You asking me what I’m thinking at this point.
Q. But they didn’t put them – he didn’t put them in handcuffs, right?
A. No he didn’t.
Q. He only put you in handcuffs?
A. That’s correct.
Q. And when did it start to dawn on you that the other people weren’t being charged with anything it was just you?
A. It never dawned on me.
Q. Never did?
A. No.
Q. And you never tried to set the record straight?
A. No I didn’t.
Q. And eventually when you were charged with murder and attempted murder then did you say wait what’s this all about. I don’t know what you’re talking about. Did you say that to anybody?
A. Anybody where?
Q. Anytime any …
A. Yes, I did.
Q. Who?
A. My attorney.
Q. And when was that?
A. When I called him. When I talked to him.
Q. All right. But nobody from the police department?
A. Nobody from the police department ever questioned me or talked to me.
Q. But you never made any type of effort to tell them or ask them what was going on?
A. Ma’am I did.
Q. Who?
A. I asked the police, the guards. They don’t – they say they don’t know what’s going on.
Q. Well I’m talking about any of the officers that you dealt with that night specifically.
A. I had no contact with those officers.
Q. What about Officer King?
A. No contact.
Q. Well he testified that he asked you how tall you were and how much you weighed. You remember that?
A. I remember his testimony.
Q. But are you saying that he wasn’t even at the scene?
A. I never met him before. That’s my testimony.
Q. So he wasn’t even at the scene?
A. I didn’t say he wasn’t at the scene. I never met him.


Then, during closing argument, the prosecutor’s emphasized White’s post-arrest silence, telling the jury: “What is it we can look at to determine what a person’s intent was? And there were some people that said if he made a confession to the police, if he told the police what happened and that’s obviously a very good indicator of what a person’s intent was but we don’t have that in this case.”


A few moments later the prosecutor zeroed in on the significance of White’s post-arrest silence: “There is no a way in the world he could not have known that he didn’t run over those two girls. But even so, even if you believe that he didn’t once he’s [been] told [that he did] don’t think he would tell the police or do something or explain to them in some kind of way what his story is, his innocence? I was being chased by people wielding pool cues. I thought I was going to die. I was scared to death. Did he tell his wife that? No. Did he tell Fort Bend [police officers]? No. Did he tell Houston Police Department [Officer] Cibulski? No. Did he tell Officer King? No. Did he tell anybody? No. The first time we hear about it is during his trial. Isn’t that convenient?


“Officer King did tell us that he did inform the Defendant what he was charged with. Told him. Tried to get information from him. And by the way there’s a big [mis]conception about Miranda rights. To anybody that’s been arrested it’s only if they plan to get a statement from them to find out what their side of the story is, if they want to tell it the officers are required to tell the Defendant what his rights are, if he’s going to make a statement so the fact that Wendell White was not read his Miranda rights means nothing because they didn’t try to get a statement from him. Don’t be misled by that  …


“The fact that he didn’t tell the Houston Police Department or anybody else gives you an indication about his state of mind at the time and how the story developed.”


The Fifth Circuit Court of Appeals on June 20, 2010 in White v. Thaler found defense counsel’s trial decision to question White about his post-arrest silence undermined the “lack of intent” defense and amounted to ineffective assistance. The federal appeals court succinctly explained why:


“As it is clear from the above-captioned portions of the trial, the prosecutor verbally pounded White with his failure to tell the police his exculpatory versions of the events. It is apparent that the prosecutor was mocking White’s testimony that the crowd had made him fear for his life. Counsel’s opening the door to this testimony allowed the prosecutor to impeach White with his silence as if it constituted prior inconsistent conduct. Further, during closing argument, the prosecutor relied on White’s post arrest silence to argue that White was not credible. The principal issue at trial was White’s intent at the time of the offenses. Thus, White’s credibility was the key to his defense that it was an accident. During state habeas proceedings, the same judge who had presided over White’s trial found that the ‘State fully exploited’ the evidence of White’s post-arrest silence. Although the state trial judge’s opinion does not control our decision, we note that the only judge who observed the witnesses’ testimony and evidence concluded that white had established a reasonable probability of a different outcome but for counsel’s invited error. In view of the lengthy, unrelenting cross examination of White regarding his post-arrest silence and the prosecution’s reliance on the same to demonstrate that White was not telling the truth when he testified that he did not know he had run over the victims, we are convinced that the TCCA’s [Texas Court of Criminal Appeals] conclusion that White had not shown a reasonable probability of a different outcome is objectively unreasonable.”


The Texas Court of Criminal Appeals since 1986 with its decision in Sanchez v. State has held that a defendant’s post-arrest silence cannot be used to impeach him/her. Once White’s attorney identified “lack of intent” (or the “accident” theory) as the defense he would pursue, he was locked into the inevitable decision of putting the defendant on the witness stand. He could have questioned White at length about his version of the events the night of the offense and the prosecutor would have been limited on cross strictly to those events. The prosecutor could not have injected defendant’s post-arrest silence on cross absent the defense first raising the issue on direct.


Absent defendant’s post-arrest silence, the jury would have been confined to deciding the case based on the credibility of the various witnesses who testified about what happened in the parking lot at Koach’s Club. White had a credible defense. The bartender saw the initial confrontation with Johnson and White, especially her aggressive reaction. There was at least some testimony about the large gathering of Johnson’s friends in the parking lot and her confrontational demeanor there, although there were disputes as to who did what and when. The jury could have easily believed that White simply wanted to get away from the mob and because his vision was blurred by the fact that his glasses had been knocked off during in the scuffle inside his truck, he did not know he had run over the two girls and, therefore, could not have intended to harm them.


But once defense counsel opened the door to the post-arrest silence issue, the prosecution had every right to twist and manipulate White’s silence any way it saw fit—and as the prosecutor’s cross-examination reflected, the defendant’s decision, for whatever reason, not to tell the arresting officers about his version of the events was devastating to his lack of intent defense.


The Fifth Circuit’s decision in White v. Thaler is a cautious reminder to defense attorneys of the pitfalls involved in either the direct or cross examination of witnesses. One wrong question, regardless of how inadvertent, can open the floodgates to disaster—and while the Fifth Circuit rectified the situation in the White case with a finding of ineffective assistance, such a finding is rare. But it is enough of a warning to signal defense attorneys that there’s no substitute for preparation in a criminal trial. Every criminal defense attorney has faced a situation where he/she had to “fly by the seat of their pants” in the heat of a trial but it is not a good practice. Preparation is the only safeguard to ineffective assistance.


NOTE: The background facts in the White case were gleaned from the White v. Thaler decision. U.S. Court of Appeals, Fifth Circuit, No. 06-20736, June 30, 2010.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair