Friday, February 29, 2008

Well Conceived Defense Not Ineffective Assistance

The Massachusetts Supreme Judicial Court affirmed a conviction for first degree murder, rejecting claims of prosecutorial misconduct and ineffective assistance of trial counsel. The court concluded that the prosecutor crossed the line of permissible argument in making a reference to "torment our women." The case involved a dark-skinned Hispanic male who was alleged to have murdered a white woman. The court states:

"The particular phrase should not have been used. A prosecutor's duty is to avoid assiduously interjecting racial prejudice into a case, and the phrase 'our women,' in the context of this case, has that potential. We view this as error. However, the statement was isolated and there is no hint of a similar error elsewhere in the prosecutor's closing or the trial as a whole. The focus of this portion of the argument was the strength of the circumstantial evidence, particularly the keys. That argument was very logical and methodical. The absence of any objection from experienced defense counsel suggests that the tone of the argument was not inflammatory or an attempt to interject racial prejudice into the trial. The judge's instruction to determine the facts in a "fair and impartial" manner and "without ... any bias, any prejudice or any sympathy," adequately checked any unlikely taint this minor error may have caused. We conclude that the remark did not create a substantial likelihood of a miscarriage of justice."

The body of the victim was not found for over a week. The last person known to have seen her alive was Pilon. Pilon and the victim had ended a romantic relationship but remained friends. The defense theory at trial was the Pilon, not the accused, had committed the murder. Defense counsel was alleged to be ineffective in failing to interview the victim's neighbors. The court rejected the claim:

"Counsel is not required to raise every conceivable defense. Indeed, while defenses may be compatible, they also may be incompatible, conflicting, or even contradictory. Even compatible defenses may dilute each other, and counsel may decide reasonably to proceed with only one. It is counsel's duty to exercise his or her best judgment in selecting a strategy that best fits the unfolding circumstances. When counsel's strategic decisions are in issue, we must show "some deference to avoid characterizing as unreasonable a defense that was merely unsuccessful." Commonwealth v. White, supra at 272. We cannot say that counsel's strategy here was manifestly unreasonable. Rather, it appears well conceived, well prepared, and developed through the exercise of sound professional judgment."

The case is Commonwealth v. Montez, decided yesterday. (Mike Frisch)

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