Saturday, December 22, 2012

The Trouble With Tribble

The Vermont Supreme Court reversed the conviction of defendant Dennis Tribble, who had admittedly shot his neighbor to death.

The court concluded that the defendant's right to confrontation was violated by allowing a videotape of the testimony of a key prosecution witness to be played for the jury.  The witness was out of the country but willing to return. The error was not harmless.

Counsel did not object to the videotape, but the client did.

The court also addressed a disagreement between client and counsel over trial strategy and concluded that the client's wishes must prevail:

...we conclude that defendant here—having been found competent to assist in his own defense—retained final authority over the decision to present a diminished capacity case.  Plainly, as other courts have recognized, the fundamental right to maintain a plea of complete innocence would be impaired, if not eviscerated, if counsel were allowed, over defendant’s objection, to assert a defense seeking a less serious conviction.  Indeed, as the parties here clearly understood, evidence of defendant’s delusional disorder directly undermined the self-defense theory that defendant preferred by discrediting the claim that his perception of the threat was a reasonable one.  The basic right to contend for outright acquittal that bars defense counsel from overriding a defendant’s objection to instructing the jury as to lesser-included offenses applies with equal force to preclude the assertion of a theory, such as diminished capacity, that supports conviction on a lesser-included charge contrary to a defendant’s express wishes.  Moreover, like insanity, a defense of diminished capacity based on mental impairment is a highly personal and potentially stigmatizing one, and should remain the prerogative of an otherwise competent defendant in the final analysis.  Accordingly, we conclude that the trial court here erred in authorizing defense counsel to assert the defense contrary to defendant’s wishes.    

(Mike Frisch)

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