Friday, April 27, 2007

Paxton: Nothing New

While I commented earlier that Judge Erdmann's opinion in Paxton (joined by Stucky, Ryan and Baker) is another well organized opinion, once you get beyond the readability you see that Paxton doesn't break any new ground. The issues were 1) did the trial counsel comment on the accused's choice to plead not guilty and remain silent at trial, 2) ineffective assistance of counsel, and 3) an unreasonable multiplication and multiplicity question concerning rape and indecent acts.

Judge Effron dissented regarding the trial counsel's comment on the accused's rights, as he has been known to do in government argument cases (see e.g. Baer, concurring but finding error). I was a little surprised that Judge Baker did not write a concurrence, he is usually very critical of government argument and holds their feet to the fire on these issues. But, in my humble opinion, this one was not close. As Judge Erdmann pointed out, the defense presented evidence from a clinical psychologist. Judge Erdmann quoted his testimony that gave the TC plenty of room to argue that the accused had never admitted he had a problem, even to his doctor,

On cross-examination, Dr. Stone testified that Paxton’s test results showed, among other things, that Paxton had an inability or unwillingness to disclose personal information, that he engaged in “impression management” to present himself more favorably, that he believed other people were largely responsible for his problems, and that he has a lack of initiative and an avoidance of adult forms of autonomy.

Paxton, slip op. at 4.


John O'Connor said...

I agree with your humble opinion that this case was not a close one. I'm trying to figure out how it even drew a dissent, particularly when there was no objection at trial.

I think there's a real danger in trying to place context around closing arguments from reading a transcript. I was in the gallery for an argument that CAAF later found erroneous and reversed the conviction, and the import placed by CAAF on the TC's comments bore no resemblance whatsoever to how they were actually presented at trial.

No Man said...

This case should be a clinical on opening doors to damaging government arguments and how to avoid those by addressing the bad issues in your case on direct. Maybe the trial record contains more testimony that CAAF ignored, but why didn't the DC take the sting out of these admissions or prep his expert to put a little better spin on this bad testimony? I won't comment on. IAC because I've seen a witness ignore explicit instructions and tank a whole part of our case.