The recent reversal of Heidi Anfinson's murder conviction on grounds of ineffective assistance of counsel has me thinking about the strategic choices criminal defense attorneys have to make when choosing a defense.
Generally speaking I think you can characterize defense theories into two categories. The first would be an outright denial: an "I didn't do it" defense. The second type would be mitigation defenses: "I did it, but...".
Which type of defense you choose shapes not only the strategy you take in defending the case, but the tone in which you do it. It is much easier to be aggressive in the defense of a client that is basing his defense on "I didn't do it". There isn't a lot to think about with that defense. Expert witnesses are generally not needed, maybe in an OWI case or if you had an issue with a false confession or misidentification of the defendant by a witness.
With a mitigation defense, you are often times only attacking a portion of the State's case and evidence against you. You are admitting that you may have done most, if not all of the actions that you are accused of, but you are saying that because of some intervening reason, you should not be held criminally responsible for your actions. Because you are fighting fewer issues with these defenses it focuses your discovery issues (production of evidence by the State) and generally makes for a less confrontational pretrial process. Often times these case become a "battle of the experts".
So which defense is right for you and your case? It depends completely on the facts of the case. Criminal defense lawyers (believe it or not) are ethically bound to not present evidence that is not truthful. I mean that with all seriousness. If a client comes to me and tells me he did do it but he's got some friends that will say that he was with them at the time of the crime, I am not going to put that defense forward. Its a lie. If the client comes to me and says he didn't do it and he has friends that will say he was with them at the time of the crime I will put that defense forward, even if the State has some evidence against that. Obviously the more evidence the State has that will overcome a particular defense can make you think twice about whether you want to put on that defense, but you aren't ethically prohibited. So the facts are the key. I will always review the affirmative defenses listed at Iowa Rule of Criminal Procedure 2.11(11) no matter what the allegations is. If it is an assault case, drunk driving, theft, or murder, I will always look at those defenses. Granted, in an OWI case, the review is much quicker, since those defenses are almost never used, but you always do it to be sure.
Where Heidi Anfinson's attorney ran afoul of his responsibilities as a criminal defense lawyer was that he ignored evidence that would assist a particular defense. If people around the defendant are saying that there were mental issues with the defendant you have to look into it. If you do nothing you are not effectively representing your client. If Anfinson's attorney would have looked at the information, requested medical records, and done a thorough investigation before rejecting that defense, this case would nothave been reversed. Lawyers are permitted wide discretion in selecting the defense to present at trial. If they decide that there is a reason not to go with a particular defense, then that is their call. If the defendant disagrees, they need to get a different attorney. But the discretion granted to an attorney to choose a defense is based on the assumption that the attorney has looked at ALL of the defenses available and has done his job. When you ignore defenses or don't do the work needed to make an informed decision on what defense to choose, it calls into question the result in the case and whether or not justice was really done.
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