Thursday, June 18, 2009


I try to pay some limited attention to what goes on in the Texas courts. I'm often horrified by what I find. Still, there are lessons one can learn. So, it's time for another installment in the growing Sit-down-and-shut-up series (here).
Dayana Delgado testified that three men broke into her house, hit her, and tied her up, and that one attempted sexually to assault her. Based on their accents, she believe that two were Colombian and one was Dominican. Sandy Agosto was charged as one of the men and went to trial. As the court of appeals wrote:
The jury found Agosto guilty. During the punishment phase, defense counsel called Agosto to the stand to prove eligibility for probation. On direct examination, Agosto testified that he was from Puerto Rico. He also stated that he wanted to give testimony to the jury. He stated that he did not agree with the jury’s verdict and wanted to be able to give his testimony about “how things really were.” He testified that he was not at Delgado’s house and that he had never seen her before. Defense counsel declined to ask Agosto additional questions along these lines.
On appeal, Agosto argued that his lawyer should have let him testify more.

It's not a frivolous claim. As the court recognized, criminal defendants have an absolute, fundamental right to testify in their own behalf. SCOTUS told us that more than 20 years ago in
Rock v. Arkansas. Denial of that right is a major problem. In this case, and during cross examination while he was on the stand, Agosto made clear that he had things to say.
Prosecutor: Do you agree with the jury's verdict.
Agosto: No. I want to be able to give my testimony, to give my testimony how things really were.
Prosecutor: OK. Were you there that day?
Agosto: No.
Prosecutor: OK. So you are saying that the jury got it wrong in this case, correct?
Agosto: They have not heard my testimony.
Prosecutor: Now, Mr. Agosto, you did hear the testimony in this case though, correct?
Agosto: Yes, but I did not have the opportunity to give my version.
Prosecutor: Now, having heard the testimony in this case, you heard Ms. Delgado get on the stand, correct?
Agosto: Yes, I heard her.
. . . .
Prosecutor: And she would have no way to know about you being connected with that car, correct?
Agosto: I don't know her. I have never seen her.
Prosecutor: Okay, that is kind of the next thing. You have never seen her before, correct?
Agosto: Never. I have never had any dialogue with her or seen her in my live, never in my life.
Prosecutor: And you never threatened her at any point in time, correct?
Agosto: I don't know her, you know, even where she comes from. I just don't know her.
Prosecutor: I mean, she would have no reason reall at all to point you out in this lineup, correct? It is not like you all have a grudge against each other, correct?
Agosto: Yes; but if you give me the opportunity to talk to the jury and let them hear my testimony, then you will find out that I didn't have anything to do with this, that I don't even
know her.
No redirect from Agosto's counsel.

So, it's pretty clear that Agosto wanted to testify more and didn't get the opportunity. That's a violation of Rock.

But this post isn't about the right to testify, remember, it's about sitting down and shutting up. Agosto's attorney gets to decide which witnesses to call and what to ask. And while Agosto has a right to overrule that call, if he can't convince his lawyer, he has to force the issue on the court. If it's just the lawyer, then it's a question of counsel's strategy.

The court of appeals saw this as an issue of ineffective assistance of counsel, a typical claim, regardless of whether it's ultimately successful, in criminal appeals. To win that claim, SCOTUS says, you have to show that counsel's behavior was unreasonable, that it was incompetence, not just a poor choice of trial strategy.
After the jury left the courtroom to deliberate on punishment, defense counsel offered, on the record, his reasons for not asking more questions of Agosto during the punishment phase. He said that he “believe[d] that he would – and not wanting to go into any attorney/client conversations – basically, he would lay out the facts in which the jury could conclude that they were basically right; and that he was guilty. It would have been more evidence.” As for why he did not call Agosto during the guilt/innocence phase, he said, “[I] advised him to exercise his Fifth Amendment right because I believed that his testimony, especially on cross-examination . . . basically supplied more information to connect him with the crime.” He stated that it was trial strategy not to call Agosto to testify.
Let's recap. Trial counsel elected to explain on the record that he had strategic reasons for not letting Agosto testify. Why in Chief Justice Warren's name would he do that?

Rule for trial counsel: Do not make a record that the decisions you've made were carefully thought out strategy.

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