In a disturbing opinion, a U.S. Court of Appeals has over-turned a writ of habeas corpus in a case where a prosecutor repeatedly made improper references during trial to the defendant's failure to testify in a prior child custody hearing. For example, the prosecutor asked the defendant on cross examination why he chose not to defend his position and "sat there like a bump on a log" during the custody hearing involving his minor daughter. Later, during closing arguments, the prosecutor referred to the defendant as "the guilty man in (family) Court being whispered to by his lawyer saying don't get involved in this, they might find something out". As the crime being tried was a sexual offense against the same child who was the subject of the custody hearing, a federal district judge later issued a writ of habeas corpus freeing the defendant after finding the prosecutor violated his Fifth Amendment right against self incrimination and his due process right to a fair trial. The judge also found trial counsel ineffective for failing to object to the State's conduct.
Unfortunately, the appellate court quashed the writ, finding the defense had "invited" the prosecutor's wrath by raising a defense that the government had "rushed to judgment" on the facts and the defendant's guilt. This Court also rejected the ineffective assistance claim, finding counsel's strategy to pursue this theory was not constitutionally defective. What makes this result troubling is that unlike many cases, the evidence of guilt here was not overwhelming. Indeed, the district judge noted that the verdict came down to who the jury believed, the defendant, or the 12 year old accuser, as they were the only witnesses to the alleged event. There is no doubt that the prosecutor's wrongful attacks damaged the defendant's credibility and likely swung the verdict against him. Net result, the defendant shall serve between 8 to 15 years in the Michigan state penal system. See, Hall v. Vasbinder, __F.3d__ 2009 WL 1066082, C.A.6 (Mich.), April 22, 2009 (NO. 08-1475).
Bottom line, this case highlights the danger of ongoing civil proceedings when a client is facing a criminal investigation. We are encountering this frequently with increased litigation over failed investments and development projects. It is often wise for the client to refuse to testify in depositions or civil proceedings, but the matter must be handled such that the client, unlike Mr. Hall, will not spend the next decade or more of his life in prison as a consequence of invoking his constitutional right.
Until next time,
Todd