The Smart Move: Ineffective Assistance of Counsel

Pamela Smart has clicked her heels so many times they must be bruised.

Smart starred as Dorothy in the Bedford Correctional Institution’s production of “The Wiz” and the irony isn’t lost on anyone who’s followed her case over the years — she was convicted of being an accessory to murder 25 years ago today— knows that her ruby slipper strategies haven’t worked so far. She’s exhausted her appeals.

One strategy left for Smart, who’s serving a life sentence without the possibility of parole, may be a claim of ineffective assistance of counsel. Looking at media’s effect on jurors though the prism of the lawyer’s performance might bring her home.

The lessons on the press and criminal justice are clear. From the OJ Simpson miniseries on the FX channel that will wrap up this month to the resurrection of the Reelz Murder Made Me Famous series — which aired an episode on Pamela Smart just this weekend — to Netflix’s Making a Murderer docuseries, media coverage of criminal cases has changed what it means for a lawyer to render effective assistance to a client. Defense attorneys can’t just focus on the courtroom anymore. They have to be able to manage the press since media coverage can affect the outcome of the case for their clients.

Smart’s was the first ever to be blasted across television screens nationwide. It pre-dated Court TV. Her defense attorney, Mark Sisti, has described receiving an “avalanche” of calls from reporters as a way of saying that he couldn’t have answered all of them without neglecting his client.

How a defendant’s Sixth Amendment right to effective assistance of counsel can be violated is often misunderstood in the United States. People equate ineffective assistance of counsel with unethical behavior or malpractice but that’s not always the case. Improper actions or negligence can constitute ineffective assistance of counsel, of course, but so can well-intentioned screw-ups that fall below a certain standard of performance.

By itself, a finding of ineffective assistance has no bearing on an attorney’s career or professional insurance rates. In that sense, petitions to overturn convictions because of ineffective assistance of counsel are more shield than sword; they protect a prisoner but don’t harm anyone else. Even the state, should it lose an ineffective assistance claim, gets another whack at the defendant.

It’s not like its easy to prove ineffective assistance of counsel; courts are generally loathe disturb jury verdicts where the defendant might be guilty. For example, an attorney facing cocaine charges fell asleep while his client was being cross-examined. An appeals court ruled that, because the attorney was awake for a “substantial” portion of the trial, his performance was acceptable.

Another conviction stood even though the <a href=”" target=”_hplink”>defense attorney was arrested for driving under the influence on his way to the courthouse</a> and was still allowed to proceed. An attorney has to make a huge gaffe for courts to find that he was ineffective for a client.

One of the reasons why proving ineffective assistance of counsel is so challenging is that “strategy” saves the worst performances. If what outsiders call mistakes were part of a larger strategy developed by an attorney, then the lawyer’s decisions are often protected and constitute effective assistance, unless the strategy was objectively unreasonable.

It’s hard to imagine what the strategy was in driving drunk or sleeping during a trial. Strategies that pass for objectively reasonable are often laughable. In my claim for relief for receiving ineffective assistance of counsel, the court found that telling jurors three times in closing argument that there was no reasonable doubt was acceptable strategy. So was not reading police reports prior to trial.

Because it was the first ‘trial by media’ case, Smart’s case is actually the perfect — if not the only — case to establish standards on media attention to a trial and how much an attorney must react to it in defending his client, especially when a jury isn’t sequestered.

The finding of whether an attorney’s performance is effective is based on norms and accepted standards, all of which didn’t exist when Pamela Smart was tried; the press coverage was unprecedented at the time. Her lawyer couldn’t have had a strategy to manage the media. And that’s why I think his representation didn’t meet constitutionally guaranteed levels of effectiveness. It’s not that he performed badly; he had no experience in how to separate fact and fiction outside the courtroom.

Several high profile trials have proven that media management is essential to effective criminal defense. The legacy and lessons of the Pamela Smart trial, if not explicitly so, probably shaped the success of O.J. Simpson’s defense just four years later.

Compare Robert Shapiro’s response to New Yorker reporter Jeffrey Toobin’s unannounced appearance at his office. At first, Shapiro sent him away but called him back once he realized that Toobin was his chance to shape the narrative of the case, regardless of the facts. And Toobin’s article — which was eventually expanded into a book and the FX channel’s miniseries — is the prism we use to this day to look at the People v. Orenthal James Simpson.

That’s the real problem with media coverage of any criminal case; the the arc, the story never has to be inconvenienced by the truth or evidence in the courtroom. The racial narrative of OJ Simpson’s being targeted by the Los Angeles Police Department was unsupported by the forensics of the case but that’s the story we know.

The same thing happened to Pamela Smart — the narrative of her being a teacher (not true) who seduced her student, Billy Flynn (not true) who was a virgin (not true.) He was, in fact, sexually active with other women at the time of his dalliance with Smart, including a woman, who, like Smart was older than himself and who confirmed their liaison outside the courtroom, according to Dr. Eleanor Pam, Smart’s Academic Mentor and spokesperson.

This false narrative fanned passions to the boiling point against Smart by suggesting that she, an adult with authority over Flynn, exploited this innocent and sexually inexperienced child by encouraging his romantic aspirations and inducing him to murder her husband in order to delete him from her life. But Pamela Smart was a newlywed who stood to gain nothing from her husband’s death since she was unaware of a life insurance policy he took out as a condition of becoming an insurance salesman.

All these inflammatory fictions overtook the public — which happened to include the jurors because they weren’t sequestered — who probably could never comprehend the facts of the case without that narrative string to connect them.

By themselves, the fact that Flynn might have been more sexually experienced than Smart or her commitment to her marriage doesn’t necessarily clear her of plotting the murder. What it does is challenge the story that aligns the evidence into a meaningful sequence for jurors in situations where the crime is so senseless that it can’t be understood.

I experienced the same thing, just to a much smaller degree. During and after a trial for identity-theft related charges, a couple of articles in local papers portrayed me as a greedy, spoiled kid making other people pay for things so I wouldn’t have to do it myself.

Except I already owned the items that were ordered and shipped to my address — minus the $40,000+ diamond necklace that no one would ever order through the mail, so why did I want them, especially since I am smart enough to know that an item that expensive would never be written off as a loss and someone would come looking for it? The narrative also included a claim that the local police department had conducted a sting operation in which they caught me on video signing for a package. There’s a video but the only thing I do on it is look quizzically at the police and ask for my father.

But the narrative sticks. It sticks with jurors and for years after a case and is almost impossible to erase with an appeal.

There have been defendants tried in the media who are acquitted by a jury. Casey Anthony’s case proves that effective assistance can be delivered in the hailstorm of negative press. The strategy? Properly sequestering and shielding the jury from the media. Pamela Smart, though, didn’t have that advantage. Her jurors soaked in that media for her whole 14-day trial.

Of course, there are ethical implications to media interaction, too, and an attorney can devote too much time to the press and sacrifice performance for his client. Mickey Sherman, defender of Michael Skakel, faced so many accusations that he was a media hound that his website advertises: “I may be on TV a lot but I’m a nuts-and-bolts criminal defense lawyer available to you 24/7.” Skakel is awaiting retrial — unless the State of Connecticut prevails in the Supreme Court — because his conviction for murdering Martha Moxley was vacated because Sherman’s representation of him was subpar — he was too focused on the media coverage of the Kennedy cousin’s trial.

The Skakel decision did something important though for all high profile cases; it married media management and effective assistance of counsel and said, essentially, that attorneys must handle the press adequately — not too much but also not too little — when the news is trying their clients. Ignoring or overcompensating press requests so that a non-factual narrative develops is constitutionally inadequate representation that can end in an unfair trial.

I see new life in Pamela Smart’s case if a lawyer can figure out where he can argue ineffective assistance of counsel. Last December, a court in New Hampshire refused to release evidence from Smart’s original trial, a tacit admission, in my opinion, that the court that convicted her knows that the fight is not over, that Smart’s trial was unfair and that she may utter those words “There’s no place like home” and actually end up there.