While working on a brief, we discovered a Georgia Supreme Court case that I was sorry to have missed when it came out (hat tip to Margaret Flynt). A paradigm shifted in 2010, and I completely missed it. From an optimistic viewpoint, this case shows that almost nothing adds up to ineffective assistance of counsel. To be less than optimistic, this case marked the end of the concept of ineffective assistance of counsel jurisprudence in Georgia.

Let me tell you the story. In the case, two parents were tried for murdering their 8-year-old child. The facts were fairly bad, with a history of child abuse. But the prosecutor’s trial tactics were also fairly horrible. During her closing, she clicked her fingers, which signaled a deputy to dim the lights. An associate prosecutor produced a birthday cake with the victim’s name written on it. The cake had eight candles on it, which were then lit. And the prosecutors sang happy birthday to the victim during the closing (if you were paying attention to the opinion, you’d note that the victim was already eight years old. To blame the defendants for the fact that there would never be an 8th birthday party requires that we scold them for not perfecting time travel.).

Defense counsel never objected or moved for a mistrial. And appellate counsel raised the failure to object as ineffective assistance of counsel. On the stand, trial counsel defended the decision not to object as “sound trial strategy.” Trial counsel gave the standard defense that he “didn’t want to call attention to” the spectacle by objecting. This display, and attempts to call attention to it make me think of Frank Drebin from the movie, Naked Gun. How could you possible call more attention to what is already a P.T. Barnumesque event?

The case reads like self-parody. Have you ever thought that you were reading The Onion only to realize that you were reading an actual news story? The Smith case reads like a satirical version of an IAC narrative written by a person trying to make a point about the state of ineffective assistance of counsel jurisprudence.

I am trying to imagine the backstory. I think, for instance, about the meeting where this idea orgininated. Prosecutors, the true believers anyway, say that they are in it for justice for the victims and not merely to win. So, I wonder if the actual intent of the cake and stuff was to honor the victim’s memory and things just got out of hand. That such a display would trivialize the victim or come off as a little offensive might have been overlooked.

I would also be willing to bet that the bailiffs and courtroom staff ate the cake during a break in the proceedings.

As I imagine the backstory, I think about all of the times that the brakes could have been applied. Like maybe when the prosecutor was at the Kroger bakery. As the details were being ironed out with the baker, you would almost expect an epiphany along the lines of, “did I get all this education and study for the bar so that I could be here doing what I’m doing right now?” But alas, no.

Or maybe a great opportunity was when the prosecutor told the deputy, “Hey, man. Listen. During my closing argument, I’m going to snap my fingers. When I do that, I need you dim the lights for me.”

I’m trying to imagine a defense attorney attempting a similar conversation with a Georgia courtroom deputy. It would never happen. It’s scary to imagine starting that conversation. The defense attorney would be summoned into chambers and yelled at. At the very least the deputy would get offended and say something like “I don’t work for you.”

But while we are on the subject of double standards, I want us to think about this case alongside an earlier IAC case, Nejad v. State. In that case, trial counsel testified that he was ineffective when he ordered his client not to testify at trial.

In a concurring opinion, a Georgia COA judge chided trial counsel, questioned his honesty, and noted that there should be some sanction for lawyers who testify that they made a mistake at trial:

I concur fully in the majority opinion, but write separately to point out an area of increasing concern in claims of ineffective assistance of counsel. Trial counsel’s testimony in this case demonstrates a worrisome trend with serious implications for the bar and the administration of justice. …

Typically, trial counsel in such situations testify primarily to the factual details of their conduct and decisions, and admit errors only with reluctance and with due regard for their professionalism and pride in their work. The developing trend of emphatically and even eagerly testifying to one’s own incompetence or misconduct is dangerous to the administration of justice, particularly if it is allowed to continue without any consequences for the testifying trial counsel.

By contrast, the majority in Smith spends about a paragraph dispatching the IAC claim. The dissent, even in taking defense counsel, the trial court, and the DA to task, never questions the honesty of the “trial strategy” claim or suggests that there should be consequences to such testimony.

Defense attorneys who testify “with pride in their work” at motions for new trial get the same hedge of protection as cops who testify at suppression hearings. The defense attorney who defends his conduct at an appellate or post-conviction hearing enjoys the same treatment as the police officer who explains how he smelled two ounces of raw marijuana that was wrapped in layers of packing, within a closed trunk. Such evidentiary moments assume a willing suspension of disbelief, reminiscent of Samuel Coleridge. Trial courts hear and accept such fictions on a regular basis, and those findings are accorded an extremely deferential standard of review on appeal. The defense attorney is celebrated as an officer of the court until he says that he made a mistake.

Strickland reached the end of its road. Today, we take an opportunity to mourn its passing. I’m headed to the Wal-Mart bakery right now to buy a cake for the birthday that it will never celebrate again.