Well Conceived Defense Not Ineffective Assistance

The Massachusetts Supreme Judicial Court affirmed a conviction for first degree murder, rejecting claims of prosecutorial misconduct and ineffective assistance of trial counsel. The court concluded that the prosecutor crossed the line of permissible argument in making a reference to “torment our women.” The case involved a dark-skinned Hispanic male who was alleged to have murdered a white woman. The court states:

“The particular phrase should not have been used. A prosecutor’s duty isto avoid assiduously interjecting racial prejudice into a case, and thephrase ‘our women,’ in the context of this case, has that potential. Weview this as error. However, the statement was isolated and there is nohint of a similar error elsewhere in the prosecutor’s closing or thetrial as a whole. The focus of this portion of theargument was the strength of the circumstantial evidence, particularlythe keys. That argument was very logical and methodical. The absence ofany objection from experienced defense counsel suggests that the toneof the argument was not inflammatory or an attempt to interject racialprejudice into the trial. The judge’s instruction to determine thefacts in a “fair and impartial” manner and “without … any bias, anyprejudice or any sympathy,” adequately checked any unlikely taint thisminor error may have caused. We conclude that the remark did not createa substantial likelihood of a miscarriage of justice.“

The body of the victim was not found for over a week. The last person known to have seen her alive was Pilon. Pilon and the victim had ended a romantic relationship but remained friends. The defense theory at trial was the Pilon, not the accused, had committed the murder. Defense counsel was alleged to be ineffective in failing to interview the victim’s neighbors. The court rejected the claim:

“Counsel is not required to raise every conceivable defense. Indeed,while defenses may be compatible, they also may be incompatible,conflicting, or even contradictory. Even compatible defenses may diluteeach other, and counsel may decide reasonably to proceed with only one.It is counsel’s duty to exercise his or her best judgment in selectinga strategy that best fits the unfolding circumstances. When counsel’sstrategic decisions are in issue, we must show “some deference to avoidcharacterizing as unreasonable a defense that was merely unsuccessful.”Commonwealth v. White, supraat 272. We cannot say that counsel’s strategy here was manifestlyunreasonable. Rather, it appears well conceived, well prepared, anddeveloped through the exercise of sound professional judgment.”

The case is Commonwealth v. Montez, decided yesterday. (Mike Frisch)