The Trouble With Tribble

The Vermont Supreme Court reversed the conviction of defendant Dennis Tribble, who had admittedly shot his neighbor to death.

The court concluded that the defendant’s right to confrontation was violated by allowing a videotape of the testimony of a key prosecution witness to be played for the jury.  The witness was out of the country but willing to return. The error was not harmless.

Counsel did not object to the videotape, but the client did.

The court also addressed a disagreement between client and counsel over trial strategy and concluded that the client’s wishes must prevail:

…we conclude that defendant here—having been foundcompetent to assist in his own defense—retained final authority over thedecision to present a diminished capacity case.  Plainly, as other courtshave recognized, the fundamental right to maintain a plea of complete innocencewould be impaired, if not eviscerated, if counsel were allowed, overdefendant’s objection, to assert a defense seeking a less seriousconviction.  Indeed, as the parties here clearly understood, evidence of defendant’sdelusional disorder directly undermined the self-defense theory that defendantpreferred by discrediting the claim that his perception of the threat was areasonable one.  The basic right to contend for outright acquittal thatbars defense counsel from overriding a defendant’s objection to instructing thejury as to lesser-included offenses applies with equal force to preclude theassertion of a theory, such as diminished capacity, that supports conviction ona lesser-included charge contrary to a defendant’s express wishes. Moreover, like insanity, a defense of diminished capacity based on mentalimpairment is a highly personal and potentially stigmatizing one, and shouldremain the prerogative of an otherwise competent defendant in the final analysis. Accordingly, we conclude that the trial court here erred in authorizing defensecounsel to assert the defense contrary to defendant’s wishes.   

(Mike Frisch)