Compliment Contradicts Ineffectiveness Claim

The West Virginia Supreme Court of Appeals affirmed the denial of habeas corpus relief to a person convicted of sex offenses who claimed, among other things, ineffective assistance of counsel.

His attorney had been suspended after a motorcycle accident caused a traumatic brain injury. He was reinstated before the trial and committed suicide after,

The court

The constant theme throughout each of the Petitioner’s ineffective assistance of counsel claims was that due to his trial counsel’s traumatic brain injury that caused “cognitive difficulties” his trial counsel was so ineffective that “there is a reasonable probability that a jury would have acquitted . . . [the Petitioner]” but for his trial counsel’s performance. The Petitioner over and over again tries to paint a picture of his trial counsel being so confused and mentally inept due to his traumatic brain injury that he was wholly deficient in his representation of the Petitioner. Despite the Petitioner’s assertion, it is significant that at the close of this trial, after the jury had been excused to deliberate, Judge Gina Groh, who presided over the trial before her appointment to the United States District Court for the Northern District of West Virginia, stated on the record to both the prosecutor and the Petitioner’s counsel: “I want to compliment you all on your professionalism, and I think this case can go either way due to the good efforts put in by both the state and the defense counsel. I think you both did an excellent job.” (Emphasis added). Our review of the record comports with the trial court’s observations.

Justice Benjamin concurred

To the extent that the majority’s reasoning may be read to imply that the primary purpose of an omnibus hearing is automatically defeated where trial counsel is unavailable, I disagree. It is my opinion that, while important, the availability of trial counsel to testify at a hearing alone does not weigh for or against the need to hold an omnibus hearing. The facts of the case determine the primary purpose for an omnibus hearing and whether testimony from trial counsel or others is necessary. Because the facts of the present case show that an omnibus hearing was unnecessary, I agree with the circuit court’s decision to deny the petition for habeas corpus without holding an omnibus hearing.

(Mike Frisch)