Cobb, Ruth And Bill Shakespeare

The Maryland Court of Special Appeals (the inimitable Judge Moylan as author) affirmed the denial of relief to a convicted bank robber.

The appellant is Antonio Warren Gantt. His specialty is bank robbery. For a town the size of Lexington Park (population 11,626 as of the census of 2010), the appellant was for a decade a one-man crime wave. Prior to the two bank robberies which we will be mentioning in fuller detail, the appellant had already compiled a not insignificant criminal history.

His first conviction was reversed because he had represented himself and was not advised of possible life without parole

Some indication of the local reaction to the reversals may be had from the August 23, 2011, article in the St. Mary’s County Enterprise which quoted one of the exasperated trial judges, upon being informed of the reversals, as saying, “I think the Court of Special Appeals made a very stupid decision . . . . It’s obvious I hate him. I think he should be hung. Go get me a rope.”

Only Judge Moylan would cherish such a quote!

At the second trial the defendant expressed some displeasure with the judge

You bitch. You are a bitch. You are a real bitch. I never came into this courtroom and did anything. These officers tazed me and they tape me up. You have the nerve to chastise me about if I act up? You were the ones who abused me. I never abused anyone. So I don’t want to hear that shit. We want to go to trial, let’s go to trial. Don’t chastise me like I came into this courtroom and did something to someone. You want me – you got blood on your –

Scene set

Thus, the cast of characters (the appellant) and the mood of the local community. Feelings were running high.

Here the appellant claimed ineffective assistance of appellate counsel for failure to raise a Batson claim. The court  underscores that the choice of appellate issues rests with counsel.

In a relativistic world, the manager who has both a Ruth and a Cobb in his starting line-up will not be second-guessed for having left even a DiMaggio on the bench. Appellate counsel are well advised to be highly selective in choosing contentions and then to go with the best. Even good contentions may prudently be ignored if they are less than the best…

As a deliberate strategic decision, appellate counsel selected five plausible and cogent contentions to pursue on appeal. As an equally deliberate strategic decision, appellate counsel decided not to diminish the possible force of those contentions by diluting them with other probably less persuasive arguments. Counsel sagely followed the Supreme Court’s admonishment in Jones v. Barnes as it quoted with approval Justice Robert Jackson’s article Advocacy Before the Supreme Court, 25 Temple L.Q. 115, 119 (1951).

The court explained the weakness of the Batson claim with a reference to Shakespeare

That analysis passed automatically from step one to step two. The State, without being asked to do so, spontaneously offered an explanation for its peremptory strike.

I know the Court didn’t ask me why I struck juror number 144, but seeing as how it was raised by the defense, I’d like the record to be clear that I struck juror number 144 who is an African American to get to juror 163 who I’ve felt through appearances would be more favorable, quite simply to the State in hearing the evidence. I was impressed with his appearances, his looks.

(Emphasis supplied). The Assistant State’s Attorney, like Brutus, loved not Juror No. 144 less, but only Juror 163 more. That, as the caselaw abundantly confirms, is a race-neutral reason.

In sum

The appellant’s contention is thrice-curst. In the first place, appellate counsel cannot be held to have been ineffective for failing to select for appeal this particular contention when he had far sharper and more persuasive contentions in his appellate quiver. In the second place, appellate counsel cannot be held to have been ineffective for failing to raise  on appeal a contention that suffered the twin procedural infirmities of being unpreserved and of having been waived. In the third place, appellate counsel cannot be held to have been ineffective for failing to raise on appeal a contention that was devoid of any substantive merit. In the last analysis, what was woefully ineffective in this case was not appellate counsel for failing to raise the contention but the contention itself that counsel wisely refrained from raising.

The court treats the Supreme Court decision in Jones v. Barnes as dispositive of the question of the appellate lawyer’s authority to decline to press a non-frivolous issue. 

Per the dissent of Justice Brennan, I respectfully disagree. (Mike Frisch)