Is it IAC for Attorney to Waive Closing Argument?

It can be a very effective tactic to waive a client’s opening statement at trial, as it deprives the prosecution of an outline of what to expect in trial.  We at Greg Hill & Associates were rewarded with a not guilty verdict in a DUI trial using this approach.

Waiving closing argument is a completely different tactic that, we think, is unwise, if not ineffective assistance of counsel.

The United States Court of Appeal for the Ninth Circuit recently was presented with such a case, wherein defense counsel waived closing argument in a second-degree murder trial in federal court in Nevada.  As California is within the Ninth Circuit, the Ninth Circuit Court of Appeals’ ruling governs a similar trial, were this to happen in California.  We therefore present the following summary.

Zachary Kelsey went to a bonfire party attended by forty to sixty individuals in their teens and early twenties.  During the party, several fights broke out.  One was between Mr. Kelsey and Jared Hyde.  Kelsey allegedly hit Hyde in the face two to three times.  Kelsey allegedly bragged about knocking out Hyde later and said he used brass knuckles during the fight, but no one saw him with brass knuckles.

Hyde’s friend testified at trial that after the fight was over, Hyde told his friend, “I just got rocked.  Let’s get out of here, let’s go.”  His friend agreed. 

As Hyde was about to get into his friend’s truck to leave, two other defendants came over to Mr. Hyde and punched him as well.  Hyde’s friend testified that when one of the other two defendants punched Hyde, the sound of a baseball bat breaking could be heard.  Hyde’s knees buckled and he fell to the ground. 

While he was unconscious on the ground, the other defendant punched Hyde in the head on the ground.  Both of the other two defendants then stomped on Hyde’s head.  One defendant shouted, “I slept him.  I slept him.”  Hyde’s friend then checked him for a pulse and found none.

At trial, defendant Mr. Kelsey was tried alongside two other defendants, each of whom had their own counsel, for the death of Mr. Hyde.  Kelsey’s trial counsel was Scott Edwards.  Mr. Edwards did not consult with or retain a forensic pathologist regarding Mr. Hyde’s cause of death.

Two pathologists testified at trial that the cause of death was bleeding to the brain, caused by multiple, repetitive injuries to different parts of the brain. 

At trial, prompted by counsel for a co-defendant, Edwards waived closing argument. 

Kelsey brought a petition for a writ of habeas corpus, claiming that Edwards rendered ineffective assistance of counsel, denying Kelsey’s right to effective assistance of counsel as guaranteed under the Sixth Amendment.  The state district court granted relief, but the Nevada Court of Appeals reversed.

In Kelsey’s petition for a writ of habeas corpus, he introduced the report of pathologist Amy Llewelyn, who testified that after reviewing Hyde’s autopsy report and photographs, as well as the other two pathologists’ reports, she did not agree that every single hit necessarily contributed to Mr. Hyde’s death.  She testified to a reasonable degree of scientific certainty that it was the second and third attacks that killed Hyde. 

She testified that the fight between Mr. Kelsey and Mr. Hyde was like the typical fight between two teenagers in high school, whereas the fight between Mr. Hyde and the second and third defendants was a savage, brutal beating to a helpless victim, concentrating on his head, even when Mr. Hyde was unconscious and laying on the ground.

The federal district court also denied habeas relief and Kelsey then appealed to the U.S. Court of Appeals for the Ninth Circuit in San Francisco.

The Ninth Circuit first recited the legal standard for finding ineffective assistance of counsel, which must demonstrate that: (1) counsel’s performance was deficient; and (2) the defendant was prejudiced by reason of counsel’s actions.  Strickland v. Washington (1984) 466 U.S. 668, 687-90.

Regarding the second prong, the court considers “whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt regarding guilt.”  Id., at 695.

The Ninth Circuit then reminded the reader of its opinion that there is a large amount of deference to trial counsel in his or her decisions.  However, in this case, had Kelsey’s counsel made a closing argument, he could have argued to the jury that Kelsey’s actions were not the proximate cause of Mr. Hyde’s death and asked the jury to convict him of a lesser charge, if at all.