I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Michelle Byrom–What kind of representation did she have? Part 3: Every kind of waiver you can imagine

With all due respect to Byrom’s counsel, whose intentions were no doubt admirable, the brief that was filed on her behalf falls below what I consider professionally acceptable. The recurring failure of Byrom’s counsel to adequately brief issues is a factor I have considered in concluding that Byrom’s counsels’ performance was deficient. Throughout her brief, Byrom’s counselors have made unsupported allegations and failed to cite relevant authority, or any authority whatsoever in many instances. Error has been claimed, but no prejudice demonstrated, or even alleged in many cases.
Byrom’s brief was roughly half the size of the State’s submitted brief and the written opinion of this Court. After the State filed a well-reasoned response which called into serious question many of the allegations in Byrom’s brief, her attorneys did not even bother to file a reply brief.

Byrom v. State, 863 So. 2d 836, 894 (Miss. 2003).

A competent trial lawyer has a duty to his client to be “record aware.”  That is, the lawyer has an obligation to make sure that, in any transcript of a trial or hearing, he has clearly stated his objections and the basis for them, and an obligation to make sure that, in the motions and other papers filed with the clerk, he has done the same thing, and, for certain kinds of motions, provided the required evidentiary basis.  For instance, when a lawyer moves for a change of venue, if he provides two affidavits, there is a presumption that venue should be changed.  But, at minimum, the lawyer has to file a written motion, and, if he wants to do the whole job, has to attach the affidavits.

The consequence of a failure to be record aware is this:  An appeals court is very limited in hearing issues that were not preserved in the record.  They will likely hold that such issues were waived.  This will happen when issues were partially or inadequately raised.  To back up to the change of venue example, if the lawyer files the motion but does not file the affidavits, the appeals court is very likely to defer to any trial court ruling on change of venue, or, worse, hold the issue waived because not fully raised.

And what the holding would mean, if a change of venue was needed, would be that the defendant has given up his or her constitutional right to a trial by an impartial jury.

There are further consequences.  The next stage of a death penalty proceeding, postconviction, involves going back to the state court and arguing:  “Here are issues that prove my conviction is illegal and why I could not have raised them before.”

“My lawyer screwed up” does not count as a reason for not raising it before if the court’s can concoct a strategic reason for the screw-up, and does not count unless the court holds that the screw-up was so serious as to likely have effected the outcome of the case.  And “likely to have effected the outcome of the case” is a pretty high bar.  A case where the lawyer does a lot of small-to-medium screw-ups that will almost always add up to a loss probably has not screwed up enough to meet the burden.

Further, the court is likely to rule that an issues raised in the first appeal, even if incompetently raised, have been decided and therefore cannot be raised again.  And, should it happen that the state court ruled that violations of federal constitutional rights were waived, or were not adequately proved, it is almost certain that a federal court will not give relief for that violation on federal habeas.

So the whole question of whether a lawyer is properly preserving the record has serious consequences in a death penalty case.

I say all this because of the shocking degree that the direct appeal in Michelle Byrom’s case presents issue after issue where the lawyers failed either to present the issues at trial or to present them on appeal.  And, to make matters worse, they raise too many issues that are transparently flimsy.  I have never seen an opinion so highlighting in the majority opinion denying relief the failings of counsel.

Any criminal defense lawyer reading the opinion will note a curious omission:  The majority does not discuss whether the evidence was sufficient to go to the jury.  Any trial lawyer should be able to produce a sufficiency of the evidence argument extemporaneously; if he can’t, then he probably doesn’t know what case he’s trying.  Here’s what the dissent says about why this issue wasn’t discussed in the majority opinion:

Counsel also failed to properly argue the insufficiency of the evidence against Byrom. Though allusion to this argument is couched in other arguments, it was not raised as an independent issue, nor was the trial judge’s failure to grant Byrom’s motion for a directed verdict specifically asserted as erroneous.

Byrom, 863 So. 2d at 894.  There is no excuse I can imagine for counsel’s failure to make a directed verdict motion.

What follows are some notes on the issues discussed in the appeal opinions.  It’s long, because I discuss each issue the court treats.

The first issue raised in the appeal was, essentially, “the judge made me follow the discovery rules and I would rather followed the federal discovery rule (which is different).”  The defense argued that it should not have to produce expert reports in discovery, and the trial court rejected this argument.  This was held correct.

Next up was change of venue:

Byrom next contends that the trial court erred in not granting a change of venue. However, no motion for a change of venue appears in the record.

Byrom, 863 So. 2d at 851.  Got that?  No motion was filed.
The next issue involved, in part, an assertion that Byrom had withdrawn her consent to a psychiatric examination in a letter she had written.

However, Byrom has not produced this letter, and the record does not reflect that Byrom’s motion for a psychiatric evaluation was withdrawn at anytime prior to the examination.  “Issues cannot be decided based on assertions from the briefs alone. The issues must be supported and proved by the record.” Pulphus v. State, 782 So.2d 1220, 1224 (Miss.2001) (citing Robinson v. State, 662 So.2d 1100, 1104 (Miss.1995)).  Byrom v. State, 863 So. 2d 836, 852 (Miss. 2003)

Byrom, 863 So. 2d at 852.   She then raised that the trial court erred in making her turn over medical records to the psychiatrist:

Although Byrom assigns this issue as error, she does not make any specific argument nor does she cite any relevant authority with regard to this claim. She does not present evidence that she did in fact turn over all her records to Dr. Lott, nor does she point to an order from the trial court requiring her to do so or an objection made by her regarding same.

Byrom, 863 So.2d at 852.

I hope an attentive reader might at this point begin to detect a trend in this opinion.

The next issue involved, in part, an allegation that law enforcement had destroyed porn videos found at the scene of the murder.  While the whole issue of the porn videos was the subject of motions and rulings at trial, the was a problem about the alleged destroyed videos.  Perhaps you can guess the problem:

The record is devoid of evidence that additional pornographic videos were found at the crime scene and removed by law enforcement. Additionally, Byrom has failed to demonstrate, and the record does not support her allegation, that law enforcement intentionally destroyed pornographic videos in violation of her due process rights.

Byrom, 863 So. 2d at 854.  The next issue was an assertion that the trial court had shifted the burden of showing that her confession was involuntary on her.  Unfortunately, her lawyers made “no argument” and cited no authority for this point.  Oh, and her lawyers did not raise it at trial:

Byrom makes no argument as to how this order of proof demonstrated that the trial judge improperly placed upon her the burden of proving the involuntariness of this confession. Nor does she offer any authority in support of her position. Byrom made no formal objection at trial to this order of argument. In light of her failure to do the foregoing, Byrom’s contention that this was error is barred on appeal.
Byrom, 863 So. 2d at 857.  This was not the only problem with the confession issue:

Byrom next claims error in the trial judge’s refusal to reopen the suppression hearing to allow her the opportunity to call Junior [Byrom’s son] to the stand to testify about the conditions of his interviews with law enforcement. Byrom cites no authority in support of this argument. Therefore, this issue is procedurally barred. “Failure to cite relevant authority obviates the appellate court’s obligation to review such issues.”

Byrom, 863 So. 2d at 863.  I will pause here to remark my utter amazement that these lawyers were able to get two of Byrom’s statements suppressed as involuntary.

Thereafter, a series of (very weak) issues related to the confessions were decided on the merits. I count about four sub-issues that were not defaulted.  But, back to form, on the next issue– failure to reopen the suppression hearing– Byrom cited no authority and therefore was procedurally barred.

The next issue involved a motion to quash the indictment.  This time, Byrom’s lawyers did not wait to appeal to waive the issue.  They waived it in a pretrial hearing:

Additionally, claim number (1), Byrom’s contention that the indictment dd not identify the co-conspirators, was specifically waived and disavowed by Byrom at trial.
THE COURT: Specifically, Counsel, I guess you would point to the fact that there are no allegations as to who received what.

DEFENSE COUNSEL: No, your Honor, I’m not complaining about that…. According to that indictment [the Assistant District Attorney] could be about to prove that she was offered money to get in the scheme to kill Mr. Byrom. We’re entitled to know one or the other what it is that they’re wanting to prove by looking at the indictment. We don’t need a lot of facts.

(emphasis added). Based upon this exchange, the State argues that this matter is waived on appeal. We agree.
Byrom, 863 So. 2d at 866.

We don’t need a lot of facts?!?

The next issue involved another failure of trial counsel at trial.  Trial counsel tried to introduce letters in which Byrom’s son had confessed to the killing.  Problem:  Byrom had not produced them in discovery.  There exclusion was therefore proper.

Another issue– alleged improper statements by the prosecutor– was waived because there was no objection at trial.

Finally, an entire issue, the refusal to grant a jury instruction, was resolved on the merits.  The court ruled that the instruction was properly refused because the evidence didn’t support it.

The next issue involved a defense request to play a tape of an interview to allegedly impeach a witness.  The trial court had expressed confusion about the tape, ruling it “irrelevant, extraneous, an attempt to, I guess, impeach the witness, or some something. I’m not certain exactly what it is.”  The Supreme Court stated:  “Byrom’s brief is unclear as to exactly what benefit playing the tape would have achieved or how it was relevant.”  About a case cited on this issue, the court noted it a “proper statement of the law, but it was not on point.”  Further, the court concluded “that no foundation had been laid for impeaching” the witness.

The next issue has a bit of hilarity to how it was waived.  The issue was whether a deputy should have been allowed to testify about a dog’s tracking, suggesting the deputy was not shown to be qualified.

But that was not the objection at trial.  At trial, defense counsel objected to the testimony because the dog was not “available” at trial because it had died in the interim.

Seriously.

Having not raised the objection made on appeal, this issue was also waived.

The next issue involved language in an instruction.  At trial, defense counsel had objected, the trial court had changed the language to suit defense counsel, and no further objection was made.  Yet another waiver.

The last two issues involved whether the sentence was appropriate, first, about whether there was evidence supporting “pecuniary gain,” the only aggravating factor found, and, second, about whether the trial court refused to consider some mitigation evidence.  Both of these issues were actually dealt with on the merits.

I will note that on some issues, the majority opinion treats them alternatively– rules they were both waived and meritless.  But the central theme of the majority opinion is waiver and default.

I want to close this post by quoting the dissent Justice Diaz had written and that was quoted in Justice McRae’s dissent:

I feel constrained to begin my analysis of the errors in this case by commenting on the derelictions of Byrom’s counsel. Basic trial and appellate responsibilities were neglected or inadequately performed. Necessary objections were not made, appropriate motions were either not made or not zealously pursued, error was not preserved, unwise trial strategy was employed, and the record was not properly developed. Also, the appeal filed on Byrom’s behalf relies in large part on unsupported assertions and vague innuendo and falls below what I consider professionally acceptable. Standing alone, these mistakes might be considered harmless. However, I must conclude, based upon the very specific facts of this case and the heightened scrutiny mandated by precedent, that  they combine with other errors to warrant reversal.
Byrom, 863 So. 2d at 889-90.

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