Arkansas Supreme Court – Does Attorney Credibility Matter or Not?

30 01 2017

The Arkansas Supreme Court handed down its first substantive criminal law opinion of the new year with the new justices in Hartman v. State.

Hartman was tried and convicted for rape of his stepdaughter.  Hartman’s defense was centered around the lack of penetration, which is an essential element of rape.  In closing, defense counsel referred to Hartman as a “purveyor of young girls,” “pervert,” and “scallywag,” among other concessions of his guilt of “something.”  Hartman’s appellate attorney argued these comments were improper and prejudicial; thus, Hartman should receive a new trial.

The Arkansas Supreme Court stated,

The trial court was correct that the only avenue available to counsel given the evidence was to distinguish appellant’s admitted conduct from the requirements of the offense charged. In order for such a strategy to have any chance of succeeding, the jury had to see counsel as a reasonable, credible person.

In theory, the rationale seems perfectly fine.  However, the Arkansas Supreme Court has recently rejected arguments about the importance of defense counsel’s credibility.

For example, in Maiden v. State, the prosecuting attorney failed to disclose that the co-defendant changed his story about actually seeing the murder prior to trial.  Defense counsel asked for a mistrial, and argued on appeal one should have been granted because his credibility was shot with the jury.  Defense counsel’s entire opening and entire strategy was that no one will say they saw the murder, but prosecuting attorney hid evidence contrary to that and only revealed that evidence mid-trial.  Justices Hart and Baker, in dissent, were the only justices that then concerned themselves with counsel’s credibility, stating:

In the only statement that the prosecution provided to the defense, Emerson stated that he did not witness the murder. This led Maiden’s attorneys to craft a defense in which they sought to establish reasonable doubt as to the identity of Kylaus Williams’s shooter. In laying out this defense in opening statement, Maiden’s trial counsel repeatedly asserted that no one would testify at trial that they had witnessed the murder.  Emerson’s testimony destroyed the foundation upon which the defense built its theory of the case. It left Maiden’s defense team scrambling to re-tool its defense midtrial. Moreover, and perhaps more important, Emerson’s testimony destroyed any credibility Maiden’s defense team had with the jury. It is troubling that the majority ignores the significance of this fact.

On one hand it is reasonable to call your client a pervert, scallywag, purveyor of young women, and even concede illegal actions in an effort to obtain such valuable credibility with the jury.  Meanwhile, if defense counsel gives a false opening statement because the prosecuting attorney hid evidence, well, that is okay because credibility of counsel is not that important.  It seems to reason that those are not consistent treatments of the importance of credibility of counsel.  Importantly, both cases resulted in life sentences.

Additionally, in Hartman, defense counsel failed to put on evidence that Hartman had an STD and the alleged victim did not.  At a hearing, defense counsel testified that he did not put on evidence of that fact because he was unaware that Hartman had an STD.  After the hearing, appellate counsel discovered defense counsel’s notes concerning Hartman having an STD.

Ultimately, in Hartman case will not have profound impact on future cases or the practice of law, but it underscores an inconsistency in Arkansas jurisprudence.

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