It is remarkable when lawyers decide that they won’t let the facts get in their way.  And when the facts are medical/scientific, and they have no way around them, they hurt their clients when they just say the contrary is true.  Instead of “fake news,” these become “fake facts.” 

What’s the proof?  In a recent habeas grant of relief, the Third Circuit Court of Appeals found error in just such conduct.  In a homicide trial, the victim had already been shot repeatedly  by one perpetrator when the defendant fired a shot that ricocheted and also hit the victim.  That one shot could have been fatal.

Although the medical examiner testified without equivocation that the victim was still alive when the ricochet hit, and with no expert or lay testimony to the contrary,

counsel moved for a judgment of acquittal. He argued that because Moses fired first and because “to a reasonable medical certainty the first bullet killed” Hunt, Workman could not be convicted because “he has fired into the body of a man that is dead and you can’t kill a dead man.”4 He made this argument despite Lieberman’s testimony, which included the opinion that Hunt was alive when struck by Workman’s bullet. The Commonwealth pointed out that inconsistency. The trial court denied the motion.

Things only got worse.  Trial counsel, who had reserved his opening statement, said only the following after the prosecution case ended and it was time for the defense:

Ladies and gentlemen of the jury, you’ve been very patient for six or seven days. I will inform you now as the judge will later charge you, Jeffrey Workman will not present any evidence. So I’m opening to you and not saying that we’re presenting anything. You’ll get the full impact of that when the judge charges you later in the case. Thank you very much.

With no defense evidence, closing statements followed quickly.  The alternate ‘facts’ were then argued:

He’s dead from the first bullet. And when the doctor has — and this is the last thing I’m going to say about that — the unmitigated gall in his position as a Philadelphia medical examiner to come into this courtroom and tell you the man was alive when the ricochet hit him and he doesn’t know where the ricochet shot comes from . . . at that given point you must conclude that they have not proved their case beyond a reasonable doubt because the doctor’s testimony is absolutely incredulous.

Suffice it to say, this was deemed a denial of the right to effective representation.  The Court found an accumulation of errors, all grounded in the notion of ‘defiance of science:’

trial counsel’s utter and complete failure to test the Commonwealth’s case with appropriate cross-examination of Lieberman, his failure to present witnesses (either fact or expert) in support of his position, or to adapt his argument to the testimony in evidence instead of simply asserting the contrary statement that “[Hunt is] dead. He’s dead from the first bullet.”

And the result, even under the forgiving standard of presuming counsel’s reasonableness?  A complete denial of effective representation:

trial counsel acted as an advocate not of his client but of his theory—that one cannot kill a dead man, and therefore the jury could not convict Workman of homicide—all contrary to the facts and testimony before the jury. Any objective standard of reasonableness requires counsel to understand facts and testimony and adapt to them, even at the expense of purportedly clever theories. Workman’s trial counsel appears to have misunderstood or willfully neglected this when faced with Lieberman’s testimony. This falls below an objective standard of reasonable performance.

The takeaways are many, but one in particular stands out.  Alternate truth may work in the political sphere, but it has no place in the courtroom process.

[The case is Workman v. Superintendent Albion SCI, No. 16-1969, 2018 U.S. App. LEXIS 25690 (3d Cir. Sep. 11, 2018).]