Judgment calls are exempt from legal malpractice consideration.  Put another way, an attorney may not be held for legal malpractice on the basis of a reasonable trial strategy even when unsuccessful.  But, what is a trial strategy and what is a departure from good standards?  Often the difference is in the eye of the beholder, or in a slightly more objective sense, when it is reasonable.  Today, we use a criminal case, in a different setting.  Here, the question is whether there was ineffective assistance of counsel. 

In People v Oliveras  2013 NY Slip Op 04040  Decided on June 6, 2013  Court of Appeals
Rivera, J. the question of trial strategy v. ineffective assistance concerned the mental status of the defendant and whether the attorney reasonably refused to seek his psychiatric records.   
 

"After several requests to review the evidence and for a clarification on Miranda, the jury found defendant guilty of murder in the second degree. The court sentenced him to 25 years to life.
D. Defendant’s Motion to Vacate the Conviction

Defendant obtained new counsel who moved to vacate the conviction pursuant to CPL 440.10, arguing that defendant’s trial counsel was ineffective based on several enumerated failures and errors. The motion raised trial counsel’s failure to provide timely notice pursuant to CPL 250.10, to present evidence of defendant’s psychiatric history, to obtain defendant’s psychiatric records, to consult an expert to explain the relationship between defendant’s psychiatric history and the voluntariness and reliability of his statements, and trial counsel’s ignorance of the law regarding the CPL 250.10 notice.

At the hearing, trial counsel testified about his representation of defendant, and explained his decision to not obtain defendant’s records. He stated that while he initially intended to obtain defendant’s psychiatric records to show that defendant’s inculpatory statements were involuntary, he did not pursue this approach because of defendant’s objections. He testified that defendant said he was innocent, and "shut [him] down" from pursuing a psychiatric defense. According to trial counsel, defendant "did not want to be portrayed as someone suffering from a [*5]psychiatric mental illness." He said he believed that defendant did not want to "end up in a mental institution." He further stated that it was his understanding that defendant "didn’t want psychiatric mumbo jumbo, whatever you want to call it, because he felt it would paint him in a bad way."

Trial counsel explained that he then decided to present defendant’s mental capacity without the records and as a result decided to forgo obtaining them. Trial counsel claimed that he "stood to gain nothing by getting those records . . . unless [he] was headed towards [putting on] a psychiatric defense." Counsel further claimed: "And my feeling is and has been, and I’ve done it in many cases, is that you’re better off . . . without having so many experts on the witness stand and getting bogged up in that, and just giving the jury a good gut feeling." Thus, trial counsel sought to secure his client’s acquittal by demonstrating to the jury that his client was "not playing with a full deck" and arguing on summation that the police took advantage of him.

Trial counsel said he intended to convince the jury that defendant’s will was overborne by the police due to his mental history and the affects of the interrogation. According to trial counsel, he wanted to "build" this idea "in the minds of the jury" by demonstrating that defendant "had no work history," "was on SSI," "had a grade school education at the most," "was in special ed," "had some hospitalizations," and was someone "whose mind could be played with." Trial counsel sought to have this history introduced by defendant’s mother, who would discuss her son’s educational, institutional, and occupational history.

At the hearing, trial counsel admitted that he developed this defense approach without the full benefit of defendant’s psychiatric and government records. He stated that he never saw defendant’s psychiatric records or Social Security Administration records, and that he did not know the diagnosis contained in those records. Trial counsel also admitted that he did not get the records because he believed that he would have to turn them over to the People, even if he never introduced them at trial or presented a formal psychiatric defense.
"And you know, yes, the strategy was born in the blind without those [records], but I felt that number one, if I have the records, I got to turn them over. Number two, I don’t gain anything by having those records. The fact that he was — his history is what it was should have been good enough."

This is not simply a case of a failed trial strategy(see Baldi, 54 NY2d at 146 ["trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness"]). [*8]Rather, this is a case of a lawyer’s failure to pursue the minimal investigation required under the circumstances. Given that the People’s case rested almost entirely on defendant’s inculpatory statements, trial counsel’s ability to undermine the voluntariness of those statements was crucial. The strategy to present defendant’s mental capacity and susceptibility to police interrogation could only be fully developed after counsel’s investigation of the facts and law, which required review of records that would reveal and explain defendant’s mental illness history, and defendant’s diagnosis supporting his receipt of federal SSI benefits.

The People’s argument that the contested records would not have helped the defense, regardless of trial counsel’s choices, misconstrues the central issue in this case. The issue is not whether trial counsel’s choice to have certain documents excluded from the record constitutes a legitimate trial strategy, but whether the failure to secure and review crucial documents, that would have undeniably provided valuable information to assist counsel in developing a strategy during the pre-trial investigation phase of a criminal case, constitutes meaningful representation as a matter of law. The utter failure to obtain these documents constituted denial of effective assistance. "