John Hult, South Dakota Searchlight
The South Dakota Supreme Court has overturned an aggravated assault conviction based on the poor performance of the defendant’s court-appointed Sisseton lawyer.
The issue of ineffective public defenders has been top of mind for the state court system over the past two years. The state convened a study group on the issue at the behest of Chief Justice Steven Jensen, who told lawmakers that the state lacks enough well-trained attorneys, especially in rural areas, to protect the rights of defendants.
The study group’s members have noted repeatedly that failure to properly defend clients can lead to appeals and overturned convictions. Lawmakers signed off on the creation of a statewide public defender’s office this year, and the Unified Judicial System recently hired a Sioux Falls lawyer to head up the office.
In the future, that state-level office will handle all criminal appeals to the state Supreme Court by “indigent” defendants who can’t afford an attorney, while counties will continue to pay for those defendants’ attorneys in the lower courts.
Decision has roots in 2019 dispute
Thursday’s ruling offers a window into the sorts of issues that animated concerns about the state’s unique, county-led approach to indigent defense.
Christopher Schocker, 59, was convicted of aggravated assault of a law enforcement officer in 2019 after a tense interaction with an officer from the South Dakota Department of Game, Fish and Parks.
Schocker was upset with the officer for seizing a deer poached by someone else. He refused to help the officer load the deer into his vehicle, cursed at him, and at one point approached the officer slowly with a knife. He put the knife down when ordered to do so by the officer.
He was initially charged with possession of a firearm while intoxicated and possession of a firearm by a person with a prior drug conviction, in addition to the aggravated assault charge. A jury convicted him of the felony assault charge; a judge sentenced him to 25 years in prison and suspended 15 of them.
Schocker appealed his conviction to the state Supreme Court, arguing that there wasn’t enough evidence to convict him.
At his trial, he’d been represented by Robert Doody, who was court-appointed. Doody withdrew from that appeal, leaving it to be argued by another court-appointed attorney.
In his latest appeal, Schocker argued that his conviction was unjust because Doody had been ineffective. Doody had not interviewed two of the witnesses on the scene, and hadn’t kept up communication with his client.
“Schocker and Doody disagree on the number of times Doody and Schocker spoke; however, Schocker claimed that Doody never called him while he was incarcerated and did not answer his letters,” the state Supreme Court’s Thursday ruling says.
At a trial over the matter of ineffective assistance, Doody testified that he didn’t need to interview the two on-scene witnesses, and that not doing so was “part of his trial strategy.”
A bodycam video of the incident was evidence enough, he said.
“I didn’t think that those two gentlemen had anything to really offer that wasn’t already on the videotape,” the Sisseton lawyer said at the trial.
Another defense attorney, however, testified that Doody had done more than missed a chance to interview other witnesses. That attorney, Aberdeen’s Brandon Taliaferro, said Doody had failed to pursue Schocker’s only viable defense, namely that he’d been holding the knife to cut the tag off the deer that the officer was dragging to his vehicle.
Another person at the home where the altercation took place had put her own deer tag on the poached deer prior to the officer’s seizure of the animal. The tag was legitimate, but it belonged to someone who hadn’t shot the deer.
One of the witnesses Doody didn’t interview testified that had he been asked, he could’ve told the jury that Schocker was after the deer tag, not the officer.
A circuit court judge sided with Schocker. In Thursday’s ruling, the state Supreme Court agreed.
Doody’s “incomplete and inadequate investigation of the facts” showed that he’d failed to perform his duties as a defense attorney on Schocker’s behalf.
“Here, there were few witnesses, and their contact information was at Doody’s disposal,” Justice Scott Myren wrote. “Yet, he made no effort even to contact those witnesses. This decision fell below an objective, reasonable standard of performance.”
Chief Justice Steven Jensen and Justice Patricia DeVaney voted with Myren in the 3-2 decision. Justices Janine Kern and Mark Salter dissented.
Kern’s dissent agrees that Doody’s performance was deficient, but she wrote that it ought not be enough to overturn Schocker’s conviction.
“I am unable to conclude that, but for this error, there is a ‘reasonable probability’ that Schocker would not have been convicted,” Kern wrote.
Case does not effect law practice
The Schocker decision is the second time this year the Supreme Court overturned a lower court’s actions for one of Doody’s former clients.
In March, the justices undid the sentence of one of his clients. In that case, the Supreme Court chastised the judge. Doody had asked to be removed from the case on the date of the client’s sentencing because of a “serious communication breakdown,” but the judge said no and sentenced the client anyway.
The justices said that was the wrong decision, and overturned the client’s five-year sentence.
Schocker filed a lawsuit against Doody after the lower court ruled that the lawyer had performed poorly. The case, in which Schocker is asking for damages as a result of his incarceration at the state penitentiary, is ongoing.
Neither the Supreme Court ruling nor Schocker’s lawsuit, should he emerge victorious, would impact Doody’s law license. An ineffective assistance of counsel ruling alone does not affect a lawyer’s good standing with the State Bar of South Dakota, whose director confirmed that Doody is still a member.
The Bar is independent of its disciplinary board, whose investigations, hearings and findings in cases of alleged unethical conduct – an ineffective assistance finding in a case isn’t an ethical breach – are confidential under state law unless the board makes the complaint or reprimand public, the attorney involved asked for it to be made public, or the conduct involves the attorney being convicted of a serious crime.
Doody did not return a message seeking comment on the case.