Miller v. S.C. - counsel ineffective for failing to pursue third party guilt defense
In Miller v. S.C., the S.C. Supreme Court granted post conviction relief based on trial counsel's failure to effectively pursue Miller's claim of third party guilt. Although it was not a part of the Court's holding, Miller's attorney also failed to retain an expert on eyewitness identification which may have been a separate ground for PCR (if Miller's PCR attorney had not also failed to retain an eyewitness identification expert for the PCR hearing).
This case is a perfect example of what is wrong with reliance on eyewitness identifications and coerced testimony by snitches. Miller was charged with armed robbery, based on his girlfriend's testimony and a single eyewitness. The girlfriend's car was used in the robbery, and when police questioned the girlfriend she gave them information that implicated Miller as the robber. The police then showed a photo array which included Miller's photo to the victim, who identified Miller as the robber.
Open and shut, right? Here are the problems in the case:
- the girlfriend had three armed robberies pending already
- her co-defendants in those three armed robberies was Miller's nephew
- the girlfriend had tried to blame Miller in one of those armed robberies, until police discovered it was impossible because Miller was in jail at the time of the robbery
- the girlfriend's car was used in all four robberies
- the description initially given by the victim matched Miller's nephew, including his facial hair
- the police did not include a photo of Miller's nephew in the photo array shown to the victim
- in exchange for testifying against Miller, the girlfriend was offered a plea deal to accessory instead of to armed robbery (armed robbery in state court carries ten - thirty years)
Although the trial judge allowed Miller's attorney the opportunity to introduce evidence of third-party guilt, Miller's attorney failed to effectively cross-examine the girlfriend on the use of the same car and the similarities of the gun used in the prior three robberies committed by the girlfriend and Miller's nephew. Miller did not take the stand and no witnesses were called in his defense. Given that third party guilt and an eyewitness identification were Miller's only defenses at trial, Miller's attorney should have obtained an expert in eyewitness identification to explain its pitfalls to the jury.
I believe that, absent a compelling reason, the defendant has to take the stand and tell the jury his story. It does not matter that the law says the jury can't hold a defendant's silence against him and it does not matter how many times the judge cautions the jury not to take it into consideration - the jury will hold it against him. They will think: if he didn't have something to hide, he would have taken the stand.
Whenever possible, other witnesses have to be found to corroborate the defendant's testimony or to counter the state's witnesses. Once the defendant has taken the stand and testified, at that point you have lost last closing argument and there is no reason not to call as many additional witnesses as you can. If you can get a jury to understand reasonable doubt and the fact that the burden of proof is on the government that is well and good, but you have to assume they will not hold the government to their burden and they often don't. They want to hear why your client is not guilty.
In each PCR that I have handled, the recurring issue that stood out when reading the transcripts is that the trial attorney did not give the jury a theory of the case. This is not grounds for PCR, although maybe it should be. If the defense lawyer does not give the jury the defendant's theory of the case and tell the defendant's story, the jury has no framework to operate from except the prosecution's theory of the case.
In this case the prosecution failed, by using unreliable testimony coerced with the promise of freedom, and by not recognizing or not caring about the problems with the eyewitness identification. The defendant's own attorney failed, by not presenting Miller's defenses to the jury. The PCR Court failed, by not correcting the potential injustice when it came before it. But the South Carolina Supreme Court got it right, and Miller now has the opportunity to have a jury hear his defenses and make an informed decision on his guilt or innocence.
