by Mark Wilson

The Oregon Court of Appeals held that a criminal defense attorney’s closing argument was so deficient to constitute ineffective assistance of counsel.

Police searched a large Albany, Oregon, property after receiving a tip that Julie Ann Mitchell’s nephew and another man had hidden controlled substances on the property. During the search, police found Mitchell alone in a camper. She admitted the camper was hers.

Police found marijuana, methamphetamine, prescription medication and drug paraphernalia in the camper. Mitchell was arrested and charged with one count of possessing less than one ounce of marijuana and one count of methamphetamine possession. She pleaded guilty to the marijuana charge and proceeded to trial on the methamphetamine charge.

Mitchell testified on her own behalf, explaining that the property was owned by her ailing mother and that her sister and nephew live there. She admitted that she keeps the camper there for when she visits. She claimed that the methamphetamine found in the camper was not hers and that she did not know it was there. Mitchell also claimed that she did not lock the camper when she was not there and several people had access to it.

After the state waived its initial closing argument, Mitchell’s attorney offered what he later admitted was an “awful” closing statement. He pointed out that Mitchell had pleaded guilty to marijuana possession and that the state believed this was a “cut and dried case” on the methamphetamine charge. “I’ve got to be honest with you, there’s some red flags there,” Mitchell’s attorney admitted to the jury. He then drew attention to his client’s testimony and repeated, “again, this is another one of those red flags ... perhaps you should take what she says with a grain of salt .... Perhaps you should question what she has to say.” Counsel then highlighted the evidence that contradicted Mitchell’s story and favored the state. He suggested that his client’s testimony was “just some self-serving statements.” He closed by asking the jury to use its best judgment and to make the best decision it could. Not surprisingly, the jury returned a guilty verdict.

Mitchell filed a post-conviction relief (“PCR”) petition, claiming that trial counsel’s closing statement constituted ineffective assistance of counsel. Notably, trial counsel testified in the PCR proceeding, admitting that his “awful” closing statement was the product of not having enough time to prepare. He said he has since changed his approach to closing statements and has had “better success with trials” since doing so.

The PCR court found that trial counsel’s closing argument was inadequate. The court denied relief, however, finding that Mitchell failed to prove that she was prejudiced. “The question for the court is whether this closing argument significantly prejudiced (‘petitioner’), that is, whether she would likely have prevailed with the jury absent this argument or not,” the court explained. “The court finds that conviction would have been very likely even without this closing argument.”

The Court of Appeals reversed, agreeing with the PCR court that “defense counsel’s closing argument at trial was not an exercise of reasonable professional skill and judgment.” While the court had “not previously addressed an inadequate-assistance claim singularly focused on a closing argument,” it found that “it is not a sound trial strategy to emphasize the strength of the state’s case, make almost no argument against conviction, and repeatedly question the credibility of the only defense witnesses.”

The court then found that the PCR applied the wrong legal standard for prejudice.

“Applying the correct legal standard,” the court concluded “that trial counsel’s deficient closing argument on petitioner's behalf' could have tended to affect the outcome of the case.”' Despite warning that “in the context of an entire trial, it will be the rare case in which a closing argument, even if done poorly, will be prejudicial,” the court found that “the standard is met” in the case before it. “In a case that came entirely down to petitioner's credibility, trial counsel's deficient closing argument could indeed have made a difference,” the court held. “It may not be a probability, but it is more than a mere possibility.” See: Mitchell v. Oregon, 300 Or App 504, _ P3d _ (Or App 2019).

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