In the Matter of the Personal Restraint of Gomez, the Washington Supreme Court rejected a collateral attack on a mother’s conviction for killing her child through abuse. The Court ruled that the Spanish-speaking client did not deserve a new trial even though her lawyer only spoke English and also represented the child’s father in a dependency proceeding. Perhaps lost in translation or clouded by the lawyer’s conflicting duties to the father was the fact that the mother may not have abused the child and that the child might have died because he suffered epilepsy. Finality trumped process in this case and may have kept an innocent person in prison.

A short review of collateral attacks and the right to defense counsel

In order to understand the opinion, some background on the legal concept of collateral attacks would be helpful. For prisoners, a collateral attack is a way to challenge their sentences by arguing that the process by which they lost their freedom was tainted by some serious error and is therefore unjust. Collateral attacks are rarely granted. Courts usually explain that collateral attacks are disfavored because they revisit punishments that have already been announced to society as final and might allow prisoners to game the system.

One major reason a prisoner might claim punishment is unfair is that his or her lawyer didn’t provide effective assistance. The Sixth Amendment gives everyone the right to a competent defense attorney during criminal trials. If the defense attorney falls short and allows the client to be imprisoned when the client might otherwise have gone free or get a longer sentence, the lawyer has provided “ineffective assistance of counsel.”

Prisoners routinely make collateral attacks based on ineffective assistance of counsel. Understandably, many people in prison believe their punishment is unfair and hope that a better attorney could have made their situation better.  In reviewing these numerous claims, courts have set a low bar for defense lawyers. The court will presume the attorney was effective unless the prisoner shows otherwise. In general terms, a prisoner cannot complain if his or her defense lawyer provided minimally competent representation. Even if the lawyer failed to meet this low bar, a reviewing court won’t force a new trial if they think the State’s case was strong enough that the prisoner would have gotten the same punishment regardless of the defense lawyer’s mistakes.

In Washington, the form of collateral attack is usually the personal restraint petition. In federal court, it’s called a habeas corpus petition. Either way, the prisoner is complaining that an unfair process got them an unfair sentence.

The case: In re Personal Restraint of Gomez

The facts of this case are tragic. A child died at 25 months old after enduring a short life of pain and injury.  The child was born with drugs in his blood, removed from his biological mother and placed in foster care for 10 months. He was then returned to his biological mother. At that point, he started suffering serious injuries. The child was returned to foster care and suffered no injuries. He was then returned to his mother, and six months later the child died. After he died, the mother said he died from accidental injuries.

The child’s mother and father faced dependency proceedings to determine whether the other children in their care should be removed. The mother and father each had separate defense lawyers.

The mother was also criminally accused of being the cause of the child’s death. In her criminal trial, the mother was represented by the same person who was the father’s lawyer in the dependency proceedings. There were two problems with this arrangement: 1) The lawyer represented the father, who was also a potential cause of the child’s death and 2) The lawyer did not speak Spanish and the mother hardly spoke English.

The lawyer then used his own knowledge of the case to guide his investigation. He chose not to pursue a theory that the child died from accident or self-injury shortly before death because he believed this theory would not persuade a finder of fact. Instead, the lawyer pursued a theory that the child had injured himself when he fell out of bed a few days before death. The lawyer retained an expert medical witness and mistakenly told her that the child was found to be abused his mother before sending her the medical record. At trial, the expert testified that the child suffered abuse.

The mother was convicted of manslaughter and homicide by abuse, though the manslaughter charge was eventually overturned. The mother then filed a collateral attack in the form of a personal restraint petition arguing that the defense lawyer provided ineffective assistance in his defense of her.

Opinion: The Washington Supreme Court determined that the defense lawyer may have violated the Washington Rules of Professional Conduct by representing the father and mother simultaneously but that this did not mean he violated the U.S. Constitution. The Court decided that there was only a “theoretical conflict of interest” between the parents because the mother did not accuse the father of being the cause of death but instead argued that the child died accidentally. The Court also noted that there was no evidence put forward at trial that the father abused the child.

Further the lawyer was effective even though he failed to use an interpreter when consulting with the mother. The Court noted that the mother had never complained about translation until the collateral attack and that the mother had not asserted that any part of the trial would have changed if she understood her lawyer better. The Court observed that the mother had a chance to tell her side of the story when she testified to the court with proper translation.

The Court also found no problem with the lawyer’s preparation of the expert, even though he mistakenly indicated to the expert that the State had concluded the child was abused and failed to provide the medical record to the expert for over a year after she requested them.

Dissent: Justice Owens wrote a partial dissent for three Justices. The dissenters would have found that an attorney cannot provide effective assistance if he or she does not understand the client. The dissent next noted that Moser’s investigation uncovered that the child may have suffered epilepsy but he never pursued this alternate explanation of the injuries. Finally, the dissent noted that Moser hadn’t given the expert enough information to determine the cause of death and had suggested that the child had been abused before the expert had seen any medical evidence.

Comment: We should expect more from defense lawyers and less from their clients

This case attracted attention in the legal community. The Innocence Project Northwest took the case for Ms. Gomez and the ACLU, Washington Defender Association, Defender Initiative and Innocence Network wrote friend of the court briefs on her behalf. On the other side, the Washington Association of Prosecuting Attorneys wrote a friend of the court brief in support of the Grant County Prosecuting Attorney’s Office.

It’s hard to see why the Supreme Court placed such a high value on finality on this case. A defense lawyer who had represented the father in dependency proceeding couldn’t understand his client and seems to have put all his efforts towards advancing a trial theory that fit his preferred view of the facts rather than tell his client’s side of the story. The court placed a great emphasis on the absence of complaint or alternative facts in the trial record. But, the mother is asserting that this absence is evidence itself – she thought she could rely on her lawyer and he didn’t do his job.

It is similarly disheartening that the court believed that any error in translation would be remedied by the mother’s ability to tell her side of the story. The reason the Sixth Amendment guarantees a lawyer is that the American justice system is not run as inquisition: defendants need not disprove the charges against them by telling a compelling story on the stand.

Court opinions rejecting ineffective assistance of counsel often implicitly draw upon the dubious theory that a defendant should know when they are getting ill-served by their attorney and complain during the trial. Of course, the whole point of the legal profession is that we know things about courts that our clients don’t. This opinion bolsters that fiction – a client who cannot understand her attorney is expected to complain about the lack of understanding and the direction of the defense during the trial. The court did not explain how a woman who doesn’t speak the language of the court, the judge, or the law will muster the wherewithal to both figure out that he attorney is doing a bad job and then stand up to her attorney.

The Innocence Project does not advocate before the Supreme Court lightly. The Justices would have been prudent to heed them.