Counsel’s Failure to Submit Written Final Argument in Bench Trial is Ineffective Assistance of Counsel and a Structural Error Requiring a New Trial.

State v. Dalbec, Minn.Ct.App., 5/4/2010.  The state charged Mr. Dalbec with criminal sexual conduct in the third degree, helpless (asleep) victim.  Mr. Dalbec waived a jury trial, at the end of which the parties agreed to submit written final arguments.  Mr. Dalbec’s counsel missed the filling deadline; the clerk’s office called to inquire and to remind him that he was late.  Still nothing.  The trial court found Mr. Dalbec guilty.

The lab found semen in the victim’s vagina, which the lab “linked” to Mr. Dalbec.  The victim testified that she remembered nothing from the time when she fell asleep on a couch at Mr. Dalbec’s place until the next morning when she awoke next to Mr. Dalbec in his bed.  Another witness heard the victim ask Mr. Dalbec if she could sleep in his bedroom, heard him answer that she could, and heard him say that he would sleep on the floor. 

The trial court found that the victim was asleep when Mr. Dalbec had intercourse with her and was thus “helpless.”  The appellate court that that this was a rather dubious finding because for all the record showed, there may have been penetration between the time when the victim entered Mr. Dalbec’s bedroom and eventually fell asleep.  Penetration during that time period would not have satisfied the state’s theory – it’s only theory – that the victim was helpless because she was asleep.  Still, though, the appellate court was not willing to conclude that the state failed to prove the charge by sufficient evidence.

What the appellate court does conclude is that there was no strategic reason for counsel to have failed to submit a written argument.  Although the appellate court tries to confine this holding to the facts of this case, it does not actually do that, so the holding is pretty broad.  In this instance, however, the evidence of the helplessness element was weak, which counsel could have forcefully pointed out.  An argument may also have made the trial court think twice about its alternative theory of liability, that the victim, if not helpless, was unable to withhold consent because of a physical condition.  There was no evidence to support such an alternative theory.  “As the Supreme Court acknowledged, a closing argument “may correct a premature misjudgment and avoid an otherwise erroneous verdict.” Herring v. New York, 422 U.S.”  Counsel was thus ineffective.

This error is a structural error that is not subject to harmless error analysis.  Counsel’s missing in action status for written final argument was during a critical stage of the proceedings.  United States v. Cronic, 466 U.S. 648 (1984).  Mr. Dalbec gets a new trial.