*1 350 Argued 3, April 12, and submitted resubmitted In Banc June affirmed 24, 1996 December

RANDOL LAWRENCE PACHL,

Appellant, v.

Carl ZENON, Superintendent, State Oregon Correctional Institution,

Respondent. A88128) (91C-12454; CA P2d *2 351-a

In Banc the cause for With appellant. C. Kauffman argued

Samuel & Janet Lee Hoffman and Hoffman him on the brief were Matasar. General, Assistant Sunderland, Attorney argued E.

Kaye With her on brief were the cause for respondent. *3 L. General, and Kulongoski, Attorney Virginia Theodore R. Linder, Solicitor General.

EDMONDS, J. J.,

Haselton, concurring.

351-b *4 EDMONDS, J. post-conviction judgment appeals from

Petitioner request denying for murder. aside his conviction his to set seq. et affirm. ORS 138.510 We aiding by jury and abet- was convicted

Petitioner theory According case, ting to the state’s murder. driving petitioner Hobson, when one a motor vehicle passengers, a knife in.” Peti- he needed to “break decided his Stanley past Reed was rid- Reed, as victim, tioner drove bicycle, ing the knife out window and Hobson stuck his remarking as missed, it. Hobson to strike Reed with and tried petitioner “Oops, blood,”and turned no knife, at the he looked block, and waited around corner, drove at the next approach When Reed at the intersection. his vehicle Reed to edged petitioner past the car toward proceeded vehicle, petitioner’s approached his bike and threw down Reed. Reed got Reed with the the car and chased out of Hobson vehicle. stabbing eventually from Reed later died him twice. knife, stab wounds. making post-conviction relief, seeks Petitioner now assign subjects assignments multiple The of several of error. petitioner present could reason issues of error ments pros expected in the ably raise at the trial level been have appeal Therefore, we conviction. from that ecution or assignments. v. State Palmer those to consider decline (1994). remaining Oregon, assignments P2d 352, 354, 867 Or ineffec received of error assert 138.530(1)(a) requires ORS of counsel. assistance tive post-conviction grant if there has been relief court resulting peti- proceedings in the denial substantial “[a] the Con- rights under tioner’s conviction States, under the Constitution or of the United stitution denial rendered both, and which Oregon, the State of void.” conviction rights if the occurs denial of constitutional substantial

A provides assis- ineffective defendant for a criminal counsel magnitude at trial. tance of a constitutional

353 relief, On of a we are post-conviction review denial of bound by the factual if findings, sup court’s post-conviction ported record, in but by evidence we examine anew its constitutional Krummacher v. 290 Gierloff, determinations. (1981). Or 867, P2d To 869, post-con 458 be entitled viction relief on the basis of assistance inadequate counsel, of the petitioner must demonstrate evi preponderance dence that his trial counsel failed exercise reasonable pro fessional skill that he suffered judgment prejudice and and as Maass, 431, result. v. 312 Or P2d 703 Trujillo 435, (1991). Petitioner first that he was denied argues adequate assistance of counsel because his counsel should have moved to exclude certain from courtroom who were spectators while wearing being buttons his criminal trial was held. In that the trial court and regard, found concluded: petitioner’s trial, “4. Throughout persons criminal were present button wearing in the courtroom a ‘Crime Victims United’ * * Such persons *. numbered six and between twelve at various times the trial during generally and were seated in a ‘block’ the side of the courtroom nearest jury box jury [sic] and next to the aisle exited were jurors entered the courtroom. all Consequently, of the saw the button some jurors wearers at least ofthe were able to read the button.

“5. A substantial number of who did not dis- play any indicia of or also identification affiliation were present throughout petitioner’s trial, and wear- the button ers did not constitute a of the majority persons atten- dance at any time during the trial.

“6. The presence and the of the button wearers conduct during the the direct time were under present observation when Court, on several occasions except the Court and counsel petitioner met chambers with without in declaring the button wearers recess. While activity presence Court, disruption or other no occurred or reme- any preventive to cause the Court to take dial to address action with or respect to the wearers button any issue related to their or conduct.

* * * * indicated that the message printed on the buttons “8. united rights of vic- support button wearers were petitioner not accuse the message crimes. The did tims of crime, it subject imply nor did having committed any extra-judicial knowledge had the button wearers guilt. concerning information donned at the end of “9. The CVU buttons were not imply so as to presented, the evidence had been trial after from the evidence the button wearers had concluded Rather, wearers guilty. the button that the the trial before their buttons at the outset of displayed they display continued to presented and evidence was *6 the trial. throughout buttons the attendance of the procure did not prosecution

“10. affiliated in not with them button wearers and was trial, Furthermore, of the the button way. during the course or the prosecutor did not have contact with the wearers in a manner or to such representatives other such State’s have inferred the jury reasonably that the would an extent the wearers and of an affiliation between button existence the the or State. prosecutor theory and all of the evi- prosecution, The State’s

“11. trial, to the criminal petitioner’s dence adduced at perpetrator himself was not the petitioner effect that was vicari- but rather that question, homicide in he counseled or aided and ously for the crime because liable deciding to commit the homicide. person abetted another likely to be influenced issue, jury the was less in the case factors than would have been impermissible perpetrator the actual or innocence of deciding guilt the subject crime. petition’s totality of the circumstances “12. Under the and the conduct of but- trial, the presence criminal [sic] risk that unacceptable did not create an ton wearers evi- and the other than law jury consider factors would inno- guilt petitioner’s determining in the issue dence threat cence, unacceptable as to an pose so inherently prejudicial to be to a fair trial and therefore right fact, prej- Further, petitioner. petitioner, at the button wearers by and conduct of udiced his criminal trial.” wife in the

During trial, victim’s was seated section the courtroom. Also present spectator spec- during tator section the trial were a number of who persons buttons. defense Throughout trial, wore counsel made numerous motions for mistrial. After had been them, and the instructed case had been submitted to counsel called petitioner’s stepmother to the witness stand and elic- the following testimony: ited

“Q you’re Randy’s stepmother? And “A Yes.

“Q sitting you You have been in the courtroom since permitted in, to come back that right?

“A Yes.

“Q you big And have observed some people wearing round buttons?

“A Yes.

“Q you they Do recall say what on them? ‘CCVU,’ “A Citizen Crime United. Victims “Q many people And how have sitting been back court with buttons?

“A Oh, gosh, probably least, a dozen at or more.

“Q out? In and

“A Yes.

“Q big How are the buttons? —

“A about They’re the size this thick. “Q indicating couple You’re a across? inches “A Yes.

“Q they sitting jurors jurors Are enough close to so can see them?

“A Yes.

“Q Now, today what regarding peo- occurred some ofthose ple you’re who were the people talking about what did and you see do? them you out, you while went chambers “A While were into hair, I discussion, the older woman with blondish colored dress, gentleman gray tan tall in a wearing and a

believe buttons, to leave gray wearing with hair went suit silver wife they left, they passed courtroom and as the victim’s arms around her and her with put and she her consoled them, they at and when jury staring right members left, in left, group probably more members of the a woman end of gentleman sitting mid-40’s and another on the her on, her sitting patted that the victim’s was the bench wife plain jury. her and view of the head consoled left “Q this ofthe through So the four ofthem went bit in front jury? you chambers

“A Also one of them came when were in up room, been from the back of the a black woman who’s 30’s, up here, she’s her came and talked probably her her while the victim’s wife with arm around shoulder jury watching. “Q wearing Was she button? No.

“A

* * * * course, counsel:] is the victim’s “[Petitioner’s trial Of this time, if the wife, Reed, Mrs. here all so sitting who’s in, you I permits her to come back would ask Court activity. deny anybody else ^ ‡ «‡ Honor, appreciate, I’d Your counsel:] trial

“[Petitioner’s this evidence in the record having opportunity have it, probability pursue pre- I don’t time in all but at this yet, appreciate opportunity so I’d cisely know how a record.” make returned a verdict of defense jury guilty,

After the that there including moved for a new trial ground counsel victim’s advocates in the courtroom. misconduct involved motion, to the misconduct efforts “[t]his According for a sympathy arouse witness on the parts support for the wife of the victim.” his testified and who evidence that there trial, for a offered motion new daily during trial, 7 to 12 CVU members present and that sat in the rows nearest CVU they *8 comforted the victim’s wife her on by members had patting back. the that

Petitioner his trial counsel should have argues of the objected presence button-wearing the courtroom the trial. He contends that during message on the buttons denied him a fair trial and that his counsel failed to exercise reasonable when he professional judgment not He did concedes that he cannot actual object. prove prej- of the message udice because but that argues message was their buttons so inherently prejudicial was necessarily influenced. Defendant counters that petitioner’s assumes that or a argument improperly objection an motion a only for mistrial reasonable decision that counsel defendant, could have made. “it According entirely is pos- sible that trial counsel believed that button wearers not particularly petitioner’s harmful chances at trial” or “petitioner stood as a chance of good obtaining a favorable verdict at this trial as at he would event, [in other a mistrial was granted].” Constitution Oregon does not guarantee per to a defendant, fect defense criminal no there are clearly defined standards determining counsel. adequacy Also, reasonable can differ as to whether people particular motion or objection necessary what constitutes mean ingful tactical or “scat strategy. Obviously, spurious motions ter to trial gun” approaches advocacy detract from effect presentation iveness of the a defense. It is from apparent trial counsel’s comments after he finished examination of stepmother he deliberately chose for a mistrial at make motion that time. Krummacher, court noted the difficulty

lies in assessing reasonably competent how counsel should in a court particular act circumstance. The stated: charges

“Criminal and trials are so variable that effective trial advocacy only court involves not performance tasks, specific but also the art professional exercise of Any judgment. formulation of a into standard must take variety advocacy the remarkable effective dis- account daily lawyers in our trial courts played competent dif- *9 style, personality, and stra- fering approach, temperament, cases, juries lawyers, judges inclinations. Because and tegic and vary, vary, because defendants crimes and because vary, standard, application any the of communities how- stated, necessarily to individual cases involves a ever * * * subjectivity judgment. and ad hoc degree of gener- duties can only “Certain of counsel be described lawyer [Those do] duties not the ally. require bidding the automatically must do defendant’s all operation the of suspend professional or otherwise respects expend it he judgment. Nor does require ethics and energy uselessly negligible potential or for benefit time and Rather, requires it the circumstances of case. under lawyer reasonably necessary do to things those dil- that igently conscientiously

and advance the defense.

«‡ * * * ^[*] acceptable advocacy from case to case. form of varies “The cases, guilty plea may be In recommendation a some others, will deem it advantage; the defendant’s counsel to put proof, to its offer a multitude of the state advisable defenses, seemingly strongest or offer the one defense. tactics, case, advocacy and manner of strategy, upon are for counsel determine based the defense skill and The constitu- professional judgment. exercise no defense —sel- right perfect defendant gives tion lawyer away from a without thinking walk trial dom does differently been or that something might have done Adequacy of preferred have to have avoided. assis- he would inconsequential for errors which are of counsel allows tance in the context It also proceeding. ofthe entire trial allows because, nature, backfire, choices that their tactical Moreover, a is involve risk which foolish in risk. trials often is may strong the prosecution case be sound where a close a failure to Errors which result from and the defense weak. for which law- judgment skill and professional use the choices. as tactical yer employed cannot be characterized words, professional if exercises In other counsel reasonable second-guess judgment, reviewing court will skill neither constitution, but will lawyer in the name of the conduct ignore court made in the decisions an defense which reflect absence or suspension profes- (citations judgment.” skill and 290 Or at sional 873-76 omitted; emphasis supplied). footnotes there case, In this are several inferences possible that could be drawn from counsel’s decision to defer any motion for a mistrial that could be commensurate with the exercise of constitutional assistance adequate of counsel. The theme of defense overriding petitioner’s was that he was not aware that Hobson intended to assault the victim and that he was in the at the time. wrong place wrong Petitioner testified at his criminal trial that he thought Hobson “was just joking around,” when Hobson tried to hit the initially victim knife, and that he did not seriously consider Hobson’s statements about blood on the getting knife because Hobson “was a lot of hot air. He talks a lot and learn you to ignore [him.]” On closing argument, counsel told part, *10 suspect strongly

“I suspect jury that at a trial Hob- guilty son would be found of murder and that his actions are justifiable, not but that’s not the case try. we’re here to Pachl, You’re here trying Randol a young man who has had 20 from people all walks of life you come here and tell about him, family and friends, who people he’s known all his life. good He is a person. He’s a truthful person. He’s tried to tell the truth and guilty he’s not of murder. Don’t convict him because of this thing horrible that Hobson did.”

It is that apparent petitioner’s trial to strategy was himself from the separate culpability of his companion by that he an demonstrating uninvolved, law citi- abiding zen. He did not contest seriously that a crime had occurred, in only his involvement it. The of the button message to all expressed generic support victims of crimes, message petitioner presumably which would have in the agreed defense. It any of his behooves trial counsel light present trial, consistent defense throughout given weak- for opportunities by nesses attacks an opponent and “scatter gun” inconsistent Petitioner’s positions provide. decision not to move for a mistrial counsel’s on ground the buttons’ the crime message expressed support consistent entirely victim is with his overall trial strategy. not if that was counsel’s for a moving Even motivation or to exclude the buttons, mistrial we are left to speculate why nothing as to counsel this record did more than to make spectators. about the a record post-conviction proceeding, petitioner

In this relief demonstrating has the burden that his counsel’s decision object move for not to a mistrial was a deviation from the professional judgment standard of reasonable distinguished reasonable counsel would have exercised as from a tactical decision. It is not an error of constitutional magnitude to choose a trial tactic that is not successful, and this is the kind ofcase on which reasonable minds could differ appropriate legal strategy. as to the that, We conclude on this persuasion record, that has not carried his burden of regard.1

The concurrence would hold that trial counsel’s inac competent professional repre tion breached the standard of possibility prejudice sentation but that the demonstrating falls short of tendency prose “a to affect the result of the App (quoting cution.” 145 Or Oregon, at 364 Stevens v. State of (1995), 101, 322 Or 110, 902 P2d 1137 which held lapses professional judgment that not all skill and entitle a post-conviction only defendant relief but those acts or tendency omissions counsel which have a to affect the prosecution magnitude). result of are of constitutional The reasoning concurrence’s in the context of this case suffers “[A]lthough states, from a defect. tons concurrence the but hardly they relatively [.]” benign neutral, were App (Emphasis original.) Apparently 371. Or at the con attorneys currence would hold that criminal defense have the obligation object professional to events in the courtroom not, by opinion, indicating wearing by specta our We are that the of buttons *11 deprive tors in a trial could never a defendant of a fair trial. A fair trial occurs when proof the and the verdict is based on evidence not on factors external to the at trial. (1986). 560, Flynn, 525, 106 L Ed Holbrook v. 475 US 2d S Ct 1340 External fac categories. inherently prejudicial Some tors fall into two influences are to a fair they unacceptable present prejudice. practices because an risk of Such are trial justified by only permitted when an essential state influences interest. Other require prejudice post-conviction the defendant to show actual in order to obtain (1985), Franklin, 469, on State relief. Petitioner relies v. 174 W Va 327 SE2d 449 (9th 1990). Risley, pro v. 918 F2d 828 Cir and Norris those cases the buttons outcry public particular being claimed for convictions in the cases tried and the messages causing jury of their was unavoidable in to consider factors effect the message than the evidence and the law of in this other the case. The of the buttons being inherently to prejudicial. case does rise the level of a or favorable effect on a fair trial. More- “benign” that have the is inconsistent with settled test over, reasoning legal external factors a fair trial. Under cir- prevent about when influences in the courtroom are so inher- cumstances where risk, that a fair trial is at the test for ently prejudicial preju- dice is met as a matter of law if exclusion does not occur. If the the buttons’ in courtroom appearance posed significant (as trial that an objection threat to a fair such was necessary it asserts), necessarily the concurrence follows that the but- and, thus, had a inherently tons were to prejudicial tendency Thus, the result of the the prosecution. affect issues about objected whether trial counsel should have in the exercise of skill and professional judgment reasonable and whether the buttons had a to influence tendency jury improperly if, fact, become one and same in the constitution required counsel to and he failed to do so. object Petitioner’s entitle- relief ment follows if post-conviction necessarily counsel should as claimed objected by have concurrence. None- theless, failure of lies not proof in the proof but in the that his counsel prejudice proof failed to exercise skill reasonable professional judgment.

Petitioner also maintains proximity wearing buttons box spectators jury inherently affected the to determine his jury’s ability guilt or innocence on the based evidence. the record is unclear as Although distance that the front row of the precise area box, is from the there is a in the record from jury photograph it could inferred that the spectators which be in this case as as the demonstrators jury were close were to the Norris, in in which the Ninth Circuit concluded that the jury in that case See Norris v. inherently prejudicial. buttons (9th 1990). However, F2d 828 Cir fact Risley, There is the record or nothing itself is not determinative. that there research that is suggests that we have found our jury distance between box “constitutional” required distance between button area. Again, spectators’ in the factor to be considered one only wearers and the every trial, Moreover, of the circumstances. totality have may who of spectators exists of the presence potential of the crime. the victim identity some of a social type 879, 889 342, 298 SE2d Va State v. 171 W See, Richey, e.g., *12 (1982) that the defendant’s to a fair (holding right trial was in a when, sexual assault case impaired involving high victim, school student her seated peers themselves in the courtroom to her each case must give support). Again, be decided on its own facts. trial counsel Presumably was aware the of the box and consid- proximity jury ered that fact with the of the along messages buttons. For reason, whatever he chose not to pursue any remedy because of those facts and for the reasons earlier expressed the has not demonstrated that opinion, counsel’s non- action other than a tactical decision. was

Petitioner also that his argues counsel’s failure to the court’s of chamber object holding “to conferences without and while the jury key the state’s witness was excusing seated in the witness box” constituted ineffective assistance of counsel. the state’s examination of During Wendy Rogers, a witness who had been a vehicle passenger petitioner’s occurred, counsel stabbing when the asked to be heard out the The court and counsel jury. side retired to excusing jury. During time, chambers without that state’s victim assistance representative approached Rogers stand, her, on the her patted gave tissue, witness words of her whispered encouragement apparently unable to hear. When he learned of the occur jury rences, mistrial, counsel moved for a arguing conduct constituted representative’s improper prosecu The court then questioned torial each about vouching. juror All of the jurors each had seen and heard. said saw they what witness, approach jurors a few representative a friend Rogers. that the None of the person assumed the state’s said to representative Rogers. heard what jurors did not sit with the Moreover, representative prosecution other way or in demonstrate an affilia at counsel table in front of the jury. tion with prosecution that his trial counsel should have argues Petitioner the trial court left the in the jury box with when objected stand. the witness we The time Again, disagree. Rogers with the spent relatively witness was representative that the record, had no idea who the According jurors brief. was, nor did hear that either they anything representative peti- Rogers We conclude representative said. assignment proof on this his burden of not carried has tioner either. argument is that trial counsel’s final

Petitioner’s prepare consti alleged him for cross-examination failure from the counsel. The evidence assistance of ineffective tuted hearing defendant’s post-conviction that most of indicates *13 attorney through another occurred counsel contact with investigator, private both ofwhom and a office counsel’s person petitioner’s assisting also case. Counsel with counsel petitioner ally spoke the criminal trial. There is before with representatives petitioner, and his his counsel that evidence petitioner’s stated facts, and counsel version of discussed peti that he understood that he was confident an affidavit in tioner’s version. argues petitioner that counsel did not Nevertheless, he did not coach him on how skill because reasonable exercise respond he nerv- cross-examination, result, and as a to to relationship convey properly he not able to ous and was post-conviction court evaluated Hobson. The had with degree testimony petitioner of astuteness at trial and the of questions by responding petitioner to demonstrated that lack It concluded and cross-examination. both direct petitioner preparation “did not constitute as a witness judgment.” professional There is skill or an absence support the rec- court’s conclusion. From the trial to evidence ord, explain petitioner apparent his ver- able to it is Beyond difficulty. petitioner’s that, facts without of the sion expectations “coaching” fact, a witness unclear to us. are suggest circumstances, an ethical viola- under certain could, by petitioner prove did not We conclude counsel. tion pre- preponderance counsel’s failure to evidence assis- pare constituted ineffective for cross-examination him stated, the trial court all of the reasons For tance of counsel. denying petitioner his conviction. relief from not err did Affirmed. concurring.

HASELTON, J., my disagreement separately express to I write analysis opinion’s failure of defense counsel’s lead object spectators’ Specifically, buttons. unlike the majority, object I believe that counsel’s failure to to the but- competent professional repre- tons breached the standard of petitioner Nevertheless, sentation. did not demonstrate that tendency “a that breach had such prosecution” affect the result of the post-conviction to warrant relief. Stevens v. (1995) Oregon, (origi- 101, 110, State 322 Or 902 P2d 1137 deleted). emphasis Accordingly, nal I concur. In Stevens, the court described burden in demonstrating constitutionally inadequate assistance of purposes Oregon counsel for I, 11, of Article section First, Constitution. ‘by preponderance

“a dence, cise reasonable must show a of the evi- demonstrating that trial counselfailedto exer- facts ” professional judgment [.]’ skill and Id. at (quoting Trujillo Maass, 431, 435, v. 312 Or 822 P2d (1991)). if conduct breached the Second, defense counsel’s standard of professional representation, petitioner prejudice must show magnitude is, advice, of constitutional that counsel’s —that tendency acts, or omissions had “a the result of the affect *14 prosecution.” (emphasis original). in Id. at 110 aspect inquiry The ofthat first cumulative is distinct Consequently, may from the second. counsel breach the stan- professional representation, consequence dard of even if the prejudicial post-convic- as of that breach is not so to warrant simply, and most there words, tion relief. In other can be possibility prejudice, which, in because of a of crim- instances inal trial counsel is obligated ultimately, if, to act even his or “[tend] her to do so did not to affect the result of the failure deleted). (original emphasis prosecution.” Id. at 110 Here, the the trial, This is such a case. from outset of spectators wearing and 12 two-inch wide but- between six tons, bearing legend the “C.V.U.” and “Crime Victims jury imme- sat in a block of seats closest to the and United,” diately adjacent and to the aisle which the entered clearly to the the courtroom. The buttons visible left button-wearing jury. occasion, On at least one several of the expressed support victim’s embraced and to the

365 widow the Other jury’s presence. spectators, including in case, not in immediately who were the attorneys participants about noticed the of the buttons were concerned presence their potentially prejudicial impact.1

Nevertheless, nothing defense counsel did —until had been trial, presented the of after all evidence day sixth the 145 Or had been See jury. App and the case submitted At that after the point, long at (quoting 355-56 colloquy). bolted, suggested had counsel “horse” potentially prejudicial at least the door —and then didn’t. that he to bar might try filed a for a new trial defense counsel motion Subsequently, the of the buttons in predicated, part, and the denied that motion. courtroom,2 court of case, of this regardless circumstances verdict, to affect the “tendency” jury’s ultimate demonstrable and judgment the exercise of skill professional reasonable timely objection buttons, jury’s out of compelled defense counsel Bluntly: criminal presence. Competent objection begin- raised such an in limine at the would have That of ning uncharitably of trial. not a matter “second- trial counsel’s from a distance of guessing” performance 867, See v. 290 Or years. Gierloff, months or Krummacher (1981) (“[I]f 875, P2d 458 counsel exercises reasonable skill and court will reviewing professional judgment, constitution[.]”). in the name lawyer second-guess is, that, It a matter of where there instead, acknowledging from the buttons there possibility prejudice some attorney specializes spectators, estate and those an who in real con One of law, “significant” that the wearers were a and identifia struction testified button “impression group he had the that it was the ble in the courtroom and that playing in that trial. field was a entire versus defendant little courtroom public spectator, investigator metropolitan an defender’s tilted.” Another together; office, persons wearing hung buttons “kind of sort of stated obvious, maybe section, you Pretty pretty pretty rooting will. if reminded me — obvious.” asserted, part; proceeding new trial motion in the criminal Defendant’s was denied a trial because the misconduct others “Defendant fair jurors materially and interfered with the which affected courtroom *15 spectators parts proper This efforts on the verdict. misconduct involved sympathy of the victim.” for testified for the wife arouse witnesses who motion, support proffered of various of that defendant affidavits the button recounting in the courtroom and of their observations of the buttons wearers’ conduct. countervailing strategic were no tactical or considerations, competent (“[B]ut objected. defense counsel would have Id. at 875-76 ignore

neither will the court decisions made in the conduct ofthe suspension defense which reflect an absence or professional judgment.”). skill and possibility prejudice.

Here, there was a The but- legend, tons’ “Crime Victims United,” did not comment directly specific charged, on the crime murder.3 Nevertheless, spectators’ the buttons communicated the belief that a crime had occurred, petiti- and the button-wearers’ at conveyed oner’s trial their further belief that had Any committed it. other characterization of the buttons, or of spectators’ presence, reality. blinks proffered compelling Petitioner given evidence that, potential prejudice, respect trial counsel’s inaction with to the buttons was deficient. The statements of Charles Crookham, Marc Blackman, and Robert McCrea are exem- plary. years judge, Crookham, who served for 26 as a trial including eight years presiding judge as of the Multnomah County Oregon’s Circuit Court, and who later served as Attorney explained potential prejudice: General, designed convey impression “Well,the button is an people supporting

someone that these are and it’s victims, crime certainlyvery visible. ‡ ‡ ‡ ‡ cheering “And it’s sort of a section is what it amounts to. again,vouching, people vouching it’s,

And and these are prosection you [W]hen witnesses. come downthe aisle and here are a series—and I understood it was esti- up you certainly conveying mated at to a have a dozen— something guilt that has to dowith or innocence sympathy for the victim.” expressed opinion Crookham further that, his because of potential prejudice, objection court, the trial even without an by counsel, should have removed the buttons: (W 1985) Franklin, Compare, e.g., (spectators State v. 327 SE2d 449 Va at “MADD,” i.e., driving reading Against drunk trial wore buttons “Mothers Drunk (9th 1990) Driving”); Risely, (spectators rape v. 918 F2d 828 Norris Cir trial wore reading Against Rape”). buttons “Women

“Q [By petitioner’s level, On a practical counsel] just your opinion, as the trial or a trial who judge judge, had duty get there to rid of the buttons? Well, all, “A first of does judge because he’s ulti- mately responsible for that everything occurs the course you And saying trial. so have a choice of to people, we that, signs, have or we picket won’t won’t have or anything going you else like that. I’m not to tell can’t it in you do hallways out or in front because that’s not before me. But I certainly can that and them dampen give a choice of remov- ing the But staying button outside. I think if that judge are, every is aware of what signs judge those vision, something apparent has 20/20 is all peo- when these wearing are ple uniform, it. Just like a it conveys some- thing.”

Crookham opined, finally, that if the trial judge had not pre- viously removed the buttons on his or her motion, own defense counsel had a duty make such motion promptly. a

Blackman, former of the president Multnomah County Bar Association, who has specialized in criminal for 20 years, cases over years for four a including serving as prosecutor with the United States Attorney’s Office, opined that:

“effective trial counsel would have raised the issue impropriety allowing wearing spectators button to attend jurors Mr. Pachl’s trial exposed before the had been to them and the trial court would have granted prohib- the relief of iting spectators wearing from such buttons. If trial counsel did not become aware of the of button wearing spectators until after the had been exposed to them, my opinion then it is this indicates ineffective counsel, assistance of because it is incumbent on counsel to aware of things occurring be in the courtroom that would prejudice his or right her client’s to fair trial.

“But even if excusable, immediate lack of awareness is effective counsel immediately would have moved for relief becoming upon wearing aware that such certainty I legal buttons and believe to a reasonable relief, had counsel immediately sought the court would granted lawyer have it. The relief an effective defense mistrial, sought may would have which the trial court granted early enough well have if the proceeding. made mistrial, my it grant if the court refused to But even certainty the trial court legal to a reasonable opinion display have relief from the continued granted would further have to cure the sought such buttons and would already inquiring jurors done of the whether their harm spectators might performance affect exposure duties, instructing display that the their them disregarded improper completely and was be buttons by them.” law for

McCrea, nearly who has criminal practiced state, in this as a years including serving prosecutor the Lane District Office over seven County Attorney’s *17 first defense coun- “absolutely” thing testified that years, to the buttons removed: sel should have done was ask have “Q [By And how soon into the petitioner’s counsel] have for trial should he moved that? persons

“A As soon as he was aware that the jury impaneled the buttons. Before the was even there with words, it’s a of it at that time. In other not if he was aware he to wait until the sees the but- situation where wants to do is avoid and have them removed. What one wants tons it ever possible. if happening,

“Q wearers again, difficulty And button is? form It is

“A The buttons are a of communication. holding signs in the persons up tantamount to essence concerning position their is what what as to what courtroom directly button It’s not stated on the happen. should but not subtle either. they happen, believe should it’s reasonably per- these interpret would what Any person sentiments concerning are what should sons—what their of they talked in terms victim And that fact that happen. if there a victim. And there’s they means that believe is victim, person someone has victimized the that means committed a crime.” essence manifest.4 of was prejudice possibility participation stating, denigrate importance not minimize or In so I do system justice. groups rights in our of criminal complainants victims’ Nevertheless, Moreover, public’s right to criminal trials is manifest. attend right to fair trial. do not override a defendant’s those considerations

Conversely, plausible failing there no reason for object. objecting, to There was no to “downside” and there nothing object. gain failing opinion to from The lead posits why might theories as to various defense counsel objected. App have See 145 Or at are 359-60. Those theories respects. in at least five First, flawed the state did not adduce testimony by explaining defense counsel Thus, his inaction. posits entirely opinion speculative the rationales the lead are conjectural. Significantly, counsel did submit an defense post-conviction proceeding rebutting petiti- in the affidavit allegations inadequate oner’s other assistance, but explain, did not mention, affidavit much less inac- counsel’s tion as to buttons. respect

Second, counsel’s silence with to the buttons unsurprising attorney is because, trial, after the same moved part for trial, a new If, because the buttons: as the lead opinion suggests, “entirely of the buttons was strategy” consistent” with counsel’s “overall trial “consis- —a tency” that counsel himself never asserted —counsel could presumably, good not, have moved in faith trial new part, “[denial] based, in on of a fair trial” because of “mis- involving parts conduct” arouse “efforts on the sympathy for the wife victim.” opinion premise Third, the lead based “overriding” the defense advanced a consistent “overall” trial strategy, by attempted “separate which he himself from culpability companions” seriously of his and “did not con- *18 only test that a crime had occurred, his involvement in it.” premise wrong. Although That defendant did advance theory opinion suggests, the lead he also advanced others— including, significantly, proposition most that com- his panion’s deadly physical justified by use of force was aggressive threatening particular, decedent’s and conduct. requested lengthy defendant and received self-defense provided, part: instructions that in you Stanley [thedecedent] “Therefore,if findthat Reed was physical against about to use or threatened to use force [defendant’scompanion] Brian Hobson in the commission felony, Stanley using of a or Reed or to was about use deadlyphysical against Hobson,

unlawful force Brian then may you acting find that Brian Hobsonwas in self-defense deadlyphysical against Stanley using force Reed.Afind- acting ing in that Brian Hobson was self-defensewould acting you Randy Pachl also in self- to find that allow defense.” argued closing argument,

During defense counsel exten- justification sively about notions of and self-defense. “consistency’ justifi- possible no a There is between as and characterization of the decedent cation defense closing Indeed, defense counsel alluded to that in “victim.” argument: * * * ‘victim,’ talk about Mr. as the “Whenever we Reed object

perhaps Thus, true.” to that’s not counsel’s failure coherent trial to strategy. buttons cannot be laid at the door of a opinion’s Fourth, the lead assessment of counsel’s solely pertains supposed unexplained “tactical” decision to day of to move for a mistrial on the sixth counsel’s failure impermissibly App 145 Or at 359-60. That focus trial. See inadequate scope petitioner’s of assis- claim narrows strategic explain any plausible or not tactical tance5 does failing beginning to in oftrial to for move limine at reason exclude the buttons. “presumably suggestion petitioner

Fifth, “generic message agreed the buttons’ i.e., would have with” — App support [for] crimes,” is, 145 Or at all victims see 359— specious. Presumably, respect, be the same could with all any message criminal trial in which extraneous said of By reasoning, his or her innocence. a defendant asserts misi- case relied on an alibi or defendant a murder if the freely display buttons could defense, dentification leg- picture bearing placards with the the decedent Avenged” Killer Must Be Death Must Be and “Her ends, “Her part, petition post-conviction alleges, in relief counsel, process, criminal and a fair trial because effective assistance of due denied defense counsel process protect adequately rights to a fair trial and due to defendant’s “[flailed object by failing victim’s advocates numerous law trial, during personal knowledge, at the trial. On courtroom identifying wearing prominently as mem- them of individuals buttons number advocacy organization present It in the courtroom. of a victim’s

bers court to appear trial moved the from the record that counsel ever does require buttons.” them remove their exclude these individuals *19 371 is truth that like inescapable here, Punished.” petitioner defendant, the had hypothetical nothing gain by having the the buttons before jury. some sum, the buttons had of possibility prejudic- the and there were no

ing jury, con- plausible countervailing siderations for the buttons before keeping jury. the Given balance, that cost/benefit trial competent counsel would have Thus, defense counsel’s silence objected. breached the stan- dard of competent representation.6 Nevertheless, record, on this the of possibility preju- ” an which fell short the

dice, required objection, of “tendency for relief. that required post-conviction Assuming some extraneous in some messages courtroom context can be so as to be deemed inflammatory presumptively prejudicial post-conviction purposes, circumstances this case did not cross that “structural error”-like threshold. Although the message clearly aligned buttons’ wearers with the prose- cution, that as message, observed, court post-conviction “did not accuse the petitioner of committed the having sub- crime, it ject nor did imply button wearers had extra-judicial knowledge or information concerning peti- Thus, tioner’s guilt.” although hardly buttons neutral, they were relatively benign, even given wearers’ Accord proximity jury. Franklin, 449; Norris, 327 SE2d (both above). 918 F2d described in note 3 Without the benefit of some “structural error”-like it prejudice, was incumbent presumption petitioner, as relief, proponent post-conviction affirmatively to prove that the content and proximity of buttons’ message, when conduct, with the wearers’ had the coupled requisite imper- missible to affect” “tendency jury’s verdict. Despite post- conviction counsel’s best I believe efforts, did not meet that burden. Without further and unnecessary my conclusion in is based on the amplification, regard opinion’s obligated object only The lead assertion is that counsel if “the but inherently trial, prejudicial” preclude App so tons were as to a fair 145 Or at 360- 61, impermissibly equates representation conflates and breach the standard is, suggests only prejudice. required and That it that counsel is to act when an “tendency analysis to affect” the actionable verdict manifest. That cannot be See, Stevens, 101, squared Oregon’s post-conviction methodology. e.g., 322 Or Krummacher, 867, App 290 Or 145 Or described at at 364-65. including strength of the state’s record,

criminal trial display, found the buttons’ as case, the circumstances of *20 peti- Accordingly, post-conviction court. I concur that post-conviction relief on his based is not entitled tioner challenge spectators’ buttons. counsel’s failure to Armstrong, join Riggs, JJ., Landau, Leeson, concurring opinion. this