It is difficult to know where to begin in assessing Mr. Serano’s performance. I went to meet Mr. Serano’s office one Saturday morning to ask him about Mitch’s case. His office is a one story building in a rundown neighborhood. Even for a casual Saturday he was underdressed: barefoot, plaid Bermuda shorts, and a sleeveless undershirt. He was friendly and accommodating. Unfortunately this visit was before I had fully digested the trial transcript and its glaring missed opportunities to defend Mitch.
Naively I asked him if he thought Mitch was guilty. He demurred but then said,”I told him whatever he did to not take the baby lotion from the ADA when she handed it to him. I told him and he took it anyway. I knew he was sunk when he did that.”
I have since gotten Serano’s appeal brief filed with the Court of Appeals, First District. The only issue raised was the issue of custodial interrogation and the admissibility of the confession.
Here are the issues that could have been raised in Mitch’s defense.
- Exculpatory evidence not used – Mitch recants his confession to Dusty immediately after being released, Lance Hodges reports others in apartment, BACH report describing Shelly’s self- stimulation.
- A friend who came to the apartment the weekend of September 24 found Lance Hodges alone with the children.
- Attorney Serano asked Lance Hodges only two questions: Are you and Mitch friends? Did you abuse Shelly?
- He asked no questions to Detective Mathis about the veracity of the confession. Why no notes or tapes?
- No questioning of Dr. Sparrow about misdiagnosis of chlamydia. She lied when she said Shelly had a positive culture for chlamydia and a second time when she said it is always sexually transmitted. She almost certainly misdiagnosed Condylomata in Mitch. False statement by her that chlamydia and condylomata EQUALS sexual abuse. Why no photographs? And why were the condylomata not treated in either Mitch or Shelly? Why no rebuttal expert on sexually transmitted diseases to counter her false statements?
- Vondren’s testimony contained numerous mistakes and assertions. Allowing unchallenged testimony of Dr. Sparrow and Vondren describing physical signs of Shelly’s “sexual abuse” that was false, inflammatory and scientifically erroneous. Why no rebuttal expert on sexual abuse to counter their statements.
- Not objecting to “similar” child abuse photos (not Shelly) being shown to the jury. The jury could not separate those pictures from Shelly. Serano should have objected, vigorously.
- He did not call Joan Wilson, Social worker, to testify. She could have confirmed that Dusty said that Mitch recanted his confession immediately after release. She was on the witness list. Why wasn’t she called?
- He did not call Dr. Sid Kazmer, CPS doctor, as a witness. He could have testified that he saw no signs of abuse of Shelly in November 1995. He was not even listed as a witness.
- The only experts called were two doctors who said Mitch didn’t have venereal warts. He called Mitch’s mom. No other witnesses were called by him. According to Mitch he told several witnesses to go home, they weren’t needed.
- He made few objections and all of them were overruled.
I am convinced a competent attorney would have gotten Mitch exonerated. Money equals justice.
What I don’t know is if it is too late to claim ineffective council in an appeal after 20 years.
The 6th Amendment to the US Constitution states
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
In addition, the Supreme Court has ruled that the right to a lawyer implies the right to an effective lawyer.
The Supreme Court has held that part of the right to counsel is a right to effective assistance of counsel. Proving that their lawyer was ineffective at trial is a way for convicts to get their convictions overturned, and therefore ineffective assistance is a common habeas corpus claim. To prove ineffective assistance, a defendant must show (1) that their trial lawyer’s performance fell below an “objective standard of reasonableness” and (2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668 (1984).