Defense lawyer’s sarcasm was not ineffective assistance | Courts

Colorado’s second-highest court last month rejected a defendant’s argument that his trial lawyer had essentially told jurors he was guilty, when it instead appeared the lawyer was speaking sarcastically.

El Paso County prosecutors charged David Donis in 2007 with numerous criminal offenses, including kidnapping, burglary and assault. Jurors convicted him and Donis is serving life in prison.

Donis had purchased a truck from his landlord and was in the process of paying it off when the landlord evicted him and demanded immediate payment for the balance. Donis asked for time to move out and make the remaining payments. The landlord initially agreed, but subsequently repossessed the vehicle and emptied the unit of Donis’ belongings.

The prosecution contended Donis and an accomplice broke into his former unit, forced a houseguest to help them rob it, then beat up and tried to kidnap the landlord. The defense maintained Donis had shown up to collect his things, but the remaining events never happened.

Donis’ convictions were upheld on appeal. He then filed a petition for postconviction relief, which is available under specific conditions like newly discovered evidence or constitutionally ineffective assistance of counsel. The Court of Appeals again rejected the claims.

Then in 2015, Donis filed a motion alleging his postconviction lawyer was constitutionally ineffective. A trial judge denied the motion, but this time the Court of Appeals ordered reconsideration of three claims — including whether Donis’ first postconviction attorney should have argued that his defense lawyer at trial improperly “fabricated (his) confession of guilt” during opening statements.

Because Donis’ trial lawyers, Chad Miller and Marcus Henson, had since been appointed judges in the Fourth Judicial District, retired judge Christopher J. Munch from Jefferson County oversaw the proceedings. He held a hearing in 2022 to consider the alleged admission of Donis’ guilt by his attorneys.

During opening statements in the original trial, Miller had told the jury the evidence would show the victim “has maybe some bruises and some cuts. Maybe there was a third-degree assault, a physical altercation.” 

The evidence would also show “that this meeting, argument, started in the driveway/garage of (the victim’s) house. And this meeting and argument ended in the driveway/garage of (the victim’s) house. Now, in between, they went inside briefly to get the title of the car, OK?” Miller said. “There is your kidnapping evidence.”

During the 2022 hearing, Munch observed the tone of Miller’s last statement was not apparent from the transcript.

“One (interpretation) would be, ‘That’s the kidnapping?’ In which case it should’ve ended with a question mark. The other would be, ‘That’s their kidnapping,’ which would not end in a question mark,” Munch said. “Both imply the same thing, which is, ‘This isn’t what they say it is.'”

Miller agreed both interpretations exhibited sarcasm.

“You know, ‘This is your kidnapping?’ And the jury could decide, well, yeah, it is. And that’s not my goal, right?” he said. “It would be even more sarcastic than your second example, I think. I mean, ‘Here’s the kidnapping they want you to believe. This is ridiculous. This is garbage.’ You know, however you want to phrase it.”

Munch also heard from Nancy Holton, a defense attorney who testified lawyers should not use sarcasm in a jury trial because listeners may not understand it to be sarcasm.

Is the use of sarcasm “ineffective in the sense that it constitutes substandard performance by an attorney to such a degree as to be ineffective assistance of counsel?” asked Munch.

“No, I think that would be too strong of language to use,” responded Holton. But “in this case, I think that the risk of misunderstanding was significant.”

Munch ultimately rejected Donis’ claim that his first postconviction attorney should have raised the theory that Miller essentially admitted his client’s guilt to the jury.

“Trial counsel did make some sarcastic remarks about the charges, but they did not constitute an admission of guilt and would not have been interpreted by the jury as such,” he wrote. The “use of sarcasm by criminal defense counsel is not particularly unusual and is not constitutionally ineffective.”

Donis appealed once again, arguing “Miller’s opening statement was not some satirical masterpiece,” but rather conveyed the same version of events the prosecution was trying to prove.

A three-judge Court of Appeals panel was unconvinced.

“The court’s inquiry as to whether Miller used sarcasm by posing his remarks as a question or as a statement is critical,” wrote Judge Sueanna P. Johnson in the May 8 opinion. “Miller testified that he did not want to pose questions to the jury but instead would make declarative statements in a sarcastic manner. He reasoned that making a declarative statement with sarcasm was more powerful because he intended to sway the jury to his client’s side — i.e., the prosecution’s case was weak or ridiculous.”

She added that over-using sarcasm is, “at most,” a tactic to be employed sparingly.

“But whether counsel’s use of sarcasm might be risky because it could backfire is not the standard to prove ineffectiveness,” Johnson wrote.

The case is People v. Donis.