Faulty system or ineffective defense counsel?

Abstract

George P. Fletcher uses Oeykue's trial as proof the disadvantages the Continental trial. But I have strong doubts whether this case is a good one from which to draw such generalizations. Instead, I think this case is primarily an example ineffective assistance counsel. Therefore, my comments will begin with a review what a reasonably competent criminal defense lawyer would have done in this trial. Then I will examine the theory underlying Oeykue's lawyer's strategy to win his case by being deferential to the judge. I will show that, especially in this trial, this strategy is senseless and that Fletcher's assumption that a deferential attitude toward the judge is an inherent element the German trial is false. Next, I will argue that Fletcher's use this case to criticize the German system in comparison with the American system is convincing only because he focuses on Oeykue's side the story. If one looks at the evidence from the perspective the fact-finder, it is quite possible that an American jury would have come to the same conclusion as the German judge did. In my final comments, I will briefly address Fletcher's points comparison. (1) Oeykue gave her version the events in a free-floating stream association(1) at the beginning the trial. An experienced defense lawyer would have considered, prior to trial, whether Oeykue would be capable giving a consistent and coherent report the events. If he had doubts, he could have submitted a written report the events, which would have been taken as her statement, to the court. The lawyer could then have permitted his client to be asked additional questions by the court and the prosecutor. But he never would have permitted Oeykue to enter into an exchange with the judge about the soundness the police's handling citizens' phone calls. Nor would he have permitted the judge to impinge on Oeykue's right to be heard by interrupting her before she had finished making her statement. Likewise, when Oeykue stated that there was no vacuum cleaner present on the night in question, and the judge responded of course, the defense counselor should have intervened. A judge is permitted to challenge a defendant. However, such a challenge must be based on logical flaws in the defendant's story or on conflicting evidence. A plainly sarcastic comment such as the judge's warranted a formal motion challenging the judge as biased. Upon this motion, the judge would have made a written report the incident and another bench at the court would have decided whether to declare a mistrial. Even if the defense's motion were unsuccessful, it would have indicated to the judge that she would have to conduct the trial strictly according to the rules the procedural code. Any competent defense lawyer would have examined the police officers thoroughly to elicit possible contradictions between the testimony the two officers and between their testimony and the written report prepared on the night the incident. Oeykue had fired her first counselor, a well-regarded criminal defense lawyer, and had hired Mr. Hasan Urgursoy, a friend, just a week before the day the trial. Mr. Urgursoy specializes in civil and immigrant law and, from my examination the file, I can only conclude that he had very limited, if any, experience with criminal cases. Mr. Urgursoy's complete lack interest in the supposedly dangerous weapon is instructional. The idea that a small woman could hit a trained police officer with a large vacuum cleaner in the course an unfriendly exchange words goes against ordinary intuition. However, the exact type and size the vacuum cleaner was not included in the police report, nor was it discussed at trial. A competent lawyer would have examined the vacuum cleaner belonging to Oeykue and her sister to determine whether it would be useful to present it as evidence to show the absurdity the police officers' accusation. …