Ad-Express and Daily Iowegian, Centerville, IA

July 31, 2013

Court rejects appeal of an appeal

Ottumwa Courier

DES MOINES — A Marion County man's bid for a new trial on charges of drug manufacturing has been rejected by the Iowa Court of Appeals.

The case is a bit unusual in that it is an appeal of a rejected appeal. Joshua Mitchell argued his defense attorney failed to adequately represent him and that the lower courts erred in not ordering a new trial. He was sentenced to up to 25 years in prison after being arrested in November 2007.

Mitchell's appeal centered on whether his trial attorney should have sought to have statements stricken from the record or challenged testimony from investigators. In one instance the attorney objected to a witness telling jurors Mitchell was making methamphetamine. The objection was sustained, but the defense did not ask to have the statement stricken.

Law enforcement witnesses made four references to Mitchell's refusal to answer questions. In the appeal, Mitchell said his attorney should have objected and pointed out he had a fifth amendment right to remain silent.

The attorney said during the appeal that he did not object for strategic reasons. The court of appeals review concluded the attorney, “made a well-thought-out and balanced strategic decision not to object to statements that Mitchell had declined to answer questions by officers in order to get in evidence he did not believe he could present in any other way.”

But the court goes further, saying the state, “had a very strong case” against Mitchell. So any error by his attorney was likely not a determining factor in his conviction.