More often than night one of the main reasons a person is wrongfully convicted is because of ineffective assistance of counsel.This can be in the form of:
- Not subpoenaing necessary witnesses
- Not calling expert witnesses
- Not using an investigator
- Not reading and studying all the discovery and evidence
- Not obtaining all the evidence from the prosecution
- Not properly preparing the defense witnesses
- Not being prepared to effectively cross examine prosecution witnesses
- Not filing the proper motions
- Not objecting to false and/or harmful statements made by the prosecution during direct examination of witnesses
In Hank's case, in addition to the many discrepancies with the victim's testimony and sloppy police work, there were also numerous mistakes made by trial counsel, Murry Shulman that contributed significantly to Hank's conviction:
- Why didn't trial attorney Shulman request Hank's trial be scheduled for a later date? Hank did not see or speak to Shulman until the day his trial started. Shulman introduced himself to Hank in the Superior Court lock up as his attorney the day jury selection began. Shulman spent all of 45 minutes with Hank before they were called into the court room; hardly enough time to get to know Hank, his case or build an adequate defense. What Shulman defended Hank with was just what the Asst. D.A. Frances W. Bloom gave him to defend Hank. In essence Hank had no real trial attorney defending him; it was more like two prosecutors trying the case. If Shulman had presented a proper defense on Hank's behalf, how might that have altered the jury's decision?
- Why wasn't’ Kenny Newman (Hank's brother's friend) called as a witness by attorney Shulman to verify Hank arrived at his brother's house around 2:00 AM the morning of July 19th? Newman was at the house with Teddy Brooks (Hank's brother) and could have supported Hank’s alibi. Newman didn't testify because he would have been an independent witness who had nothing to gain by testifying for or against Hank. D.A Bloom didn't want that and Shulman went along with it thus removing a witness that could have provided Hank with an alibi during the time the supposed crime was occurring. If the jury had heard Kenny Newman testimony, how might that have altered their decision?
- Why wasn't’ the chemist who analyzed the quilt used at the crime scene called as a witness by attorney Shulman? He might have been able to provide answers to key questions regarding the fluid and semen (and blood) found on the quilt, alleged by Tanya, where the rape occurred; answers that might have shown none of the fluid found on the quilt was Hank’s or Tanya’s. When Det. Whitehead presented the chemist report, Shulman asked the judge if he would hab the chemist into court so that he (Shulman) could question him about his report. The judge denied Shulman's request; stating Shulman had plenty of time to subpoena the chemist into court; remember Shulman had no time prior to the trial to question the chemist to determine what information he had that might have proven valuable to Hank's defense. A rape kit was done on Tanya (victim) and based on what Shulman told Hank the test was negative. A blood test was also taken of Tanya and all those results were also negative. Remember Tanya claimed Hank made her drink two 16 oz. bottles of beer, 32 oz. total just a few hours before the blood test was taken. 32 oz. of beer for a 12 year old girl is a lot of beer, yet it didn't show up in her bloodstream. And no one stated that she appeared drunk, or smelled beer on her. Yet the results of the rape kit and blood test were never presented to the jury; imagine how that might have altered their decision? And this was allegedly a rape case and nothing presented to substantiate the fact a rape was committed.
- Why weren't the doctors and nurses that examined Tanya at the hospital the morning of July 19, 1982 called to testify about Tanya's condition that morning. Attorney Shulman should have subpoenaed these people.
- According to Michelle Bushey's police statement dated July 19, 1982 she stated that Tanya had called her that morning from a phone booth. When did Tanya have any time to call and talk to Michelle that morning. Remember according to Tanya she had still been with Hank until early morning, than at Attorney Weisser's home and then at the hospital being examined. When did Tanya get the chance to call and talk to Michelle and what did they discuss. Because attorney Shulman did not spend the time looking over Michelle's police statement he didn't even know about this call. How would this news have effected the jury's decision?
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- A semen sample was taken from Hank, under court order at the Western Mass, Hospital. Westfield, MA. This sample was to compare Hank's semen with the alleged semen found on the blanket taken from Hank's car just days before the trial started. Why wasn't attorney Shulman present when the semen sample was taken, rather than saying it was okay to proceed over the phone? Why didn't Shulman subpoena the results for trial? Why didn't Shulman subpoena the doctor, nurse, deputy sheriff and Assistant DA that served Hank the court order for the semen sample, to testify that a semen sample was taken; under what conditions? What happened to the sample? What were the test results? Where was a copy of the court order? None of this was on the docket entries.
- Why wasn't Mary Mahaney better prepared as a witness by attorney Shulman before she testified? Why didn't Shulman ensure she had her diary present so she could have been positive of the date she saw Hank talking with two girls that could have been Tanya and Michelle? Why didn’t Shulman make arrangements to have Mary Mahaney view Tanya and Michelle (Tanya's friend) and be able to say that they were definitely the two girls talking to Hank on Wednesday, July 21st, two days after the alleged rape occurred? Shulman didn't speak to Mary Mahaney until late that morning just before putting her on the stand, hardly enough time to prepare her for what was to come. Shulman asked the judge if Mahaney could go home to get her diary, and bring it back to court so she would have something to reference; the judge denied Shulman's request telling him he had plenty of time to prepare his case; yeah like meeting with Hank for 45 minutes just before going to trial. Shulman knew nothing about Mary Mahaney's testimony or what she had until she got on the stand. If the jury had heard a prepared Mary Mahaney's testimony, how might that have altered their decision?
- Why didn't Attorney Shulman call Roger Frappier, Tanya's next door neighbor especially after ADA Francis Bloom brought him up in his opening statement to the jury. Frappier, stated that he saw Hank on Monday afternoon July 19, 1982 around 2:30 PM going from the front door to the back door of Tanya's house; then again on Wednesday morning, July 21st around 9:00 AM talking to Tanya and Michelle in front of Tanya's house. His testimony would have corroborated Mary Mahaney's testimony that she saw Tanya and Michelle on July 21st just two days after the supposed kidnapping and rape. Remember Det. Whitehead and ADA Bloom made it sound like Hank was either hiding from the police or had run away when in fact he was in plain sight not hiding from anyone.
- Why didn’t attorney Shulman try to locate the McDonald’s waitress that Hank said waited on Tanya and him the morning of July 19th when they had breakfast? She could have described Tanya’s appearance and her behavior at this time. Hank states when Tanya and he walked into McDonald's the morning of July 19, 1982, she was standing in front of Hank, in the back of other people, with other people on their right and left in line. If Tanya was as dirty as Attorney Jeffrey Weisser stated she was, not only would the waitress have noticed it, but other customers would have as well; as well as the stench of beer and urine all over Hank. If Shulman had located the waitress at McDonald's and gotten her to testify, how might this have altered the jury's decision?
- Why weren’t the policemen who were at the convenience store (Williams Spa) Hank went in to purchase cigarettes, called by attorney Shulman, to confirm they saw Hank at the store and that it appeared Hank wasn’t bothered by anything; the policemen also could have described Hank’s appearance that morning (the morning after the alleged rape)? The police log books would have shown the police were in the store when Hank said they were. Police are trained to observe strange behavior and foul smell. Even if Hank hadn't appeared nervous how would he have escaped the police officers noticing a foul urine and beer smell if Hank, according to Tanya's testimony, been drinking beer all night and urinating on himself? Also, Tanya stated that she vomited on Hank more then once; how would that have smelled to a couple of police officers? If what Tanya stated was true and Hank walked into that store in the condition she claimed he did, Hank would have been questioned and in all probability arrested and put in a squad car and taken to jail. If these two police officers had testified that they noticed no strange behavior in Hank or foul smell on his appearance, how might that have altered the decision of the jury? Why didn't Tanya run into Williams Spa screaming for help like she claimed she did at the drive-in theater? After all she saw a police car and could have easily run screaming for help; instead she ran away from this store when the police could have helped her. And if Hank had committed this crime why would he have left Tanya sitting unattended in his car and go into the store where two policemen were drinking coffee? These two policemen should have been subpoenaed?
- Why wasn’t the police officer who responded to the break-in at Michelle Bushey's house called by attorney Shulman as a witness? He could have stated if Hank talked with him as opposed to remaining in the car, acting strange as Tanya testified. The police officer would have shown the discrepancy in both Tanya and Michelle's testimony. His written report would have shown them both wrong. If this police officer had testified, showing the discrepancy in both Tanya and Michelle's testimony, how might that have altered the decision of the jury?
- Why wasn’t Teddy Brooks (Hank's brother) better prepared by attorney Shulman as a witness? Brooks could have been a powerful witness, along with Kenny Newman (who was never called to testify) in providing a credible alibi to Hank's whereabouts the morning of July 19th when Tanya stated the alleged rape occurred; instead Teddy Brooks' testimony was pretty weak. Shulman never talked to Hank's brother, or knew him or saw him until he got on the stand. In fact, Shulman had to ask the judge to issue a warrant for Teddy Brooks, and sent court officers out to look for him. This made Hank look bad as it appeared Brooks didn't want to testify on Hank's behalf. If Brooks had been properly prepared by Shulman, how might that have altered the jury's decision?
- Tanya ran into attorney Jeffrey Weisser and his landlord on the street after the crime claiming she had been raped and escaped from Hank's car at Williams Spa and had to get off the street because Hank was sure to be looking for her.Why did Weisser, a criminal lawyer take Tanya into his house and allow her to wash away alleged evidence from what was supposedly a serious crime? Why didn't attorney Shulman ask Weisser these questions on cross-examination?
- Why wasn’t Jeffery Weisser’s landlord called by attorney Shulman as a witness to validate Weisser’s testimony concerning Tanya’s behavior and physical appearance on the morning of July 19th? Could he have disputed Weisser's testimony? If the landlord had been called and disputed Weisser's testimony, how might that have altered the jury's decision? He should have been subpoenaed.
- Why didn’t attorney Shulman prepare Hank to admit he was an alcoholic and had spent time at a treatment center for alcoholics when he (Shulman) should have known a witness would be called by the prosecution who would testify Hank spent nearly three months at a treatment center? This really damaged Hank’s credibility in front of the jury. Remember Hank did not see or speak to Shulman until 45 minutes before his trial started, and for one hour on a Saturday afternoon at the County jail while Shulman was seeing several other clients, and this subject of alcoholism was never discussed. If Shulman had taken the time to learn about Hank's past regarding alcohol he might have better prepared Hank to testify in a credible manner. How did this lack of preparation by Shulman effect the decision of the jury?
- Why didn’t attorney Shulman introduce Hank’s statement to the police into evidence where Hank stated he was at his brother’s house the morning of July 19th? D.A Bloom made a big deal that Ted Brooks (Hank's brother) never came forward to vouch for Hank's alibi, but why didn't the police question Ted Brooks, Kenny Newman (Brook's friend), and Hank's niece and nephew as part of their investigation after taking Hank's statement?
- Why wasn't the waitress at the McDonald's drive-through window alleged by Tanya to have taken their take-out order called by attorney Shulman? This waitress could have stated if she had seen and waited on Hank and Tanya the morning of July 19th, and what the physical appearance and behavior of Hank and Tanya were. If this waitress had been called and testified she never remembered waiting on Hank and Tanya at the drive-in window that morning what would this have done to Tanya's credibility? How would this have altered the decision by the jury? If the waitress did remember serving them did Tanya cry out for help? Did she look like she was in distress? What was her condition? Waitress should have been subpoenaed.
- Why didn't attorney Shulman subpoena Tanya's aunt to verify that Tanya had spent the night at her place? If Tanya's aunt had to testify under oath that Tanya was at her house the evening of July 18th and morning of July 19th it would have clearly shown Tanya had lied about the rape. This woman should have been subpoenaed.
- Why didn't attorney Shulman subpoena the cashier at the Citgo Quik-Mart where Tanya went in to get the key to the bathroom? The cashier could have described Tanya's appearance and behavior at that time. When Shulman was asked about this he said the clerk went back to college and he couldn't find him. Here's an attorney representing a man accused of a heinous crime for which he received a severe sentence and Shulman didn't attempt to locate this person. Just what type of representation did Hank receive at his trial? The cashier should have been subpoenaed.
- Why didn't attorney Shulman subpoena State Police Detective Donald Gibbons and ask him why he was investigating Hank's case while Hank was waiting trial? Who ordered him to do so? What were the results of his investigation and where was his report? He should have been subpoenaed.
- Mark Redmond stated at trial that James Beach was telling everyone on Monday morning, July 19, 1982 that Tina was raped. Why didn't defense counsel subpoena James Beach and ask him where, when, and from who he got his information that Tanya had been raped the night before? Tanya was at the hospital and police station that day so how did James Beach find out about the rape on the 19th? Mark Redmond testified, why didn't James Beach; why wasn't he subpoenaed?
- Why didn't attorney Shulman subpoena the attendants at the Westfield Drive-In, in Westfield, MA and ask them about a person (Hank) in a brown station wagon having to be woken up after the movies (Cat People and The Thing) was over? Wouldn't this had substantiated that Hank and his car couldn't have been where Tanya claimed he was? These attendants should have been subpoenaed.
- Why didn't attorney Shulman subpoena the attendants at the Riverdale Drive-In in Springfield, MA and ask them if they saw or heard a young girl in a bathing suit between the booths and Riverdale Street, "A Well Lighted Area" hollering or screaming for help as Tanya stated in her testimony? These attendants should have been subpoenaed.
- According to Tanya testimony she broke a beer bottle on Hank's face leaving a cut about two inches long and bleeding, although this never showed up when the police photographed Hank for his mug shot. Why didn't the police pick up that broken beer bottle and look for blood that could have connected Hank to the crime. Why didn't the police run a blood type analysis or some type of DNA test on the broken bottle. If Attorney Shulman had looked at the discovery he would have been aware of this but because of lack of preparation he had no knowledge of this broken beer bottle at the time of trial.
- Why didn't attorney Shulman question and clarify who's fingerprints were on the knife and seven beer bottles? Fingerprints could clearly be seen due to the lab tests powder. Shulman stated he would bring this up during his closing arguments but he never did. He should have investigated these fingerprints and been aware of them but because of poor preparation he was not.
As you can see if attorney Shulman had been better prepared, conducted an investigation, and subpoenaed the witnesses discussed above might the jury have come back with a different verdict? We'll never know because Shulman didn't do his job and didn't represent Hank like a good trial lawyer should. If the above is not Ineffective Assistance of Counsel, what is?
