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Molestation or Not, Ineffective Counsel Also Inappropriate: Court

By Betty Wang, JD on September 10, 2013 | Last updated on March 21, 2019

When defendant David Glen Heard pleaded guilty in district court to two counts of violating Oklahoma's lewd molestation statute, he didn't realize that there may have been viable defenses to the charges against him. The Tenth Circuit, after hearing his appeal, reversed the district court's denial of Heard's habeas petition, citing ineffective counsel under the Sixth Amendment.

Heard had pleaded guilty to two counts of "knowingly and intentionally looking upon the body or private parts of a child under sixteen in a lewd and lascivious manner," in violation of Oklahoma's lewd molestation statute. Heard had admitted that, in a Tulsa Walmart, he positioned himself in a way so that he could look under girls' clothes and peek at their bodies and undergarments.

Under the terms of the plea agreement, the prosecutor recommended a 25-year, concurrent term in prison; the district court then sentenced him accordingly. However, not too long after his sentence, Heard found out about an unpublished case out of the Oklahoma Court of Criminal Appeals (OCCA), Robinson v. State, which cast some doubt on whether or not Heard's conduct was actually in violation of the statute.

Under Robinson, the OCCA has held that prosecutors must prove the following elements in order to find one guilty of violating the statute:

  • The defendant was at least three years older than the victim;
  • The defendant knowingly and intentionally looked upon, touched, mauled, or felt the body or private parts of any child under 16 years of age; and
  • The defendant did so in a lewd or lascivious manner.

The Tenth Circuit saw that, under these elements, Heard's admitted conduct really only implicated the "looked upon" element of the crime. A requirement as broadly worded as this, however, could make a reading of a statute constitutionally suspect.

For example, the court explained, "looked upon" could potentially be read to mean just looking at a minor's clothed body from afar, "with only an officer's personal judgment as to the lewdness of a glance" to determine whether it was a lewd act under Oklahoma's law.

"A minimally competent lawyer would have identified that such unbridled police discretion in enforcing the law makes a statute constitutionally suspect," the Tenth Circuit's opinion stated.

A minimally competent lawyer would have also then looked further into Oklahoma case law to look further into the "looked upon" requirement in context. In turn, the attorney should and would have determined that the Heard's conduct did not quite meet the standard.

Basically, Heard's attorney should have noticed that Heard had a very strong possibility of asserting a viable defense under the statute. Had Heard's attorney alerted him about this possibility, he may not have pleaded guilty to these offenses, the Tenth Circuit explained.

Ineffective counsel is a violation of the guarantee of the assistance of counsel that is provided for in the Sixth Amendment, and is just as inappropriate as the alleged behavior that the prosecution was attempting to find in Heard's actions. The Tenth saw that Heard had met the burden to show that he was deprived of his Sixth Amendment right to counsel when his lawyer advised him to plead guilty without advising him of the viable defenses that were available.

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