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State v. Bedell, 2013 UT 73 (December 3, 2013) 

Dec 3, 2013

The Utah Supreme Court reaffirmed the “wide latitude to trial counsel to make tactical decisions” in representing a criminal defendant when it reversed a decision by the Utah Court of Appeals. Id. ¶ 23. The Utah Court of Appeals had reversed the conviction of a doctor on a lesser-included misdemeanor charge of sexual battery against a patient on the ground of ineffective assistance of counsel. The Utah Court of Appeals determined that defense counsel should not have allowed evidence of similar charges by other patients against the doctor to come in because the trial judge had ruled before trial that the evidence was inadmissible unless defense counsel opened the door. Describing the trial proceedings in some detail, the Utah Supreme Court observed that defense counsel had not only opened the door to this evidence, defense counsel consciously made this evidence part of a legitimate, and ultimately effective, strategic decision to undermine the veracity of the victim’s accusations against the doctor. Specifically, defense counsel raised the other instances in opening statement by saying that the victim brought her allegation only after learning from a fellow inmate that other patients were accusing the doctor of inappropriate touching. Defense counsel then cross examined the detective who interviewed the victim after she brought her allegation, suggesting that he readily accepted her accusations without any scrutiny because “you had those other allegations and you had done all that work of investigation.” Id. ¶ 10. Defense counsel continued this theme in closing argument, contending the case came down to “whether or not someone that knew of Dr. Bedell’s plight would use that to their own advantage when nothing happened to them.” Id. ¶ 14. The Utah Supreme Court concluded that defense counsel chose to use this evidence and did not render ineffective assistance by not objecting to the State’s use of that evidence. Because the jury acquitted the doctor of two charged felonies but convicted him on the misdemeanor charge, the court surmised, defense counsel’s strategy was not only legitimate, but likely advantageous to the client.