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​What Does Ineffective Assistance of Counsel Mean?



*Scroll Down To See How Counsel Was Ineffective*



In order to establish a claim for ineffective assistance of counsel, you have to prove two things. ​

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• First, you must show that your attorney’s performance was "deficient." That means showing that your criminal defense attorney made mistakes in defending you that were so serious that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment.

• Second, you must show that you were prejudiced by your attorney’s deficient representation. That requires you to show that the attorney’s mistakes were so serious that you were deprived of a fair trial with a reliable result.​

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Importantly, you must prove both of those two things. It is not enough to show that your attorney made mistakes if you cannot also show that the mistakes deprived you of a fair trial. You must make both showings in order to prove that your conviction resulted from an unfair trial.



Zakes first became licensed by the State Bar of Texas 08/04/1989.  M hired Zakes for his first trial in 1993.  M's case actually ended up being Zakes first murder case.  However, when he was asked if had experience defending murder cases he lied and said that he had.  Not only had he not handled a murder case he had no experience with any jury trial cases period that were longer than one day except for a case that went to the jury and lasted 3 days in 1990 (2 yrs before M's) and it was a auto theft case. Zakes was actually appointed counsel.   Jury convicted and the defendant was sentenced to 12yrs but, they also had a long list of extensive priors.



Texas Disciplinary Rule of Professional Conduct 8.04 (a)(3) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.



Rule 3.03(a)(1) prohibits a lawyer from lying to a tribunal (i.e., a court or similar institution of government). Rule 4.01(a) prohibits a lawyer from lying to a non-client.

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So, when read together, Rules 8.04, 3.03 and 4.01, referred to above, prohibit a lawyer from lying to anyone under any circumstances. In plain English, it is unethical for a lawyer to lie. Period.

​First Trial

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1. Throughout the proceedings the victim was referred to as his “girlfriend.”  This made R’s testimony that M shot her because he became “jealous” more “plausible” to the jury.  However, she was not nor was she ever his “girlfriend.”  In fact she was just a casual friend that he had just met barely a month before.  There were plenty of people that Zakes (his trial counsel) could have called upon to support this which would have possibly caused the jury to question R’s account of what happened but, he did not.



2. There were two sets of bullets from 2 different guns recovered from the scene but, only one set from one gun actually struck the victim.  When R was asked why they were recovered bullets from a gun belonging to him in addition to bullets that came from the gun that was said to belong to M he stated that M “imitated” him into shooting at her too.  This begs the question how is it that someone who is almost 10 years older, double in size AND holding his own gun could be intimidated but, Zakes did not ask.  Again, if he had it possibly could have caused more doubt in the jury.



 

3. Zakes also did not take the opportunity when it arose to inform the jury that R initially was also charged with murder but, made a deal with the prosecution. In exchange for his testimony against M he accepted a lesser charge of attempted murder and a much lesser sentence of 10 years. If Zakes had taken the opportunity to reveal this to the jury it would have possibly brought into question R’s credibility altogether causing further doubt in the credibility of his testimony but, Zakes failed to do so.



4. The prosecution brought up that M had a gun possession charge from being caught with a gun at school for which he was a juvenile at the time and on deferred adjudicated probation at the time of the trial which would have made inadmissible in court.  However, Zakes did not bother to object when it was brought up during trial by the prosecution.



5. If Zakes would have allowed M to take the stand it would have given him opportunity to address all the above points and it would have also given him opportunity to testify as to what really happened and what was the real reason the victim was murdered and by whom.  He could have even called upon other witnesses that would have left little room for doubt as far as their credibility and who whose testimony would have likely further supported M’s account of what actually happened.  They would have been the two off-duty police officers that were working security at the nightclub that M, R and the victim had spent several hours at  just prior to when the victim was killed.  If Zakes would have allowed M to take the stand along with calling upon the testimony of these two additional witnesses that would have been available if they had been asked it is easy to speculate that together would have shed enough doubt towards the prosecution in the eyes of the jury. Especially, since the prosecution had no witnesses to back up R’s testimony.  Not only did he not allow M to take the stand in order to defend himself where his hired counsel failed to do so Zakes did not even bother seek out the witnesses that could have possibly lead to M not being convicted.​



Second Trial


1. When M won his appeal for a new trial based on the Accomplice Witness Rule the prosecution once again called upon R to testify against him.  He was 5 years into his 10 year sentence he received for “attempted murder” in accordance with the plea agreement that they made with him in exchange for his testimony during the first trial.   When he was first approached to testify again he stated he did not want to because “he couldn't remember anything.”  The DA responded by threatening to recant the plea agreement they had made for his testimony during the first trial, something that legally they would not have been able to carry out.  However, they banked on the fact R probably would not be aware that was the case and he suddenly got his “memory back.”  Just the fact that he initially claimed “he could not remember” then suddenly claimed he did causes for questioning his credibility and no doubt the jury possibly would have felt the same.  However, once again Zakes failed to bring this to the jury’s attention.



2. Not only did R have a sudden regain of his memory he also remembered things completely different compared to his original testimony in the first trial.  During the first trial he stated that M had shot the victim in a jealous drunken rage because he had believed her to be flirting with R.  However, in his testimony during the 2nd trial he claimed that M had shot her because he feared she had “too much knowledge” regarding a theft of a car from the nightclub earlier in the evening.  Two very conflicting claims however, the jury during the 2nd trial would have had no way of knowing this unless it was revealed to them.  Since there would have been official court transcripts available from the first trial this information would have likely been easily admissible during the proceedings of the 2nd trail.  PLUS, Zakes was represented M in his 1st trial and would have known that R gave completely conflicting accounts of what happened and why M shot the victim.  However, again Zakes did not bother to even address the issue.  Since there was no physical evidence that linked M as the killer it came down to R's testimony.  If Zakes had addressed R's confliciting testimonies as far as why M shot her then it would have likely brought his credibility into questioned as well.



3. For the 2nd trial the Prosecution called upon additional “character witnesses” to testify as far as M’s alleged bad character.  This included an ex-girlfriend and her mother. Who ironically actually testified in “support of his character” during the first trial.  However, while trying to help raise money to pay for a new trial counsel for his 2nd trial she had gotten into some trouble herself.  The prosecution took advantage of this and made a deal to have whatever charges she had received cleared if she “switched sides” and testified for them “against his character.”   Feeling conflicting on what to do she actually informed M of their offer.  However, M told her that he could not sit well knowing that she would likely end up with a damaging record and ruining her own future just because she was trying to “help him” and he told her to go ahead and take advantage of their offer.  The prosecution put her on the stand and instructed her answer when asked if M was a good or bad character to respond by saying, “bad.”   However, if the details of the prosecution’s offer had been revealed to the jury as well as how she had actually testified in support of M’s character during the 1st trial  would have likely caused the jury to overlook her testimony then which  likely aided in them deciding on once again convicting M.  However, Zakes did not bother to so. He didn't even bother to cross examine her at all. 



4. Where he failed to provide effective counsel most of all was with R’s testimony and claim that M had shot her over her “knowledge of the stolen vehicle.”  When in fact, M had no participation in the theft of the vehicle or even knowledge of it until much later.   The vehicle had belonged to a friend of the victims that had joined them at the nightclub earlier.  When the club began to close for the night she discovered that her car was missing.  Coincidentally, R was also missing.  As M and the victim were preparing to leave they were stopped by the 2 off duty Harris county police officers that were working security at the club and questioned as to if they knew anything about their friend’s missing car?  They said they did not which was the truth and pointed out that they were leaving in M’s car which he had driven to club and had not left since they arrived. The officers determined that there was no reason to question them further since there was no opportunity for M to have stolen a vehicle if he was leaving in his own vehicle.  When asked about the whereabouts of R they just said they assumed he had met up with other friends which is what they were under the impression of at that time.  M and the victim leave and drive to his house where they actually find R waiting for them behind the wheel of the missing vehicle to their complete surprise.  This is when the victim upon realizing what he had done became angry because the vehicle belonged to her friend.



5. So, when R testified during the 2nd trial that she had been murdered because “she knew too much about the stolen vehicle” he was actually telling the truth.  However, the only person that would have had reason to be concerned was him and him alone.   He initially tried to say that M did participate in stealing the car by slipping him the keys that M allegedly had stolen from the owner of the vehicle earlier in the night when she was not looking.  If this was the case and M was so concerned about the victim’s knowledge or learning of the plan to steal the car then it is easy to speculate that he would not have knowingly taken her to where R was waiting with the stolen vehicle if he had prior knowledge of the plan to meet up w/him and the stolen vehicle.   More importantly, the victim was actually his alibi that he did not partake in the car theft if the police had been alerted.  She was actually more useful and more valuable alive to M than dead and the only person who would have felt the opposite, that she was more of concern alive was in fact R himself.   If Zakes had taken the opportunity to bring any of this to light during R’s testimony, as any effective counsel would have, no doubt the jury would have been left with very little reason to see that a guilty verdict in the end was deserved.  However, he did failed to do so and in result of his failure of effective counsel an innocent man has spent the last 20 years in prison for a crime he did not commit! 



Recap



In short, M was charged, tried and convicted of murder based on the fact that the witness for the Prosecution SAID M was the one that killed her.

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​* T​he crime scene investigator assigned to case testified that there was NO PHYSICAL EVIDENCE that linked M to the case.​



* There were 21 readable prints retrieved from the gun that they said fired the bullets that were retrieved from the victim’s body.  None of which belonged to M.



* The claim made by the Prosecution's star witness (R) as to why M shot and killed the victim was not even relevant nor did it apply to M!  However, it was completely relevant and did apply to R!  Namely, that M killed her because M feared that she had too much knowledge regarding the stolen vehicle.   M did not have any participation with the stealing the vehicle nor did he have prior knowledge.  The person that would have been able to attest to that fact was actually the victim!

 

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She would've been his alibi that could have testified 100% that she knew for a fact that M had no participation or knowledge of stealing the car and that R acted completely alone in stealing the car! 



Therefore, in regard to the claim as to why M killed the victim made by R himself actually only applied to  himself!