‘Bad decision’ or ineffective counsel? | RecordCourier.com

‘Bad decision’ or ineffective counsel?

by Sheila Gardner

Shannon Litz file photoKaren Bodden confers with her lawyer, James E. Wilson Jr., during her murder trial in January 2008.

District Judge Dave Gamble is deliberating whether the attorney for a murderer made a “bad decision” in handling her defense or is guilty of ineffective counsel that resulted in her conviction.

If Gamble decides the latter, Karen Bodden is seeking a new trial in the six-year-old murder of her husband Rob.

Gamble heard testimony Wednesday and Thursday from the attorneys who represented Bodden, two of her children, a forensic psychiatrist, former customers of her pond business, and a retired defense attorney who is an expert in trial strategy.

James E. Wilson, now a Carson City District Court judge, testified that in defending Bodden he only put on one defense witness to protect her case from damaging cross-examination.

Wilson said he met frequently with Bodden to keep her abreast of the case progress.

“We discussed how best the case would be tried in her interest. There was no disagreement. That’s the way we did it,” Wilson said.

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Bodden, 49, was convicted by a jury of murdering her husband, Minden airplane mechanic Robin Bodden, 50, in August 2006.

Bodden did not testify during the two-week trial in January 2008.

According to investigators’ reports, she claimed her husband had gone off with a pilot named “Ramos” to work for a drug cartel. She said she didn’t report him missing because they were having marital problems.

Wilson testified Thursday that his strategy was to try to poke holes in the state’s evidence because Bodden’s spontaneous statements to investigators were indefensible.

The only defense witness was Bodden’s former attorney, Ben Walker, who was called to mitigate prosecution testimony from a jailhouse informant who claimed Bodden relayed details of her husband’s disappearance while the two shared a cell.

Authorities believed Bodden shot her husband at his Minden-Tahoe Airport hangar, drove his body to the desert near Johnson Lane, and dumped him in a shallow grave.

Records indicate he died Aug. 15-16, 2006, and his decomposed body was found three weeks later on Sept. 10, 2006.

Karen Bodden was accused of embezzling money from his business, General Aviation Services. She was on five years probation from a 2004 conviction for embezzling $44,000 from the Department of Motor Vehicles.

Investigators believe she murdered him because she was afraid he would turn her in for the new embezzlement.

Attorney Marc Picker, representing Bodden in her motion for a new trial, argued that Wilson and co-counsel Erik Johnson abdicated their responsibility by leaving crucial defense strategy up to Bodden, and not thoroughly evaluating her psychologically.

“On the morning the defense opens, he (Wilson) decides ‘We’re not going to call anyone but Ben Walker.’ It’s a very stressful situation. She’s asked, ‘What’s your decision? Do we do it (call additional witnesses) or don’t do it?’ He’s not consulting her, he’s asking her to make that decision,” Picker said.

By not calling witnesses favorable to Bodden – such as her children, or former clients – Picker said Wilson left the jury with a vacuum.

Picker said although Wilson ordered a psychological evaluation of his client two weeks before trial, it was too late.

He said Wilson did not challenge the fact that Dr. Edward Lynn, the psychiatrist who examined Bodden, said he reviewed Record-Courier articles about the case, and spent only an hour administering a battery of tests to her.

Lynn told Wilson that he could offer nothing positive to Bodden’s defense and advised the lawyer not to call him as a witness, according to testimony.

Following her conviction, Bodden was examined extensively by Reno psychiatrist Melissa Piasecki who testified Wednesday about her findings.

“A reasonably competent counsel would look at that (Lynn) report, and on its face, it just doesn’t meet any standards. It was so deficient (Judge) Wilson shouldn’t have relied on it,” Picker said.

Piasecki’s examination determined that Bodden has an IQ of 84, which places her in the lower 14 percent of the population.

“If she (Bodden) doesn’t understand all these verbal discussions about trial strategy – Karen Bodden is acquiescing, saying ‘OK, OK, OK’ – how can she make any of these knowing decisions if she doesn’t comprehend?” Picker asked.

He said Wilson did too little too late in assessing Bodden’s cognitive skills.

No one claimed Bodden was incompetent to stand trial or unable to aid in her defense, but her defects made it questionable about what she understood.

District Attorney Mark Jackson, in the position Wednesday and Thursday of defending the work of his Bodden trial adversary, raised the question of what impact those issues would have had on the outcome of the trial.

He pointed out that Wilson took the case without charge, and put in more than 500 hours on Bodden’s defense. He said Wilson filed motions for discovery, change of venue, suppressing or attacking every search warrant, subpoenaed and interviewed countless witnesses.

Gamble asked Bodden on Thursday if she wished to testify.

“I’ve decided not to,” she said, having been silent for the two-day hearing.

Gamble sentenced Bodden in March 2008 to life in prison with the possibility of parole after 20 years and a minimum of four years of a 10-year enhancement for use of a deadly weapon, to be served consecutively.

She is incarcerated at the Florence McClure Women’s Correctional Center in North Las Vegas, but was transported to Douglas County Jail for the two-day hearing.

A Douglas County jury deliberated just two hours before finding Bodden guilty of first-degree murder, a fact Picker noted in his motion to the court for a new trial.

In deciding whether Bodden’s counsel was ineffective, Gamble is to determine whether her attorneys’ performance fell below an objective standard of reasonableness, and if there is a reasonable probability that had the defense performed adequately, the result of the trial would have been different.

“How do you separate that out from trial strategy?” Gamble asked. “Ineffective counsel in the past meant the attorney did something stupid. Here we have a bad decision made. When did that become ineffective counsel?”

Picker said the U.S. Supreme Court raises the question of “objective standard based on subjective criteria.”

“Where does it cross the line?” Picker asked. “That’s why the trial judge hears these cases so he can determine if the jury heard what you (Gamble) heard today, what would the outcome be? Fortunately, or unfortunately, it’s in your hands.”

Jackson said there was no evidence that the trial outcome would be any different.

He said the U.S. Supreme Court cautioned against “20-20 hindsight” distorting the facts of the case.

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