¶1 concurring.
¶2 I concur wholeheartedly in the disposition of each of the four assignments of error, but I am compelled to expand upon the fourth assignment of error. Appellant’s counsel argues that his client was denied the effective assistance of counsel. It is undisputed that any accused must be afforded zealous representation, but counsel is duty-bound to perform both ethically and professionally. To suggest that counsel is ineffective if they do not attempt to create a reasonable doubt where there might well not be one is improper. It is basic that there must exist a good faith basis for presenting a defense, placing a question, or proffering a theory of the case.
¶3 In the case sub judice to suggest that the victim was a drug addict out looking for sex is not only misguided it is unethical and unprofessional, and goes beyond decency. In their supplemental brief at page 13, appellant’s counsel suggest that the victim of this brutal attack, Jennifer Sweeney, was “not the victim of a brutal kidnaping and rape, but was instead a probably-stoned [sic] young woman roaming the streets looking for drugs and settling for easy sex, then fabricating a rape out of shame and to protect her innocent-young-student image with her family.”
¶4 This theory flies in the face of the overwhelming evidence presented by the state as well as the initial position of the defendant-appellant. Character assassination as suggested by appellant’s counsel devoid of any basis whatsoever leaps well beyond the line of providing zealous representation. It is not the function of counsel to attempt to fabricate reasonable doubt. To embrace this approach is analogous to encouraging the subornation of perjury and the creation of theories of defense without any evidentiary support.
¶5 It is ofttimes suggested that there are three theories of each case: one for each adversary, and the truth. Although it is perhaps naive and optimistic to say so, there ought be but one truth. There must be a concerted effort to seek the truth on behalf of all of the participants in our system of jurisprudence. To proceed in an unethical manner on either side of a lawsuit and to adopt the attitude of win at all costs corrodes the very system that we embrace and undermines the fragile confidence that the citizenry has in our system.
¶6 To claim ineffective assistance of counsel by an unwarranted, uncorroborated, and baseless attempt to assassinate the character of the victim should result not only in a rejection of the assignment of error, but also in the imposition of sanctions. At bare minimum, the victim in this case is deserving of an apology for the unwarranted attempt to slander her good name.