While I commented earlier that Judge Erdmann’s opinion in Paxton (joined by Stucky, Ryan and Baker) is another well organized opinion, once you get beyond the readability you see that Paxton doesn’t break any new ground. The issues were 1) did the trial counsel comment on the accused’s choice to plead not guilty and remain silent at trial, 2) ineffective assistance of counsel, and 3) an unreasonable multiplication and multiplicity question concerning rape and indecent acts.
Judge Effron dissented regarding the trial counsel’s comment on the accused’s rights, as he has been known to do in government argument cases (see e.g. Baer, concurring but finding error). I was a little surprised that Judge Baker did not write a concurrence, he is usually very critical of government argument and holds their feet to the fire on these issues. But, in my humble opinion, this one was not close. As Judge Erdmann pointed out, the defense presented evidence from a clinical psychologist. Judge Erdmann quoted his testimony that gave the TC plenty of room to argue that the accused had never admitted he had a problem, even to his doctor,
On cross-examination, Dr. Stone testified that Paxton’s test results showed, among other things, that Paxton had an inability or unwillingness to disclose personal information, that he engaged in “impression management” to present himself more favorably, that he believed other people were largely responsible for his problems, and that he has a lack of initiative and an avoidance of adult forms of autonomy.
Paxton, slip op. at 4.