Gravely was a midget football coach of the Twin City Miners of Marmet and is the father of five children. He was accused of a pattern of sexual assaults on 15-20 prostitutes during which he would threaten them with a knife and force them to have sex.
ReBrook decided that rhetorical attacks would serve Gravely better than testimonial accounts. He referred to the victims as nothing more than “tramps” and “whores” and insisted that “[y]ou cannot rape the willing.” ReBrook told the jury that the victims “got in those automobiles with the intention of having sex for money” and should not be considered the same as women in their own lives. He stated “I would be horrified if any of the women in my life were raped, but I’m talking about decent, honorable women. Not whores who have sex with many, many men for money.” He insisted “[t]hey are not like your wife, your girlfriend or your daughter. They are street tramps. And what happened to them was, at least in part, their fault.
Assistant Prosecutor Fred Giggenbach objected to the argument, but Kanawha Circuit Judge Tod Kaufman refused and ReBrook continued: “They are whores. That is a perfectly usable word in the English language. . . .Finding this man guilty of rape lessens the dignity of every other woman. What they have done is turn sex into something disgusting.”
Perhaps not quite as disgusting as the jury found his argument. They convicted Gravely of five counts of sexual assault on three prostitutes in 2007 and 2008.
This could make for an interesting ineffective counsel claim. However, the Supreme Court has ruled that even the most obnoxious and counterproductive arguments are still tactical decisions — rather than denials of effective counsel. As objectionable as the jury may have found this bizarre argument, the courts routinely refuse to second-guess such tactical choices made by counsel. Bad tactical decisions are generally not enough for ineffective counsel. It is particularly difficult to show under Strickland v. Washington, 466 U.S. 668 (1984), that the lawyer’s actions not only fell below an objective standard of reasonableness (which would be satisfied here) but that there is a reasonable probability that, if counsel had performed adequately, the trial would have been different. Given the failure to present witnesses and the testimony of the victims, it would be a difficult case to make under the Strickland standard.
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