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William Mitchell’s unusual choice of clothing — in particular, a shirt — played a part in his arrest and 80-year prison term for allegedly robbing a San Antonio, Texas, convenience store. And, according to a recent en banc opinion by San Antonio’s 4th Court of Appeals, that shirt may get him a new trial. According to the prosecution, Mitchell was wearing a blue shirt with a picture of a Scotch terrier on it when he was caught on video allegedly robbing a Stop-n-Go. He was wearing the same shirt when he appeared before a jury during voir dire. This is the second time the 4th Court has heard Mitchell’s appeal. “We again reverse and remand and direct the trial court to appoint new counsel,” Justice Tom Rickhoff wrote in the majority opinion in Mitchell v. Texas, No. 04-96-00643-CR. FRUSTRATION VENTED “Counsel’s failure to object before jurors saw the defendant in the distinctive outfit worn during the offense and when arrested, under these facts, constitutes ineffective assistance of counsel,” Rickhoff wrote. In a footnote, Rickhoff also vented his frustration at the 4th Court’s inability to analyze ineffective-assistance claims adequately when balanced with the assumption that defendants have able counsel. “Unless and until the Court of Criminal Appeals allows intermediate appellate courts a meaningful role in analyzing ineffective claims, we will be unable to ensure that this assumption is justified,” the court said. Mary Beth Walsh, an appellate lawyer at the Bexar County, Texas, district attorney’s office, said that she is considering filing a petition for discretionary review with the high court because Mitchell hasn’t proven that he was harmed by wearing the shirt to court. Mitchell’s appellate attorney, Michael S. Raign, is braced for another appeals round. “I’m just concerned about what the Court of Criminal Appeals is going to do … because everybody is effective these days,” said Raign, who didn’t represent Mitchell at trial.

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