When Derek Lorenzo Johnson had almost exhausted all avenues for appealing his conviction, he turned on his lawyer.

Details in a Third District Court of Appeal ruling issued Jan. 31 show a victim — Johnson's half-brother — accused the defendant of arranging to have him shot in the head as they rode together in a car in a Miami neighborhood, as part of a plan to rob him of $40,000 intended for a drug deal.

But Johnson's target before the appellate court was his own former lawyer, who'd allegedly advised him against testifying in court to challenge the victim's story.

“It's part of it, but it takes a while to grow thick skin,” said Broward Public Defender Howard Finkelstein, who was not involved in the case tried in Miami-Dade. “As a lawyer, sometimes it's your turn to be in the barrel.”

The strategy — claiming ineffective assistance of counsel — is popular for defendants like Johnson, who had already seen the Third DCA uphold his conviction in 2006 and the Florida Supreme Court deny his petition for a writ of certiorari in 2007. At least three other efforts failed since 2008, leaving Johnson with only one argument left for seeking reversal: a claim his trial counsel “effectively deprived (him) of the ability to make a knowing and voluntary decision about testifying.”

“You have to take your ego out of it,” said Broward Assistant Public Defender Gordon Weekes, who was not involved in the case. “I have never faulted someone for exploring all the appellate rights that they have. … If that includes looking at my performance at the trial, I encourage them to do that.”

Johnson's trial led by Miami attorney Jay White involved several hurdles.

“It's so easy to be a Monday-morning quarterback. It's easy to second guess your trial decisions after the fact. But a trial attorney has to make a strategic decision, given the case as it is,” said White, a nearly 30-year defense attorney who heads White, White & Associates in Miami. “The issue of whether or not he testified was his. Of course any good lawyer will give an opinion on what he thinks is the best trial strategy at the moment, but I don't think the testimony would have changed the result.”

The most damning evidence against Johnson might have been testimony from Timothy Davis — Johnson's half-brother, who claimed the defendant arranged to have him killed, then dumped him in a ditch on the side of a road.

Davis testified he traveled from Virginia to Tampa to meet Johnson, who'd agreed to a $2,000 fee to arrange a 2-kilogram cocaine pickup from a Miami dealer. The dealer delivered a sample and half of the drugs, but absconded with all the cash, according to Davis. As Davis tried to recover the cash or the remaining drugs, he claimed he noticed Johnson was “acting strange.” Johnson then drove him to a spot where a man wearing a hoodie climbed into the back seat of Johnson's car, and eventually shot Davis in the head on Johnson's command.

“Davis fell forward, dropping his telephone, pushed himself up, and then looked at the defendant, who looked back at him with an expression on his face, which Davis described as, 'Like he ain't dead yet?'” according to a recitation in the most recent Third DCA opinion in Johnson's case. “As Davis was trying to reach for the door handle, he was shot in the head again.”

The appellate court ruled Jan. 31 that Johnson had not raised or litigated his new claims before the lower court and had therefore not preserved them for appellate review. Johnson was represented on appeal by Miami-Dade Assistant Public Defender Billie Jan Goldstein.

With no preserved issues to review, the appellate court upheld the decision by Miami-Dade Circuit Judge Miguel M. de la O.

“I wish Derek the best,” said White, who added he understood the appellate strategy and the reason for claiming ineffective defense work. “I'm sorry the jury came back the way it did. … I did my absolute best.”

White, Finkelstein and other criminal defense lawyers welcome the scrutiny.

“In every trial I've made hundreds of split-second decisions. Why would anybody think that these decisions should not be reviewed, especially if they result in somebody going to prison?” Finkelstein said. “I don't know how young lawyers do it, … but it takes a while to see the entire course of justice. Once you're a grizzled old veteran, you see that it is not just OK, it is a good thing that they attack you.”