2007: Hays v. Farwell,
482 F. Supp. 2d 1180 (D. Nev. 2007).
Under AEDPA review, trial/appellate counsel was ineffective for numerous reasons in
case where the petitioner was convicted of four counts of sexual assault on a minor and
four counts of lewdness with a minor for alleging sexually abusing his oldest daughter,
who was then eight years old. While many of the petitioner’s claims had not been
presented in state court and there was no showing of cause and prejudice, “the default
was forgiven based on his preliminary evidence demonstrating to this court that he is
actually innocent of the charges against him.” Most of the claims were reviewed de novo
because they had not been raised in state court or had been procedurally barred in state
court. The charges arose because the petitioner’s wife, who “was an abusive and
neglectful mother” of their five children, “wanted desperately to be released from the
responsibility of her five young children and from her marriage.” In order to achieve her
goals, she “schooled and coached eight-year old Jennifer about adult sexual behavior and
then threatened and coerced her into making accusations of sexual abuse against her
father,” who was not himself abusive to the children but “was unable, or unwilling to stop
his wife’s actions” in general. Before reaching the issues related to counsel, the court
granted relief on the bases of: (1) insufficient evidence to support the convictions; (2)
improper denial of a new trial when the daughter, who was no longer in her mother’s
custody, immediately confessed after the trial that her testimony was false and had been
coerced; (3) double jeopardy; and (4) prosecutorial misconduct. Counsel was also held to
be ineffective during trial for: (1) failing to request an evidentiary hearing on the motion
for new trial in order to present the daughter’s testimony concerning the recantation; (2)
failing to seek an independent medical expert to challenge the testimony of the examining
nurse, which would have resulted in testimony (supported even by the state’s expert in
habeas) that the photographs taken of the girls genitalia revealed no evidence of abuse or
anything abnormal; (3) conceding guilt in closing argument; (4) failing to challenge the
veracity or expertise of the social worker and the examining nurse called as state’s
witnesses and “merely enhancing the State’s evidence by reinforcement”; (5) failing to
object to the prosecutor’s improper argument denigrating the presumption of innocence;
and (6) failing to argue on the defendant’s behalf at sentencing.
Bigelow v. Haviland,
476 F. Supp. 2d 760 (N.D. Ohio 2007) (following remand in Bigelow v. Williams, 367 F.3d 562 (6th Cir. 2004)).
Counsel ineffective in kidnaping, assault, and arson case for failing to further investigate
and present alibi evidence. Counsel’s conduct was deficient because counsel failed to
investigate further once an alibi witness came forward four days prior to trial. Counsel
had previously investigated various unproductive leads because the defendant lived an
“itinerant life” and could not remember exactly where he was on the day of the crime.
Based on the defendant’s “own letter-writing investigation,” however, an employee of
Orkin in Columbus, which was 150 miles from the scene of the crime, came forward and
testified that the defendant had been at a home he serviced and assisted him in moving
furniture on the day of the crime. While counsel discussed this issue with the defendant,
[m]erely discussing an issue of alibi–when it is the defendant’s
main defense–cannot alone rise to the level of reasonable
representation. A lawyer who does only this cannot be deemed to
have effectively represented his client.
Moreover, counsel did not, however, investigate the lead further or seek a continuance to
do so. Prejudice established because this witness was impeached by his failure to earlier
identify the defendant as the man there on the day of the crime, his work at the home
covering two days instead of just the day of the crime, and his numerous calls since that
time. If counsel had adequately investigated, three additional witnesses, who were
employed by a landscaping company in Columbus, would have testified that the
defendant was present in Columbus on the day of the crime and their testimony was
supported with documentation of their presence in the home on the day of the crime. The
court also found it significant than these were “completely disinterested” witnesses and
the state’s case was based only on the weak identification of the victim and another
witness, “both of whom had limited opportunity to view the attacker and had at least
initial difficulty identifying Bigelow.” Even if only one additional alibi had testified, it
would have bolstered the defense. Thus, there was no question of prejudice here.
2006: Garcia v. Portuondo,
459 F. Supp. 2d 267 (S.D.N.Y. 2006).
Under AEDPA,
counsel ineffective in second-degree murder case for failing to adequately
investigate and present alibi evidence, including foreign public
documents. The defendant consistently maintained his innocence and
asserted that he was in jail in the Dominican Republic on the day
of the murder, but the jury heard almost nothing of this alibi. Counsel
gave notice of the alibi with supporting documents prior to trial,
but realized admissibility might be an issue. The trial court expressed
doubt as to admissibility but suggested that counsel brief the issue.
Counsel failed to do so and never offered the documents into evidence.
The state’s case consisted of a single eyewitness. This witness,
who was on Valium at the time of the crime and Thorazine during trial,
identified the defendant as one of three assailants in a lineup five
months after the murder after initially identifying someone else
in the same lineup. This witness had made a number of inconsistent
statements. The defense presented the victim’s sister as its sole
witness. She testified that the defendant and her brother were friends,
she did not see the defendant getting into the car when she saw her
brother on the ground, and that she had talked to the defendant on
the phone shortly after the murder and he was in the Dominican Republic.
The prosecution discredited this testimony because she had no personal
knowledge of his whereabouts and had not dialed the phone. In habeas,
the District Court denied the state’s “motion to dismiss the petition
as untimely, finding that the statute of limitations was tolled because
Garcia's was one of the “exceedingly rare case[s] in which the petitioner
makes out a credible claim of actual innocence.” Counsel’s performance
was deficient because the defendant’s family had provided him with
numerous official documents from the Dominican Republic to establish
the defendant’s alibi, but he made no efforts to verify the authenticity
of any of the documents in his possession and made no effort to obtain
additional documentary evidence to support the alibi. Counsel was
also aware of several alibi witnesses who were prepared to testify,
but they were not called. While counsel believed that the witnesses
were truthful, he did not interview them because they were relatives
and friends of the defendant’s wife and counsel believed they would
not likely be credited by the jury. If counsel had investigated,
he could have found additional documentary and testimonial evidence
to support the alibi and could have established the admissibility
of the foreign documents.
[A] decision not to prepare an adequate defense because a defense lawyer
thinks the prosecution's case is weak is not “strategic.” It is motivated by
the desire to avoid work, not to serve the best interests of the defendant.
“No lawyer could make a ‘strategic’ decision not to interview witnesses thoroughly,
because such preparation is necessary in order to know whether the testimony
they could provide would help or hinder his client's case, and thus is prerequisite
to making any strategic decisions at all.” Thus, . . . “[t]here is no reasonable
trial strategy that would have excluded at least conducting interviews of the
alibi witnesses to determine whether they could provide exculpatory evidence.”
Id. at ___ (citations omitted). Likewise,
Deciding that investigation is costly is not, as Strickland requires, equivalent
to a reasonable and informed decision that investigation is unnecessary. Indeed,
as one court has held, “There are costs involved whenever defense counsel is
obliged to undertake an investigation. These costs are often substantial....
[However, h]aving accepted the responsibility of representing a criminal defendant,
counsel owes a duty to his client that will on occasion require him to make
financial outlays that might be considered unfair for an ordinary businessman
who, unlike a licensed attorney, has not voluntarily adopted an enhanced ethical
obligation to society.”
Id. at ___ (quoting Thomas v. Kuhlman, 255 F. Supp. 2d 99, 111 (E.D.N.Y.2003).
If counsel believed his retainer was insufficient to make investigation “financially
feasible, he could have petitioned the trial court for public assistance. And
even if the court denied his request, [he] could have undertaken less costly
investigative measures, such as interviewing the available witnesses and issuing
subpoenas for locally available information.” In short, counsel “could not
have made a strategic decision not to present the alibi because he did not
then know the details of such a defense or how credible it would have been.”
Prejudice found because “[t]here is . . . little doubt that the alibi evidence,
had it been produced at trial, would have altered the landscape substantially.
The decision of a jury that did not weigh this evidence is not reliable.” Under
AEDPA, the state court’s decision was an unreasonable application of clearly
established federal law because the state court rejected the claim on the basis
that the defendant had not established his alibi when he was required “only
to show that trial counsel's performance fell below professional standards
of competence and that the outcome of the case probably would have been different
but for this deficiency.”
2005: Ege v. Yukins,
380 F. Supp. 2d 852 (E.D. Mich. 2005)
Counsel was ineffective in murder case where the defendant was arrested and convicted 9 years after the crime for the death of another woman, who was also the lover of the defendant’s boyfriend and was seven months pregnant at the time of her death. Although there was substantial evidence that the defendant had previously threatened the victim, there were other logical suspects and no direct evidence of her guilt other that alleged bite mark evidence that the state post-conviction court held was inadmissible but did not require reversal because counsel did not object to the state’s evidence and defense experts countered that the mark was not a bite mark, but was instead livor mortis, and even if it was a bite mark, it was not consistent with the defendant. The substantive issue of the admissibility was also raised in state post-conviction but found to be procedurally defaulted because not objected to at trial or raised on direct appeal. Thus, the substantive issue could not be addressed absent a showing of cause and prejudice, which was supplied by the finding of ineffective assistance of counsel. Counsel’s conduct was deficient because the bite mark evidence was unreliable and the state’s expert had subsequently been discredited in other cases including one in which he opined that bite mark evidence was conclusive in a sexual assault case and the defendant was ultimately exonerated on the basis of DNA evidence. The court found it “difficult to conceive of a reason for not objecting to the bite mark evidence and the statistical opinion” of the state’s “expert” that the bite could have been made only by the defendant out of more than 3 million people in the Detroit metropolitan area. Challenging the admissibility of this evidence “likely would have been a sound decision with no adverse consequence.” Although bite mark evidence had been admitted in other cases, the state expert did not examine the bite wound himself and used a photograph of the wound that was not made for forensic dental purposes to make the comparison with dental molds from the defendant made 9 years later. Counsel also should have objected to the statistical evidence under the “standard operating procedure for a competent defense lawyer” because the flaw in his “statistical opinion should have been obvious and its admissibility readily assailable” in that it was ‘based on the mathematical product theory, a proposition that long has been condemned and was discredited over thirty-five years ago.” The state court’s conclusion to the contrary was an “unreasonable application of the governing principles of Strickland and Wiggins.” Prejudice was found because, even though the defense experts testified that the mark was not a bite mark at all, these experts did not address the probability testimony. Moreover, “although bite mark identification evidence is much less scientifically reliable than many other types of physical or scientific evidence, if believed it is highly probative of guilt.” Here, the statistical evidence “carried an aura of mathematical precision pointing overwhelmingly to the statistical probability of guilt, when the evidence deserved no such credence.”
2004: Casey v. Frank
346 F. Supp. 2d 1000 (E.D. Wis. 2004).
Trial counsel was ineffective in sexual assault case for failing to
obtain the case file from the defendant’s previous attorney, which
contained numerous witness statements undermining the credibility of the
alleged victims and an alleged corroborating eyewitness. The defendant
was initially charged in 1993 for sexually assaulting a girl in the
neighborhood. He was represented by a public defender, who assigned an
investigator to interview potential witnesses. The investigator took a
number of statements that raised questions about the credibility of the
alleged victim and the prosecutor ultimately dismissed the charge
without prejudice. A year later, the defendant’s step-daughter alleged
that the defendant sexually assaulted her, but the prosecutor brought no
charges. In 1997, the stepdaughter alleged that the defendant had
assaulted her in 1992 and that she witnessed the defendant assaulting
the neighbor girl in the same time period. The defendant was charged
with both assaults and retained counsel. Counsel requested two specific
documents from the defendant’s prior counsel, but did not request the
entire file, which contained numerous witness statements challenging the
credibility of both alleged victims and an alleged corroborating
eyewitness. He also failed to independently discover the witnesses that
previously gave exculpatory statements. While the state court held that
trial counsel requested the previous attorney’s entire file, this
finding was an unreasonable determination of the facts under the AEDPA
because the evidence showed only that counsel asked for two specific
documents. Counsel’s conduct was deficient because counsel failed "to
obtain predecessor counsel’s investigative reports" or to otherwise
adequately investigate. While the state court found that counsel’s
failure was excused because counsel did not know the additional
documents existed, this finding was unpersuasive.
A failure to investigate is not excused because it is not known in
advance what will be found. That is precisely the reason to investigate.
A lawyer must request a file to discover what documents it
contains.
Here, it was particularly important because prior counsel represented
the defendant not long after the alleged incident when the "witnesses’
memories would have been fresher." Although the state court did not
specifically address the prejudice analysis under Strickland and
it was "debatable whether AEDPA applies to the court’s determination on
this point," id., the court applied the AEDPA standard. The state
court’s determination was unreasonable because the court "turned a blind
eye to the potential impact of the witnesses who gave statements" to
prior counsel. Indeed, the state court
failed even to mention most of the statements, much less analyze
their potential significance. The critical issue in the case was
credibility, and a number of the statements severely undercut the
credibility of the state’s principal witnesses. . . .
Moreover, many of the statements would have been
admissible and none were cumulative. Thus, there was "more than a
negligible chance that the statements counsel failed to obtain would
have affected the outcome of the trial."
Lynn v. Bliden
2004 WL 2181094 (S.D.N.Y. Sep. 27, 2004)
Counsel ineffective in murder case for a number of reasons. The
defendant was charged with a shooting outside an apartment building in
the Bronx. Police initially arrested another man who was found hiding
underneath a car a block or two from the scene and who was being
assaulted by a crowd. Ultimately, the defendant became a suspect and was
identified by two eyewitnesses in a photo lineup and then a live lineup.
Prior to trial, counsel moved to suppress the identifications but the
motion was denied. Prior to trial, the state discovered and disclosed
information that one of the witnesses had been shown the same photo
lineup twice a week apart and did not identify the defendant the first
time. This information had not been presented in the motions hearing,
but counsel did not move to reopen the suppression hearing. During
trial, counsel failed to impeach the other eyewitness with a prior
statement to police that he could not identify the shooter. Counsel also
failed to submit into evidence a police report reflecting the
circumstances of the arrest of the initial suspect. Counsel’s conduct
was deficient because the state’s case was based almost entirely on the
two witnesses and there was no possible reason for failing to challenge
the witnesses’ testimony. Although counsel’s performance was "at times,
quite good," counsel’s "conduct at other points in the trial" could not
excuse his deficient conduct in failing to challenge the state’s
witnesses. Likewise, counsel did not have a strategy not to offer the
police report and did attempt without success to get it in because
counsel did not understand "the relevant evidentiary rules" which
excluded portions of the police report but would have allowed admission
of the relevant part concerning the police officer’s personal
observations. Prejudice found, because "[t]aken together" in a
cumulative fashion, the court found a reasonable probability that the
outcome might have been different if counsel had adequately challenged
the credibility of the eyewitnesses and presented circumstantial
evidence suggesting that the initial suspect was actually the shooter.
Under the AEDPA, the state court’s holding to the contrary was objectively unreasonable.
United States v. Ramsey
323 F. Supp.2d 27 (D.D.C. 2004)
Under the AEDPA, counsel was ineffective in drug distribution case
for a number of reasons, but primarily failing to move for mistrial
after the court suppressed an inculpatory statement after it was already
heard by the jury. Counsel failed to realize until he heard the
testimony that the defendant was questioned after he invoked his rights.
This error was considered in conjunction, inter alia, with
counsel’s ignorance of the law and failure to understand the
implications of an entrapment defense with respect to allowing evidence
of predisposition until advised of the implications by the court. This
resulted in counsel abandoning the sole defense in the midst of trial
without having the defendant testify. Counsel’s conduct was deficient
and the proffered strategy reasons for failing to seek a mistrial were
"so nonsensical that the Court is left to conclude that [counsel] simply
abandoned what he had decided at some point during the trial was an
unwinnable case, and had been unwilling to invest the time and effort
that would be required by a second trial." Prejudice found, regardless
of the likely outcome of a new trial, because counsel’s deficient
conduct deprived the defendant of a mistrial and, thus, "the opportunity
for a second trial he otherwise would have had, untainted by an opening
statement to the jury of an entrapment defense he could not present." A mistrial would have afforded counsel an
opportunity to advise the defendant "of the substantial advantages of .
. . pleading guilty in view of the strength of
the government’s case" after counsel had heard all of the evidence and
realized that an entrapment defense could not be
mounted.
Tucker v. Renico
317 F.
Supp. 2d 766 (E.D. Mich. 2004)
Counsel was ineffective in criminal sexual conduct and breaking and
entering case for failing to introduce evidence tending to prove that
the defendant and the victim had a long-term, common-law, spousal
relationship. The alleged victim downplayed her relationship with the
defendant as only "spiritual," explained her two children by him as a
result of prior sexual assaults, and denied that he lived with her.
Analyzing the case under the AEDPA, the court held that ineffective
assistance of appellate counsel established "cause" for not asserting
trial counsel’s ineffectiveness on direct appeal. Appellate counsel
asserted only that the evidence was insufficient to support the
convictions. Trial counsel was ineffective because adequate
investigation and presentation would have revealed that the defendant
lived with the alleged victim up through the time of his arrest, that
the alleged victim held herself out as the defendant’s wife, and that
the defendant had an on-going relationship with their children and the
alleged victim’s family. Prejudice was found because these facts tended
to negate the non-consensual nature of their sexual
relations.
Mitchell v. Ayers
309 F. Supp.2d 1146 (N.D. Cal. 2004).
Counsel was ineffective in burglary case for failing to interview and
present testimony of witness that would have corroborated petitioner's
defense that he entered the home only to escape from people who were
threatening his life. During the break in, the family members understood
petitioner to say at times Adon=t call the police@ and Acall the police.@ Other than the window through
which he entered, nothing in the home was disturbed. When petitioner was
arrested he was clearly impaired by drugs. Petitioner testified that he
entered the home because he was being chased by a man to whom he owed
money because, rather than selling drugs for the man as he was supposed
to, he would sometimes use the drugs because he was addicted to crack
cocaine and used heroin. A witness was available to corroborate
petitioner=s testimony that a
man with a gun had confronted him outside the home after petitioner had
been using crack, which made him Aparanoid.@ Counsel knew about the potential
witness and could have easily located him because he was in confinement
and, on the day of trial, was in the court holding area along with
petitioner. Counsel=s conduct
was deficient in failing to interview the witness, because whether
Petitioner was actually threatened or only perceived that he was
threatened in a drug-induced paranoid reaction, the witness would have
supported Petitioner=s
otherwise uncorroborated testimony and was, therefore, Acritical.@ Prejudice found because A[t]his was a close case in which
the jury deliberated for an entire day after receiving only one and half
days of evidence@ and the
prosecution evidence of intent Awas relatively slim.@ Analyzing the case under the
AEDPA, the court held that, due to the significant potential impact of
the witness= testimony, the
State court=s decision was an
objectively unreasonable application of federal law as set forth in
Strickland.
Gersten v. Senkowski
299 F. Supp. 2d. 84 (E.D.N.Y. 2004).
Counsel was ineffective in sodomy and sexual abuse of daughter case
for failing to consult with or call expert medical witness and
psychological expert to rebut the testimony of the state’s experts. The
defendant was charged with sexually abusing his daughter when she was
between the ages of 10 and 13. During the trial, however, the daughter
testified that the sexual abuse began when she was five years old with
anal intercourse beginning when she was 7 years old and the sexual abuse
occurring almost every night. The state presented a psychologist to
testify about child sexual abuse accommodation syndrome, which
corroborated the victim’s statements. The state also called a medical
expert that testified that physical examination revealed that the victim
had suffered penetrating trauma to her hymen and tearing of the anus.
The defense presented no witnesses. Analyzing the case under the AEDPA,
the court found that defense counsel’s conduct was deficient because,
with no valid basis, counsel believed that the daughter would not be
available to testify at the trial. Thus, counsel chose to proceed to
trial quickly without thorough investigation. He also believed it was
not necessary to investigate the medical evidence because the defense’s
strategy was to assert that the medical evidence was consistent with the
daughter’s relationship with her boyfriend, even though the boyfriend
testified that they had never engaged in any sort of penetrating
intercourse. The defense counsel also read some reports on child sexual
abuse accommodation syndrome, but he was unfamiliar with the writings of
the author of that theory or his subsequent retreat from the belief that
it constitutes a syndrome. Counsel’s failure to investigate with respect
to the critical medical evidence was deficient because counsel never
obtained copies of the slides made during the examination and never had
them evaluated by an independent expert. Counsel also failed to even
consult with a medical expert in order to prepare for effective
cross-examination. If counsel had adequately prepared, counsel would
have been able to present expert testimony and cross-examination that
would have largely rebutted the conclusions of the state medical expert
that there was physical evidence supporting the finding that sexual
abuse had occurred. Prejudice found because casting doubt on the medical
evidence could have invoked a reasonable doubt in the minds of the
jurors. The court also found that a defense that no penetrating sexual
activity had ever occurred would not have contradicted the defense’s
strategy of attributing any medical findings to the daughter’s
relationship with her boyfriend. In addition, the court found that this
defense is considerably more compelling than a simple denial of sexual
abuse. A defense expert would also have cast considerable doubt on the
daughter’s testimony. In finding no ineffectiveness, the state court
unreasonably applied the Strickland standard. The court also
found that trial counsel’s failure to consult with or call an expert on
child sexual abuse accommodation syndrome is an independent and
sufficient indication of deficiency. Counsel was ineffective for failing
to present testimony that the accommodation syndrome has no real
scientific predicate and is no longer regularly accepted in the
professional field. This testimony would have significantly contradicted
the state’s expert, who was called to bolster the daughter’s
credibility.
2003: United States v. Jasin
215 F. Supp. 2d 552 (E.D. Pa. 2002), recon. denied, 292 F. Supp. 2d 670 (E.D. Pa. 2003).
Counsel was ineffective in arms embargo case for failing to
adequately investigate and present a defense at trial. The defendant was
charged in a complex prosecution for violation of the United States arms
embargo against South Africa during the 1980s. The defense theory at
trial was that the defendant acted in good faith and that he had the
honest belief that he was acting in compliance with the law. Counsel,
who had never tried a criminal case, failed to investigate even though
the defendant specifically asked counsel to interview several witnesses
and several experts. The defendant was prejudiced because these expert
witnesses would have in fact supported the defendant’s good faith
defense. The court found a reasonable probability that the defendant
would have been acquitted.
*Steidl v. Walls
267 F. Supp. 2d 919 (C.D. Ill. 2003).
Counsel was ineffective in capital trial for a number of
reasons. The murder victims were stabbed numerous times in their own
home in July 1986. Following their deaths, a fire was deliberately set.
The bodies were discovered by firemen. In September 1986, an admitted
alcoholic gave the police a statement that he had been present at the
victim’s home, heard screams, and saw petitioner with blood on him
afterwards. In February 1987, another witness, who was an admitted drug
addict and alcoholic, gave the police a statement asserting that she had
witnessed petitioner and another man commit the murders and she gave
them a knife that she claimed was the murder weapon. In addition to
these witnesses, the state presented evidence that the knife provided by
the witness was consistent with the wounds. The state also presented
testimony from a jailhouse snitch, who admitted that he hoped to get
consideration in his own sentencing in exchange for his testimony. The
defense presented a corroborated alibi defense, testimony that
contradicted the witness that came forward in September 1986, and
written evidence that the second witness, who allegedly witnessed the
murders and provided the murder weapon, was actually at work at the time
of the murders. The witness testified, however, that she had someone to
log her in, but she was not there. During closing arguments, the defense
counsel argued that the witness had been at work and that the knife she
provided could not be the murder weapon because the blade was only five
inches long when some of the stab wounds were six inches deep. The court
found that counsel’s conduct was deficient for failing to adequately
impeach the alleged eyewitness testimony with evidence of her presence
at work. While the defense had presented the records, the defense had no
evidence to contradict the argument that the person that filled out the
records falsely indicated that the witness was there. That person was
available and did testify in post-conviction that she would not have
logged the witness into work unless she was actually there. Although the
state court find a trial strategy for not calling this witness, trial
counsel testified that he did not recall why this witness was not
interviewed or called and the record shows that counsel probably
"mistakenly and in haste subpoenaed the wrong supervisor." Prejudice was
found because this witness’ testimony could have led the jury to believe
that the alleged eyewitness was clearing lying and that she had not been
present at the time of the murders. Counsel’s conduct was also deficient
in failing to present expert testimony that the knife presented by the
alleged eyewitness and the state as the murder weapon could not have
been the murder weapon. Although it is possible for a five inch blade to
make a six inch cut, contrary to defense counsel’s argument, there were
other aspects of the knife and the wounds that led a forensic
pathologist to testify that this particular knife could not have been
the murder weapon. Although counsel argued this, counsel’s conduct was
deficient in failing to obtain expert assistance or to even
cross-examine the state’s expert on this point. Instead, counsel chose
to wait until argument to present this theory. The court found this
strategy to be unreasonable and prejudicial though because expert
testimony that this knife was incompatible with the murder weapon would
have had a devastating impact on the alleged eyewitness’ credibility.
Counsel’s conduct was also deficient for failing to prepare and present
expert testimony concerning the crime scene. The alleged eyewitness’
testimony included a broken lamp prior to the fire and the state argued
that the presence of a broken lamp corroborated her testimony. Expert
evidence from the arson investigator, who actually testified at trial on
other points, and a second arson investigator established in
post-conviction though that the lamp was intact at the time of the fire
and was broken afterwards. Counsel’s conduct was deficient because
counsel did not even consider obtaining such experts or testimony, even
though he was trying to discredit the witness. Petitioner was prejudiced
because this evidence would have impacted the witness’ credibility and
the state’s argument of corroboration. The court found that each of
these errors was prejudicial because, aside from the alleged eyewitness
that would have been discredited had counsel performed adequately, the
state’s evidence consisted only of an admitted drunk, who was
contradicted by other witnesses already, and a jailhouse snitch. In
addition, the court found that, "even if the individual instances of
deficient performance were not, considered alone, sufficient, cumulative
consideration required relief. The analyzed the state court findings
thoroughly under the AEDPA. The state court found strategies with "no
factual support in the record," id. at ___, and relied on "a
profoundly mistaken reading of the record," id. at ___. The state
court also applied the wrong legal standard by requiring petitioner to
show that the result "would have beendifferent," rather than the proper
"reasonable probability" standard. Id. at ___. The state court
decision was also "not even minimally consistent with facts and
circumstances of this case and was, therefore, unreasonable." Id.
at ___. In sum, the state court unreasonably determined the facts in
light of the evidence presented and unreasonably applied
Strickland to the facts.
Miller v.
Senkowski
268 F.Supp.2d 296 (E.D.N.Y. 2003).
Counsel ineffective in sodomy and rape of child case for
numerous reasons. Petitioner was charged with crimes related to the
daughter of his ex-girlfriend. A week prior to trial, his appointed
counsel sought a continuance because counsel had to have medical
treatments. The court replaced him with another counsel, who proceeded
to trial without asking for any additional time. During jury selection,
counsel sought and received authorization to retain a defense expert to
advise him and potentially testify concerning obvious problematic areas
in the state’s medical report finding evidence of vaginal trauma and
penetration, but counsel never obtained his own expert. During his
opening statement, counsel told the jury that the charges were trumped
up by petitioner’s ex-girlfriend, who convinced both her daughters to
allege sexual abuse because the petitioner would not marry her. He
informed them that the victim’s sister had made allegations but these
charges were dropped. During counsel’s cross-examination of the state’s
witnesses, counsel did not pursue the conspiracy theory. During
cross-examination of the state’s expert, counsel did not cross-examine
him on "problematic" methodologies and unsupported conclusions. During
closing argument, counsel argued only that petitioner was not living
with his former girlfriend when the abuse was supposed to have occurred
and argued the lack of forensic evidence to corroborate the abuse and
the delay in reporting the abuse. Counsel’s conduct was deficient in
failing to obtain defense experts even though the prosecution expert’s
report was provided over a year prior to trial. Even after obtaining
authorization for experts during jury selection, counsel still did not
obtain expert assistance to advise him or to possibly testify. Counsel’s
conduct was also deficient in informing the jury of the inadmissible
information that the victim’s sister had also previously alleged sexual
assault. Finally, counsel’s conduct was deficient in telling the jury
that evidence of a conspiracy would be presented and then failing to
present any evidence or to even explain to the jury why the theory was
abandoned. In finding prejudice, the court applied a cumulative
prejudice analysis. The court found prejudice because a defense expert
likely would have neutralized the testimony of the state’s expert, which
would have reduced the case to a credibility determination. Counsel’s
error in informing the jury of the sister’s allegations bolstered the
victim’s otherwise uncorroborated testimony. In a case that amounted to
a credibility contest, counsel’s "errors take on a special importance."
Id. at ____. Although the court cited the appropriate AEDPA
standards, the court did not discuss the application of these standards
in its analysis of deficient conduct or prejudice.
1999: Berry v. Gramley
74 F. Supp. 2d 808 (N.D. Ill. 1999)
Retained counsel ineffective in
kidnaping and sexual assault case for failing to prepare and present a defense. Victim
alleged that defendant, a probationary police officer, kidnaped her from street, drove her to
his home, sexually assaulted her three times in garage, led her naked into his house,
sexually assaulted her again will threatening use of pistol, made her give him phone
number, drove her home, and gave her his pager number, which alleged victim said was
disconnected. Defendant was ultimately arrested after a call to her was traced to his home
and a pistol was found, which he asserted he obtained from his father 11 days after the
alleged assault. Defendant made statement to police asserting that sex was consensual.
Defense counsel met with the defendant only twice prior to trial in the holding cells next to
courtroom, but defendant was afraid to talk to him in the crowded room for fear that other
inmates would learn that he was a police officer. Defendant could not call lawyer either
because he only had pager number. If counsel had adequately prepared and presented a
defense, one credible witness would have testified contrary to the alleged victim's
assertion of being raped three times in garage and led naked into house that he saw
defendant arrive home and come out of the garage after only a minute or so and that the
victim was dressed and stood nearby appearing as if everything was normal. This witness
had even called defense counsel and told him of available testimony. Another witness,
corroborated by defendant's mother who answered phone, would have testified that he
called and talked to defendant for 25 minutes during the time in which the alleged victim
asserted she was in basement being sexually assaulted. Defendant's mother said he took
call upstairs and left alleged victim in the basement where there was a door out.
Defendant's father would have corroborated that he gave defendant the pistol found after
the alleged assault. Proof was also available that defendant's pager, for which he gave
alleged victim the number, contrary to state's testimony, was operational. In state court,
counsel provided an affidavit asserting strategic reasons for conduct and defendant was
denied an evidentiary hearing. Federal court found after evidentiary hearing that counsel
was not credible and the state courts had erred in relying on his affidavit. Conduct was
deficient because counsel made no strategic decisions due to complete failure to prepare.
Prejudice found because defendant was denied material exculpatory and impeachment
evidence. Court also considered in cumulative prejudice analysis that counsel made only
a very brief opening that described no defense and failed to challenge two jurors who were
either the victim of a rape or had a friend who was the victim of a rape and indicated
potential bias. Case reversed as "contrary to" and "unreasonable application" of
Strickland under AEDPA.
1993: United States v. Muskovits,
844 F. Supp. 202 (E.D. Pa. 1993)
Trial counsel ineffective for failing to
investigate the validity of the defendant's prior Mexican conviction before
advising defendant (incorrectly) that it could be used for impeachment purposes
if he testified and thus defendant did not testify.
1992: Foster v. Lockhart,
811 F. Supp. 1363 (E.D. Ark.), appeal dismissed, 995 F.2d 226 (8th
Cir. 1992)
Trial counsel ineffective in rape case for
failing to pursue impotency defense where a urologist would have testified that
the defendant is organically impotent and most likely could not have raped
unwilling victim and ejaculated in three minutes.
United States v. Byfield,
795 F. Supp. 468 (D.D.C. 1992)
Trial counsel ineffective in narcotics
prosecution for making statements during opening that placed defendant with
alleged drug courier at a time other than the date of the defendant's arrest and
suggested that the shoe box carried by the courier (which later was found to
contain drugs) had contained defendant's shoes thereby buttressing the
government's constructive possession theory and allowing a guilty
verdict.
1987: Rode v. Lockhart,
675 F. Supp. 491 (E.D. Ark. 1987)
Counsel ineffective for pursuing an incredible
defense on first degree murder where if defendant had testified to truth that he
beat his wife in a fit of rage there was a reasonable probability that defendant
would have been convicted of a lesser included offense.
Jemison v. Foltz,
672 F. Supp. 1002 (E.D. Mich. 1987)
Trial counsel in narcotics case ineffective
because counsel waived preliminary examination, filed no pretrial motion, made
neither opening statement nor closing argument on defendant's behalf, failed to
interview potentially effective alibi witness of whom defendant had advised him,
waived jury trial, thereby allowing defendant to be tried before judge who was
fully aware of defendant's long criminal record, and failed to conduct effective
cross-examination of State's only witness.
1984: Walker v. Mitchell,
587 F. Supp. 1432 (E.D. Va. 1984)
Trial counsel ineffective in murder case for
failing to prepare and present an insanity defense where the evidence showed no
immediate provocation for shooting of girlfriend, relative calm preceding
shooting, no attempt at secrecy because shooting occurred in front of several
eyewitnesses, defendant shot himself in the neck after shooting girlfriend, and
defendant had previously been found not guilty by reason of insanity in another
murder case and committed.
Military Cases
1997: United States v. Wean,
45 M.J. 461 (C.A.A.F. 1997)
Trial counsel ineffective in child sexual abuse
case for failing to object to testimony of government expert witnesses
concerning "play therapy" and multiple hearsay problems and failed to counter
with defense experts and lay witnesses who would have established that even if
child abused circumstantial evidence did not point exclusively at defendant.
Counsel was also ineffective in sentencing argument for telling sentencing panel
that defendant was "suffering from an illness of the mind [which] compelled him
to do these things" when defendant had maintained innocence throughout the
proceedings and there was no basis in fact for the comments about mental
illness.
1991: United States v. Polk,
32 M.J. 150 (C.M.A.
1991)
Trial counsel ineffective in kidnapping and
rape for refusing to interview four potential witnesses identified by accused.
Two of these witnesses would have testified as to statements made by the victim
that would have shown defendant was not involved in the crime and that the
victim had a motive to lie and state that accused was involved. The other two
witnesses would have testified that the alleged victim was notorious for being
untruthful and "permissive". In addition, defense counsel refused to interview
or explore the testimony of the co-defendant whose testimony would have revealed
that he had an ongoing sexual relationship with the victim which involved rough
and abusive but consensual sexual behavior. The sole reason for not exploring
these matters was that defense counsel believed (without sufficient basis) that
the co-defendant and the other witnesses would not be truthful.
1989: United States v. Galinato
28 M.J. 1049 (N.M.C.M.R. 1989)
Prejudice presumed where counsel as a protest
to the judge's denial of a motion for continuance declined to participate in
trial. Counsel did not conduct voir dire, make opening statement, cross-examine
government witnesses, present defense, or make closing argument. In addition,
during the sentencing hearing, the defendant made a statement (without the
assistance of counsel) which included several incriminating statements including
some that revealed additional uncharged misconduct.
1987: United States v. Scott,
24 M.J. 186 (C.M.A. 1987)
Counsel in attempted murder, rape, forcible
sodomy, and kidnapping case ineffective for failing to investigate and prepare
accused's sole defense of alibi simply because counsel never expected the case
to go to trial because he was so convinced of his client's innocence. In
addition, counsel did not prepare accused's for his own testimony and failed to
request a cautionary instruction on eyewitness identification which was the
basis for the prosecution's case.
United States v. Mansfield,
24 M.J. 611 (A.F.C.M.R. 1987)
Trial counsel ineffective in premeditated
murder case for failing to prepare and present properly either an insanity
defense or a diminished capacity defense where a defense expert was prepared to
present testimony that accused was insane and lay witnesses could provide
testimony of bizarre behavior. Counsel initially intended to present insanity
defense but then abandoned the defense midway through the trial because the
trial judge ordered the production of damaging inculpatory statements made by
the accused to his expert witness.