2006: Higgins v. Renico
470 F.3d 624 (6th Cir. 2006) (affirming Higgins v. Renico, 362 F. Supp. 2d 904 (E.D. Mich. 2005)).
Under AEDPA, counsel was ineffective in murder case for failing to cross-examine the key prosecution witness because of lack of preparation.
The defendant and the state’s witness were the only people present when the victim was shot. The defendant made a statement, which
was admitted in evidence, that the state’s witness shot the victim. The witness, who said that the defendant was the shooter, did not show
up for his scheduled testimony during trial and his preliminary hearing testimony was read into the record. Two days later, the witness showed
up and testified. Counsel informed the court that he had been provided with the witness’ two prior statements several days before but had not
reviewed the statements or prepared for cross-examination. The court recessed for 30 minutes, but counsel informed the court that he still was
not prepared. The court would not delay longer and counsel asked no questions on cross-examination. The state court made a conclusory
finding that there was no prejudice but did not address the issue of deficient conduct so this issue was reviewed de novo. Counsel’s conduct
in failing to adequately prepare for cross-examination was deficient and not justified by strategy. Prejudice was found because the witness at
issue was the only witness that directly implicated the defendant as the shooter. There was no cross even though the witness (1) had a
strong interest in the jury’s finding since he was the only other person present at the time of the shooting; (2) had made two prior statements
with inconsistencies; and (3) had gunshot residue on his hands after the shooting. In addition, the failure to challenge the testimony left the
impression that the defense accepted the testimony. Likewise, the witness testified that he had not shown up earlier in the trial because he
had been threatened by “people” and the failure to cross-examine left the impression that the threats came from the defendant when there
was no evidence to support that inference. Finally, the preliminary cross-examination testimony was inadequate because counsel had been
conducting only non-confrontational discovery at that time. In its AEDPA analysis, citing Strickland, the court held that the state court’s finding
of no prejudice was an unreasonable application of Supreme Court precedent.
Reynoso v. Giurbino
462 F.3d 1099 (9th Cir. 2006).
Counsel ineffective in murder case for failing to cross-examine state witnesses about their
motivation for testifying. The crime went unsolved for two years and then a jail house
snitch, after seeing advertisements about a $25,000 reward on television, contacted police
saying the defendant had confessed to him shortly after the crime. After another year,
with the reward still being advertised on television and in newspapers, the police
reinterviewed a witness interviewed the night of the murder and another witness, who
allegedly saw the defendant near the scene the night of the murder, contacted the police.
Although there was no physical evidence, both of these witnesses also identified the
defendant. During trial, counsel cross-examined the snitch about his motivation in
seeking the reward ($10,000 of which he ultimately collected). Although counsel cross-
examined the other two witnesses on other matters concerning credibility, counsel did not
cross-examine them about the reward motivation. Counsel's conduct was deficient in
failing to investigate or to question the witnesses on this matter because counsel knew
about the reward. Prejudice was found because, if counsel had asked, she would have
learned that both witnesses were aware of the reward and had asked police about it.
Thus, they "may have had a motive to lie." (Both witnesses did ultimately collect $7,500
each). Prejudice was also clear because the prosecutor emphasized in closing that these
witnesses had no bias and "that neither had any reason or motive to lie." Under AEDPA,
the state court's decision was an unreasonable application of federal law. Id. at ___
(citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
2002:*Beltran v. Cockrell
294 F.3d 730
(5th Cir. 2002)
Under pre-AEDPA analysis, counsel
was ineffective in capital murder trial for failing to adequately
investigate and to impeach eyewitness testimony that the defendant was
the only person they had picked from photographic lineups. The victim
was killed in a murder and armed robbery. Eyewitnesses stated that the
robber carried a Derringer pistol and jumped into the passenger side of
the co-defendant’s car when leaving. Eyewitnesses described the robber
as having a tattoo of the initials LX or LT on his upper left arm or
forearm. Following the murder a witness drove around with the police and
located the car outside the co-defendant’s apartment. The co-defendant
had four hours earlier committed an aggravated assault with a Derringer
pistol. Eyewitnesses were shown photo lineups with a picture of the
co-defendant and three eyewitnesses tentatively identified the
co-defendant. Several days later a photo lineup including the
defendant’s picture was shown to the witnesses and three witnesses
identified the co-defendant and also made in-court identifications of
the co-defendant as the robber. During trial the state sought to
introduce the photo lineup including the co-defendant and to introduce
testimony that the witnesses had initially identified the co-defendant
but defense counsel objected to the relevance. The state’s theory at
trial was that the defendant committed the murder and the co-defendant
drove the getaway car. The states case depended solely on witness
identifications. The court found that counsel’s conduct was deficient
and not explained by any relevant strategic choice because counsel
sought only to show that the defendant did not have the tattoo shown in
the composite made on the day of the incident. Counsel did nothing more
then testify that defendant did not have such a tattoo. Counsel failed,
however, to introduce evidence that the eyewitnesses had tentatively
identified the co-defendant, who did have such a tattoo, because counsel
had failed to investigate. Counsel was not aware that the co-defendant
had the tattoo and that the co-defendant and his brother had been seen
together in the getaway car 15 minutes after the murder. Even without
knowledge of the co-defendant’s tattoo, counsel’s conduct was
unreasonable in failing to use tentative identifications of the
witnesses to impeach their testimony. The court found prejudice.
2001: Dixon v. Snyder
266 F.3d 693
(7th Cir. 2001)
Counsel ineffective in murder case for
failure to adequately prepare and to cross-examine the state’s sole
eyewitness. The eyewitness was standing next to the victim when he was
shot. When the police arrived at the scene, the eyewitness stated that a
black male, without any additional information, was the shooter. The
next day, May 12, the eyewitness made a statement identifying Dixon as
the shooter. Months before trial, defense counsel learned that the
eyewitness was willing to recant the May 12 statement and counsel
obtained an affidavit and a recantation in front of a court reporter
from the eyewitness stating that Dixon was not the shooter. Before
trial, defense counsel assured his client that, because the State’s main
witness had recanted, there was no need to prepare a defense. At trial,
Dixon waived his right to a jury. The sole eyewitness, when called by
the state, testified that Dixon was not the shooter. The state was then
permitted to call the person who took the witness’ May 12 statement and
allowed to admit the statement under a state rule of criminal procedure
passed in 1984 that allows prosecutors to introduce prior inconsistent
statements as substantive evidence rather than solely for impeachment
purposes. This was a substantial change from the previous Illinois law,
under which a prior inconsistent statement could only be used for
impeachment. The state rule sets forth three foundational
requirements that had to be met in order to admit the eyewitness’ prior
inconsistent statement as substantive evidence: 1) the prior statement
had to be inconsistent with the testimony at trial; 2) the witness had
to be subject to cross-examination concerning the statement; and 3) the
statement had to describe an event of which the witness had personal
knowledge and had to be signed by the witness. Rather than arguing that
one of the three statutory requirements had not been met, however,
defense counsel relied upon a state court rule that was irrelevant and a
case which predated the passage of the pertinent rule in arguing that
the prior statement was inadmissible. The defense did not cross-examine
the eyewitness or recall him as a rebuttal witness after the prior
statement was admitted. The court convicted the defendant of first
degree murder. In a post-trial motion and on appeal, the defense argued
that the state failed to meet the foundational requirements of the
criminal rule, but the issue was found to be barred because defense
counsel had not even attempted to cross-examine the eyewitness or to
call him as a rebuttal witness. Trial counsel’s conduct was deficient
because counsel was not aware of the pertinent state court evidentiary
rule even though it had been in effect for seven years prior to trial
and counsel knew more than eight months before trial that the sole
eyewitness had recanted (thus, the court reasoned, he should have
investigated the law concerning prior inconsistent statements). The
state court’s finding in this regard was unreasonable because the state
court "did not dismiss the possibility that counsel was not aware of the
statute, yet it nonetheless analyzed counsel’s actions as if the only
issue was whether counsel should have cross-examined a witness. This
analysis ignored the fact that counsel’s decision not to cross-examine
Carlisle would not have been reasonable if counsel was completely
unaware of the legal effects of his failure to cross- examine Carlisle."
Id. at 703.
We thus determine that, assuming counsel was unaware of the statute,
it was unreasonable under Supreme Court precedent for the Illinois
Appellate Court to conclude that the decision not to cross-examine was a
decision that could be considered "sound trial strategy." Even if
counsel was aware of the statute (and all indications are that he was
not), it would still have been an unreasonable trial strategy to decide
not to attempt to render the sole piece of direct evidence against your
client inadmissable, even if you were not certain you would be
successful. Indeed, it would have been even more unreasonable for
counsel to have made the decision not to cross Carlisle if he had been
aware of the statute and equally unreasonable for the appellate court to
have found it to be a reasonable strategic decision. As for defense
counsel’s decision not to present Carlisle’s previous recantations, the
Illinois courts did not rule on this issue thus we may determine, de
novo, whether counsel’s actions fell below the permissible level of
performance. We find that there was no rational explanation for why
counsel did not introduce Carlisle’s two recantations as evidence. There
was absolutely no risk in doing so.
Id. The state court finding of no prejudice was also
unreasonable. The defendant was prejudiced because the defense presented
no defense and because "[t]here is a very reasonable probability that
the judge would not have entered a finding of guilty had the statement –
the sole direct evidence of guilt – been impeached." Id. at 704.
1999: Steinkuehler v. Meschner,
176 F.3d 441 (8th Cir. 1999)
Counsel ineffective in first degree
murder case for failing to adequately impeach a witness. After a long
day of consuming large amounts of alcohol, the defendant shot and killed
his girlfriend's ex-husband. Thirty minutes later he turned himself in.
The only defense raised at trial was that intoxication negated specific
intent required for first degree murder. Prior to trial, counsel deposed
the initial officer to come in contact with the defendant. She testified
that he was dazed and incoherent, did not recognize her even though she
had booked him three times previously, and smelled strongly of alcohol.
She concluded that he was intoxicated. Subsequently, this officer
informed defense counsel that immediately after the deposition the
county attorney told her that he would inform her boss, the Sheriff of
her testimony. Later in the day, the attorney wrote a letter to the
Sheriff with a copy to the witness. The next day the Sheriff confronted
the officer and told her that he was not happy about her testimony and
that she should have said she "forgot." The Sheriff told her "he forgets
in court all the time." At trial, the officer testified as she did in
her deposition and the Sheriff testified that the defendant had been
drinking but was not drunk. Counsel failed to ask either of them about
the events following the officer's deposition and did not offer the
county attorney's letter into evidence. The court found deficient
conduct and prejudice. Although numerous witnesses testified that the
defendant was drunk, he was last seen an hour and a half prior to the
murder. Thus, the jury could have inferred that he sobered up somewhat,
which made the testimony of the officers who saw the defendant 30
minutes after the crime critical. A number of officers testified but
only the two addressed here expressed an opinion concerning the level of
intoxication. Thus, the credibility of these two officers was critical
and, clearly, the first degree murder conviction rested primarily on the
Sheriff's testimony. Impeaching his credibility certainly could have
provided a reasonable doubt.
1996: *Driscoll v. Delo,
71 F.3d 701 (8th Cir. 1995), cert. denied, 519 U.S. 910
(1996)
Trial counsel ineffective in guilt
phase for failing to adequately cross-examine serologist and impeach
state witness with prior inconsistent statement. (1) Case involved
murder of guard in prison riot involving 20-30 inmates. During shakedown
afterwards 14 shanks were rounded up and blood was found only on
defendant's. Serologist testified type A (the type of a different guard
that was stabbed) on knife, but with the type of test used, type A blood
would mask type O (type of murder victim). State argued that type O on
knife also but just masked. Trial counsel ineffective because if
counsel, who had not talked to state expert prior to trial, had
adequately cross-examined, serologist would have admitted that a
different blood test was also used and with the other test type A would
not mask type O. There was no type O on knife. (2) Witness was another
inmate who said defendant confessed stabbing to him after the riot, but
had not said the same thing in two prior statements.
1991: Moffett v. Kolb,
930 F.2d 1156 (7th Cir. 1991)
rial counsel ineffective in murder case
for failing to introduce prior inconsistent statements of state witness
who told investigating detective two times that defendant's brother and
not defendant fired the gun at victim.
1989: Nixon v. Newsome,
888 F.2d 112 (11th Cir. 1989)
Counsel rendered IAC in defendant's
murder trial when he failed to impeach a witness with prior inconsistent
testimony she gave at the trial of another individual being tried for
the same murder.
1984: *Smith v. Wainwright,
741 F.2d 1248 (11th Cir. 1984), cert. denied, 470 U.S. 1087
(1985)
Trial counsel ineffective for failing
to use prior conflicting statements by the state's primary witness and
his wife (that witness committed murder) to impeach witness who
testified at trial that defendant committed murder.
U.S. District Court Cases
2004: Harris v. Senkowski
298 F. Supp. 2d 320 (E.D.N.Y.
2004).
Counsel was ineffective in second degree robbery case for failing to
challenge the testimony of the robbery victim with her prior
inconsistent description of the robber. Only thirty minutes after the
robbery, the victim described her assailant as a black male standing
5'4" tall and weighing 130 pounds. The next evening, the victim, who was
Asian, rode around the neighborhood with police officers and identified
the defendant, who was then arrested. The defendant was 6' tall and 220
pounds. Prior to trial, counsel moved to suppress the identification as
being unduly suggestive, but counsel never addressed the victim’s prior
description and the motion was denied. During the trial, the victim and
the police officer that drove her around were the only state’s witness.
Counsel did not cross-examine the victim concerning her prior
description of the defendant even though his sole argument in defense
was mistaken identification. The defendant never squarely claimed that
trial counsel was ineffective on this basis in state court and,
therefore, the state courts never ruled on the issue. The government
explicitly waived any procedural or exhaustion issues though. Analyzing
the case under pre-AEDPA standards, the court found that counsel’s
conduct was deficient and that "[a] more compelling example of
ineffective representation is difficult to fathom." While counsel
alleged strategic reasons for his failure, the court found that each
reason was "ludicrous." Even if counsel chose not to cross-examine the
victim for an alleged strategy, counsel still could have offered the
complaint report into evidence as a business record or called the police
officer that took the complaint as a witness. Prejudice found because
the government’s case rose or fell on the strength of the victim’s
testimony, but the jury never heard about her prior, strikingly
inconsistent identification in the case.
2003: Thomas v. Kuhlman
255 F. Supp. 2d 99 (E.D.N.Y. 2003)
Counsel was ineffective in murder case for
failing to inspect the crime scene. During the trial a key witness
testified that he observed the defendant on the fire escape of the
victim’s apartment building shortly before the victim was killed. This
testimony placed the defendant precisely at the window of the victim’s
apartment just before the murder. If counsel had investigated counsel
would have been able to establish that it was physically impossible for
the witness to have seen the defendant at the victim’s window because
the fire escape next to the victim’s apartment was not visible from the
witness’ alleged vantage point. Counsel’s conduct was deficient where
the state evidence relied heavily on this alleged eyewitness, who was at
the time of trial in confinement on pending charges testifying pursuant
to a deal with the state. Counsel’s conduct was also deficient even if,
as counsel alleged, the defendant had told him the witness testimony
about the layout of the building was correct. Court found, "it was a
dereliction for defense counsel to rely on the assurances of a defendant
who, as a layman, may or may not have understood the critical nature of
the layout of the buildings." Prejudice found where the government’s
case relied primarily on the alleged eyewitness that would have been
contradicted. Prejudice was also clear in that the jury at one point
announced that they were deadlocked and only reached a decision after
being given an Allen charge. The court noted that the decision
was being made under the AEDPA but did not really address application of
the standards to this case.
Military Cases
1999: United States v. Gibson,
51 M.J. 198 (C.A.A.F. 1999)
Counsel ineffective in rape case for
failing to investigate and impeach alleged victim's credibility. Only
evidence of rape charges was the testimony of the 15 year old alleged
victim and DNA and fiber evidence in defendant's vehicle showing only
that at some time the defendant had ejaculated in vehicle. Fiber
evidence was not unique and showed nothing outside of corroborating
victim's testimony. In final investigative report, the police listed
witness interviews establishing that the victim had told a number of
different versions of the alleged rape to friends, she had a history of
exaggerating her sexual exploits, did not have a good reputation for
truthfulness, and had a history of behavior problems at school. One
teacher even believed she alleged rape to distract attention away from
expulsion from school. Evidence revealed that the interim report had
been provided to defense counsel early on. Prior to the preliminary
hearing in the case, the final report had also been disclosed, which was
apparent because all agreed that the prosecutor had an open file policy,
two prosecutors testified that the file had been copied and personally
delivered to one defense counsel, and defense counsel referred in
preliminary hearing to a lab report contained only in the final
investigative report. The final report with attachments was
approximately two inches thick and looked much like the interim report.
The information concerning the impeachment information was not in
previous reports though and was contained in paragraphs between
information disclosed previously. Counsel did not read the final report
carefully, however, and failed to learn of this information only through
oversight and not strategy. The court found prejudice because the entire
case was built on the alleged victim's testimony. The forensic evidence
alone revealed no crime.
State
Cases
2006: J.J. v. State
858 N.E.2d 244 (Ind. App. 2006).
Counsel ineffective in burglary and theft case for failing to inform the jury
that the defendant’s alleged accomplice had been granted use immunity. Prejudice found because the witness’ testimony was
of great consequence to the jury’s consideration of the case and the prosecutor commented that the witness had “cooked himself”
by his testimony that he had participated in the crime with the defendant, implying that the witness was credible because he
would suffer for his own admission when the prosecutor knew he would not.
2005: Thompson v. Commonwealth
177 S.W.3d 782 (Ky. 2005).
Counsel ineffective in reckless homicide and persistent felony offender case for failing to challenge the accident reconstruction testimony of the investigating officer. The case involved the death of an eight year old child that ran into the street chasing a puppy and was hit by the defendant’s motorcycle. Testing revealed alcohol in the defendant’s blood, along with traces of marijuana, pain reliever, and anti-depressant medication. The investigating officer used an English study based on the running speed of eight year olds, distance, and the defendant’s estimated speed and concluded that the defendant should have been able to stop with 26 feet to spare. Even without a defense expert, counsel should have realized that the officer made a mathematical error and his own formula would have revealed that the defendant could not have stopped his motorcycle until 40 feet after the point of impact. Counsel did not retain his own expert because the defendant consistently told him that he never saw the child before the impact. Thus, counsel believed the possible braking distance was irrelevant. Counsel’s conduct was deficient because his only defense was that the accident was unavoidable and counsel knew that the prosecution would rely on the officer’s testimony that it was avoidable with normal reaction times. It was unreasonable to fail to attempt to challenge this testimony because “jurors are undoubtedly greatly influenced by the testimony of someone deemed an ‘expert.’ This is especially true if the only countervailing testimony comes from the defendant, the sole person with a strong motive to lie (if the truth would deem him guilty of the crime charged).” In addition, the expert’s testimony was so clearly erroneous in this case that “a non-mathematical expert discovered it on simple review of the calculations.” Prejudice found because if counsel had performed adequately, the expert would have had to admit that the defendant “could not have stopped” in time.
2004: Roberts v. State
602 S.E.2d 768 (2004)
Counsel was ineffective
in murder case for failing to adequately impeach a jailhouse snitch,
who testified that he was 10 feet away in
the cell next to the defendant in pretrial confinement and the defendant
confessed to him. While counsel discussed with the defendant that
the
conversation was impossible due to the layout of the cells, counsel did
not question the snitch about this or present any evidence on the
issue.
Counsel’s conduct was deficient because, if counsel had adequately
prepared and presented the evidence, the evidence would have established
that the snitches’ cell was 35-100 feet from the defendant and the
cell
block was extremely noisy. Any conversation between the snitch and the
defendant would have been heard by numerous guards and inmates because
the defendant would have had to yell to be heard over the noise.
Although a "close case," prejudice found because the snitch was a key
witness and the state’s remaining evidence consisted almost entirely of
testimony of a codefendant who had made four contradictory statements,
including implicating a clearly innocent man in three of those
statements. The jury had also asked "who was on trial" during
deliberations.
2002: People v. Williams
769 N.E.2d 518 (Ill. App. Ct. 2002).
Counsel ineffective in attempted aggravated robbery
case for failing to call officers or to present the police reports to
impeach the victims’ testimony that the defendant had his hand under his
shirt suggesting that he had a gun. While defense counsel questioned the
two witnesses, the questioning did not resolve the issue of what the
witnesses actually stated to the officers on the scene. While the state
stipulated to the contents of the police report that was an inadequate
substitute for impeachment testimony by the police. Prejudice found
because this was a "close case."
Horn v. Hill
41 P.3d 1127 (Or. Ct App. 2002)
Counsel ineffective in sexual abuse case for failing to introduce
recantation testimony of child victim, who did not testify at trial. The
child was two when the abuse allegedly started and five at the time of
trial. In a pretrial hearing, the child recanted her prior statements of
abuse. The court found her incompetent as a witness and she did not
testify at trial. Her mother and medical workers testified concerning
her hearsay statements, behavior, and physical examination. During
trial, the defense presented expert medical testimony regarding the
physical exam and the unreliability of child witness recall. The
defendant also testified and denied the charges, but counsel did not
present the child’s recantation at the pretrial hearing. Court found
prejudice under the state standard of "tendency to affect the result"
because the physical evidence was contradicted and the mother and
child’s credibility were central issues since the defense theory was
that the child’s mother was angry because the defendant broke up with
her and, thus, influenced the child to make these
allegations.
1999: State v. Dillard,
998 S.W.2d 750 (Ark. 1999)
Counsel ineffective in sex abuse with
two minors case for failing to interview and present testimony of two
witnesses that one of the victims (S.S.) was untruthful. S.S.'s sister
would have testified that her sister was not a truthful person. The
brother of the other alleged victim would have testified that S.S. told
him she hated the defendant and was going to call the cops and tell them
he raped her. Counsel did not offer any explanation for failing to call
the brother. He said he did not call the sister because he knew she
hated the defendant. Court found prejudice because testimony from
relatives of the alleged victim's, who admittedly hated the defendant,
would carry great credibility in a case where there were no witnesses
and no physical evidence. Both convictions reversed because they were so
intertwined.
1998: Pauling v. State,
331 S.C. 606, 503 S.E.2d 468 (1998)
Counsel ineffective in burglary
and criminal sexual conduct case for failing to call triage nurse as witness. Victim testified
that she was penetrated. Doctor testified that there was no physical evidence of
penetration, but that victim said there was penetration but "not all the way." Triage nurse's
notes showed that victim told her there was no penetration. Although triage nurse did not
have any independent recollection, the notes could have been used to refresh her
recollection. The court noted in finding prejudice: "Even defense counsel admitted the
nurse's testimony was critical. Martinez v. State, 304 S.C. 39, 403 S.E.2d 113 (1991)
(where trial counsel admits the testimony of a certain witness may have made the
difference in obtaining an acquittal, the Court may find ineffective assistance)." Id.
at ___.
1997: Clay v. State,
954 S.W.2d 344 (Mo. Ct. App. 1997)
Counsel ineffective in murder of
ex-wife case for failing to interview and present evidence from
investigating officers concerning the defendant's son's prior
inconsistent statements who said assailant could have been defendant or
could have been someone else, when the son did not identify the
defendant during the trial, and their was no other identification
testimony at trial.
1996: Johnson v. State,
467 S.E.2d 542 (Ga. 1996)
Counsel ineffective in murder case for
failing to give notice as required by rules and failing to present
evidence of victim's prior specific acts of violence against third
parties where the defense was self-defense and a number of witnesses
would have testified that the victim was a drunk and a troublemaker who
had shot at or otherwise assaulted others or threatened them with
weapons on numerous occasions.
1995: State v. Delgado,
535 N.W.2d 450 (Wis. Ct. App. 1995)
Counsel ineffective in murder case for
failing to impeach the state's primary witness with readily available
evidence that would have shown that the witness had been promised a
reduction in charges from murder to aiding a felon and had received a
reduction from a $250,000 bond to personal recognizance in exchange for
testimony and that the witness lied about it at trial. Counsel knew from
witnesses attorney at preliminary hearing that negotiations were in the
works but relied on state's assertions of no deal rather than contacting
witnesses counsel who would have disclosed that there was a
deal.
1994: People v. Salgado,
635 N.E.2d 1367 (Ill. App. Ct.), appeal denied, 642 N.E.2d 1297 (Ill.
1994)
Trial counsel ineffective in murder
prosecution for failing to impeach prosecution witness, who identified
defendant as shooter, with witness' contradictory statements at
co-defendant's trials that he had not seen the shooting. Counsel did not
even investigate to determine whether prior transcripts contained useful
impeachment information.
Brown v. State,
877 P.2d 1071 (Nev. 1994)
Counsel ineffective in sexual assault
and attempted sexual assault case for failing to cross-examine the
alleged victim about lies told in prior allegations of sexual assaults.
Counsel waited until sur-cross and was denied opportunity. Counsel also
ineffective in sentencing for failing to request concurrent sentences
because counsel was unaware of possibility or to present witnesses for
the defendant.
1993: Commonwealth v. Bolden,
622 A.2d 950 (Pa. Super. Ct. 1993)
Counsel ineffective in murder case for
failing to impeach a police officer whose testimony contradicted alibi
witness with his own contradictory police report which showed that alibi
witness' statement to him was consistent with alibi witness'
testimony.
1992: Ellyson v. State,
603 N.E.2d 1369 (Ind. Ct. App. 1992)
Counsel ineffective in rape of wife
case for failing to lay an adequate foundation for admission of wife's
prior inconsistent statement.
Thomas v. State,
308 S.C. 123, 417 S.E.2d 531 (1992)
In rape case where the victim was the
sole witness and she identified the defendant as her attacker, trial
counsel was ineffective for failing to call emergency medical personnel
who would have testified that the victim stated immediately after the
attack that she did not know her assailant.
1991: Wright v. State,
581 N.E.2d 978 (Ind. Ct. App.
1991)
Counsel ineffective in child
molestation case for failing to lay an adequate foundation for admission
of witness' testimony concerning prior inconsistent statement by alleged
victim saying that she lied about her step-father molesting
her.
*Commonwealth v. Murphy,
591 A.2d 278 (Pa. 1991)
Counsel ineffective for failing to
cross- examine the only eyewitness on bias based on juvenile
probationary status.
1990: Russell v. State,
789 S.W.2d 720 (Ark.
1990)
Trial counsel ineffective in murder
case for failing to interview and call witnesses suggested by the
defendant who would have impeached the state's primary witness who
claimed he saw the defendant commit the murder by essentially showing
that it was the witness who had the motive to commit the murder, the
witness was in possession of some of the victim's belongings after the
crime, and the witness had previously killed someone else and buried
them close to where the victim was buried.
1987: State v. Marty,
404 N.W.2d 120 (Wis. Ct. App. 1987)
Trial counsel ineffective in sexual
assault case for failing to introduce testimony that the victim's window
had been nailed and painted shut prior to alleged sexual assaults to
impeach victim's pretrial statements that the defendant entered her room
through the window on two prior occasions and on one of the current
charges and assaulted her. Counsel also ineffective for failing to
attempt to impeach state's witnesses who provided other crimes evidence
against
defendant.