2002: Ouber v. Guarino
293 F.3d 19 (1st
Cir. 2002) (affirming 158 F. Supp. 2d 135 (D. Mass. 2001)).
Counsel ineffective, under AEDPA, in third trial of drug trafficking
case for promising the jury four times in the opening to call the
defendant as a witness, but then failing to keep those promises. As
counsel knew from the first two mistrials, the state’s evidence was
primarily an undercover officer. Counsel argued that the defendant did
not know the contents of the envelopes delivered at the insistence of
her brother, but counsel did not present the defendant to testify.
Defense counsel did, however, present numerous witnesses that the
defendant was truthful and that her brother was domineering. Counsel’s
conduct was deficient because of "a broken promise (or, more precisely
put, a series of broken promises): defense counsel’s repeated vow that
the jurors would hear what happened from the petitioner herself. Thus,
the error attributed to counsel consists of two inextricably intertwined
events: the attorney’s initial decision to present the petitioner’s
testimony as the centerpiece of the defense (and his serial announcement
of that fact to the jury in his opening statement) in conjunction with
his subsequent decision to advise the petitioner against testifying.
Taken alone, each of these decisions may have fallen within the broad
universe of acceptable professional judgments. Taken together, however,
they are indefensible." The court found, "A broken promise of this
magnitude taints both the lawyer who vouchsafed it and the client on
whose behalf it was made." The state court decision to the contrary was
unreasonable because it found counsel’s behavior to be "cautious," which
was contrary to the record. The state court decision was also
unreasonable because it found counsel’s change to be reasonable based on
the testimony of a witness when counsel’s decision was made before that
witness even testified and because the witness’ testimony actually
removed part of the rationale for not putting the petitioner on the
witness stand. Prejudice found because this case "was exceedingly
close," as demonstrated by the two previous hung juries, and "[i]n a
borderline case, even a relatively small error is likely to tilt the
decisional scales." The state court’s finding was unreasonable for
reasons similar to those addressed with respect to the finding of
deficient conduct.