United States Supreme Court
Cases
TRIAL PHASE
NUMEROUS DEFICIENCIES AND INADEQUATE DEFENSE
U.S. Court of Appeals Cases
2007: Fadiga v. Attorney General USA,
488 F.3d 142 (3rd Cir. 2007).
Counsel ineffective in immigration proceedings where the issue of ineffectiveness is
cognizable under the Fifth Amendment as a violation of due process but the courts often and
in this case essentially used the Strickland standard. Here, the alien was a native of Guinea,
who entered the country in 1991 on a visa that expired after one month. Eleven years later,
INS brought removal proceedings. The alien applied for withholding of removal and
protection under the Convention Against Torture. During the hearing, the alien testified that
he had left Guinea due to political issues in the country, which rose to the level of his uncle
being murdered due to political motivations, and his fear that he would be “arrested, tortured,
or killed.” Shortly after his departure, an arrest warrant had been issued for him charging
“public disorder.” The Immigration Judge (IJ) found dramatic inconsistencies in his
testimony and the application filed and noted the lack of supporting witnesses and documents
to corroborate the alien’s testimony. Although the alien and his counsel essentially explained
that the fault lay with counsel, the IJ ruled against the alien. The alien appealed to the Board
of Immigration Appeals (BIA) and, represented by new counsel, asserted only the
ineffectiveness of initial counsel, who provided an affidavit in support of the issue. The BIA
denied relief and the case proceeded to the Third Circuit. Counsel admitted (and the court
found) that counsel’s conduct was deficient because a law student prepared the application
and counsel assumed it was complete and accurate. Thus, counsel did not review the
application with the alien or advise him to review it before signing it. He also did not discuss
with the alien the need for additional witnesses and corroboration other than a simple generic
letter about a month before the hearing, which is the only reason the alien was able to provide
some documentation. In discussing a threshold procedural requirement applied by the BIA
for ineffectiveness claims, the court held that the “Lozada requirements” do not require a bar
or disciplinary complaint against counsel. Those requirements are aimed at serving, in
essence, the interests of ensuring adequate counsel, deterring meritless claims of
ineffectiveness, and prohibiting “collusion between counsel and the client” on these issues.
All of these interests–save the last–are served without a complaint
where, as here, prior counsel has fully and openly owned up to his
error and provided a detailed affidavit attesting to the problems in the
representation. As to the "collusion" rationale, it seems unlikely that
a lawyer would go so far as to commit perjury (i.e., intentionally
filing a false affidavit) in furtherance of such collusion. Therefore, we
find that the requirement of a complaint was excused in this case
where counsel acknowledged the ineffectiveness and made every
effort to remedy the situation.
Id. at 156-57. Prejudice found because the IJ’s doubts about the alien’s credibility and the
lack of corroborating evidence were caused by counsel’s deficient conduct. “Thus, counsel's
errors contributed directly to the evidentiary defects that led the IJ to deny relief.” Id. at 163.
Ramonez v. Berghuis,
___ F.3d ___, 2007 WL 1730096 (6th Cir. June 18, 2007).
Under AEDPA, counsel ineffective in home invasion, assault, and aggravated stalking case
for failing to interview and present the testimony of three witnesses. The defendant was
charged with breaking into his ex-girlfriend’s home (and she had two of his children living
with her) and assaulting her. Even according to her preliminary hearing testimony, three
witnesses saw a portion of the alleged events. Those three men were the defendant’s son,
stepson, and an acquaintance from work. Months prior to trial, the defendant insisted that
counsel call these men as witnesses. Counsel did not interview them or even attempt to do
so until just days before trial when he attempted to call one of them but was successful only
in exchanging phone messages. At the close of the prosecution’s case, the defendant insisted
to the court that he wanted those witnesses called. The court declined to intervene in
counsel’s judgment. Thus, the defendant was left only with his own testimony, which
counsel had also advised against. He denied breaking into the home, but admitted to pushing
the woman when they got into an argument because she was high and his children were in
the home. Counsel’s conduct was deficient because of the “decision to limit (or more
accurately, not to pursue at all until it was too late) any investigation regarding the three
potential witnesses.” The state court’s found that counsel had a reasonable strategy to focus
just on undermining the alleged victim’s credibility as to events inside the home, but that
“strategy” was based on counsel’s “belief that was grounded on a fatally flawed foundation”
that the witnesses, who were outside, could not support that strategy. If counsel had
interviewed the witnesses, he would have learned that they did witness events inside the
home and their testimony would have corroborated the defendant’s testimony.
That being so, the state court ignored the central teaching of
Strickland, as reaffirmed by Wiggins, 539 U.S. at 522-23, that the
investigation leading to the choice of a so-called trial strategy must
itself have been reasonably conducted lest the "strategic" choice
erected upon it rest on a rotten foundation.
In addition, counsel’s explanation of “strategy” was contradicted by the record. Counsel was
aware from the alleged victim’s preliminary hearing testimony that the witnesses outside
could have at least addressed whether the defendant kicked in the door and whether the
alleged assault continued outside the home with one of the witnesses even assisting the
defendant. “How could [counsel] rationally have concluded that . . . [none of the witnesses]
could possibly have anything to add to [the defendant’s] case? Of course the answer is he
didn't–at least not entirely” since counsel did attempt to reach at least one of these witnesses
shortly before trial and then conceded to the court during the trial that these witnesses could
possibly contradict the alleged victim’s testimony. With this recognition, it was “objectively
unreasonable” for counsel “not to interview them (or at least make reasonable efforts to
interview them) before coming to his ultimate choice of trial conduct.”
In sum, the point is this: Constitutionally effective counsel must
develop trial strategy in the true sense-not what bears a false label of
"strategy”–based on what investigation reveals witnesses will actually
testify to, not based on what counsel guesses they might say in the
absence of a full investigation.
Prejudice was also established because the jury sent out a note on one point saying it was
deadlocked on the home invasion count and the trial was one of a credibility contest between
the alleged victim and the defendant. The court noted that there were inconsistencies in the
post-conviction testimony of the three witnesses and the state court found one of them to be
not credible and found a second one to be “not a particularly helpful witness,” which did not
appear to be a credibility finding. The state court made no “finding” as to the third witness.
Regardless, the Sixth Circuit held:
a state court's blanket assessment of the credibility of a potential
witness–at least when made in the context of evaluating whether there
is a reasonable probability that the witness's testimony, if heard by the
jury, would have changed the outcome of the trial–is not a fact
determination within the bounds of Section 2254(e)(1). After all,
what the state court has really done is to state its view that there is not
a reasonable probability that the jury would believe the testimony and
thus change its verdict.
The Sixth Circuit rejected this approach because “the question whether those witnesses were
believable for purposes of evaluating [the alleged victim’s] guilt is properly a jury question.”
In the end, weighing the prosecution's case against the proposed
witness testimony is at the heart of the ultimate question of the
Strickland prejudice prong, and thus it is a mixed question of law and
fact not within the Section 2254(e)(1) presumption. Even though the
jury could have discredited the potential witnesses here based on
factors such as bias and inconsistencies in their respective stories,
there certainly remained a reasonable probability that the jury would
not have.
The court also declared that “[a]ll it would have taken is for ‘one juror [to] have struck a
different balance’ between the competing stories (Wiggins, 529 U.S. at 537).” The court
footnoted that
Wiggins was a death penalty case in which a single juror's vote would
have spared defendant's life. In [this] case, of course, even a single
juror's holdout would have resulted in a hung jury rather than a
conviction, while a jury's unanimous striking of "a different balance"
would have produced an acquittal.
Id. at ___.
Raygoza v. Hulick,
474 F.3d 958 (7th Cir. 2007).
Under AEDPA, trial counsel was ineffective in murder trial for failing to adequately
investigate and present an alibi defense. The defendant, a gang member, was charged
with the murder and a second shooting of rival gang members in a Chicago Pizzeria. A
confession was suppressed because of a Sixth Amendment violation as a result of
extended interrogations despite the petitioner’s representation by counsel. The petitioner
waived jury trial. During the ensuing bench trial, the state’s eyewitness testimony
consisted of three rival gang members and a passerby who did not see the shooter’s face
and was only able to give a general description of the perpetrator’s clothing as they fled
from the scene. Another witness testified that Petitioner had been at a party near the
scene shortly before the murder and trial counsel did not impeach her even though she
had previously told police he was not present and never said that he was until two years
\after his arrest. Trial counsel conducted almost no cross-examination of the state
witnesses and presented one alibi witness, the Petitioner’s girlfriend, but argued the
defendant was at home with his mother, girlfriend, and others. The state hammered in
closing on the lack of additional alibi witnesses and the trial court found the petitioner
guilty. Counsel’s conduct was deficient in failing to prepare and present the alibi
evidence. Although counsel met with the Petitioner’s mother numerous times, he never
inquired and never learned that the date of the alleged crime, the Petitioner’s mother had
a birthday party in her home which the defendant and nine others, including relatives and
non-relatives, attended. The court also noted that “Mapquest (a popular internet site)” put
the party an hours drive away from the murder scene. Available alibi evidence included
testimony from people at the party; testimony of an attorney, who was the mother’s
employer, and her husband, that they had called the home during the party and spoken to
the Petitioner, who answered the phone; and phone records and train tickets corroborating
the available testimony in parts. Although trial counsel asserted his trial strategy was to
attack the identification witnesses, he never attempted to interview any of them or the
state’s other witnesses. In addition, “[i]n a first-degree murder trial, it is almost
impossible to see why a lawyer would not at least have investigated the alibi witnesses
more thoroughly.” Id. at 964. The court noted that counsel may have been influenced by
his own opinion of the petitioner’s guilt, but held that this “would hardly distinguish him
from legions of defense counsel who undoubtedly do the same every day, yet who
conscientiously investigate their clients’ cases before coming to a final decision about
trial strategy.” Id. Counsel also asserted that each of the alibi witnesses could be
impeached due to some alleged bias. Even if this were true, counsel “does not seem to
have considered what impact they would have cumulatively.” Id. The court also found
prejudice, “even taking into account both the AEDPA standard or review and the fact that
the trial judge [who was also the post-conviction judge] subjectively believed that the
array of additional alibi witnesses would not have swayed his judgment.” Id. at 965. The
state’s case was “not particularly strong.”
Obviously, a trier of fact approaching the case with fresh eyes
might choose to believe the eyewitnesses and to reject the alibi
evidence, but this trier of fact never had the chance to do so.
Id. at 965.
2006: Stewart v. Wolfenbarger,,
468 F.3d 338 (6th Cir. 2006).
Under AEDPA, counsel ineffective in murder case for several reasons. Counsel failed to
provide alibi notice to the prosecution of the place of the alibi, as required by Michigan
law, which resulted in the exclusion of alibi testimony. Counsel also failed to investigate
a potential witness, who resided in a home where a prosecution witness alleged that the
defendant made death threats against the victim. This witness would likely have testified
that the defendant was not at his house on the date of the alleged threats. Prejudice found
because the failure to give proper alibi notice resulted in the trial court's exclusion of two
of the three alibi witnesses when the jury knew that others should be available and the
one that testified was impeached with prior convictions, the prosecution emphasized the
lack of other alibi witnesses during cross-examination of the one alibi witness who did
testify, and the witness not called would have cast substantial doubt on the key
prosecution witness's testimony that the defendant made death threats against the victim
shortly before the murder.
2006: Goodman v. Bertrand,,
467 F.3d 1022 (6th Cir. 2006).
Counsel ineffective in armed robbery and a felon in possession of a firearm trial for
numerous reasons. After police arrested two suspects in a getaway car, one of them
brokered a deal by implicating the petitioner. One of the robbery victims initially chose
someone else in a lineup and then chose the petitioner. The second robbery victim
selected someone else in a lineup. Following an initial mistrial due to a hung jury, the
second initial suspect agreed to testify against the petitioner in exchange for leniency and
identifying another participant, who also testified against the petitioner. In the second
trial, the eyewitness, who did not identify the defendant, did not testify for the state and
did not testify for the defense because counsel failed to subpoena her because counsel
erroneously believed that the State would call her as a witness. Because counsel could
not demonstrate that she was unavailable, the trial court excluded portions of her prior
testimony from the second trial. “There is little tactical wisdom in counsel resting on his
hands and assuming the government would help make the defense case for him.”
Counsel also opened the door on direct examination of the defendant to cross-
examination about two of the petitioner’s prior armed robbery convictions. The nature of
the prior felonies would otherwise have been excluded because counsel had stipulated to
the petitioner’s status as a convicted felon. Counsel also failed to request a limiting
charge to the jury after two of the participant witnesses testified that they had been
threatened due to their participation in the trial and the court admitted the testimony for
the limited basis of reflecting on the witnesses’ credibility by demonstrating that they had
something to lose as well as to gain by their testimony. Finally, counsel failed to object
to the prosecution’s misleading statements in questioning that one participant witness had
not been given any reason to testify and false statements in argument to bolster the
credibility of another participant witness. The state court decision was “contrary to”
clearly established federal law because the court conflated the heightened prejudice
standard of Lockhart v. Fretwell, 506 U.S. 364 (1992) with the Strickland standard by
citing to Strickland at times but repeatedly reasoning that the petitioner failed to show
that his trial was “fundamentally unfair” or “unreliable.” Even if it wasn’t contrary to
federal law, it was an unreasonable application of Strickland because the state court
weighed each error individually when the “cumulative effect” of the errors required
reversal. Rather than evaluating each error in isolation, . . . the pattern of counsel's
deficiencies must be considered in their totality.” Id. at 1030.
2006: Stanley v. Bartley,,
465 F.3d 810 (7th Cir. 2006).
Counsel ineffective in murder case for failing to interview any witnesses or prospective
witnesses. According to the state’s case, three gang members were present at the time of
the murder, including the state’s primary witness, who was a cocaine addict and
convicted felon. The petitioner’s sister also testified, following a question directing her
attention to a day and time shortly after the murder, that the petitioner told her he had
killed someone. Other testimony was only secondary. Counsel read the statements
prospective witnesses gave the police, but he did not interview anyone. He sought
instead to only cross-examine the witnesses concerning any discrepancies. Counsel was
aware of the statement of a prospective witness, who did not testify at trial, that a few
hours before the murder, the state’s primary witness and the murder victim had had a
quarrel over cocaine that had involved pushing and shoving. Counsel cross-examined the
state’s principal witness about this argument, but he denied that the argument had been
serious or had involved pushing or shoving. If counsel had interviewed the prospective
witness, he would have been aware and could have cross-examined the witness and
presented evidence that the murder victim had struck the witness with a wine bottle,
punched him, and had knocked him down. Afterwards, the witness told the murder
victim that he would catch “his ass later on.” Counsel also had failed to interview the
petitioner’s sister, who had told officers that she saw him with a gun a week before the
murder when he had been drinking, which always led him to talk about beating someone
or killing them. Counsel was aware of her statement but failed to cross-examine her at
trial about the date of the confession or the date on which she had seen her brother with
the gun. He also failed to object to the prosecutor's having led her by prefacing his
question about the confession with the statement that he was directing her attention to the
night of the murder. The state’s primary witness also testified in post-conviction that he
had been drinking the night of the murder (he had denied that at trial), that he hadn't seen
the defendant shoot the victim, and that in fact he didn't know who had the gun.
Prejudice found.
Adams
v. Bertrand,,
453 F.3d 428 (7th Cir. 2006).
Counsel ineffective in sexual assault case in which counsel cross-examined the alleged victim about
prior inconsistent statements but did not call an available defense witness, who would have testified
that he heard the alleged victim invite the alleged assailants to her room before events unfolded and
saw the alleged victim smoking a cigarette with the alleged assailants after the alleged assault.
Counsel made an unreasonable decision not to investigate the potential defense witness because
counsel was aware even before the trial that the witness "could have swung the case in his client's
favor." While counsel made minimal efforts to locate the witness, he did not pursue the matter
because he had decided to call no witnesses. In other words, counsel "committed to a predetermined
strategy without a reasonable investigation that could have produced a pivotal witness." The state
court's determination of a reasonable trial strategy in this regard was not a reasonable application
of Strickland. Prejudice found because this was a close case contingent on the alleged victim's
credibility and the available defense witness would have contradicted her in several significant
respects.
*Rolan v. Vaughn,,
445 F.3d 671 (3rd Cir. 2006)
Counsel ineffective in capital trial for failing to adequately investigate and present two witnesses who would have supported the claim of self-defense. The defendant told counsel about the witnesses and counsel notified the state that they were alibi witnesses (rather than self-defense), but never attempted to contact the two witnesses. The state did contact the witnesses. One (who died prior to post-conviction proceedings) refused to cooperate with the state and denied being an alibi witness and the other declined to be a witness against the defendant. During trial, the defendant informed the court that he had two witnesses but counsel refused to call the witnesses. Counsel’s conduct was deficient because “[f]ailure to conduct any pretrial investigation is objectively unreasonable.” Counsel’s decision was not given “the normal deference to strategic choices because it was uninformed.” Under AEDPA, the state court’s ruling that the second witness would have refused to testify on behalf of the defense was an objectively unreasonable finding of fact that was not supported by the record. The witness had stated only that he would not testify for the prosecution. Prejudice found because the state’s case was weak and this witness would have bolstered the affirmative defense and undermined the prosecution’s claims of a premeditated murder during a robbery. This witness “also shows the relevance” of the other witness, who died after trial without ever having been interviewed.
2005: Gersten v. Senkowski,
426 F.3d 588 (2nd Cir. 2005) (affirming 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 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 state presented a psychologist to testify about child sexual abuse accommodation syndrome, which corroborated the victim’s statements. The defense presented no witnesses. Analyzing the case under the AEDPA, the court found that defense counsel’s conduct was deficient. “In sexual abuse case, because of the centrality of medical testimony, the failure to consult with or call a medical expert is often indicative of ineffective assistance of counsel.” Id. at 607. Here, counsel “essentially conceded” that the physical evidence was significant without investigating when a defense medical expert could have testified that the physical evidence was not indicative of sexual abuse, which would have cast doubt on the alleged victim’s credibility. A defense psychological expert also would have testified that the prosecution’s evidence of “Child Sexual Abuse Accommodation Syndrome” lacked any scientific validity for the purpose for which the prosecution used it. Counsel had no valid strategy for this course because “counsel settled on a defense theory and cut off further investigation of other theories without having first conducted any investigation whatsoever into the possibility of challenging the prosecution’s medical or psychological evidence.” Id. at 610. Prejudice found because the state’s entire case, aside from the expert evidence that should have been challenged, rested on the credibility of the alleged victim. The state court holding was an unreasonable application of Strickland.
*Draughon v. Dretke,
427 F.3d 286 (5th Cir. 2005). .
Counsel ineffective for failing to retain a ballistics expert. The defendant was fleeing the scene of an armed robbery and shot and killed a pursuing bystander. He testified that he did not intend to harm anyone and had attempted to fire over the heads of his pursuers. The State’s evidence from another pursuing witness was that the victim had been shot from only about 10 steps away and a ballistics expert testified that the bullet recovered from the body had not ricocheted before striking the victim. Counsel’s conduct was deficient because counsel was aware that the State’s argument of intent to kill and for death was based on the witnesses’ testimony about the distance of the shot and the ballistics evidence. Prejudice found because a defense expert could have presented a strong case that the fatal bullet struck the pavement in front of the victim and was fired at a much greater distance than the witness’ testimony reflected. The prejudice increased in sentencing because the only way to counter the state’s argument was for the defendant to testify and in cross examination the prosecutor marched the defendant through the horrible details of a prior rape conviction, which the prosecutor had not elicited from the prior victim out of deference to her. Under the AEDPA, the court found that the state court had unreasonably applied Strickland.
*Daniels v. Woodford,
428 F.3d 1181 (9th Cir. 2005). .
Analyzing this capital case under pre-AEDPA standards, the court held that the defendant was constructively denied counsel due to a conflict created by a series of events related to the appointment of counsel. The defendant had previously been convicted of a bank robbery in which he had been shot nine times by police officers rendering him a paraplegic. He negotiated a plea in exchange for being permitted to remain free for six months so he could seek medical treatment and rehabilitation. Despite the agreement, the court sentenced him to 13 years and immediately remanded him to custody. On appeal, Roth, a new attorney (who had previously represented the defendant on other matters) took over and the defendant was released on bond. While on bond, he was mistakenly arrested by an officer who believed there was a warrant for him. He sued the state alleging mistreatment in jail and lack of appropriate medical care. After his appeal was denied, he failed to surrender to custody. When two officers went to his home, he shot and killed both officers. Following his arrest, the court appointed a Public Defender, who moved to substitute Roth because the PD had a conflict due to the prior representation on the robbery. The PD in that case that negotiated the plea and release left the PD’s office to join the prosecutor’s interest and the new PD assigned was unaware of the plea agreement so the judge was never informed of the deal for release. A federal habeas petition alleging IAC on the robbery was pending at the time of the murder case appointment. Nonetheless, the court refused to relieve the PD office and Roth remained in a pro bono capacity. Roth was ultimately appointed as co-counsel, but then the state moved to relieve him because he was be a witness for the state. Roth was relieved even though the defendant agreed to stipulate to the information the state sought to present through Roth and agreed to waive the conflict. After this, the PD assigned became ill and the case was reassigned to two new PD’s. Ultimately, nine months into the case and only three months prior to trial, the court relieved the PD office on its motion due to the conflict. Appointed this time was a former prosecutor who had just started in private practice and had no capital case experience and a co-counsel with only a few years under his belt. From the beginning, the defendant’s relationship with these lawyers “was strained.” The defendant informed the court that he didn’t trust his counsel and sent a letter to that effect before the trial started. The federal court held that, “[g]iven this history, it is understandable that the [defendant] would mistrust the judicial process and his counsel” and the trial court should have granted the defendant’s motion to substitute counsel. In this instance, because of the “serious conflict” between the defendant and counsel, the court presumed prejudice and found error in the trial court’s failure to inquire into the conflict even though the defendant informed the court three months prior to trial that he did not trust counsel and informed the court again prior to the beginning of the trial. The federal court also found that counsel was ineffective, particularly given counsel’s “ineffective efforts to overcome the impasse” with his client. Counsel did not inform the court of the problems, attempt to adequately advise the defendant, or even call Roth for assistance even though the defendant trusted and confided in him. Counsel also failed to conduct a thorough investigation concerning mental health. “Even though [the defendant] refused to speak to his counsel, [counsel] still had an independent duty to investigate the facts of his case and possible mitigation evidence.” Counsel retained a psychologist to do a preliminary screening of the defendant to determine whether additional evaluation was needed. He found suggestions of organic brain damage but counsel never sought further testing and did not even request funds until one week before sentencing (which was granted a month after sentencing). Counsel also did not follow up on a prior psychiatric evaluation of the defendant done after the defendant had been shot. Although the defendant had a good relationship with this expert, counsel retained a different psychiatrist, who the defendant refused to speak to. Thus, the defense was left only with the screening psychologist. In addition, counsel did not investigate or present evidence explaining the defendant’s fear of returning to custody, must of which was available, regardless of the defendant’s lack of cooperation, in police records and public records of the defendant’s law suit against the county. “Instead of seeking further mental evaluations, [the defendant’s] counsel relied on the expert witness testimony of [a] psychologist . . . , who was not qualified to testify in a capital case and whose testimony toyed with the idea that [the defendant] could be a sociopath. This alone constituted a significant error.” Id. at 1204. Counsel’s conduct was not the result of strategy “but of a communication breakdown with their client, the court’s refusal to grant a continuance, a shortage of time, and repeated problems with securing state funding.” Id. at 1206. Prejudice found during trial and sentencing. During trial, despite overwhelming evidence of guilt, the defense argued that the defendant was not the perpetrator. Counsel did not pursue the more viable mental health defense even though the defendant was diagnosed as schizophrenic by prison psychiatrists many years before the murders. The psychiatrist retained by counsel was not provided with these records and was only able to do a cursory exam because of the defendant’s lack of cooperation. If counsel had performed adequately, the evidence would have established that the defendant has post-traumatic stress disorder from his shooting, paranoid delusions, and organic brain damage. This evidence could have been used in a diminished capacity defense (which has been abolished now in California, but is still available for crimes committed prior to June 1982) or an imperfect self-defense argument, which would have defeated a first-degree murder finding. Prejudice also found in sentencing because the jury deliberated for two days, which suggests that additional mitigation may have influenced the jury. Instead, the only mitigation presented was from the screening psychologist “who was woefully unprepared and who suggested [the defendant] may be a sociopath. This alone is sufficient for a finding of prejudice.” Id. at 1210. The defendant was also prejudiced in sentencing by the implausible trial phase defense that the defendant was not the shooter. “As a result, [the defendant] faced a jury that could only be profoundly annoyed by this ludicrous defense in the face of overwhelming evidence of culpability.” Id.
Miller v. Dretke,
420 F.3d 356 (5th Cir. 2005)..
Counsel was ineffective in deadly conduct case for failing to prepare and present evidence of treating physicians’ testimony regarding the defendant’s medical and psychological problems during sentencing. The defendant had been convicted of shooting into the unoccupied home of her in-laws a year after her husband died of a drug overdose, which his family blamed the defendant for. During sentencing, she and her ex-husband testified about her previous hospital for several weeks due to head injuries suffered in a car accident, her amnesia, post-traumatic stress disorder, and severe depression, which required medication and continuous care. Her testimony that she could not recall shooting into the home or previously threatening her in-laws was ridiculed as self-serving by the prosecutor and she was sentenced to 8 years and a fine of $5,000 with no recommendation of a suspended sentence. Counsel’s conduct was deficient because he was aware of the defendant’s mental and emotional problems but did not investigated further and made no effort to call the defendant’s doctors as witnesses. This conduct was not excused by strategy because counsel admitted that he did not prepare for sentencing because he believed the defendant would accept a plea bargain offer, be acquitted, or given probation. “While [counsel] may have made reasonable tactical decisions based on the information that he had at the time, our review must focus on whether the information he possessed would have led a reasonable attorney to investigate further.” Prejudice was found because expert testimony was available that the defendant had post-traumatic stress disorder, organic brain syndrome with frontal lobe dysfunction, memory loss, including amnesia, severe anxiety, depression, and some paranoia all of which was relevant and admissible in sentencing and would have explained the defendant’s erratic, paranoid, and hostile behavior and would have supported the defendant’s testimony that she could not remember the shooting or the prior threats. The “state habeas court was objectively unreasonable in holding otherwise” on deficient conduct and prejudice.
Smith v. Dretke,
417 F.3d 438 (5th Cir. 2005)..
Counsel ineffective in murder case for failing to adequately prepare and present evidence of self-defense. Although petitioner identified four witnesses for counsel, counsel did not interview them or call them to testify to corroborate the petitioner’s testimony concerning the victim’s history of violence. Counsel did not do so because of his erroneous belief that the testimony of these witnesses was inadmissible and that only evidence known to the defendant was permitted. Counsel’s conduct was deficient because he “failed to achieve a rudimentary understanding of the well-settled law of self-defense in Texas” and because “[f]ailing to introduce evidence because of a misapprehension of the law is a classic example of deficiency of counsel.” Id. at 442. The “state court was objectively unreasonable” in finding otherwise. Prejudice was found because petitioner’s only plausible defense was that he acted in self-defense and he testified to that affect but his testimony was easily discounted and disparaged by the prosecutor in argument without corroboration. “[A]n objectively reasonable court could not conclude otherwise.” Id. at 444.
Tenny v. Dretke,
416 F.3d 404 (5th Cir. 2005)..
Counsel was ineffective in murder case for failing to adequately prepare and present evidence of self-defense. Because the state did not address the District Court’s finding of deficient conduct in its opening brief, the court held that the State had waived argument on this issue and assumed deficient conduct. Prejudice was found because the evidence counsel failed to prepare and present included evidence that the victim, the defendant’s live-in girlfriend, had threatened to kill him in the days prior to her death and even on that day, she had stabbed him within the week before, she had threatened to burn the house down, she had violent tendencies and would have “insane rages,” and she was strong enough to throw almost any grown man to the ground. In addition, a doctor, who examined the defendant in the hospital after the fight with the victim would have testified that the defendant had a black eye, his ear was cut, and he had a punctured lung from being stabbed and had “nearly lost his life.” The defendant also could have provided additional testimony that he knew of the threats made against him and that the victim had stabbed her previous husband. Counsel did not call some of these witnesses because they worked at a monastery and had been involved in a sex-abuse scandal. This did not justify not presenting the evidence, however, because their testimony was corroborated by another witness not involved in any scandal and this testimony was significant. Under the AEDPA standards, the state court’s decision was unreasonable.
*White
v. Roper,
416 F.3d 728 (8th Cir. 2005)..
Counsel was ineffective
in failing to investigate and present exculpatory testimony of two
witnesses in the guilt-or innocence phase of trial. Because the state
court did not address the merits of this claim, no deference was
given under AEDPA. The defendant was charged, along with two other
men, who did not receive a death sentence, in a drug-related murder.
While there were witnesses that connected the defendant to the other
men, no physical evidence connected the defendant to the crime scene.
The defense was that the third man was not the defendant but a man
named A.J. Constantine, who had a Jamaican accent. Two witnesses
present at the time of the murder. One of them, who said that the
defendant was not the killer, but who could not identify the third
man, was called at trial. The other, who said that the defendant
was not the killer and who also identified the killer as A.J., was
never interviewed by counsel and did not testify. Another witness,
who saw one of the co-defendants earlier in the evening looking for
drugs and arranging to go to the victim’s house, would have testified
that it was A.J. with the co-defendant at the time. She was also
never interviewed by counsel, who also did not attend the co-defendant’s
bench trial or obtain deposition transcripts from that trial until
the eve of trial. Counsel’s conduct was deficient because “counsel’s
investigation was too superficial.” Id. at 732. “In other
words, the presumption of sound trial strategy founders in this case
on the rocks of ignorance, as in Wiggins.” Id.
(The district court had also found counsel ineffective in sentencing
for failing to investigate and present mitigation, but the court
did not address this issue because Missouri appealed only the guilt-or-innocence
phase determination.)
2005: Henry
v. Poole,
409 F.3d 48 (2nd Cir. 2005)..
Counsel ineffective
in robbery case for presenting and emphasizing an alibi that was
clearly given for the wrong day. The state’s evidence was dependent
on the eyewitness testimony of the victim, who was robbed at 12:10
a.m. on August 10. The alibi presented covered “the night” of August
10 and counsel continued to argue this as an alibi even after its
flaw was clearly exposed by the state in cross-examination. Counsel’s
conduct was deficient because the date and time of the crime were
undisputed and counsel had been provided with the witness’ grand
jury testimony, which revealed that her alibi was given for the wrong
night. “The failure to recognize the difference between the beginning
and the end of the day plainly falls below any acceptable level of
professional competence.” Prejudice was found because the jury would
likely have viewed the alibi as contrived, which is commonly accepted
as evidence of a defendant’s consciousness of guilt. Thus, the state’s
case was bolstered. Under the AEDPA, the state court’s denial of
relief was an objectively unreasonable application of Strickland.
Towns
v. Smith,
395 F.3d 251 (6th Cir. 2005)
Counsel was ineffective
in first degree murder case for failing to investigate a witness
who had admitted to police, among others, that
he had been involved in the crimes of which the defendant was ultimately
convicted and that the defendant had played no part in these crimes.
The witness was arrested with the murder weapon and he admitted that
he drove the get-away car. He informed police in two statements that
the defendant’s brothers were the perpetrators. For unknown reasons,
the police focused on the defendant rather than one of the brothers.
When placed in a line-up, the single eyewitness to the murder tentatively
identified him but only on the basis of size, which was similar to
his brother. The prosecution initially intended to call the driver
as a witness but then changed his mind at the last minute. Defense
counsel insisted that he have the opportunity to interview him so the
driver was held overnight in the local jail for that purpose. Counsel
never interviewed him but then informed the court that he would not
be called as a defense witness. Counsel’s conduct was objectively unreasonable
because “counsel could not have evaluated or weighed the risks and
benefits of calling [the driver] as a defense witness without so much
as asking [him] what he would say if called.” Prejudice was found because,
if counsel had investigated, the driver would have testified that the
defendant had nothing to do with the crimes. Prejudice was also apparent
because of the notable weaknesses in the prosecution’s case. These
findings were made even though the driver refused to testify in post-conviction.
He spoke to counsel and his investigator, who both testified, but refused
to testify without immunity, which the government inexplicably refused
despite having never charged the driver. At the time of trial though,
the driver was not worried about incriminating himself because his
attorney had secured a favorable immunity deal.
*Jacobs
v. Horn,
395 F.3d 92 (3rd Cir. 2005)
Counsel was ineffective
for failing to adequately investigate, prepare, and present mental
health evidence in support of his diminished capacity
defense during the trial. Counsel consulted with a psychiatrist, who
reported orally that there was no evidence of a major mental illness.
Even without expert testimony, counsel presented a heat of passion
and diminished capacity defense asserting that the defendant was incapable
of forming a specific intent to kill given his mental state at the
time. The only evidence presented in support of this theory was the
defendant’s own testimony. Counsel’s conduct was deficient because
counsel failed to inform his expert that the state was seeking the
death penalty and failed to provide the expert with any background
information concerning the crimes or the defendant’s history. “Counsel
did not question any of [the defendant’s] family members or friends
regarding his childhood, background, or mental health history, or obtain
any medical records demonstrating mental deficiencies.” When counsel
made the decision not to investigate further, counsel knew or should
have known from his interactions with the defendant that “he should
initiate some investigation ‘of a psychological or psychiatric nature.’”
He also knew that the defendant had no criminal history or history
of violence and yet admitted to stabbing his girlfriend more than 200
times. “In light of all that was known or made available to counsel,
. . . counsel did not exercise reasonable professional judgment in
failing to investigate further. . . .” If counsel had adequately performed,
the evidence would have established that the defendant has mild mental
retardation, organic brain damage, and schizoid personality disorder.
He was also a witness and victim of abuse and suffered from drug and
alcohol addictions. The combination of these factors substantially
diminished his capacity to formulate the specific intent to kill. The
court also noted that this was not a case where counsel made a strategic
decision not to investigate and present this evidence. “The question
raised here is whether counsel was ineffective by failing to investigate
and discover evidence to support the defense he pursued.” The state
court’s decision was unreasonable because the court found that counsel
made a reasonable decision not to investigate further after receiving
the psychiatrist’s report while disregarding counsel’s failure to provide
the expert “with the necessary information to conduct a proper evaluation.”
This was an unreasonable application of Strickland because
“Strickland mandates that counsel’s decision ‘must
be directly assessed for reasonablenss in all the circumstances.’”
(quoting Strickland v. Washington, 466
U.S. 668, 691 (1984)).
2004:
Earls v. McCaughtry,
379 F.3d 489 (7th Cir. 2004)
Counsel ineffective in sexual
assault on child case for failing to object to
testimony from an expert that she believed the alleged victim and
for failing to redact a videotape of the expert interviewing the child
when the videotape also included statements that the expert believed
the
child. Prejudice found because the child’s credibility was the key issue
in the trial and there were no corroborating witnesses even though
numerous
other people were present at the time of the alleged acts
and no physical evidence.
*
Soffar v. Dretke,
368 F.3d 441
amended, 391 F.3d 703 (5th Cir. 2004 )
Counsel ineffective in capital trial for failing to interview living
victim, who was the only eyewitness to the crimes, and failing to
consult with a ballistics expert. The basic facts are that four people
were shot in a bowling alley armed robbery and shooting and only one
of
these people lived. The surviving victim made a number of statements,
including under hypnosis, describing the events and the lone assailant.
After weeks with no suspect, the defendant, who had a history of
confessing to crimes that he did not commit, was arrested on other
charges and confessed in a number of statements. He initially said that
he was the getaway driver for the assailant and ultimately said that
his
"accomplice" shot two of the victims and then the defendant shot the
last two. Analyzing the case under pre-AEDPA amendments, the court found
that counsel’s conduct was deficient in failing to interview the
surviving victim even though counsel was aware that there were
significant discrepancies between his statements and the defendant’s
"confession" and the victim had been unable to identify the defendant
or his "accomplice" in a pretrial lineup. Counsel was also ineffective
for failing to retain a ballistics expert, who could have established
that
the crime scene was consistent with the surviving victim’s statements
and inconsistent with the defendant’s "confession." Counsel’s conduct
was inexplicable because the sole defense theory at trial was that the
defendant’s "confession" was false and should not be believed.
Although the state argued that there were potential pitfalls if counsel
had called the surviving victim to testify, the court held that "an
actual failure to investigate cannot be excused by a hypothetical decision
not to use its unknown results." Prejudice was found because the state’s
case was "predominantly" based on the defendant’s "confession," which
would have been contradicted by the surviving victim and the ballistics
evidence if
counsel had adequately investigated.
Harris v. Cotton,
365 F.3d 552 (7th Cir. 2004)
Counsel ineffective in murder case for failing to obtain a toxicology
report that showed that the victim was under the influence of cocaine
and alcohol at the time of his death. Counsel’s conduct was deficient
because the sole defense at trial was self-defense and counsel was
aware
that the toxicology report existed but did not obtain it solely due to
"oversight," even though he knew that the victim’s behavior prior to
the shooting was "absolutely critical" to the defense. Prejudice was
found because counsel attempted to question the state’s pathologist
about the
victim’s alcohol abuse but was prohibited from doing so because there
was no evidence supporting this line of questioning. Prejudice also
found because "[f]rom the perspective of a defense attorney, an
affirmative defense of self-defense against a drunk and cocaine-high
victim stands a better chance than the same defense against a
stone-cold-sober victim." Id. at 556. Analyzing the case under
the AEDPA, the court held that the state court’s decision was an
unreasonable application of Strickland
because the state court unreasonably applied the "reasonable probability" standard
in finding no prejudice.
McFarland v. Yukins,
356 F.3d 688 (6th Cir. 2004)
Drug conviction reversed due to the trial court’s failure
to adequately inquire into counsel’s conflict, counsel’s actual conflict
of interest that adversely
effected his performance, and trial counsel’s ineffectiveness in failing
to present an adequate defense. The petitioner and her daughter were
charged as co-defendants where drugs were found during a search of the
home they shared. Both the defendant and her daughter were represented
by the same retained attorney. On the day of the scheduled bench trial,
counsel informed the court that the defendant and co-defendant had
concerns about sharing the same attorney and that the evidence might
well raise antagonistic defenses. The petitioner also informed the court
that she believed she needed a separate attorney and that she had
attempted to hire a different attorney but could not afford one. Rather
than appoint a second attorney, the court severed the cases and ordered
that they be tried in front of different judges. The trials proceeded
at pretty much the same time. In the co-defendant’s trial, the state
presented evidence that the bedroom where most of the drugs were found
belonged to the co-defendant. A caller to the crack hotline also made
complaints about a woman with the co-defendant’s name. A confidential
informant also identified the co-defendant as the person discussing
drugs. During the petitioner’s trial, the state did not present any
evidence that the co-defendant lived in the house or in the bedroom
where most of the drugs were found and did not present any evidence that
the crack hotline telephone complaints and the confidential informant
had both identified the co-defendant. Defense counsel did not bring any
of this information out in cross-examination or present any evidence on
its own. In closing argument, the defense argued only that the drugs
belonged to one of two men that were also initially suspected. One of
the men was present at the time of the search, but did not have a key
to the locked bedroom where most of the drugs were found. The other
man was
not present at the time of the search and was connected to the house
only by some paperwork identifying him as the co-defendant’s husband.
Both the defendant and co-defendant were convicted. They were
represented on appeal by a different attorney but still had the same
attorney between them. Appellate counsel did not raise any issue
concerning ineffective assistance of counsel or a conflict of interest.
In state post-conviction, the petitioner asserted ineffectiveness of
trial counsel and of appellate counsel for failing to argue that trial
counsel was ineffective but the state court denied on procedural grounds
that the petitioner did not show good cause for a failure to assert the
issue on direct appeal as required in state court. The court first found
that the petitioner was entitled to relief under Holloway v.
Arkansas because the petitioner objected to the joint representation
and the trial court did not resolve the issue. Independent of the trial
court’s failure to inquire, reversal was also required because counsel
had an actual conflict of interest that adversely affected
representation. Finally, the court also found that counsel was
ineffective under the standard of Strickland v. Washington
because counsel failed to present a strong argument in petitioner’s case
that the co-defendant actually possessed the drugs. Prejudice was found
under Stickland because the trial judge in petitioner’s case
mentioned her misgivings about the sufficiency of the evidence
connecting the petitioner to the drugs. If counsel had adequately
presented the evidence pointing to the co-defendant, trial court may
well have ruled differently in the case. The court found that, with
respect to all three of these arguments, the petitioner would have won
on direct appeal had appellate counsel adequately raised the issues.
Appellate counsel was ineffective in failing to assert these issues,
which were clearly stronger than the arguments made by counsel on direct
appeal. The conflict issue was an obvious one, and the petitioner was
entitled to automatic reversal under the rule in Holloway.
Because appellate counsel also represented the co-defendant, however,
appellate counsel also had a conflict of interest. The court found
that
appellate counsel’s ineffectiveness was the cause for petitioner’s
failure to assert ineffectiveness of trial counsel on appeal. Thus, the
petitioner had established cause and prejudice for failing to assert
these issues on appeal. Because the state court never ruled on the
actual conflict of interest and the ineffective assistance claim under
Strickland, the court reviewed these claims de novo. The
only state court decision on the Holloway claim was the trial court’s
decision. Under the AEDPA, the court found that the trial court’s
actions contradicted the clearly established precedent of Holloway
v. Arkansas because the state court confronted a set of facts that
were materially indistinguishable from Holloway
and yet arrived at a different result.
Lin v. Ashcroft
356
F.3d 1027 (9th Cir. 2004).
Counsel was ineffective in INS hearing for failing to
collect available testimony and documentary evidence or to otherwise
prepare for the hearing, failing to appear at the hearing other than
telephonically, and failing to present legal or factual framework
for
asylum claims in the hearing or on appeal. The alien was fourteen years
old and did not speak English. Counsel never met with him and had
little
or no contact with him prior to the hearing. Counsel did not investigate
or prepare the basics in terms of factual issues. Counsel failed
to even
appear at the hearing other than by telephone and offered only the
alien’s unprepared testimony and conclusory legal arguments. The alien
exercised his statutory right to counsel at no expense to the
government. Thus, the claim of ineffective assistance of counsel falls
under the Fifth Amendment right to due process. Counsel’s actions
in
this case were deficient under the "low bar" of the Strickland standard.
Prejudice found because the alien did have several plausible claims
for refugee status. While
counsel presented some of the factual basis for these claims the
presentation of a few bare facts, without documentation and without the
factual context that gives them meaning or the analytical context that
gives them their power, does not suffice to place the critical issues
squarely before the tribunal that must consider
them.
2003:
Riley v. Payne,
352 F.3d 1313 (9th Cir. 2003)
Counsel was ineffective in assault with a deadly weapon
case for failing to interview and present the testimony of an
eyewitness. Two state witnesses testified that the defendant shot the
victim without prompting. The defendant testified that he shot the
victim only in self-defense. There was one other person present during
the shooting, who was the defendant’s associate, but he was not
interviewed or called as a witness. Counsel’s conduct was deficient in
failing to interview the eyewitness. Prejudice found because the
eyewitness was a critical witness to corroborate the defendant’s
testimony because the witness would have testified that the victim
threatened the defendant prior to the defendant pulling out his gun.
The witness also would have testified that, although he ran and
did not see
the shooting, shortly after the shooting the defendant made an excited
utterance to him that the victim tried to shoot him. Under the AEDPA,
the court held that the state court determination was an unreasonable
application of Stickland. The
state court’s determination that the witness’s testimony would have been
in consequential was unreasonable. The court also rejected as
unreasonable the state court speculation that counsel may have had a
tactical reason for not presenting the witness because counsel
had never
interviewed the witness in order to make such an informed tactical
decision.
Anderson v. Johnson
338 F.3d 382
(5th Cir. 2003).
Counsel was ineffective in burglary case for failing
to interview and present the testimony of an eyewitness that would
have
testified in the defendant’s favor. During the crime, the victim, her
young daughter, and the victim’s boyfriend observed the suspect.
The
victim was unable to identify the suspect until three years later when
she heard the defendant talking and then recognized him. She and
her
daughter then identified him in photo line-ups. The first trial ended
with a hung jury. During the second trial, defense counsel
cross-examined these witnesses and pointed out that the victim’s
boyfriend was not called to testify, but did not interview the boyfriend
or present him as a defense witness. In state post-conviction, the
defendant argued that counsel was ineffective and specifically stated
that the boyfriend would have testified that the defendant was not
the
suspect. During federal habeas proceedings, the defendant presented the
same claim and also offered, for the first time, an affidavit from
the
victim’s boyfriend. The District Court granted relief. The Fifth Circuit
first held that the claim was properly exhausted in state court,
despite
the defendant’s failure to present the affidavit there, because the
defendant had plead all of the facts in detail. The submission of the
affidavit in federal court only supplemented the record but did
not
change the facts or legal arguments that were made in state court. The
court then held that counsel’s conduct was deficient because counsel,
who was disbarred after trial, conducted no investigation and instead
relied only on the state’s discovery, which did not reveal that
the
victim’s boyfriend affirmatively stated that the defendant was not the
perpetrator. Since there were only two adult eyewitnesses, a reasonable
attorney would have made some effort to investigate. The court also
found that counsel’s failure to investigate was not a reasoned decision,
but was "likely the result of either indolence or incompetence."
Id. at ___. Counsel’s failure also could not be excused based
on a belief that the witness would not have been credible. "In a claim
grounded in failure to interview, the ‘quality’ and potential
persuasiveness of the eyewitness is largely immaterial." Id. at
___. Prejudice was found because the state’s case was grounded only
on
the identification of the victim and her daughter made three years after
the crime. There was no other evidence connecting the defendant to the
crimes. The court also considered the fact that the first jury to hear
the same evidence hung. Finally, the court found, applying the AEDPA
standards, that the state court’s ultimate legal conclusion was an
objectively unreasonable application of Strickland.
Matthews v. Abramajtys
319 F.3d 780 (6th Cir. 2003)
(affirming 92 F. Supp. 2d 615 (E.D. Mich. 2000)).
Counsel ineffective in felony murder case for numerous
reasons. The state’s evidence showed that three men were seen fleeing
the scene of a robbery and murder and that circumstantial evidence,
including a ring from one of the victims, pointed to the petitioner.
Counsel’s conduct was deficient because counsel failed to present
the
defendant’s alibi witnesses of which he was aware and failed to present
evidence of which he was aware that a group of children that had
observed the fleeing men gave descriptions inconsistent with the
defendant who was 6'4" tall. Some of the children had also been shown
a photo line-up with the petitioner included and affirmatively stated
that
none of the men in the line-up were seen fleeing from the murder scene.
Instead of presenting this evidence, counsel simply made a "rambling
closing argument in favor of reasonable doubt." Id. at 786.
Prejudice found where the state’s evidence was not overwhelming and
the
trial court had informed counsel in ruling on the motion for directed
verdict that he believed the evidence was sufficient to convict the
defendant. Nonetheless, even though it was a bench trial, counsel did
not present the available evidence in defense.
*Alcala v.
Woodford
334 F.3d 862 (9th Cir.
2003).
Counsel ineffective in capital case for failing to
adequately present alibi evidence. The underlying crime involved the
disappearance of a twelve-year old girl, whose body was found several
weeks later 50 miles away. The evidence connecting the defendant was
only circumstantial identifications that put him in the area where
the
victim disappeared taking pictures of people on the beach. The girl with
the victim on the afternoon of her disappearance did not identify
the
defendant as the man that took their pictures and an adult that was
present then could not identify the defendant in photo lineups but then
positively identified him seven years later during trial. The only
evidence directly connecting the defendant to the crime was a jailhouse
informant and a discredited forest service worker, who was interviewed
twelve times prior to trial and initially provided nothing but gradually
progressed up to placing the defendant with the body. During the
second
trial, following reversal, this witness denied even testifying in the
first trial. During trial, the defense presented a number of alibi
witnesses to establish that the defendant had been at a theme park
seeking freelance photography work at the time when the one eyewitness
placed him taking pictures of the victim shortly before her
disappearance. While the witnesses confirmed that he had been at the
park, none of them was able to give an actual date or time for the
alibi. In federal court, the defendant presented testimony from another
park employee, who had actual business records and her own personal
calendar, who could testify that the defendant was at the park during
the pertinent time and that it was, therefore, impossible for him
to
have committed the crime. The District Court granted relief and the
state appealed. Applying the law prior to the AEDPA (because the federal
habeas petition was filed in 1994), the court found counsel ineffective
for failing to present the alibi witness and records that could
establish the date and time of the alibi. Counsel’s conduct was
deficient because this was by far the strongest alibi evidence
available, counsel had listed this witness and subpoenaed her as a trial
witness prior to trial and could not remember why she was not called,
and the witness had told a defense investigator that her personal
calendar would support the alibi. The court rejected the state’s
argument that counsel made a strategic decision not to present the
witness "because it would have us find a strategic basis . . . in the
absence of any evidence" and because the court would not "assume facts
not in the record in order to manufacture a reasonable strategic
decision." Id. at ___. Moreover, even if counsel had a strategic
reason not to call this witness, it would have been an unreasonable
strategy. Here, "counsel made a sound strategic choice to present an
alibi defense," but did not adequately present the evidence supporting
the chosen defense theory. Id. at ___. Prejudice was found
because the state’s case "was far from compelling" and was entirely
circumstantial. Counsel’s failure at trial also harmed the credibility
of the alibi evidence that was presented because trial counsel told
the
jurors that they would establish an alibi and then "utterly failed to
do so, harming the credibility of [the] entire defense." Id. at
___.
*Cargle v. Mullin
317 F.3d
1196 (10th Cir. 2003).
Counsel ineffective in capital trial and sentencing for
numerous reasons. The petitioner was convicted in connection with
the
shooting of two people in a drug transaction. The petitioner and two
friends had purchased marijuana and gone to a party. They were
dissatisfied with the quality of the marijuana and returned to get their
money. The drug sellers complied and the transaction was not
confrontational. The petitioner and one of his friends (both nineteen)
were prepared to leave when their older friend (twenty-four) suddenly
inexplicably opened fire and killed the man. One of the participants
then killed the woman that was present. In a statement to police,
petitioner denied that he was the shooter. During trial, however, the
remaining immunized accomplice testified that petitioner had shot
the
woman. A jailhouse snitch also testified that petitioner admitted
shooting the woman. There was no other evidence on this issue, except
the defense called one brief witness who testified that, contrary
to his
trial testimony, the immunized accomplice had told the witness that the
original shooter had killed both the man and the woman. During
sentencing, counsel presented only one witness in mitigation. The
defendant’s pastor provided "brief, unprepared, personally remote, and
fairly generic testimony." Id. at 1210. Analyzing the case under
the AEDPA (but for the most part finding for a variety of reasons that
no deference was required under 2254(d)), the court found that counsel’s
conduct was deficient. Counsel had been retained by the petitioner’s
family. Unbeknownst to them he was embroiled in bankruptcy and ethical
and criminal charges for which he was ultimately convicted and
disbarred. "The strain of these overlapping pressures on counsel" was
evident because he spent less than one hour with petitioner prior to
trial. Id. at 1209-10. He also talked with the petitioner’s
parents only generally and made no effort to explain the process to them
or to gather information from them. "Counsel thus essentially foreclosed
any helpful disclosures from those most likely to know, first-hand,
the
pertinent facts." Id. at 1210. As a result, none of these
witnesses testified. Counsel obtained the one trial witness because the
witness contacted him and offered assistance. He obtained the one
sentencing witness as "an after-thought." Id. He waived opening.
After the state’s case in aggravation was completed, "counsel turned
to the courtroom crowd and secured his only witness when the pastor
at
petitioner’s church offered to take the stand." Id. Counsel then
actively deterred petitioner’s parents from testifying and arguably
lied
to the trial court, outside petitioner’s presence, to state that
petitioner did not desire to testify. Counsel’s conduct was deficient
during the trial for failing to adequate challenge the state’s case,
which relieved almost exclusively on an immunized accomplice and a
jailhouse snitch. If counsel had conducted "[e]ven a rudimentary
investigation," counsel would have discovered five witnesses that would
have testified that the accomplice had made prior statements claiming
to
have killed one or both of the victims himself and that he had indicated
he would not testify if petitioner’s parents would pay him. Counsel
could also have discovered and presented evidence that the jailhouse
informant had told his wife that petitioner had actually told him that
he did not kill anyone. "There is no plausible reason other than
counsel’s self-inflicted ignorance" for not presenting this evidence.
Id. at 1214. Counsel also failed to impeach the immunized
accomplice with evidence that, aside from immunity in exchange for
testifying here, the accomplice was also promised that he would not have
a deferred sentence of up to 20 years for a prior assault brought up.
Counsel even conceded by failing to respond to the state’s motion that
the deferred sentence would not be brought up in examination. Counsel
also failed to impeach a police officer that attempted to bolster the
snitch’s testimony. The officer testified that he had no knowledge of
the facts before the snitch approached him. If counsel had adequately
cross-examined the officer, however, the jury would have heard that
the
officer was the chief investigator and swore out an arrest warrant the
same day the snitch approached him based on the snitch but also on a
witness that had provided significant details weeks before. While the
officer "himself did not play an important role in the state’s case.
. . , this impeachment would have shown the jury that even the police
testimony in this case may not be believed. . . ." Id. at 1216.
Counsel was also ineffective during the trial for suggesting that his
client had lied to the police about the significance of a hand injury
several months prior to the shooting. While counsel could chose not
to
press this as a defense, counsel violated his duty of loyalty in calling
his client a liar in a case that was all about credibility. Prejudice
was found in the trial due to the cumulative effect of these errors.
Counsel also failed to object to instances of prosecutorial misconduct.
Specifically counsel failed to object to the state’s argument that they
only prosecuted guilty people, and that the police and prosecutor had
corroborated the accomplice’s immunized testimony with evidence unknown
to the jury (implied in argument and in the immunity agreement admitted
in evidence). While the court did not find reversal was required due
to improper arguments by the state, these errors were considered in
the
cumulative prejudice analysis because
any effort by the State to deflect responsibility for
prosecutorial misconduct or to discount the resultant prejudice
by
blaming defense counsel for not objecting to/curing the errors would
support petitioner’s case for relief in connection with his
associated allegations of ineffective
assistance.
Id. at 1217. The court that a
cumulative error analysis considering the ineffectiveness and state
misconduct claims was appropriate and that the analysis was
"unconstrained by the deference limitations in § 2254(d) because the
[state court] did not conduct the appropriate cumulative error review."
Id. at 1220. Finding that "these errors had an inherent
synergistic effect which pertained to the two absolutely critical
witnesses for the State," the court found cumulative prejudice.
Id. at 1221. The court also applied the "commonsense notion that
sentencing proceedings may be affected by errors in the preceding guilt
phase." Id. at 1208. Thus, the court applied cumulative error
in sentencing that considered trial errors "so long as the prejudicial
effect of the latter influenced the jury’s determination of sentence."
Id. With respect to sentencing, if counsel had adequately
investigated and presented the evidence, the jury would have heard that
petitioner was born prematurely when his mother was only fifteen. He
had physical and learning problems and moved frequently as a child. His
abusive father used drugs and was rarely around. On the positive side,
his mother loved him and would have asked the jury to spare his life.
Petitioner also would have expressed remorse for the murders (although
maintaining that he did not personally shoot the victims) and would
have
asked the jury for mercy for his family’s sake. The court found that
"counsel’s gross mishandling of the penalty-phase defense left his
client’s fate to jurors who could only wonder why neither the man nor
any member of his family would step up to explain, in personal human
terms, why his life should be spared notwithstanding the reprehensible
conduct of which he had been found guilty." Id. at 1211.
Prejudice was found. The court also found state misconduct due to the
prosecutor’s argument that suggested that the jurors were part of "the
team" with the police and prosecutors instead of impartial arbiters.
This error was considered in the cumulative prejudice analysis.
2002: Catalan v. Cockrell
315 F.3d
491 (5th Cir.
2002)
Counsel ineffective in an aggravated assault case for
several reasons. The defendant and his brother were jointly charged
and
represented by the same counsel until the day of trial when the trial
court concerned about a conflict of interest appointed independent
counsel for the defendant. New counsel did not request the ten day
preparation period allowed for appointed counsel under Texas law.
Instead, he consulted with the defendant and conflicted counsel for less
than an hour and proceeded to trial. Because he had conducted no
investigation and was unaware of the facts of the case, he failed to
impeach the alleged victim on cross examination with a prior
inconsistent statement that the defendant was a mere bystander during
the assault. During the trial, counsel also relied completely on
the
conflicted counsel. Counsel’s performance was both deficient and
prejudicial. In the analysis under the AEDPA, the court noted that the
Texas court did not refer to Strickland at all in denying
relief. The court assumed though that the Texas court decision
was based on
Strickland because the parties had relied on Strickland in
their briefs. The court found that the Texas court application of
Strickland was objectively
unreasonable.
Luna v.
Cambra
306 F.3d 954, amended, 311 F.3d 928 (9th Cir. 2002)
Counsel ineffective in attempted murder and robbery case
for failing to interview and subpoena two alibi witnesses and one
exonerating
witness. The victim was attacked in a park and stabbed numerous times.
While he was in the intensive care unit of the hospital he was shown
a
photo lineup and he identified the defendant and co-defendant. At trial
the victim identified the defendant as the man who stabbed him.
The
victim admitted, however, that he had consumed five beers in the hours
preceding the attack and was not wearing his prescription eyeglasses
and
the lighting was poor in the park. There was no physical evidence
linking the defendant to the crimes. The defendant testified that he
was home sleeping at the time of the crime. Counsel’s conduct was
deficient
because the defendant had informed counsel of the availability of his
mother and sister to testify as alibi witnesses and had also informed
counsel that another witness could exonerate him. Prejudice found
because the defendant’s mother and sister could have testified that the
defendant went to sleep at home the night before and woke up at
home the
next morning and if he had gotten up in the middle of the night (the
crime was at 3:00 a.m.) they would have heard him because the sister
slept in the room with the defendant and the mother slept in the front
room of the one bedroom house. There was a reasonable probability
that
if the jurors had heard this testimony they would have entertained a
reasonable doubt concerning guilt. The defendant was also prejudiced
because if counsel had contacted the exonerating witness counsel could
have obtained a statement much like the witness’ declaration in
federal
habeas that stated that the defendant was innocent and did not
participate in the crime which had in fact been committed by witness
and
another. Prejudice was also clear because the prosecution case was
relatively weak. Under AEDPA, the court found that the state court’s
denial was objectively unreasonable in light of the Supreme Court
decision in Strickland.
Brown v. Sterns
304 F.3d 677 (7th Cir.
2002)
Counsel ineffective in armed robbery
case for failing to investigate and present evidence of the petitioner’s
history of mental illness. The petitioner had been diagnosed and treated
for two years while in prior confinement for chronic schizophrenia.
After his release from confinement he applied for social security
disability benefits and was again diagnosed as suffering from chronic
schizophrenia. Prior to trial, counsel learned from petitioner’s
previous attorney that petitioner had been treated while incarcerated
with psychotropic medication. Counsel sought a continuance, sought a
court appointed evaluation, and subpoenaed the prior medical records.
Counsel did not however, follow up on the subpoena and did not provide
the available records to the court appointed examiners. Counsel also
failed to advise the court appointed doctors of the history of mental
illness. While the petitioner did inform the court appointed doctors
of his history of mental illness, the doctors did not investigate and
dismissed the petitioner’s claims as malingering and found that he was
competent to proceed. Prior to trial, substitute counsel took over
representation but was not informed of the history of mental illness
by the prior attorney. Petitioner testified in his bench trial that he
attacked the victim with a knife because he believed the victim was
following him. Following an outburst by the petitioner during the trial,
the substitute attorney moved for a psychiatric examination prior to
sentencing but the motion was never ruled on. During sentencing, the
trial court found the petitioner was fully responsible for his actions
and sentenced him to the maximum sentence of 30 years. The state court
in reviewing the issue relied on the affidavits of the two attorneys
that they had no information that required investigation into the
petitioner’s mental state. The state court also found that there was
no prejudice because there was no evidence that the court appointed
doctors
would have reached a different conclusion if the prior medical record
had been made available. The state court also found no prejudice in
failing to raise an insanity defense or in failing to argue the history
of mental illness in sentencing. The Seventh Circuit held that the
state’s courts findings were unreasonable in light of the facts
presented in the case. The trial attorneys affidavits were not credible
and contradicted statements made prior to trial in requesting the court
appointed evaluation and issuing the subpoena for medical records, which
indicated a strategic decision to investigate the psychiatric condition.
Counsel failed to complete the investigation. Prejudice found in failing
to provide the records to the court appointed examiners because "past
available psychiatric records [are] an essential part of an evaluation
of the defendant’s competence to stand trial." The court ruled that the
court appointed examiner conducted only a single interview and did not
have the proper records or information from any family members. "We are
convinced that the glaring absence of even a minimal investigation into
Brown’s medical history clearly affected the validity and thus the
utility of the finding of the psychiatric institute doctors." The court
was convinced that the lack of information concerning the medical
history rendered the opinions of the court appointed doctors "useless
and unreliable." Prejudice was found in the failure to request and to
present the evidence of mental illness, which precluded the defendant
from receiving a proper competence hearing, raising an insanity defense,
or arguing for a more lenient sentence in light of his mental
illness.
White v. Godinez
301
F.3d 796 (7th Cir. 2002)
Under pre-AEDPA analysis, counsel was ineffective in murder case for failing
to adequately consult with petitioner and failing to call his alleged accomplice were to testify.
Petitioner and his accomplice a charged with murder and conspiracy
for allegedly hiring two men to kill the victims. The state’s primary
witness, one of the actual killers, testified that the victims were
competitors to a prostitution business run by petitioner and his
girlfriend accomplice. The defense theory at trial was that petitioner’s
brother actually hired the killers. This was consistent with the
original statement to police by a state witness. The court found that
counsel’s conduct was deficient because counsel met with the defendant
once for ten minutes only to discuss fees and then the night before
trial met with the defendant for only twenty minutes. Counsel never
discussed trial strategy or possible defense witnesses and did not call
either the accomplice or the petitioner to testify. The accomplice
would have testified that she and the petitioner were at home on the night
of the murder and that the actual killers took guns and a rental
car from their home without their knowledge. Counsel’s conduct was deficient
because counsel failed to make the reasonable decision not to explore
the possibility of calling the witnesses to testify or to explore
the alternative defense that would have been supported by the testimony.
Prejudice found because the inadequate preparation and investigation
led to the decision to mount an implausible defense that the petitioner’s
brother contracted the killers and counsel knew from discovery material
that the brother had an alibi and that another state’s witness would
corroborate testimony that it was the petitioner and not his brother
who met with killers on the night of the murder.
Rios v. Rocha
299 F.3d
796 (9th Cir. 2002)
Counsel ineffective in second degree murder case
for failing to adequately investigate and present a defense of
misidentification. The shooting occurred outside a pizza and deli and
there were between fifty and two hundred people at that location
(many
of whom were outside when the shots were fired). The people present
included members of both the "Crips" and the "Bloods," rival street
gangs. Earlier in the evening the victim had punched the defendant.
Witnesses also observed the victim taunting members of his rival gang,
waiving a gun around, threatening some people, and physically attacking
a number of others. The victim was ultimately shot five times and the
state presented testimony of five eye witnesses. The co-defendant
presented a misidentification defense and was acquitted. The defendant
presented the affirmative defense of unconsciousness due to a concussion
from his fight with the victim earlier. The state did not present any
physical evidence linking the defendant to the crime and did not assert
that the defendant was a member of a gang. Counsel’s conduct was
deficient because counsel decided prior to the preliminary hearing to
rely on the unconsciousness defense. At the time he had done nothing
but
read the police reports and psychological report. He had also spoken
to only one witness. Counsel "had insufficient facts on which to make
any reasonable assumption on which to base any reasonable decision as
to the
appropriate defense or defenses to be offered." Id. at 806. Counsel’s
decision, prior to the pulmonary hearing was "patently unreasonable." Id. at 807. The court rejected the state’s
argument that counsel’s conduct was reasonable because counsel relied
on investigative reports prepared by the investigator for the co-defendant.
The court found that counsel did not have access to these documents at
the time the decision not to present the misidentification defense was
made. In addition, the court found that counsel could not reasonably
rely solely on material gathered for the co-defendant any more than
he
could reasonably rely Solely on the police reports. The court also
rejected the state’s argument counsel that made a choice because of
insufficient funds to investigate. The court held "reluctance to ask
for public funds to hire his own investigator was not a proper reason
for
failing to pursue an initial investigation into potentially feasible
defenses." Id. at 808.
Prejudice found because the testimony of the states eyewitness was
both inconsistent and severely impeached. There was also substantial
evidence about other possible suspects, a number of whom had shot at
the victim earlier and had a reason to want to hurt him. The fact that
the
jury acquitted the co-defendant also showed that the state did not have
a strong case. The court found that the defense presented was not only
based on a failure to investigate but also inadequate information which
in all likelihood contributed to the defendant’s conviction. The choice
to present the unconsciousness defense was therefore an unreasonable
choice. A defense of unconsciousness may well have communicated to the
jury that even the defendant thought he might have shot the victim. If
counsel had adequately investigated, five witnesses could have provided
exculpatory testimony. All of these witness were close friends of the
victim and one of them was a fellow gang member.
Avila v. Galaza
297 F.3d
911 (9th Cir. 2002)
Counsel ineffective in attempted murder case for
failing to adequately investigate and present evidence that petitioners’
brother was the shooter. Petitioner and his brother were both were
associated with a gang attending a barbecue at a park. The shooting
occurred in this area . The defendant was initially represented by
counsel who also represented his brother in a separate case. The
investigator was told by three people that it was the brother and not
the petitioner that shot the victim. The brother also confessed
to
counsel and to the investigator and counsel withdrew due to conflict.
Replacement counsel was appointed prior to trial. Counsel became
convinced that the defendant’s brother was the shooter and even told
the prosecutor during plea negations that the brother was probably
the
shooter. Nonetheless, counsel conducted no investigation to substantiate
his belief because he assumed that the petitioner and his mother
did not
want him to implicate the brother at trial. Counsel also did not
investigate because he believed that the brother would admit that he
was the shooter during the trial. Counsel did not call the brother
as a
witness. Following trial, counsel filed a motion for new trial because
he believed he had made a mistake in not going after the brother.
The
court rejected the state court findings because the court did not cite
any law, much less controlling Supreme Court precedent, and did
not
apply either prong of Strickland. The
decision was thus contrary to federal law. Counsel’s conduct was
deficient because he failed to investigate or include evidence that the
brother was the shooter. Regardless of any sense of obligation to the
client’s family, counsel had no choice but to perform his duty to his
client. Prejudice found because the prosecution’s case rested on
identification witnesses whose testimony was not rock solid. If counsel
had adequately investigated, eleven witnesses could have testified that
the petitioner was not in the area of the shooting. Finally, if counsel
had adequately investigated, the brother might have come forward or
at
least made an inculpatory statement that could have been used against
him at trial.
*Jennings v. Woodford
290
F.3d 1006 (9th Cir.
2002)
Counsel was ineffective for failure
to pursue mental health and drug abuse issues during trial and instead
presenting a weak alibi defense. Counsel’s conduct was deficient,
even
though counsel had available a preliminary two-hour examination by a
psychiatrist, because counsel decided to present the weak alibi
without
sufficient investigation when counsel was aware that the defendant was
a long-term methamphetamine addict who had used the night of the
homicide;
the defendant had attempted suicide; the defendant had been diagnosed
as a schizophrenic and had been involuntarily committed for a psychiatric
evaluation; and that counsel’s paralegal, friends, and co-workers
believed there was something "seriously wrong" with the defendant.
Prejudice found because a reasonable investigation would have revealed
a family history of paranoid schizophrenia and severe alcoholism; physical
abuse; sexual abuse; and a pattern of self-mutilation. Investigation
would also have revealed that – at least in part due to drug use – the
defendant was experiencing psychotic symptoms including hallucinations,
delusions, memory gaps, and dissociation; a diagnosis of schizoaffective
disorder; and a finding of psychosis and dissociation at the time of
the offenses, such that the defendant could not form the intent to kill
or
to premeditate or deliberate. If counsel had investigated counsel likely
would have presented a mental health defense rather than the weak alibi.
Prejudice found because the jury deliberated for two full days despite
the overwhelming evidence of guilt, which indicates the jury would have
been amenable to a verdict of second degree murder or
manslaughter.
*Fisher v. Gibson
282 F.3d. 1283 (10th Cir. 2002)
Counsel
ineffective in pre-AEDPA analysis of capital trial for numerous errors.
District Court had found ineffective assistance in sentencing where
counsel presented no opening, no evidence, and no argument and only
uttered nine words during sentencing. The Court of Appeals did not
address this issue, however, because of the finding of ineffectiveness
during the trial. The defendant was arrested following the arrest
for
the same murder and then release of the state’s key witness, who was
a juvenile at the time, who pointed to the defendant. The witness
alleged
that he and the defendant met the victim, the defendant had sex with
the victim, and then the defendant killed him. Counsel, who was
a full-time
state senator with limited time for investigation and trials, conducted
no investigation and no preparation. He filed no discovery motions
and
failed to even discover that the defendant had made potentially
inculpatory statements at the time of his arrest. During the trial, he
presented no opening, no witnesses other than the defendant, and
made no
closing argument. Counsel presented no defense theory and to the extent
there was any is was an alibi advanced only through the defendant’s
testimony, which counsel undermined. "[H]is cross-examination served
solely to allow prosecution witnesses to reiterate the state’s evidence,
and did not challenge the testimony or the witnesses’ credibility in
any way." He expressed sympathy for the state’s key witness bolstering
his testimony while at the same time actively undermining the defendant’s
credibility in his alibi testimony by eliciting evidence of prior drug
use, berating his client, and essentially reenforcing the state’s case.
Counsel also "engaged in the dangerous and indefensible practice of
conducting a fishing expedition with a police witness on
cross-examination" and elicited damaging evidence from several police
officers, such as bloodstains on the defendant’s clothes and a bloody
fingerprint on the victim’s car, when the state had not presented this
evidence and there was no indication that this evidence linked the
defendant to the murder. Counsel had no strategy and was "conducting
an admittedly uninformed and therefore highly reckless ‘investigation’
during trial." This "conduct cannot be called a strategic choice: an
event produced by the happenstance of counsel’s uninformed and reckless
cross-examination cannot be called a ‘choice’ at all." Counsel also
failed to challenge the testimony of the alleged eyewitness with the
evidence that he was initially charged with this murder and was unable
to impeach a police officer who denied that because counsel had failed
to gather the readily available documentation. Counsel also failed to
impeach the alleged eyewitness with evidence of prior inconsistent
statements, questions of veracity even to those close to the eyewitness,
and inconsistencies in his testimony with other evidence. Counsel also
did not prepare and present evidence of the defendant’s alibi, which
was readily available and had been presented in the extradition hearing
in
New York. Counsel failed to present evidence that, while the defendant
made some potentially inculpatory statements at the time of the arrest
that he had assaulted a black man in Oklahoma around September 1982,
there were also exculpatory aspects, including that the victim in this
case was white and was murdered in December 1982. In addition, to these
things, counsel was actively hostile to his client and implied his
client’s guilt, based in part on the client’s admitted homosexual
conduct at times and the homosexual nature of this offense. "An
attorney’s concession of animosity makes it appropriate to scrutinize
counsel’s performance with a somewhat more critical eye." (quotation
omitted). In considering prejudice under "the totality of the evidence,"
the court recognized that each example of counsel’s deficient conduct
alone might not demonstrate prejudice. Together though, the defendant
was prejudiced because the state’s case included no physical evidence
linking the defendant to the murder and the only evidence of bloodstains
on the defendant’s clothing and bloody fingerprints was presented by
the defense. Outside of this evidence, which still did not link the
defendant to the crime scene, but counsel failed to argue this to the
jury, the trial amounted to a "swearing match" between the defendant
and the state’s key witness, "either of whom could have committed the
murder."
2001: Pavel v.
Hollins,
261 F.3d 210 (2nd
Cir. 2001)
Counsel ineffective in a pre-AEDPA sexual abuse of
children case because counsel did not prepare a defense, on the theory
that the charges against the defendant would be dismissed at the
close
of the prosecution's case because there was little physical evidence
supporting the charges. The charges were brought by the defendant's
wife
in the midst of a marital, custody dispute and the same lawyer
represented the defendant in both cases. The state's evidence consisted
of the testimony of the two boys, the mother, a therapist, and
a doctor.
The two young sons alleged repeated anal sodomy but the physical
evidence revealed only mild redness in the anal area of one of the boys,
which the state doctor said was "consistent" with the allegations
of anal sodomy. The defendant testified that he had not abused
the children
and that the son who had redness in the anal area had had diarrhea the
week before the defendant's arrest. The defendant was so adamant
about
his innocence that he had been paroled from prison, but a condition of
parole required him to complete a sex offender program, which
required
him to admit guilt. He refused and returned to prison. In analyzing
counsel's performance the court declared that "our focus in analyzing
the performance prong . . . must be on the reasonableness of decisions
when they were made, not on how reasonable those decisions seem in
retrospect." Counsel failed to call three witnesses that would have
supported the defense. The court recognized that the decision not to
call witnesses is strategic in the sense of which witnesses to call
and
in that counsel made the choice for a reason, in this case, "to avoid
preparing a defense that might ultimately prove unnecessary."
That goal,
however, was mainly avoiding work--not, as it should have been, serving
Pavel's interests by providing him with reasonably effective
representation. Therefore, although Meltzer's decision was "strategic"
in some senses of the word, it was not the sort of conscious, reasonably
informed decision made by an attorney with an eye to benefitting his
client that the federal courts have denominated "strategic" and have
been especially reluctant to disturb.
One of the
available but uncalled witnesses was with the defendant and the boys
in an apartment in Florida during the week before the defendant's
arrest.
Her testimony contradicted that of the boys in significant respects and
corroborated the defendant's testimony that one of the boys had
diarrhea
and would have testified that the defendant had no opportunity to abuse
the children during the week when she was not present and that
nothing
seemed out of the ordinary with the boys' behavior or mood. The court,
quoting Griffin v. Warden, 970 F.2d 1355, 1358 (4th
Cir.1992), noted that "an attorney's failure to present available
exculpatory evidence is ordinarily deficient, unless some cogent
tactical or other consideration justified it." In this case, involving
a
"credibility contest," there was no reasonable strategy, because the
defendant told counsel about this witness but counsel did not interview
her or prepare her testimony. "[I]t should be perfectly obvious that
it will almost always be useful for defense counsel to speak before
trial
with readily-available fact witnesses whose non-cumulative testimony
would directly corroborate the defense's theory of important disputes."
Counsel also failed to present the testimony of a psychiatrist appointed
as a mediator and counselor in the custody proceedings. This doctor
would have testified that the wife was having psychological functioning
and memory problems and had accused the defendant of marital rape but
then admitted that she never expressed any lack of consent. This
testimony would have bolstered the defendant's testimony that his wife
fabricated her trial testimony due to hostility to the defendant.
Counsel had no strategy not to present this testimony as evidenced by
counsel's attempt to elicit some of this information directly from the
wife in cross-examination. Counsel also failed to call a medical doctor
who would have testified that the physical evidence was inconsistent
with the testimony of the boys. If their testimony was true, there
should have been some evidence of tearing and abrasions visible,
according to the defense expert. There could be no strategy here because
counsel had not based the decision not to call an expert on pretrial
consultation with an expert.
Because of the
importance of physical evidence in "credibility contest" sex abuse
cases, in such cases physical evidence should be a focal point of
defense counsel's pre-trial investigation and analysis of the case
against his client. And because of the "vagaries of abuse indicia," such
pre-trial investigation and analysis will generally require some
consultation with an expert.
Here, the defense
counsel had neither "the education or experience necessary to assess
relevant physical evidence, and to make for himself a reasonable,
informed determination as to whether an expert should be consulted or
called to the stand" and there was a disparity between the findings
with the two boys and there testimony of repeated abuse. In addition
to these
specific flaws, the court noted in analyzing prejudice, that if counsel
"had so much as attempted to prepare a defense here, one of his initial
steps would presumably have been to find ways to poke holes in the
testimony of" the child therapist. This also would have been easily done
with the testimony of a physician, who opined that the therapist's
"evaluation of the boys was conducted in a manner that was flatly
inconsistent [in numerous enumerated ways] with the relevant, publicly
available guidelines of the American Academy of Child and Adolescent
Psychiatry." Prejudice found, in light of the state's "relatively weak'
case, on the "cumulative weight of these flaws" so the court did not
consider individual prejudice.
Lindstadt v. Keane
239 F.3d 191 (2nd Cir. 2001)
Counsel
ineffective in sexual abuse of daughter case where the state's evidence
consisted only of testimony from daughter and estranged wife,
a child
psychologist, and the doctor who examined the daughter. First, counsel's
conduct was deficient because counsel failed to notice and exploit
a
one-year discrepancy in the testimony concerning the first incident of
abuse. Witnesses testified that it occurred in December 1986 when
the
alleged victim was in the first grade and the defendant lived in home.
Those events could only have occurred in December 1985, however,
because
the defendant did not live in the home in 1986. Second, counsel failed
to challenge the only alleged physical evidence of the abuse,
which was
based on unnamed studies not requested by the defense, which were
unchallenged at trial, but controverted easily by other published
studies. Third, counsel announced in opening that the defendant would
only testify if the state had proved its case, thus, rendering
the
defendant's testimony to be an implicit concession that the prosecution
had met its burden. Finally, counsel proffered but was unsuccessful
in
admitting testimony of two officers that, before the daughter alleged
abuse, her mother had attempted several times to have her husband
jailed
for alleged crimes. This testimony was essential to bolster the defense
theory that the wife fabricated the charges, but counsel failed
to
adequately argue the relevance of the testimony and it was excluded.
Prejudice found "in the aggregate." Id. at
199. Court stated the last two errors "would not alone suffice. But when
they are added to the first two, the cumulative weight of error"
required reversal. Id. Case was reviewed under AEDPA. Upon
finding that petitioner met Strickland standard, court found that state
court had unreasonably applied Strickland without any further discussion of
28 U.S.C. § 2254(d) standard. Court also reversed other charges not
specifically affected because of the prejudicial spillover
affect.
*Miller v. Anderson
255 F.3d 455 (7th Cir. 2001)
Counsel ineffective in rape and murder capital case
decided under the AEDPA for failing to adequately prepare and present
a defense. One of the two co-defendants entered a deal to avoid
death
penalty and testified that the defendant was involved and planned the
crimes. Although the co-defendant had contradictions in his testimony,
the state corroborated the testimony with evidence from a state expert
who said a pubic hair on the victim's thigh was "almost certainly" the
defendant's. In addition, a hardware store clerk testified that
she had
received a check from a "Miller" the day before for shotgun shells and
identified the defendant. The state expert testified that DNA evidence
was inconclusive. Counsel was ineffective for failing to prepare and
present testimony from a hair expert who testified that the hair was
consistent with the victim but not the defendant. Counsel also failed
to present evidence that the shells purchased were not consistent with
the
shells used in the crime and failed to subpoena the defendant's bank
records, which would have revealed that the check was not written by
the
defendant. While counsel had reviewed the defendant's records and had
his wife testify that he had not written the check and in support of
the
defendant's alibi, the wife's credibility was easily challenged as
biased by the state. In addition, counsel failed to prepare and present
DNA, tire-tread, and shoe-print evidence that was exculpatory. While
cross-examination may be sufficient in some cases to challenge the
state's case, "[i]n these circumstances, it was irresponsible of the
lawyer not to consult experts." The biggest error made by defense
counsel, however, was calling a psychologist to testify that the
defendant was "incapable of the kind of violence that had been
perpetrated against the victim" even though counsel knew of the
defendant's prior convictions for kidnaping, rape, and sodomy, which
was elicited by the state in cross examination. The lawyer offered and
the
state court found no reason for supposing this was intelligent tactic.
Prejudice found even though "we think the chance of an acquittal would
still have been significantly less than 50 percent; but it would not
have been a negligible chance, and that is enough to require us to
conclude that the lawyer's errors of representation were, in the
aggregate, prejudicial."
NOTE: The order to issue the writ was vacated
following settlement by the parties. Miller v.
Anderson, 268 F.3d 485 (7th Cir.
2001)
2000: United States v. Russell
221 F.3d 615 (4th Cir. 2000)
Counsel
ineffective in drug case where sole evidence was defendant's
fingerprints on paper used to package heroin and access to the prison
recreation area (along with 38 other inmates) where it was found.
Defendant testified and did not deny the prints but explained that he
ripped up paper into small pieces to use for prison art work and would
discard left over pieces in a common area. If jury accepted this
explanation as plausible, he would have been acquitted. Defendant's
credibility was destroyed, however, when he was impeached with three
prior felony convictions, two of which had been vacated prior to trial.
Defendant had told his attorney prior to trial that convictions had been
set aside but counsel relied on government assertions, did not
independently investigate, elicited testimony of the invalid
convictions, and advised defendant to admit in cross that he had three
prior convictions. Counsel's conduct deficient: "When representing a
criminal client, the obligation to conduct an adequate investigation
will often include verifying the status of the client's criminal record,
and the failure to do so may support a finding of ineffective assistance
of counsel." Id. at 621. Prejudice found because the
defendant's credibility was major issue, jury sent out two questions
during deliberations reflecting consideration of his credibility, and
the government's evidence was of "marginal nature." Court also
"recognize[d] that, as a practical matter, evidence of previous
convictions often has a prejudicial impact beyond its proper purpose of
impeachment." Id. at 622. "Under our system of justice,
all criminal defendants--even those clearly guilty or otherwise
reprehensible--are entitled to a fair trial and, under the Sixth
Amendment, each is entitled to the effective assistance of counsel."
Id. at 623.
*Combs v.
Coyle
205 F.3d 269 (6th Cir.), cert. denied, 531 U.S. 1035
(2000 |