Not Using Defense Expert Gounds for Ineffective Assistance of Council

A recent rul­ing by the Ninth Circuit Court of Appeals has opened the door for a flood of inef­fec­tive assis­tance of coun­cil claims.

DEFENSE COUNSEL’S FAILURE TO SUBMIT EXCULPATORY EVIDENCE TO HIS OWN EXPERT BECAUSE THE STATE’S INVESTIGATING OFFICER TOLD HIM THE EVIDENCE WOULD NOT BE HELPFUL WAS UNREASONABLE; THE PANEL’S CONTRARY RULING REQUIRES REHEARING OR REHEARING EN BANC.

Case sum­mary in the Ninth Circuit Blog:

Richter v. Hickman, No. 06–15614 (8–10-09)(en banc). In an en banc deci­sion, the 9^th (Reinhardt writ­ing) granted petition’s writ for IAC. The peti­tioner was alleged to have com­mit­ted mur­der in a rob­bery gone bad. He alleged self defense. The case turned on cir­cum­stan­tial and foren­sic evi­dence. Indeed, the issue of blood — serol­ogy, pathol­ogy, and spat­ter — became a cen­tral evi­den­tiary issue in the case. Despite this, defense coun­sel failed to con­duct any foren­sic inves­ti­ga­tion what­so­ever on the blood evi­dence. He decided on a defense with­out look­ing at the blood evi­dence, and with­out con­sult­ing any experts. If he had, expert tes­ti­mony would have helped sup­port his ver­sion of the events, and would have enabled defense coun­sel to cross effec­tively, and present his own experts and evi­dence. Dissenting, Bybee and oth­ers argue that the major­ity failed to rec­og­nize the pres­sures faced by trial coun­sel (time and resources) and that he should be excused because he did present a viable coher­ent defense.

The les­son learned is that defense attor­neys need to do due dili­gence, and check with their own experts in cases that poten­tially pivot on foren­sic evi­dence, and not rely on the State’s (pros­e­cu­tion) witnesses.

Read the whole case rul­ing here from the Ninth Circuit.