Attorney-Client Issues - Ineffective Assistance of Counsel – Pre-trial Motions and Investigation

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts

Hinton v. Alabama, --- S. Ct. – (2014)

An attorney who did not realize that he could seek additional funds to secure an expert witness to assist in analyzing forensic ballistics evidence, provided ineffective assistance of counsel.

Government of Virgin Islands v. Vanterpool, 767 F.3d 157 (3rd Cir. 2014)

Trial counsel was arguably ineffective in failing to challenge the constitutionality of the Virgin Islands harassing phone calls statute prior to trial. A remand to develop the record on this issue was necessary.

Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013)

The en banc Ninth Circuit concluded that petitioner was entitled to a remand to the district court for an evidentiary hearing on his § 2254 ineffective assistance of counsel claim. Trial counsel failed to interview several witnesses who could have contradicted the state’s witnesses and established the motive of another person to be the perpetrator of the murder. Additionally, a remand was appropriate to determine why trial counsel failed to impeach a witness with a prior inconsistent statement and failed to conduct independent forensic testing of certain physical evidence.

Vega v. Ryan, 757 F.3d 960 (9th Cir. 2014)

Trial counsel was ineffective in failing to locate and present at trial a priest to whom the child victim in this child molestation case had recanted his allegations.

Newman v. Harrington, 726 F.3d 921 (7th Cir. 2013)

Trial counsel was ineffective in failing to seek a competency hearing for the defendant.

Stitts v. Wilson, 713 F.3d 887 (7th Cir. 2013)

Though a remand for further fact finding was required, he Seventh Circuit held that if the defendant’s trial attorney failed to properly investigate a possible alibi defense (beyond interviewing one witness), this would have amounted to ineffective assistance of counsel in this case.

McClellan v Rapelje, 703 F.3d 344 (6th Cir. 2013)

Trial counsel was grossly ineffective in failing to interview numerous available witnesses in this murder case who were prepared to testify that the defendant acted in self defense.

Wooley v. Rednour, 702 F.3d 411 (7th Cir. 2012)

Trial counsel was ineffective in failing to secure an expert witness to counter the expert crime scene reconstruction expert employed by the state. However, the state court’s decision that the defendant suffered no prejudice as a result of this insufficient investigation survived AEDPA scrutiny.

Harris v. Thompson, 698 F.3d 609 (7th Cir. 2012)

The trial court’s decision to exclude a defense witness who was 6-years old based on the child’s competence as a witness violated the defendant’s Compulsory Process rights to present evidence in his defense. The child had critical exculpatory evidence and the jury should have been allowed to evaluate the credibility issue. The fact that the child believed in the tooth fairy, Santa Claus and Spiderman did not render him unfit to testify. (Part of the child’s apparent confusion about who was “real” and who was not “real” was the way that questions were posed, which drew a distinction between characters in movies that were cartoons, or animated, and characters who were played by live actors). The state trial court violated the state statute that placed the burden of proving incompetency of a witness on the state, rather than proving competence of witness on the party calling the witness, as the court did in this case. In addition, the court held that the trial attorney provided ineffective assistance of counsel in failing to properly litigate the competency issu and to interview and prepare the child to testify. This case contains an encyclopedic review of Compulsory Process cases.

Mosley v. Atchison, 689 F.3d 838 (7th Cir. 2012)

State trial counsel’s failure to interview and then present testimony from two alibi witnesses was ineffective assistance of counsel necessitating that the federal court grant a writ of habeas corpus. A subsequent review of this case netted the same result. 762 F.3d 579.

Foster v. Wolfenbarger, 687 F.3d 702 (6th Cir. 2012)

Trial counsel’s failure to further investigate a possible alibi defense and to present this defense at trial was ineffective assistance of counsel. The attorney interviewed the witness briefly. If the attorney concluded that the witness’s testimony was not sufficiently definite, he had a duty to further investigate and not simply abandon the alibi defense.

Matthews v. United States, 682 F.3d 180 (2d Cir. 2012)

Trial counsel retained an ex-cop as an investigator who had prior run-ins with the defendant. There was clearly a basis for believing that the investigator had a conflict in working for the defendant. This led the Second Circuit to conclude that an evidentiary hearing was necessary to determine whether the attorney provided ineffective assistance of counsel in investigating the facts of this case.

Gardner v. United States, 680 F.3d 1006 (7th Cir. 2012)

The defendant contended that he was unlawfully frisked. He also claimed that the gun that was found was actually planted on him by the police. The trial court indicated that unless the defendant acknowledged that the gun was his, he could not assert the Fourth Amendment claim. The defense attorney failed to file a motion to suppress. This was ineffective assistance of counsel. There is no reason that a defendant cannot claim both that the gun was planted on him and that the search was unlawful.

Thomas v. Chappell, 678 F.3d 1086 (9th Cir. 2012)

Trial counsel conducted inadequate investigation into possible witnesses who would have corroborated defendant’s claim of innocence and the role of another perpetrator.

United States v. Marshall, 669 F.3d 288 (D.C. Cir. 2012)

The government’s motion to permit the introduction of Rule 404(b) evidence did not stop the Speedy Trial clock. Trial counsel was ineffective in failing to move to dismiss the indictment given the violation of the Speedy Trial Act

Elmore v. Ozmint, 661 F.3d 783 (4th Cir. 2011)

In this nearly 100-page opinion, the Fourth Circuit ultimately concludes that trial counsel provided ineffective assistance of counsel in failing to test and investigate the validity of the state’s forensic evidence.

Tice v. Johnson, 647 F.3d 87 (4th Cir. 2011)

The defendant was a suspect in a rape / murder. During the course of his interrogation, he agreed to have a polygraph administered. After the polygraph was administered by another police officer, the defendant was asked if he wanted to continue making a statement and he said that he did not want to answer any more questions. Thereafter, the initial interrogation officer returned to the room and continued the interrogation. No further Miranda warnings were given. The Fourth Circuit held that trial counsel was ineffective in failing to move to suppress the ensuing confession.

Sussman v. Jenkins, 636 F.3d 329 (7th Cir. 2011)

Trial counsel failed to provide pretrial notice of the intent to introduce evidence that the child molestation victim had made prior false allegations of sexual abuse against another man (his father). Trial counsel’s failure was ineffective assistance of counsel, because such evidence – prior false allegation evidence – was admissible and significant evidence relating to the child’s credibility and motive for fabricating allegations (i.e., to get attention, or for punishing people for not paying attention to him). This evidence was clearly admissible under the Confrontation Clause.

Showers v. Beard, 635 F.3d 625 (3rd Cir. 2011)

Trial counsel was ineffective in failing to consult with an expert to determine if a person who ingested liquid morphine would taste the substance. The defendant was charged with killing her spouse with liquid morphine. The government contended that the drug could be put in the victim’s food and he would not know it. The defense attorney had been told by a psychiatric expert that he should consult with an expert on this subject. The defense attorney did not consult with an expert. An expert would have testified that a substantial amount of a “masking agent” would have been necessary for the victim not to realize he was being poisoned and, therefore, the autopsy should have revealed the masking agent. (Absent a masking agent, the defendant’s theory – that the victim intentionally ingested the drug was far more likely, given given the strong taste of the substance without a masking agent).

Couch v. Booker, 632 F.3d 241 (6th Cir. 2011)

In this murder case, the victim died after being beaten by the defendant. However, there was considerable evidence that the victim had ingested a considerable quantity of marijuana and cocaine, as well as alcohol and may have had a pre-existing heart condition. The victim fought with medics prior to dying and was observed by others acting strangely prior to being beaten by the defendant. The defense attorney failed to adequately investigate a causation defense, including reading available reports from medics. Though a defense attorney is certainly entitled (and obligated) to make strategic decisions, those decisions must be informed and cannot be “strategic” if they are made without considering available alternatives.

Wilson v. Gaetz, 608 F.3d 347 (7th Cir. 2010)

Trial counsel ineffectively developed the insanity defense evidence that was available in defense of the defendant who was charged with murder. The defendant was apparently operating under a delusional compulsion that required him to commit the crime. His delusion led him to believe that what he was doing was morally proper, even if it might have been a crime.

Howard v. Clark, 608 F.3d 563 (9th Cir. 2010)

Trial counsel was ineffective in failing to interview the second victim of a shooting that the defendant was charged with perpetrating. The other victim died. The surviving victim, however, later made a statement that the defendant was not the perpetrator. The fact that the witness may not have been credible does not excuse the attorney’s failure to interview him and make a determination whether to call him as a witness.

Johnson v. United States, 604 F.3d 1016 (7th Cir. 2010)

Trial counsel did not file a motion to suppress evidence seized from the car that the defendant was driving, because he believed that the defendant did not have an expectation of privacy, due to the fact that he did not own the car and had borrowed it. This was legally incorrect: the driver of a car that he has borrowed from another has a reasonable expectation of privacy in the vehicle. The attorney’s second justification for not filing the motion – he wanted to argue at trial that the drugs did not belong to his client, because the car was borrowed – was not a basis to fail to file the motion to suppress, because if he won the motion to suppress, there would be no trial, and if he lost the motion to suppress, he could still disavow ownership or knowledge of the drugs. Finally, the attorney’s fear that the defendant’s testimony at a suppression hearing could be used against him at trial would be foreclosed by Simmons v. United States, 390 U.S. 377 (1968).

English v. Romanowski, 602 F.3d 714 (6th Cir. 2010)

State trial counsel was ineffective in failing to adequately investigate the availability of a witness to provide exculpatory information. Because of the failure to adequately investigate the witness’s testimony, the attorney believed that the witness had favorable testimony to offer. During trial, he realized that the witness was not that helpful, but he had already promised to call the witness during his opening statement. The decision not to call the witness was a sound decision; the failure to determine this before trial, and then promising to call the witness during opening statement, was ineffective assistance of counsel.

Gentry v. Sevier, 597 F.3d 838 (7th Cir. 2010)

The defendant was walking with a wheel barrow through a neighborhood late at night. The police were called. When the police arrived, they summoned the defendant over to their car and told him to “keep his hands up.” This amounted to a seizure, which was not supported by an articulable suspicion. The officer then patted down the defendant, locating a garage opener. There was no basis for this frisk: there was no reason to believe the defendant was armed or dangerous and he was not subject to a legitimate arrest or detention. Moreover, there was no basis to keep the garage door opener (and thereafter walk down the street seeing if it opened any garage in the neighborhood), because it was not a weapon, or apparent to be contraband. Finally, the search of the wheelbarrow was illegal. Though some items on the top of the pile in the wheelbarrow were subject to plain view, other items below the surface could only be seen when the officer probed beneath the surface. The defendant’s trial counsel was ineffective in failing to move to suppress the fruits of the search.

Green v. Nelson, 595 F.3d 1245 (11th Cir. 2010)

A search warrant application falsely stated that semen was collected from a rape victim and that obtaining a DNA sample from the defendant was therefore necessary to perform a comparison. Actually, no DNA had been obtained from that victim, but the DNA collected from the defendant was used to match his DNA with another rape victim, from whom semen was obtained. The failure to file a Motion to Suppress based on this Franks v. Delaware violation was ineffective assistance of counsel. The state habeas court’s observation that the decision whether to file a Motion to Suppress is always a strategic decision was clearly erroneous where the decision not to file the Motion was an erroneous understanding of the facts, not a conscious weighing of the potential positive and negative consequences of filing the motion. However, there was sufficient additional information in the affidavit to support the issuance of the warrant, so, though counsel was ineffective in failing to raise the issue, there was no prejudice.

Bigelow v. Haviland, 576 F.3d 284 (6th Cir. 2009)

Trial counsel’s failure to investigate further defendant’s alibi defense and locate an additional witness who was available and able to provide corroboration of the alibit, was ineffective assistance.

Hummel v. Rosemeyer, 564 F.3d 290 (3rd Cir. 2009)

The defendant was tried for murder in state court and found guilty. The record established that he suffered from the effects of a gunshot to the head (self-inflicted) and psychological trauma. He slept through much of the trial and suddenly screamed during the prosecutor’s closing argument and was removed from the courtroom. Trial counsel was ineffective in failing to move for a competency hearing.

Siehl v. Grace, 561 F.3d 189 (3rd Cir. 2009)

Counsel was ineffective in failing to retain an expert to counter the state’s expert who testified that the defendant’s fingerprint was on the showerhead of the tub where the victim was found stabbed to death, and that the angle of the fingerprint, as well as other forensic evidence established that the fingerprint belonged to the killer. An evidentiary hearing was needed to develop the record further to determine if another expert could have countered this forensic testimony of the state, as the defendant proffered at the state habeas hearing.

Brown v. Smith, 551 F.3d 424 (6th Cir. 2008)

The defendant’s trial counsel was ineffective in the state sexual abuse prosecution because of counsel’s failure to subpoena the therapy records of the victim (his daughter) that would have revealed the victim’s inclination to fabricate charges against the defendant in light of her father’s imminent marriage to another woman. Under the relevant state law, the records, though presumptively confidential, could be reviewed by the trial court in camera to determine if they contained any information that was necessary to the defense.

Avery v. Prelesnik, 548 F.3d 434 (6th Cir. 2008)

Trial counsel failed to adequately investigate defendant’s possible alibi defense, or to interview the alibi witnesses. The Sixth Circuit affirms granting a writ of habeas corpus.

Osagiede v. United States, 543 F.3d 399 (9th Cir. 2008)

Though the failure of the government to afford a defendant his right to notification of the consulate under the Vienna Convention may not result in the suppression of evidence, if a defense attorney fails to take advantage of the Vienna Convention and advise the defendant of his right to notify his country’s consulate, this may amount to ineffective assistance of counsel. The prejudice, if it can be shown, would be that the defendant was deprived of the right to have the consulate help him find favorable witnesses, or otherwise assist in the defense in a way that could have altered the result.

Harrison v. Quarterman, 496 F.3d 419 (5th Cir. 2007)

Trial counsel was arguably ineffective in failing to interview an eyewitness to a prior event involving the sexual assault victim that was denied by her at trial. The prior event (involving a consensual sexual encounter between the defendant and the victim) would have been admissible and would have cast considerable doubt on the victim’s trial testimony. The absence of the witness, moreover, was pointed out by the prosecutor during closing argument as a reason to disbelieve that the prior event occurred. A remand was necessary to determine exactly what the witness would have said, if called as a witness.

United States v. Weathers, 493 F.3d 229 (D.C. Cir. 2007)

Defense counsel was ineffective in failing to file a multiplicity objection to charges that the defendant threatened a federal official and a separate count of threatening the same official in violation of D.C. law.

Ramonez v. Berghuis, 490 F.3d 482 (6th Cir. 2007)

Trial counsel’s failure to interview three eyewitnesses to the assault with which the defendant was charged was ineffective assistance of counsel necessitating granting the writ.

Raygoza v. Hulick, 474 F.3d 958 (7th Cir. 2007)

Defense counsel’s failure to investigate the defendant’s alibi claim was deficient and prejudicial. Ten witnesses, as well as telephone records, supported the alibi. The court observed that defense counsel may have believed that his client was guilty and that pursuing an alibi defense would be futile, “This, however, 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 at 964.

Stewart v. Wolfenbarger, 468 F.3d 338 (6th Cir. 2006)

Trial counsel’s failure to comply with the law requiring pretrial notice of reliance on an alibi defense constituted ineffective assistance of counsel. The fact that there were other alibi witnesses – and therefore the witness who was barred from testifying would have provided cumulative testimony – did not lessen the impact of the prejudice. Failure to interview certain witnesses and conduct sufficient pretrial investigation was also deficient.

Stanley v. Bartley, 465 F.3d 810 (7th Cir. 2006)

Trial counsel failed to interview any witnesses or engage in any meaningful pretrial preparation. His cross-examination of witnesses reflected his lack of preparation. Judge Posner held that a new trial was necessary.

Dando v. Yukins, 461 F.3d 791 (6th Cir. 2006)

Trial counsel was ineffective in failing to request expert funds in order to investigate the defendant’s possible duress (battered spouse) defense to charges that she assisted her boyfriend in a string of robberies. The attorney declined to hire the expert because he thought that funds were not available to investigate this type of defense. The defendant’s guilty plea was tainted by this ineffective assistance of counsel.

Adams v. Bertrand, 453 F.3d 428 (7th Cir. 2006)

Trial counsel’s failure to interview a key witness to the events that occurred prior to and after the alleged sexual assault on the victim was ineffective assistance of counsel requiring that the verdict be set aside. The victim was a woman in a college dormitory. The witness observed the victim and the defendant enter a room together and had been with them prior to the time they went into the room. After the alleged assault that occurred in the room, the witness was aware that they all sat around together smoking cigarettes. Failing to interview this witness (whose statement was in a police report and who testified at a co-defendant’s trial) and establishing the contradictions with the victim’s testimony was not a strategic decision; it was a violation of the Sixth Amendment right to counsel.

Rolan v. Vaughn, 445 F.3d 671 (3rd Cir. 2006)

Trial counsel was ineffective in failing to investigate available witnesses who would have testified that the defendant acted in self-defense.

Draughon v. Dretke, 427 F.3d 286 (5th Cir. 2006)

The defendant was sentenced to death based on a conviction for killing a bystander after attempting to rob a store. The defendant admitted trying to rob the store and that when he fled, he was scared of the people who were chasing him and that he fired into the air to get them to stop chasing him. Defense counsel did not hire a firearm’s expert to analyze the path of the bullet. The state argued that the shooting was point-blank from a short distance. At the habeas hearing, the defendant offered evidence that the bullet clearly ricocheted off the pavement into the victim’s body. The Fifth Circuit held that defense counsel’s failure to retain a ballistics expert prior to trial was ineffective assistance of counsel.

United States v. Jones, 403 F.3d 604 (8th Cir. 2005)

Trial counsel was ineffective in failing to challenge the indictment as multiplicitous. The defendant was charged in one count of the indictment with being a felon in possession of a firearm in August and another count of being a felon in possession of the same firearm in October. The crime, however, outlaws the continued possession of the weapon and this cannot multiplied by however many days, or hours, the gun is possessed as a separate crime.

Dugas v. Coplan, 428 F.3d 317 (1st Cir. 2005)

The defendant was charged in state court with arson. The defense chose the “some other guy did it” defense, which was reasonable. However, there was considerable question whether it was an arson at all and the attorney did not consult with an expert to develop this alternative defense, and thus was unprepared to deal with the state’s expert who testified that it was arson. The First Circuit concluded that the attorney was ineffective: “A tactical decision to pursue one defense does not excuse failure to present another defense that would bolster rather than detract from the primary defense.”

Gersten v. Senkowski, 426 F.3d 588 (2d Cir. 2005)

Trial counsel was ineffective in failing to investigate available expert testimony that would have contradicted the state’s expert testimony on the child abuse accommodation syndrome and other psychological evidence that was offered by the state in this child sex abuse case. The attorney also failed to research available evidence that would have contradicted the state’s expert’s testimony about proof of penetration. The Second Circuit opinion is a thorough primer on the child abuse accommodation syndrome and its questionable basis, as well as the proper steps that counsel should (must) take in a child sex abuse case, in order to be prepared.

Towns v. Smith, 395 F.3d 251 (6th Cir. 2005)

Trial counsel’s failure to interview and investigate a witness who claimed to have knowledge of the murder and who claimed that the defendant was not involved, amounted to ineffective assistance of counsel.

Richey v. Mitchell, 395 F.3d 660 (6th Cir. 2005)

Trial counsel’s failure to fully investigate the scientific evidence in this arson case was ineffective assistance of counsel. Hiring one expert, but limiting his work to ten hours was insufficient. After receiving an unfavorable report from this witness, the defense lawyer included his name on a witness list. When he did not call the witness, the state did call the witness and elicited testimony from that expert favorable to the state. After remand from the United States Supreme Court, the court re-affirmed this earlier decision, 498 F.3d 344 (6th Cir. 2007).

United States v. Hamilton, 391 F.3d 1066 (9th Cir. 2004)

After counsel was done completing his examination of a witness in a suppression hearing, he excused himself from further participation in the matter because of a scheduling conflict. The government elicited testimony from a subsequent witness that related to that attorney’s client. The attorney was provided a transcript and stated that he did not wish to further cross-examine that witness. This was improper. Counsel’s absence from the proceeding that related to his client operated as a denial of the defendant’s Sixth Amendment right to counsel.

Owens v. United States, 387 F.3d 607 (7th Cir. 2004)

Stone v. Powell does not prohibit a habeas petition predicated on an attorney’s ineffective assistance of counsel in failing to file a motion to suppress or to raise properly a Fourth Amendment violation.

Clinkscale v. Carter, 375 F.3d 430 (6th Cir. 2004)

Trial counsel’s failure to file a state-required alibi notice prior to trial was ineffective assistance of counsel. Even if the attorneys envisioned some strategic benefit to be gained by failing to file a timely alibi notice, this strategy was symptomatic of the ineffective assistance of counsel.

Harris v. Cotton, 365 F.3d 552 (7th Cir. 2004)

The defendant killed a man who he claimed was assaulting him. A toxicology report was in existence that revealed that the victim was under the influence of alcohol and cocaine. Defense counsel’s failure to obtain this report and use it at trial was ineffective assistance of counsel. The outcome of the trial may well have been different if the jury were aware of the victim’s level of intoxication.

Young v. Dretke, 356 F.3d 616 (5th Cir. 2004)

Trial counsel failed to file a motion to dismiss the state indictment on timeliness grounds – a motion that would have been granted if filed. This failure amounted to ineffective assistance of counsel.

Riley v. Payne, 352 F.3d 1313 (9th Cir. 2003)

Defense counsel was ineffective in failing to interview a key witness who would have testified that the victim was the aggressor in this assault case. The fact that the witness acknowledged that he ran away before the actual shooting did not render his testimony inconsequential, because his version of the events portrayed the victim as the initial aggressor and his version contradicted the victim’s version.

U.S. ex rel. Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003)

Trial counsel’s failure to investigate the facts of this case necessitated the granting of habeas relief. Counsel failed to interview witnesses who were present at the scene of the alleged sexual assault (a brutal gang assault during a rock concert). The court noted that the eyewitness testimony that was presented in this case was subject to the shortcomings that infect eyewitness testimony generally, making it “frequently less reliable than other types of evidence.” See Wright v. Gramley 125 F.3d at 1043 n. 4. The court further held that defense counsel’s unfulfilled promises during opening statement also amounted to ineffective assistance of counsel: he promised that his client would testify and state that he did not participate in the assault and he promised that there would be no proof that the defendant was a member of a gang. Both promises were broken. “A broken promise of this magnitude taints both the lawyer who vouchsafed it and the client on whose behalf it as made.”

Joshua v. Dewitt, 341 F.3d 430 (6th Cir. 2003)

The defendant was stopped for speeding and the trooper determined that he, along with his passenger were acting nervous and suspicious. The trooper called his dispatcher and was told that the defendant was listed as a suspicious person who was believed to be a drug courier in a “Read & Sign” book maintained by the police department. Based on this information, the trooper detained the defendant while waiting for a canine to arrive. The dog arrived forty-two minutes later. Drugs were found on the passenger, who implicated the defendant. State trial counsel failed to challenge the legitimacy of the Read and Sign book that prompted the detention. Instead, he simply challenged the length of the detention. Based on United States v. Hensley, 469 U.S. 221 (1985), a detention based on a “flyer” or something else akin to a “Read and Sign” book requires proof that the author of the flyer had reasonable suspicion to list the suspect as a criminal. In this case, however, the state offered no proof that the Read and Sign book was based on reliable information. Moreover, the state’s contention that the defendant’s nervousness justified a detention was meritless. Nervousness may be a basis for an articulable suspicion, but only when it is coupled with evasive behavior. The state trial lawyer’s failure to challenge the stop and search on this basis was ineffective assistance of counsel. The Sixth Circuit also noted that Hensley is not limited to initial stops, but also covers situations in which a stop is prolonged based on this type of information. The Sixth Circuit concludes that not only was trial counsel ineffective, but appellate counsel was, as well.

Anderson v. Johnson, 338 F.3d 382 (5th Cir. 2003)

Failure to interview eyewitnesses is ineffective assistance of counsel, which in this case was prejudicial. Merely cross-examining witnesses at trial is not a cure for failing to interview them.

Brown v. Myers, 137 F.3d 1154 (9th Cir. 1998)

Defense counsel was ineffective in failing to investigate the availability of alibi witnesses. Witnesses were available (they testified at the habeas hearing) to testify that the defendant was not at the scene of the assault, but was at his girlfriend's house.

Holsomback v. White, 133 F.3d 1382 (11th Cir. 1998)

The defendant was charged with repeatedly sodomizing his son over several years. The son was examined by a doctor, who found no evidence to support this charge. Defense counsel, however, never interviewed the doctor or called him as a witness. Counsel also failed to interview the child's treating physician, who was aware of no signs (physical or psychological) of abuse. The attorney's justification for not calling these witnesses might have been reasonable, but given the fact that the attorney never even interviewed the witnesses, there was no support for the state's argument that this reflected a tactical decision on the part of the defense counsel.

United States v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997)

Trial counsel advised the defendant incorrectly about the mandatory sentence he was facing if he were to plead guilty. An evidentiary hearing was required to determine whether the defendant would have accepted the offer (and whether it really was formally extended by the government) had he been properly advised of the consequences.

Seidel v. Merkle, 146 F.3d 750 (9th Cir. 1998)

There were abundant signs in the record that the defendant suffered from mental illness. Nevertheless, trial counsel failed to conduct any investigation at all into his client’s psychiatric history and therefore neglected to pursue a potentially successful defense. Counsel failed to obtain defendant’s military, prison, or medical records. He failed to interview any witnesses regarding defendant’s mental state. He never requested a mental health evaluation of the defendant. Mental health evidence may have convinced the jury to conclude that the defendant acted without malice, thus reducing the degree of the offense from second-degree murder to manslaughter.

Turner v. Duncan, 158 F.3d 449 (9th Cir. 1998)

Counsel’s performance was characterized as follows: “failure to consult with petitioner before trial, investigate witnesses, follow up on the psychiatric report, undertake discovery, research any legal issues, or call any witnesses other than petitioner.” The defendant claimed that he had been sexually abused, sodomized, and beaten by the man he eventually killed. An investigation of available witnesses and psychiatric evidence would have supported defendant’s heat of passion defense.

United States v. Tarricone, 996 F.2d 1414 (2d Cir. 1993)

The defendant made a plausible showing that his trial counsel was ineffective in failing to retain a handwriting expert to show that certain handwriting on a key document was not penned by the defendant. A remand to fully develop this claim was necessary.

United States v. Kauffman, 109 F.3d 186 (3rd Cir. 1997)

Counsel knew that at the time of the defendant’s arrest, he had been described as manic and psychotic. Nevertheless, he failed to investigate a possible insanity defense. This was ineffective. While the evidence of the defendant’s guilt was considerable, this did not excuse the failure to conduct any investigation at all of the possible insanity defense.

United States v. Gray, 878 F.2d 702 (3rd Cir. 1989)

Though the attorney was aware of a witness who could provide exculpatory testimony, he did not interview her. At the post-conviction hearing, that witness’s testimony was offered and the defendant was thereby able to establish prejudice. The attorney’s failure to interview the witness rendered him ineffective.

United States v. Dawson, 857 F.2d 923 (3rd Cir. 1988)

The defendant was entitled to an evidentiary hearing on his habeas claim which asserted non-frivolous issues involving his trial counsel’s failure to call or interview numerous favorable witnesses.

Bryant v. Scott, 28 F.3d 1411 (5th Cir. 1994)

The defendant’s attorney in state court was ineffective in failing to investigate possible alibi witnesses after he was made aware of their existence by the defendant; failing to interview the eyewitnesses; and failing to interview the co-defendant who confessed to the crime and who exonerated the defendant.

Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988)

The defense counsel’s failure to investigate the only available disinterested alibi witness was ineffective assistance of counsel.

Hadley v. Groose, 97 F.3d 1131 (8th Cir. 1996)

Trial counsel was ineffective in failing to pursue an alibi witness revealed to them by the defendant, who would have provided an alibi for an alleged similar transaction.

Driscoll v. Delo, 71 F.3d 701 (8th Cir. 1995)

Although the blood on the knife of the defendant did not match the blood of the victim, the state’s expert explained that this was due to the “masking” of the victim’s blood type during the testing process. The defense attorney was not prepared to confront this testimony and failed to show that certain tests were not tainted by this “masking.” The defense attorney provided ineffective assistance.

Chambers v. Armontrout, 907 F.2d 825 (8th Cir. 1990)

The defense attorney’s failure to interview or call witnesses deprived the capital murder defendant of the effective assistance of counsel.

Tosh v. Lockhart, 879 F.2d 412 (8th Cir. 1989)

Despite the availability of three witnesses who offered to provide alibi evidence, the defense attorney interviewed none of them. The defendant was denied effective assistance of counsel.

Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997)

Petitioner should have been granted a hearing to test the validity of his claim of ineffective assistance of counsel. First, the defendant’s suggestion that his daughter’s boyfriend might have been the murderer was not adequately investigated. Second, trial counsel made no attempt to test the available physical evidence.

Johnson v. Baldwin, 114 F.3d 835 (9th Cir. 1997)

Petitioner’s trial counsel inadequately investigated the defendant’s alibi defense in preparation for this rape trial. Had the attorney investigated this defense, he would have learned that it was not true and that the defendant, in fact, was at the scene of the crime, but that no rape had occurred at all. (The petitioner’s co-defendant was tried separately and testified that they were both present and no sexual conduct occurred at all with the victim; he was acquitted).

Baylor v. Estelle, 94 F.3d 1321 (9th Cir. 1996)

Trial counsel was ineffective in failing to pursue a lead that the semen sample from one rape victim did not match the defendant’s blood traits. Even though the defendant had confessed to the crime on videotape, this evidence, if properly pursued and developed, ultimately would have established (as it was during the habeas proceedings) that the defendant could not have been the perpetrator.

Harris v. Wood, 64 F.3d 1432 (9th Cir. 1995)

The defense attorney’s deficiencies in this case are almost too numerous to set forth. He failed to interview known witnesses for the prosecution; failed to make proper objections at trial; failed to investigate witnesses who could provide exculpatory information; failed to secure an independent evaluation of the ballistic evidence; and failed to raise meritorious issues on appeal. He was also ineffective in calling the defendant to testify; advising the defendant to make a statement to prosecutors; and giving a closing argument which was critical of the defendant.

United States v. Palomba, 31 F.3d 1456 (9th Cir. 1994)

In the criminal complaint, the defendant was charged with mail fraud. The original indictment, however, did not allege mail fraud. A superceding indictment three months later, added the mail fraud counts. This violated the Speedy Trial Act, 18 U.S.C. §3161(b). Trial counsel’s failure to move to dismiss these charges amounted to ineffective assistance of counsel.

Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997)

Trial counsel was ineffective in failing to investigate and present to the jury the fact that prior to defendant’s trial, another individual had confessed to the murder and also in failing to investigate the defendant’s mental illness which might have explained his “confession” – his confession was that he “dreamed” that he had committed the murder. There was considerable evidence in support of the defendant’s mental illness. There was a reasonable probability that the defendant was tried while incompetent, and that his “dream confession” was a product of his mental illness. Counsel (who was blind) had his son sit near him during the trial and had instructed him to wrestle the defendant to the ground if he made any sudden movements toward him during the trial.

Huynh v. King, 95 F.3d 1052 (11th Cir. 1996)

Counsel was ineffective in failing to file a timely suppression motion.

United States v. Yizar, 956 F.2d 230 (11th Cir. 1992)

An evidentiary hearing was necessary to evaluate defendant’s claim of ineffective assistance of counsel. Among counsel’s alleged errors was the failure to interview witnesses which would have revealed that the co-defendant had told the prosecutor that the defendant was innocent. Had counsel learned of this, he may have been entitled to a severance in order to use the co-defendant’s testimony pursuant to Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970).