seventh circuit decision (html) (90-page pdf download: here), granting habeas relief in 904 N.E.2d 1077 (Ill. App. 2009)
A significant decision in several respects – not least, attorney performance – that a summary post cannot hope to capture, save broad highlights. Executive summary: Harris was convicted of killing her 4-year-old son Jaquari, against a defense of accidental death (self-strangulation with an elastic band). The defense had potential, crucial support from the only eyewitness to the death, her other son Diante, 6 years old at the time of trial. However, the trial judge deemed Diante incompetent to testify, after wrongly placing the burden of showing competence on the defendant rather than incompetence on the State. The 7th Circuit holds that trial counsel dropped the ball in various respects, including failure both to correct the judge’s misapprehension of the burden of proof and to properly investigate and present readily available factual support for the child-witness’s competence. And, Diante’s absence from trial eviscerated the defense and distorted the fact-finding process, Harris’s videotaped confession notwithstanding. Indeed, Diante’s exclusion also prevented Harris from countering her confession with the strongest possible rebuttal: that it was false, therefore must have been coerced as she maintained. Critically, in the process of making this point, the court stresses the burgeoning literature that documents the phenomenon of false confessions. Not only, then, did trial counsel botch the presentation of this vital evidence but so, too, did the state court in its failure to correctly gauge the impact of this mistake.
Compulsory Process / Right to Present Defense – Ineffective Assistance
We reverse with instructions to grant the writ. A court’s exclusion of defense evidence violates the Compulsory Process Clause of the Sixth Amendment where the evidence is material to the outcome of trial and the application of the evidentiary exclusion is arbitrary or disproportionate to the state’s legitimate interests promoted by the rule. Although Diante and his testimony posed challenges, the complete exclusion of this critical exculpatory evidence in this case was arbitrary and disproportionate to the truth-seeking and reliability concerns advanced by witness competency restrictions. We review this issue de novo because it was not addressed by the Illinois courts. The disqualification of Diante as a witness violated Harris’s Sixth Amendment right to present a complete defense.
We also conclude that trial counsel’s serious errors in the competency hearing deprived Harris of the right to effective counsel. As the only eyewitness to Jaquari’s death, Diante’s testimony was essential to Harris’s defense. His competency hearing was crucial, but Harris’s counsel was not ready for it: he did not interview Diante, he did not secure the presence of a witness who would have shown that Diante’s recollections of what happened were consistent and credible, and he did not correct the trial court’s misapplication of the burden of proof. Under Strickland v. Washington, 466 U.S. 668 (1984), and its progeny, each of these mistakes — lack of investigation, failure to secure a key witness, and ignorance of applicable law — amounted to constitutionally deficient performance of defense counsel. If counsel had taken simple and obvious steps to prepare for the hearing, it is reasonably likely that Diante would have been deemed competent. And if the jury had heard his testimony, there is a reasonable probability that the outcome of the trial would have been different. In concluding that Harris was not prejudiced by her counsel’s errors at the competency hearing, the state appellate court unreasonably applied Strickland.
The blockquote pretty well encapsulates the overarching legal principles. (But not, to be sure, nearly all: to take just one example, the court takes pains to note that the “materiality standard [of Compulsory Process Clause analysis] is also identical” to IAC-prejudice analysis, pdf, p. 37; thus, if you show materiality, you’re pretty much home-free on IAC-prejudice.) A bit of elaboration, though, is warranted, keeping in mind that much is omitted, especially with respect to dealing with challenges to child-witness competency and the contours of 2254 habeas review.
- Given analogous, Brady caselaw (suppressed impeachment of inculpatory testimony of the only eyewitness), it follows that the exculpatory testimony of the only eyewitness “is also material under the Compulsory Process Clause, for the same standard applies.”
- Diante’s excluded account was not just “entirely exculpatory to Harris,” it also was non-cumulative: cumulative evidence “goes to prove what has already been established,” and no other witness “came close to” the value of Diante’s version. (Inconsistencies and ambiguities in his version could have been explored by the prosecution but didn’t “negate[]” his account or justify denying “Harris the opportunity to present the strongest evidence of her innocence[.]” And: “sorting out truthful from untruthful testimony is the essence of the jury’s function in our criminal justice system.”)
- Re Harris’s videotaped confession on which the case for guilt “rested entirely”: a confession is neither “incontrovertible” nor a guarantor of a guilty verdict. Her confession “was powerful evidence, but the jury had reasons to question its reliability, too – reasons in line with leading research on false confession. … [T]he possibility of a false confession may well have given the jury greater pause.” An important discussion ensues, footnotes 8-12 and accompanying text, drawing on the burgeoning false-confession literature. You might want to add to the list, Keith A. Findley, “Examining Shaken Baby Syndrome Convictions in Light of New Medical Scientific Research,” 37 Ok. City U. L. Rev 219 – even though its focus appears to be different, there is a convergence: “It might sound reasonable at first to rely on things like confessions … but there are problems. Confessions, for example, might be highly unreliable in these contexts …” Point is, you relinquish this sort of argument if you don’t try to (or can’t) show that the confession is unreliable. Thus, here, the court emphasizes “that Harris’s initial, unwarned confession was inconsistent with the physical evidence” – facts always matter. Would the result have been the same had her attorneys not made this showing? Probably just as well that the question is unanswerable.
- Re ineffective assistance:
- Counsel’s failures to speak with Diante prior to his witness-competency hearing and even to determine whether to call him as a witness “are disturbing,” given Diante’s centrality to the theory of defense. “Preparation is important with witnesses of any age, but it is critical with child witnesses, who are often nervous in unfamiliar settings and among strangers.[20]” Failure to prepare the witness, the ensuing discussion makes clear, is as deficient as failure to investigate altogether. “In this case, too, trial counsel’s failure to conduct a careful interview with Diante fell below the minimum standards of professional reasonableness required under Strickland. Any reasonably diligent attorney would have understood the special challenges in questioning witnesses of Diante’s age, as well as the critical importance of his testimony.”
- Counsel performed deficiently by failing to secure the presence of an investigator who had spoken with Diante and would have a) bolstered the case for Diante’s competency, and b) been a conduit for Diante’s pretrial statement (exempted, under the Illinois evidence code, from the hearsay rule), even if Diante had not been allowed to testify. “This was another major oversight that counsel could have avoided with modest efforts.”
- Counsel performed deficiently by failing to correct the trial court when it misallocated the burden of proof on witness-competency. “When an attorney takes or forgoes some action at trial due to ignorance of the law, that mistake can amount to constitutionally deficient performance. … There is no tactical explanation for the failure to correct the judge’s mistake – except that counsel too was unaware of Illinois law’s presumption of competency.”
- Re prejudice with respect to these deficiencies: Strickland prejudice is identical to Brady materiality (which the court already found, in its Compulsory Process Clause discussion). Drawing, then from “Brady jurisprudence,” the court concludes that “when a defendant is deprived of the exculpatory, non-cumulative testimony of one of the case’s few eyewitnesses, or the only eyewitness, there is a reasonable probability the result would have been different.[22]“
