755 F.3d 724
1st Cir.2014Background
- Kevin Hensley was convicted in Massachusetts of first-degree murder for killing his estranged wife, Nancy; he was sentenced to life.
- At trial the defense pursued a mental-impairment theory; family and friends testified about Hensley’s depression and suicidal statements. Defense retained but did not call forensic psychiatrist Dr. David Rosmarin; defense also did not introduce certain primary-care records.
- Dr. William Zane performed the autopsy; he did not testify. Dr. Mark Flomenbaum, the chief medical examiner, testified about the autopsy findings and opined the cause of death was ligature strangulation, relying in part on Dr. Zane’s autopsy report.
- On appeal to the Massachusetts Supreme Judicial Court (SJC), Hensley argued (1) admission of Dr. Flomenbaum’s testimony (including reciting parts of the autopsy report) violated the Confrontation Clause, and (2) trial counsel was ineffective for failing to call Dr. Rosmarin and for not introducing medical records.
- The SJC rejected both claims: it found Dr. Flomenbaum’s expert opinion admissible (and any error regarding reciting report details harmless or non-dispositive) and held counsel’s strategic choice not to present the retained expert or records was reasonable given potential damaging material in those sources.
- Hensley sought federal habeas relief; the District Court denied the petition and the First Circuit affirmed, applying AEDPA deference.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admission of testimony based on a non-testifying medical examiner’s autopsy report violated the Sixth Amendment Confrontation Clause | Hensley: autopsy report is testimonial under Melendez-Diaz; admitting Dr. Flomenbaum’s recitation/opinion based on it violated confrontation | Commonwealth/SJC: at the time law was unsettled whether autopsy reports are testimonial; Dr. Flomenbaum gave admissible expert opinion and was cross-examinable; any error harmless | Court: Denied; law was not clearly established that autopsy reports are testimonial, so SJC decision was not contrary to Supreme Court precedent |
| Whether trial counsel was ineffective for not calling retained forensic psychiatrist (Dr. Rosmarin) | Hensley: Rosmarin’s opinion supported inability to form intent; withholding it prejudiced the defense | Commonwealth/SJC: Rosmarin’s report contained damaging admissions and would have opened the door to rebuttal; counsel thoroughly investigated and reasonably chose lay witnesses instead | Court: Denied; SJC reasonably applied Strickland—strategy to avoid harmful testimony was not patently unreasonable |
| Whether counsel was ineffective for not introducing primary-care mental-health records | Hensley: records would have corroborated depression and impairment | Commonwealth/SJC: records included potentially harmful entries (e.g., absence of symptoms, sexual-performance concerns, refusal of counseling) that could undermine the defense | Court: Denied; SJC reasonably found strategic exclusion justified and not an unreasonable application of federal law |
| Whether state-court factual findings about records/testimony were unreasonable under AEDPA § 2254(d)(2) | Hensley: SJC mischaracterized or overstated negative aspects of records | Commonwealth/SJC: findings were supported by the record; Hensley did not show actual factual error | Court: Denied; deference to state findings appropriate and no unreasonable determination of facts |
Key Cases Cited
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (forensic certificates may be "testimonial" and implicate the Confrontation Clause)
- Crawford v. Washington, 541 U.S. 36 (2004) (establishes core test for what statements are "testimonial")
- Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged ineffective-assistance standard: performance and prejudice)
- Harrington v. Richter, 562 U.S. 86 (2011) (deference to state-court decisions on ineffective-assistance claims under AEDPA)
- Nardi v. Pepe, 662 F.3d 107 (1st Cir. 2011) (post-Melendez-Diaz discussion on whether autopsy reports are testimonial and on admissibility of expert testimony relying on such reports)