In re the Personal Restraint of Gomez
180 Wash. 2d 337
| Wash. | 2014Background
- Infant Rafael Arechiga-Gomez suffered multiple acute, subacute, and chronic injuries after returning to mother Maribel Gomez’s care and died at 25 months from blunt-force head trauma; autopsy found skull fractures of varying ages, retinal hemorrhages, limb fractures, and other trauma consistent with non-accidental injury.
- Gomez was tried in a bench trial for manslaughter and homicide by abuse; defense counsel Robert Moser represented her (having previously represented Rafael’s father, Jose Arechiga, in dependency proceedings).
- Moser presented Dr. Janice Ophoven (forensic pathologist) for the defense; Ophoven testified cause of death was undetermined/asphyxiation and conceded prior abuse in reviewing records; the trial judge found Gomez caused the fatal injury and convicted her of homicide by abuse (manslaughter conviction later vacated on separate appeal grounds).
- Gomez filed a personal restraint petition alleging ineffective assistance of counsel under the Sixth Amendment, raising claims of conflict of interest (dual representation history), inadequate use of interpreters, deficient investigation and preparation of experts and lay witnesses, and poor preparation of Gomez to testify.
- The Washington Supreme Court reviewed ineffective-assistance claims de novo under Strickland standards and Cuyler for conflict claims, and concluded Moser’s performance was within the wide range of professionally competent assistance and that no actual conflict existed; thus the petition was denied.
Issues
| Issue | Plaintiff's Argument (Gomez) | Defendant's Argument (Moser/State) | Held |
|---|---|---|---|
| Conflict of interest from Moser’s prior representation of Arechiga | Dual representation created an actual conflict that adversely affected performance | Representation was at most a theoretical conflict; no evidence Arechiga was a suspect or that Moser actively represented conflicting interests | No actual conflict; theoretical conflict insufficient under Cuyler; claim denied |
| Overall ineffective assistance of counsel (Strickland) | Moser’s performance was deficient re: experience, interpreters, witness investigation, expert work, and witness preparation, and prejudiced outcome | Counsel’s work met objective reasonableness: adequate experience, reasonable investigation, expert retention/effort, use of interpreters when necessary, and sufficient trial preparation | Performance not deficient; no Strickland prejudice shown; petition denied |
| Use of interpreters and client communication | Moser mostly communicated without an interpreter; poor communication impaired Gomez’s ability to participate and prejudiced defense | Court-certified interpreters were used at proceedings; Gomez never complained contemporaneously; no showing of what would have changed | Majority: no deficient performance or prejudice; concurrence: deficient use of interpreters and potential prejudice (would remand) |
| Expert investigation and preparation (Dr. Ophoven) | Moser failed to timely provide materials, secure necessary experts, and failed to prepare Ophoven, who then "conceded" abuse and undermined defense | Moser contacted multiple experts over time, secured Ophoven well before trial who reviewed records and testified; Ophoven’s references to abuse were grounded in records and did not concede elements of the statute | Majority: investigation and preparation were reasonable; any reference to "abuse" did not concede the statute’s assault/torture element and did not prejudice Gomez; concurrence dissents and would find prejudice |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- Cuyler v. Sullivan, 446 U.S. 335 (1980) (must show counsel actively represented conflicting interests and that conflict adversely affected performance to presume prejudice)
- Holloway v. Arkansas, 435 U.S. 475 (1978) (joint representation not per se Sixth Amendment violation)
- Florida v. Nixon, 543 U.S. 175 (2004) (counsel must consult defendant on fundamental trial decisions; deference to reasonable strategic choices)
- Chacon v. Wood, 36 F.3d 1459 (9th Cir. 1994) (importance of accurate translation where plea or critical communications affect fundamental rights)
- Bloom v. Calderon, 132 F.3d 1267 (9th Cir. 1997) (deficient performance where counsel fails to provide expert readily available materials, producing flawed testimony)
- Raley v. Ylst, 470 F.3d 792 (9th Cir. 2006) (deference to counsel’s reasonable strategic decisions re: experts)