Loher v. Thomas
23 F. Supp. 3d 1182
D. Haw.2014Background
- Frank O. Loher was convicted (Nov. 2000) of attempted sexual assault; at trial the court ordered him to testify immediately after the prosecution rested or forfeit his testimony, over defense counsel’s objection.
- Defense counsel had planned to call Loher as a late witness (or not at all depending on other witnesses); when the prosecution’s case finished early, the court denied a continuance and required Loher to decide then whether to testify.
- Loher testified and the prosecution elicited damaging impeachment and previously excluded evidence; he was convicted and sentenced; appellate counsel (Shintani) did not raise a Brooks claim on direct appeal.
- Loher filed postconviction Rule 40 proceedings asserting ineffective assistance of appellate counsel for failing to raise the Brooks claim; the ICA remanded for an evidentiary hearing and later affirmed the denial after findings that defense counsel planned for Loher to testify and that Kido exceptions applied.
- In federal habeas, the magistrate judge recommended granting relief on the Apprendi claim only; the district court reviewed de novo Loher’s objections and held that the trial court’s order violated Brooks and that appellate counsel was ineffective for not raising the Brooks issue; the court granted the amended habeas petition and ordered release unless the state elects retrial.
Issues
| Issue | Plaintiff's Argument (Loher) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether trial court’s order forcing defendant to testify first (or not at all) violated Brooks (Fifth and Fourteenth Amendments) | Court’s directive coerce dLoher to testify before his witnesses, violating his right to remain silent and to control his defense | Trial court acted within its Rule 611 authority to control order of proof; any error was harmless | Held Brooks violation; court found remand/evidentiary supplementation by ICA unreasonable and treated the error as structural (automatic reversal absent retrial) |
| Whether Brooks error is subject to harmless-error review | Brooks errors are structural; prejudice is presumed under Cronic/Strickland framework; harmless analysis inappropriate | Error was harmless because impeachment evidence would have arisen anyway | Court held prejudice is presumed; Cronic/Brecht principles require automatic reversal; even under harmless-error standards, error was not harmless |
| Whether ICA reasonably remanded for an evidentiary hearing and relied on post-trial testimony (Kido exceptions) | Record already established Brooks violation; Kido exceptions (defendant decided to testify, testimony before some witnesses, defendant created exigency) did not apply | ICA remanded to develop record and evaluate Kido exceptions; new testimony supported denial | Court held remand/unreasonable application: record showed exceptions did not apply; ICA’s reliance on post hoc evidence was objectively unreasonable |
| Whether appellate counsel was ineffective for not raising Brooks on direct appeal | Failure to raise a clearly meritorious Brooks claim was unreasonable and prejudicial; had it been raised Loher would have prevailed | Appellate counsel testified he was unaware of Brooks; ICA found no substantial impairment after remand | Court found appellate counsel ineffective under Strickland standards and granted relief on that ground as well |
Key Cases Cited
- Brooks v. Tennessee, 406 U.S. 605 (1972) (holding statute requiring defendant to testify before any defense witnesses violates Fifth and Fourteenth Amendments)
- Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance standard; recognition that Brooks protects counsel’s tactical control over testimony)
- United States v. Cronic, 466 U.S. 648 (1984) (prejudice presumed where counsel is prevented from assisting at a critical stage)
- Brecht v. Abrahamson, 507 U.S. 619 (1993) (distinguishing structural errors from trial errors; automatic reversal for structural errors)
- Bell v. Cone, 535 U.S. 685 (2002) (discussing structural-error principles and citing Brooks)
- State v. Kido, [citation="102 Hawai'i 369, 76 P.3d 612"] (Ct. App. 2003) (Hawai‘i intermediate appellate decision articulating three exceptions some courts apply to Brooks)