341 P.3d 911
Or. Ct. App.2014Background
- Petitioner (Thompson) was convicted of multiple murders and violent offenses and sentenced to death; Oregon Supreme Court affirmed and U.S. Supreme Court denied certiorari.
- Post-conviction petition alleged 22 ineffective-assistance claims (trial and appellate counsel) challenging guilt and penalty phases; post-conviction court denied relief and issued detailed findings.
- Key disputed trial events: counsel initiated an aid-and-assist (competency) evaluation after retained expert Janzer expressed concerns; petitioner was then evaluated at Oregon State Hospital where State expert Hulteng later testified at penalty phase.
- Defense pursued an intoxication theory but did not call a toxicology expert at trial; trial counsel explained tactical concerns about adverse rebuttal and jury credibility.
- At trial counsel moved for judgment of acquittal (MJOA) on various counts, including argument that two aggravated-murder counts were not part of the “same criminal episode,” but did not expressly cite federal due-process authority.
- Penalty-phase mitigation investigation: defense investigator gathered extensive records and interviews but counsel limited penalty-phase witnesses (presented experts and one inmate witness); state presented extensive aggravating evidence. Post-conviction court concluded counsel’s tactical choices were reasonable.
Issues
| Issue | Plaintiff's Argument (Thompson) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1. Whether counsel were unreasonable to initiate aid-and-assist evaluation | Counsel should not have initiated competency proceedings because Janzer had no definitive diagnosis and personality disorders are excluded from statutory "mental disease or defect" | Counsel had a duty to raise competency when they reasonably questioned Thompson’s ability to aid and assist; Janzer reported psychopathology preventing assistance | Held: Counsel acted reasonably in context (client noncooperation, Janzer’s opinion, impending trial); no ineffective assistance |
| 2. Whether counsel were ineffective for not calling intoxication/toxicology experts | Failure to retain/call toxicology expert deprived Thompson of support for intoxication negating mens rea (BAC ~.26) | State: jury heard evidence of heavy drinking; defense tactically declined experts to avoid State rebuttal and credibility loss | Held: Decision not to call experts was reasonable tactical choice grounded in investigation and credibility concerns; no prejudice shown |
| 3. Whether counsel erred by not framing MJOA on Counts 18–19 as federal due-process claim | Counsel should have explicitly "federalized" MJOA (due process/Jackson) arguing insufficient evidence that murders were same criminal episode; would have required acquittal | State: trial court addressed the sufficiency question; framing under federal law would not change the factual sufficiency inquiry or result | Held: Counsel argued lack of linkage; failing to cite federal authority did not prejudice Thompson because the same sufficiency standard applied; no ineffective assistance |
| 4. Whether penalty-phase mitigation investigation and presentation were inadequate | Counsel failed to present available family- and history-based mitigation (family love, multigenerational mental illness, abuse, developmental delays) and did not call family witnesses | State: counsel conducted extensive investigation, found much evidence "two-edged," tailored mitigation to future dangerousness and treatability in prison; calling certain witnesses risked harmful testimony | Held: Investigation and tactical choices were reasonable; broad mitigation themes were presented (expert testimony) and omitted specifics would not likely have changed outcome; no ineffective assistance |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes federal ineffective-assistance standard)
- Jackson v. Virginia, 443 U.S. 307 (federal due-process sufficiency standard for criminal convictions)
- Pate v. Robinson, 383 U.S. 375 (trial of incompetent defendant violates due process)
- Wiggins v. Smith, 539 U.S. 510 (scope of mitigation investigation under Sixth Amendment)
- Montez v. Czerniak, 355 Or. 1 (Oregon standard and review of ineffective-assistance claims)
- Lichau v. Baldwin, 333 Or. 350 (evaluate counsel’s conduct from lawyer’s perspective; tactical-decision review)
- State v. Thompson, 328 Or. 248 (recitation of underlying facts and direct-review decision)