Cosio v. United States

1106 Third, argument.20 closing defense COSIO, Appellant, Richard jury

trial court that “[t]he instructed arguments lawyers statements and v. evidence,” jury presumed are not and a is to follow instructions. See v. Unit- Plater STATES, Appellee. UNITED States, 953, (D.C.2000); ed 745 A.2d 959 Nos. & 98-CF-1906 02-CO-1453. States, also A.2d see Mills v. United 599 (D.C.1991) 775, (“[Ajrguments of coun- Appeals. District Columbia Court of jury generally carry weight sel less with a court.”) than do instructions from the 25, Argued April En Banc 2005. 370, (quoting Boyde California, v. 21, Decided June L.Ed.2d 316 S.Ct. (1990)). above, Finally, as discussed guilt

evidence of substan- States,

tial. See v. 256 A.2d Clarke United (D.C.1969) (“Where

782, 787 ... the evi- guilt strong,

dence of courts otherwise

are reluctant to reverse a be- conviction during

cause remarks indiscriminate

closing argument.”). prosecu- if the Even might marginally

tor’s comments ex- permissibility,

ceeded the bounds of we are judge’s

satisfied that the to inter- failure

rupt closing arguments to intervene sua substantially judg- did

sponte sway

ment, in miscarriage much result less McGrier,

justice. supra See note

A.2d at 41.

Affirmed. closing argument began: 20. The about the Mr. Contreras had. I also defense fear judge saying He recall word fear. Fear. That was first word out you said it he said should determine when what mouth. Fear. That’s Government's fear, prejudice, sympathy about, the facts without gen- talking we are fear. Ladies and tlemen, or favoritism. about this isn’t fear. Now, you gentlemen, Ladies deter- should actually occurring it was to me for, before; mine the what we’re here actual- facts. That’s I heard the word fear twice ly. So let’s time was in not fear. We are here facts. The first the Government’s opening talk They statement. want talk the facts.

H07

1108 H09 Fennelly, Padraic with whom B. Christo Landau, DC, pher Washington, was on the brief, appointed by participate the Court to as amicus curiae counsel.* WASHINGTON, Judge, Before Chief REID, FARRELL, RUIZ, GLICKMAN, Judges, Associate TERRY, WAGNER, FERREN, SCHWELB, Judges.** Senior GLICKMAN, Judge: Associate This concerns a criminal appeal defen- right to the dant’s Sixth effec- Amendment Appellant tive assistance of counsel. Rich- ard Cosío asserts that he was convicted of multiple felony counts of child sexual trial counsel abuse because his failed to readily discover available evidence that accuser. A impeached would have his di- three-judge panel vided of this Court re- jected appellant’s went claim. We en banc decision, panel’s not reconsider principles clarify legal gov- but also to erning claims on ineffectiveness based investigative alleged shortcom- case, ings. principles this those make it necessary to vacate con- for us victions him a new trial. grant I. Washington, DC, Kiyonaga, Paul Y. with Proceedings Summary A. of the

whom P. Jonathan Willmott was on eight-count An filed on indictment Feb- brief, appellant. for 3, 1998, ruary charged appellant three Trosman, abuse, child sexual degree Assistant counts first Elizabeth United degree child Attorney, with whom L. three counts of second sexual States Kenneth abuse, Wainstein, of carnal Attorney, then United one count each knowl- States Fisher, liberties a edge taking John then indecent R. Assistant United victim of Attorney, alleged and Leah and minor child. The these States Belaire offenses, Kolben, January which occurred between Carolyn K. Assistant United brief, 1997, on 1994 and was Attorneys, States were for November case was appellee. younger half-sister. The tried ** amici, Wagner argument, Judge gratitude At the was expresses *The its time of Court attorneys Judges Terry with the law firm of Kirkland & Judge Chief Court and of the LLP, through able Ellis for their assistance Judges. and Schwelb were Associate argument. briefing and oral

HU time, imagined big that her new broth- July jury appellant and the found disap- guilty angel,” on all counts. The trial court sen- “an but she was er would be years him for 33 imprisonment tenced was A.A. testified pointed. Appellant appeal. to life. noted an and the abusive to her physically mean and family. “He would other members of her appeal In March while his direct belt, hit with his hand or us and stuff’ pending, appellant pursu- still moved stated, “push[ ]” and he even would (2001) § to set ant to D.C.Code 23-110 testimony A.A.’s his mother around. grounds on of ineffec- aside his conviction of vio- appellant’s uncharged acts holding tive assistance of counsel. After why A.A. later lence was admitted to show evidentiary trial court hearing, de- report appellant’s failed to sexual abuse .Appellant’s appeal the motion. from nied stopped beating Long her. after with his direct that denial was consolidated A.A., jury told the prosecutor appeal. statement, opening 8, 2004, July judge with one dissent On rejected ing, appel division of this Court [appellant], still too scared of [A.A.] lant’s claims and affirmed his convictions might happen. too scared of what She States, in Cosio v. United 853 A.2d 166 do. He had might had no idea what he (D.C.2004) (Cosio I). Several months la before, temper, he had beat her short ter, 3, 2005, February the full Court just keep quiet about and she decided to granted appellant’s rehearing petition it. judgment en banc and vacated the began sexu- A.A. testified States, division. v. A.2d Cosio United ally molesting long her in after (D.C.2005). The Court limited its joined he the household. She was grant rehearing to the issue of ineffec eighteen years old. The seven and he was counsel, requested tive assistance of trial in occasion, place night took first which briefing, full and participation invited the family apartment small while other their Following of amicus curiae counsel. sleeping nearby, very was members were 25, 2005,

April argument, en banc appellant A.A. held his painful for As requested supplemental briefing Court ad prevent her from hand over her mouth to dressing the applicability the June out, put then crying he fondled her and 2005 decision of the United Su States lot,” hurt “a A.A. penis vagina. in her It Beard, preme Rompilla Court in v. testified, during the crying and she was U.S. 125 S.Ct. 162 L.Ed.2d 360 report hap- what ordeal. A.A. did not (2005). supplemental briefing The said, because, she she was “afraid” pened in completed August 2005. mom,” my A.A. “If I went to appellant. believe explained, B. The Trial “I don’t think she will me, something say after she will and then 1. The Prosecution Case he will like hit [appellant] to and then after government’s against appellant The case something like that.” me or testimony al- chiefly rested on the to molest A.A. over Appellant continued victim, fifteen-year-old leged testified, months, until (his she the next several half-sister, A.A. mother also was her home mother). fortune to leave A.A., good she had the According boarding school to a charitable go and came to the United States from Peru children. The disadvantaged years Virginia after her family live with her a few A.A., eight hours’ drive from girl a little school was an father died. who was went to visit Ledesma at his home to District of Columbia. For the next few discuss how she could continue to be tu- boarding years, A.A. remained at despite tored interference. school, happy and “tried where she was they could not find a suitable time to When think of’ had not to what done A.A. meetings, reschedule their broke it her. She told no one at the school about tearfully and confided that down “Richard because she still was “too afraid.” Even- me, bothering with [appellant] was A.A., said, tually, “forgot all it.” she me, just touching me and bothering stuff.” 1993, however, a few months before years This the first time over seven birthday, her A.A. left the board- eleventh anyone that A.A. asserted to she was family ing school and returned home. The sexually asked at being abused. When larger apartment, then moved to a Ledesma, why “finally” she told A.A. appellant had his own bedroom. At which answered, time, testified, this A.A. resumed I going Because didn’t like what was her, though his sexual abuse of he no my just anything life. I didn’t like —I longer beat her. Over the course of the going my always that was on in life. I A.A., years, according appel- four next my my life would be like one of wished repeatedly compelled lant her to endure anything. friends or I didn’t want it like painful vaginal penetration and other acts that, I it true didn’t want to come call of sexual molestation. He would stuff. room, Dur- into his and she would submit. Ledesma, added, She decided to tell A.A. incidents, testified, ing these she lawyers, his.wife were because ... “why cried and asked herself the bad thought “they try she could to find [her] me,” things happening to but she told [are] help something.” through be- going no one what she was called, police and A.A. was appellant: cause she was “too afraid” of were There she Hospital. taken to Children’s Q. you anybody Did tell that the sexual Beverly Lindsay, a was examined Dr. again? abuse started Pro- pediatrician in the Division of Child No, A. sir. Lindsay, qualified tection. Dr. who was Q. Why not? abuse, expert trial as an in child sexual A. I was too afraid. “interrupt- hymen testified that A.A.’s was Q. Afraid of what? ed,” i.e., miss- portion hymen of the was him [appellant]. A. Afraid of ing. Lindsay’s opinion, “something In Dr. Q. you might afraid he do? What were vagina introduced into her that caused was know, go A. I don’t insane. hymen.” complete this transection of the hymenal injury Lindsay Dr. considered the in turning point The came November abuse; of sexual strongly to be indicative grade. in the ninth when A.A. was however, when asked whether she could begun meeting she had explained, As she causes, responded “rule out” other she tutors, attorneys young two volunteer only thing say I can is [that] that “[t]he and Roseanne named Michael Ledesma something vagina entered into her Medina, Ap- who were husband wife. hyme- large enough would cause opposed arrangement. to the pellant nal cleaves and tears.” Objecting staying that A.A. was out too child late, Lindsay the house Dr. further testified that he would not let her leave commonly report do not sexual evenings tutoring in the to attend the ses- victims testified, afternoon, they because have been promptly A.A. she abuse sions. One running through thoughts that were “very typical” example, threatened. As a mind, if finds out? of an what will he do he Lindsay Dr. described the case HIV her have known what he positive steadfastly child who refused to ... could she How anyone until admit that had molested her her if she had told? would do to caught girl’s her father relatives own Furthermore, reminded the prosecutor girl kept in the act. The her father’s jury, he had threatened to abuse secret because you that it is common Lindsay Dr. told “Many kill if on him. she told times practice practice in her and in the threatened, parents children are their are specialists child abuse to encoun- sexual disclosure, they if threatened make ter kids who do not reveal child sexual quite typical,” Lindsay this is Dr. conclud- long begun.... until after it has abuse identify any ed. She did not other reasons you And told some of the reasons. she why may keep child sex abuse victims They often don’t feel safe. are Children silent about the abuse endure. scared, particularly when the abuser is government’s third and other you family member. So know [A.A.] Swiney, witness at trial was James keeping family not this a secret. alone president boarding school that A.A. Swiney, had attended. Mr. who had been 2. The Defense appointed legal guardian, A.A.’s confirmed statement, tri- opening In his her attendance at the school and recalled that he would dis- al counsel forecasted appellant’s visit there June 1993with his showing that credit A.A. she was mother to and take pick up her home. “immature,” “attention-seeking,” “deeply Swiney Mr. also recollected Michael teenager” who had “fabricated” troubled occasions, Ledesma visited A.A. on three in retaliation for allegations” her “horrible wife, once with his after she returned to attempts to correct appellant’s “constant school siblings. her and her discipline” closing argument, the prosecutor em- explained had anta- Counsel phasized A.A.’s fear of and Dr. gonized younger his brothers and sisters Lindsay’s explain testimony “threats” well by “constantly prodding” them to do it why long “finally took so before A.A. homework, school, help complete their somebody.” courage found the to tell Ad- curfews, chores, their keep household dressing period from 1990 to 1993 themselves, “high up and live behave school, boarding when A.A. was at family And “when his standards.” prosecutor jury, asked the Mr. up high hold standards Cosio if you wondering Do think she was she stated, had,” “Mr. Cosio would it get told would back to Mr. Cosio? siblings.” discipline younger his sometimes if any idea whether Could she that exer- asserted this unwanted Counsel get found out he could his hands on her authority gave rise quasi-parental cise of again? appellant very deep to “a friction” between from 1994 to when period A.A., As to the and sisters. coun- and his brothers again, prosecu- living A.A. was home said, her “easily by influenced” sel was argued tor that ha- “jealousy, anger siblings’ other bring false accusa- appellant tred” of Mr. Cosio still ran the show.... She against him. “Little did tions of sex abuse was still scared of him. Her mother still know,” jury, counsel told the Mr. Cosio agreed everything with he said. She imagine can that felt she wasn’t safe.... You characterizations. In support any and to of those attempts to correct

his constant examination, A.A. that younger siblings would re- her direct stated discipline his appellant she allegations. in these horrible You she did not “hate” because sult [A.A.], injunction “to guided by will learn about and about what the Biblical was, teenager pray troubled she and how she for those who your love enemies attention, cross-examination, ladies and sought you.” [sic ] to seek On persecute easily influ- gentlemen, how she was rejected depiction A.A. defense counsel’s by to make this heavy- enced others order well-meaning, if appellant as and fabrica- tangled deception web of handed, “constantly” older brother who tion, gentlemen. ladies and siblings’ younger monitored his behavior thought them when he it disciplined theory open- The outlined the defense necessary. inquired wheth- When reality statement never became a ing her for not appellant upbraided er had simply of trial. There was no the course school, instance, A.A. for doing well teenag- that A.A. was a troubled evidence did not know responded that er; by that she motivated no evidence flatly grades were. And A.A. what her spite and resentment over role suggestion denied overbearing family disciplinarian; no her”; rather, she an- hit her “to correct that A.A. was starved for atten- evidence swered, he want- just “he hit me whenever tion; influ- no evidence that A.A. had been short, appellant’s trial counsel ed to.”3 jealous siblings.1 There by angry enced or evidentiary support no had substantial likewise was no evidence A.A. fabricated her theory had standards,” that he was “con- “high had against appellant charges of sexual abuse stantly prodding” his brothers and sisters fairly prosecutor out of resentment. The behavior, study improve hard and their if it had heard jury closing asked the discipline corrective or that he meted out anything of evidence in she or “one shred necessary it to do so. when he felt supported any other witness said” stand, Appellant himself did not take the in the defense characterization of A.A. member, family and his counsel called no opening statement. friend, testify or other witness to about strong motive to demonstrate a Unable A.A., or appellant, her defense appellant, for A.A. to lie about family dynamics. witness her accusations sought to discredit matters was who testified at all to such failure to highlighting prolonged her witness, A.A. did not A.A. herself. As a A.A. that she had been molested. immature, troubled, report atten- appear to be years, she influenced, admitted that for over seven or resent- tion-seeking, easily anything being sexually ful,2 had not said about testimony did not and her substantive sister, inappropriate- at times—not acknowledged A.A. was tearful A.A. that her older close, testimony subject ly, given the matter of her appellant, she was disliked whom graphic personal na- and the sometimes no evidence that the sister but there was not ex- questioning she did ture of the influenced —but appellant. gratuitous animus toward hibit contrary, A.Á. was not confused having 2. On the emotions acknowledged mixed She led; generally easily testimony was re- having testify against him. consistent; factual, readily sponsive, she manage to ob- could was knowing 3.The best counsel the answers to some admitted not [appellant] agreement that “if exaggerate. tain A.A.’s questions; and she did late, thought got he would tell home too [she] was can- that her demeanor record indicates did, you got age. too late.” I think home respectful, appropriate [her] for her witnesses, mother, did call three her her older sister The defense abused to (whom trusted, said little their brief ap- and who disliked those witnesses un- brothers, on the stand to pellant), any appearances her teacher or witness counselor, credibility. away even she dermine A.A.’s Jose Garcia school when appellant’s But had been boarding from home at school. while and Nora Carnathan as character heavily relied on A.A.’s co-workers and were called counsel her, witnesses, seriously solely say appellant to impeach silence to he never law-abiding and a citizen. challenged explanation given good the “fear” for worker ask either wit- Appellant’s that silence. he cross-examined counsel did not When cross-examination, A.A., A.A. On question counsel did not her asser- ness about they acknowledged tions that had beaten her when co-workers both in the she was little and that she was afraid of did not know what did de- privacy him. When he Dr. Lind- of his own home. The third cross-examined witness, Adams, say, was a question expert counsel did not fense Dr. John that A.A.’s opinion “typi- pathologist opined that fear-induced silence was forensic who injuries cal” of child hymenal “nonspecific sex abuse cases. Nor did were with any present regard evidence in the de- to sexual abuse” because could testimony “by any foreign fense case to undermine A.A.’s have been caused kind of appellant. object, penis, finger, that she was fearful of As a it a be it a be it be result, though appellant’s any rigid foreign object.” counsel asked firm or Dr. jury in closing argument testimony to disbelieve Adams’s was consistent with the intimidation, A.A.’s claims of beatings testimony Lindsay.4 of Dr. his perfunctory exhortation was and un- closing argument, appellant’s In his persuasive. closing, his entire he de- counsel shifted the theme of his defense. just

voted two sentences to A.A.’s testimo- emphasizing theory Instead ny that “she remained silent because she is to outlined in his A.A.’s motive fabricate afraid Mr. as follows: Cosío,” focused on A.A.’s rela- opening, counsel story being Does her make sense (which had not tionship with Ledesma reasons,

hit gentlemen? for no ladies and other, and a opening) mentioned few just sense, It simply doesn’t make secondary points. contended that Counsel eight away she would be hours to A.A. had lied about “assert afraid of Mr. Cosío and that is her rea- wanted, will, .... her own to do what she son, gentlemen. ladies and tu- figure way keep getting out a to a 29- Appellant’s nothing say Referring counsel had tored.” to Ledesma as else had known for subject. year-old on the man whom A.A. per photo- physical of A.A. 4. Dr. Adams also testified that a routine examination graphs suggested that her physician appar in A.A.’s records another formed injuries enlarging school, had healed without years ently when she was ten old. hymenal opening, which was "consistent” finding geni reported a that A.A.'s The record single episode opposed traumatic argued that talia were “normal.” Counsel multiple episodes reported. that A.A. had ap finding impeached A.A.’s claim that this However, hymenal because the size of the earlier, years pellant raped her three measured, opening had not been Dr. Adams panel majority upheld I, 1990. In Cosio say whether the medical found it "difficult” to judge’s admit the record the trial refusal to multiple really evidence was inconsistent probative have been because its value would 317] traumas. [Tr. "virtually nil.” 853 A.2d at 180. Adams, Through un- Dr. successfully sought introduce the record of weeks, testimony that would argued readily that she ent available only a few counsel by rebutting A.A. her for how their have discredited good explanation had no conversation, by appel- was intimidated they while were “in his claim she alone,” person lant. In affidavits and at the trying get went “from apartment motion, five of hearing on the tutoring allegations more sex abuse.” said, assembly shows,” computer former co-workers at a “It that A.A. “had called International Data Prod- something saying company to hide.”5 so Without (“IDP”) including Jose that A.A. had ucts the same directly, counsel insinuated — a character witness infatuated with Ledesma and had Garcia who was been A.A. and molesting her trial7 —testified that falsely appellant accused appellant “friendly,” had had a “affection- appellant preventing her from because ate,” “comfortable,” “normal” brother-sis- object desire. In addi- seeing of her relationship. ter The witnesses said highlighting supposed peculiari- tion to appellant together A.A. and tutor, had observed in her ty of A.A.’s decision to confide work, many on occasions—at where jury to consider the counsel asked the visit after regularly family other apparent failure of A.A.’s during summer months school and abuse,6 the alleged members to notice the school, not in and outside of when she was of the medical less than certain nature shower, work, birthday picnics, baby testimony, and the defense witnesses’ tes- events. On these occa- party, and other timony appellant’s good character. sions, hug the witnesses had seen A.A. sum, against appellant the case cheek, put him on the her appellant, kiss credibility. proved turned on A.A.’s She shoulder, joke laugh arm around his emerged witness. She impressive to be him, enjoy out and play seek her cross-examination with her credi- from ill appear never afraid or company, and im- bility intact —the defense failed to ease with him. contradict, or otherwise undermine peach, Garcia, example, recalled Jose testimony any significant way —and frequently IDP A.A. “would come medical evidence corroborated her As he elaborat- [appellant].” visit Richard sexually abused. claim that she had been (the paragraph in his affidavit numbers ed day, jury believed At the end omitted): are guilty on all A.A. and found opportunity counts. I had an to observe their interaction and on those oc- § C. The 23-110 Motion I saw Richard and [A.A.] casions. also counsel, many during office times outside the Represented by new working at period when Richard was for a new trial under filed motion dinner together IDP. We would all alleged § The motion D.C.Code 23-110. specifically I recall go outings. constitutionally that trial counsel had been Kings Dominion [an that we all went to pres- failing ineffective in to discover course, family members had allegations,” 6. Of no other these 5.“Once she fabricated added, sarcastically at trial. testified get did a lot of education. She [A.A.]sure Garcia, appellant Jose sub- In addition to got got a friend more than a tutor. She Fuster, testimony Rafa- of Roxanna mitted the gave her Michael Ledesma who named Villatoro, Estrada, Henry Estra- el Erick [boarding] gifts, money, at the visited her January. da. times since School three afraid that she was uncom- park] together amusement in or about was or [A.A.] .... me wanted to videotape attached to this fortable told she [S]he 1996. A.A. and by to be there.” Ms. Fuster observed trip affidavit was taken me on that as Kings appellant together Dominion. It shows a the outside work [sic] and a typical company picnics interaction between Richard and well—at Christmas her own home. A.A. during period. party, time This and once at [A.A.] joke and with videotape my possession laugh has been in and would other, they appeared each to Ms. Fus- since about relationship” a “normal ter to have all occasions when I observed [A.A.] On perceived and sister. Ms. Fuster brother together, and Richard she showed very happy girl.” A.A. to be “a atti- very positive, friendly and relaxed They laugh tude toward Richard. would co-worker, Villatoro, A third Rafael also together, go and she want to would often appellant many saw A.A. with on occasions along places. him when he went I with got along at work and elsewhere. “[A.A.] never saw act the least bit anx- [A.A.] very very well with Richard and seemed ious, withdrawn uncomfortable him comfortable with and affectionate to- around Richard. Her attitude around him,” adding that reported, ward Villatoro any him like that of young normal clearly enjoyed being him and with [s]he girl enjoys who being with her older appeared happy, positive to have a rela- I brother. observed that their relation- fact, she often tionship with him. ship way was this the entire time that join wanted to Richard when he Richard worked IDP. go places. point At no do she [sic] Shortly before Richard’s arrest this afraid or appear slightest to be the bit case, I was with Richard and [A.A.] by did not intimidated Richard.... She observed that had the she same attitude any signs of fear or nervousness show toward him that I have described above. him. toward by did not seem at all [A.A.] intimidated that A.A. had dis- Villatoro remembered Richard on that occasion. played physical affection for Fuster, Roxanna the Director of Man- by “go[ing] next to him company picnic agement Systems Information at IDP and her arm on shoulders.” put[ting] his appellant’s supervisor, testified that A.A. co-workers, Erick and Hen- The other two (which had asked her for permission she Estrada, reports. ry provided similar granted) to visit with at the labo- ratory appel- and offices where he also testified that working. The co-workers investigator had Ms. Fuster understood that A.A. “was lant’s trial counsel or his trial but had not “hang bored at home” and wanted to interviewed them before appellant’s relationship around with Richard.” Ms. Fuster stated asked them about school, being that A.A. to IDP after some- A.A. The co-workers recalled came with appellant’s employ- every day During questioned times of the week. ment, months, reputa- character and occasionally spent personal summer tion, with his mother. IDP After and his days appellant. entire D.C., result, not shared the co-workers had traveling Washington, bus from As interactions facility Maryland, what knew of Gaithersburg, IDP’s A.A., they would have been though [appellant] A.A. would arrive “and kiss they been cheek,” ready willing to do so had Ms. Fuster recalled. She saw “nothing that would indicate ... asked. government ing testimony the did not con- character from Mr. Garcia

Although they test the substance of the co-workers’ and Ms. Carnathan because were Mr. it testimony, argued affidavits and co-workers and as such were famil- Cosio’s § opposition to the 23-110 motion that personality.” iar ethic and with his work appellant’s counsel had conducted an convey through “sought Counsel this adequate investigation that pretrial and testimony that defendant was a hard work- proffered by appellant the new evidence ing person good steady job.” with a helped would not have his defense. receiving government’s After the re- support argument, govern- of this sponse, § the trial court set the 23-110 ment submitted an affidavit from coun- evidentiary hearing. motion down for an sel himself. The court observed that the affidavit of Appellant’s was an experienced counsel trial appellant’s counsel neither stated attorney with the Public Defender what learned investigator he and his had He that Service. averred he obtained appellant’s appel- from co-workers about appellant prior information from to trial A.A., relationship lant’s nor “ex- him “persons about who were familiar with plain[ed] why he chose not to corroborate [A.A.],” or he his investi- that, defense with fabrication evidence mother, gator had “[A.A.’s] interviewed prior relationship to her with Michael Le- brothers, sister, friends, and school teach- desma, any appeared to have [A.A.] ers, as well as Mr. Cosio’s co-workers and [appellant].” fear of friends, they and asked them what knew relationship hearing, about the between At the trial counsel [Cosío] recollection,” my “To in person. [A.A.].” the best of testified He stated that his stated, appellant’s counsel “I theory explain why learned from at trial to A.A. had lied persons, particularly family these basically my “was members, client, that Mr. looked out for his in the parental figure Cosio who was younger siblings, responsible family provide and was a and would limitations and [A.A.], figure family.” discipline siblings, including and authoritative his to his investigated basically get my Counsel believed that he had wanted to [A.A.] relationship appel- picture between A.A. and client out of the to be able to do fully possible given general lant “as whatever she wanted.” Counsel had hoped constraints of time and resources.”8 He that his would uncover investigator relationship” and his had interviewed sever- a “romantic between A.A. co-workers, al and he had and Ledesma so that he could “hook that persons up say making called “the whom considered then and that she was these [he] credible, allegations [appellant] to be the most and who because she wanted way during go have come across the best cross- out of the to be able to into relationship that knew testify” [appellant] examination to as character wit- she but, acknowledged, approve nesses. Counsel “focused at trial on elicit- didn’t of’— hand, stated, he would tion would be bolstered if the defense were On other investigated fully” cogently jury like to have “more A.A.’s able to answer for cru- Although why complainant relationship question Ledesma. cial would fa- with Michael charges against no bricate these her brother.” [A.A.] "had information (We sexually romantically no claim involved with Mr. note that has made Ledesma, failing ... with more time would have that his counsel was ineffective [he] present concerning evidence [because his] looked into this further .... discover Ledesma.) alleged involvement with belief was that Mr. Cosio’s defense of fabrica- A.A.'s “would paid who the bills and no evidence of such a ever was household” family.” They agreed “all found. look out for his person,” a normal that Richard was respect With to the first unanswered family as “abnormal.” His viewed court, question identified the trial overprotective openly and had mother was government April introduced children that she declared front of her memorandum from trial counsel’s files The co-workers appellant loved the best. summarizing investiga- the interviews his siblings, opining A.A.’s other disliked appel- tor had conducted with several of jeal- they “had fabricated this he out of lant’s co-workers at IDP.9 The interviews picture ousy” get appellant to “out of did not focus on A.A.’s with interactions them so that wouldn’t be able to boss [he] However, memorandum, appellant. around.” prepared which was months three before

trial, report following did comments this,” trial appellant’s a case like “[I]n A.A.: al- hearing, counsel testified at the “it’s all met and al-

[The co-workers] [A.A.] ... I most ... assumed that would investi- thought most all of them that she was relationship the com- gate between acting girl. They like little told me Cosio; basic, plainant just it’s ... and Mr. acting was not age. [A.A.] like her just ... it is in this of case implicit type They up told me that [A.A.] come However, going that we’re to do that.” to them and want some affection from added, relationship counsel while the be- them. appellant investigated, tween A.A. and focus;” rather,

it “wasn’t his “focus [his] trying definitely give was on reason They why don’t understand [A.A.]would things.” her to Counsel ad- for fabricate doing accuse Richard of this. seeking he considered mitted that never appellant’s information from co-workers impres- The co-workers also shared their appellant. about A.A.’s family sions of and his other not, that he why asked he answered According members. to the defense inves- When serving tigator’s report, they “focused” on the co-workers described speeif- The court figure” as “the father and “head of his as character witnesses.10 trial, testimony at trial? 9. Other documents from trial counsel’s files A. From at Q. given showed that he had been the names of Yes. co-workers, twenty appellant’s either over of A. No. interview, by appellant persons himself as Q. why you What didn’t do that? And they signed or because a letter to the court in you thinking? were appellant’s in which March 1998 on behalf my obviously retrospect, A. This is they good attested to his character. With the before, thinking I said I think is that I—like Estrada, possible exception Henry of counsel being wit- them character I was focused on all the co-workers had received names of I were co-workers. nesses. I think support appellant proffered in of his whom therefore, I didn’t delve into the didn’t— § 23-110 motion. investigator] also way defense [the Juan—or delve into rela- didn’t in his appellant’s trial coun- 10. The examination of [sic; interfamily intra- tionships of in terms govern- point, conducted sel on this relationships family?] as he did with ment, was as follows: family that he interviewed members Q. Now, you did think to seek to elicit ever [A.A.], where Juan went with friends any any [appellant’s] co-workers from of his the rela- more detail of a little bit [into?] information about the defendant's relation- co-workers, I want- tionships. These were ship with ? [A.A.] obliged trial counsel was Appellant’s counsel ically inquired presented any that he had not him concede to ask Jose whether it had occurred A.A.’s claim testimony at trial to rebut Garcia, had selected to testi- whom counsel further, agreed that the fear. Pressed witness, about Garcia’s fy as a character claim, conjunction of that “No, genuineness and A.A. observations of delay charging appellant with A.A.’s Honor,” “I was responded, Your her, to A.A.’s sexually abusing went him witness being character focused proven, credibility; “if it could have been Mr. Cosío.” witnesses, ap- through [A.A. ... tri- The cross-examination cordial, friendly, open public pellant] had a unan- al centered on the second gone relationship, ... that would by the trial court— question swered raised rebutting picture some distance why present he had failed to evidence and fear that physical [A.A.] abuse appel- countering A.A.’s asserted fear evidence, ac- portrayed.” Such having re- acknowledged lant. Counsel into “would not throw knowledged, of Intent government’s ceived the Notice delay in question the whole issue of her Uncharged Evidence of Mis- to Introduce disclosure, question into her but also throw conduct four months before trial. The No- very forthrightly credibility that she had government had informed him that the tice him of the said she was afraid of because introduce evidence that would beatings.” inflicted A.A. physical beatings on when present did not the tes- government old, eight years or which she was seven timony investigator any of the defense discouraged him “made her fear appellant’s besides trial other witness disclosing from his acts of sexual abuse motion, the argument In on the counsel. had sooner.”11 The Notice also stated the co-workers government conceded that “need for this evi- government’s that the “lying [A.A.] were not when said importance high light dence is she was with appear didn’t afraid when of a juries place tend to on the absence the government accepted him.” The also Thus, contemporaneous report rape.” trial counsel that testimony appellant’s in advance of appellant’s counsel knew well A.A.’s claim of investigated he had not report not trial of A.A.’s claim that she did fear; on AA’s that he had not “focused” years for seven appellant’s sexual abuse and that he appellant; of him. Nonethe- because she was afraid what appellant’s co-workers had not asked less, conceded that “the although counsel relationship. about that they knew issue,” important [was] fear issue § appellant’s denied 23- The trial court tried to find witnesses who could had not opinion. The court motion in a written actually feared testify about whether had not trial counsel appellant’s found that he instructed his inves- appellant, nor had co-workers using appellant’s in his wit- considered tigator pursue question he had of fear because refute A.A.’s claim ness interviews. little, relationship with ... her wit- when she was purpose the of character ed them for crystallized during year, nesses .... him anybody what why scared to tell that is she is Notice, pretrial argument In didn't know what he happening. She though the government that even elaborated her, given he had done in do to what beatings A.A.returned did not continue when past.” school, boarding still feared the from “she to her of what he had done defendant because children, are other- who explain “an how older the “fear factor” as recognized truthful, the fear fac- may embellish In the wise the time. important issue” acknowledging their own sexu- view, however, to avoid appel- fear of tor court’s A.A.’s despite legal feelings complicity al government’s critical to the lant “was not Accordingly, In of consent.”13 par- theme” at trial. irrelevance case or a central probabili- reasonable ticular, stated, the court found “no the court A.A.’s fear was testi- the co-workers’ ty” presenting explaining a factor” in her silence “not to a different result Therefore, mony would have led through 1997.12 from at trial. concluded, “judgment court trial counsel’s other lines of pursue Appeal The Panel Decision on D. strategy choice of a different I, up- this a division of Court range of effective Cosio well within

[were] § mo- appellant’s 23-110 A.A.’s fear of held the denial representation.” And since 2-to- conviction in tion and affirmed his significant “was not a issue court, the case,” Differing with the trial court concluded that vote. further al- majority recognized “that A.A.’s proffered testimony panel co- role in fear of Cosio a central helped leged played workers “would not have the de- at 170. case.” 853 A.2d any “Being government’s at trial in event. com- fense” Moreover, trial counsel [appellant] and affectionate with because fortable government intend- pri- with a was informed that the public was inconsistent duration,” appellant, A.A.’s fear of long rely sexual of ed to on vate Moreover, co-workers had appellant’s stated. the court that several the court A.A., added, the ma- and interacted with strategy the defense been observed “[h]ad different, “it have been prosecution strategy jority agreed would the lawyer to have followed logical have been different as well.” For exam- for Cosio’s much by asking how ple, prosecutor up have used that information “[t]he [the could knew about his rela- testimony employees about how much his fellow co-workers’] A.A.” at 172. The obser- tionship A.A. seemed to like her brother and Id. co-workers “would enjoy spending appellant’s seemed to time with him to vations of could best evidence Cosio argue that she had no motive to fabricate a have been the alleged rebutting for A.A.’s story against prosecutor him.” the have found Or Hence, majority Id. the testimony to fear of him.” “might expert have offered statement, interpreta- testimony government's the support trial court of that closing argument. fear its tion of A.A.’s government “did not discuss” stated that testimony acknowledged the physical for The trial court A.A.’sfear of abuse as a reason Lindsay Lindsay, opined but that Dr. of Dr. report until her failure to the sexual abuse only explanation proffer “did not fear as appears may late 1997. It that the court reporting." (Emphasis in the delayed prosecutor’s overlooked the remarks in the from Dr. opinion.) The court inferred court’s opening closing argument statement and testimony of a trusted Lindsay’s that “absence quoted opinion. The court also earlier in this child and take the will believe the adult —who discounted A.A.'s statements that she was family pro- member as a place of the abusive might of” and afraid that he "afraid depen- factor for a another critical tector—is insane,” "go construing con- them as “more so, fear of the may be dent child.” That impact him of her sistent with fear of the on principal, certainly if not abuser family relationship destroying a close than of Lindsay offered. only, explanation that Dr. added.) beating.” (Emphasis While fear of a proffer ex- may possible such government be a construction of A.A.’s did not 13. The words, hearing. testimony § support pert at the 23-110 in the balance of it finds no that, in trial would have been differ- failing to discover and “assume[d]” jury present testimony, appel- testimony the co-worker ent had the heard not, fact, lant’s trial counsel “did exer- co-workers. Id. 174-75.14 conscious, professional cise the kind of II. court, judgment reviewing applying that a hindsight, second-guess.” should not Id. principles governing The basic at 173. Amendment our evaluation Sixth inef fective assistance of counsel claims are so, reasoned, majority

Even judging well-settled. “The benchmark for performance counsel’s could not be held any claim of ineffectiveness must be deficient, constitutionally hypo- because conduct so undermined whether counsel’s lawyer actually thetical who had discover- proper functioning of the adversarial ed the co-worker evidence could have process that the trial cannot be relied on made a reasonable tactical choice not to having produced just result.” Strick present it: Washington, land v. had, fact, [SJuppose that trial counsel (1984). An 80 L.Ed.2d 674 S.Ct. thorough investigation conducted a more claim therefore has ineffective assistance coworkers, obtained all the Cosio’s components: two § presented information at the 23-110 First, the defendant must show that hearing, consciously and then decided performance was deficient. not to use it out of a concern that the requires showing This that counsel made relationship” testimony might un- “close errors so serious that counsel was not dermine the fabrication defense based functioning guaranteed as the “counsel” Strickland, resentment. sustained defendant Sixth Amendment. believe, required we would have us to Second, the defendant must show so, If judgment. defer to that that is performance prejudiced the deficient the presented then the fact that trial counsel showing This that requires defense. actually a fabrication defense without counsel’s errors were so serious as to available, coming grips to with the addi- trial, defendant of a fair deprive the tional evidence on the fear issue offers result is reliable. whose revising that con- principled no basis for clusion. 687, considering 2052. In Id. at 104 S.Ct. Given, components, “the ultimate focus especially, per- Id. at 174. what it these two difficulty reconciling inquiry of must be on the fundamental ceived to be the of result is proceeding evidence of affection with the defense fairness of the whose challenged. every In case the court strategy showing deeply being of that A.A. re- whether, despite majority the also found should be concerned with appellant, sented reliability, of the strong presumption that the outcome the probability no reasonable it, majority’s dissenting with the contrary elected not to use and 14. In the view of the judge, appellant “received ineffective assis- had sustained no assessment and, result, tance from his trial counsel as a Judge the prejudice. Schwelb concluded that opportunity possibly and lost an to undermine relation- co-worker evidence of an amicable principal credibility the of the witness shatter ship would not between A.A. J., (Schwelb, against him.’’ 853 A.2d at 184 fabrication, of have undermined the defense disagreed, partic- dissenting). in The dissent question a serious but "would have raised ular, hypo- majority’s that a the rationale fear, jury’s regarding claim of the mind A.A.’s competent attorney had discov- thetical who her claim of abuse.” Id. at 196. and even of testimony might have ered the co-worker

H23 every to elim- unre- effort be made particular requires result of the is proceeding to distorting hindsight, ad- inate the effects because of a liable breakdown counsel’s the circumstances of counts reconstruct process system versarial that our conduct, 696,104 to evaluate challenged just on to Id. at produce results.” counsel’s perspective conduct from 2052. S.Ct. “The must then deter- time.” Id. court performance “[B]oth whether, light all the circum- mine components prejudice of the ineffective stances, identified acts or omissions inquiry questions are of law ness mixed profession- the wide range were outside On and fact.” Id. 104 S.Ct. 2052. 690, 104 competent Id. at ally assistance.” accept findings we the trial court’s appeal, 2052. S.Ct. evidentiary support fact unless lack States, Byrd record. 614 v. United determination, making (D.C.1992). 25, 30 review the A.2d We keep in mind that coun “the court should legal trial court’s de novo. determinations ... is to adversari sel’s function make the see, Id.; Little, 851 e.g., United States v. testing process particular work in the al (“[W]e (D.C.2004) n. A.2d 10 proper functioning case.” Id. legal owe no deference trial court’s adversary appropriate process demands conclusion as counsel was defi whether preparation by counsel. cient.”); States, Chatmon v. United States, v. A.2d See Monroe United (D.C.2002) (“[O]ur 92, 110 A.2d review (D.C.1978). The defer presumptive novo”). prejudice prong is de fully owe informed ence that courts withheld decisions of counsel therefore is A. Trial Counsel’s Performance inexcusably un from decisions are attorney proper “The measure of or under-informed. Under informed guarantee, a criminal performance simply reasonable Amendment remains Sixth prevailing under entitled benefits of professional ness norms.” defendant to the Strickland, 688, 104 informed and choice judgment S.Ct. alternatives; objec it is Accordingly, among defendant’s burden is reasonable counsel to representation tively show that fell unreasonable defense “counsel’s objective im uninformed about an below standard of reasonable make an decision for do strongly pre justification ness.” Id. matter without portant “[C]ounsel is in Supreme to have assis said adequate ing sumed rendered so. As Court Strickland, in after significant “strategic tance and made all decisions choices made investigation and facts professional thorough the exercise of of law reasonable virtually 690, plausible are judgment.” options Id. 104 S.Ct. 2052. relevant to “strategic choices Recognizing may unchallengeable,” “countless there be investiga than provide any complete made after less ways effective assistance case,” precisely to the extent easy and that too for tion are reasonable given “it is all court, professional judgments examining defense after reasonable a counsel’s unsuccessful, investigation.” support to conclude the limitations on proved it has Thus, 690-91, 104 2052. act of counsel Id. at S.Ct. particular that a or omission unreasonable,” duty has a make reasonable Supreme Court “counsel de or to scrutiny investigations make reasonable “[j]udicial cautioned that has investigations particular makes highly def cision that performance must be 691, 2052. 689, unnecessary.” “A Id. at 104 S.Ct. 2052. erential.” Id. 104 S.Ct. therefore, case,” “a any “In ineffectiveness attorney performance fair assessment particular investigate decision not to must his mother and while the care of a directly be assessed for reasonableness in parents.” series of foster Id. at circumstances,” id., taking courts, all the into ac Reversing S.Ct. 2527. the lower quantum count “not of evidence Supreme Court held counsel’s in- counsel, already known to but also whether vestigative performance was deficient and the known evidence would lead reason performance preju- that the deficient attorney investigate able further.” words, that dicial—in other counsel were Smith, 510, 527, Wiggins v. 539 U.S. 123 constitutionally ineffective. (2003). 2527, 156 S.Ct. L.Ed.2d 471 question investigative On the of deficient majority opinion took I Cosío performance, the Court reiterated that position that a failure to cannot investigate “strategic choices made after less than (or be held to performance be deficient complete investigation are pre- reasonable matter) prejudicial, for that any unless cisely profes- to the extent that reasonable reasonably competent necessarily judgments support sional the limitations presented would have at trial the evidence investigation,” and that “counsel has a investigation that the would have discover- duty investigations to make reasonable Wiggins, ed. the Supreme Court made to make a that makes reasonable decision stringent clear that no showing such unnecessary.” particular investigations required prong for either of Strickland. (quoting Id. at 123 S.Ct. 2527 Strick- All that need be shown is a “reasonable 2052). land, 690-91, 466 U.S. at 104 S.Ct. probability” competent that a Applying principles, Wiggins those would have utilized the undiscovered evi- explained “principal concern Court its dence; strictly speaking, the likelihood in deciding whether exercised [counsel] that the evidence been used is professional judgment reasonable is not prejudice part inquiry, part presented whether counsel should have performance evaluation. Rather, mitigation case. we focus on case, The issue in as in Wiggins, this investigation supporting whether the coun-

was whether defense counsel conducted mitigating sel’s not to decision introduce investigation. insufficient The claim in Wiggins’ background evidence of was itself Wiggins from stemmed “counsel’s decision 522-23, reasonable.” Id. at 123 S.Ct. scope investigation limit of their into (emphasis original; quota- in the internal potential mitigating evidence” for use at omitted). tion marks and citations sentencing. 123 S.Ct. Thus, determining whether the inves- Although counsel had conducted deficient, tigation by Wiggins’ counsel was mitigation they some into — the Court did not consider whether counsel arranged psychological testing necessarily present- would or should have presentence investiga- had reviewed the at trial. In- ed the undiscovered evidence report tion other social rec- services stead, investigation found the the Court ords, 523-24, see id. at 123 S.Ct. 2527— (1) prevailing profession- because deficient they had failed to look further into the cir- thorough al standards demanded a more of the defendant’s life com- cumstances investigation mitigation into than counsel missioning pre- a social worker to forensic (2) 2527; 524, at 123 S.Ct. performed, id. pare history report. a social Had so, existing social services records that the done counsel would have discovered contained leads that physical and sexual counsel did review “evidence the severe triggered follow-up, further petitioner abuse suffered at the hands of should have

H25 (3) murder, the two 525, 2527;15 the sponsibility id. 123 S.Ct. at countervailing grounds strategies to conclude are not necessari- sentencing no Moreover, investigation that have been mutually given further would ly exclusive. “fruitless,” at “counterproductive” evidence, or id. a strength of the available the (4) 525, 2527; 123 S.Ct. the “failure attorney may well have cho- reasonable inat- investigate thoroughly resulted from mitigation case prioritize the sen tention, strategic judgment.” not reasoned challenge, responsibility over the direct 526,123 Id. S.Ct. at 2527. given Wiggins’ history particularly that edge little of double we contained that failure to concluding After counsel’s investiga- justify have found to limited mitigating Wig- discover evidence in other omit- [Citations tions cases. gins’ history deprivation and mistreat- unreasonable, ted.] turned ment was the Court investiga- consider whether deficient dissent maintains nevertheless prejudiced Wiggins’

tive de- performance would not have Wiggins’ prejudice, Wiggins’ fense. To establish strategy focusing their altered chosen “a proba- burden was to show reasonable exclusively Wiggins’ responsi- direct that, bility but for unprofessional But bility for the murder. [Citation] errors, the result of the would proceeding clear, have made counsel were we have been different.” at strategic to make position a a reasonable Strickland, (quoting S.Ct. 2527 at U.S. on Wig- choice as to whether to focus 2052). 694, 104 S.Ct. The core of the responsibility, direct the sordid de- gins’ analysis unmistakably Court’s makes clear both, history, tails of his life because does a Strickland not demand show- their choice supporting ing necessarily that counsel have would was unreasonable. evidence, made use of the undiscovered 535-36,123 2527.16 Id. S.Ct. only showing of a proba- reasonable bility Following Wiggins, that counsel have done so: we hold would assessing alleged shortcomings that in both the the extent

Given nature and by appel investigation performed suffered, petitioner find the abuse we case, present counsel in lant’s trial probability there to be a reasonable should have issue “is not whether counsel competent attorney, that a of this aware ought at trial the evidence presented” history, would have it at sen- introduced been discovered. Id. it to have tencing in an admissible form. While Rather, must “focus on 2527. we may have defen- S.Ct. strategically well been investigation supporting coun upon reasonably thorough sible inves- whether evi- [such] re- not to introduce Wiggins’ to focus on direct sel’s decision tigation defense,’ despite reasonably attorney mitigation "[A]ny competent 15. conceivable pursuing leads alleged have realized these choice on would that counsel based this fact making necessary to informed choice made was an unreason- what we have clear light among possible "In defenses....” Id. objectively investigation, unrea- was also able actually [social records] of what the services Id. 123 S.Ct. sonable.” revealed, their ... counsel abandon chose to juncture, investigation at an unreasonable jury "had the Court went on find that 16. The respect fully making a informed decision with considerable miti- confronted with this been sentencing strategy impossible.” Id. at evidence, proba- gating there is a reasonable result, 527-28, 123 S.Ct. 2527. "As with a dif- bility returned that it subsequent to coun- court’s deference [state] 536, 123 S.Ct. 2527. Id. at ferent sentence.” every strategic present decision not 'to sel's 1126 (em ... play.

dence was reasonable.” Id. such deference does not come into itself phasis original). Similarly, in the the issue complains of Appellant counsel’s in evaluating performance counsel’s is not readily failure to ask the available and strategy the reasonableness of the counsel apparently knowledgeable co-workers trial, ultimately pursued what knew about A.A.’s relationship investigation “the reasonableness and whether she was afraid 527, support said to strategy.” Id. strategic of him. “offered no Counsel ex- investigation 123 S.Ct. 2527.17 Deficient planation failing pursue these ave- ground cannot be excused on the that a investigation. nues” of Poindexter v. competent attorney, aware of the evidence (6th Cir.2006). Mitchell, 564, 454 F.3d 579 that an adequate investigation would have § At hearing, agreed 23-110 uncovered, could have made an informed that A.A.’s was judgment pursue strategy an alternative necessary subject investigation, of his and not utilize that evidence at trial.18 If alleged and that A.A.’s fear of investigation we conclude that counsel’s important an It simply issue. did not right was unreasonable in its own —after question occur to him to the co-workers “eliminat[ing] distorting effects of matters, admitted, those Strickland, 689, 104 hindsight,” 466 U.S. at investiga- even after he had received his 2052, “by pegging adequacy S.Ct. to ‘coun report, tor’s because he “focused” on the perspective investigative sel’s at the time’ character possible co-workers wit- made,” Rompilla, decisions are 545 U.S. at inquiry nesses. The failure to make this 381, Strickland, (quoting 125 S.Ct. 2456 of the co-workers thus “was not the sort of supra) the performance prong of an — then conscious, reasonably informed decision claim ineffectiveness under Strickland is attorney eye made with an to bene- satisfied.19 ... fitting his client that courts have de- ‘strategic’ especially nominated and been When the reason we assess Hollins, actions, reluctant to disturb.” Pavel v. ableness of counsel’s we owe def (2d Cir.2001). 210, Rather, 261 F.3d strategic erence counsel’s informed 218 case, however, present investigative choices. In the “resulted omission Quarterman, 17. Accord. Conner v. 477 F.3d not to call them on account of their nesses 287, (5th Cir.2007) ("The judgment impeach- 293-94 poor vulnerability to demeanor or 1313, whether counsel’s was reason- Riley Payne, ment. v. 352 F.3d 1324 able, strategy not whether counsel’s trial (9th Cir.2003); Debango, United States v. reasonable.”) (citation omitted); Outten v. 419, 423, U.S.App. D.C. 780 F.2d (3d Cir.2006) Kearney, 464 F.3d (1986). (The strengths witnesses’ and weak- ("[T]he question not whether before us is relevant, however, nesses would be in evaluat- mitigating have ev- counsel should introduced ing probability prejudice flowing from investigation sup- idence .... It is whether counsel.) performance of the deficient porting not to introduce counsel’s decision mitigating evidence ... was itself reason- teaches, Wiggins wheth- 19.And as the test for able.”) (internal quotation and citation marks performance prejudiced er the deficient omitted). competent attorney whether a defense is not certainly would have chosen to introduce attorney’s negli- example, 18. For a defense discovered, have been evidence should gent exculpatory failure to look for and find proba- "a but whether there exists reasonable objectively unrea- witnesses would constitute bility competent attorney that a ... would constitutionally per- deficient sonable it ...” and achieved a better introduced to an formance even if a court would defer Wiggins, judgment by competent attorney outcome. S.Ct. informed at 1132-33. who had located and interviewed such wit- 2527. See infra

H27 coun- inattention, appellant’s out trial strategic gation carried from not reasoned 526, he confronted judgment.” Wiggins, U.S. 123 sel under the circumstances 539 no Consequently, we owe def- a rea- duty S.Ct. 2527. in The to conduct this case. to present erence the case not investigation “does thorough sonably to the of his investi- “judgment” scope as lawyers the globe force to scour defense judgment. gation; counsel made such no something up.” will turn the off-chance 383, U.S. at 125 S.Ct. Rompilla, 545 beginning That is the of omitted). However, (citation defense inquiry. Ultimately, our relevant “[t]he a to obligation has a basic “conduct counsel choices question is not whether counsel’s investigation the circumstances prompt of they were rea strategic, were but whether leading explore all avenues of case Flores-Ortega, v. sonable.” Roe U.S. to merits of the case to relevant facts 481, 470, 1029, 120 S.Ct. 145 L.Ed.2d 985 the event of conviction.” penalty omitted). (citation (2000) final In the anal States, 700 A.2d v. United objec our is an ysis, task under Strickland Pettiford (D.C.1997) Bar (quoting American 216-17 attorney’s igno tive one. “Even where an for Criminal Jus- Association Standards precludes rance of law and facts relevant 4-4.1(a) (3d tice, Function The characterizing court from certain actions Defense (and ed.1993)). this as succinct strategic presumptively as therefore We take reasonable), pertinent question objective ... un articulating the stan- statement of prong der the first remains Strickland to the applicable dard reasonableness whether, considering after all the circum duty investigate of rea- to standard —the case, attorney’s repre stances of the apply this that we must sonableness objectively sentation was unreasonable.” Rompilla, case. See Carver, Bullock v. 297 F.3d 1050-51 (referring to the ABA Stan- S.Ct. 2456 (10th (citations Cir.2002) omitted); accord guidance determining dards what Pavel, Thus, at 217 261 F.3d n. 7.20 we investigation prevailing under reasonable challenged must assess whether inves practice). norms of tigative objectively omission was unreason able under the counsel circumstances con per considerations following competent attorney fronted. If a defense the failure of suade us that reasonably in trial counsel’s could shoes ask co-workers counsel forego questioning appel have decided to below about his interactions with fell regarding lant’s their co-workers knowl objectively per reasonable level A.A., edge of then his with, in in begin order to formance. To that inqui trial counsel’s failure conduct client, against vestigate charges his ry part cannot be needed to investi unquestionably constitutionally perform deemed deficient relationship between gate thoroughly the care, A take reviewing ance. court must As counsel himself appellant. A.A. and course, objective slap label of hearing, just § “it’s at the 23-110 testified on fanciful or unrealistic reasonableness basic, just type in this implicit ... it is attorney’s for an conduct. rationalizations do going to is] case [defense level, fundamental turn, therefore, that.” At the most to consider

We compulsory investigation would be objective of the investi- such reasonableness cases, sure, objectively deficient manner.” in an many lawyer’s formed "[i]n 20. To be Bullock, (citing F.3d at 1050 numerous law will [or facts] unawareness of relevant cases). finding per- illustrative also in a that counsel result 1128 dent”) (internal

ascertain actual whether A.A.’s quotation behavior marks and cita- with appellant omitted). consistent or inconsis- tion tent charges long-term with the of abuse Appellant’s trial counsel conceded at the him, that she against leveled and whether § hearing 23-110 that he did not under- anything in relationship supplied their investigate take to whether A.A. was AA. with a motive to fabricate those Arguably, afraid of appellant. we could See, charges. Ozmint, e.g., Tucker v. 350 treat that concession as an admission that (4th Cir.2003) (“Trial F.3d his investigation deficient. Counsel have an obligation investigate possible did testify, that though, investigated prosecution methods for a impeaching wit- A.A.’s general- ness, may do so failure to constitute ly, through inquiries family of members counsel.”) (cita- ineffective assistance of omitted).21 scope friends. The general tions pretrial Notice from unclear, government, investigation the alleging perhaps it was beat A.A. young when she was broad enough and that to discover whether A.A.’s delayed she reporting his sexual abuse be- behavior was consistent with her claims. him, cause she only was afraid height- hand, by indications, On the other all ened the need investigation for such family interviews of and friends developed sharpened necessary its focus. It would no materially helpful evidence regarding any competent been obvious de- the relationship appel- between A.A. and fense attorney in trial counsel’s shoes that none, least, that way found its into lant — long A.A.’s to complain failure of abuse appellant’s trial or was revealed at the potential was a vulnerability that could be § 23-110 hearing. question The real be- exploited if evidence were found to refute us, therefore, fore is whether counsel government’s seemingly plausible ex- pursued inquiry should have ap- planation Thus, for that failure. we have pellant’s co-workers as well. any competent no doubt that defense at- Ordinarily, might defense counsel not torney would have appreciated the need to expect a defendant’s co-workers to be a investigate whether A.A. was afraid ap- source of information about the defen- pellant. 385-87, Rompilla, U.S. at Cf. intra-family relationships. dant’s At the (holding S.Ct. 2456 that when defense representation outset his of appellant, counsel is to trial prior pros- informed might have had little reason ecution damaging intends introduce evi- to think that the co-workers could tell him defendant, against dence counsel must anything useful about his client’s relation- make to investigate reasonable efforts ship evidence); Bullock, with A.A. and whether she was afraid 297 F.3d at 1050 Moreover, of him. is no (“clearly there evidence in negligent treatment of a crucial deficiency prosecution’s record that told his trial case or an strength obvious of the defense will counsel to render look to co-workers for such an attorney’s performance overall defi- information.22 (citation 21. "The reasonableness of the ineffective assistance.’" Id. omit- depends, ted). case, part, upon importance present In the A.A.was the crucial trial, prosecution’s 'Although witness to the prosecution case: witness on whose credi- lawyer’s investigate failure to bility government’s witness who case rested. may has been identified crucial indicate an based, inadequate investigation, usually quite the failure are to investi- "Counsel's actions gate everyone happens supplied name properly, by whose to be ... on information Strickland, mentioned suggest the defendant does not defendant.” 466 U.S. at

H29 helpful no counsel had other assessing “In reasonableness And trial however, present attorney’s investigation, through whom he could witnesses quantum court must those consider theme. Under that central defense counsel, already of evidence known to circumstances, at- any competent defense known would also whether the evidence surely torney position in trial counsel’s attorney investigate to lead a reasonable advantage oppor- taken would have 123 Wiggins, further.” tunity the co-workers what explore to with view, report that S.Ct. 2527. In our say appellant’s interac- could trial his appellant’s counsel received from (and family). tions A.A. the rest of with trial should investigator months before (and any siblings) complain A. her Did A. of appel him to probe have led further what mistreatment, under di- appellant’s chafe rela lant’s co-workers knew about A.A.’s rection, him? How appear to resent with learned tionship appellant. Counsel she appellant? act around Did did A.A. things of investigator several from his to or evade him? Did she fear try avoid great interest. He learned potential act if he mistreated appellant and as mem the co-workers knew A.A. and other appellant did behave toward her? How family. The appellant’s bers of co-workers members)? (and family A.A. other Did girl looking A.A. perceived as an immature to discipline seek her misbe- family. They her for affection outside did and, so, havior, if react? Did how did she why accusing not “understand” she mistreat A.A.? How did appellant ever abusing They of her. viewed siblings A.A. react appellant, other figure” “the father who told she loved when their mother them family.” They report out for his “look[ed] investigator’s re- appellant the best? appellant’s openly ed favored mother triggered would have these simi- port him his siblings over and told them so. any of questions lar the mind reasonable They jealous of siblings believed the to be impelled counsel and counsel defense appellant. suspected that sib They would an- discover what the co-workers lings of had fabricated the accusations swer. way of he get abuse to him out so that would not continue to them around.” second, why “boss There related reason is have trial counsel should inves- This information indicated that the co- knowledge of A.A. co-workers’ tigated the actually had A.A.’s rela- workers observed appellant. relationship with and her than that— tionship appellant. More potential the co-workers as Counsel viewed might it indicated that the co-workers well witnesses, actually and he called character support be witnesses who could trial coun- testify appel- trial two them contemplated theory sel’s defense law-abiding hard-working and lant was a immature, attention-seeking, these selecting preparing person. easily teenager, influenced her troubled witnesses, anticipate needed to siblings, jealous who had fabricated testimo- that the introduction of character against appellant long- out accusations wide-ranging ny open the door to standing resentment over his efforts cross-examination, cross-examination. On discipline them and control their behavior. case, however, anticipate expected to the best be should not S.Ct. 2052. This given every rea kind of in- the "defendant has volunteer where defense and then investiga pursuing certain support son believe that of it.” he or she has in formation or Id. would be fruitless even harmful.” tions A.2d at 172-73. I, majority client "[a] As the stated in Cosio prosecutor might probed family dynam- have the wit additional familiarity ness’s Appellee behavior ics.” Brief 27. As we A.A., indicated, however, including any specific already toward bad the rec- positive government’s acts inconsistent with the charac ord description belies the (whether performance ter trait not such every asserted acts almost conviction). particular. had culminated a criminal supposedly While counsel in- States, See v. vestigated among Michelson United “relationships family U.S. 469, 479, 482, through 69 S.Ct. family L.Ed. 168 members” interviews of States, (1948); friends, v. Rogers United 566 A.2d and did apparently not learn 69, (D.C.1989); 73 see anything actually also Kenneth S. about how A.A. behaved (6th Broun, § admittedly McCormick on Evidence he did appellant; not focus ed.2006) (noting any that on “almost accusa whether she was fearful of him. And settled, tion” seem to a general would relevant while point, counsel at some on the being trait law-abiding). prosecu theory like The explain why “resentment” to tor also explored could have whether would falsely appellant, theory accuse that against Clay hardly witness was biased A.A. See “compelling” deserves to be called States, 956, borne v. United 751 A.2d 962 in sup- view of the absence of evidence to (D.C.2000). port In order to make an it informed at trial. particular decision a about whether to call addition, In trial counsel’s failure to ask witness, co-worker a it as character there appellant’s co-workers about A.A.’s inter- fore was to inquire incumbent on counsel him actions with and whether she was

what, if anything, that co-worker knew explained afraid of him cannot be as “a appellant might A.A. and that come strategic decision” to his limited focus re- out on If that inquiry cross-examination. maining and on developing time resources performed, been counsel would have theory “resentment” “instead of’ con- discovered that A.A. ap tinuing “family investigate dynamics.” to peared enjoy to a friendly relationship.23 thing Counsel testified to no such —he government argues “strategic that trial made forego coun- no decision” to in- quiry co-workers; sel’s ask failure to the co-workers about he had the time A.A.’s relationship with cannot to them resources interview and he so; be deemed deficient counsel did nothing prevented because “con- him from thorough investigation asking ducted a which in- them those interviews whether cluded relationships among family A.A.’s behavior actual was consistent or members, a compelling devised defense inconsistent her claims fear and [i.e., theory Moreover, theory abuse. “resentment” the “resentment” theo- accusations], ry dynamics, to depended family’s A.A.’s motive fabricate her so it strategic and made a makes to suggest decision focus his no sense that he chose to remaining theory by looking limited time and resources on focus on that else- Indeed, discussed, theory than developing pursue that rather where.24 as we have discovery suggests government It is immaterial that this 24. The counsel necessary investiga- felt it to concentrate his serendipity,” if “rest[] on for counsel was probing tive co-workers, resources on A.A.’sattachment to obliged to interview the he hope establishing her tutor in the her moti- reasonably ignored” helpful "could not appellant. § At the vation to lie about 23-110 "simply unexpect- evidence [it was] because hearing, did state that wanted to Rompilla, ed.” 391 n. investigate tutor more thor- S.Ct. 2456. However, claim, oughly. counsel did deciding ney investigate further” before appeared possible to be co-workers pursue. Id. strategy the what support source of much-needed defense, doubly “resentment” it is sur- so sum, this is not a case pursue prising counsel did not a reasonable deci where counsel made question putative of A.A.’s resentment investigation further sion to cease appellant with them he received his after ... evi having result of “discovered investigator’s report.25 suggest challenging dence ... that” prosecution’s evidence “would [fear] Trial omissions investigative counterproductive, have been justified argument cannot be with the investigation would have further been impeaching A.A. with that she evidence Wiggins, 539 U.S. at fruitless.” liked been inconsis- would have this S.Ct. 2527. Nor is a case “dili theory tent with defense that A.A. ... a line when gent drawing] appellant. “post-hoc ra- resented Such a to think further good reason [he has] tionalization,” Wiggins, 539 U.S. at [of would be waste time 2527, 123 puts S.Ct. the cart before Rompilla, resources].” U.S. [545 unper- horse. Counsel committed to the 383, 125 S.Ct. 2456]. theory prematurely, suasive “resentment” Senkowski, 426 v. F.3d Gersten having thoroughly investigated without (2d Cir.2005). Instead, this is case relationship between A.A. and Cosio. His which, objectively speaking, trial counsel adoption of the theory “resentment” there- strong to ask co- reasons fore not kind pro- was of “reasonable A.A., relationship workers about his with judgment[]” fessional could support good and no reason not do so. Counsel the curtailment of further defense investi- investigate reasons to strong likewise had Strickland, gation. See 466 U.S. at 690- claim that A.A. was prosecution’s Abandoning 104 S.Ct. 2052. an inves- good no reason not appellant, afraid of tigation juncture” “at an unreasonable compelled to conclude to do so. We are professional judgment makes a reasonable investigative omissions were that counsel’s 527-28, impossible. Wiggins, unreasonable, hence that objectively 123 S.Ct. 2527. The mere fact that coun- constitutionally performance counsel’s respect sel “had some information to” with deficient. appellant’s family relationships not does prong the second of a We next consider yet position mean that in a analysis, whether the which is Strickland strategic make a reasonable choice not to prejudiced appel- performance deficient present an alternative defense based lant’s defense. A.A.; impeaching not es- “Strickland does cursory investigation that a auto- tablish Prejudice B. matically justifies a tactical decision with ... to obtain relief on respect strategy.” Id. In order of coun of ineffective assistance grounds S.Ct. 2527. What sel, must that there defendant show “[t]he “would a reasonable attor- [have led] knew argument not suggest, government’s also does that his 25. The the record does not desire explain why did select and trial counsel relationship on A.A.’s with Ledesma focus prepare potential witnesses character prevented asking him from the co-workers they knew about properly by finding out what relationship appellant. appellant. A.A.'s is a that, reasonable probability discussed, previously As the Su professional errors, the result of preme Court’s decision in Wiggins eluci proceeding would have been different.” dates the dual aspect prejudice in Strickland, 694, 104 466 U.S. at quiry S.Ct. 2052. required question when the error in “a Where defendant challenges a convic an investigative is omission resulting in tion, question is whether there ais counsel’s failure to discover evidence fa that, probability reasonable absent the er vorable to the defense. We must inquire, rors, the first, factfinder would have had a rea whether there is “a proba reasonable sonable doubt respecting guilt.” Id. at bility that a competent attorney, aware of 695, 104 S.Ct. 2052. “A proba evidence], reasonable favorable [the would have intro bility a probability sufficient to under duced it at in an form”; admissible [trial] mine confidence in so, the outcome.” Id. at if whether, then we must ask “had the 694, 104 standard, S.Ct. 2052. Under this jury been confronted with this ... evi “a defendant need dence, not show that counsel’s there ais reasonable probability deficient conduct likely more than not al that it would have returned with a differ 535-36, tered the outcome the case.... The ent Wiggins, [verdict].” 539 U.S. at result of a can proceeding be rendered S.Ct. 2527. unreliable, and hence the proceeding itself case, present the evidence that unfair, even if the errors of counsel cannot appellant’s trial counsel failed to discover be shown preponderance of the evi was potentially powerful impeachment of dence to have determined the outcome.” key witness prosecution. for the Ac- 693-94, Id. at 2052; 104 S.Ct. see also tions speak often do louder than words. Benitez, United Dominguez States v. Several credible witnesses who had exten- 74, 83, U.S. 124 S.Ct. 159 L.Ed.2d personal sive contact with appel- A.A. and (2004) (“The reasonable-probability lant over the period, relevant time from as, standard is not the same and should through could have testified with, not be confused a requirement that a personal from knowledge that actively A.A. prove by defendant preponderance of the sought to be with appellant, enjoyed his evidence that but for things error company, was relaxed and comfortable different.”) (citation omitted). have been him, and overtly friendly was and

In determining whether there ex affectionate toward him. The witnesses ists a probability reasonable that the out sign saw no that A.A. was by intimidated come of the trial would have been appellant him; different or ill at ease with on the had performance not contrary, been defi they perceived happy girl in a cient, we must consider totality normal brother-sister relationship. This Strickland, evidence adduced at trial. 466 evidence of A.A.’s actual behavior would U.S. 104 S.Ct. 2052. “Some errors have in been stark contrast with A.A.’s n will pervasive have had a that, effect on testimony throughout the same time evidence, inferences to be drawn from the period, appellant tormenting was her with altering the entire evidentiary picture, abuse; and sexual that she was physically isolated, some will him; have had an trivial ef afraid of unhappy she was and Moreover, fect. a verdict or “always” conclusion wishing she had a normal life. only weakly supported by the By record is undercutting merely not A.A.’s “fear” likely more to have been affected errors explanation telling anyone for not ap- than one with overwhelming sup pellant her, record molesting was but also the port.” 695-96, 104 Id. at S.Ct. 2052. believability very of her assertion that he

H33 any de- so, testimony- competent doing probability the co-workers’ sonable impeached credibility attorney A.A.’s toto. Per- recognized would have fense haps A.A.’s claims could have been recon- using evi- attractiveness the co-workers’ behavior, ciled with her observed but A.A. cast doubt on impeach and dence existing are not reconciled on the record veracity. her § and hearing. 23-110 It is “affection” true that co-workers’ appellant not What lost this case was evidence would have been odds with the merely the to call opportunity his co-work- theory of A.A.’s motive for “resentment” witnesses, also—and ers as defense The tension lying appellant.26 be- perhaps critically opportu- even more —the proving re- proving tween affection nity to herself on confront A.A. cross-ex- appar- sentment would been with the amination contradiction between forego impeaching A.A. with ent reason her words and her deeds. In her direct testimony. But it is not a the co-workers’ examination, portrayed ap- A.A. herself as Establishing that A.A. persuasive reason. miserable, pellant’s frightened victim. She longstanding a deep-seated had re- to appellant persecutor. referred as her appellant much of sentment surely pressed would have been hard expect defense. One would A.A. to have testimony to explain squared how her profoundly if he had resented displayed fondness she had toward molesting been her as she said had. appellant, delight she had exhibited For resentment defense to have his company, lengths and the to which she all, worked at there needed substan- be gone had order to with him. be Wheth- very strong had er tial evidence that A.A. A.A. would have denied the accounts nursing given by co-workers, developing reasons for appellants’ claimed visiting abiding into coerced her hatred for other than the affection, him showing him sexually offered that he had abused her. fact conduct, some other rationalization of her Merely showing appel- that A.A. resented all, explanation credibility had no proving strong lant without such reasons scrutiny would have been under intense helped would not have the defense the strain, way in a and to an that extent have slightest only would corroborated —it it never at appellant’s actual trial. appellant had mistreated A.A.’s claim that Merely identifying trivial reasons for her. go say any We need not so far as to that annoyed to A.A. have been necessarily competent attorney defense Trial equally unhelpful. have would been have presented would the co-workers’ tes- suggestion comparatively counsel’s that it, timony and cross-examined A.A. about A.A. grievances minor familial motivated likely or that it is than that even more not of falsely accuse her own brother the to any competent attorney would done have likely crimes would have most heinous probabili- so. The standard is reasonable if the had unconvincing been even evidence ty, given probative value of co- testimony, it. supported workers’ there at least a rea- strategies began Arguably, though, to interfere with an adolescent crush 26. defense based purportedly developed on her tutor. Be proving not she on affection and resentment "are most, all, may, if necessarily Wiggins, we observe that not mutually exclusive.” that as it by points Appellant S.Ct. made 539 U.S. at of possible closing argument compatible with in his were contends that it would have been arguing by explaining presenting the co-workers' affec- two that harmonize the themes appellant quite tion well until evidence. A.A. had liked above, appellant’s implications As we have discussed of prolonged A.A.’s failure to trial counsel was not able to com establish report being mistreated.27 The introduc- pelling reasons A.A. to have fabricated of impeaching tion substantial evidence not allegations. her Lacking evidence but expla- A.A.’s accusations also her A.A. had a powerful motive to lie about keeping nation for silent about them28 appellant, counsel had all the more need to might pervasive well have had “a effect impeach her with the co-workers’ evidence ... altering evidentiary entire pic- that she had shown affection for her al Strickland, 695-96, ture.” 466 U.S. at leged persecutor. abuser and Because amicus quote brief, To S.Ct. 2052. theory of A.A.’s motive to fabri jury reasonable could have found it “[a] weak, any cate was so there was little if incredible that the of accuser went out her thing jetti to be de-emphasizing lost with, way spend time and maintained a soning theory of impeaching favor close, with, friendly relationship the broth- By A.A. the affection evidence. who er had terrorized and her.” abused token, same helpfulness Amicus Curiae Brief of at 17. Had A.A.’s testimony defense the co-workers’ credibility impeached, been it would have merely not have been reduced because trial, been a different at least in the sense testimony would have undermined a very questions different would have theory resentment that was not credible put jury. jury been to the Had the devel- and had any scant value to the defense in oped reasonable doubt about her credi- event. strengths view the relative bility, there would been a different the alternative “affection” and “resent verdict. approaches, ment” we conclude that “a attorney argue It is no may reasonable well have chosen answer to that A.A.’s Wiggins, prioritize” might the former. credibility the im- have survived 535, 123 atU.S. S.Ct. 2527. peachment more or less intact. That can- confidence, any not be said with level We also conclude that there exists inasmuch as record does not reveal probability reasonable that the jury would responded how A.A. would have to the have returned a different verdict it testimony happy teenager that she awas heard the co-workers’ testimony. The who was at ease with and affec- prosecution against appellant case tionate toward him. cannot discount weak, We overwhelming; neither was it it impeachment force by speculat- was a “bare-bones” case that rested almost entirely credibility ing how government might A.A.’s and that had it; potentially to overcome the exculpatory have been able to we meet must confine Although Lindsay government argues Dr. corroborated A.A.’s The that A.A.had other abused, sexually that claim she had been she fear not reasons besides of for re- conspicuously possi- refused to out rule other porting e.g., the sexual she abuse earlier — hymenal injury. ble causes of A.A.’s The thought would believe that mother not can same be said of Dr. Adams. No other her, forget or she wanted to about the abuse witness corroborated A.A.'sclaims. enjoy away she a normal life while was at school, boarding was she too embarrassed recognize 28. We that the trial court made a say argument anything. or ashamed to This finding factual that A.A.’s fear of point. primary is beside the The reason to explaining "not a factor” her silence appellant, which A.A.testified was her fear of through from 1994 1997. For the reasons and this would have been undermined reason 12, supra, are summarized in footnote we testimony. by the co-workers' agree panel to constrained the Cosío I finding clearly that this is erroneous.

H35 us, produce just Strick- the counts on to results.” ourselves to record before which land, 696, at S.Ct. 2052. 104 totality the actu- means to the of evidence § ally at trial and the 23-110 adduced III. 536, proceeding. Wiggins, 539 U.S. Cf. had an on government Having performance

123 2527. The shown deficient S.Ct. hearing appellant’s part consequent the of his trial counsel and opportunity the defense, appellant to his has es- prejudice the of post-conviction motion rebut force the that did not receive effec- tablished testimony. did not the co-workers’ It do by guaranteed tive assistance of suggested, as trial Perhaps, so. the court re- the Amendment. therefore Sixth We prose- the the would have allowed evidence and remand appellant’s convictions verse argue that A.A. not have cution to for a trial. the case new loved; up made lies about a brother she suggests, the it perhaps, government So ordered. admissible, persua- presented

could have RUIZ, concurring: Judge, Associate expert testimony sive to neutralize evi- outwardly appeared dence Judge per- I fully agree with Glickman’s merely appellant.29 possibilities like Such in- the court that the opinion suasive for might how the trial underscore different by appellant’s conducted vestigation not our They judg- have been. do alter and that counsel was deficient jury might ment that the well have disbe- have as a result. We been prejudiced A.A., in case lieved or doubted which two-pronged test of applying familiar necessarily jury would have entertained at performance prejudice deficient estab- appellant’s least a doubt reasonable in- many years, lished in Strickland guilt. probability high enough is that a fair cluding understanding it undermines our confidence in the out- leeway is to accorded amount of be come a trial in sole performance which under evaluating counsel’s through not significantly impeached deficiency accuser was prong. Viewed lens, respect, proceeding all. In that there have crucial that familiar could been to conclude that was “unreliable because a breakdown reluctance understandable system pursued have only our counsel not should process adversarial States, v. report generally it. Battle United 29. See United 795 A.2d than See Mindombe v. 211, ("Mod- States, (D.C.1993) (D.C.2002) (upholding 630 A.2d admission of recognized society, and expert testimony that "child victims of incest em courts abuse, only erroneously always report jurors, believe that the promptly do such often not adults, children, display of a sexual offense victim and that unlike normal behavior abuse, immediately.”) including report range responses offense almost not P.H., (citations omitted). if A.A.’s reacting”); v. But even silence visibly State 178 N.J. (2004) ("CSAAS behavior as described [child and her A.2d necessarily incompatible syndrome] co-workers are not sexual abuse accommodation evi accusations, legiti- the truth of her explains why a child victim dence not co-workers’ testi- may complaint, probative it mate force have made a fresh also impeachment denied. mony cannot be explains the child's as other behaviors such as Cf. P.H., ”); nu- gener (citing cases from 840 A.2d at 816 abuser .... see affection toward the Flint, jurisdictions holding that a defendant ally Rosemary merous L. Child Sexual Abuse at Admissibility present evidence” may “belated-disclosure Syndrome: Re Accommodation (1995). impeach the credibili- a assault trial to quirements, sexual 23 Am. J.Crim. L. 171 aware, complainant). the ty a child or adult do minimize the We are well and not end, fact, jury weigh all the evidence (espe it is for the abuse sad that victims of sexual victims) up in to find the truth. order cially often cover it rather child 1136 (D.C.2002), investigative evaluating

different course but also was 108 that when ac constitutionally deficient for to do failing tions of that do in not arise the qualms so. The basis been for such has investigation context of and as to which by Supreme eliminated the Court’s more may range of permissible op there be a opinions, particularly recent v. Wiggins tions, may eye the court not turn a blind Smith, 2527, 510, 539 U.S. 123 S.Ct. 156 patently sub-par to counsel’s actual per (2003), 471 highlighted L.Ed.2d which have judge acceptable formance and it because all-important investigative the that work other, competent some counsel could—but precede must a for— provides basis arrived at same —and need not—have the deci subsequent to be coun- by decisions taken noted, sion. As we “many have alternative formulating implementing sel in a de- attorneys tactics are available to defense so, In doing Supreme fense. the Court their often products actions are the guide has referred to criteria must strategic made the basis of choices efforts, investigative including counsel’s subjective circum their assessment of the the in practice” “standard the state and at existing stances trial.” Zanders v. the ABA’s for Justice Standards Criminal (D.C. States, 556, A.2d 569 United 678 “long to which the has Court referred as 1996) States, v. (quoting Carter United 475 guides determining what is reasonable.” 1118, (D.C.1984), denied, A.2d 1123 cert (internal 524, quota- Id. at S.Ct. 1226, 1222, 469 U.S. 105 S.Ct. 84 L.Ed.2d omitted). tion marks and citations As I (1985)). investigation The issue of read these cases in the context of Strick- strategy raised here and the issue of trial jurisprudence, appears land the Court in in my at issue Chatmon are view differ 1) identified as a crucial- ways require analy ent in a different ly important phase perform- of counsel’s precisely sis in arena an because the latter 2) case, every in effectively ance estab- judgment, experience, individual counsel’s objective more easily lished a discernible ingenuity, play zeal—and even a de luck— template thorough investigation what a part. cisive- It is reasonable exercise against entails which in- counsel’s actual professional judgment by particular can vestigation be evaluated —even while for lawyer the benefit of her client that is maintaining that the of in- reasonableness representation guaran legal the essence of vestigation light must be viewed in by teed As Sixth Amendment. in particular facts known case as well observed, recently Court “the ‘constitu practical avail- considerations such as tionally protected independence of counsel’ able resources. And counsel’s actual rea- Wiggins, [is] at heart of Strickland.” soning important, remains for one 533, (quoting 123 S.Ct. 2527 finding factors identified for Court Strickland, 466 U.S. at 104 S.Ct. performance Wiggins, deficient 2052). may ultimately However it decide thorough failure in- to conduct question, oppor this court will have inattention, vestigation “resulted from tunity to if when it address issue strategic judgment.” reasoned Id. in an appropriate raised case. 2527. 123 S.Ct. See ante lay my

I out understanding of jurisprudence

Court’s recent area— this myself say

and I speak —to

my agreement signify in this case does not my thinking, change expressed States,

Chatmon v. United A.2d

Case Details

Case Name: Cosio v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Jun 21, 2007

Citation: 927 A.2d 1106

Docket Number: 98-CF-1906 & 02-CO-1453

Court Abbreviation: D.C.