Joshua RICHTER, Petitioner-Appellant, v. R.Q. HICKMAN, Warden; Cal A. Terhune; Ernie Roe, Respondents-Appellees.
No. 06-15614.
United States Court of Appeals, Ninth Circuit.
Filed Aug. 10, 2009.
Argued and Submitted Dec. 17, 2008.
578 F.3d 944
In light of Wilson, we hold that the district court did not err in ruling that Pliego could not raise his lack of knowledge of V.A.P.‘s age as an affirmative defense.
D. Commerce Clause
Finally, Pliego argues that
III. Conclusion
Accordingly, we affirm the judgment of the district court.
Harry Joseph Colombo, Deputy Attorney General, John G. McLean, Supervising Deputy Attorney General, and Mark Anthony Johnson, Deputy Attorney General, Sacramento, CA, for the respondents-appellees.
Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT, DIARMUID F. O‘SCANNLAIN, ANDREW J. KLEINFELD, BARRY G. SILVERMAN, KIM McLANE WARDLAW, RAYMOND C. FISHER, RICHARD A. PAEZ, JAY S. BYBEE, MILAN D. SMITH, JR. and SANDRA S. IKUTA, Circuit Judges.
Opinion by Judge REINHARDT; Dissent by Judge BYBEE
REINHARDT, Circuit Judge:
To ... not prepare is the greatest of crimes; to be prepared beforehand for any contingency is the greatest of virtues.
—Sun Tzu, The Art of War 83 (Samuel B. Griffith trans., Oxford University Press 1963)
At the heart of an effective defense is an adequate investigation. Without sufficient investigation, a defense attorney, no matter how intelligent or persuasive in court, renders deficient performance and jeopardizes his client‘s defense.
Here, counsel did not meet his basic obligation to his client. Much was riding on his performance in this case: his client, Joshua Richter, was accused of murder, among other charges, and faced life imprisonment without parole. Yet, counsel failed to undertake the most elementary task that a responsible defense attorney would perform in a case of this nature, and consequently provided representation that fell well below a reasonable standard of professional competence. Although it was apparent that an issue critical to the outcome could best be resolved through the presentation of forensic evidence, counsel failed at each stage of the case to consult with a forensic expert of any type and thus failed to conduct the rudimentary investigation necessary in order to (1) decide upon the nature of the defense to be presented, (2) determine before trial what evidence he should offer, (3) prepare in advance how to counter damaging expert testimony that might be introduced by the prosecution, and (4) effectively cross-examine and rebut the prosecution‘s expert witnesses once they did testify during the course of the trial. There was in fact no strategic reason for counsel‘s failure to do so. As it turned out, these repeated fail
We conclude that, singly and collectively, counsel‘s failures rise to the level of ineffective assistance of counsel under the Sixth Amendment. There is nothing novel about our holding. Rather, we arrive at the only reasonable conclusion that can be reached, given the facts of the case and the well-established applicable law. We therefore reverse the district court and remand with directions to grant the writ of habeas corpus.
I.
On December 18, 1995, a California jury convicted Joshua Richter (“Richter“) and Christian Branscombe (“Branscombe“) of the murder of Patrick Klein (“Klein“) and attempted murder of Joshua “Gunner” Johnson (“Johnson“), as well as of burglary and robbery. Both young men were sentenced to life in prison without the possibility of parole. Richter and Branscombe were each twenty at the time of the offense and twenty-one years old at the time of conviction.
Almost precisely a year prior to the date of their conviction, on the evening of December 19, 1994, Richter and Branscombe drove to the Sacramento home of Johnson, a close friend of Richter‘s and an acquaintance of Branscombe‘s. The two young men had earlier completed their final day of work at a nearby Christmas tree lot, and Richter‘s boss had paid him approximately $800 in cash. He had also given him the wages owed to Johnson‘s housemate, Tony,1 a friend and co-worker who had failed to show up for work that day. Richter and Branscombe drove to Johnson‘s house so that Richter could pay Johnson some money he owed him out of his newly received earnings, deliver Tony‘s wages, and buy some “head stash” from Johnson, who was a major marijuana dealer.
When Richter and Branscombe arrived at the house, no one was home. They waited in the driveway, in Richter‘s girlfriend‘s car, until Johnson returned shortly thereafter, accompanied by Klein and another friend. Johnson did not immediately recognize Richter‘s girlfriend‘s car, and approached it with his .380 caliber M-12 handgun loaded and drawn. Upon seeing the defendants, Johnson put the weapon away. Johnson, Klein, Richter, and Branscombe went into the house, where they socialized for several hours. While they talked and Johnson, Klein, and Richter smoked marijuana, Branscombe cleaned a .32 caliber handgun that he had recently acquired from Johnson as a means of protection when he worked late nights at the tree lot. Richter and Branscombe left Johnson‘s residence shortly after 2:30 a.m. Klein decided to spend the night.
At trial, Richter and the State of California (“the State“) presented dramatically different accounts of the ensuing events. According to the State, after Richter and Branscombe left, Johnson went to sleep in his bedroom and Klein lay down on the couch in the living room. Johnson awoke somewhere between 4:00 and 5:00 in the morning to find Richter and Branscombe in his bedroom, in the act of stealing his gun-safe, which he said was located in his bedroom closet. Branscombe then twice shot Johnson, who fell back wounded onto the bed. Soon thereafter, Johnson heard gunshots coming from the living room. After Richter and Branscombe left the house, Johnson got out of bed, found Klein lying on the living room couch bleeding, and discovered that his gun-safe, his .380
Richter told a markedly different story. He testified that after leaving Johnson‘s house around 2:30, he and Branscombe decided to go back to the Christmas tree lot where they had worked. Their boss had instructed them to clear out their belongings from the trailer on the property before morning, and, not wanting to go to sleep for a few hours only to wake up early to finish the job, he and Branscombe got his pick-up truck and cleared out the trailer, including the belongings of Johnson‘s housemate, Tony. The two young men then returned to Johnson‘s residence around 4:30 a.m., in order to see whether Tony had come home and to drop off his belongings, along with his pay. Branscombe also intended to return the .32 caliber handgun to Johnson if he was still awake. Richter stayed in his truck in Johnson‘s driveway, smoking a cigarette, while Branscombe knocked on the door and was let into the house by Klein.
Shortly thereafter, Richter heard gunshots. He headed toward the house and heard yelling and more gunshots as he approached the front door. He found Klein lying in the doorway to Johnson‘s bedroom, saw Johnson lying twisted on the bed, and found Branscombe “totally freaked out,” standing in the middle of the bedroom holding a firearm, and shouting, “They tried to kill me.” According to the defense, Johnson, who had earlier been drinking and smoking marijuana, had drawn his .380 caliber M-12 and fired at Branscombe when he entered the room.2 After firing one bullet, the gun—which Johnson had attempted to modify from a semi-automatic to a fully automatic—jammed, and Johnson threw it down. He then took out a second handgun—apparently a .22 caliber that he kept under his mattress and shot at Branscombe, but hit Klein instead. Branscombe then fired three shots with the .32 caliber handgun and hit both Klein and Johnson. After Richter arrived inside the house, Branscombe picked up Johnson‘s M-12 from the floor and ran outside to try to start the truck. Richter panicked and ran back out to the truck as well, and the two young men drove away.
Sometime after the shootings, Johnson made a 911 call to the police.3 Johnson testified that, before the police arrived six minutes later, he made a phone call to his girlfriend‘s father and took two trips through the house and into the yard to hide his marijuana plants. When the police arrived, they encountered a “hysterical” Johnson, who had blood on his cheeks, shirt, hands and right shoulder. The police found Klein lying on top of a sleeping bag on the living room couch, near death.
The initial investigation of the scene uncovered two spent .32 casings in the bedroom, as well as blood on the bed where Johnson said he had been shot. There was a large pool of blood in the doorway to Johnson‘s bedroom, where Richter testified that Klein had been shot. The pool had been disturbed by a foot stomp or
A significant amount of blood was found throughout the house. Investigators photographed and videotaped the scene, collected a few blood swabs, and took some fingerprints, but primarily determined that the scene appeared to be consistent with Johnson‘s account of what had happened and did not pursue an in-depth forensic investigation. The police took a sample of blood from the door molding above the pool of blood in the doorway, but not from the pool itself. They did not perform any blood typing or blood spatter analysis and did not attempt to discover whose blood formed the pool in the doorway until the middle of the trial, nearly a year later, in the belief that the case was sufficient without such evidence.
Richter testified that, upon fleeing the scene in a panic, he stopped briefly at his girlfriend‘s house, while Branscombe waited outside in the truck, and after a conversation about Johnson and Klein drove back to Johnson‘s house to check on his friends. He and Branscombe saw two sheriff‘s cars in the driveway, however, and decided not to stop. Instead, they drove out to a remote area, the Yolo bypass, where Richter, Branscombe, Johnson, and their friends frequently went to hang out and shoot their guns. There, they threw away the .380- and .32-caliber weapons and discussed what to do next. They slept for awhile. When they awakened, they discovered that their truck was stuck in the mud, and after obtaining assistance to get it moving, they eventually returned to town and were arrested shortly thereafter, a day and a half after the shooting.
Following his arrest, Richter, his attorney, and a police detective went out to the Yolo bypass in an attempt to recover the discarded weapons. They could not locate the firearms, but did find a $100 bill in the vicinity. Later, Richter‘s lawyer returned to a nearby area and managed to recover the .380 M-12, which he then turned over to the police. Investigators also found a spent .380 casing in Richter‘s truck which they determined had been ejected from Johnson‘s M-12. Richter testified that, driving to the Yolo bypass, Branscombe had dislodged a shell that had been jammed in the receiver by jerking on the lever. The weapons used to kill Klein and injure Johnson were never found.
In the aftermath of the shooting, Johnson told the police that his missing gun-safe would be at Richter‘s house. Sure enough, while searching Richter‘s residence, investigators found Johnson‘s gun-safe lying on a pile of assorted items in Richter‘s garage. According to the defense, the safe had been at Richter‘s house with Johnson‘s permission all along; Johnson frequently stored some of his belongings, including scuba gear and firearms, with Richter. Johnson admitted that he had stored the safe at Richter‘s residence but stated that he and a friend had moved it to Johnson‘s house a couple of weeks before the shooting. Although Richter denied owning a handgun, investigators also found .22 caliber cartridges and a loaded magazine in Richter‘s garage. The cartridges were consistent with the .22 caliber bullet found in Klein‘s body, as well as with the casing found in Johnson‘s living room. In closing argument, Richter‘s lawyer argued that the cartridges were Johnson‘s, and that Johnson was storing the cartridges there along with the rest of his belongings.
After the trial began, the State conducted two significant forensic tests that it had not previously performed and presented related testimony at trial. First, the State asked Detective Robert Bell to perform a blood spatter analysis of the crime scene, based on photographs that had been taken shortly after the shootings. Bell testified as an expert in blood spatter that it was unlikely that Klein could have been killed in the doorway and carried to the couch, primarily because of blood flow patterns on his head and the lack of smearing around the blood pool.4 This suggested that Johnson would have had to have lifted Klein straight up. Bell acknowledged, however, that although there was some evidence of high velocity blood spatter near the couch, suggesting a shooting in that location, there was no visible blood spatter on the sleeping bag or on the couch itself, and no blood spatter that corresponded with two shots being fired. Second, the State asked Jill Spriggs, a serologist, to determine the blood type of a sample collected from spatter four inches above the pool of blood in the bedroom doorway, and to compare that sample to Johnson‘s and Klein‘s blood. Spriggs testified, based on the PGM subtyping of the samples, that none of the blood was Klein‘s. The defense offered no expert testimony in response.
After a trial lasting over three weeks, a California Superior Court jury found Richter and Branscombe guilty of all charges. Following their convictions, Richter and Branscombe appealed to the California Court of Appeal, which affirmed the judgments of the trial court. Richter and Branscombe next filed a petition for review in the California Supreme Court, which was summarily denied, and then sought writs of habeas corpus in the California Supreme Court, which were also summarily denied. Richter and Branscombe timely petitioned for writs of habeas corpus in the United States District Court for the Eastern District of California, which rejected the petitions. They then sought certificates of appealability from this court, which we granted. A panel of our court affirmed the district court‘s denial of Richter‘s petition. We now sit en banc to rehear the appeal, having granted his petition for rehearing en banc.
II.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), a federal court may grant habeas relief only if the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
When reviewing a state court‘s summary denial of a habeas petition, we “look through” the summary disposition to the last reasoned state court decision. Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir.2006). Where, as here, no state court has explained its reasoning on a particular claim, we conduct an “independent review of the record to determine whether the state court‘s decision was objectively unreasonable.” Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir.2006).5 We review a district court‘s decision to grant or deny a writ of habeas corpus de novo, Lewis v. Mayle, 391 F.3d 989, 995 (9th Cir.2004), and the district court‘s findings of fact for clear error, Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir.1995).
As we conduct our independent review of the record, we apply the Supreme Court law on ineffective assistance of counsel claims—in particular, that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also id. at 688, 104 S.Ct. 2052 (“More specific guidelines are not appropriate. The Sixth Amendment refers simply to ‘counsel,’ not specifying particular requirements of effective.... The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.“). Under AEDPA, we apply Strickland to each individual case, irrespective of whether the precise fact pattern at issue has been considered previously by the Supreme Court. See Williams, 529 U.S. at 391, 120 S.Ct. 1495 (“That the Strickland test ‘of necessity requires a case-by-case examination of the evidence’ obviates neither the clarity of the rule nor the extent to which the rule must be seen as ‘established’ by this Court.“). “[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance, — U.S. —, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009) (citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). We do not, however, afford the state courts a blank check to determine, at their whim, whether an attorney‘s conduct was reasonable or unreasonable:
That the standard is stated in general terms does not mean the application was reasonable. AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied. Nor does AEDPA prohibit a federal court from finding an application of a principle unreasonable when it involves a set of facts different from those of the case in which the principle was announced. The statute recognizes, to the contrary, that even a general standard may be applied in an unreasonable manner.
Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 2858, 168 L.Ed.2d 662 (2007) (citations and internal quotation marks omitted). Where counsel‘s failure to investigate was both objectively unreasonable and prejudicial, and where the state court acted unreasonably in finding to the contrary, we will grant a petition for habeas corpus.
III.
Richter challenges his conviction primarily on the ground that he received ineffective assistance of counsel and thus was deprived of his rights under the Sixth Amendment. Strickland sets forth the well-established two-part standard for ineffective assistance of counsel claims. “First, the defendant must show that counsel‘s performance was deficient.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To be “deficient,” counsel‘s performance at trial must be objectively unreasonable—it must be “outside the wide range of professionally competent assistance.” Id. at 688, 690, 104 S.Ct. 2052. We “evaluate the conduct from counsel‘s perspective at the time” to “eliminate the distorting effects of hindsight,” and we are “highly deferential” in judging counsel‘s performance, affording counsel a strong presumption of adequacy. Id. at 689, 104 S.Ct. 2052.
Next, “the defendant must show that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. We find prejudice if “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. “It is clear that [Richter] need not show that [counsel‘s] deficient conduct more likely than not altered the outcome in the case. This ‘preponderance’ standard was explicitly rejected in Strickland.” Sanders v. Ratelle, 21 F.3d 1446, 1461(9th Cir.1994) (citing Strickland, 466 U.S. at 693, 104 S.Ct. 2052) (emphasis in original).
Finally, because AEDPA applies, if we determine that the defendant did not receive effective assistance of counsel, we must decide whether the state court‘s decision that he did constitutes an unreasonable application of clearly established Supreme Court law.
Richter contends that his counsel rendered ineffective assistance under Strickland by (1) failing to investigate and present expert testimony on blood spatter, serology, and pathology in order to explain the source of the pool of blood by the doorway; (2) failing to investigate the accessibility of the floorboard that the state investigator dropped into the crawl space below the house, and to present expert ballistics testimony that the bullet hole was made by a .380-caliber, rather than a .22-caliber, bullet; (3) failing to investigate and present expert testimony on ballistics to show that Johnson‘s .380 M-12 might have jammed; and (4) failing to
We consider here only Richter‘s first argument—counsel‘s failure to investigate and present expert testimony on blood evidence—and conclude that he is correct. Even affording counsel the “strong presumption that [his] conduct falls within the wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, we hold that there was no reasonable basis for his failure, before deciding on the nature of his defense, as well as while preparing for trial and during its course, to investigate the availability of forensic evidence that might corroborate Richter‘s testimony regarding the source of the pool of blood by the bedroom doorway. We so conclude, fully aware, as counsel should have been, that establishing the source, or at the least raising substantial doubts as to the prosecution‘s evidence on that point, was critical to the success of Richter‘s defense. Finally, we conclude that Richter was prejudiced by counsel‘s deficient representation in this respect, and thus did not receive effective assistance of counsel. The state court holding to the contrary constitutes an objectively unreasonable application of Strickland. We therefore reverse the district court‘s denial of the writ of habeas corpus.
A. Deficient Performance
As we have explained, a central dispute between the prosecution and the defense was Klein‘s location when he was shot. Investigation of the crime scene revealed a pool of blood in the doorway between the bedroom and the living room. The State claimed that Klein was shot as he lay on the couch in the living room and that the pool of blood in the doorway was Johnson‘s: that the pool formed as Johnson stood, dripping blood on the floor, waiting for the police to arrive. Richter, however, although acknowledging that some of the blood might have been Johnson‘s, insisted that it was at least partly Klein‘s, as Klein had been shot near the doorway in a shootout and not in cold blood on the couch. This factual dispute was, indeed, the single most critical issue in the case, at least from the standpoint of the defense.6 If the jury was persuaded beyond a reasonable doubt that Klein was killed on the couch, the defense would have no hope of succeeding. If, however, the jury believed that there was a reasonable possibility that Klein had been shot in the doorway, as Richter testified, Johnson‘s version of the events—and the prosecution‘s case—would be severely undermined, and the shootout version offered by the defense would in all likelihood preclude a verdict of guilty. Under the circumstances, any competent defense counsel would have immediately recognized the critical importance of investigating the source of the pool of blood, and of attempting to obtain forensic evidence that would support Richter‘s account of the fa
Despite the centrality of the source of the pool of blood to Richter‘s defense, counsel consulted no forensic expert as to what type of expert testimony or evidence might be available, conducted no forensic investigation whatsoever with respect to the blood pool, and in the end, as a result, offered no expert testimony to explain its source. Nor did he seek to obtain a forensic consultant who could assist him in evaluating the testimony of the prosecution‘s experts or guide him in developing effective cross-examination of those witnesses. Other than a conversation in the hallway with the prosecution‘s serology expert in the midst of trial, at no point either before or during the trial did defense counsel consult any expert on blood evidence in an attempt to determine the nature of the defense that could be presented or to discover how expert testimony might be used to bolster his client‘s case or undermine the prosecution‘s. He made no effort to find or develop expert testimony on such important questions as the blood type of the person or persons whose blood formed the pool in the doorway; whether Johnson‘s injuries were severe enough to create such a large pool of blood; and, most important, whether the blood spatter around the pool of blood indicated how or from whom the blood had been deposited in the pool.
Counsel‘s failure to consult any forensic expert constituted a threefold abrogation of his duty under Strickland. Counsel‘s first failing lay in his inadequate investigation prior to settling on a trial strategy; his second, in failing to conduct the necessary investigation before trial to determine what forensic evidence might be available for him to introduce or how expert testimony might support the theory he had chosen; and his third, in failing to consult experts who could assist during trial when the State, foreseeably, introduced damaging expert testimony regarding the blood evidence in the case.8
Strickland obligates defense attorneys to make reasonable investigations before settling on a trial strategy or, at the least, to conduct sufficient inquiries to make an informed decision about whether further investigation is needed. See Wiggins v. Smith, 539 U.S. 510, 525, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (holding counsel must make an “informed choice” among possible defenses); Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052 (“[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.“); see also Jennings v. Woodford, 290 F.3d 1006, 1014 (9th Cir.2002) (“[A]ttorneys have considerable latitude to make strategic decisions about what investigations to conduct once they have gathered sufficient evidence upon which to base their tactical choices.” (emphasis in original)). Until a reasonable investigation is conducted, counsel is not in a position to make critical strategic decisions or settle on a trial strategy—certainly including the decision to rest on his client‘s testimony irrespective of the forensic facts. We have repeatedly held that “[a]n uninformed strategy is not a reasoned strategy,” Correll v. Ryan, 539 F.3d 938, 949 (9th Cir.2008), cert. denied sub nom. Schriro v. Correll, — U.S. —, 129 S.Ct. 903, 173 L.Ed.2d 108 (2009), and we have followed the Supreme Court‘s holding that “the traditional deference owed to the strategic judgments of counsel is not justified where there was not an adequate investigation ‘supporting those judgments,‘” id. at 948-49 (quoting Wiggins, 539 U.S. at 521, 123 S.Ct. 2527).
Counsel‘s strategy, as explained in his deposition, was to pit his client‘s credibility against Johnson‘s and to attack the evidentiary gaps in the police investigation of the crime scene. In light of Strickland, it was not reasonable to settle upon this strategy, as counsel did, without investigating whether it was a sound one. Counsel made no inquiry into what expert testimony might be available to support, or to contradict, his client‘s version of what occurred; by what means the perceived evidentiary gaps in the State‘s investigation might be filled at or before trial; how any testing to fill those gaps would affect either his client‘s or Johnson‘s credibility; or how he could respond to, or minimize Moreover, the dissent fails to explain how counsel was in a position to make a reasonably informed decision as to whether expert assistance would be helpful at any of these three stages, given his admitted lack of knowledge about the relevant fields of forensic science. See Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052 (holding counsel‘s strategic choices are entitled to deference to the extent they are supported by reasonable professional judgments). Counsel admitted that he had no independent knowledge of blood type or blood spatter science before he began working on this case. He further admitted that he did not conduct independent research to educate himself about either science until mid-trial, when he read a single book about blood typing the night before Spriggs’ testimony, and his deposition testimony is silent on any research or investigation he conducted that would have allowed him to make an informed decision as to whether a blood spatter expert would be helpful in interpreting the forensic evidence. Thus, the record demonstrates through counsel‘s own testimony that he could not have made an informed decision leading up to trial that seeking expert assistance would be unhelpful or counterproductive.
2.
Having chosen his trial strategy without conducting an adequate investigation, counsel then continued to perform deficiently by failing to consult an expert on blood evidence while preparing for trial. A reasonably competent attorney would have made inquiries of such an expert regarding what evidence might be available that would strengthen the chances that his “he said-he said” strategy would succeed or might cause him to broaden that strategy were he to locate an expert whose testimony would support his client‘s statements. For some unexplained reason, counsel again failed to consult any blood expert who could provide advice as to what forensic evidence might be adduced to support Richter‘s version of the events—or what forensic evidence the State might adduce, either prior to or during trial, that might seriously undermine the defense, and how that evidence might be countered.9 Instead, counsel willfully pursued his credibility theory, determined to rely on Richter‘s testimony alone, knowing all the while that his client was not a witness likely to appear particularly credible to a jury. In doing so, counsel not only neglected the opportunity to discover the availability of objective corroborating forensic evidence in support of his client‘s version of the facts, but also rendered the defense vulnerable to impeaching expert testimony that he was not prepared to rebut.
Counsel is obligated to conduct a reasonable investigation in order to present the most persuasive case that he can. Counsel must conduct a pretrial investigation into the availability of independent, objective sources to support the part of his client‘s testimony that he knows or can reasonably expect will be challenged, and subsequently to present to the jury any evidence he finds that tends to show his client‘s innocence, tends to undermine the prosecution‘s case, or raises a reasonable doubt as to his client‘s guilt, unless he
We therefore strongly reject the district judge‘s conclusion that counsel‘s investigation was understandably hamstrung by the element of surprise—that his failure to consult experts was reasonable because he did not learn until mid-trial that the State would call a blood spatter or serology expert, and that he was at this point struggling to deal with significant time constraints and the limitations of his co-counsel. See Richter v. Hickman, No. S-01-CV-0643-JKS, 2006 WL 769199, at *8 (E.D.Cal. Mar.24, 2006). This argument truly misperceives the duty of counsel to investigate. The unfortunately harried circumstances in which counsel found himself in the midst of trial, a year after the events in question took place, do not excuse his failure to investigate prior to trial—indeed prior to determining the defense strategy—whether expert testimony would corroborate or undermine his client‘s explanation of how the pool of blood came to lie on the floor by the bedroom door. Whether or not the prosecution presented any expert testimony about the pool of blood, defense counsel had an obligation to investigate and, should his investigation prove successful, introduce expert testimony regarding its source in order to provide crucial—indeed, potentially outcome-determinative—corroboration for his client‘s story.10
If counsel‘s decision not to consult experts in preparation for trial had been a “strategic judgment,” it would have been an unreasonable one, as there was no adequate investigation to support it. See Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. But, even more fundamental, counsel‘s performance in this respect was not “strategic” at all. There was absolutely no reason not to consult a blood expert and counsel never suggested that there was. In his deposition, counsel was unable to provide any reasoned explanation for failing to consult forensic experts or to seek
Certainly, he did not suggest that any strategy explained that failure. When counsel offers no strategic reason for failing to perform what would otherwise constitute the duty of a reasonably competent counsel, we may not invent such a strategy by engaging in “a post hoc rationalization of counsel‘s conduct” in lieu of relying on “an accurate description of [counsel‘s] deliberations prior to [trial],” Wiggins, 539 U.S. at 526-27, 123 S.Ct. 2527.11 Counsel‘s chosen trial strategy, as he explained it, was to convince the jury of an alternative set of facts to those presented by the prosecution—and to rely on his client‘s testimony to carry the day in a pure credibility contest. The defense testimony would be that Klein was killed in the doorway, in a shootout, and the alleged robbery of the gun-safe never took place. Counsel provided no reason why he did not consult experts to bolster that story. Although he had an obligation to adequately investigate so as to support the strategy that he had adopted, he failed to do so. It is perfectly clear, and indeed it is the only reasonable conclusion under Strickland, that his performance was constitutionally deficient.12
3.
Counsel‘s failure to conduct the necessary pretrial investigation was compounded finally by his failure to consult experts as the trial unfolded. After counsel presented his opening argument laying out the defense strategy and pointing out the gaps in the prosecution‘s case, including its incomplete forensic investigation, the State acted quickly to fill some of these gaps and to determine whether it could prove its case or at least disprove the defense theory through the use of forensic evidence. The State then introduced “surprise” testimony from two experts on blood evidence: a blood spatter expert and a serology expert. The thrust of their testimony was that the sole source of the blood in the pool was Johnson and that none of the blood was Klein‘s.
The prosecution‘s blood spatter expert, Detective Robert Bell, testified that it was highly unlikely that Klein could have been killed in the doorway and carried to the couch, primarily because of blood flow patterns on his head and high velocity blood spatter near the couch. After this damag
The prosecution also called a serology expert, Jill Spriggs, who tested the blood type of a sample of blood on the door molding above the blood pool in the doorway and testified she had “no reservations. [Klein] is excluded as a possible donor of that sample.” Counsel again considered the possibility of consulting an expert, this time on blood typing, but he did not do so. After speaking with the State‘s serology expert in advance of her testimony during trial, counsel was prompted to do some reading on his own, and again to compile a list of potential experts, but he could not recall actually contacting anyone. When the State announced its intention to call Spriggs as an expert witness, counsel raised an objection. According to counsel, the judge then “said that [counsel] may need a continuance and that [he] may need to call an expert now [him]self.” Counsel offered conflicting testimony as to whether he did, in fact, request a continuance this time. It is clear, however, that again he did not consult any blood expert whatsoever.13
In the end, counsel again failed to consult a single expert in the field of blood evidence, this time to help him prepare for his cross-examination of the State‘s two expert witnesses once he knew that they would testify. He, further, made no effort to consult forensic experts so as to present testimony in rebuttal.14 When the need
for expert advice was abundantly clear, counsel still failed to take reasonable steps mid-trial to remedy his deficient pretrial investigation and preparation. That failure was itself deficient, and the state court‘s decision to the contrary was objectively unreasonable.
4.
In short, the Supreme Court has held that the touchstone of our inquiry must be the reasonableness of counsel‘s conduct. The failure here to consult forensic experts regarding critical issues in the case was unreasonable and constitutes deficient performance. Other circuits, also under deferential AEDPA review, have come to similar conclusions. See Draughon v. Dretke, 427 F.3d 286, 296 (5th Cir.2005) (finding deficient performance under AEDPA where “the failure to investigate the forensics of the fatal bullet deprived [the defendant] of a substantial argument, and set up an unchallenged factual predicate for the State‘s main argument that [the defendant] intended to.... [The defendant] became the sole source of evidence available to counter the prosecution‘s theory.“); Gersten v. Senkowski, 426 F.3d 588, 607-08 (2d Cir.2005) (finding deficient performance under AEDPA where “defense counsel failed to call as a witness, or even to consult in preparation for trial and cross-examination of the prosecution‘s witnesses, any medical expert on child sexual abuse“). Here, the source of the pool of blood was critical. If the blood came in whole or in part from Klein, defendant‘s version of the events would be strongly corroborated. If it came from Johnson alone, the prosecution‘s case would be strengthened immeasurably. We conclude that counsel‘s failure to consult any forensic experts regarding how to establish that source (1) before settling on his defense, (2) when preparing for trial, or (3) during the course of trial when he was surprised by the prosecution‘s expert testimony cannot be deemed to be reasonable under any standard, and that the state court‘s failure to so determine unquestionably constituted an objectively unreasonable application of Strickland.
B. Prejudice
Richter must show more, however, than his counsel‘s deficient performance. He must also show that he was prejudiced by that performance—that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Applying this standard, we hold that counsel‘s deficient performance was prejudicial, and that the state court‘s failure to so conclude was an objectively unreasonable application of Strickland.
Counsel‘s pretrial failure to consult experts who could have interpreted the blood evidence at the crime scene and advised him of its significance had direct, and damaging, consequences. Counsel developed a strategy for trial to treat the case as a pure credibility contest, to call only the defendant as a witness regarding the shooting, and to criticize the state‘s incomplete investigation of the crime scene, without any knowledge whether forensic evidence, if introduced, would corroborate or contradict his client‘s testimony. He assumed that the prosecution would not offer any expert forensic evidence to sup
Counsel‘s failure to present expert testimony at trial did not go unnoticed. In closing, he emphasized the significance of the pool of blood in the doorway, citing it as evidence of the location at which Klein had been killed. The prosecutor, in response, drove home the fact that the defense had presented no evidence to support its version of the events, other than Richter‘s testimony. He then ridiculed defense counsel‘s failure to present any evidence to support his account of the source of the pool of blood, and especially his failure to call any expert witnesses:
Bob Bell, [the state blood spatter expert,] he‘s 22 years as a blood spatter expert, all that stuff means nothing. Hey, [defense counsel] says, the blood be here. Bob Bell, hey he‘s wrong, trust me. I am not going to go get an expert. I am not going to bring somebody in here to tell you because I don‘t need to do it. I will just do it in closing argument. I will just say it. If you are willing to believe me, hey, that will work.
I am not going to worry about Jill Spriggs[, the state serology expert,] because, hey, her seven years as a biochemist and a criminalist, and the fact that she went to college to learn this stuff doesn‘t mean anything, because I am a lawyer. I went to California, Berkeley, in 1975 and U.O.P. and played ball in Mexico, and I know more than Jill Spriggs. But I am not going to pay and bring in an expert to show you. I am not going to put anyone up here to tell you that. I will just tell you that. I am a lawyer. I can do it.
(Emphasis added). Because expert testimony that contradicted that offered by the prosecution was in fact available, and strongly persuasive, the harm caused by counsel‘s failure to make any effort to obtain it is readily apparent, and devastating.
Had counsel bothered to conduct the requisite investigation, his efforts would have been highly productive. On state and federal habeas review, Richter‘s new counsel conducted the investigation that trial counsel had failed to perform, and with significant effect. Habeas counsel submitted declarations from four experts in blood evidence, all of whom would have offered testimony that supported the defense theory of the case. Taken together, they would have established reasonable doubt.
Most significant, and most damaging to the prosecution, Ken Moses, an expert in blood spatter analysis with over thirty years of experience in the field, would have directly refuted the prosecution‘s explanation as to the source of the critical pool of blood. Specifically, he would have offered his opinion that “[t]he lack of a large number of satellite dropletts [sic] surrounding the pool eliminates the prosecution‘s theory that Mr. Johnson was standing into [sic] the doorway dripping into the pool below” (emphasis added). Moses would have
Additionally, James Thornton and Brian Wraxall, experts in blood typing, would have testified to the scientific possibility that the pool contained some of Klein‘s blood, because the relative intensity of the 2+ and 1+ bands found in the blood sample could not exclude the possibility that the blood pool contained a mixture of Johnson‘s (subtype 2+ 1+) and Klein‘s (subtype 1+) blood. Finally, Dr. Paul Herrmann, a pathology expert, would have opined that,
[g]iven Mr. Johnson‘s testimony and the amount of blood likely to result from the wounds which he received, and the short time between Mr. Johnson being shot and Detective Wright making his observations of Mr. Johnson, it is highly unlikely that the blood pool found in the doorway between the bedroom and living room was caused by Mr. Johnson‘s wounds.
No such expert testimony was presented to the jury.15
midpage-fn n=“15“>15. The parties stipulated that the defense experts would testify to the information sworn to in their declarations. In their declarations the experts stated that they would have been available to testify as to their opinions if they had been called at trial. We therefore consider the statements in these declarations as the relevant testimony that could have, and would have, been presented at trial.1.
Although the failure to consult any forensic expert with respect to blood evidence constituted deficient performance, the investigation conducted during the habeas proceedings reveals that the primary source of prejudice lay more narrowly in counsel‘s failure to consult, and subsequently to call, an expert in blood spatter.
To explain the significance of the blood spatter testimony, it is necessary to reiterate the importance of the pool of blood—that it was, in fact, the linchpin of the defense. If Klein was killed while lying on the couch in the living room, there was no possibility that Richter‘s account was correct. If, in contrast, Klein was killed in the doorway to the bedroom, Johnson‘s account of the events in question could not possibly be true. Indeed, if any portion of the blood in the pool in the doorway came from Klein, he could not have been shot, as Johnson claimed, while he was asleep in another location. Accordingly, had defense counsel been able to raise a reasonable doubt in the minds of the jurors as to whether Klein was a source, in any part, of the pool of blood, there was more than a reasonable chance that “the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The introduction of forensic evidence that had the effect of showing that Johnson‘s version of the events was false, and that was consistent with Richter‘s explanation, would therefore have been invaluable to the defense.
Had counsel conducted an adequate pretrial investigation and, as a result, offered Moses’ blood spatter testimony at trial, the jury would have been presented with testimony from two expert witnesses on blood spatter, one for the prosecution (Bell) and one for the defense (Moses), each of whom would have contradicted key pieces of the theory presented by the opposing side. On the one hand, the spatter evidence
In the absence of Moses’ testimony, the only expert explanation of the evidence that the jury heard was consistent with the prosecution‘s version of the case. Had the jury also heard expert testimony from Moses, it would have been faced with highly credible forensic evidence from an experienced former law enforcement officer that directly contradicted the prosecution‘s version and raised substantial doubt as to the testimony regarding the circumstances of Klein‘s death offered by the key prosecution witness. At this point, to reconcile either Johnson or Richter‘s narrative with the forensic evidence, the jury would have had to conclude that one blood spatter expert or the other was wrong or untruthful. We cannot, of course, determine which expert the jurors would have believed, or if they would have been able to determine beyond a reasonable doubt that one or the other was correct. We can determine, however, that, under these circumstances, counsel‘s failure to present blood spatter expert testimony undermines our confidence in the result and, accordingly, was prejudicial.16 Moreover, because the prosecution‘s case rested so heavily on Johnson‘s testimony, impeaching his credibility on a central point through forensic evidence would have likely precluded the jury from returning a verdict of guilty.
The expert blood spatter testimony was also essential in light of substantial weaknesses in the prosecution‘s case, that rendered it highly likely that expert testimony would determine the outcome.17 Here,
Of course, the defense‘s explanation, too, had holes. The story Richter told raised a number of questions: Why were there .22 caliber cartridges found in his garage? How had Johnson carried Klein to the couch with so little evidence of blood flow? Why was the safe thrown haphazardly on a pile of other belongings in Richter‘s garage, rather than standing upright as a witness had seen it previously? Why had Richter and Branscombe taken off for the Yolo bypass shortly after the killing and not returned until the next day? Why did Richter initially tell the police that his truck was not at Johnson‘s house on the night in question? Even aside from these questions, Richter suffered from credibility problems. He was a marijuana and mushroom user himself, as well as an occasional dealer.18
According the state court the deference mandated by
2.
As we have explained, the blood spatter testimony alone was sufficient to give rise to reasonable doubt in the minds of the jurors. We note, however, that such doubt would have been reinforced had counsel also offered expert testimony on blood typing to rebut that of the State‘s serology expert.20 The expert declarations from
Although we base our prejudice holding on counsel‘s failure to introduce blood spatter evidence, that holding is bolstered by the detrimental effects of counsel‘s failure to consult a serology expert—both because he could have introduced expert testimony that would have supported his case and because an expert could have advised him as to how to cross-examine the prosecution‘s witnesses.22 Strickland requires us to assess the aggregate impact of counsel‘s deficient actions when evaluating whether such failures are prejudicial. 466 U.S. at 695-96, 104 S.Ct. 2052. Here, the jury would have been even more likely to credit Moses’ testimony that the blood pool could not have been formed by the dripping of Johnson‘s blood while he stood
3.
To reiterate, we conclude that Richter was prejudiced by counsel‘s deficient investigation with respect to the critical question of the source of the blood in the pool by the bedroom doorway. The resultant failure to introduce exculpatory expert testimony on blood spatter, as well as other expert testimony that would, together with the spatter testimony, have raised reasonable doubt in the minds of the jurors with respect to that question undermines one‘s confidence in the outcome of Richter‘s case. The state court‘s conclusion to the contrary constituted an objectively unreasonable application of Strickland.
IV.
In so holding, we need not reach Richter‘s other claims. Because we have concluded that counsel provided ineffective assistance by failing to investigate the source of the pool of blood, and then to introduce expert testimony on that point, and because we have also concluded that the state court decision to the contrary constituted an unreasonable application of Strickland, we do not consider here whether counsel‘s failure to investigate the caliber of a bullet hole found in the floor of Johnson‘s bedroom was also ineffective. Similarly, we need not decide whether counsel‘s failure to present lay testimony and expert testimony on firearms was ineffective, nor whether the prosecution violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in misrepresenting the size of the bullet hole and the inaccessibility of the piece of floorboard containing it that fell into the crawl space below the house. We do not, moreover, decide whether Richter‘s Eighth and Fourteenth Amendment rights were violated when the state court provided an incorrect or inaccurate answer to a request for clarification that the jury submitted to the trial court during deliberations.
V.
Counsel‘s ineffectiveness in failing to investigate and present expert testimony re
BYBEE, Circuit Judge, with whom O‘SCANNLAIN, KLEINFELD, and IKUTA, Circuit Judges, join, dissenting:
Years of consuming forensic science television shows have gone to our heads. We know the plot by heart: the hapless State has charged the wrong guy and our scientists-turned-sleuths will come up with the trial-changing evidence at the last minute. But State v. Richter isn‘t the pilot for CSI: Sacramento. Real trials are rarely as gratifyingly formulaic as those seen on TV, and real defense attorneys can seldom boast the Holmesian intuition imputed to them by savvy scriptwriters. In the real world, defense attorneys must often contend with an unsympathetic bench, financial and temporal pressures, and unexpected evidentiary developments. They must also sometimes decide between various unappealing defense strategies. When we ignore these gritty realities and do not adequately analyze the specific circumstances surrounding an attorney‘s performance, we inevitably fail to heed the Supreme Court‘s admonition about second-guessing trial counsel. See Strickland v. Washington, 466 U.S. 668, 689 (1984).
The majority opinion is a model of the intrusive post-trial inquiry into attorney performance long rejected by the Court. It declares the blood evidence to be “the single most critical issue in the case,” one that “any competent defense counsel would have immediately recognized.” Maj. Op. at 953. This would have come as a surprise to both the State—which had focused on other physical evidence and had not even taken a blood sample from the victim before trial—and Richter‘s counsel, who knew the limited parameters of the State‘s evidence. What the majority is now convinced was the “central dispute” in the case, Maj. Op. at 953, sent both sides scrambling mid-trial. The majority now proclaims that no competent counsel could fail to understand the importance of acquiring expert witnesses to testify on the blood evidence, ignoring both the circumstances of the case and counsel‘s own deposition testimony establishing why he had no reason to believe that such experts would be helpful. As counsel explained, the State had built its case on other evidence and had no witnesses on its list to testify about blood evidence. More importantly, if counsel had conducted the pre-trial investigation demanded by the majority, it not only would have alerted the State to counsel‘s defense but might well have resulted in the discovery of additional inculpatory evidence. ”Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant,” Wiggins v. Smith, 539 U.S. 510, 533, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), or if counsel has “reason to believe that certain investigations would be fruitless or even harmful,” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Had counsel followed the majority‘s recipe, he might have cooked his own client. Counsel had no way of knowing which way the blood evidence might turn, and he had very good reasons for suspecting that it would not favor Richter. So, his strategy was to address the other physical evidence the State was presenting and then fault the State for its own failure to investigate. The Court has recognized that this is a perfectly reasonable strategy. Id.
Unlike the cases where the Supreme Court has found Strickland error, this is not a case where counsel so neglected his client that “counsel was not functioning as ‘counsel.‘” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Throughout the proceedings, Richter‘s counsel was conscientious and well-prepared. When the State came up with surprise witnesses to address the blood evidence, counsel diligently prepared for cross-examination and considered whether, in addition, he should retain an expert. He ultimately decided against it, a judgment that majority is more than willing to second-guess. It is not clear, even today, what counsel was supposed to discover. Indeed, nearly fourteen years after the trial, Richter cannot point to any new evidence that affirmatively supports his innocence.
In sum, the majority holds today that defense counsel was required to adopt a different trial strategy—the majority‘s scorched-earth investigative strategy—and assume new burdens that this new strategy creates. Both counsel‘s original strategy and the majority‘s new tactics have some merit, and neither can solve all Richter‘s problems. But the only reason the majority‘s strategy prevails over counsel‘s is that it gets to go last, and counsel‘s strategy, having proven unsuccessful, can be second-guessed.
I respectfully dissent.
I
Mark Twain once advised never to let the facts get in the way of a good story. The Supreme Court, however, has made apparent that such cannot be the case in determining whether a trial attorney has unconstitutionally deprived a habeas petitioner, through ineffective performance, of his Sixth Amendment right to counsel. Rather, applying the standards of Strickland requires a “case-by-case examination of the evidence.” Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quoting Wright v. West, 505 U.S. 277, 308, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Kennedy, J., concurring in the judgment)). Because I believe the majority‘s story lacks this requisite substance, I recount the facts and the case from “counsel‘s perspective at the time” before expressing my opinion that defense counsel‘s performance was reasonable “in light of all the circumstances.” Strickland, 466 U.S. at 689-90.
A
From all appearances this was an open-and-shut robbery/homicide. After receiving a 911 call on the morning of December 20, 1994, Sacramento County Deputy Sheriff (and detective) Michael Wright, and his partner, Deputy Steve Larson, arrived at
Both Johnson and Klein were transported to a nearby hospital, where Klein died from his wounds. At the hospital, the attending physician discovered that Johnson had been shot twice: once in his cheek, where the bullet severed an artery and had lodged near his spine; and once in his shoulder. The physician noted that Klein had also received two wounds: a “fairly superficial” wound to his neck, and the fatal wound to his left eye. Both bullets that struck Klein were recovered from his body—the one that entered his neck was determined to be a .22 caliber, and the one that pierced his eye was a .32 caliber. The one bullet recovered from Johnson also was determined to be a .32 caliber.
While at the hospital, Johnson identified the perpetrators as Joshua Richter and Christian Branscombe. Johnson told police that he remembered waking up shortly before 5:00 am to see Richter and Branscombe in his bedroom attempting to steal his gun safe. He sat up, but was immediately shot by Branscombe. After hearing one or more gunshots in the living room, he stood up and noticed that his Cobray M-12 pistol (usually kept on his nightstand) was missing, along with his gun safe and a hip sack containing a pager and around $6000 in cash (proceeds from his daily drug sales). After stumbling into the living room to find Klein bleeding to death on the sofa, Johnson locked the door and called 911. He then ran into the backyard to dispose of several marijuana plants and other drug paraphernalia before the police arrived.
The evidence discovered at Johnson‘s house largely corroborated Johnson‘s recollections. About two hours after the 911 call, the police department dispatched homicide detectives to Johnson‘s residence to analyze the crime scene. Lead detective Robert Bell discovered two expended .32 caliber shell casings in Johnson‘s bedroom where Johnson claimed to have been shot by Branscombe. The detectives located Johnson‘s pager lying in the front yard by the porch steps—consistent with Johnson‘s story that Richter and Branscombe had stolen his hip sack. The detectives uncovered an expended .32 caliber shell casing and an expended .22 caliber shell casing in the living room, resting on a pile of clothing: these confirmed Johnson‘s recollection that he heard at least one more shot fired in the living room, and matched the bullets that killed Klein.
Blood was found throughout the house: large blood pools were discovered in the kitchen and in the bedroom doorway; there was a concentration of blood at the end of the couch where Klein‘s head had been resting; there was blood spatter in the bedroom and near the couch in the living room; and there were blood drops throughout the house. The detectives collected a few blood samples, one from a splash of blood on the molding above the blood pool in the bedroom doorway. Because Detective Bell ascertained that the forensic evidence sufficiently supported Johnson‘s story, no detailed blood or blood spatter analysis was performed at that time. The detectives, however, documented the entire crime scene with a camera and a video recorder.
Based on this evidence, the police department acquired a warrant to search the garage in which Richter had been living. The evidence found in the ensuing search further corroborated Johnson‘s story and
A warrant was issued for the arrest of Richter and Branscombe, and both were apprehended the following day. Although Richter first denied having any involvement in the crime and told the arresting officer that his truck was never at Johnson‘s house on the night in question, he eventually admitted that he and Branscombe had been at Johnson‘s house early on the morning of December 20th. He also admitted that Branscombe used a .32 caliber weapon to shoot Johnson twice and Klein once. Richter claimed, however, that he had nothing to do with the shootings—he said that he had stayed in his truck while Branscombe went into the house to return clothing belonging to Johnson‘s roommate. Richter asserted that he heard shots and screams in the house and entered to find Branscombe “freaked out” claiming that he had only shot Johnson and Klein after they attacked him.
Richter also confessed that he and Branscombe had taken Johnson‘s Cobray M-12 .380 caliber handgun with them to the Yolo overpass after the shootings, and had discarded it there along with Branscombe‘s .32 caliber weapon. An initial search of that area did not reveal either weapon. Detective Bell, however, did find a crisp $100 bill a few hundred yards away from the spot Richter had designated. One day later, Richter‘s counsel went back to the area and returned with the Cobray M-12, which he surrendered to the police.
Two additional statements implicated Richter. At the police station, Branscombe and Richter were interviewed regarding their involvement in the events in question. Both suspects were videotaped in a holding cell during a break in the interviews, and the recording revealed a statement by Branscombe implicating Richter in the crime. Branscombe asked Richter, “Did you tell them anything?,” and Richter responded, “I just told them that I did not kill anyone, and da da da.” Branscombe replied, “Joshua, we were going to tell them the truth.” In the meantime, the police also interviewed Lauren Sullivan, Richter‘s girlfriend. Although she first refused to talk about the events in question, she eventually admitted that Richter had talked with her on the night of December 20th, approximately twelve or thirteen hours after the shootings. Sullivan never protested Richter‘s guilt at that time—instead, she told police ominously that she didn‘t think she should tell them about what Richter had told her. Richter‘s counsel knew of both statements.1
On December 23, 1994, Richter was charged with murder (under
Defense counsel faced enormous evidentiary obstacles at trial. Every known piece of forensic evidence either directly supported Johnson‘s account of the shootings or was inconclusive. The .22 caliber CCI stinger bullets discovered in his client‘s garage decisively matched the bullet recovered from Klein‘s dead body. The $100 bill in the Yolo overpass, the positioning of Johnson‘s pager in the front yard, and the presence of Johnson‘s gun safe in his client‘s garage pointed strongly to his client‘s guilt. Moreover, his client‘s behavior after the shootings was hardly exemplary—Richter had fled the scene of the crime, thrown away evidence that might have implicated him in the murder, and upon arrest first denied ever being at the scene of the crime only to later recant this implausible story. There were even videotaped inculpatory statements that counsel would be forced to attempt to exclude from evidence. The only person who could cast doubt on his client‘s guilt was his client‘s girlfriend, who had previously told police that she had not talked with his client until approximately thirteen hours after the events in question, and thus could not credibly confirm Richter‘s whereabouts during the relevant time period. Finally, defense counsel knew that his client‘s co-defendant would not be able to testify credibly at trial—after observing Branscombe‘s odd behavior during an interview, counsel even suggested to Branscombe‘s attorney that an insanity defense might be productive.2
Counsel also faced significant procedural obstacles. The trial was somewhat of a hurried affair due to problems Branscombe‘s attorney had maintaining his bar membership. Because of past transgressions, Branscombe‘s attorney‘s bar membership was about to be suspended, and he wanted to finish the trial and collect his fee before the end of the year. Richter‘s counsel believed that the judge, because of this predicament, created an accelerated trial schedule that upset his plans to talk with the prosecutor and perhaps obtain a plea bargain.
Understanding these limitations in the State‘s case, defense counsel diligently investigated evidence that could potentially exonerate his client. He hired a private investigator, James Pihl, who worked with Branscombe‘s attorney‘s private investigator, John Lee, to discover evidence not collected by the State. Counsel also interviewed a number of people who he had reason to believe might shed doubt on Johnson‘s story. Although this extensive investigation did not reveal much helpful evidence, counsel‘s investigator was able to discover that there were two bullet holes in Johnson‘s bedroom that were never analyzed by the police—one in a floorboard, and another in a wall. Counsel diligently notified the police investigators of the existence of these holes, which the State thereafter investigated. After examining the photographs and video of the crime scene, counsel was also able to pick out some anomalies in the State‘s case: for example, although Johnson claimed it was dark when he was shot, counsel noticed there was no blood on the living room light switch indicating that the wounded Johnson turned it on after being shot.
C
In the State‘s opening statement, the prosecutor mentioned nothing about serological, pathological, or blood spatter evidence that corroborated Johnson‘s story. There was good reason for this omission: the homicide investigators had neither collected much of the blood at the crime scene (they had taken only six swabs of blood) nor analyzed it in the year prior to trial. No blood sample was obtained from the large pool of blood in the bedroom doorway. In fact, the sample that is the focus of Richter‘s habeas petition was removed from the door molding a few inches above that blood pool. Before trial, the State had not even taken blood from Johnson with which to compare the blood stains in the house. Accordingly, the prosecutor focused on other physical evidence: the shell casings, the location of Johnson‘s gun safe, and the CCI Stinger cartridges found at Richter‘s residence.
Defense counsel‘s opening statement moved to exploit the State‘s evidentiary lapses. Counsel proclaimed that “evidence will . . . show that the subsequent investigation of the scene was quickly done and poorly orchestrated.” He told the jury that “[t]he evidence of great importance is the lack of spatter marks [on the living room couch], and other pools of blood, and spatter marks found elsewhere in the house inconsistent with stories told by Gunner Johnson.” Counsel explained that the crime scene photographs revealed that “there are no spatter marks of blood or anything on the couch” and that “there are also no marks on the sleeping bag [on which Klein was lying].” Counsel faulted the investigating officers for accepting Johnson‘s theory of the story and failing to “take swabs of the various blood marks
Defense counsel framed a story “very, very different” from the prosecutor‘s account. He told the jury that Johnson was the aggressor, that Klein assisted him, and that Branscombe shot and killed the two in self-defense. Richter‘s counsel admitted that Branscombe had a .32 that evening, and that he used it. But Klein had also been shot with the .22 semiautomatic pistol that was never recovered. Counsel suggested that the .22 was Johnson‘s: his investigator had discovered a .22-calibersized hole in Johnson‘s bedroom floor that Johnson said he had made on another occasion. Counsel again returned to the State‘s sloppy investigation—there were .22 casings and shells stored in Johnson‘s bedroom that the State never tested to see if they were connected with the bullet that killed Klein.
According to defense counsel‘s theory, Richter and Branscombe, who had smoked marijuana with Johnson until around 2:00 am on the morning in question, returned to Johnson‘s house around 4:00 am to drop off some clothing and money for one of Johnson‘s roommates. Richter sat in his truck while Branscombe went up to the house. Counsel asserted that Klein let Branscombe into the house, but then immediately attacked him—grabbing Branscombe in the bedroom doorway while Johnson pulled out his M-12.3 Luckily for Branscombe, Johnson‘s gun was not reliable and he only got off one shot before the gun jammed. But Johnson wasn‘t nicknamed “Gunner” for no reason—according to defense counsel, Johnson immediately pulled out a .22 caliber semi-automatic handgun to finish the job. Fortunately again for Branscombe, Johnson‘s talent with firearms failed to match his enthusiasm—he missed Branscombe and wounded Klein with the .22. This was just the advantage Branscombe needed. Branscombe pulled out his .32, gunned down Johnson, and then finished off Klein with a shot to the head. Richt
Defense counsel argued that none of the evidence found by the police was inconsistent with Richter‘s story. Counsel asserted that Johnson secretly owned a .22 caliber semi-automatic handgun from which he could have shot the CCI Stinger, that Richter and Klein had just been paid for their work at a Christmas tree lot and lost the $100 bill while disposing of the guns, and most importantly that Johnson had free run of the house for at least forty minutes after the shootings and had manipulated any other evidence not consistent with Richter‘s story. Counsel avowed, for example, that Johnson had moved Klein from the bedroom doorway to the couch in order to make his story sound better. Finally, counsel claimed that Johnson‘s gun safe had been at Richter‘s residence for several months and that Johnson had invented this theft to implicate Richter.4
D
Counsel must have struck a nerve because the State moved quickly to shore up its case. The prosecutor, who realized for the first time that counsel would be articulating a theory of self-defense,5 hurried to have the blood evidence analyzed to determine if it could be inconsistent with that theory. On the fourth day of trial, without prior warning, the prosecutor presented Bell, one of the homicide detectives, as an expert in blood spatter. The following day, the prosecutor for the first time obtained a blood sample from Johnson and had it compared with the six samples collected from the scene. Four days later, on the ninth day of trial, the prosecutor put Jill Spriggs, a criminalist, on the stand to testify about the results of that analysis. Defense counsel had been given notice of Spriggs‘s testimony only a day earlier.
The defense began presenting its case shortly thereafter. Counsel presented seven witnesses, including Richter. These witnesses focused primarily on the timing of the shooting and the location of the gun safe—they provided testimony indicating that the events in question occurred around 4:20 am, rather than 5:00 am, and argued that Johnson had been storing his gun safe at Richter‘s residence. Counsel did not call any expert witnesses to the stand. Although he considered doing so at certain points in the trial, counsel eventually decided that his cross-examination of the State‘s experts was sufficient to create reasonable doubt about the truth of Johnson‘s claims. The adequacy of this decision is the primary thrust of Richter‘s habeas petition.
II
In determining whether counsel‘s tactical decisions were so erroneous as to violate Richter‘s constitutional right to effective assistance of counsel, we face a truly
Even if we are persuaded that counsel has engaged in “unprofessional errors,” Strickland is not satisfied unless we can conclude that “the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. This means “that counsel‘s errors [must be] so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S.Ct. 2052. Of course, any newly introduced expert testimony might have changed the prosecution‘s approach at trial—but this is not enough to find prejudice under Strickland. See id. at 694, 104 S.Ct. 2052 (“It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. . . [or] that the errors ‘impaired the presentation of the defense.‘“). There is prejudice only if there is a reasonable probability that, but for the errors, the result of the proceedings would have been different.
Overlaying this inquiry is the
Deference under
The majority recites these standards, but doesn‘t take them to heart. The majority glosses over the circumstances in which defense counsel found himself: all the forensic evidence discovered before trial implicated his client in the crime; his client‘s actions in response to the crime were indicative of guilt; he was fighting a judge and fellow defense attorney who wanted to finish the trial as quickly as possible; and he was surprised by expert witness testimony from witnesses the State had not previously identified. The majority also ignores the nature of the expert testimony at issue: despite the bombastic language of Richter‘s newfound experts, the content of their testimony is not as revealing as Richter claims.
A careful review of the record demonstrates the inadequacy of the majority‘s conclusions. Richter‘s counsel vigorously pursued the strategy he had developed in his opening statement and diligently contested all critical evidence raised by the prosecution. In no sense, then, can we conclude that “counsel was not functioning as the ‘counsel’ guaranteed [Richter] by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Even if we could conclude, with the benefit of hindsight, that defense counsel made certain mistakes in his representation of Richter, these mistakes are not the type of egregious errors that mandate a finding of deficient performance. At worst, counsel exhibited questionable judgment by relying exclusively on his own powers of cross-examination in lieu of an expert‘s direct testimony. And even if counsel‘s judgment was flawed, it is far from clear that counsel‘s decision not to call these experts resulted in an unreliable guilty verdict. Although the expert declarations offered in support of Richter‘s habeas petition might have added some new tools to the defense‘s arsenal, they can hardly dent the clear, unchallenged evidence implicating Richter in Klein‘s murder and the utter lack of evidence (even in Richter‘s newfound expert testimony) confirming or even strongly supporting Richter‘s theory of self-defense.
Finally, even if we could conclude, as a matter of first impression, that defense counsel failed to meet the standard of professional conduct mandated by Strickland, there is clearly not enough evidence in the record to conclude that a state court adjudicating oppositely has made not just an erroneous but a patently unreasonable decision. To rule otherwise is to ignore the clear congressional intent in
A
The majority first claims that defense counsel‘s decision not to consult with or call as a witness a serologist was deficient and probably prejudiced Richter‘s defense. In its haste to paint with broad brush strokes, the majority decides this without even a cursory discussion of the circumstances of that decision or the nature of the relevant evidence. Review of counsel‘s decision and the serology evidence in context indicates that counsel‘s decision not to “investigate” serology evidence before trial was reasonable and consistent with his trial strategy. Moreover, even if counsel‘s failure to procure a serologist constituted deficient performance, it had a nearly negligible effect on the course of trial.
The State had to plug the holes Richter‘s counsel identified in its case. It had neglected to test the blood pool in the doorway to Johnson‘s bedroom to see whether it was Johnson‘s blood (as the State contended6) or Klein‘s blood (as the defense claimed at trial7). The only sample the State had was a swab taken from the wall just above the blood pool. At trial, the State‘s expert, Jill Spriggs, testified regarding her comparative analysis of Johnson‘s blood sample and the swabbed sample. Because both Johnson and Klein had Type O blood, their blood samples had to be differentiated by reference to an enzyme, phosphoglucomutase (“PGM”). Spriggs opined that her laboratory testing determined that Johnson‘s PGM subtype was 2+1+ and that Klein‘s PGM subtype was 1+. Spriggs claimed that because the blood found on the molding near the blood pool had a PGM subtype of 2+1+, Klein could reliably be excluded as the donor of that blood.
This was the first defense counsel had heard of this evidence. In fact, counsel had learned of the subject matter of Spriggs‘s testimony only the day before her appearance in court. Spriggs had not been on the prosecution‘s witness list, and her forensic tests were run mid-trial. After learning of Spriggs‘s testimony, counsel immediately requested a continuance, which the trial court denied. At that point, counsel had to move quickly to counter this unexpected development. He called the public defender‘s office and then spent the evening in a library learning about PGM subtypes while preparing for cross-examination.
During cross-examination, counsel challenged Spriggs‘s conclusion that Klein could be reliably excluded as the source of the blood swabbed from the bedroom wall. In response to counsel‘s questions, Spriggs acknowledged that she had not tested for cross-contamination and that she had only been able to run one test. Counsel asked Spriggs whether she could testify to a “scientific certainty” that the sample only contained one person‘s blood. She answered equivocally that “it does not look like there are two people contributing to that stain.”
Now, to support his habeas petition, Richter attaches the expert opinions of two serologists who make nearly the same points that counsel presented on cross-examination.8 One expert, John Thornton, speculates that because “in the electrophoretic separation of PGM subtypes, the 1+ band in a 2+1+ sample appears at the same location as the 1+ band in a 1+ sample,” the Spriggs finding “could not exclude the possibility that the sample contains a mixture of 2+1+ and 1+ blood.” The other expert, Brian Wraxall, remarks that there is a possibility that Klein could have been a contributing source because “the relative intensity between the 2+ band and the 1- band in the [wall] sample would depend on the proportion of Mr. Klein‘s blood commingled with Mr. Johnson‘s blood.” Also, Wraxall points out that even a non-degraded sample might show a 2+1+ result of uniform intensity where Johnson‘s enzyme tested as a strong 2+ band and a weaker 1+ band. Wraxall had to qualify this opinion because “the 2+ band in a 2+1+ band is usually, but not always, equal in intensity to the 1+ band” (emphasis added) and no evidence at trial indicated whether Johnson‘s blood would create a stronger 2+ band.
Richter‘s professed experts do not challenge Spriggs‘s conclusion that the blood pool contained Johnson‘s blood. They also cannot establish that Klein‘s blood is in fact in the sample, or even that it is likely that Klein‘s blood is in the sample. At best they can only challenge the conclusion that evidence shows conclusively that the swabbed sample contained Johnson‘s blood only—a conclusion that Richter‘s counsel effectively challenged at trial during cross-examination.
1
With all due respect to our colleagues, counsel‘s performance was well within the “wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. In no way was Richter deprived of competent counsel in the sense that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052.
Counsel did what he could under extremely difficult circumstances. While the majority excoriates defense counsel for failing to “consult” with a serologist or other forensic expert in preparation for trial, it fails to acknowledge that the results of such “consultation” are pure speculation and have no basis in the record.
More importantly, nothing in the record hints that defense counsel would have been better prepared to address serology testimony at trial had he retained a serologist at the outset. Both of Richter‘s serology declarations are reactive—they respond to specific points made by the State‘s expert during trial. Neither declaration details any type of advice the serologists would have given defense counsel before trial, when neither counsel nor anyone else knew that the State would be presenting expert testimony on blood evidence.9 Indeed, before trial neither counsel nor the State knew if the State‘s limited blood evidence was still viable—it had been collected over a year in advance and may not have been well preserved. Thus, prior to trial, a serologist could have given defense counsel only general background knowledge about serology: no serologist could have “prepared” defense counsel to address the specific weaknesses in the State‘s case, which only were revealed after Spriggs‘s testimony.
Likewise, it is absurd to suggest, as the majority does, that counsel would have altered his trial strategy after consulting with a serologist before trial. Counsel had good reasons to refrain from having the State‘s blood samples tested, and these reasons would not have been challenged by an advisory serologist. Counsel knew that a major weakness in the State‘s case was the lack of serological evidence eliminating Klein as a potential source of blood pools in the bedroom and the bedroom doorway, and he knew that the homicide detectives had never taken a sample directly from the blood pool in the bedroom doorway or tested the blood samples they did possess. Given these circumstances, counsel had two options before trial: he could ask the State to do a comparative analysis of the blood samples, or he could wait and see whether the State planned on testing the samples itself. An analysis of the possible
If counsel had “investigated” and asked the State to test the blood samples, he very well could have (and in this case would have) aided the State in producing inculpatory evidence against his client. There were only three potential outcomes to a serology test, and only one of them would have been helpful to his client. If the test showed that the blood sample matched Johnson‘s blood, counsel‘s self-defense theory would have collapsed. If the test showed a match with Klein‘s blood, counsel‘s case would have been strengthened. Finally, if the test was inconclusive, counsel was no better off than he would have been had the test never been attempted. All the evidence counsel had at the time indicated that it was highly unlikely that a test would result in the second outcome. Not one piece of forensic evidence discovered at the crime scene corroborated counsel‘s self-defense theory, and counsel had no reason to think that the blood evidence would be any different—in fact, counsel knew that Richter and Branscombe had made videotaped inculpatory statements while in police custody.10
Given the low probability that a serology test would aid his client, and the high probability that it might foreclose entirely his theory of self-defense, it was quite reasonable for counsel to forgo such testing and force the State to analyze the blood on its own initiative. In this way, counsel would gain the same benefits of a positive test and yet also retain more maneuverability at trial. If the State didn‘t bother to test the blood, or found that the samples were too degraded to create a conclusive result, counsel could ridicule the State for its inadequate investigatory processes and imply that other forensic evidence at the scene was not conclusive. Moreover, if the State decided independently to test the blood samples and found potentially exculpatory evidence, it would be required by law to disclose the result to defense counsel. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Of course, the State might test the blood and find an adverse result—but in that case defense counsel would be no worse off than were he to have requested the test himself.
To be sure, counsel‘s decision to rely on the State‘s failure to present expert evidence was in some aspects riskier than the majority‘s preferred strategy. If the blood evidence was exculpatory, his decision not to test the samples could have prevented the jury from having such evidence to consider. But the existence of this remote possibility is no reason to deride counsel‘s decision as unreasonable. Counsel, who could talk frankly with his client and discuss whether “pursuing certain investigations would be fruitless and
Counsel‘s actions during trial, in response to the State‘s expert testimony, were also quite reasonable. Although counsel might have retained a standby serologist to “consult” with during trial (as the majority strangely holds was obligatory), he had a list of the State‘s witnesses and knew the State was not putting on any evidence about the blood pool. After learning that the State was adding a witness, counsel first sought a continuance. When the court refused, he spent time researching the subject matter to determine the evidence‘s strengths and weaknesses. Even with his limited research, counsel‘s questions on cross-examination were thoughtful, informed, and probing. There is no evidence of inadequate preparation or other professional misconduct in his cross-examination. Counsel realized that he was not as competent as a hypothetical expert to examine the serology evidence, and prepared a list of potential expert witnesses to contact. After his cross-examination of Spriggs, however, counsel believed that he had created the possibility of reasonable doubt so as to preclude the necessity of tracking down his own expert witness (who he had no reason to believe at the time would interpret the serology evidence any differently than the State‘s expert11).
In hindsight, the decision not to obtain a serologist even at this late stage in the trial might have been a tactical error. The prosecutor ridiculed counsel‘s decision in his closing argument, proclaiming, “I am not going to worry about Jill Spriggs because, hey, her seven years as a biochemist and a criminalist . . . doesn‘t mean anything, because I am a lawyer . . . But I am not going to pay and bring in an expert to show you.” Also, counsel missed two potential weaknesses in Spriggs‘s testimony—he failed to question her sufficiently about whether a sample containing different proportions of Johnson and Klein‘s blood could produce a 2+1+ result without a stronger 1+ band, and did not raise the possibility that Johnson‘s blood might naturally produce a stronger 2+ band and a weaker 1+ band such that a combination of Johnson and Klein‘s blood would create a uniform 2+1+ result.12
Such errors may be obvious to us, but only because we know to a “scientific certainty” that Richter‘s defense failed.
984Counsel had no such commodious perspective on his case. And the standard by which the majority is judging counsel in this case is so demanding that in the future no counsel, having failed to defend his client successfully in a contested trial, will be immune from our withering scrutiny.
We have previously acknowledged that the failure to call an expert does not always constitute deficient performance for purposes of Strickland. In Duncan v. Ornoski, 528 F.3d 1222 (9th Cir. 2008), we recognized that “it may not be necessary in every instance to consult with or present the testimony of an expert.” 528 F.3d 1222, 1235. We concluded there that because the serology evidence was “pivotal” and because counsel clearly demonstrated a lack of expertise in serology, it was deficient for him to fail to consult with an serology expert and to rest on his cross examination of the State‘s expert. Counsel in this case, however, behaved far more responsibly than counsel in Duncan. In Duncan, counsel “demonstrated his lack of expertise in serology at the outset of his cross-examination of the State‘s serology expert when he told him, ‘You lost me.‘” Id. Indeed, counsel in that case “did not even know what serology was,” and began questioning the State‘s serologist about hair evidence. Id. at 1235-36.
Here, unlike in Duncan, counsel was inexperienced with blood analyses but not uninformed. He spent an entire evening studying the topic before his cross-examination and asked probing and relevant questions of the State‘s expert. After his cross-examination of the State‘s expert, counsel made an informed decision that a serology expert would not add significantly to his case, which from the outset focused on holes in the State‘s investigation. Even nearly fourteen years after the trial, during his deposition in this case, counsel was able to talk intelligently about the serology evidence and its flaws. Moreover, the experts procured by Richter in support of his habeas petition make the same type of objections to the State‘s expert testimony that counsel made on cross-examination—all deal with hypothetical situations in which a 2+1+ result might not conclusively exclude Klein as a potential donor to the blood sample.
Also, unlike in Duncan, we are not engaged in de novo review of the state court‘s decision. Duncan arose under the pre-AEDPA regime, thus, there we “review[ed] the district court‘s decision to deny habeas relief,” and petitioner‘s “ineffective assistance of counsel claims,” de novo. 528 F.3d at 1232-33. Under
The majority stretches the general rule of Strickland beyond any case the Supreme Court has decided. If counsel in this case can be said to have unreasonably rendered deficient performance in failing to use a serologist at trial, almost no counsel in the future can satisfy Strickland without first consulting with every conceivably relevant expert before trial and then calling these experts at trial to testify on any contested forensic issue. No matter what counsel thinks about the efficiency of paying expert witness fees to duplicate his own research on a topic, he is remiss to fail to pay them. Time pressure, financial pressure, trial strategy—it doesn‘t matter: the majority essentially rules, “even when not in doubt, call an expert.”13
Although defense counsel did not perform deficiently in deciding not to call an expert—to, as counsel put it, “sprinkle more holy water” on points made during cross-examination—even assuming deficient performance, I doubt that prejudice resulted. As the Sixth Circuit has held, “the modest difference between the jury hearing [a] theory of defense through cross-examination and hearing it through the mouth of another expert” is not enough to establish prejudice under Strickland. Tinsley v. Million, 399 F.3d 796, 806 (6th Cir. 2005). Although perhaps an expert witness could have articulated the flaws in the prosecution‘s serology evidence more eloquently and provided an opportunity for the defense to bolster its theory through repetition, it is clear that more is required to find that there is a “reasonable probability that . . . the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. 2052.
There is no reason to think that the defense would have been able to present better expert witness testimony at trial than the expert affidavits filed in support of Richter‘s habeas petition. Yet neither of these expert declarations presents significantly better objections than those articulated by defense counsel on cross-examination. Any expert testimony would have provided little new information to the jury—instead, it would have simply reinforced counsel‘s cross-examination, indicating that the 2+1+ result did not preclude a conclusion that the blood sample was a mixture of Johnson and Klein‘s blood, and therefore there was a “possibility” that Klein‘s blood was also in the sample. As it was, Richter‘s counsel argued that Spriggs did not “demonstrate actual knowledge about what really goes on in there when there is degradation, a whole year[‘]s worth of sample.” He added, “Nor did she have particular knowledge of what happened when two kinds of bloods are combined.” The majority cannot (and thus does not attempt to) explain why we should assume that the jury would have credited an expert‘s enunciation of that theory when it obviously rejected defense counsel‘s.
The majority simply misses the point when it claims that because Spriggs “adhered strongly” to her hypothesis that the blood came only from Johnson, Maj. Op. at 967 n.21, the lack of Richter‘s newfound serology testimony was prejudicial. The State‘s expert would most certainly not have broken down on the stand and dramatically admitted error even if defense counsel had introduced directly contradictory expert testimony of his own. The question thus is not whether the expert testimony would have “cast” the State‘s expert testimony “into doubt,” Maj. Op. at 968—defense counsel‘s cross examination did that. The question is whether the expert testimony would have added appreciably to the defense‘s attempts to undermine the State‘s expert. Besides noting that the testimony came from an expert, rather than a lawyer, the majority has not put forward any evidence to support its answer of this question in the affirmative.
Moreover, the expert testimony at issue, even if introduced at trial, is not conclusive enough to significantly weaken the prosecution‘s theory. The proffered testimony says only that it is possible that the blood
Unfortunately for Richter, neither expert cites any evidence to support a conclusion that these theoretical possibilities are at all probable in this case. As the panel found, “[b]ecause these expert reports do not foreclose the likelihood that the blood from the blood sample came exclusively from Johnson, they do not impeach Johnson‘s testimony that the blood came from him alone.” Richter v. Hickman, 521 F.3d 1222, 1231 (9th Cir. 2008). Especially given the significant amount of other forensic evidence supporting the prosecution‘s theory, and the general implausibility of Richter‘s story, see infra Part II.D, it is absurd to assume that evidence about the “possibility” of blood mixing would have convinced the jury that Richter‘s recollection of the events of December 20th was nearly as compelling as Johnson‘s.
3
Once we put the
B
For similar reasons, defense counsel‘s decision not to consult a forensic pathologist was clearly not prejudicial. Richter‘s habeas petition contains the declaration of a pathologist, Dr. Paul Herrmann, who would have been able to testify that the prosecution‘s theory about the creation of the blood pool in the bedroom doorway was “scientifically unreliable.” The majority asserts that this testimony, in combination with that of the other expert witnesses, would have seriously undermined the State‘s case. A closer investigation of the pathologist‘s hypothetical testimony, however, reveals the fallacy of this conclusion. Indeed, much of the pathologist‘s testimony is pure speculation not based on his specialized knowledge or experience and could have been excluded at trial for that reason; his only “expert” analysis does not preclude the State‘s theory; and all of his observations merely parrot defense counsel‘s statements at trial.
Many of the assertions in Herrmann‘s declaration could have been properly excluded by the trial court as having no evidentiary value. See People v. Richardson, 43 Cal. 4th 959, 1179, 77 Cal. Rptr. 3d 163, 183 P.3d 1146 (2008). Herrmann opines that because nothing in Johnson‘s testimony indicates that he was standing in the bedroom doorway for an amount of time necessary to create a pool of blood of the necessary magnitude, the prosecution‘s
Likewise, the only opinions in the pathologist‘s declaration based on his “experience” are too speculative to be admissible. Although Herrmann admits that he had access to photographs of Johnson‘s wounds, he does not base his conclusions on this evidence, but on testimony offered at trial, which he did not attend. Moreover, he gets a number of material facts wrong. Herrmann claims that the investigating officer did not notice that Johnson was injured until a few minutes after arriving at the crime scene and opines that “[g]iven my experience, if Mr. Johnson had been bleeding so profusely as to have deposited the pool of blood on the floor between the living room and the bedroom, it is unlikely that Detective Wright would have been oblivious to the injury.” In offering this opinion, he ignores Detective Wright‘s testimony that Johnson was soaked in blood when he arrived at the house: Johnson had “blood on both cheeks, blood covering his shirt, and blood on his hands, and . . . on his right shoulder.” He also fails to account for photographic evidence that Johnson bled enough to create a significant blood pool in the kitchen during the few minutes he talked with the detectives. Finally, Herrmann‘s declaration ignores Detective Wright‘s testimony indicating that one reason the detective did not believe Johnson was injured was because Johnson originally claimed that he was not hurt. See Richardson, 43 Cal. 4th at 1179 (“[An] expert‘s opinion may not be based on assumptions of fact without evidentiary support, or on speculative or conjectural factors.” (internal quotation marks and alterations omitted)).
Even if by some serendipitous occurrence these conclusory and speculative assertions were not summarily excluded by the trial court,14 they are too weak to significantly contradict the State‘s theory. Herrmann‘s declaration is careful to conclude that the State‘s theory is “unlikely“—not that it is impossible. In fact, it
More importantly, the pathologist‘s hypothetical testimony is simply a repetition of the defense‘s overarching theory, echoed by defense counsel throughout trial, that Johnson was shot around 4:20 am rather than 5:00 am and otherwise could not have had time to dispose of his marijuana plants and create blood trails throughout the house. For example, during his cross-examination of Detective Wright, defense counsel pressed, “And it wasn‘t until after you had located [Johnson] in the kitchen area that you first entertained a belief that he had, in fact, suffered a wound; is that right?” The jury had full knowledge of the defense‘s theory and could do with it what it pleased. The majority proffers no reason that having a pathologist repeat what defense counsel harped on during trial would be at all consequential to the jury‘s decisionmaking—especially when the pathologist‘s opinion is not supported by any explicit medical or scientific basis and could have been excluded for that reason.
The majority thus illogically concludes that defense counsel rendered ineffective assistance by failing to consult with and call to the stand an expert whose testimony would have been redundant, utterly unpersuasive, discredited by readily available forensic evidence, and most likely inadmissable. Indeed, it concludes that a state court adjudicating otherwise has been unreasonable. This is beyond overreaching.
C
What the majority calls the “most damaging” aspect of counsel‘s performance, his decision not to consult with a blood spatter expert, is actually the most understandable. Counsel had good reason for failing to consult with a blood spatter expert—he learned only minutes before the State‘s blood spatter expert‘s testimony that anyone would be opining on such matters. Moreover, counsel‘s failure to consult with a blood spatter expert was far less damaging than the majority admits. For these reasons, even if counsel was not flawless in his approach to the blood spatter testimony, his performance did not rise to the level of unconstitutional deficiency, and in any event, the testimony he could have elicited through his own expert would not have contradicted the State‘s case.
1
Before trial, counsel had no reason to know that an expert in bloodstain pattern interpretation would be helpful to his defense. Indeed, in his deposition he clearly confirmed that although he considered consulting a serologist before trial, he did not even consider consulting a blood spatter expert until after the State‘s expert had testified. Counsel‘s approach was not unreasonable.15
Counsel‘s opening statement neither revealed counsel‘s knowledge of the importance of expert blood spatter testimony nor promised the jury that he would call a blood spatter expert. Although counsel did, in his opening statement, advise the jury of the significance of blood spatter evidence, he also indicated precisely what bloodstain pattern evidence he believed supported his theory—none of which remotely required an expert to interpret. Counsel noted in his opening statement that “[t]he evidence of great importance is the lack of spatter marks in this area, and [the lack] of other pools of blood, and spatter marks found elsewhere in the house inconsistent with stories told by Gunner Johnson.” (emphasis added). He explained further that photographs of the crime scene would show that “there are no spatter marks of blood or anything on the couch;” that there were no blood marks on the sleeping bag on which Klein was purportedly sleeping; that there was a large pool of blood in the bedroom doorway that was never analyzed by the police; and that although Johnson claimed that he turned the lights on after being shot by Branscombe, there was no blood on the light switch. Not only did counsel elicit testimony establishing each one of these propositions during the course of the trial, he reiterated their significance in his closing statement.
Thus, because counsel was hardly remiss for failing to call a blood spatter expert to testify about the significance of the absence of blood spatters or pools of blood in certain areas of the house, the only possible “promise” counsel failed to honor was his pronouncement that the pool of blood (not blood spatters) in the bedroom doorway was “inconsistent with stories told by Gunner Johnson.” But, as counsel testified in his deposition, he had no reason to know before trial that the absence of small blood spatters surrounding this pool of blood would be significant in determining its source. Indeed, although there were “spatters” surrounding the pool that might ordinarily have alerted experienced counsel to the importance of a bloodstain analysis, these spatters were in this case created by a “foot stomp“—some unknown person had stepped into the middle of the blood pool and splashed portions of it on the bedroom wall and door. This was not enough to alert an attorney of counsel‘s experience to the importance of a blood spatter expert before trial.
During trial, counsel diligently responded to the prosecution‘s expert‘s testimony. He first objected to the testimony and asked that it be excluded, claiming that it was proffered too late. He also asked for
Once the prosecution‘s expert, Detective Bell, had testified, counsel “considered [exploring] testimony relating [to] atomized blood droppings in the area of Mr. Klein‘s head on the couch relating also to whether or not this could have been caused by a sneezing, coughing, choking of the person on the telephone that was somewhat adjacent thereto.” He also considered whether it was necessary to call an expert to testify concerning the various blood spatters in Johnson‘s bedroom. In both cases, he waited until after his cross-examination of the prosecution‘s expert, and then determined that neither expert would be profitable to his defense. This judgment appears to have been correct—Richter has failed to obtain in support of his petition a single expert who would contradict Detective Bell‘s opinion about the origin of these spatter marks, or who would indicate that defense counsel‘s theory about the origin of these spatter marks is even “possible.”
Even after Detective Bell‘s blood spatter testimony, counsel had no reason to know that an expert would be helpful to determine whether the blood pool in the bedroom doorway came from Klein or Johnson. Detective Bell did not testify at all about blood spatter surrounding the pool—he testified about blood patterns and spatter on Klein‘s body and in other areas of the crime scene. Counsel might have been alerted to the fact that a blood spatter expert might have been helpful in general, but he had no reason to believe that blood spatter testimony would definitively indicate that either Klein or Johnson created the blood pool. Indeed, counsel had good reason to believe that a blood spatter expert would not be able to confirm his client‘s story—all the evidence so far presented at trial (and generally known to counsel) suggested that pursuing such an investigation would be fruitless. See supra Part II.A at n.7.
In sum, although counsel‘s response to the blood spatter expert‘s testimony was unlike his more reasonable response to the serologist‘s testimony—he did not independently research bloodstain pattern science nor know enough about the subject to evaluate whether his cross-examination of the State‘s expert was sufficiently effective—it was not so egregious to constitute ineffective assistance of counsel. By the time the blood spatter expert had testified, the trial was well underway. Counsel had to weigh the potential value of such an expert with the cost of acquiring one mid-trial. Taking time out of his trial preparation to find and retain a blood spatter expert who he had no reason to believe would disagree with the State‘s expert or be able to opine on the source of the blood pool is not plainly an error in judgment. Even if, with the benefit of hindsight, it was not a prudent decision, it was certainly not constitutionally deficient. At the very least, it was reasonable for California courts to consider counsel‘s choice not deficient.
2
Even if counsel made the wrong call, in light of the existing forensic evidence and the implausibility of Richter‘s story it is far from clear that Richter was prejudiced. The majority confidently proclaims that the testimony of Richter‘s new-found blood spatter expert, Ken Moses, would have created reasonable doubt as to Richter‘s complicity in Klein‘s murder. But this proclamation ignores the unchallenged blood spatter evidence at trial that directly undermined the defense‘s entire case.
Thus, for the forensic evidence to be be consistent with Richter‘s story, the drug-addled, intoxicated, 5‘10“, 155 pound Johnson would have had to perform an athletic feat of nearly Olympic proportions to move Klein from the bedroom doorway to the couch.16 According to Detective Bell‘s testimony, Johnson would have had to lift the 6‘1“, 166 pound Klein “like a baby in [his] arms with [his] head parallel with the axis of [his] body” and carry him in precisely this position across the room, over a coffee table, and onto the couch. Johnson could not have dragged Klein even a short ways from the blood pool—he had to lift him “straight up.”
More importantly, for the forensic evidence to be consistent with Richter‘s story, some other person would have had to have been shot at or near the couch—a proposition that is entirely inconsistent with both Richter‘s recollection of the events in question and the evidence presented at trial. Richter did not testify that he saw a third wounded person on or near the couch. No additional shell casings were discovered in the living room that did not correspond to either Johnson‘s or Klein‘s wounds. Neither the State nor defense counsel offered any witnesses who claimed that another unknown person was in the house on the morning of December 20th. After fifteen years, no witnesses have materialized either to admit to being in Johnson‘s residence during the night in question or to report on a newly disinterred corpse with at least one bullet wound.
Given the utter lack of evidence indicating that a third person was shot at Johnson‘s residence, the totality of the State‘s and Richter‘s blood spatter testimony leads to only one possibility: Klein was shot on or near the couch. This scenario is entirely inconsistent with Richter‘s story, which required Johnson to shoot the struggling Branscombe and Klein from a position near his bed.17 See Maj. Op. at 963 (“If Klein was killed while lying on the couch in the living room, there was no possibility that Richter‘s account was correct.“).
Although Richter‘s newfound expert testimony opining about the lack of small satellite spatters in the area of the doorway blood pool may have weakened Johnson‘s already scattered account of the shootings, it would not have been enough to render plausible Richter‘s contrary account. Richter‘s blood spatter expert opines that “the blood pattern [in the bedroom doorway] was caused by the pooling of blood from a source close to or lying on the floor.” This opinion is not inconsistent with the theory that the blood pool came from Johnson—instead, it means only that the blood couldn‘t have originated from Johnson while he was standing up.
Richter, even after several years of foraging for expert testimony to reinforce his theory, has been unable to discover a single expert to contradict Detective Bell‘s testimony that someone had to be shot within a few feet of the couch. At trial, defense counsel argued that the high velocity blood spatter near the couch was created when Johnson sneezed or coughed blood while talking on the nearby phone. Not surprisingly, Richter‘s habeas petition lacks any expert declaration confirming this assertion that Johnson could cough blood with the force of a semi-automatic. Likewise, although the majority takes it upon itself to discredit Detective Bell‘s testimony concerning Johnson‘s movement of Klein, Richter has not produced any expert testimony disputing Detective Bell‘s conclusions in this regard.
In sum, unlike Richter‘s blood spatter testimony, which only contradicts Johnson‘s recollection of the events, the State‘s blood spatter testimony contradicts the defense‘s entire case because it establishes that Johnson could not have physically shot Klein. The State‘s blood spatter testimony has never been challenged—even Richter‘s new blood spatter expert cannot contradict the State‘s blood spatter evidence.18 Because the State‘s case was not predicated on the fact that Johnson stood up while making the blood pool in the doorway, Richter‘s testimony only discredits Johnson‘s account of the events. In contrast, the defense‘s entire case was predicated on Johnson having the ability to shoot Klein with a .22 while Klein was struggling with Branscombe, and this theory is entirely discredited by the State‘s blood spatter testimony.
Because of the unchallenged forensic evidence directly contradicting Richter‘s entire case, it was thus likely correct, and certainly not unreasonable, for a state court to assume that no prejudice resulted from defense counsel‘s failure to obtain the expert blood spatter testimony.
D
As the majority recognizes, Strickland requires us to “consider the totality of the evidence before the judge or jury” when making a prejudice determination, 466 U.S. at 695, 104 S. Ct. 2052. But this inquiry does not merely encompass the evidence claimed by the habeas petitioner to be infected with error—it also should include a consideration of “factual findings
In order to believe Richter and Branscombe‘s story, the jury first had to assume that Johnson was simultaneously savvy and stupid. The jury had to believe that Johnson was intelligent enough to do the following things after being shot in the shoulder and head by Branscombe: (1) take the .22 caliber semi-automatic handgun (that only Richter claimed Johnson owned) and bury it where no subsequent investigation would unveil it; (2) move the .22 caliber casing from his bedroom to the living room to implicate Richter in Klein‘s death;19 (3) find his hip sack and any remaining CCI Stinger .22 caliber ammunition and bury it with the .22 caliber gun in order to make the scene consistent with a robbery; (4) throw his pager out his front door onto the lawn to make it look like Branscombe and Richter had taken his hip sack; and (5) lift Klein carefully from the bedroom doorway and move him to the couch to make it look like he was shot in his sleep. Despite this careful scheme, the jury also had to believe that Johnson was so stupid as to (1) move Klein, rather than leaving him exactly where he was shot, and simply tell the police that Klein was coming to Johnson‘s aid when he was gunned down in the bedroom doorway; (2) throw his marijuana plants and drug paraphernalia over his fence into his neighbor‘s yard, in plain view, instead of hiding them with the .22 handgun, the CCI Stinger ammunition, and the hip sack; (3) wait nearly forty minutes planning his story before calling the police, only to tell them three potentially inconsistent stories about what happened;20 and (4) tell the police specifically that he did not ever see Richter holding a gun in his bedroom, when he had already manipulated the crime scene to implicate Richter.
To believe Richter‘s story, the jury also had to overcome uncontradicted, unchallenged forensic evidence corroborating Johnson‘s story. The prosecution‘s blood spatter expert testified that the blood flow patterns on Klein‘s face indicated that he
Finally, to credit Richter‘s version of the events, the jury had to believe that several highly improbable events occurred. The jury had to believe that (1) Richter and Branscombe left Johnson‘s house around 2:00 am to return to their workplace at the Christmas tree lot because they suddenly felt motivated to clean up their work area; (2) Richter and Branscombe returned to Johnson‘s house at 4:00 am to give Johnson‘s roommate his pay and clothing from the Christmas tree lot, rather than waiting until the next morning; (3) upon the duo‘s return to Johnson‘s residence, Johnson and Klein were so intoxicated or drugged that they attacked Branscombe (who they had just smoked marijuana with a few hours before) for no reason;21 (4) Klein, who had let Branscombe into Johnson‘s residence minutes earlier, initiated an attack on Branscombe with sufficient force that Branscombe felt justified in pulling out his .32 in self-defense; (5) Johnson, who had a perfectly good .22 caliber semi-automatic handgun, would first attempt to shoot Branscombe with his Cobray M-12, which was allegedly prone to jamming; (6) the M-12 immediately jammed after Johnson fired one shot, even though it functioned normally when tested later; (7) Johnson, a firearms enthusiast possessing the element of surprise, first fired his M-12 nearly straight into his bedroom floor, then missed hitting Branscombe with his .22 semi-automatic handgun from around twenty inches away; (8) Richter coincidentally had ammunition and a magazine at his residence that perfectly matched the .22 caliber casing found at the crime scene; (9) Richter and Branscombe ran off to the Yolo overpass to immediately dispose of the weapons even though they believed they were innocent; (10) Richter and Branscombe just happened to have several $100 bills, one of which happened to fall out while they were disposing of the guns in the Yolo overpass; (11) Richter and Branscombe avoided calling the police for a day and a half after the shootings, even though they learned shortly thereafter that the police were investigating Johnson‘s house; (12) Richter initially denied ever being at Johnson‘s house, even though he believed he was innocent; and (13) after an exhaustive search of the Yolo overpass in the area where Richter told the police the weapons had been thrown, no weapons were found, but the very next day, defense counsel returned to the over-
Given the utter implausibility of Richter‘s story, and the general plausibility of Johnson‘s, it stretches the very meaning of prejudice to claim, as the majority does, that counsel‘s failure to produce expert testimony that would at best contradict the prosecution‘s experts and Johnson on some minor points is enough to sustain Richter‘s burden of proving prejudice. Even if we could conclude as a matter of first impression that, in the face of such odds, the unproduced expert opinions might have persuaded a jury that Richter could not be guilty beyond a reasonable doubt, it is condescending to conclude that California state courts adjudicating otherwise have made an unreasonable decision under
III
The majority today grants Richter‘s request for a do-over. The temptation to grant such a request is great in a contested case of “who shot whom first” when the evidence is either circumstantial or based on the eyewitness accounts of the participants. The temptation is particularly alluring when we know what trial counsel could not: that his defense is not going to work. But our post-hoc clairvoyance cannot diminish the fact that Richter‘s counsel presented a coherent, viable defense. The majority‘s perceived “deficiencies” in counsel‘s preparation ignore counsel‘s real-time dilemmas—the trial court, the prosecution, his limited resources and, most importantly, his client. We face none of those challenges. No trial will ever be perfect; no counsel complete in his preparation. Richter‘s counsel, even if not perfect, was diligent in his preparation and vigorous in his defense. I would conclude that there was no Strickland error and, a fortiori, no grounds for us to grant the writ under
I respectfully dissent.