Dugas v. Coplan, No. 04-1776, remands a habeas petition to the district court to determine whether counsel’s performance case so ineffective as to cause prejudice under Strickland. This was an arson case. Since a jury appears to have convicted a man who was innocent, I am sure that those who argue that juries are out of control and reach incorrect verdicts will join with me in arguing for more searching review of state convictions on habeas. After Councilman, this is probably one of the most important
cases of 2005 for the First Circuit. Heck… it probably is more important than Councilman. The dissent is horrendous and makes me
embarrassed to be an American.
The defendant had hired an experienced lawyer named Raimo (a recovering prosecutor) who had never done an arson case before. “Like most attorneys, [his attorney] had no training in fire investigation; his scientific background consists of ‘high school chemistry and physics.’” Oooh... diss. The First describes his efforts to learn about arson and fire. But, he “did not, however, conduct further investigation into the "not arson" defense. Instead, he concentrated at trial on a theory that another person caused the fire. He as convicted, and the New Hampshire Supreme Court affirmed his conviction. State v. Dugas, 782 A.2d 888 (N.H. 2001). The state court did not reach the issue of prejudice, so the District Court reviewed the issue de novo, and it found that his petition, which included the testimony of a proposed expert on fire “might have been helpful to the defense” but “ it found that, overall, they ‘do not undermine the court's confidence in the outcome of the criminal trial.’ “
The First comments that, in this case, where some issues were reached by the state court that:
Our standard of review is slightly atypical because the state court adjudicated Strickland's performance prong but did not reach the prejudice prong. "Appellate review of the district court's denial of habeas relief is de novo, but we accord deference to the state court as to issues it actually decided."
Applying Rompilla v. Beard, 125 S. Ct. 2456, 2463 (2005), the court concludes that the failure of his attorney (named Raimo) to investigate the “not arson” defense under Strickland was deficient:
First, challenging the state's arson case was critical to Dugas's defense. Other than creating reasonable doubt that the fire was not arson, Dugas's only defense was that "someone else did it" -- a defense that is often difficult to mount and fraught with evidentiary problems, as Raimo's attempt to cross-examine witnesses about the main alternative suspect demonstrates. Much of Dugas's defense, therefore, depended on Raimo's ability to convince the jurors that the State's experts might be wrong in concluding that the fire was arson. Indeed, he told the jurors as much at the outset of the trial. Given this representation, it is unfathomable that he did not undertake a more thorough investigation into such a crucial aspect of the defense.
Second, the arson evidence was the cornerstone of the state's case. The state had little evidence beyond it
Third, [his attorney] acknowledged that he lacked any knowledge of arson investigation and had never tried an arson case.
Fourth, Raimo knew and admitted that a layperson would be likely to view the scene as an arson. He understood that expert testimony or a well-informed cross-examination on the scientific conclusions of the state's experts would be necessary to shake the jurors' views that they were dealing with an arson scene. Yet he did not prepare himself for that task....
Fifth, Raimo conceded that he had at least some reason to believe that there were problems with the state's arson case. He noted inconsistencies in the testimony of the state's arson experts and recalls talking to colleagues about the need to hire a well-qualified expert to challenge the state's arson case....
Then, applying AEDPA, the court concludes that merely finding that his attorney was experienced, and “considered” more science-based strategies was an unreasonable application of Strickland.
The First remands, however, because it is unsure whether there was actual prejudice, and in particular a rather technical analysis of the expert opinions (relating to fire and chemicals), because “The case for prejudice here is close; we do not conclude that there was prejudice, but only that, in the circumstances of this appeal, Dugas has raised sufficient doubts about the outcome to avoid summary judgment.”
Judge Howard dissents and would keep the guy in jail, and thinks that it is a bad idea for defense attorneys to hire experts, because he thinks that the state always gets its science right. He writes:
In conclusion, the majority states that its opinion is narrow and tailored to the facts of this case, and that it has not established a new rule of constitutional law requiring the retention or appointment of double-checking counter experts in the many contexts -- e.g., fingerprints, chemical analyses of narcotics, ballistics, origin of firearms -- where prosecutors use experts to explain scientific or otherwise specialized evidence. But law is made less by what an opinion says than by what the opinion causes practitioners to do as they engage in the predictive processes inherent in legal practice and reasoning. Cf. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897). In view of the facts of this case, there is reason for concern that, notwithstanding the majority's minimalist assurances, defense attorneys will read today's opinion as embracing, at the least, a presumption that they must spend precious time and money on constitutionally required double checks of most prosecution science experts -- double checks that never before were required and reasonably may be eschewed in many circumstances. So too is there reason to fear that trial judges will read this opinion as constraining their discretion in deciding, in the case of indigent defendants, whether and when to expend limited public funds on court-appointed defense experts for purposes of double-checking the prosecution. And thus would the already slow and costly criminal trial process unnecessarily become slower and more costly.
I get it. It should be cheap for the state to take peoples’ freedom and lives away. While I certainly would have expected this from the Fourth, I thought the First was above saying that indigent defendants should trust the government. Luckily, this view was rejected and the majority saw that he was making and not interpreting the law, and interpreted the law properly.
When I read Judge Howard's dissent and your insightful comments I had to sign up to be a memeber just so I could tell you, you made my day! I'm going to print it and tape it to the inside of my folder.
Posted by: MiMi | May 26, 2006 at 06:11 AM