U.S. Supreme Court takes up ineffective assistance case

By Kimberly Atkins The Daily Record Newswire The Supreme Court heard oral arguments recently in a case that considers whether a lawyer ineffectively assisted a murder defendant by failing to get an expert to investigate blood evidence from the scene of a shooting. The case, Harrington v. Richter, involves the conviction of Joshua Richter and his friend Christian Branscombe for murdering a man during the course of a home robbery. Prosecutors argued that Richter and Branscombe entered the home, shot two men and stole a safe. One man died at the scene. However, Richter claimed that he and Branscombe went to the house of a mutual acquaintance to return belongings. Richter contended that he remained in the car. When Branscombe entered the home and awakened one of the men, he claimed that the man opened fire, but hit the other house occupant by accident. Branscombe said that he then shot the first man in self-defense. Richter and Branscombe claimed that they then panicked and fled. After trial, Richter claimed that he was denied the effective assistance of counsel because his trial lawyer failed to properly investigate the state's blood-splatter evidence and didn't present experts to testify that the evidence showed that the victim had been shot in accordance with the defense's theory of the case. The 9th Circuit agreed, explaining that a competent attorney would have consulted with an expert in blood evidence before settling upon his theory of the case. The Supreme Court granted the state of California's petition for certiorari. 'Silly' standard? California Deputy Attorney General Harry J. Colombo argued that, under the 9th Circuit's interpretation of the ineffective counsel standard set out in Strickland v. Washington, every defense attorney would be required to have experts conduct forensic testing in cases involving blood evidence. ''Did they explicitly say in every single case you have to consult an expert?'' asked Justice Sonia Sotomayor. ''No, they didn't say that,'' Colombo said. ''Or did they say [that under] the circumstances of this case, given the nature of the issues, that consultation would have been effective?'' Sotomayor asked. ''That is certainly one reading,'' Colombo said. ''I submit that the more correct reading [is] that since counsel should have expected the prosecution [to] present forensic evidence, he should have not only investigated it, he should have consulted with experts.'' When Sotomayor asked whether having an expert would have helped in the case, Scalia interjected. ''Why [does] it make a difference whether the expert would have helped or not?'' Scalia asked. ''I mean, counsel has to make that decision of whether to call an expert ex ante, not ex post.'' Scalia later asked Clifford Gardner, a Berkeley, Calif. appellate and habeas corpus attorney who represented Richter, if his argument that the attorney must consult an expert would be different if the client confessed his guilt to the lawyer. ''The ABA standards say that the broad duty to investigate exists, irrespective of the client's statements to its lawyer,'' Gardner said. ''We've never adopted the ABA standards, have we?'' Scalia said. ''That standard seems to me quite silly.'' Justice Elena Kagan recused herself from consideration of the case. A decision is expected later this term. Published: Mon, Oct 25, 2010

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