By Daniel McGinn-Shapiro

On October 12, 2010, the United States Supreme Court heard oral arguments in Harrington v. Richter.  Before the Court was an appeal from the Ninth Circuit decision to grant a habeas petition for lack of effective counsel. 

The Respondent, Joshua Richter, and another man, Christian Branscombe, were convicted of murder, attempted murder, burglary, and robbery.  At trial, the prosecution successfully convinced the jury that Richter and Branscombe entered the home of Joshua Johnson, shot and injured Johnson, shot and killed another man, Patrick Klein, who was asleep on a couch, and stole a pistol and a bag containing $6,000.

The Respondent claimed that he and Branscombe went to Johnson’s home for innocent reasons, and Richter waited outside while Branscombe went into the house.  After hearing gun-shots Richter entered the house and found Johnson unconscious in his bed and Klein lying dead in a pool of blood by the bedroom door.  Richter’s attorney argued that Johnson shot at Branscombe, missed and hit Klein, and that in self-defense Branscombe shot and hit both Johnson and Klein.

In his habeas petition, Richter claimed that his attorney was ineffective because he did not investigate or produce expert testimony about whether the pool of blood by the bedroom door, which was photographed but never tested, contained Klein’s blood.  Richter felt that such evidence would have corroborated his testimony that he saw Klein in a pool of blood by the bedroom door.  That in turn would have made it more probable that Klein was killed in crossfire and not shot in cold blood while asleep on the couch, where his dead body was found. 

In 1999, Richter filed a habeas petition with California Supreme Court.  Richter’s petition alleged that his attorney provided ineffective assistance under the United States Supreme Court case Strickland v. Washington.  After the California Supreme Court denied the Respondent’s petition, he filed another petition in the federal district court, where they denied the petition after determining that Richter’s attorney’s decision not to introduce expert testimony was reasonable.  A three judge panel of the United States Court of Appeals for the Ninth Circuit Court affirmed the district court’s decision.  But, when the case was reheard by an en banc panel of the Ninth Circuit, the habeas petition was granted.

The en banc panel determined that the source of blood in the pool by the bedroom was the “single most critical issue in the case, at least from the standpoint of the defense.”  The panel determined that at three times - when choosing a defense, when preparing a defense, and during trial - when the prosecution produced two expert witnesses of its own, the defense counsel should have consulted a forensic expert. 

The major issue before the Court in the case is to determine what the consequences of the Ninth Circuit’s decision would be.   Does the en banc decision impermissibly expand the standard set in Strickland to make calling an expert witness essentially a requirement for effective representation, or did the Ninth Circuit decision only find ineffective counsel in this case because the blood pool was so central to the defense’s case?

The Court could deal with the case purely procedurally, perhaps by determining that the en banc panel did not use the proper level of deference.  But, the Court may also decide to look at the merits of the habeas petition.  If the Court chooses to examine the merits of the case, there are two vital and yet competing interests at stake.  On one hand, the Sixth Amendment promise of effective counsel is at the heart of the adversarial system used in our judicial system.  At stake is the chance that an attorney’s incompetence puts an innocent man in jail.  Numerous courts and commentators have stated that it is perhaps the greatest travesty of justice for an innocent man to be jailed for a crime he did not commit.  But, on the other hand there is the interest of the effective and efficient administration of justice.  Do we want to incur the cost of providing expert testimony in almost all criminal cases, even when an attorney has determined that it is not in the interest of their client?  And beyond the cost, should the courts be in the business of second guessing the legal strategy of defense counsels?  During the federal district court hearing on the habeas petition, Richter’s attorney testified that he determined that before the trial he decided that the best legal strategy required not calling an expert.  Should the Supreme Court, or the Ninth Circuit, after the case, judge that legal strategy?