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IAC in murder case

Jean Gilles Phillips and student interns Ashley Epperly and Sarah Pfieffer at the KU Defender Project won in Bledsoe v. Bruce, No. 07-3070-RDR (D. Kan. June 23, 2008), a federal 2254 petition. Mr. Bledsoe's murder conviction was affirmed by the KSC (here) in 2002 and denial of his 1507 motion claiming IAC was affirmed by the KSC (here) in 2007. But Judge Rogers granted a new trial based on ineffective assistance of counsel holding that the KSC's previous rejection of the claim was "objectively unreasonable."

The Kansas Supreme Court did not address this topic in any detail, only stating that it was adopting the ?district court?s determination that [petitioner] fails to meet his burden to show that [his counsel?s] representation was constitutionally deficient on this point.? The district court rejected petitioner?s argument on the grounds that an objection ?would have been overruled because it is not a statement of fact by Catherine, it is merely her testimony concerning her conversation with the Petitioner.?

The court does not believe the state supreme court?s holding on this point was objectively reasonable. The law is clear in Kansas that a witness may not express an opinion on the credibility of another witness. This rule applies even if the opinion of another witness? credibility is asked for indirectly. Thus, for instance, it was improper to ask a nurse whether it appeared that an alleged victim of sexual abuse had been coached. It was also held to be improper for a detective to testify that other suspects in a murder case were ?honest.? Even expert witnesses with experience in interviewing people, such as psychologists and police witnesses, may not render an opinion on a witness? credibility.

Petitioner does not argue that petitioner?s part of the conversation with Catherine Bledsoe was inadmissible and, therefore, we assume that it was admissible.

For the following reasons, we find the state court?s position on this evidence objectively unreasonable. The state court indicates that Catherine Bledsoe?s statement that ?I know Tom didn?t do it? was just context for petitioner?s statement that ?Tom didn?t do it.? However, Mrs. Bledsoe could have explained that petitioner told her that ?Tom didn?t do it, somebody else did it? during a phone call from jail without adding her own extraneous part of the conversation. It was not important to understanding what petitioner said. Moreover, it was not argued by the prosecutor as context. It was argued as direct evidence that Tom did not commit the crime and, therefore, that petitioner did. In addition, even if it was context, it was so prejudicial for the jury to hear the credibility call of a mother in a swearing match between two brothers, that its prejudicial impact outweighed its contextual value. Finally, there was no attempt by the attorneys or the trial judge to limit how the jury would consider the testimony by petitioner?s mother that ?Tom didn?t do it.? The jury was implored to consider that ?Mom? told you what happened when she said that ?Tom didn?t do it.?

The court shall consider the issue of prejudice from the failure to object to Catherine Bledsoe?s ?Tom didn?t do it? statement, along with petitioner?s contention that the cumulative prejudice from all of his counsel?s errors requires that the court grant his habeas petition. The prosecutor in this case argued in closing that Cody, Mom (Catherine Bledsoe), and petitioner explained that petitioner was guilty of the crime charged. But for the mistakes of petitioner?s trial counsel, the prosecutor could not have referred to Cody?s alleged eyewitness statement or Mom?s judgment that Tom Bledsoe did not commit the crime and, inferentially, was a credible witness. Without this evidence and without any physical evidence pointing to petitioner, the case against petitioner would largely boil down to Tom?s claim that petitioner confessed to him. In the absence of the previously described errors of counsel and Catherine Bledsoe?s ?Tom didn?t do it? testimony, there is a reasonable probability that a jury would not believe Tom?s testimony and find that petitioner was not guilty.

Nice job to state habeas counsel, Richard Ney, for litigating and preserving the issue well for federal review.

Full post as published by Kansas Defenders on June 30, 2008 (boomark / email).