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Not Reading the Case File Is Ineffective Assistance

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By William Peacock, Esq. on November 15, 2013 3:09 PM

Pedro Vega was convicted in 2002 of molesting his stepdaughter. Prior to that conviction, he had escaped criminal charges twice: A federal case was dismissed on jurisdictional grounds, and state charges were dismissed as well. After new allegations by the victim came to light, the state brought charges again. Even then, there were two mistrials, including one caused by his attorney's absence, before he was finally convicted.

Three sets of charges. Three attorneys. And three trials, all of which were handled by the same attorney, who apparently never read the full case file, as he didn't discover the victim's second recantation, to her priest, until after that third trial.

Ineffective assistance, perhaps?

Arizona and the District Court: Nah. It's Cumulative

After striking out on direct appeals, Vega's habeas claims in both the Arizona courts and in the district court were all denied, mostly because the courts found the second recantation to be cumulative. The victim had recanted to her mother, who testified about the recantation at trial and was cross-examined.

Ninth Circuit: Strickland Satisfied

Of course, the more recantations, the better for the defendant, right?

Applying the Strickland v. Washington test for ineffective assistance of counsel, the Ninth Circuit panel held that the attorney's failure to read the case file, and to fully investigate the case before trial, amounted to a clear case of ineffective assistance.

As the court previously stated, "A lawyer who fails adequately to investigate, and to introduce into evidence, records that demonstrate his client's factual innocence, or that raise sufficient doubt as to that question to undermine confidence in the verdict, renders deficient performance."

And while the court will defer to counsel's calls on strategy, the trial attorney here didn't even know about the recantations until a week or two after the trial, "so there cannot be a suggestion that counsel made a strategic decision not to call Father Dan."

Deficient performance alone won't meet the Strickland standard, however. A defendant must also show prejudice. The other courts to hear this case all held that Father Dan's testimony would have been cumulative, and therefore, there was no prejudice. The Ninth Circuit, however, disagreed.

"Evidence of multiple recantations was not merely cumulative. It also could have impacted the victim's credibility, which the appellate court found 'was a central issue based on evidence of her recantation.' Indeed, credibility was crucial to Vega's defense of actual innocence because the uncorroborated testimony of a victim is enough to sustain a conviction for child molestation ... Thus, the possibility of even one juror finding reasonable doubt in light of multiple recantations, or because one of those recantations was made to the victim's priest, was reasonably likely."

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