Fifth Circuit Finds Ineffective Assistance of Counsel: Hughes

Hughes' Trial and Witness Issues

Hughes was charged with and convicted of second-degree murder charges.  Hughes indicated that the victim yanked on the barrel of the gun and pulled it towards him.  Both Hughes and the victim fell, the gun hit the victim’s chest and then the gun went off.  The forensic report indicated that “the trajectory of the bullet was consistent with either a struggle or with the victim being bent over.

There was only only neutral eyewitness.  At trial the witness indicated that she saw [the victim] back away from [Hughes].  Then she heard the gunshot and then saw that [the victim] fell to the ground.

In a previous statement the eyewitness said that she heard the gunshot first and then she went outside and saw the two men arguing.  When asked about the contradiction she said that she incorrectly transposed the events due to nerves.  The attorneys pressed her in the inconsistency and she stated that she saw the shooting.

After the jury found Hughes guilty the trial counsel became aware of an interview that the attorney believed indicated that the witness was inside at the time of the gunshot.  The lawyer filed for a new trial based on newly discovered evidence.  This was denied by the court and Hughes was sentenced to life.  Hughes’ direct appeal and petition to the state supreme court were denied.

Hughes' Post Conviction Arguments

After that, Hughes’ new counsel filed a state post conviction motion stating ineffective assistance because trial counsel never interviewed the eyewitness.  The eyewitness’ roommate stated that both her and the witness were watching TV when they both heard the gunshot.  The eyewitness re-stated what she said at trial (that she heard the arguing, went outside and then heard the shot).

Trial Counsel said that he was unaware that the eyewitness was going to testify until the week before trial when the prosecutor informed him of her anticipated testimony.  Trial counsel said that he thought that the eyewitness was going to say that she heard the shot and then came out and saw two people arguing.  Trial counsel thought this because it was what she put on her sworn statement.  Trial counsel did not attempt to interview the eyewitness before or after he became aware of her changed testimony.  This was because he believed that he was going to be able to cross examine her on the changed testimony.  Trial Counsel said that if he had interviewed the eyewitness he would have discovered her roommate, whose testimony was different than the eyewitness.

(remember:  Eyewitness said yelling, then went outside and saw and heard shot).(remember:  Roommate said heard shot and then went outside and saw two people arguing).

The [state magistrate] issued [the equivalent of a Report and recommendation] to rant relief for ineffective assistance of counsel.  But the [state district judge] overruled the [state magistrate] without any explanation or hearing.  The state appellate court also denied the [motion] and the state Supreme Court did too.  This was without a hearing or explanation.

Hughes then filed a 2254 in federal court based on ineffective assistance of counsel for failing to investigate the eyewitness.  The federal magistrate recommended that the “[state district] court’s ultimate legal conclusion was objectively unreasonable.”  The [federal district] judge agreed and ordered a new trial.  The state appealed.

Ineffective Assistance of Counsel and the 2254 motion

Ineffective assistance of counsel is in two parts:  Deficient Performance and Prejudice.  For Deficient Performance, Hughes “must show that [counsel] made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.”

When considering why the state district court made the decision that they did, the appellate court is to “carefully consider all the reasons and evidence supporting the state court’s decision.” That the Louisiana Supreme Court decision does not explain its reasoning does not affect our review. We are required to “determine what arguments or theories could have supported the state court’s determination” and examine “each ground supporting the state court decision.”

“Counsel’s “decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” The American Bar Association standards, which the Supreme Court uses as a guide for determining what is reasonable, provide that “[i]t is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case…Accordingly, “trial counsel must not ignore ‘pertinent avenues of investigation,’ or even a single, particularly promising investigation lead.”

The court noted that the testimony of the eyewitness was the most pertinent piece of evidence.  The court noted that it might have been possible that the state court found no deficient performance because “[the lawyer’s] failure to interview [the eyewitness] was a strategic decision.”  But this was belied by the fact that “[the lawyer] admitted that there was no strategy behind his decision not to even attempt to interview [the eyewitness] personally or send an investigator to do so upon finding out that Allen would testify to seeing the shooting.

Further, the state court may have said that [the lawyer] only learned about [the witness] a few days before trial.  But [the lawyer] knew that she had been subpoenaed and that she was a witness.  Further, the witness’s statement was always going to be wrong because [the victim] collapsed after the shooting.  So the failure to do an investigation is even more magnified.  The Fifth Circuit indicated that even if the lawyer didn’t know that the witness was going to be a promising lead, when he learned about the new evidence right before trial he should have moved for a continuance or tried to investigate.

The Fifth Circuit determined in Bryant vs. Scott, 28 F.3d 1411, 1418 (5th Cir. 1994) that “[t]he fact that [counsel]’s cross examination was effective does not necessarily indicate that a reasonable lawyer, viewing the trial ex ante, would have regarded an interview of the eyewitnesses as unnecessary.... Moreover, assuming that [counsel]’s cross examination was effective, that is not to say it could not have been improved by prior investigation.”

Further, trial counsel did not have a reason as to why he did not interview the witness, or send an investigator.  The court found that there was no reasonable argument that trial counsel satisfied Strickland’s deferential standard of adequate performance.

Did Hughes Show Prejudice?

Hughes also was required to show prejudice as well.  “A reasonable probability ‘requires a substantial, not just conceivable, likelihood of a different result.’  The jury’s lack of unanimity in convicting Hughes indicates that the verdict was ‘only weakly supported by the record.’”

Further, “A defendant who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial.”  Hughes argued that a proper investigation would have uncovered the eyewitness’ television interview and the testimony of the roommate.

The television interview showed that the eyewitness said “I was sitting in the house watching TV and all of a sudden I heard someone holler for help, then I heard some gun shots go off.”  The fifth circuit stated that this was weak impeachment evidence.

Turning to the roommate’s testimony, the roommate stated “We heard the shot, and [Allen] jumped up and grabbed the phone. She heard somebody yell ‘help,’ and she went out the door.”  This testimony during trial would have casted doubt on the roommate.  And the government’s statement that trial counsel would not have discovered the roommate if he interviewed the eyewitness doesn’t hold up because the eyewitness said on the stand that the roommate was with her.  The trial counsel said that he would have found the roommate if he had interviewed the eyewitness.

As a result of this the appellate court found that no “fairminded jurist could conclude that the failure to introduce Lee’s testimony would not have “undermine[d] confidence in the outcome.”

The Appellate court affirmed the decision of the district court in ordering a new trial.  Hughes vs. Vannoy, 19-30979