Opinion
NO. CS-99-0192-EFS
November 5, 2001
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
On October 15, 2001 the Court held an evidentiary hearing on Mr. Jackson's Petition for Writ of Habeas Corpus. Petitioner was represented by Nancy Tenney, and Gregory Rosen appeared for Respondent. Petitioner had been granted an evidentiary hearing on his claims for ineffective assistance of counsel, and for prosecutorial misconduct in failure to disclose Brady material. Brady v. Maryland, 373 U.S. 83 (1963). After considering the testimony of witnesses, the evidence admitted, and the record as a whole, for the reasons stated herein and on the record, the Court now enters the following Findings of Fact and Conclusions of Law to memorialize and to supplement the earlier findings of the Court, GRANTS the Petition on both claims considered, and DIRECTS that the Writ of Habeas Corpus issue.
I. BACKGROUND
The procedural background of this case is familiar to the parties, and will only be briefly summarized herein. Mr. Jackson filed his Petition for Writ of Habeas Corpus, initially presenting four claims. After review of the petition, the Court appointed counsel for the Petitioner, and granted an evidentiary hearing on Mr. Jackson's ineffective assistance of counsel claim. At his trial in Grant County, Mr. Jackson was represented by Mr. Thomas Earl. Immediately before trial, Mr. Jackson asked the judge to remove Mr. Earl from his case, and to appoint new counsel. This request was denied and Mr. Jackson proceeded to trial with Mr. Earl as his counsel.
Mr. Jackson's claim of ineffective assistance of counsel raised one specific and two general complaints. First, Mr. Jackson argued that Mr. Earl improperly stipulated to the authenticity of cocaine, when the cocaine was later withdrawn by the prosecution and some charges dismissed, because it had not in fact been tested. Second, Mr. Jackson at time of trial complained that Mr. Earl refused to call witnesses that he had requested. Third, Mr. Jackson complained that Mr. Earl had virtually no communication with him in preparation for trial. The Respondent filed a motion for summary judgment. Petitioner sought leave to pursue discovery to oppose the motion, and the Court granted the request. On review of supplemental discovery and memoranda, the Court granted summary judgment regarding the stipulation, but denied the motion regarding witnesses and lack of communication.
In the course of discovery related to Mr. Earl's failure to interview witnesses, counsel for Petitioner interviewed the Confidential Informant ("CI") Jimmy Anderson. Mr. Anderson, acting as a CI, both initiated the investigation against Mr. Jackson and became the key witness for the prosecution. During an interview with Petitioner's counsel, Mr. Anderson expressed personal belief that Mr. Jackson had killed Mrs. Jackson's son, and that this was a motivating factor in his desire to assist in a drug sting operation against Mr. Jackson, (Ct. Rec. 78 Ex. D). Further, Mr. Anderson signed an authorization permitting Petitioner's counsel to obtain his medical records. These records showed that Mr. Anderson has suffered from paranoid schizophrenia for over twenty-five years, including intermittent hospitalization for this disease, (Ct. Recs. 78, 79).
Petitioner then withdrew two of his three remaining claims, (Ct. Rec. 85), but sought to brief his claim for prosecutorial failure to disclose exculpatory material, pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. The Court granted this request. The Court also granted Petitioner discovery of the Interagency Narcotics Enforcement Team ("INET") file for Jimmy Anderson, the CI who testified against Mr. Jackson, (Ct. Rec. 84). The Court found cause and prejudice to exist for this claim, and granted the request to present the Brady claim at the evidentiary hearing, (Ct. Rec. 98). Grant County refused to produce the INET file, and sought a protective order, (Ct. Rec. 101), which was denied. Instead, the Court reviewed the INET file in camera, and ordered the disclosure of eight exculpatory items in the file to Petitioner and Respondent.
On October 15, 2001, the Court held an evidentiary hearing in this matter. At the close of the evidence, the Court informed the parties that the writ would issue on both claims of ineffective assistance and the Brady claim. Because Mr. Jackson is now released on supervision, however, the Court reconvened on October 16, 2001, to permit the parties to address the scope of remedies available. Accordingly, this Order memorializes and supplements the Court's findings of fact on evidentiary hearing, and conclusions of law regarding Mr. Jackson's petition.
II. FINDINGS OF FACT
A. General Findings
On review of the entire record of state court proceedings, proceedings before this Court, the testimony of witnesses and exhibits admitted at the evidentiary hearing, the Court makes the following findings of fact relevant to Mr. Jackson's petition. At the outset, the parties stipulated to the fact that "Thomas Earl, trial attorney for John Jackson, did not interview Keith Renken, Angie Cuthill, or James Anderson prior to Mr. Jackson's trial." (Ct. Rec. 124). Mr. Earl admitted that "I have not talked to these proposed witnesses as I've never understood what, I guess what they have to do with this case." (Ct. Rec. 24 at 7, lines 19-23). In addition, the parties stipulated that none of the INET file documents were provided to Mr. Jackson by the state, (Ct. Rec. 124). Third, the parties agreed that Detective Watson of INET was informed by his secretary that either Detective Ponozzo, Detective Matney, or both had said that Mr. Anderson had stated that his father was the Green River killer. These statements were made around the time that Mr. Anderson was working for INET, (Ct. Rec. 124).
At the evidentiary hearing, James "Jimmy" Anderson's testimony was perhaps the most important evidence for Mr. Jackson. Mr. Anderson has an extensive medical history of schizophrenia, dating back at least twenty-five years and involving several hospitalizations. At the beginning of the hearing, counsel for respondent objected to considering Mr. Anderson's paranoid schizophrenia based on a lack of foundation, unless Petitioner had appropriate expert testimony regarding the effects of the disease on a person's ability to perceive events and accurately testify to them. The Court overruled this objection.
The evidence showed that Mr. Anderson received social security disability benefits based on a determination by the Social Security Administration that he suffered from "schizophrenic, paranoi[d], other psychotic disorders." (Ex. 10). This evidence was provided to Mr. Anderson, in a letter from the Social Security Administration, informing him that he could decide whether or not to provide the information to Petitioner's counsel. Despite having provided this information to Petitioner's counsel, Mr. Anderson testified at hearing that he suffered from a chemical imbalance caused by an ill-fated ingestion of Old English Furniture Polish in his youth, which had no effect on his mental abilities. He also testified that he routinely took his medication, and that he was taking his medication at the time of giving his testimony, both at the hearing and at Mr. Jackson's trial.
While Mr. Anderson did testify that he told the truth at trial, at the hearing, Mr. Anderson's substantive testimony consisted of outrageous claims, tangents, and denial under oath of well-known facts. Initially, Respondent had moved the Court to refuse to consider Mr. Anderson's paranoid schizophrenia for purposes of Mr. Jackson's Brady claim. The Court granted the motion based on the lack of documentary evidence of Mr. Anderson's paranoid schizophrenia in the INET file. However, given the demeanor of Mr. Anderson while testifying, his tone, manner, and behavior, the Court finds that his presentation alone is sufficient to provide a reasonable person with some notice that he suffers from some kind of mental illness.
In addition to his demeanor, the substance of Mr. Anderson's testimony indicated bizarre interactions with various members of INET. This included sharing his theories on high-profile cases,
bragging about working as an investigator on high-profile cases, and claims of prescience regarding nationally notorious cases and their perpetrators, such as the Simpson case and the Jon Benet Ramsey disappearance. This testimony is consistent with the stipulation that INET personnel had made remarks among themselves on his claim that his father was the Green River killer. In short, given Mr. Anderson's courtroom presence and testimony, the Court finds it virtually impossible to believe that INET personnel had no idea that Mr. Anderson suffered from some condition that impacted his ability to distinguish between fantasy and reality. For this reason, the Court finds that evidence of Mr. Anderson and his testimony is also admissible evidence for purposes of Mr. Jackson's Brady claim.
Given the stipulated facts, and these general findings on the evidence presented at hearing, the Court now examines the evidence as it relates to each of Mr. Jackson's claims.
B. Findings Relevant to Ineffective Assistance of Counsel Claim
Mr. Jackson presented evidence that Mr. Earl provided ineffective assistance at his trial in Grant County in 1995. The evidence presented at hearing generally covered four factual areas: (1) Mr. Earl's loss of the file regarding his representation of Mr. Jackson; (2) Mr. Earl's failure to interview exculpatory witnesses, (3) Mr. Earl's failure to interview Mr. Anderson, the Confidential Informant ("CI"), and (4) Mr. Earl's general failure to investigate the case and communicate with Mr. Jackson. The Court examines each area in turn.
1. Loss of Mr. Jackson's File
Prior to the evidentiary hearing, Respondent filed a Notice to the Court, (Ct. Rec. 125), to inform the Court that Mr. Earl had lost the file pertaining to his representation of Mr. Jackson. For this reason, the Respondent was unable to comply with the Court's discovery order, although counsel for Petitioner was able to depose Mr. Earl regarding loss of the file.
According to Mr. Earl, he was aware of this petition claiming ineffective assistance of counsel. In May of 2001, Mr. Earl was having dental work done in San Francisco, and took Mr. Jackson's original file with him to San Francisco. Mr. Earl testified that he realized he had lost the file in San Francisco on May 13, 2001, and called the two hotels where he had stayed. Mr. Earl made no further effort to locate the file, nor did he produce any computer files, duplicates, or other office records pertaining to his representation of Mr. Jackson. Apparently, Mr. Earl did not make a working copy to take with him, but took, and then lost the only record of his representation of Mr. Jackson in 1995.
This fact is important because it gives rise to a spoilation inference. When a person has relevant evidence within that person's control, and then fails to produce the evidence, the finder of fact may draw a spoilation inference: that the evidence lost or destroyed was unfavorable to the person who did not produce it. See, e.g., Wright Graham, 21 Fed. Practice Procedure: Evidence, 5240; Wigmore, Evidence, 3d ed. 1940 § 278. Specifically, when the spoilator is a witness, evidence of spoilation is relevant to the credibility of the witness. Fed.R.Evid. 401, 404(b). This is particularly true when the non-produced evidence could settle disputed factual issues.
In this case, Mr. Jackson complained that Mr. Earl only met with him twice: once at his arraignment, and once immediately prior to trial. Mr. Jackson raised his complaint before the Grant County Superior Court prior to trial. At that time, Mr. Earl did not elaborate on any failure of Mr. Jackson to keep appointments, nor did he clarify how many meetings they had. At the evidentiary hearing, Mr. Earl conceded that he did not meet with Mr. Jackson outside of the two court appearances, but now states that Mr. Jackson failed to keep appointments with him. Similarly, Mr. Jackson testified that he never saw any discovery documents prior to his trial. Mr. Earl testified that he reviewed discovery with Mr. Jackson, in the Courthouse in Ephrata. These issues could have been resolved by the production of Mr. Earl's file on his representation of Mr. Jackson. Because the file was solely within Mr. Earl's control, and the file was only recently lost, the Court is permitted, but not required, to infer that evidence in the file was unfavorable to Mr. Earl on these issues.
Given the testimony of Mr. Jackson, the record of state court proceedings, and the file spoilation, the Court finds that Mr. Earl did not set up other appointments to meet with Mr. Jackson beyond the two court appearances. In addition, Mr. Jackson presented evidence at the hearing which raised several grounds for pretrial motions that might have been brought, had Mr. Earl reviewed the discovery with Mr. Jackson. Given this evidence, Mr. Jackson's testimony, and the file spoilation, the Court likewise finds that Mr. Earl never reviewed discovery documents with Mr. Jackson prior to trial.
2. Failure to Interview Exculpatory Witnesses
Next, the Court considers evidence of Mr. Earl's failure to investigate Mr. Jackson's case, including the failure to interview witnesses. Mr. Jackson presented evidence, that Mr. Renken and his girlfriend, Ms. Cuthill, could have testified that earlier on the morning of November 2, 1995, Jimmy Anderson and Detective Crowder attempted to buy cocaine from Mr. Jackson, and that Mr. Jackson adamantly refused, stating that he didn't have any cocaine.
Although no substantive testimony was presented at hearing, the Court notes that two other witnesses to the conversation on the morning of November 2, 1995, could have been available at the time of Mr. Jackson's trial: his wife, Joyce Jackson, and Stewart Anderson. Mr. Anderson was deceased by the time counsel was appointed in this case, and Mrs. Jackson passed away in April of this year.
When this issue was raised before the trial court, Mr. Earl simply stated that he did not speak to these witnesses, nor did he understand what their testimony would be. At evidentiary hearing, Mr. Earl testified that he did not interview Mr. Renken, because he thought that his general reputation in the community was of being associated with the drug culture. However, Mr. Earl admitted that he had never personally met Mr. Renken, nor had he any experience with Mr. Renken as a witness.
Ironically, Mr. Renken's admitted involvement with drugs is less damaging given its substance, and could have been helpful to Mr. Jackson's case. Specifically, evidence of a refusal to sell earlier that same day could make it more likely that Mr. Jackson did not sell to the CI later on the same day. The State's theory was that Mr. Jackson wanted to wait until fewer people were present to sell drugs. If Renken and Cuthill had a history of using drugs with Mr. Jackson, though, it seems less likely that Mr. Jackson would be adverse to selling drugs in their presence. Instead, under the State's theory, Mr. Jackson would not sell in the presence of drug users he knew well, but did sell cocaine later that day, in the presence of Detective Crowder, who was a stranger.
In addition to testimony about events earlier in the day, Mr. Renken also testified that Mr. Anderson had a reputation for being "a little off." In particular, both Mr. Renken and Mr. Jackson testified that Mr. Anderson's nicknames were "Crazy Jimmy," "Shaky Jimmy," and "Jimmy the Weasel." Mr. Renken testified that, although he was no expert, he thought that Mr. Anderson was definitely mentally ill. Specifically, Mr. Renken described Mr. Anderson as giving inappropriate responses, and being unable to follow along with conversations. Finally, Mr. Renken stated that, had anyone discussed the case with him in 1995, the first thing he would have said was that Jimmy was crazy.
In sum, the Court finds that Mr. Earl did not interview the witnesses that Mr. Jackson requested, nor did Mr. Earl take time to understand how the testimony of these witnesses could have raised a reasonable doubt with the jury. Mr. Earl admitted that he had previously been found to have been ineffective in one case in state court, based on a failure to interview witnesses. Even if Mr. Earl had decided not to call the witnesses after interviewing them, he might have gained additional information and insight into Mr. Jackson's case, as a result of meeting with potential defense witnesses.
3. Failure to Interview the Confidential Informant
Mr. Earl concedes that he did not interview the CI, Jimmy Anderson. However, the only defense presented at Mr. Jackson's trial was an attack on the credibility of Mr. Anderson, and cross examination of the detective which revealed that Mr. Anderson could have hidden bindles of cocaine and money in his underwear. At this hearing, Mr. Anderson provided frank, if not always accurate, testimony. Given his demeanor, behavior, and substantive testimony, a brief interview with Mr. Anderson pretrial would likely have yielded at least some of the information that Mr. Anderson presented at the hearing.
Although the Court could attempt to detail all of Mr. Anderson's testimony at the evidentiary hearing, what follows is only a brief list of the testimony presented, which could have impeached Mr. Anderson's ability to perceive, recall, and understand his duty to tell the truth in court: (1) claims that he assisted law enforcement on the O.J. Simpson case, Jon Benet Ramsey case, and several other high-profile cases, (2) claims that he solved the Oklahoma City bombing case before it ever happened, and made INET detectives sign a document that he had given them the information so his conscience could be clear, (3) claims of certification as an FBI agent and United States Marshal, and (4) elaborate stories about his father being the Green River killer, and his help with that investigation.
In addition to testimony demonstrating a difficulty discerning fantasy from reality, several statements by Mr. Anderson under oath more directly impeach his testimony at Mr. Jackson's trial. In addition, these statements relate to his competency to testify. First, Mr. Anderson described his belief that Mr. Jackson had been responsible for the death of Mrs. Jackson's son, his resentment that Mr. Jackson had not been prosecuted, and his desire to send Mr. Jackson to jail for that reason. Mr. Anderson stated that he approached INET to encourage a murder prosecution, but that INET wanted to set up a drug sting instead. Mr. Anderson made no effort to conceal his personal bias against Mr. Jackson.
Second, Mr. Anderson was confronted by the Court with the facts revealed on the INET transcript: that Mr. Anderson had taken buy money, lied to INET, and then used the money to purchase drugs. On voir dire by the Court, Mr. Anderson claimed to have no recollection that he had ever lied to INET. Then, when asked whether Mr. Anderson had ever taken buy money and bought drugs for his personal use instead, Mr. Anderson flatly denied ever having done so.
Third, Mr. Anderson was in denial that he has schizophrenia, despite government records that this is the basis for his disability income. When questioned, Mr. Anderson claimed that his disability was related to a car accident, but that his chemical imbalance was the result of being fed furniture polish.
Mr. Anderson's testimony, when faced with documented contrary facts, would tend to indicate that Mr. Anderson has difficulty accurately discerning the truth. The Court would not describe this as perjury, though, because it is not clear that Mr. Anderson has the capacity to discern truth from falsehood.
Given Mr. Anderson's revealing testimony at evidentiary hearing, the Court finds that an interview with Mr. Anderson prior to Mr. Jackson's trial would likely have provided leads to impeachment material and raised issues as to Mr. Anderson's competency to testify.
4. General Failure to Investigate and Communicate
On the record of the state trial proceedings, Mr. Jackson specifically raised his complaints of Mr. Earl's lapses with the presiding judge:
I would have him at least talk to me. I have not talked to him until I set foot in this building here. He has not notified me of a court date that I was supposed to appear last week. I asked him at the appearance before that when do I come to court. He says don't worry, don't even call me this week, I'll get in touch with you. In never heard from him. I was notified yesterday morning I was to be here at 3 o'clock. There was no communication between the "two of us as far as representation goes . . . I feel that I'm almost assured of losing this case, but without any representation at all, its definite.
(Ct. Rec. 24, Ex. 2 at 9-10 (emphasis added)). While the trial court took Mr. Jackson's statements to be hyperbole, on the evidence presented at hearing, the Court finds that Mr. Jackson was indicating that Mr. Earl had done nothing, literally. Mr. Jackson testified that, at trial, when the Judge questioned him as to what he would like Mr. Earl to do, he became flustered, because he didn't know what specifically Mr. Earl should be doing.
On review of the evidence and testimony, the Court makes the following findings on the general failure of Mr. Earl to investigate the case, and to meet with Mr. Jackson. Mr. Earl did not meet with Mr. Jackson, except for the first court appearance, and then immediately prior to trial. Mr. Earl did not review the government's discovery with Mr. Jackson. As a consequence, there were several issues that could have been raised, after even minimal investigation and conversation with Mr. Jackson.
To begin, Mr. Earl did not visit the scene. Mr. Jackson was released pretrial, so there was no impediment to Mr. Earl's opportunity to visit the Jackson home. At the hearing, evidence was presented that could have impeached Detective Crowder's trial testimony. At trial, Detective Crowder testified that he could see the back of Mr. Anderson at all times, in the doorway of the bedroom. (Ct. Rec. 24, Ex. 2 at 53, 11.5-6). Instead, photographs of the house revealed that it was highly unlikely that anyone sitting anywhere in the living room could have seen the doorway to the master bedroom. Although the pictures speak for themselves, the Petitioner presented evidence that Detective Crowder would have needed to see around a hairpin turn, and back down a hallway, to see the bedroom door. Respondent argued that Detective Crowder was still within earshot of the transaction. However, Detective Crowder's trial testimony indicated that the television was on during this time, (Id. at 52, 1.9; 57, 1.16). Had Mr. Earl visited Mr. Jackson's home, it would have been evident that it would be impossible for Detective Crowder to sit anywhere in the living room and see the doorway of the master bedroom.
Mr. Jackson also testified that, the money seized by the search warrant executed on November 3, 1995, was returned to him with a letter from the Sheriff, prior to his trial. There is no evidence on the record that the money seized was the controlled buy money assigned to the controlled buy with Mr. Jackson. In fact, there is no evidence of prerecording this buy money, and then matching the money to currency seized under the warrant. The only evidence linking Mr. Jackson to the money is trial testimony that it was "prerecorded." Mr. Jackson testified that he threw away the letter from the Sheriff a long time ago. Whether or not this would have been helpful or not is speculative, at best. However, it is illustrative of the type of issue that could have been raised, and used at trial, had Mr. Earl met with his client.
Mr. Jackson also testified that Mr. Earl never reviewed the stipulation with him, regarding the authenticity of cocaine admitted into evidence. While refusing to stipulate may or may not have been fruitful, the failure of Mr. Earl to even discuss the matter with his client is symptomatic of his representation.
Because Mr. Earl scarcely spoke to his client, and undertook no independent investigation, he went to trial entirely dependent on the prosecution for the development of factual evidence. This communication breakdown is apparent on the trial transcript. Mr. Earl admits that he did not understand why Mr. Jackson wanted to call defense witnesses. When Mr. Jackson wanted to remove Mr. Earl, Mr. Earl informed the Court that Mr. Jackson wanted the Judge to recuse himself. Mr. Jackson expressed these concerns at trial, albeit inartfully, and Mr. Earl did not take issue with the factual basis for his complaints at that time. With the evidence presented, including the loss of Mr. Earl's file, and concessions as to the number of meetings with Mr. Jackson, the Court finds that Mr. Earl did little to prepare for the trial of Mr. Jackson.
C. Findings Relevant to Brady Claim
At the beginning of the hearing, counsel for respondent objected to considering Mr. Anderson's paranoid schizophrenia regarding Mr. Jackson's Brady claim, and the Court concurred. As discussed above, the demeanor, behavior and testimony of Mr. Anderson leads the Court to believe that INET officers were aware that Mr. Anderson had mental health issues. Specifically, there is evidence that Mr. Anderson made outrageous claims to INET, just as he did in his testimony at the evidentiary hearing. He also testified that INET knew that he was stable, because he was taking his medication then and now. Inferentially, INET would then have known that Mr. Anderson had a condition which required medication, and that he was unstable without it. Mr. Anderson further testified that he left INET, because he was tired of INET personnel scoffing at him and his "investigations." At one point, Mr. Anderson testified that people do not understand his "investigations," because he does them "up here," and pointed to his head.
In addition, INET had recorded information in their file regarding Mr. Anderson that was never disclosed to the defense. Specifically, the transcript from the INET file records Mr. Anderson's admission that he took buy money from INET, lied to INET by claiming that buy money was "ripped off" — the money was taken but drugs were not delivered. After doing this, Mr. Anderson used the buy money to buy drugs for his personal use. This transcribed conversation with Detective Ponozzo and Detective Carr also revealed two other facts. First, the prosecution knew that he had used cocaine earlier in 1995 with John and Joyce Jackson. Second, this was the first record of him, as far as INET was concerned, interacting with the Jacksons. Third, Mr. Anderson admitted to previously palming buy money or drugs obtained from buys for his personal use.
In the application for the search warrant, none of this was disclosed to the issuing judge regarding the informant's reliability, (Ex. 2). Furthermore, at trial Anderson testified that he had not used cocaine since 1993, (Ct. Rec. 24, Ex. 2 at 100). On the contrary, INET had information that he had used cocaine recently with the Jacksons, prior to Anderson initiating controlled buys with either John or Joyce. While Mr. Anderson later qualified this somewhat, "there's been a couple times where I did use cocaine after "93, getting off of it," this was not elicited by the prosecution.
Next, after being caught and confronted by INET, Mr. Anderson apologized, and stated that "I can't be partying while I'm working and I don't, I don't want to lose by my job, but if it comes down to that, then I'll pay the money back, the hundred dollars. I'll work it off, whatever you want me to do." (Ex. 3 at 44). If disclosed, this could have impeached Mr. Anderson by offering a motive to set up a controlled buy with the Jacksons: as a way to placate INET for taking their money, buying drugs, and using the drugs himself.
Within the transcript, Mr. Anderson also admits that he "palmed" money and drugs in other transactions with INET. This could have raised a doubt regarding whether or not Mr. Jackson received the buy money from Mr. Anderson. Considering the lack of evidence linking specific money to the alleged transaction with Mr. Jackson, and testimony at trial that Mr. Anderson was not thoroughly searched, doubt could have been injected that this was, in fact, a sale.
The Court notes that there are two transcripts contained in Hearing Exhibit 3, the incomplete INET transcript, which was on file with the original audiotape of the conversation, and a complete transcript provided by this Court's reporter. The original transcript contained certain errors, such as referring to "deaf-mute" as "Daphney." However, references to "palming" money and drugs are correct in the original, as opposed to "pawning" them. See Ex. 3.
Finally, the INET file contains other information that could have been used to impeach Mr. Anderson. There is a note in the file, with a reference to "shot son-in-law," which could indicate that INET knew of Mr. Anderson's bias against Mr. Jackson. This is corroborated by Mr. Anderson's testimony that he approached INET because he believed that Mr. Jackson had killed his son-in-law, but that INET wanted him to do a controlled buy instead. The INET file also contains various receipts of "rewards" paid to Mr. Anderson, for information, court testimony, and for doing controlled buys.
In short, on the evidence, the Court finds that INET personnel knew that Mr. Anderson had mental health issues. Further, they knew that he had lied to them, taken buy money, bought drugs for personal use, and used the drugs himself. INET also knew that he had a personal motivation to send Mr. Jackson to jail. Finally, Mr. Anderson admitted to INET officers that he palmed money and drugs from previous controlled buys. Thus INET had some significant evidence and information that could have impeached Mr. Anderson, and this evidence was not disclosed to Mr. Jackson through the prosecution.
III. APPLICABLE STANDARDS
A. Standard for Ineffective Assistance of Counsel
The standard for establishing the ineffective assistance of trial counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984):
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Id. at 687. For the first prong of the Strickland test, counsel's performance is deficient, if it was unreasonable under the circumstances, given prevailing norms of practice. See id. at 688. For the second prong, the standard for demonstrating prejudice is essentially the same as the test for materiality of exculpatory information under Brady: "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is defined as "probability sufficient to undermine confidence in the outcome." Id.
Applying this standard in the context of counsel's failure to investigate, the Ninth Circuit has stated that a "lawyer who fails adequately to investigate, and to introduce into evidence, [information] that demonstrate[s] his client's factual innocence, or that raise[s] sufficient doubt as to that question to undermine confidence in the verdict, renders deficient performance." Lord v. Wood, 184 F.3d 1083, 1093 (9th Cir. 1999) (citing Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999)).
Although not presented as a separate claim by the Petitioner, the Court notes that, when a defendant requests substitute counsel based on a breakdown in communication, if the breakdown constitutes irreconcilable conflict, the conflict itself may amount to the denial of assistance of counsel. See Schell v. Witek, 218 F.3d 1017, 1024-27 (9th Cir. 2000). If this is the case, then no further showing of prejudice under Strickland is required, as the trial is presumed to be unfair. See id. at 1027 (citing Strickland, 466 U.S. at 692.).
In this case, Mr. Jackson has not directly attacked the failure of the trial court judge to remove Mr. Earl at the time of trial. However, the Court does consider evidence of failed communication, as it is relevant to the ineffective assistance of counsel claim. Further, to the extent that these issues were raised before the trial court, and not specifically denied by Mr. Earl, this evidence is relevant to the parties respective credibilities on the amount of communication between attorney and client prior to trial.
Thus, the Court must make factual findings on the alleged failure to Mr. Earl to investigate, to interview witnesses, and to communicate with Mr. Jackson. Next, the Court must determine whether Mr. Earl's performance was unreasonable under the circumstances given prevailing norms of practice. See Strickland, 466 U.S. at 688. If unreasonable, then the Court must decide whether the failure prejudiced Mr. Jackson. Prejudice may be demonstrated if Mr. Jackson shows that, but for Mr. Earl's errors, there is a probability that the result of the proceeding would have been different, and the probability is sufficient to undermine confidence in the verdict.
B. Standard for Failure to Disclose Exculpatory Evidence
To begin, the prosecution has an obligation to disclose exculpatory evidence to a criminal defendant. Under Brady, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). To determine whether or not Mr. Jackson may obtain relief for his claim under Brady, the Court must first decide whether: (1) the evidence available to the prosecution was exculpatory; (2) whether it was suppressed, and (3) whether the exculpatory evidence suppressed is material.
For the first element of Mr. Jackson's Brady claim, the parties concur that evidence in the CI tile of INET was exculpatory, as evidence that could impeach the testimony of a government witness may be exculpatory. See United States v. Bagley, 473 U.S. 667 (1985). Further, the prosecution is responsible for exculpatory evidence in the hands of law enforcement, so ignorance and good faith by the actual prosecutor is irrelevant to a Brady claim. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) ("the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police"). Also, for the second element, Respondent concedes that the information in the INET file was not provided to Mr. Jackson, (Ct. Rec. 124), nor was any information provided from INET regarding Mr. Jackson's mental health, to the extent that INET personnel knew of Mr. Anderson's condition. For this reason, the only element truly disputed is whether evidence, known or available to INET, but not turned over to Mr. Jackson, is material.
This test, again, mirrors the test for prejudice on Mr. Jackson's ineffective assistance of counsel claim. The standard for materiality is whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability' is a probability sufficient to undermine confidence in the outcome." See Bagley, 473 U.S. at 682. The Court applies the materiality test to the "suppressed evidence considered collectively, not item by item." Kyles v. Whitley, 514 U.S. 419, 436-37 (1995). Applying these tests, the Court does not weigh inculpatory evidence against undisclosed exculpatory evidence. Instead, a due process violation is shown if "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 434-35.
The Court notes that, "a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976). This aspect of Mr. Jackson's Brady claim was not specifically briefed by the parties, although Mr. Anderson's untruthful testimony about his drug use did not come to light until disclosure of the INET file materials.
IV. DISCUSSION
Bearing in mind the standards for ineffective assistance of counsel, and for failure to disclose exculpatory evidence to the defense, the Court examines each of Mr. Jackson's claims below.A. Ineffective Assistance of Counsel
Initially, the facts of the case weighed heavily against Mr. Jackson. Mr. Jackson had a record of convictions, making it unlikely that he would testify; he was facing three charges; and there was a detective in the house with the CI. Naturally, Mr. Earl anticipated a difficult case. Once Mr. Jackson decided he would go to trial, impeachment of the state's witnesses was crucial. This could only be accomplished by investigation and witness interviews.
In defending a criminal case, visiting the scene is a fundamental task, but Mr. Earl did not do so. Mr. Earl did not attack the search warrant, which indicated a reliable informant. Mr. Earl did not seek any information on the CI, or regarding Detective Crowder. Mr. Earl did not review the discovery with Mr. Jackson, nor did Mr. Earl communicate with Mr. Jackson. Had he done so, he might have learned of information to impeach the CI, impeach Detective Crowder, and attack the "buy money" as not being linked by evidence to Mr. Jackson. Mr. Earl failed to meet with Mr. Jackson, did not meet with potential defense witnesses, did not interview Mr. Anderson, and did not view the scene prior to trial. These failures by Mr. Earl constitute deficiency outside the prevailing norms of criminal defense practice. As such, the Court finds that the first prong of Strickland is met.
Next, the Court must determine whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Certainly, witness testimony that Mr. Jackson had refused to sell to the CI earlier that day, would have been relevant to the likelihood of Mr. Jackson selling drugs later on the same day. Mr. Jackson's proposed witnesses were not without their flaws. On the other hand, Mr. Anderson had a forgery conviction, a history of drug use, a history of lying to INET, a history of using buy money to buy drugs for his personal use, and schizophrenia. of this impeachment evidence, the only negative evidence brought forward was the forgery conviction, which was brought out not by Mr. Earl, but by the prosecution on redirect examination. (Ct. Rec. 24, Ex. 2 at 100).
To the extent that exculpatory information from the INET files and law enforcement was not disclosed to Mr. Earl, he could not have utilized that information. However, the Court finds that even a brief interview with Mr. Anderson prior to trial was certain to have revealed issues regarding his mental health. After witnessing Mr. Anderson's demeanor, and readiness to discuss some of his fantastic "accomplishments," coupled with testimony that he is stable and taking his medication, and an admission that he wanted Mr. Jackson to go to jail for unrelated reasons, makes it apparent to this Court that very little conversation with Mr. Anderson is required to discover impeachment evidence.
Mr. Earl suggested that, even had he had this information, it would not have been helpful to the outcome of Mr. Jackson's trial, and asserted that there was no precedent in the state of Washington for attacking a witness based on mental health. At common law, mental incapacity was grounds for finding a witness to be incompetent to testify. See generally Weinstein's Federal Evid., § 601.04 [1] [a]. The current federal trend, however, is toward permitting all witnesses to testify, and allowing information on the mental health of a witness to be presented to impeach the witness. See id. In this manner, a jury may weigh the witness' testimony and credibility, accounting for the fact that a witness may think himself truthful, but present false testimony.
Under Washington law, however, there remains statutory authority to attack the competency of a witness to testify. See CrR 6.12(a); ER 601, Comment 601; R.C.W. 5.60.050 ("Every person of sound mind, suitable age and discretion, except as hereinafter provided, may be a witness in any action, or proceeding."); R.C.W. 5.60.050 (those of "unsound mind" are incompetent to testify). Thus, Mr. Anderson is competent to testify if "understands the nature of an oath and is capable of giving a correct account of what he has seen and heard." State v. Morrison, 43 Wn.2d 23, (1953). Whether counsel had opted to attack the witness' competency, to impeach the witness, or both, some serious doubts could have been raised regarding Mr. Anderson's ability to tell the truth, and thus regarding Mr. Jackson's guilt.
In determining whether the second prong of Strickland is met, the Court must decide whether there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. The reasonable probability is one "sufficient to undermine confidence in the outcome." Id. Applying this test to the sum of counsel's failures, the Court finds that Mr. Earl's failures seriously undermine confidence in the jury verdict finding Mr. Jackson guilty. This does not mean that an acquittal was likely, nor is that what the standard requires. However, in this case, there is a strong possibility of acquittal or a hung jury. If the jury had been unable to reach a verdict, this could have increased the defendant's power to negotiate an acceptable plea bargain. Even had Mr. Earl's efforts been in vain, he could have preserved the issues for appeal. As an advocate, you must advocate; let the Judges judge. Counsel cannot decide that the case is a lost cause, and abandon efforts to prepare for trial.
Given the lack of trial preparation in this case, counsel was unprepared to impeach witnesses, had virtually no contact with his client, did no independent investigation, and simply accepted the prosecution's theory of the case without further effort. Consequently, the Court finds that the assistance rendered by Mr. Earl to Mr. Jackson, was ineffective, in violation of Mr. Earl's rights under the Sixth Amendment, and GRANTS the writ of habeas corpus on this basis.
B. Failure to Disclose Exculpatory Information.
As with Mr. Jackson's ineffective assistance of counsel claim, it was clear to this Court that even the most cursory discussion with Mr. Anderson was likely to provide bases for impeaching him and challenging his competency. INET personnel knew of Mr. Anderson's fantastic claims. In addition to Mr. Anderson's mental health issues, INET also knew that Mr. Anderson had taken buy money, lied to INET, and then used the money to buy drugs for his personal use. However, none of this information was provided to the defense.
Applying the test for failure to disclose exculpatory evidence under Brady, the first two prongs are satisfied. First, the evidence INET had was exculpatory, as it was useful to impeach Mr. Anderson's testimony. Second, it is conceded that none of this information was provided to the defense at trial.
The only disputed issue before the Court is the third prong of the Brady claim: whether or not the exculpatory evidence was material. Again, this test mirrors the test under the prejudice prong for the ineffective assistance of counsel claim. Examining the undisclosed evidence collectively, the Court finds that the evidence is material, because, "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." See Kyles, 514 U.S. at 434-35.
Specifically, this information would have revealed that Mr. Anderson's cocaine use was much more recent than he testified at trial. Further, Mr. Jackson could have presented evidence of personal bias of Mr. Anderson, or that Mr. Anderson had an external motive to set up the buy after being caught taking INET money to buy drugs for his personal use. The evidence in the INET file that Mr. Anderson had stolen money, lied to INET, and used the drugs that he bought with the INET money could have impeached Mr. Anderson's testimony. In addition to this, information that Mr. Anderson behaved in this manner, and yet was represented to be reliable by INET, also could cast doubt on the judgment and credibility of INET officers who testified at trial.
Evidence relevant to both Mr. Anderson's credibility, and the judgment of INET, was favorable to Mr. Jackson's defense and not disclosed. Accordingly, the Court finds that the jury verdict of conviction is seriously undermined. As a consequence, Mr. Jackson has established a Brady violation, for the prosecution's failure to disclose exculpatory evidence. The Court therefore GRANTS the writ of habeas corpus on this claim.
V. CONCLUSION
Given the seriousness of violations both by prosecution and defense counsel, the Court finds that each claim of Mr. Jackson independently warrants granting the writ of habeas corpus. When the Court announced its decision to counsel at the evidentiary hearing, court was reconvened to address the scope of remedies available to the Court. Petitioner and Respondent concur that, on grant of the writ, Mr. Jackson is released from all restraints imposed pursuant to the Grant County judgment, including terms of supervision and payment of fines and fees. Respondent argued that this is not a situation where the Court may vacate judgment, and this Court agrees. However, Respondent requested a stay of the writ, to permit the state to retry Mr. Jackson.
Having considered these positions on relief, the Court orders that the writ shall issue unconditionally. If the state retries Mr. Jackson, the issue of whether or not retrial is permitted may be taken up in the state court at that time. Accordingly,
IT IS HEREBY ORDERED:
1. Mr. Jackson's Petition for Writ of Habeas Corpus, (Ct. Rec. 1), is GRANTED. IT IS SO ORDERED. The District Court Executive is directed to:
(A) Enter this Order;
(B) Issue the attached WRIT OF HABEAS CORPUS to Respondent;
(C) Provide copies of both to all counsel;
(D) FILE a copy of the entire INET file under SEAL;
(E) Return the original INET file to the Grant County
Prosecutor; and
(F) CLOSE THIS FILE. DATED this 5th day of November, 2001.