Duncan v. Ornoski
528 F.3d 1222, 2008 U.S. App. LEXIS 13308, 2008 WL 2498104 (2008)
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Rule of Law:
A defense attorney's failure to investigate and present potentially exculpatory forensic evidence that could negate an essential element for a death-penalty eligibility finding, such as intent to kill, constitutes deficient performance and is prejudicial to the defendant, thereby violating the Sixth Amendment right to effective assistance of counsel.
Facts:
- Henry Earl Duncan worked as a cashier at a restaurant where his supervisor, Josephine Eileen DeBaun, was murdered on the night of November 13, 1984.
- DeBaun was found stabbed to death in the restaurant's secure 'money room,' and $2,100 was missing from a cash drawer.
- An open first aid kit with disturbed contents was found on the wall above a bloodied rag, suggesting the assailant was injured during the struggle and treated their wounds.
- Police investigators collected blood samples from the scene, some of which contained antigens inconsistent with the victim's Type O blood.
- Three months after the murder, Duncan was arrested for a second robbery at the same restaurant.
- Following his second arrest, bloody palm prints, a fingerprint, and a shoe print from the murder scene were positively identified as belonging to Duncan.
- It was later determined that Duncan has Type O blood, the same as the victim, meaning the blood samples containing A and B antigens could not have come from him.
- Duncan told his attorney that he was present in the money room but was not the killer and did not aid in the killing.
Procedural Posture:
- Henry Earl Duncan was convicted of first-degree murder with a special circumstance finding in a California state trial court and sentenced to death in 1986.
- As appellant, Duncan appealed to the California Supreme Court, which affirmed the conviction and sentence.
- Duncan's subsequent petition for a writ of habeas corpus to the California Supreme Court was denied.
- Duncan filed a federal habeas corpus petition in the U.S. District Court for the Central District of California.
- The district court held an evidentiary hearing but ultimately denied the petition in its entirety.
- As appellant, Duncan appealed the district court's denial of his habeas petition to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a defense attorney provide ineffective assistance of counsel in violation of the Sixth Amendment by failing to investigate and present potentially exculpatory serological evidence that could suggest the existence of an accomplice and thereby raise reasonable doubt as to the defendant's role as the actual killer or his intent to kill, a required element for a death penalty special circumstance finding?
Opinions:
Majority - Reinhardt, Circuit Judge
Yes. A defense attorney's failure to investigate and present potentially exculpatory blood evidence that could suggest the existence of an accomplice and negate the defendant's intent to kill constitutes ineffective assistance of counsel under the Sixth Amendment. Under the Strickland v. Washington standard, counsel's performance was deficient because he failed to conduct a reasonable investigation into the only piece of forensic evidence not tied to Duncan. The decision not to have Duncan's blood tested was not a reasonable strategic choice, as it was based on a misunderstanding of forensic science and could have been done confidentially with no risk to the defense. The potential benefit—proving a third party's blood was at the scene—was enormous. This deficient performance was prejudicial to the jury's special circumstance finding, which required proof that Duncan intended to kill the victim. While not prejudicial to the felony murder conviction (which only required intent to rob), the blood evidence creates a reasonable probability that at least one juror would have had a reasonable doubt that Duncan was the actual killer or intended that his accomplice kill the victim, thereby undermining confidence in the death sentence.
Analysis:
This case provides a detailed application of the Strickland v. Washington test for ineffective assistance of counsel, particularly emphasizing the non-delegable duty to investigate potentially exculpatory evidence. It clarifies that a tactical decision made without adequate investigation is not entitled to judicial deference. The decision is also significant for its bifurcated prejudice analysis, finding that counsel's error was harmless as to the underlying felony murder conviction but constitutionally prejudicial as to the death-penalty-qualifying special circumstance finding. This demonstrates that a single error can have different prejudicial impacts on different phases or elements of a verdict, affecting future ineffective assistance claims in capital cases.
