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Failure to investigate alibi witnesses might have been ineffective

Eric Blackmon v. Tarry Williams, 7th Circuit Court of Appeals No. 14-3059, 2016 WL 3007212, 5/24/16

Two eyewitnesses to the murder of Tony Cox were shown a photo array and live line-up, and both independently identified Eric Blackmon—a man they did not know—as one of two gunmen who shot and killed Cox. The judge at Blackmon’s bench trial relied heavily on the two eyewitness identifications. (Slip op. at 3-11). While Blackmon’s trial lawyer put on two alibi witnesses, Blackmon alleges he failed to interview and present six additional alibi witnesses. The Seventh Circuit holds this allegation entitles Blackmon to a hearing to take testimony from the missing alibi witnesses and trial counsel.

As frequently happens in habeas appeals, the court must first address whether Blackmon’s claims clear AEDPA’s procedural hurdles. In state collateral proceedings Blackmon argued that trial counsel was ineffective for failing to find the additional alibi witnesses and failing to call Arrigo, another witness to the shooting but who was suspected to have arranged for Cox’s murder. Blackmon also made an actual innocence claim based on the alibi witness testimony and two previously unknown witnesses to the shooting who would have provided exculpatory testimony. He raised these claims again in his federal habeas petition, but then amended the last claim to make it another ineffective assistance claim, saying the actual innocence moniker was simply an argument for excusing his procedural default of not raising the claim in state court as another instance of ineffective assistance. (Slip op. at 11-15).

The claim about the two new eyewitnesses is defaulted, the court finds, because it was raised in state court as a freestanding actual innocence claim, not an ineffective assistance claim. Nor does he meet the standard under Schlup v. Delo, 513 U.S. 298 (1995), for excusing the procedural default based on actual innocence. While acknowledging the high rates of error in the kind of eyewitness IDs the trial judge relied on, the two new eyewitnesses had problems of their own due to their limited opportunity to observe and the fact they first came forward eight years after the shooting. (Slip op. at 18-23).

The two remaining claims aren’t defaulted, but the court holds that the state courts reasonably concluded trial counsel had valid strategic reasons for not calling Arrigo to testify. While Arrigo might have helped Blackmon by saying he wasn’t one of the gunmen, Arrigo’s credibility was questionable and his statements were inconsistent with the testimony of another defense witness. (Slip op. at 24-26).

But the alibi witnesses are a different story, the court holds. The record doesn’t show that trial counsel had interviewed the potential witnesses or knew what they would say, and this failure to investigate undermines the state court’s reasoning that trial counsel’s actions weren’t prejudicial because the witnesses would have merely provided cumulative evidence to the two alibi witnesses that were called. Further, the lack of investigation provides no basis to conclude that trial counsel strategically decided the witnesses were vulnerable to impeachment or credibility attacks. Thus:

Strickland “permits counsel to ‘make a reasonable decision that makes particular investigations unnecessary.’” Harrington [v. Richter], 562 U.S. [86,] 106 [(2011)], quoting Strickland [v. Washington], 466 U.S. [668,] 691 [(1984)]. But the record provides no support to treat as reasonable a decision not to investigate further the available alibi witnesses from the barbecue. Blackmon’s location at 4:30 p.m. was the pivotal issue for the defense. Additional disinterested and credible alibi witnesses could have made a significant difference in the viability of Blackmon’s defense, especially given the problems with the alibi witnesses who did testify. See Washington [v. Smith], 219 F.3d [620,] 631 [(7th Cir. 2000)] (attorney’s failure to try to contact any witnesses besides one was ineffective, and state court’s decision to the contrary was an unreasonable application “of Strickland’s requirement that an attorney conduct a reasonable investigation in connection with his client’s case”). Nothing in the record shows that investigating those witnesses would have been “fruitless or harmful,” Campbell [v. Reardon], 780 F.3d [752,] 765 [(7th Cir. 2015)], citing Strickland, 466 U.S. at 691, and the benefits could have been enormous. Just one witness might have been able to give Blackmon a true alibi. At a minimum, all of them could have bolstered his claim of being at the barbecue all afternoon. It is not reasonable strategy to leave such possible testimony unexplored under these circumstances. So even giving both counsel and the state court the substantial deference they are due under Strickland and AEDPA, respectively, the state court’s finding with respect to trial counsel’s performance was, on this record, unreasonable.

(Slip op. at 28-29). In light of the weaknesses of the state’s case and how Blackmon’s defense may have been bolstered by additional alibi testimony, the court concludes Blackmon may be able to establish prejudice if the allegations in his petition are true. Accordingly, it reverses the summary denial of his petition and remands for an evidentiary hearing on this claim. (Slip op. at 29-33).

Judge Posner concurs with the remand order, but dissents from its being limited to the alibi witnesses. He concludes Blackmon’s procedural default of the claim regarding the two unknown eyewitnesses should be excused under Schlup, which doesn’t require absolute certainty about the petitioner’s guilt or innocence, and that the evidentiary hearing should include their testimony as well. (Slip op. at 34-43).

Posner also raises some concerns he has about some terminology which he characterizes as “a plague, much of which originates in Supreme Court opinions.” He singles out “actual innocence” and “procedural default.” As to the first:

A defendant is either innocent or guilty. There is no separate state of being actually rather than just—just what?—innocent. So what work is “actual” or “actually” doing? None I think. Something in the legal genome causes lawyers and judges to want to speak in pairs, as in “arbitrary and capricious” and “clear and convincing.” Ask yourself: what does “arbitrary” add to “capricious” or vice versa, “clear” to “convincing” or vice versa, “actual” to “innocence.”

(Slip op. at 44). As to “procedural default,” the phrase is just “a cumbersome alternative to ‘forfeiture'” that should be “purged” from the lexicon. (Slip op. at 45). Posner made similar remarks in a concurrence in United States v. Shontay Dessart, 7th Circuit Court of Appeals No. 14-2686, 2016 WL 2893267 (May 17, 2015), where, in addition to criticizing “actual guilt or innocence” like he did in this case, he takes on the notion of giving “great deference” to a magistrate’s determination of probable cause; the concept of  evaluating sufficiency claims by viewing the evidence “in the light most favorable to the prosecution”; and “abuse of discretion.” He concluded in that case that:

…I don’t disagree with the decision to affirm the district court. I disagree merely with the rhetorical envelope in which so many judicial decisions are delivered to the reader. Judicial opinions are littered with stale, opaque, confusing jargon. There is no need for jargon, stale or fresh. Everything judges do can be explained in straightforward language—and should be.

(Dessart slip op. at 22).

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