Thomas is entitled to a new trial for the intentional homicide of Joyce Oliver-Thomas, his ex-wife, because his trial lawyer was ineffective for failing to ask a pathology expert to review the conclusions of the state’s forensic pathologist—conclusions on which the prosecutor relied heavily in arguing that Thomas caused Oliver-Thomas’s death intentionally rather than accidentally, as Thomas claimed.
While a failure to investigate and present expert testimony may, depending on the facts, be a reasonable strategy, Rogers v. Israel, 746 F.2d 1288, 1294 (7th Cir. 1984), that isn’t the case here:
We agree with Thomas that a reasonable counsel would have consider [sic] and/or consulted with a forensic expert, especially when the state’s expert testified there was no evidence of external bruising on Oliver-Thomas’s neck but that the expert was still sure that this was intentional strangulation. Given the weakness of the state’s case, especially as it relates to Thomas’s intent, had counsel reached out to a forensic pathologist, or another expert similar to the habeas expert, and the expert testified, there is a reasonable probability the outcome of the trial would have turned out differently. Defendant’s expert testimony would have highlighted the shortcomings in the medical evidence—the lack of external bruises on Oliver-Thomas’s neck and lack of any signs of a struggle on either Thomas or Oliver-Thomas—and provided an expert, medical basis upon which the jury could have found reasonable doubt. (Slip op. at 2).
While the state argued that Thomas intentionally strangled Oliver-Thomas, Thomas claimed he accidentally caused her death during sex or horseplay. (Slip op. at 4-5). Though the state’s expert noted there were no marks around her neck showing manual strangulation, the expert said it was possible another part of Thomas’s body (an arm or forearm) could have inflicted the injuries, but either way the expert said the act was intentional. (Slip op. at 5-6). Trial counsel did not think to run the state’s expert’s conclusion past another pathology expert. (Slip op. at 7). Postconviction counsel did just that, and presented testimony from an expert who questioned the certitude of the state’s expert’s conclusion that the pressure that caused Oliver-Thomas’s death was applied intentionally; rather, she said, she could not rule out that it happened accidentally, consistent with Thomas’s explanation. (Slip op. at 6-7). The opinion goes into far more factual detail and analysis on the two prongs of the ineffective assistance test, and that discussion will be worth a read for anyone litigating an IAC case for failing to investigate the possibility for getting a favorable expert opinion. (Slip op. at 13-23).
Habeas practitioners should also take note of this decision because the court does not give the usual abject AEDPA deference to the Wisconsin Court of Appeals’ decision in Thomas’s appeal—the last reasoned state court opinion on Thomas’s claim, see Woolley v. Rednour, 702 F.3d 411, 421 (7th Cir. 2012). Instead, the court reviews both IAC prongs de novo, for two reasons.
First, it reviews trial counsel’s performance de novo because the state court (State v. Thomas, ¶20) did not address this prong at all. (Slip op. at 9-11). Second, it reviews prejudice de novo because the state court used the wrong standard of review: It said Thomas “did not demonstrate that his trial counsel’s failure to present [the expert’s] testimony would have led to a different result at trial.” (State v. Thomas, ¶20 again, emphasis added). The actual standard, of course, is that Thomas has to show a “reasonable probability” that, but for counsel’s unprofessional errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The Seventh Circuit doesn’t buy the state’s claim that the state court of appeals’ decision shows it knew and applied the correct standard:
The state appellate court only used two sentences to address the prejudice prong and did not actually analyze why there was no prejudice, instead setting forth a matter-of-fact statement that there was no prejudice, all while applying the incorrect standard. The two sentences in the appellate court decision here cannot support Clements’s argument. Thus, we find the appellate court’s decision “involved an unreasonable application of” Strickland, and we review the prejudice prong de novo, making this completely de novo review. See Mosley v. Atchison, 689 F.3d 838, 850–51 (7th Cir. 2012) (reviewing prejudice prong de novo when state appellate court “did not merely recite the wrong standard or use an inapt shorthand expression of the standard. It applied an incorrect and more onerous standard, and the difference may well have been decisive”). (Slip op. at 12-13).