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Lawyer’s decision to let state present hearsay survives habeas review

William Hinesley, III, v. Wendy Knight, 7th Circuit Court of Appeals No. 15-2122, 2016 WL 4758437, 9/13/16

Hinesley’s trial lawyer didn’t object to the state’s presentation of the inculpatory out-of-court statements of the two principal witnesses against him because he wanted all of the witnesses’ statements admitted to show how they had changed their stories and weren’t credible. The Seventh Circuit holds the state courts reasonably concluded trial counsel wasn’t ineffective for adopting and employing this strategy.

Hinesley was charged with sexually assaulting V.V., his 13-year-old foster daughter. His son Billy was already engaged in a sexual relationship with V.V., and he said he saw V.V. pulling her pants back on after the assault. V.V. also told Billy what Hinesley had done. V.V. later recanted, but then recanted the recantation, and also made more equivocal and inconsistent statements. Billy later said he couldn’t remember if he’d seen V.V. pulling on her pants. There was no physical evidence to corroborate V.V.’s allegations, so defense counsel’s strategy at Hinesley’s bench trial was to elicit all of the various pre-trial, out-of-court statements that both V.V. and Billy had made so as to establish the changing nature of their accounts and to suggest that they were not credible as to the alleged assault by Hinesley. Defense counsel thus posed no objection when, during the state’s case, the prosecution asked both Downing, the investigating police officer, and Billy to recount certain out-of-court statements that both V.V. and Billy had made. (Slip op. at 2-13).

Hinesley’s direct appeal alleged trial counsel was ineffective for allowing the state to elicit the testimony without limitation, rather than just using the statements on cross-examination, because it allowed the state to present its strongest version of its case right from the start. The state courts rejected this claim, concluding trial counsel’s strategy was not unreasonable and, even if it was, did not prejudice the defense. (Slip op. at 13-17).

The Seventh Circuit holds the state courts’ decisions were not unreasonable under AEDPA’s “doubly deferential” approach to IAC claims, Knowles v. Mirzayance, 556 U.S. 111, 123 (2009): Strickland v. Washington‘s inquiry is “highly deferential” to a lawyer’s plausible strategic choices, 466 U.S. 688, 689 (1984), and the habeas court’s review under is “highly deferential” to the state courts that resolved Hinesley’s ineffectiveness claim in the first instance, Burt v. Titlow, 134 S.Ct. 10, 15 (2013). Because the prior inconsistent statements of V.V. and Billy were admissible and would have been elicited at some point, whether by the state or the defense, given the defense strategy, when and how the statements were elicited would not have mattered much, if at all, to the fact-finder. (Slip op. at 21-24). For the same reason, having the statements elicited first by the state wasn’t prejudicial. (Slip op. at 24-25).

The conclusion that defense counsels wasn’t ineffective is much bolstered by the fact that, “[c]onsistent with his declared strategy, counsel did drive home each and every one of the inconsistencies among the statements that V.V. and Billy had made over time. [Defense counsel] advised the judge in his opening statement that she was ‘going to hear inconsistent statement after inconsis[tent] statement,’ … and he made good on that promise. His cross-examination of both witnesses was thorough, and in fact, both V.V. and Billy freely acknowledged the differences in the statements they had made over time.” (Slip op. at 23). This is especially so with regard to prejudice, as whatever advantage the state may have reaped by presenting the statements first “was short-lived, given defense counsel’s relentless cross-examination of both V.V. and Billy as to the significant retractions and inconsistencies in their accounts.” (Slip op. at 25).

Hinesley also alleged trial counsel was ineffective for failing to object to statements vouching for the credibility of V.V. (slip op. at 12-13), but this claim “fail[s] for want of prejudice. …. The two statements—one in court, one out of court—were isolated, were not belabored, were not cited by the State in its closing argument, and were highly unlikely to have influenced the judge’s assessment of guilt.” (Slip op. at 26).

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