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Habeas relief granted based on trial counsel’s erroneous assessment of the need for forensic pathology expert

Larry H. Dunn v. Cathy Jess, 7th Circuit Court of Appeals No. 20-1168 (Nov. 24, 2020)

Dunn was charged with felony murder and other offenses based on the fact he had struck the victim, who was later found dead from a head injury. In a rare case that clears the high hurdles of both AEDPA and Strickland v. Washington, 466 U.S. 668 (1984), the Seventh Circuit holds his trial lawyer was ineffective for failing to call an expert witness to support his defense that his acts did not cause the victim’s death.

Dunn admitted to striking Schuckman, the victim, in self defense, but the heart of his defense was that he didn’t cause Schuckman’s death. Schuckman was seen alive by others after Dunn struck him, and was not found dead till some hours later. Dunn’s theory was that Schuckman (who was intoxicated) had fallen later on and sustained the head injury that killed him. (Slip op. at 3-6).

The trouble is that trial counsel pursued this theory based on the erroneous belief that the state’s medical examiner would testify that Schuckman died from his injury instantaneously. That wasn’t the medical examiner’s opinion, however, and trial counsel didn’t understand until shortly before trial that she would testify that all of Schuckman’s injuries contributed to his death. While trial counsel talked to a forensic pathologist (Dr. Corliss) who did believe Schuckman died immediately, he decided not call him as a witness. In addition, the prosecutor told trail counsel that Dunn’s co-defendants had secured experts who supported this theory, but trial counsel  didn’t try to get the contents of those reports. (Slip op. at 7-10).

After Dunn was convicted, he appealed, arguing his trial lawyer was ineffective for not calling Corliss to support his defense. In what can only be described as a cursory analysis, the Wisconsin Court of Appeals rejected this claim, holding that trial counsel wasn’t deficient on the grounds he: (1) consulted with Corliss; and (2) had reasonable strategic and practical reasons for not calling him because he believed he could get the medical examiner to testify about the presence of multiple injuries on cross-examination and because Corliss told counsel that he thought the medical examiner’s report was well-reasoned. (Slip op. at 11).

The Seventh Circuit holds the court of appeals unreasonably applied Strickland because Dunn’s counsel “was poorly informed and based his strategic decisions on a complete misunderstanding of a key piece of evidence—namely, the medical  examiner’s opinion on the immediacy of death.” (Slip op. at 15).

…[A]t the initial consultation, Dr. Corliss provided trial counsel with a crucial piece of evidence supporting Dunn’s no-causation defense: he thought Schuckman died immediately. Whether Dunn caused Schuckman’s death was a critical issue in the case. The state’s main theory of the case depended on connecting two events: Dunn slapping Schuckman in the bar’s parking lot, and Schuckman being found dead hours later on the bar’s back patio. Evidence that Schuckman would have died immediately after receiving his fatal head injuries would have lent strong support that these two events were not causally connected because multiple witnesses saw Schuckman alive, apparently unharmed, and upright after Dunn slapped him. Yet Dunn’s counsel seemingly misattributed Dr. Corliss’s opinion that death was immediate to the medical examiner, and erroneously believed that the medical examiner’s report meant she would testify to that at trial. He failed to confirm that the medical examiner would introduce this key piece of evidence at trial or otherwise investigate the immediacy of death. His mistaken belief infected his trial strategy to such an extent that his approach to investigating and presenting a no-causation defense cannot be reasonably viewed as strategic, even with the “heavy measure of deference” afforded him under Strickland. 466 U.S. at 691. ….

It was also unreasonable for the state appellate court to find that trial counsel’s explanation for his approach contained reasonable strategic and practical reasons. Dunn’s counsel explained he did not call Dr. Corliss as a witness because he thought the evidence would be more persuasive if elicited from the medical examiner on cross-examination. The state appellate court found this explanation demonstrated that trial counsel was acting strategically. This overlooks the fact that trial counsel was not able to elicit a crucial piece of evidence from the medical examiner on cross-examination: that Schuckman died immediately. “A court adjudicating a Strickland claim can’t just label a decision ‘strategic’ and thereby immunize it from constitutional scrutiny,” and the state court’s determination that trial counsel was acting strategically here is not reasonable. …. In fact, his causation strategy was primarily based on the improbable assumption that the state’s medical examiner would testify that the state’s causation theory was medically impossible. And when that unlikely strategy blew up, counsel had no Plan B.


…. Further, the Wisconsin Court of Appeals failed to adequately consider or address counsel’s decision to disregard the exculpatory expert reports he was informed about shortly before trial. Dunn’s counsel did not seek out further information on the reports or ask for a continuance. While “reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste,” … (emphasis added), here trial counsel only had a bad reason not to follow up: his inaccurate belief that he already had a witness who would provide similar testimony. A tactical decision based on a complete misunderstanding of an essential piece of evidence does not equate to strategy….

(Slip op. at 15-19 (quoted sources and footnotes omitted; emphasis added)).

Since the state appeallate court resolved Dunn’s case on deficiency grounds and didn’t address prejudice, the federal court reviews prejudice de novo and has no problem finding it, citing testimony of the pathologist (Stephens) presented at Dunn’s state postconviction hearing:

We conclude that there is a reasonable probability that the result would have been different if Dunn’s trial counsel had adequately investigated and presented evidence that Dunn did not cause Schuckman’s death. Given the evidence that Schuckman was seen alive and apparently unharmed after the slap meant that the medical examiner’s testimony at trial was key in linking Dunn’s slap to Schuckman’s death. Her testimony that all Schuckman’s injuries contributed to his death and there was no reason to think he died quickly went unrebutted at trial. Dr. Stephens’s testimony cast significant doubt on these conclusions and is sufficient to undermine our confidence in the outcome. ….

Dr. Stephens’s testimony contradicted the medical examiner’s in two key ways. First, while the medical examiner testified that all Schuckman’s injuries contributed to his death, Dr. Stephens opined the skull fracture and laceration to the back of Schuckman’s head were the substantial cause of his death and he likely would have survived his other injuries. Second, Dr. Stephens disagreed with the medical examiner about how long Schuckman likely survived after sustaining the skull fracture. The medical examiner testified she had no reason to think that Schuckman would have died immediately from his injuries because they did not affect his vital center; Dr. Stephens testified that Schuckman would have been rendered immediately unconscious, would be unlikely to be able to sit up afterward, and would have died within minutes. ….

(Slip op. at 21-22).

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