IAC finding after second appeal

Michael Whalen won in Swenson v. State, No. 101,279 (Kan. App. Feb. 19, 2010), obtaining an order for a new trial in a Sedgwick County attempted first-degree murder case. Michael already had to win a previous appeal just to get an evidentiary hearing (blogged about here) and then the district court denied relief after that hearing. The COA held that trial counsel did not have conduct a sufficient investigation regarding a potentially exculpatory witness:

The decision whether to call a particular witness is a tactical decision which rests in the province of trial counsel. However, trial counsel has a duty to make reasonable investigations and cannot strategically decide against pursuing a line of investigation when he or she has not yet obtained the facts upon which to base that decision.

Prior to trial, counsel knew Turner was a potentially exculpatory witness but did not feel it was necessary to follow up or interview Turner about the contents of the letter because of Turner's criminal history. Had counsel done so, however, counsel would have learned that the person Hooks implicated in his conversation with Turner was an individual who was with Swenson when the shooting occurred. This information was included in a notarized affidavit from Turner dated February 6, 2003, which was attached to Swenson's 60-1507 motion. To that end, Hooks testified that a black man named Rodney was with Swenson at the time of the shooting. Hooks further testified that he had consumed alcohol and smoked marijuana laced with cocaine before he was shot. Although Hooks indicated that he was not so “messed up” that he failed to recognize people, the jury could have found that Hooks was impaired by the combination of drugs and alcohol. If Turner would have testified at trial about the information revealed in his letter and affidavit, this testimony might have been enough to convince the jury that Swenson did not shoot Hooks as the State alleged, regardless of Turner's criminal history.

While trial counsel is afforded deference to not investigate, his or her decision not to do so must be reasonable under the circumstances. Here, trial counsel had no other witnesses available to testify in Swenson's defense. Turner may very well have been lying or simply unbelievable in person, but without conducting any investigation,
trial counsel had no reasonable factual basis on which to immediately determine that Turner's credibility would harm Swenson's defense.

This is a nice example of how hard it is to get relief in these types of cases, even though the right to effective assistance of counsel is supposedly the most fundamental right protecting persons against wrongful convictions.

[Update: the state filed a PR on March 22, 2010.]

[Further update: the KSC denied the state's PR and the mandate issued on May 20, 2010.]

[Further update: here is a blog post regarding the eventual discharge of Mr. Swenson after eleven years in prison.]