Failure to call key witnesses is IAC

Debra Wilson won in Shumway v. State, No. 107,248 (Kan. App. Jan. 18, 2013), obtaining a new trial in a habeas corpus proceeding stemming from a Shawnee County murder prosecution.  In some cases, trial counsel could not remember why they did not call certain witnesses; in other cases they did not have adequate reason to not call certain witnesses.  The COA held that this record did not support the district court's findings that failure to call several defense witnesses was a trial strategy.  Finally, in light of the weak case, in part based on snitch testimony, the COA held the failure was prejudicial:

As discussed earlier, Angela Kendall's testimony would have contradicted the accounts, sworn to under oath, of John and Mary Finney. Moreover, John and Mary Finney learned details of the crime from police, testified for benefits, and their claims were not corroborated by any physical evidence linking Shumway to the crime or the crime scene. Trial counsel offered no tactical reason for failing to interview Kendall or use her as a witness. Counsel's failure to investigate a disinterested witness, with no reason to lie for Shumway, who would have testified that the victim was with her, alive and well, both during and well past the time John Finney claimed that Davis was beaten to death by Shumway, was unreasonable.

In this case, the time when Davis was beaten to death was a critical factor in determining Shumway's innocence or guilt. Earlier we discussed trial counsel's failure to call either Angela Dennis or Catherine Dennis as an alibi witness. The testimony of either Angela or Catherine might have established Shumway's alibi to Davis' murder and would have further eroded the credibility of John and Mary Finney.

Moreover, if Davis had been killed before midnight, according to John Finney's testimony, the testimony of Angela Kendall that she was with Davis until 1 a.m. to 2 a.m. would have shown that Davis was not killed when John Finney claimed. As a result, Kendall's testimony would have furnished Shumway with a defense to Davis' murder. Also, Kendall's testimony would have corroborated the alibi testimony of Angela Dennis and Catherine Dennis.

Finally Treiber's testimony that Love had threatened Davis' life just hours before he was found murdered would have furnished strong support to Shumway's "theory of innocence," that Love was Davis' killer. Because Treiber's evidence, standing alone, could have caused reasonable doubt in the minds of the jurors, the failure to present this evidence was prejudicial to Shumway's theory of defense.

The inconsistent statements and credibility problems of the State's key witnesses coupled with the possible favorable testimony from uncalled witnesses would have cast doubt on the State's case. Furthermore, there was no physical evidence: no fingerprints, no fibers, no blood, tying Shumway to this crime. As a result, we determine that the trial counsel's deficient performance prejudiced the defense so as to deprive Shumway of a fair trial.

There is also some pretty good language in this case regarding relation-back of claims in an amended 1507 petition (albeit some harsh language for both parties' failure to address that issue on appeal).

[Update: the state filed a PR on February 13, 2013.]

[Update: the KSC denied the state's PR and the mandate issued on October 23, 2013.]