Failure to investigate and call critical witnesses results in new trial

Richard Ney won in Gadbury v. State, No. 111,367 (Kan. App. June 19, 2015)(unpublished), granting Mr. Gadbury a new trial in a Ford County rape and aggravated criminal sodomy prosecution. Mr. Gadbury sought habeas relief based on ineffective assistance of counsel on several points. The COA noted that this case, where the defense was based on consent, depended on the jurors' views of credibility of the complaining witness and Mr. Gadbury. In that light, the COA held that trial counsel was deficient in several respects: (1) failure to obtain the complaining witness' medical records, failure to pursue a motion for independent psychological evaluation of the complaining witness, (3) failure to call a critical witness, and (4) failure to investigate and impeach one of Mr. Gadbury's ex-wives' credibility.  After finding multiple deficiencies, the COA held a new trial was required:

[t]he cumulative effect of trial counsels' demonstrated errors has resulted in prejudice to Gadbury's right to a fair trial. The evidence of Gadbury's guilt was not overwhelming. We are convinced that there is a reasonable probability that, but for the ineffective assistance of counsel Gadbury received, the trial result would have been different.

[Update: the state did not file a PR and the mandate issued on July 23, 2015.]