Wednesday, July 2, 2008

Death Penalty Reversal: Duncan v. Ornoski, 528 F.3d 1222 (9th Cir. 2008)

Duncan v. Ornoski (Warden) 2008 WL 2498104 (9th Cir.) June 24, 2008 Within a few days after its indefensible opinion in Belmontes v. Ayers (529 F.3d 834 (9th Cir. 2008), a Ninth Circuit panel reversed the conviction of state court prisoner Henry Duncan on grounds his counsel was ineffective in defense of a murder charge. In 1984, Duncan was employed as a cashier at a restaurant where the victim worked as his supervisor. Employees found her body, repeatedly stabbed, the day after the murder, the room covered with blood, and money from receipts as well as the key to the safe missing. A broken knife handle lay next to her body and bloody shoe prints were imprinted on the floor. In addition to collecting blood samples, investigators removed fingerprints and palm prints from the scene but none matched Duncans prints at that time. Three months later a second entry and theft in the same room resulted in money stolen from the safe presumably opened by the key previously removed on the night of the murder. Police arrested and printed Duncan, and this time his fingerprints and palm prints matched the bloody prints taken at the murder scene. The bloody shoe prints also matched Duncans shoes. An investigator testified Duncans prints taken after the murder were unreadable, explaining the initial inability to match. The key to the safe was found in Duncans car. An expert prosecution witness testified that the blood samples found at the scene of the murder could not be matched because he had no sample from Duncan. When the prosecution sought a court order to extract a blood sample from Duncan, his counsel objected and neither side introduced evidence of blood sampling. With indisputable evidence establishing his clients presence at the scene of the murder, counsel unquestionably faced a challenge to avoid the conviction and the death penalty. The jury found Duncan guilty of murder-a killing in the course of a robbery-and voted the death penalty. On appeal, the California Supreme Court affirmed the convictiion; Peo. v. Duncan, 53 Cal.3d 955 (1991) At a subsequent post conviction hearing, counsel testified he wanted the absence of any evidence of blood comparison at the trial, fearing a positive result would doom his client who had admitted to him he was present in the room on the night of the murder. The risk was too great and counsel wanted the jury to hear no evidence of Duncans presence at the scene any more than they had already heard. Or, if the blood sample did not match, the jury would want to know who was in the room beside Duncan. No such evidence existed. The Ninth Circuit panel, of course, knew better. Failure to obtain a blood sample, even surreptitiously if possible, qualified counsel as ineffective l. Yet knowing his client had already told him of his presence at the murder scene, indicating culpability, the decision not to secure a blood sample is a risk a lawyer must take-other than in the Ninth Circuit. At the post conviction hearing, counsel testified he attempted to establish a third person had committed the murder but, according to the Ninth Circuit panel, he never presented any physical evidence tying anyone else to the scene. What physical evidence could counsel present? The evidence unequivocally established Duncans fingerprints, palm prints, and bloody shoe print were found in the money room. Duncan worked on the premises, knew the location of money and returned to the restaurant a second time to steal more money with the key to the safe found in his car-a separate crime to which he pled guilty. In fact, said the California Supreme Court in 1991, All of the physical evidence that was presented at trial tied Duncan to the crime scene; Peo. v. Duncan, supra. Perhaps if Duncan had testified-the panel says nothing about that fact but the California Supreme Court wrote in its decision that Duncan did not testify-he would have identified the other party. For counsel, the only basis to escape culpability lay in establishing Duncan did not personally kill the victim, or acted as an accessory. Duncan produced no such evidence because none existed. The Ninth Circuit panel only repeats the failure of counsel to obtain a blood sample ad nauseam and criticizes this strategic omission. The Ninth Circuit again reweighed the evidence, speculated on the outcome and chastised counsel who faced overwhelming evidence of guilt and presented no blood sample somehow mitigating the sentence. The murder occurred in 1984. In 2008 the prosecution must retry the sentencing phase of the case unless the full Ninth Circuit panel reverses this panel decision. The Supreme Court denied cert.; 129 S.Ct. 1614 (2008) The Ninth Circuit panel did not close the door on other claims despite affirming the conviction on the merits: We need not reach Duncans remaining claims as they pertain only to the penalty phase and our decision . . . vacating Duncans sentence renders those claims moot. In other words, this decision is not the end of the case.

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