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Seventh Circuit: Federal Habeas Relief for State Prisoner Due to Counsel’s Failure to Raise No-Causation Defense

The case stems from a 2011 murder of a man in Wisconsin, found dead of a head injury hours after an altercation with Larry Dunn in a bar. Earlier in the evening, Dunn admitted he slapped an intoxicated man in the bar parking lot, who then fell and hit his head. Dunn told the bartender what happened, and the drunk man was helped to a back patio to rest. Hours later, he was found dead by a bar patron. Dunn and a codefendant, Michael Crochet, were charged with felony murder, battery, and theft from a corpse (Crochet was accused of stealing the man’s cellphone).

Prior to Dunn’s trial, counsel consulted with a forensic pathologist who believed the victim had died immediately after his injuries. Counsel believed this undercut the State’s case that Dunn’s slap killed the man, because witnesses said he was up and walking around after the incident. Counsel assumed, based on the expert’s opinion, that the medical examiner’s report stated this immediate-death theory. But when Crochet’s lawyers told Dunn’s counsel that their experts estimated that the victim fell on the patio and hit his head (i.e., Dunn’s slap did not cause the fatal injury), counsel stood firm on his defense theory.

Dunn was found guilty of all three charges and sentenced to 10 years in prison. Crochet, on the other hand, was given a plea deal of time-served for aiding and abetting a felon and misdemeanor battery, after presenting the State with his experts’ reports on how the victim died.

Dunn later filed a state postconviction challenge, claiming ineffective assistance of counsel (“IAC”) for counsel’s failure to investigate and present a no-causation defense, among other claims. That is, counsel should have pursued the defense that something or someone else killed the drunk man.

At an evidentiary hearing, Dunn called his former lawyer and a different forensic pathologist to the stand. The expert contradicted the medical examiner in two important ways. First, he said a skull fracture was the cause of death, which wasn’t the injury from Dunn’s slap. Next, he said that the victim would have been unconscious immediately after the injury and died within minutes. The expert offered credible evidence that the man died from a fall on the patio and not Dunn’s slap. The medical examiner conceded as much at the hearing.

Nonetheless, the state court denied Dunn’s postconviction motion. The court said that counsel’s defense theory was a “strategy” that was immune from IAC scrutiny and that comparing Dunn’s counsel to Crochet’s was not the proper IAC standard. The Wisconsin Court of Appeals found counsel’s performance was reasonable and affirmed the denial of relief. Dunn then filed a habeas petition under 28 U.S.C. § 2254 in the U.S. District Court for the Eastern District of Wisconsin, raising the same claims. This time, he was granted relief.

Before the district court could grant relief, however, it had to determine that the state court’s decision “was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court” or was based on an “unreasonable determination of the facts.” § 2254(d). A state court unreasonably applies federal law if it correctly identifies the governing U.S. Supreme Court case but unreasonably applies the holding to the facts of the case before it. This high bar set by the Antiterrorism and Effective Death Penalty Act (“AEDPA”) was meant to be a difficult standard to meet, the Supreme Court has said. But it’s not impossible. “The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law,” the Court said in Harrington v. Richter, 562 U.S. 86 (2011), a case dealing with this provision of the AEDPA.

The federal court found that the state court unreasonably applied federal law, which is the IAC standard established in Strickland v. Washington, 466 U.S. 668 (1984), requiring a habeas petitioner with an IAC claim to show (1) that his counsel provided “deficient performance,” and (2) that this “prejudiced” him by undermining the reliability of the outcome.

“Upon closely examining the facts of this case, we find that the Wisconsin 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,” the Court explained. “His mistaken belief infected his trial strategy to such an extent that his approach to investigating and presenting a no-causation” defense prejudiced Dunn, the Court concluded.

Rather than calling the original forensic pathologist to testify or even requesting a continuance to get the exculpatory reports from Crochet’s lawyers, counsel decided to rely on his cross-examination of the medical examiner at trial to establish the no-causation defense, according to the state court. The Court did not agree. “Here, trial counsel’s investigation and presentation of a no-causation defense rested on an erroneous belief, until days before trial, that he would be able to elicit a crucial piece of information from the medical examiner.” The Court called counsel “passive in the face of damning testimony.”

With respect to prejudice, the Court reviewed this Strickland prong de novo since the state court failed to address it. That is, the federal court was authorized to assess any prejudice to Dunn without giving any deference to the state court’s reasoning in denying relief. The Court explained that Dunn wasn’t required to prove counsel’s conduct “more likely than not” altered the outcome but only that there was a “likelihood” of a different result.

Had Dunn’s counsel adequately investigated and presented evidence that his slap did not cause the victim’s fatal injuries, there was a “reasonable probability that the result would have been different,” the Court concluded.

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Related legal case

Dunn v. Jess



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