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Failures in Habeas Corpus Cases 2017-03-06T20:29:02+00:00

Failure to Consult or Retain Expert

[T]here is no per se rule that requires a trial attorney to seek out an expert witness.” (Also note, internal quotation marks omitted; citation omitted) Antonio A. v. Commissioner, 148 Conn. App. 825, 833, cert. denied, 312 Conn. 901 (2014). However, “in some cases, ‘the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel.’” Id. (quoting Peruccio v. Commissioner, 107 Conn. App. 66, 76, cert. denied, 287 Conn. 920 (2008)).

In addition, this is because “[c]riminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence….” Harrington v. Richter, 562 U.S. 86, 106 (2011) . Thus, in such situations, defense counsel’s failure to consult and/or retain a qualified expert may constitute ineffective assistance of counsel. See, e.g., Troedel v. Wainwright, 667 F.Supp. 1456 (S.D.Fla. 1886), aff’d without op. 828 F.2d 670. Also, in Stephen S. v Commissioner, 134 Conn. App. 801, cert. denied, 304 Conn. 932 (2012), the Connecticut Appellate Court held that “cases involving child sexual abuse may, depending on the circumstances, require some pretrial investigation and consultation with experts.” Id. at 815.

Further Caselaw

In addition, if the record reveals that trial counsel, after consultation with the expert, elected, as a matter of strategy, not to call the witness to testify, the decision is virtually unchallengeable. Also see Antonio A. v. Commissioner, 148 Conn. App. at 833-34. So, the only way to attack the decision is to show that the underlying strategy was fundamentally flawed and completely against the client’s interests.

Also related, in Hinton v. Alabama, 571 U.S. , , 134 S.Ct. 1081, 1088 (2014), the Supreme Court held that trial counsel’s “failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance.”

Failure to Communicate or Recommend Plea Bargain

Plea bargaining is a critical stage of the criminal proceedings. Also see Hill v. Lockhart, 474 U.S. 52 (1985); In addition see Padilla v. Kentucky, 559 U.S. 356 (2010), see also Copas v. Commissioner , 234 Conn. 139, 153 (1995), overruled sub silencio on other grounds, and Washington v. Commissioner, 287 Conn. 792 (2008); In addition, view Johnson v. Commissioner, 36 Conn. App. 695 (1995). “[C]riminal defendants require effective assistance of counsel during plea negotiations”. In addition, see Missouri v. Frye, 566 U.S. , , 132 S.Ct. 1399, 1407-08 (2012); And see also McMann v. Richardson , 397 U.S. 759, 771 (1970). In addition, ineffective assistance of counsel claims that relate to plea bargaining are governed by Strickland. Also see Hill v. Lockhart, 474 U.S. at 57-58.