Court: District Court, E.D. Wisconsin; May 19, 2017; Federal District Court
An order has been issued granting the petition for a writ of habeas corpus filed by Joseph J. Jordan, challenging his 2003 conviction for first-degree reckless homicide, among other charges. The court mandates his release from custody unless the state initiates proceedings within ninety days. Initial denial of the petition occurred on May 3, 2007, due to a mix of exhausted and unexhausted claims. The Seventh Circuit reversed this denial, directing the district court to allow Jordan to pursue unexhausted claims in state court. After a series of administrative closures and reopening motions, the case was subject to an evidentiary hearing regarding ineffective assistance of counsel, particularly focusing on the failure to object to improper vouching by the prosecutor during trial.
The court found that the defense counsel could not provide a strategic rationale for this failure, and the petitioner was prejudiced as determined by the Seventh Circuit. Consequently, the court has granted the petition based on ineffective assistance of counsel. The underlying state charges stemmed from the shooting death of David Robison, with conflicting eyewitness testimony regarding the identity of the shooter. Jordan's signed statement, obtained after extensive police interrogation, was admitted in trial, despite his claims of innocence and misleading tactics by law enforcement. Attorney representation changes occurred prior to the trial, with Attorney Russell D. Bohach appointed to replace Attorney Michael J. Steinle.
The petitioner expressed dissatisfaction with his attorney, citing a lack of communication and investigation. On the day of trial, he requested the appointment of new counsel, a trial delay for further investigation, or the option to represent himself. The trial court denied the first two requests but initially deemed the petitioner competent to proceed pro se. However, after observing the petitioner during an evidentiary hearing that day, the court reversed its decision, finding him incompetent to represent himself.
The prosecutor's closing argument raised concerns regarding the credibility of the detectives versus the petitioner, questioning who was truthful about the confession. The defense attorney did not object to these statements. The jury convicted the petitioner of multiple charges, including first-degree reckless homicide.
Post-conviction, the petitioner claimed the trial court misapplied the competency standard, his counsel was ineffective for not objecting to the prosecutor's comments, and there was a conflict of interest regarding his attorney’s funding. The state court denied his pro se motion, and the Wisconsin Court of Appeals affirmed this decision, with the Wisconsin Supreme Court denying further review. The petitioner subsequently filed a motion for post-conviction relief under Wis. Stat. § 974.06, which was also denied. After exhausting state remedies, he filed a habeas petition in federal court.
Judge Randa denied the petition, concluding that the petitioner was not prejudiced by his trial attorney’s failure to object to the prosecutor’s closing argument comments, as the trial court had instructed jurors that attorney statements were not evidence. However, the Seventh Circuit disagreed, labeling the prosecutor's comments as "a textbook case of improper vouching," noting that they implied one detective would face career consequences for false testimony. This improper vouching was deemed central to the case, and the court suggested that if defense counsel had acted to address the error, the trial's outcome might have differed. The court did not resolve whether the failure to object constituted ineffective assistance under the Strickland standard.
To succeed on his habeas petition, the petitioner must demonstrate that the state court's decision contradicted or unreasonably applied established federal law as determined by the Supreme Court. A state court's decision is deemed contrary if it conflicts with Supreme Court precedent or draws different conclusions on materially similar facts. A decision is unreasonably applied if it misapplies the correct legal principle to the facts. The petitioner can also show that the decision was based on an unreasonable factual determination in light of evidence presented. A federal court may find a state decision unreasonable only if it overlooks the clear weight of evidence.
For claims of ineffective assistance of counsel, a petitioner must show the state court unreasonably applied the Strickland standard, which requires proving that counsel's performance was objectively unreasonable and that there is a reasonable probability that the outcome would have been different absent those errors.
The Seventh Circuit determined that the petitioner met the second prong of the Strickland standard, indicating that a timely objection to the state's vouching for its witnesses would likely have been effective, particularly since the case relied heavily on witness credibility. The court criticized the trial court's finding that the lack of objection by counsel was not prejudicial, deeming it unreasonable. It noted that the prosecutor's comments during closing arguments implied the jury should believe a witness based on unpresented evidence, which the Supreme Court has deemed improper. The court acknowledged that if the defense attorney had reasons for not objecting, those decisions would be largely unassailable; however, without any strategic rationale for the inaction, the court would not grant deference to the attorney's failure to object.
The case was remanded for an evidentiary hearing to explore whether the defense attorney had a strategic reason for failing to object. During the evidentiary hearing, Attorney Bohach, who had considerable trial experience, could not recall specific thoughts about the prosecutor’s comments or any decision-making process regarding objections. He acknowledged he remembered finding something odd about the comments but did not actively consider bringing it to the jury’s attention. Bohach reflected that, in hindsight, he would have preferred not to highlight the prosecutor's remarks, especially given the timing of the trial.
Bohach testified that he did not believe the prosecutor's comments constituted vouching, defining vouching as a lawyer expressing a personal belief in a witness's truthfulness. He contrasted this with the prosecutor's remark about who had the most to lose, viewing it as a factual statement based on the detective's experience. The court, after reviewing the evidentiary hearing transcript, concluded that Bohach did not remember the prosecutor's comments accurately and did not consider them improper vouching. It determined that Bohach's failure to object was not a strategic decision, as he suggested he would generally avoid objections to rebuttal statements late in a trial. However, the court found this reasoning to be exaggerated and asserted that a defense attorney should not overlook significant prosecutorial comments, likening it to ignoring a blatant violation of the defendant's presumption of innocence. Consequently, the court concluded that Bohach's performance was below an objective standard of reasonableness, leading to a finding of prejudice by the Seventh Circuit. Therefore, the court granted Joseph J. Jordan's petition for a writ of habeas corpus, ordering his release unless the State initiates retrial proceedings within ninety days.
