Tenth Reverses Habeas Relief Granted by District Court

The Tenth reverses OK district court's grant of habeas relief--a new trial--in Richie v. Mullin, -- F.3d --, 2005 WL 1714327 (10th Cir. 7/25/05). The court's decision, authored by Kelly, concludes that defense counsel was not ineffective in cross-examining a state medical examiner. The theory of death was in dispute--whether the vic, bound and secured to a closet clothes rod, was left to die while restrained (defense theory) or lifted by her ankles while bound and strangled (state theory). If she was left to die, the case would not have been death penalty eligible. Counsel interviewed the medical examiner before trial and concluded he supported the defense theory. His trial testimony supported the state's theory. The COA decides the district court erred in finding that the medical examiner provided the only evidence supporting the state's theory and points out that the state only managed to show that the medical evidence was consistent with its theory. Counsel's cross-examination represented a reasonable tactical choice, as did the decision not to call another expert to support the defense theory. Hartz concurs, offering more reasons why counsel's performance was reasonable, and McConnell dissents, separately criticizing both the court's decision and the Hartz concurrence. McConnell points out that the medical examiner would have testified, if asked, that there was no medical evidence supporting the state's theory that the vic was deliberately suspended and that she could have died by passing out and falling into the strap, which supported the defense theory. Counsel's failure to conduct a proper cross-examination eliciting this information constituted IAC.