You Must Remember This

The Delaware Supreme Court granted post-conviction relief to a defendant convicted of the murder of two people, one a five-year-old child, in a barbershop, concluding that trial counsel was constitutionally ineffective.

The court reversed the post-conviction court’s denial 

It is correct, as a general matter, that trial counsel does not have to elicit all possible evidence at trial. But where eyewitness testimony played a central role in the State’s case, and no physical evidence linked Starling to the crime, Trial Counsel’s failure to use important exculpatory evidence fell below any objective standard of reasonableness and was ineffective representation. Trial Counsel had in hand a private investigator’s report where eyewitness Moore, who claimed to be the only witness to view the entire incident, recounted to the investigator that he saw two photographs of the shooting suspects, one of which was Starling, and said that “none of those individuals had the same appearance as the shooter.” Despite attempts by Trial Counsel to recall Moore to the stand after realizing the mistake, Trial Counsel could not locate Moore. Forgetting to examine a witness on critical exculpatory eyewitness testimony was ineffective assistance of counsel…

Given the serious conflict among the eyewitnesses about the shooter’s appearance, and the lack of any physical evidence connecting Starling to the crime, Trial Counsel’s failure to elicit important exculpatory testimony from the witness with perhaps the best vantage point to view the shooter caused serious prejudice to Starling’s defense.

Trial counsel failed to raise the voluntariness of a witness statement. The prosecution violated its Brady obligations. (Mike Frisch)