Robinson v. State
| Decision Date | 03 August 2018 |
| Docket Number | No. 116,483,116,483 |
| Citation | 56 Kan.App.2d 211,428 P.3d 225 |
| Parties | Frank ROBINSON, Appellee/Cross-appellant, v. STATE of Kansas, Appellant/Cross-appellee. |
| Court | Kansas Court of Appeals |
Rachel L. Pickering, assistant district attorney, Michael F. Kagay, district attorney, Kristafer R. Ailslieger, deputy solicitor general, Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellant/cross-appellee.
Jean Phillips and Alice Craig, of Paul E. Wilson Defender Project for Innocence and Post-Conviction Remedies, University of Kansas School of Law, for appellee/cross-appellant.
Before Bruns, P.J., Hill, J., and Walker, S.J.
It is not an easy decision to grant a new trial to a man after he has been convicted of killing another human being and that conviction has been upheld on appeal. But more important than the severity of a crime is the fundamental principle of American law—all accused must receive a fair trial, even those accused of setting an apartment house fire that caused the death of a tenant. That legal principle led the judge here to make such a decision and order a new trial for Frank Robinson. Based on the judge's thoughtful and thorough written opinion, and our review of the record, we agree.
The facts are reported in the direct criminal appeal.
After an apartment house in Topeka burned and one of the tenants died, the United States government charged Robinson with arson resulting in death. When the federal government dismissed the charge before trial, the State of Kansas charged Robinson with felony murder and aggravated arson. All pertinent details of the state prosecution may be read in the direct criminal appeal reported in State v. Robinson , No. 105,281, 2012 WL 4794455 (Kan. App. 2012) (unpublished opinion), which upheld Robinson's convictions for reckless second-degree murder and aggravated arson. But to provide a framework for our discussion, we will give a brief summary.
On the day the apartment house burned down, there were two fires. The first, discovered in the basement, was extinguished by one of the tenants. A second fire, near the stairs, soon engulfed the building in flames. The upstairs tenant did not escape, and she died in the fire.
The government's fire investigator, Agent Douglas Monty, testified that in his opinion, the fire was intentionally set on the stairs using an open flame, such as a lighter, and a flammable liquid. In statements to detectives, Robinson denied any responsibility for the fire but did say that he could have been smoking crack cocaine in the hall of the apartment and could have thrown lighted matches on the floor, but he never intended to hurt anyone. "I can't say whether I did it [caused the fire] or didn't, but I know I was smoking right there."
The district court received evidence on the habeas corpus motion.
In his motion for habeas corpus relief, Robinson alleged several grounds for relief. He contended that he was denied his constitutional right to effective assistance of counsel because his lawyer failed to:
Finally, he claimed cumulative errors by trial counsel should lead to a new trial.
At the habeas corpus hearing, Robinson presented several witnesses:
For its part, the State called Jason Belveal, one of Robinson's attorneys, to testify.
Eventually, the court ruled that Robinson's defense attorneys were ineffective for failing to investigate and then present sufficient expert testimony to refute the claims of the State's expert. The court also decided that this failure prejudiced the defense. The court also ruled that cumulative errors by the defense counsel called for habeas corpus relief. After concluding that Robinson's convictions were vulnerable to collateral attack because of ineffective assistance of counsel, the court ordered a new trial. But the court remained unmoved by Robinson's other contentions.
The State appeals and Robinson cross-appeals.
To us, the State argues that the district court erred in finding Robinson's trial counsel ineffective. It contends defense counsel's actions were from trial strategy and the court should not, contrary to longstanding caselaw, substitute its judgment for that of counsel. Robinson cross-appeals, arguing that the district court erred in finding that the remainder of his claims for relief had no merit.
We concentrate on the expert evidence issue and will show that the court's holding is supported by substantial competent evidence and is legally correct. The court's finding of cumulative error is insignificant given the expert evidence deficiency. In turn, we agree with the district court about the issues Robinson raises in his cross-appeal. Those issues we will deal with summarily since we agree that he is entitled to a new trial.
Arson prosecutions are unique because often they are based on opinions. Fires may start from natural causes, by accidental means, or even spontaneously, so if the State seeks to prove someone guilty of arson, most often it must rely on expert opinions to prove the cause and origin of that fire. In other words, it must show that someone intentionally started the fire. That cause and origin evidence is the heart of the State's case, and it follows, then, that an obvious line of defense for someone charged with arson is to attack and try to counter that cause and origin evidence. To mount such an attack, the defense must at least explore the possibility of using its own experts. By obtaining its own expert, the defense can offer the jury its view of the cause and origin evidence and not have it rely just on the opinions of the State's expert.
This need for expertise is readily apparent in this appeal, where the district court ruled the defense counsel's performance in this arson prosecution was deficient, prejudicial, and required a new trial. The court questioned the wisdom of the defense counsel waiting until less than two weeks before the jury trial to consult with someone who, as it turns out, had no actual expertise in determining the cause and origin of fires. He was a consultant who merely provided the defense team with some notes for use in the cross-examination of the State's expert witness. The witness offered no opinions about the cause and origin of this fire.
In vivid contrast to the small efforts of Robinson's defense counsel, expert testimony at Robinson's habeas corpus hearing revealed that the State's expert's opinions were vulnerable to attack because part of them were based on a process of elimination of causes and not on any actual physical evidence. This conclusion was not a product of the scientific method. This claim of flawed reasoning is something a jury could have pondered when deciding Robinson's guilt or innocence. Thus, Robinson did show the habeas corpus court not only deficient performance by his lawyer through lack of preparation, but prejudice to his defense as well.
This case is a study in contrasts: between lawyers and experts.
Contrasts between the preparation of Robinson's state defense attorneys and his federal public defenders are notable and significant. Contrasts, too, between the experts his state and federal defense counsel consulted, as well as the prosecution's expert who testified at his trial, and the expert who testified at the habeas corpus hearing are startling and unsettling. We can see why the court felt compelled to grant a new trial.
The first witness was Joe Huerter, the attorney appointed to represent Robinson at his trial. Huerter testified that he began his law practice in Topeka in 1984 and had been continuously practicing law since then. His legal practice consists of an almost equal split between criminal defense and family law, with occasional work on other types of law. He estimated that in 2009, he had represented defendants in about 12 homicide cases, and almost all of those were first-degree homicide charges.
Huerter testified that his contract provided his firm a flat fee for representing Robinson, but that fee did not include fees for an investigator. While he could have obtained a licensed investigator, he preferred to handle the investigation within the firm. Huerter testified that he did some investigation himself and other parts of it were handled by Belveal, an associate with his firm, and David McDonald, a law clerk who later became an associate in the firm.
Huerter hired no arson expert to testify at Robinson's trial, but he did contact an "arson investigation-type expert, cause and origin person," Gene Gietzen. Huerter stated that after the initial feedback from Gietzen, he decided that "it would not be beneficial to the defense to have him testify but rather to end up using him as a consulting expert to help develop the questions we might ask of the State's expert."
Huerter stated that Gietzen never provided any written report; he only talked to the attorneys on the phone. Huerter testified that Gietzen did not point out any flaw in the State's evidence:
"It was more just a discussion of, since he didn't think he could get up and say, with any clarity, that the cause and origin report was specifically wrong...
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