Jones v. Jones, Civil Action No. 96-2448.

• Citation: 988 F.Supp. 1000
• Decision Date: 19 December 1997
• Docket Number: Civil Action No. 96-2448.
• Parties: Jean B. JONES v. Johnny JONES, Warden.
• Court: U.S. District Court — Eastern District of Louisiana

988 F.Supp. 1000

Jean B. JONES v. Johnny JONES, Warden.

Civil Action No. 96-2448.

United States District Court, E.D. Louisiana.

December 19, 1997.

John Harvey Craft, Virginia Laughlin Schlueter, Federal Public Defender, New Orleans, LA, for Plaintiff.

Karen Godail Arena, District Attorney's Office, Orleans Parish, New Orleans, LA, for Defendants.

ORDER AND REASONS

BERRIGAN, District Judge.

The matter is before the Court on a petition for writ of habeas corpus by a prisoner in state custody under 28 U.S.C. § 2254. After receiving a Report and Recommendation from the Magistrate Judge and objections from the petitioner, JEAN JONES ("Jones"), the Court held an evidentiary hearing on October 3, 1997, and took the matter under submission. Having reviewed the pleadings, the state court record, the facts and the law, and having conducted an evidentiary hearing, the Court concludes that JONES' petition should be GRANTED.

PROCEDURAL HISTORY

JONES alleges she received ineffective assistance of counsel at her state trial. JONES was indicted for distribution of heroin in violation of La.Rev.Stat. 40:966. The offense carries a mandatory life sentence in prison. Pretrial motions were heard, including motions to suppress. After several continuances for various reasons, the case was tried on September 12, 1988.

At trial, a New Orleans Police Department undercover narcotics officer testified that he met JONES at the corner of Broad and Washington Streets in New Orleans on September 4, 1987, and bought a bundle of heroin¹ from her for $350 in previously marked bills. He, and another officer at the scene, testified that the deal had been prearranged. JONES was immediately arrested after the sale. She was searched and the money was retrieved along with additional drugs. The parties stipulated that roughly half of the drugs seized overall tested as heroin.

The trial was brief. The minutes indicate that the jury venire was summoned at 9:25 a.m. for voir dire examination. At 11:58 a.m., the jury returned a verdict of guilty as charged, after eight minutes of deliberation. The entire trial, including pretrial jury selection and post-trial jury deliberations, lasted only about two and a half hours.

LEGAL STANDARDS

An accused's Sixth Amendment right to the assistance of counsel is one of the most fundamental components of our criminal justice system. Through legal representation, the defendant's other pretrial and trial rights are secured. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

The right to counsel means the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

... the adversarial process protected by the Sixth Amendment requires that the accused have "counsel acting in the role of an advocate." (Citation omitted). The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated. As Judge Wyzanski has written: "While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators." (Citation omitted).

Cronic, 466 U.S. at 656-657, 104 S.Ct. at 2045-46.

Pretrial investigation is essential to the effective assistance of counsel. A lawyer must engaged in a reasonable amount of pretrial investigation and "at a minimum ... interview potential witnesses and ... make an independent investigation of the facts and circumstances of the case." Nealy v. Cabana, 764 F.2d 1173, 1177 (5th Cir.1985).

... strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

Strickland v. Washington, 466 U.S. 668, 690-691, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674 (1984). The necessity for investigation increases with the "seriousness of the offense and the gravity of the punishment." Bryant v. Scott, 28 F.3d 1411, 1417 (5th Cir.1994).

Ineffectiveness of counsel is clear if the attorney fails to investigate a plausible line of defense or interview available witnesses. These can hardly be considered strategic choices since counsel by his failure has not obtained the facts upon which such a tactical decision could be reasonably made. Nealy, 764 F.2d at 1178; Bryant, supra; Profitt v. Waldron, 831 F.2d 1245 (5th Cir. 1987); United States v. Gray, 878 F.2d 702 (3rd Cir.1989).

On the same day in May 1984, the United States Supreme Court rendered two significant decisions regarding claims of ineffective assistance of counsel. Cronic, supra; Strickland, supra. In Cronic, the Court held that "if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." Cronic, 466 U.S. at 659, 104 S.Ct. at 2046. No specific showing of prejudice is necessary. On the other hand, if counsel made errors but not so serious as to deny the right to counsel altogether, then the reviewing court must determine if prejudice to the defendant resulted. Strickland. Under Strickland, prejudice is established if the defendant shows that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Assessments of prejudice are necessarily fact-intensive, tied to the peculiar circumstances of each individual case. Nealy, 764 F.2d at 1179.

ANALYSIS

The first question to determine here is whether counsel's representation was so inadequate that it "entirely failed to subject the prosecution's case to meaningful adversarial testing," thus constituting a denial of JONES' Sixth Amendment rights without the necessity of finding specific prejudice. Cronic, 466 U.S. at 659, 104 S.Ct. at 2046. To this question, the answer is "yes."

In addition, the actions and inactions of counsel in this case were such that a "reasonable probability" exists that "but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Thus, under both the Cronic and Strickland criteria, JONES was denied the effective assistance of counsel.

(a) The Defense at Trial

The evidence in this case against JONES was strong, necessarily limiting the available defenses. But instead of exploring what possible defenses existed, trial counsel appeared to have abandoned the case early on. At trial, he presented a lackluster and to some extent incoherent theory of defense which he had not adequately investigated and which was contradicted by the evidence he had to know existed. He failed to meaningfully consult with his client, called her to testify without any preparation, and then in closing argument gave the case away to the prosecution.

The defense presented at trial appeared to be that JONES was high on drugs and thought what she was distributing was bunk, and not heroin². Assuming this could have been a valid legal defense to a distribution of heroin charge,³ it was so poorly investigated and presented as to be no defense at all.

Counsel began by waiving his opening statement depriving the jury of an explanation as to what the defense would be.⁴ He then stipulated that at least some of the packets allegedly sold by JONES to the undercover agent were in fact heroin and not bunk.

The first witness was Officer Donald Polk who participated in the undercover sale. On cross-examination, counsel asked Polk if JONES appeared high on drugs at the time of the sale, to which Polk answered no.⁵ Counsel then changed his tack and appeared to float out an entrapment theory, implying that Polk had initiated the sale. Officer Polk squelched that theory, stating in no uncertain terms that this was a prearranged drug sale, JONES knew exactly what was going on, she came for that purpose and when she got in the car, "we got straight down to business." (Tr. Trial p. 15). Despite Polk's emphatic rejection of counsel's implication, counsel returned to it later, by asking "And you're quite sure ... you didn't sort of initiate the sale, saying, hey, can you get something for me? No pushing her on to get the stuff," to which officer Polk again answered no, and reiterated that it was a pre-arranged sale.⁶ (Tr. Trial p. 17).

Officer Clarence Wethern testified next. He was a witness to the drug sale and participated in the arrest. He had testified previously at a hearing on a motion to suppress a statement made by JONES after her arrest. The statement was ruled admissible. Officer Wethern testified at trial, as presumably he did at the pretrial hearing, that JONES told the officers after her arrest that some of the packets were bunk but that some of them were heroin. Since that same information was...