LORD v WOOD, 9799025
U.S. 9th Circuit Court of Appeals
LORD v WOOD
BRIAN KEITH LORD,Petitioner-Appellee,No. 97-99025v.D.C. No.CV-94-00464-RTANA WOOD, Superintendent,Respondent-Appellant.BRIAN KEITH LORD,No. 97-99026Petitioner-Appellant,D.C. No.v.CV-94-00464-RTANA WOOD, Superintendent,OPINIONRespondent-Appellee.
Appeals from the United States District Courtfor the Western District of WashingtonBarbara J. Rothstein, Chief Judge, PresidingArgued and SubmittedNovember 19, 1998--San Francisco, CaliforniaFiled July 14, 1999Before: James R. Browning, Alex Kozinski andThomas G. Nelson, Circuit Judges.Opinion by Judge KozinskiSUMMARY
_____________________________COUNSEL John J. Samson, Assistant Attorney General, Olympia, Wash-ington, for the respondent-appellant-cross-appellee.Peter A. Camiel, Mair, Camiel & Kovach, Seattle, Washing-ton, for the petitioner-appellee-cross-appellant.Sheryl G. McCloud, Law Offices of Sheryl Gordon McCloud,Seattle, Washington, for the petitioner-appellee-cross-appellant.
_____________________________OPINION KOZINSKI, Circuit Judge:In this capital case we consider whether counsel's failure tocall, or personally interview, three witnesses who claim tohave seen the victim alive after petitioner is supposed to havekilled her, constitutes ineffective assistance of counsel underStrickland v. Washington,
466 U.S. 668
(1984).BackgroundOn the afternoon of September 16, 1986, 16-year old TracyParker went out riding a horse belonging to her neighborsWayne and Sharon Frye. Tracy visited some friends early thatevening and, as she was leaving, informed one of them thatshe planned to return the horse to the Fryes' stable and then"go straight home." At about 8 p.m., Tracy called a friendfrom the Fryes' residence. When Sharon Frye came homebetween 8:20 and 8:30, she found the house empty.Brian Keith Lord was a carpenter who was helping theFryes remodel their house. The Fryes had told Lord wherethey kept an extra set of keys, so he could enter the house ashe pleased. Lord had met Tracy through the Fryes and had onoccasion given her rides home in his brother Kirk's pickup.At 7:44 on the evening of Tracy's disappearance, Lord calledhis apartment from the Fryes' residence to tell his girlfriendhe would be late for a dinner party they were hosting that eve-ning.At about 8:45, Lord arrived at Kirk's house driving hisbrother's blue pickup. Don and Radwyn Carroll, Kirk's in-laws, were there when Lord pulled up. The Carrolls hadreturned from dinner at 8:30. Don testified that Lord drove up"pretty fast" to the workshop next to the house, and that thetruck was "smoking and steaming." Don also noticed thatLord was shirtless even though it was only 58 degrees out-side. From inside the house, Don saw Lord wash out the backof the pickup with a hose and remove from it an orange orbeige blanket. When Don came out to speak to him, Lord saidhe was building a stereo cabinet in Kirk's workshop. Donasked to see it, but Lord said that he wanted his brother to seeit before anyone else. Don did not enter the workshop thatevening. Kirk arrived home at about 9 o'clock and talked toLord in front of the workshop for a while, but Lord did notshow him the cabinet and Kirk did not enter the workshop.Lord arrived at his apartment at 10:15, several hours latefor the dinner party. He was to have brought a dining table hewas making, but showed up empty-handed. Lord went to thebathroom soon after his arrival and stayed there for sometime, prompting some of his guests to leave. When Lordemerged from the bathroom, he acted somewhat strangely andtwo guests noticed that there was a fresh wound on his arm.Lord did not tell anyone where he had been that evening, butdid say that he had been working late.Tracy's clothing and a red towel were found near a dirtroad during the weekend of September 20th, and an orange U-Haul blanket resembling the one Don Carroll had seen Lordremove from the truck turned up in a nearby construction areaon September 22nd. Tracy's semi-nude body was discoveredon September 30th, a fortnight after her disappearance. Lordwas arrested that evening. The medical examiner subse-quently determined that Tracy had been killed by a number ofblows to the head from a blunt object. There was also evi-dence that she had been raped after being knocked uncon-scious.The State's theory was that Lord offered Tracy a ride homefrom the Fryes' place sometime around 8 o'clock, but hadtaken her instead to Kirk's nearby home. No one was therewhen Lord and Tracy arrived a few minutes after 8, and Lordforced or lured Tracy into Kirk's workshop where he struckher several times about the head with a hammer or similartool. He proceeded to rape her in his pickup, then drove offwith her body in the back. According to the prosecution, allof this occurred before the Carrolls arrived at Kirk's home at8:30. Before returning to Kirk's at 8:45, Lord dumped Tracy'sbody where it was subsequently found (about 3 miles fromKirk's home), and took off his bloodstained shirt.The jury found Lord guilty of aggravated first-degree mur-der. After a special sentencing hearing (where the State waspermitted to cross-examine Lord after his allocution), the jurydetermined that there were no mitigating circumstances suffi-cient to warrant leniency and, based on that determination, thejudge sentenced Lord to death.The Washington Supreme Court affirmed and the U.S.Supreme Court denied certiorari. After exhausting his stateremedies by filing an unsuccessful personal restraint petitionwith the Washington Supreme Court, Lord filed this federalhabeas petition. The district court granted the petition as toLord's death sentence because the state trial court had inap-propriately permitted Lord to be cross-examined after his allo-cution, which ruling the State now appeals. Lord cross-appeals the district court's denial of his three dozen guilt-phase challenges, but we need consider only one.I The right to counsel guaranteed to criminal defendantsby the Sixth Amendment "is the right to the effective assis-tance of counsel." McMann v. Richardson,
397 U.S. 759
, 771n.14 (1970); see also Strickland,
466 U.S. at 686
. TheSupreme Court in Strickland set the bar high for ineffectiveassistance claims. Petitioner must first establish that "counselmade errors so serious that counsel was not functioning as the`counsel' guaranteed the defendant by the Sixth Amendment."Strickland,
466 U.S. at 687
. Recognizing that "it is all tooeasy for a court, examining counsel's defense after it hasproved unsuccessful, to conclude that a particular act or omis-sion of counsel was unreasonable," the Court stated: "A fairassessment of attorney performance requires that every effortbe made to eliminate the distorting effects of hindsight, toreconstruct the circumstances of counsel's challenged con-duct, and to evaluate the conduct from counsel's perspectiveat the time." Id. at 689. Such an assessment is highly deferen-tial to defense counsel's decisions at trial, with the attorneypresumed to have rendered professionally adequate assis-tance. See id. at 690. A petitioner may overcome this pre-sumption only by demonstrating that "the identified acts oromissions were outside the wide range of professionally com-petent assistance," id., meaning that the challenged actioncannot reasonably be considered sound trial strategy under thecircumstances of the case, see id. at 689. Even if petitioner shows that his lawyer's performancewas deficient, he must still prove that this prejudiced hisdefense. See id. at 687, 693. Though it is not enough for peti-tioner to establish merely that "the errors had some conceiv-able effect on the outcome of the proceeding," he is notrequired to "show that counsel's deficient conduct more likelythan not altered the outcome in the case." Id. at 693. To proveprejudice, petitioner must demonstrate only that "there is areasonable probability that, but for counsel's unprofessionalerrors, the result of the proceeding would have beendifferent," with a reasonable probability defined as "a proba-bility sufficient to undermine confidence in the outcome." Id.at 694.Lord's claim of ineffective assistance turns on counsel'sfailure to call to the stand three witnesses who, if believed,would have cleared Lord of the murder. However, it is impos-sible to judge any one piece of evidence without understand-ing the rest of the case. Omission of an item of proof mayseem foolish until one understands the tradeoffs counselwould have had to make to include it. Did the item contradictother defense evidence? Was it so inherently implausible asto undermine defense counsel's credibility? Such questionscannot be answered without a thorough understanding of thecase as presented to the jury. We therefore describe what hap-pened at trial before considering the three absent witnesses.IIThe Case Against LordPhysical EvidenceTo tie Lord to the murder, the State presented physical evi-dence taken from Tracy's body, her clothing, the red towel,the orange blanket and Kirk Lord's pickup and workshop. TheState linked fragments of wood and paint chips, washed sand,sawdust and fibers found on Tracy's body and clothing tosimilar items found in the pickup and the workshop. Type Ohuman blood, Tracy's blood type, was found on her clothing,the towel and the orange blanket. The bloodstain on the blan-ket contained an enzyme found in only 9% of the caucasianpopulation, but which was present in Tracy's blood. The Statealso introduced a matchbook taken from the pickup that wassimilar to one found under Tracy's clothing.A coarse body hair that could have come from Lord wasfound on the blanket, as was a head hair sharing the character-istics of Tracy's hair. Another hair resembling that found onthe hairbrush of Lord's girlfriend was discovered on one pieceof Tracy's clothing. Coarse body hairs that were similar toboth Lord's and Tracy's hair were on the red towel.Most of the State's blood-related evidence came from KirkLord's workshop. Donald Phillips, a state-employed forensicscientist, applied a substance called leuco-malachite green tovarious surfaces in the workshop. Leuco-malachite green is areagent that turns green when it comes in contact with bloodresidue. It is not, however, a specific test for blood, butmerely a "presumptive" one because it also reacts to rust,some vegetable juices and certain metals. Phillips testifiedthat the tests he conducted revealed a substance consistentwith blood on the workshop floor and other surfaces. He alsotestified to seeing a positive reaction around the perimeter ofa grease stain that Lord had deliberately put on the workshopfloor after the murder, presumably to cover traces of blood.On the inside of the workshop's garage door there were dropsof Type O blood, which appeared to have hit the door at ahigh velocity.However, Phillips was not the ideal witness. He admittedthat he had mishandled the testing of a claw hammer, the sup-posed murder weapon, by spraying it with an excessiveamount of leuco-malachite green.1 He also admitted that hehad tried to cover up his mistakes by lying both in an officialreport and to a superior about the method he used to apply theleuco-malachite green, and that he had been forced to resignbecause of an internal affairs inquiry into his misconduct inthe Lord investigation.The State's medical examiner testified that Tracy had beenkilled ten to twenty days before the October 2nd autopsy bynumerous blows to the head with a blunt instrument. A woundon Tracy's genitals and the absence of any defensive woundson her body suggested that she had been raped after beingknocked unconscious. The medical examiner concluded thatall of Tracy's injuries could have been caused by a hammersimilar to the one found in Kirk Lord's workshop.The State also showed the jury a photograph of the injuryon Lord's arm that his guests had noticed on September 16th.Lord's StatementsIn his first interview with police on September 24th, a littleover a week after Tracy's disappearance, Lord said that hehad last seen Tracy about two weeks earlier. When askedwhether he had visited the Fryes' house on September 16th,he said he had been there for about five minutes to make aphone call to his brother between 6 and 7 p.m. He claimed tohave then driven to his brother's house where he "partied" forabout an hour. Lord said that no one was at his brother'shouse while he was there and that he returned to his apartmentbetween 9 and 10 o'clock.On September 27th, Lord told two detectives that he hopedTracy was only a missing person. Later that same day, andbefore Tracy's body was discovered, Lord commented to afriend that he was probably the last person to have seen heralive.Lord had his second full interview with police three dayslater. He provided a similar account of his whereabouts andactivities on September 16th, but this time he said that he hadarrived at Kirk's house between 8 and 9 p.m. and that the Car-rolls were there the entire time. According to police, Lordappeared nervous and told them that "he becomes a differentperson and he loses control" after smoking marijuana anddrinking beer. He claimed not to have had any marijuana orbeer for about three weeks.Testimony from Machinski and DeMarsRobert Machinski, a co-worker of Lord's, testified that heand Lord had used an orange U-Haul blanket at Kirk Lord'sworkshop on the day before Tracy disappeared. He furthertestified that, a few days later, Lord had rubbed grease intothe floor of the workshop for no reason Machinski could dis-cern. Machinski also claimed that after the arrest Lord hadoffered him inducements to change his statement to policeregarding the blanket. In addition, Lord apparently told hisfriend Thomas DeMars that he would give his grey pickupand dirt bike to anyone who would claim to have been drivingKirk's blue pickup between 7:30 and 8 p.m. on the 16th.DeMars testified that Lord asked him to do it himself or findsomeone else who would.Testimony of Harvey and BelgardRex Harvey, an inmate assigned to Lord as a "trusty" whileLord was in jail awaiting trial, and Sonny Belgard, an inmateoccupying a cell near Lord's, testified that Lord had confessedthe crime to them. Harvey claimed that Lord told him the fol-lowing: "I asked her to go cruising around with me at thehouse I was remodeling, that's where she kept her horse. I hither in the head with a hammer, raped her in the back of mytruck, threw her in a ditch." According to Harvey, Lord alsosaid he "got blood on a U-Haul blanket." Belgard recounteda similar confession with the added detail that Lord hadwrapped Tracy's body in a blanket and threw it in the backof the truck before dumping it later on.Other TestimonyThe State also presented testimony from the investigatingdetectives to flesh out its theory of the case. Notable was thetestimony of Detective Reichert who examined the scenewhere Tracy's body was found. Reichert testified that themurderer had probably gotten Tracy's blood on him becausethe body had been carried, not dragged. This supported theState's theory that Lord had removed, and soon thereafterdestroyed, his shirt and other blood-stained clothing. Detec-tive Reichert also testified that the murderer had not tried tohide Tracy's body, which was consistent with the State'sargument that Lord had hurriedly dumped the body beforerushing back to Kirk's house to clean up.Lord's DefenseDefense counsel's strategy was to attack the reliability ofthe State's physical evidence. In particular, they exploitedPhillips's admissions of incompetence and misconduct in aneffort to cast doubt on the physical evidence he claimed tohave gathered at the workshop. They also elicited testimonyfrom an officer who was with Phillips that he had not wit-nessed any reaction by the leuco-malachite green to the greasespot on the workshop floor. The defense also highlighted sub-sequent tests of the claw hammer by state forensic expertswhich had revealed no evidence of bloodstains or other bodilyfluids. See note 1 supra. The defense presented testimonyfrom its own forensic expert and offered other evidence as tothe unreliability of the forensic testing methods employed bythe Washington State Crime Laboratory.As for the two inmates, trial counsel tried to impeach Har-vey with certain inconsistencies in his testimony and by pre-senting evidence of his prior convictions for fraud-relatedcrimes. Lord's attorneys also offered testimony from anotherinmate who claimed that Belgard had admitted to fabricatingthe confession in exchange for certain prison privileges,including a five-day furlough with his pregnant wife. Trialcounsel also suggested that Harvey and Belgard had come upwith the details of the alleged confessions by reading newspa-per stories about Tracy's murder. Similarly, they tried to raisedoubts about the veracity of Machinski and DeMars's testi-mony by arguing that the two men were either lying or hadmisinterpreted Lord's comments.* * *The State's case against Lord was strong but not ironclad.It was marred by the misconduct and deception of one of itskey investigators, a serious problem for a case that waslargely circumstantial. While the evidence of other witnesseswas helpful, no witness had seen Tracy and Lord together onthe day of the murder. Nor was the State able to pinpoint theexact time of the murder, except by suggesting that it musthave happened during the 45 minutes Lord could not accountfor. Lord, for his part, had no alibi and no alternative theoryof how the crime might have been committed. His defenseconsisted entirely of casting doubt on various aspects of theState's case. We next consider the evidence the defense law-yers declined to present and how it might have dovetailedwith the defense strategy.IIIThe Three Alibi WitnessesTwo days after Tracy disappeared, a police investigator,Officer Avery, contacted two of Tracy's classmates, PaulHolden and Robert Huff, Jr. They told Avery that they hadseen Tracy walking along a local road on the previous day,September 17th. Holden, Huff and a third boy, Greg Ayers,had been driving together when they passed a young womanthey believed was Tracy. According to Avery's report, afterhe "questioned them several times about the location, day andtime," Holden and Huff remained "adamant that they werecorrect and said they are familiar with Tracy and know herwell enough to recognize her." A few days later, on Septem-ber 21st, another policeman, Officer Lewis, spoke withHolden, Huff and Ayers, about what they had seen on Sep-tember 17th. All three confirmed that they had seen Tracy thatday, which was a day after Lord is supposed to have killedher.In October 1986 and again in January 1987, the three boystold essentially the same story to defense investigators hiredby Lord's first attorney, Mark Yelish, and his trial counsel,Ron Ness and Judith Mandel. Though there were some incon-sistencies in their recollections of what the young woman waswearing, and Huff was somewhat less certain about the exactday than he had been during his September 18th police inter-view, none of the boys backed down from the assertion thatit was Tracy they saw walking along the road on September17, 1986.2 Huff and Holden also firmly discounted any sug-gestion that the young woman might have been Tracy's oldersister, Shannon, whom they both knew.3 None of the boys had any connection to Lord. Though theyknew Tracy from high school, they were not her former boy-friends or schoolyard enemies, but mere acquaintances. Allthree were willing to testify; none had anything to fear or any-thing to gain. If the jury had accepted Holden, Huff andAyers's story that they had seen Tracy that evening, theState's case would have suffered a serious blow, dependent asit was on Lord's mysterious whereabouts and activitiesbetween 8 and 8:45 on the evening of September 16th. TheState presented no evidence that Lord could have killed Tracyafter the time these boys supposedly saw her on September17th.What did defense counsel do with these witnesses? Nothingat all. Lord's trial attorneys testified at an evidentiary hearingin district court that they simply did not believe Holden, Huffand Ayers, and had been concerned that putting them on thestand would have harmed their own credibility with the jury.None of the lawyers ever talked to the boys; rather, they reliedon the reports of police and investigators. But the first investi-gator's October 1986 reports merely described the boys'accounts, which were substantially identical to the ones theyhad given the police in September. The second investigator'sJanuary 1987 reports did refer in very general terms to somewavering on which day the boys had seen Tracy, and men-tioned the absence of a temporal landmark that would haveindelibly fixed that day in their minds. However, nowhere didthese reports, or those of police investigators, suggest that theboys' stories were unworthy of belief.Police Reports of September 18 and 21, 1986On September 18, 1986, two days after Tracy's disappear-ance, Officer Avery reported that Holden and Huff had toldhim the following: [T]hey saw Tracy yesterday (9-17-86) at around noon near the Scandia `dip' (Virginia Loop & Viking Way intersection). They said she was wear- ing blue jeans and some description of sweat shirt, which they were unsure of. They said she was walk- ing towards Hwy 308 and looked like she was depressed (hanging head, slow gait, etc.). I ques- tioned them several times about the location, day and time. Both boys were adamant that they were correct and said they are familiar with Tracy and know her well enough to recognize her.Three days later on September 21st, Officer Lewis spoke toHuff who repeated the story he had told Officer Avery: HUFF stated that he saw TRACY Eastbound on Hwy 308, towards Keyport, from Viking way, last Wednesday [September 17, 1986]. HUFF stated that TRACY was wearing blue jeans and a multi colored flannel shirt, and that he was positive that it was TRACY, as he saw her full face as they drove by. . . . HUFF said that TRACY was walking alone, and seemed depressed, but did not appear to have any- thing else wrong with her.Officer Lewis spoke to Ayers and Holden that same day.Ayers reported that "he also saw TRACY walking towardsKeyport from Viking Way on Wednesday, and thought shewas wearing something yellow, possibly a jacket. AYERSstated that there did not seem to be anything wrong withTRACY, and she was alone." Holden provided Officer Lewiswith a more detailed description of what he remembered,though he told Lewis that he and his friends had driven byTracy between 5:30 and 6 p.m. on the 17th whereas OfficerAvery's report had put the time at noon: I . . . asked Paul [Holden] when the last time he had seen Tracy PARKER was and he stated Wednesday, 09-17-86, at approximately 5:30 to 6:00 PM. I asked him if he was sure on the date and time and he stated yes, he was positive. I asked where he had seen her and he stated it was just prior to the intersection of Silverdale Way and Viking Way and 308 and Ban- gor Road which is Luoto Road. Paul stated she was walking on the north side of Highway 308 toward Keyport/Scandia area which was located on the north side of the road. . . . I asked him if he got a real good look at her and he stated yes, all three in the vehicle did get a look at her because they mentioned to themselves of who she was when they had seen her. . . . I asked him if he knew what she was wear- ing and he stated blue jeans and a plaid button-up shirt. I asked if any jacket was seen and he said no.Holden also explained why he was certain he saw Tracy onSeptember 17th: I . . . asked [Holden] if he was sure on the date he had seen Tracy PARKER and he stated he was posi- tive because of AYERS. I had him explain and he stated on Wednesday he wouldn't have gone down that way or come back and he had checked and all three of them were in the vehicle on Wednesday (meaning AYERS, him and HUFF) and they went down to pick up AYERS and they were driving back up away from AYERS residence on 308 when they saw Tracy.Though there were some discrepancies in the boys' state-ments about what the young woman was wearing and the timeof day they saw her, there is no indication from the policereports that Holden, Huff and Ayers wavered in their beliefthat they saw Tracy walking alone near Highway 308 andViking Way on September 17th.Defense Investigators' Reports of October 1986 andJanuary 1987Scott O'Neal, a defense investigator hired by Lord's firstattorney, interviewed Holden on October 13, 1986. Holdentold O'Neal that he, Huff and Ayers had seen "a girl whomthey believed to be Tracy Parker on Wednesday, the day afterher disappearance between the hours of 5:30 p.m., and 6:00p.m." Holden went on to say that "he could not testify that hewas 100% factually certain that it was Tracy as he only hada five second glance at the girl. He indicated that the girllooked like Tracy Parker to him as well as Bob Huff and GregAirs [sic]. The three of them agreed that it was Tracy Parker."O'Neal reported that Holden "indicates that he is familiarwith Shannon Parker, Tracy's sister. He is certain that the girlthat they saw was not Shannon Parker." Holden also reiteratedwhat he had told Officer Lewis that "he was certain that theday of the week was Wednesday [September 17, 1986]because [Ayers] was in the car. [Ayers] was not with him onTuesday." Finally, O'Neal noted Holden's claim that "none ofthe boys were drinking that day and none had been smokingany pot on that day. They had spent the day clam digging onVirginia Point Road."On October 27th, O'Neal interviewed Huff who elaboratedon the story he had told to Officers Avery and Lewis: After finishing with clam digging [Huff, Holden and Ayers] went to Hadlock and then returned to the Poulsbo area where they pick up Greg at his parent's house. They then headed to [Holden's] house. At the intersection in front of the subbase at Keyport they saw Tracy Parker. [Huff] described her as being dressed in a flannel top wearing blue jeans. He could not recall the color of the flannel shirt.Huff also claimed to have gotten a good look at the girl: "Heindicated also that the car was slowing to a stop at the timethat they saw Tracy. He indicated that Tracy looked at thecar." Huff was no less certain than Holden that the girl theysaw was not Tracy's sister and that the date was September17th: He knows Tracy's older sister, Shannon. He had two classes with Shannon during his senior year. He has talked with Shannon on numerous occasions. There is no doubt in his mind that the girl that they saw walking along the road was not Shannon Parker. He is also absolutely certain that it was Wednesday eve- ning [September 17, 1986] that they saw Tracy walking on the road. He has no specific recall of what they did on Tuesday. On that following Thurs- day they played pickleball.On October 21st, Ayers gave O'Neal a similar account ofwhat happened that day: [Ayers, Holden and Huff] were heading to [Hold- en's] house after clam digging on Virginia Point.. . . [They] all saw Tracy walking on the side of the road at the intersection just prior to entering the base at Keyport on Highway 308. . . . He is certain that it was Wednesday [September 17, 1986] that they saw Tracy and believes it was between 4:00 and 6:00 p.m. He indicates that he is reasonably certain that he was not at that location on Tuesday [September 16, 1986]. He could not tell me what it was that he did on Tuesday. He indicates that he does recall what he did on Wednesday of that week. He described the weather as being overcast and somewhat drizzlly on Wednesday.Unlike Holden and Huff, however, Ayers had "no recall ofhow Tracy was dressed."Bob Zornes, a second investigator hired by Lord's trialcounsel, interviewed Holden and Ayers on January 6, 1987,about three and a half months after the boys gave their firststatements to police. Zornes concluded that "their report thatthey had seen Tracy Parker on September 17th remainedunchanged." He commented, however, that "when pressedabout the exact day they would at times waver. Holden saidthat he and ROBERT HUFF, JR. had gone clam digging oneither Monday or Tuesday of the week beginning September15, 1986, and that Greg Ayers joined them on the second day,which would have been either Tuesday or Wednesday."Zornes also remarked that "we tried to time reference the inci-dent but about all that they could come up with was that theythought that they were told by Huff's father about Tracy's dis-appearance the next day, which they said was Thursday. Oth-erwise their activities were not unusual."Zornes interviewed Huff by telephone two weeks later onJanuary 19th. Huff "recalled the day that he saw Tracy Parkerwalking alongside the highway. However, he could not recallthe exact date of the sighting, nor the day of the week." Huffthen qualified his uncertainty: "He said that the report that hegave to the police would have been the most accurate, sinceit was fairly recent in relation to when he had seen her."4Zornes noted that Officer Lewis had taken Huff's statementon September 21, 1986, and that "[Huff] told Lewis that itwas Wednesday [September 17th] that he had seen [Tracy]."The details of Huff's statement about where he saw the girl,her appearance and his certainty that she was not Tracy's sis-ter remained essentially unchanged. As for providing a fixedtime reference, Zornes reported that "[Huff] was not able toreference the date any better than previously, saying that hewould have to stand by his earlier statement to the police inwhich he said that he observed her on Wednesday."Though the reports prepared by O'Neal and Zornes revealsome haziness in the boys' memories, none offers any conclu-sions as to the accuracy and credibility of their story, or sug-gests that the boys expressed any significant doubt that theysaw Tracy alive on Wednesday, September 17, 1986.Affidavits and Testimony of Holden, Huff and AyersIn support of his federal habeas petition, Lord presentedaffidavits and testimony from the now adult Holden, Huff andAyers at an evidentiary hearing before the district court. Hold-en's affidavit reaffirmed the story he had told police anddefense investigators in 1986: On September 17, 1986, I went clam digging with Greg Ayers and Bob Huff at the private beach near Keyport. . . . As we were returning at about 5:30 that afternoon, we saw a girl that we recognized as Tracy Parker walking east along the north shoulder of Highway 308 about 100 yards east of the intersection with Viking Way. . . . I was driving the car and got only a brief look at her. But we all agreed that it was Tracy Parker we saw. The location was within a mile or two of Tracy's home, and we assumed at the time that she was walking home.Holden also stated that, [t]here was no question in our minds that this was on Wednesday, September 17. . . . Greg Ayers and I have talked about this recently and we still agree that Tracy Parker was the girl we saw walking along the highway that afternoon. . . . After being interviewed by a police officer and the defense investigator, I was somewhat surprised that I was not asked to tes- tify in the murder trial. If I had known at the time that Tracy allegedly was killed the day before we saw her, I really would have been surprised.Holden's testimony at the evidentiary hearing confirmed thecontents of his affidavit: QUESTION: At the time that you related that infor- mation [about seeing Tracy on Wednesday, Septem- ber 17th] to the police, were you confident about the information you were giving police? ANSWER: I was confident. QUESTION: You were confident about the dates you were relaying to the police? ANSWER: I was confident. QUESTION: And you were positive that it was Tracy Parker that you had seen? ANSWER: I'm absolutely positive it was Tracy Par- ker.The affidavits and testimony of Ayers and Huff closely corre-spond to Holden's, with both men representing that they weresure of the date and the girl's identity when they spoke topolice and investigators in the months following Tracy'smurder.5Ness and Mandel's TestimonyAt the district court evidentiary hearing, Ron Ness andJudith Mandel, Lord's trial attorneys, testified as to why theydid not put Holden, Huff and Ayers on the stand. Ness testi-fied that he had been in possession of the police and firstdefense investigator's reports, but had decided not to pursuethis angle because "[Holden, Huff and Ayers's ] observations,based on our investigation, probably were not helpful to whatour defense was. Taking into consideration everything." Nessfurther explained that "[w]e did not believe that [Holden, Huffand Ayers] were accurate. And we were concerned about ourcredibility with the jury in presenting testimony that may nothave been beneficial." However, when asked whether theboys' statements were consistent with their defense that Lordhad not murdered Tracy, Ness responded that "[a]s far aswhether or not Mr. Lord had committed the crime, they wereconsistent with that, yeah."On cross-examination, Ness had this to say of Zornes'sreport: If I recall, the gist [of Zornes's report] was that the three individuals were not very positive in either identification or timing. . . . We felt that [calling Holden, Huff and Ayers as witnesses] would affect our credibility with the jury because of the nature of what we had discovered in terms of their interviews with our investigator and, I believe, with the police.The court tried, but failed, to elicit more specifics aboutNess's concerns: COURT: What was it about [Holden, Huff and Ayers's] anticipated testimony that made you think it would damage the defense credibility? Was it what Zornes said, something Zornes said? ANSWER: That they were not positive that the-- that, like I said, the identification and/or the timing was not real strong. And there was such a--if I recall, such a large amount of evidence indicating the last time she'd been seen was on the 16th . . . .Ness conceded that his judgment of the boys' credibility wasbased entirely on the police and defense investigators' reports,as neither he nor his co-counsel ever spoke to the boys them-selves.When asked why Holden, Huff and Ayers were not calledas witnesses, Mandel gave an even vaguer answer: If there were three young men who said they saw her and--said they saw her and knew it was that date and knew it was that time, when we went back through and evaluated that testimony, we decided not to present it. I mean, I don't know how else to explain that to you. Other than it did not appear to us to be testi- mony as you're characterizing it. That is, testimony that had this--that linked the time, the place and the date as you have said it.Mandel was then asked whether she believed "that if youpresented the testimony of people who claimed to have seenTracy Parker after September 16th, that that would open thedoor to any damaging evidence that would harm Mr. Lord?"She responded, "Open the door--no. I don't think it wouldopen--I don't know how it would have opened any door thatwould have harmed him."IV "A lawyer who fails adequately to investigate, and tointroduce into evidence, [information] that demonstrate[s] hisclient's factual innocence, or that raise[s] sufficient doubt asto that question to undermine confidence in the verdict, ren-ders deficient performance." Hart v. Gomez, No. 98-15932,1999 WL 387247, at *3 (9th Cir. June 15, 1999). Mindful ofthe deference we owe counsel's trial strategy, we neverthelessconclude that counsel's cursory investigation of the three pos-sible alibi witnesses, and their subsequent failure to put themon the stand, constitute deficient performance that was preju-dicial to Lord's defense. Though trial counsel claim that the statements ofHolden, Huff and Ayers were vague and/or inaccurate, thepolice and investigator reports on which they relied in 1987do not support their judgment. Holden and Huff spoke to thepolice the day after they saw the girl they thought was Tracy,and again a few days later. These reports were taken the clos-est in time to Tracy's disappearance and, not surprisingly,contain the fewest discrepancies.6 The most important ele-ments of the boys' statements remained consistent in eachinterview with police and defense investigators during thefour-month period following Tracy's disappearance and mur-der: After going clam digging together on Wednesday, Sep-tember 17, 1986, they saw a girl they believed was Tracywalking near Highway 308, and were certain the girl was notTracy's sister, Shannon. Nor did any of the police or defenseinvestigators conclude that the boys' statements were inaccu-rate. Zornes, for example, merely reported that the boys couldnot come up with a compelling temporal landmark to fix theday they saw Tracy. Contrary to trial counsel's impressions, Holden, Huffand Ayers never expressed any significant doubt about thesighting. In 1986 and 1987, they steadfastly told the policeand defense investigators that they were sure about their story.7To this day, none of the three has wavered from his belief thatit was Tracy Parker whom they saw on September 17, 1986.In fact, Ayers maintained in his affidavit that "I have neversuggested to anyone that there was doubt [about seeing Tracyon September 17]," a statement echoed by Huff who said inhis affidavit that "I have never expressed doubt about theidentification or the date."Though the boys had slightly inconsistent recollections ofthe sighting, all of the discrepancies were minor and turned onthe kind of highly specific details that eyewitnesses oftenremember differently. Cf. United States v. Ginn, 87 F.3d 367,369 (9th Cir. 1996) (discrepancies in eyewitness accounts ofwhat a robber was wearing and whether he displayed a gundid not render the testimony insufficient to support the rob-ber's conviction). After carefully reviewing the various state-ments given by Holden, Huff and Ayers over the years, weare struck by the monotonous consistency of their stories andthe steadfastness with which they keep insisting that it wasTracy Parker they saw on September 17, 1986. Trial counsel's failure to present their testimony was allthe more questionable in light of the weaknesses in the prose-cution's case against Lord. The prosecution had no DNA evi-dence or witnesses to the murder; no one had seen Tracy andLord together on the day she disappeared; none of the tracephysical evidence introduced at trial conclusively tied Lord tothe crime; and much of the blood-related evidence was taintedby Phillips's mishandling of the leuco-malachite green tests,not to mention his subsequent attempts to cover up his mis-takes. Holden, Huff and Ayers's mutually reinforcing state-ments were probably the strongest evidence of Lord's inno-cence that trial counsel could have offered. The case theyactually presented consisted solely of attacks on the reliabilityof the State's physical evidence and the credibility of its wit-nesses; they presented no contrary physical proof, no satisfac-tory explanation of the inconsistencies in Lord's statementsabout his whereabouts on the evening of Tracy's disappear-ance and, perhaps most importantly, no alibi. Holden, Huffand Ayers, three young men with no ties to Lord and with noreason to lie, could have given Lord a formidable defense:The victim was seen walking around well after the time Lordwas supposed to have killed her. Had the jury believed the boys' testimony, Lord's suspi-cious behavior on the evening of September 16th could havebeen seen as odd but hardly indicative of murder. Similarly,his efforts to influence testimony might have been dismissedas an innocent man's desperate attempt to concoct an alibi.This would have left Lord's jail-house confessions to wit-nesses who had been partially impeached and, in any event,were subject to doubt because of their evident self-interest inpleasing the prosecution. Presenting the testimony of the boyswould not have entailed significant costs in terms of thedefense strategy. Ness and Mandel conceded that the boys'statements dovetailed with their defense and would not haveopened the door to any damaging evidence. Nor would theproffer of three witnesses, who were unrelated in any fashionto the defendant or the victim, have tainted Lord's attorneys.The jury might have believed the boys were mistaken, butcertainly would not have thought that counsel was presentingmanufactured testimony. We would nevertheless be inclined to defer to counsel'sjudgment if they had made the decision not to present thethree witnesses after interviewing them in person. Few deci-sions a lawyer makes draw so heavily on professional judg-ment as whether or not to proffer a witness at trial. Awitness's testimony consists not only of the words he speaksor the story he tells, but of his demeanor and reputation. Awitness who appears shifty or biased and testifies to X maypersuade the jury that not-X is true, and along the way castdoubt on every other piece of evidence proffered by the law-yer who puts him on the stand. But counsel cannot make suchjudgments about a witness without looking him in the eye andhearing him tell his story.8 Here, counsel appear to have made their decision toexclude the three witnesses based on a vague impression--apparently a misimpression--that the police and investigatorswho spoke to the witnesses did not find them credible. Wefind no such suggestion in the various reports, and thisimpression may have been dispelled had counsel talked to theboys. Having now heard their story--from their affidavits anddistrict court testimony--we believe a competent attorneywould not have failed to put them on the stand. 9 We cannot say that the government's case was sostrong that the testimony of these three witnesses could nothave raised a reasonable doubt in the minds of the jurors.Rather, we find the possibility that their testimony would haveled to Lord's acquittal to be "sufficient to undermine confi-dence in the outcome." Strickland,
466 U.S. at 694
. If Holden,Huff and Ayers had testified, the State might still have wona conviction by exploiting the inconsistencies in theiraccounts or convincing the jury that it was Tracy's sister theysaw that day. That, however, would be a very different case.As it is, we find ourselves "in grave doubt as to the harmless-ness of an error that affects substantial rights, " and must con-clude that counsel's omission of this evidence prejudicedLord's defense. O'Neal v. McAninch,
513 U.S. 432
, 445(1995).We have found similar omissions of potentially exculpatoryevidence to constitute deficient, and prejudicial, performanceby counsel. We held in Brown v. Myers , 137 F.3d 1154, 1158(9th Cir. 1998), that trial counsel's failure to investigate andput on the stand possible alibi witnesses constituted ineffec-tive assistance which "prejudiced [petitioner ] to the extentthat it undermines confidence in the outcome of his trial." InSanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994), Sand-ers's brother made out-of-court confessions to the murder forwhich Sanders was convicted. We determined that counsel'sfailure to call the brother to testify at trial or, if he invoked theFifth Amendment, to introduce the brother's extra-judicialstatements, was professionally deficient performance. See id.at 1457-60. Such evidence would clearly have provided astrong defense and "[counsel's] failure to investigate [was]inexplicable, as [was] his failure to utilize[the brother's] con-fession, except as the result of incompetence andindifference." Id. at 1459. In Hart v. Gomez, 1999 WL387247, Hart was convicted of molesting his daughter duringvisits to a camping resort. His daughter had testified that"Hart never molested her during visits on which he wasaccompanied by another adult." Id. at *1. Hart's girlfriend tes-tified at trial that she had been with him during all of the tripsalleged in the information, and had witnessed no molestation.See id. Hart's trial counsel, however, did not introduce gro-cery receipts and the girlfriend's personal calendars, whichwould have corroborated her testimony that she was presentat all of the trips and, thereby, "demonstrate[d] [Hart's] fac-tual innocence [.]" Id. at *3. We concluded that "[the girl-friend's] evidence, if believed by the jury, would havedemonstrated the truthfulness of her testimony and estab-lished that . . . no molestation occurred during the time periodset forth in the information--or at the least that the molesta-tion as charged in the information had not been provedbeyond a reasonable doubt." Id. As in Brown, Sanders and Hart, Lord's trial counselhad at their fingertips information that could have underminedthe prosecution's case, yet chose not to develop this evidenceand use it at trial. When questioned about their reasons, theyhave offered no persuasive justification. Their performancetherefore fell "outside the wide range of professionally com-petent assistance" that Strickland requires,
466 U.S. at 690
,and we conclude that "there is a reasonable probability that,but for counsel's unprofessional errors, the result of the pro-ceeding would have been different," id. at 694.ConclusionThe district court's order denying Lord's petition for a writof habeas corpus as to the guilt phase of his trial isREVERSED. The state's appeal is dismissed as moot. Weremand to the district court for proceedings consistent withour ruling. the end
___________________________FOOTNOTES 1 Phillips disregarded a supervisor's instruction that he apply the leuco-malachite green using the single drop method. This is the preferredmethod of testing because the reagent is dabbed onto discrete areas, ratherthan covering the entire surface. By spraying the entire claw-hammer,Phillips made it impossible to retest the hammer under laboratory condi-tions.2 Though Huff could not recall the exact date or day of the week he sawTracy when he was interviewed in January 1987, he sensibly told theinvestigator that his police statement of September 18, 1986, would havebeen more accurate as it was given only two days after Tracy disappearedand only a day after he claimed to have seen her alive.3 Shannon testified at Lord's trial that she had been out searching for hersister on September 17th.4 Indeed, Huff had been interviewed by police on September 18th, onlya day after the sighting, and again a few days later on the 21st.5 Obviously, Lord's lawyers would not have been aware of these affida-vits and testimony, as they did not exist at the time of trial. We considerthese materials as an indication of what the lawyers likely could have elic-ited from the witnesses had they put them on the stand.6 The only significant discrepancy was the time of day the boys claimedthey saw Tracy, with Officer Avery's notes of his interview of Holden andHuff setting it at about noon and Officer Lewis's report of his interviewwith Holden setting it between 5:30 and 6 p.m., which was the time theboys stuck to thereafter. However, no one ever asked them about this dis-crepancy at the time they gave their statements in 1986 and early 1987,and we have no way of knowing whether this was an actual discrepancyor a mistake in Officer Avery's notes.7 Officer Avery's report: "I questioned [Holden and Huff] several timesabout the location, day and time. [They] were adamant that they were cor-rect and said they are familiar with Tracy and know her well enough torecognize her." Officer Lewis's report: "I . .. asked [Holden] if he wassure on the date he had seen Tracy PARKER and he stated he was positive. . . ." Defense investigator O'Neal's reports:"[Holden] was certain thatthe day of the week [that they saw Tracy] was Wednesday [September 17,1986]"; "[t]here is no doubt in [Huff's] mind that the girl that they sawwalking along the road was not Shannon Parker. He is also absolutely cer-tain that it was Wednesday evening [September 17, 1986] that they sawTracy walking on the road"; "[Ayers] is certain that it was Wednesday[September 17, 1986] that they saw Tracy." Defense investigator Zornes'sreport: "[Holden and Ayers's] report that they had seen Tracy Parker onSeptember 17th remained unchanged."8 Counsel is not obligated to interview every witness personally in orderto be adjudged to have performed effectively, see LaGrand v. Stewart, 133F.3d 1253, 1274 (9th Cir.), cert. denied, 119 S.Ct. 422 (1998); Egglestonv. United States, 798 F.2d 374, 376 (9th Cir. 1986). However, where (ashere) a lawyer does not put a witness on the stand, his decision will beentitled to less deference than if he interviews the witness. The reason forthis is simple: A lawyer who interviews the witness can rely on his assess-ment of their articulateness and demeanor--factors we are not in a posi-tion to second-guess.9 Of course, had Lord's attorneys been certain that Holden, Huff andAyers's statements were false, the rules of professional conduct wouldhave precluded them from putting the witnesses on the stand. See Restate-ment (Third) of the Law Governing Lawyers S 180(1)(c) (Tentative DraftNo. 8, 1997) ("A lawyer may not . . . offer testimony or other evidenceas to a material issue of fact known by the lawyer to be false."). Counselalso were under no obligation "to offer testimony or other evidence that[they] reasonably believe[ ] is false, even if [they] do[ ] not know it to befalse." Id. S 180(3). However, the Restatement makes it clear that "[a]lawyer should not conclude that testimony is or will be false unless thereis a firm factual basis for doing so. Such a basis exists when facts knownto the lawyer or the client's own statements indicate to the lawyer that thetestimony or other evidence is false." Id. S 180 cmt. c. Lord's attorneyshave never claimed that they knew the witnesses' statements were false,nor that they were in possession of any facts beyond those contained in thepolice and investigator reports. Based on that evidence, Lord's lawyerscertainly could have concluded that their client was guilty, and that theboys must therefore have been mistaken. But counsel's belief in their cli-ent's guilt certainly cannot create an ethical bar against introduction ofexculpatory evidence.