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High Court Considers|Defense Counsel Limits

WASHINGTON (CN) - The Supreme Court on Tuesday considered the extent to which a defense attorney must seek expert testimony to be considered effective. The hearing examined the case of a defendant in a murder trial who claimed he was denied his right to effective counsel when his attorney failed to investigate blood evidence.

Deputy Attorney General Harry Colombo criticized the 9th Circuit for using its own "eccentric" rule that would require counsel to consult with experts and present expert testimony on a broad range of details about a case.

Defendant Joshua Richter, who was convicted of murder, filed a habeas petition in California Supreme Court and was denied. He filed again in federal district court and was also denied, and the 9th Circuit affirmed. But in a rehearing, the 9th Circuit granted Richter's petition, saying the state court did not correctly apply the Strickland standard, which establishes ineffectiveness of counsel, when it did not find Richter's trial attorney deficient.

Colombo said the 9th Circuit applied a "grossly overbroad" reading of the Strickland standard in its decision.

Colombo argued that the California Supreme Court's "silent denial," was a merits determination entitled deference under the Antiterrorism and Effective Death Penalty Act, which constricts federal courts' power to grant a habeas petition when a state court has already denied the claim on the merits.

Clifford Gardner, arguing for Richter, argued that the Supreme Court held in Ylst v. Nunnemaker that you cannot tell from a silent denial whether it was on the merits or not.

The justices asked Gardner what evidence would have helped Richter's case.

Gardner said that Richter's trial attorney should have investigated the blood spatter and ballistic evidence.

"I thought in the habeas proceeding, you said he should have consulted a serologist and a pathologist," Chief Justice John Roberts said. "Okay, that's four. Why wouldn't he want to talk to an expert on the effects of alcohol and drugs on people's different perceptions of the events?"

Gardner said Richter's defense counsel was relying on physical evidence in his theory presented to the jury.

When justices asked if a defense attorney had an obligation to consult an expert on every facet of a case, Gardner pointed to ABA standards that say defense counsel has a broad duty to investigate.

"That standard seems to me quite silly," Justice Antonin Scalia said.

"Isn't it the reality that sometimes the defense doesn't want to have an expert, because the expert may turn up findings that are adverse for him and it's better for the defense counsel to leave things murky?" Justice Anthony Kennedy asked. "That's a perfectly legitimate strategy, isn't it?

"It is," Colombo said.

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