99-4337 Bruce v. U.S.

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“Despite the specific allegations by Barton, Thompson, and Mr. Bruce, defense counsel claims in his affidavit that he has no specific recollection of Mr. Bruce’s having asked that alibi witnesses be called and has only a general recollection of a discussion on the subject. He further contradicts the statements of the potential witnesses that he failed to locate or investigate these witnesses. He cannot remember why the witnesses were not called, but instead relies, with absolutely no factual support, on ‘tactical reasons based upon my knowledge of the evidence and my experience as a trial attorney.’… Because Mr. Bruce’s only defense was an alibi, defense counsel’s decision to forgo interviewing potential alibi witnesses cannot be considered, without some factual basis, a tactical choice entitled to deference.

“Despite the conflicting affidavits and defense counsel’s conclusory assertions, the district court characterized defense counsel’s testimony as ‘uncontested’ and upheld the decision not to call alibi witnesses as ‘sound trial strategy’ that was made ‘after a reasonable investigation.’… Without any factual basis for defense counsel’s assertions and in light of the affidavits of the potential defense witnesses, the district court had no basis upon which to arrive at this conclusion without holding a hearing.”

Reversed and remanded.

Appeal from the United States District Court for the Southern District of Indiana, Young, J., Ripple, J.