Ineffective Assistance of Counsel

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7^th Circuit court of Appeals

Case Name: Joseph J. Jordan v. Randall R. Hepp

Case No.: 14-3613

Officials: WOOD, Chief Judge, and KANNE and ROVNER, Circuit Judges.

Focus: Ineffective Assistance of Counsel

Appointed counsel fails to raise objection to prosecution’s inappropriate witness credibility comments.

“We recognize that the trial court instructed the jury that “the words of the attorneys are not the evidence in this case and their arguments and conclusions that they’re entitled to express at this stage are not evidence and must not be considered by you as evidence.” But this instruction did not identify the prosecutor’s remarks as improper statements that should be disregarded, for the obvious reason that those remarks had not yet been made. Nor was this or any other instruction given contemporaneously with, or immediately after, the prosecutor’s inappropriate comments. We cannot assume that a prompt objection, followed by a curative instruction, would have been ineffective; indeed, a prompt objection would have cut off a good part of the vouching. When the

whole case turns on witness credibility, standing silent while the state vouches for its witnesses cannot be justified by reliance on a generic, non‐contemporaneous instruction. See Donnelly v. DeChristoforo, 416 U.S. 637, 644 (1974) (“some occurrences at trial may be too clearly prejudicial for such a curative instruction to mitigate their effect”); see also Goodman v. Bertrand, 467 F.3d 1022, 1030–31 (7th Cir. 2006); Earls v. McCaughty, 379 F.3d 489, 495–96 (7th Cir. 2004); Cossel v. Miller, 229 F.3d 649, 655–56 (7th Cir. 2000); Hodge v. Hurley, 426 F.3d 368, 385 (6th Cir. 2005). The state trial court’s finding (adopted by the Court of Appeals) that counsel’s failure to object was not prejudicial is an unreasonable finding in the con‐ text of this case.”

Affirmed in part

Reversed and remanded in part

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