Dunn v. Neal

Dist. Ct. did not err in granting defendant’s habeas petition challenging his murder conviction on ground that his trial counsel was ineffective for failure to consult forensic pathologist regarding cause of death of victim. Issue at trial was whether victim died as result of fall from two-story balcony or whether victim died from beating following his fall, as determined by state’s forensic pathologist. Indiana State Appellate Court used wrong legal standard by requiring defendant to present evidence to show that jury would have concluded that victim’s injuries were solely result of fall, as opposed to requiring defendant to present evidence that would create reasonable doubt as to whether government has established its version of facts. Moreover, trial counsel’s failure to investigate use of forensic pathologist to establish cause of death was attributable to inattention, rather than reasoned strategic judgment, and that use of defendant’s proposed forensic pathologist would have tended to rule out bludgeoning as cause of death. Also, trial counsel’s failure to investigate use of forensic expert was prejudicial, where: (1) no one testified to seeing defendant hit victim after victim’s fall; (2) testimony of proposed forensic pathologist would have presented jury with conflicting evidence as to whether fall alone could cause victim’s death; and (3) there was reasonable probability that jury would have some doubt as to whether victim was beaten after fall. (Dissent filed.)