Scott R. Jacobson v. Warden, State Prison (2011)

EXCERPT:  COURT'S DECISION

THE COURT:  Good afternoon, marshal, ladies and gentlemen.   I have considered the testimony presented, the exhibits, the pleadings, and the arguments of counsel, and for the following reasons the petition for a writ of habeas corpus is denied.

The first claim raised by the petitioner is that his attorney, Mr. Ruane, had a conflict of interest that affected his-adversely affected his performance.   I find that there was no conflict of interest here because the fact that counsel was being investigated on a different matter was not necessarily adverse to his effective representation of the petitioner.

These were not competing interests.   The newspapers in evidence do contain an accusation of illegal activity by Mr. Ruane, which accusation was made by a drug dealer, and they do contain what I'll describe as negative publicity about Mr. Ruane.   But the articles never mention that counsel was under investigation by the federal government.   There is no other evidence that the fact that counsel was being investigated was widely known or even known at all in the community.

Thus, this case is very different from Phillips v. Warden in which the fact that Mr. Phillips' counsel had been convicted of murder, which is significantly more troubling to the average person then merely being under investigation for improper disclosure of police reports.

The fact that Mr. Phillips' attorney was convicted of murder was widely known to the people in the community.   See Phillips v. Warden, 220 Connecticut 112 at page 118 (1991).   While it might have been the better thing for counsel to disclose the fact that he was under investigation to the petitioner, he was not required to do so, as even Mr. Blanchard admitted.   In any event, the petitioner did not establish any adverse effect on counsel's performance.

After both counsel had introduced themselves to each day's panel during jury selection, the Court asked the panels whether they knew anything about the lawyers, or on one day, whether they had in any way formed any opinions about the lawyers.   The transcript reveals no juror who at least mentions hearing about Mr. Ruane from the newspaper.

According to the transcript, in individual voir dire, Mr. Ruane asked at least one chosen juror whether she had read the Connecticut Post, and Mr. Ruane's testimony here, which I credit, was that he asked the others as well.   These were adequate screening mechanisms.   No chosen jurors indicated any adverse opinion about Mr. Ruane, whether as a result of the fact that he was under investigation, or for any other reasons.

Petitioner can point to no other area in which the fact of an investigation had any impact on counsel's performance.   Therefore, because there was no conflict of interest or any adverse effect on counsel's performance, I find no ineffective assistance of counsel concerning those claims.

The other broad category of ineffective assistance of counsel claims concerns the alleged need for expert advice concerning the forensic interviews and psychological testimony presented and any other psychological matters.

First, with regard to the interviews, the interviews were not admitted at trial.   And, therefore, there was no need to have an expert testify concerning any flawed techniques in the interviews.   Therefore, this case is unlike Michael T. v. Warden, 122 Connecticut Appellate 416 (2010), in which the interviews apparently were admitted at trial.   Further, in Michael T., the state had called medical experts to say that the victims had physical consequences from the sexual assault and the petitioner did not call experts in rebuttal, which he could've done.

Here, in our case, there was nothing to rebut since the interviews were not admitted.   Calling an expert to testify that the techniques were flawed would have been a poor strategy since it would've opened the door and permitted the state to introduce the otherwise inadmissible interviews themselves, which were extremely damaging to the defendant.   And for the same reasons, the petitioner cannot show any prejudice in the failure to hire or call an expert concerning the prior interviews.

Mr. Ruane did bring out the fact on cross examination of the child victims, and on closing, that the boys testified in court inconsistently with what they had said in their prior interviews.   So counsel did use the interviews to the petitioner's advantage without the need for an expert.

There was expert testimony from Mr. Blanchard that counsel should've retained a forensic expert.   But Mr. Blanchard ultimately testified that you should retain an expert in every similar case in which forensic interviews are done.   This is simply not the standard and there is no case law to that effect.

Trained counsel can go through the interviews on his own and filter out the important points to make.   This is especially true in this case because counsel was experienced in these sort of cases, he was board certified, and he was familiar with the literature on child sexual abuse cases.   Trial counsel had, in fact, tried more sexual assault cases to verdict than petitioner's legal expert had.   Mr. Ruane had obtained acquittals without an expert, so it was reasonable for him to defend this case without.

Finally, while there was much testimony that an expert would be a good idea, and that an expert would've advised counsel to look into various avenues, the petitioner never established just exactly what this expert would have said that would further the defense of this case.

Concerning the state's expert, Lisa Rattigan (phonetic), counsel, Mr. Ruane, effectively cross examined her on December 6th.   See transcript at Exhibit 8 from pages 55 to 85.   Mr. Ruane demonstrated his knowledge of the literature.   He suggested that the police interview techniques used here did not conform with her way of instructing the police on interview methods.   And he pointed out that many of the examples of grooming suggested by Ms. Rattigan on direct, were essentially innocent acts that are also consistent with mentoring.

In his closing argument, Mr. Ruane argued that the boys did not get counseling, which is one of the usual signs that they had been subjected to grooming.   There's been no showing of how an expert would've added anything significant to what counsel elicited on cross examination of Ms. Rattigan on his own.   So I find in this area, as well, that there was no ineffective assistance of counsel because there was no deficient performance, and any conceivable deficient performance did not prejudice the defense.

For these reasons the petition for writ of habeas corpus is denied.   I'll order the court reporter to produce a transcript of this decision within thirty days, which will serve as my memorandum of decision in the case.   I'll order petitioner's counsel to prepare a judgment file within thirty days.   And I'll order that petitioner be advised of his right to appeal.

(Pause)

THE COURT:  And he has been so advised, Ms. Bodner?

ATTY. BODNER:  Yes, Your Honor.

THE COURT:  All right.   Are there any corrections that need to be made to my decision at this time?

ATTY. EISENMAN:  Not that I know of, Your Honor.

THE COURT:  I do want to thank counsel for their courtesy, for their professionalism, and I look forward to seeing counsel again.   Stand adjourned.

ATTY. BODNER:  Thank you, Your Honor.

(At which time, this matter was concluded.)

Schuman, J.

Schuman, Carl J., J.