Summary
The Supreme Court of Oregon affirmed the denial of post-conviction relief to A. Kent Gorham, who claimed ineffective assistance of trial counsel based on counsel’s decision not to present expert testimony at his third criminal trial. The court held that counsel’s decision was grounded in a recent investigation and use of experts during the second trial and therefore did not reflect a failure to exercise reasonable professional skill and judgment. Because the first prong of the post-conviction test was not established, the court did not address prejudice.
Topics
Practice areas
Questions Presented
- Whether trial counsel failed to exercise reasonable professional skill and judgment by deciding not to investigate anew or present expert testimony on credibility and impeachment at the third trial.
- Whether Gorham established prejudice under the second prong of Oregon's post-conviction ineffective-assistance test.
- Whether Gorham's unpreserved due-process challenge to the reliability of the prosecution's evidence could be addressed in the post-conviction proceeding.
Holdings
- Trial counsel did not fail to exercise reasonable professional skill and judgment by declining to investigate anew or present expert testimony at the third trial when counsel had recently investigated and used such experts at the second trial, the relevant facts, law, and theories had not changed, and the prosecution intended to present the same case and witnesses.
- The court did not need to address the prejudice prong because Gorham failed to establish the first prong of the post-conviction ineffective-assistance test.
- The court declined to address Gorham's due-process argument that the prosecution's evidence was too unreliable to support conviction because the issue was not raised at trial or on direct appeal.
Key quotations
“On those facts, the post-conviction court erred in holding that Morrow failed to exercise reasonable professional skill and judgment by not investigating experts regarding impeachment and credibility issues for petitioner's third trial before deciding whether to present such experts.” (332 Or. 565)
“Because we hold that petitioner has not demonstrated that Morrow failed to exercise reasonable professional skill and judgment under the first prong of the post-conviction test, we do not address petitioner's arguments under the prejudice prong of the post-conviction test.” (332 Or. 566)
Factual background
Gorham was tried three times on charges arising from alleged sexual abuse of his daughter. At the second trial, defense counsel investigated and presented expert testimony challenging the child's credibility, the investigation and interview techniques, and the medical evidence, but the jury convicted before the trial court granted a mistrial. Before the third trial, counsel learned that the prosecution would present the same case and witnesses, and decided not to call experts because the defense experts' testimony had been discredited on cross-examination at the second trial. Gorham was convicted at the third trial and later challenged counsel's decision in post-conviction proceedings.
Procedural history
Gorham was convicted after a third trial on three counts each of first-degree rape and first-degree sexual abuse. He filed a post-conviction petition alleging that trial counsel was constitutionally ineffective for failing to investigate and present expert testimony concerning credibility and impeachment. The post-conviction court found deficient professional skill and judgment but denied relief for lack of prejudice; the Court of Appeals affirmed. The Oregon Supreme Court affirmed on the different ground that counsel's decision was based on a recent investigation and use of the same experts at the second trial.