have also led him to some witnesses who could possibly have corroborated petitioner's version of the facts.
Similarly, defense counsel's interviews with key state witnesses or potential defense witnesses were inexplicably brief and often nonexistent. (HT-2 at 5-10). At the evidentiary hearing he claimed it was unnecessary to talk with "J. D.", the rape victim who first identified the petitioner, and Patrick Caridy, another key government witness who also made an identification. In fact, the identification procedure itself was questionable since the victim, "J.D.", first saw the defendant in the police station following his arrest and would not identify him as the rapist. Two days later she picked him out of a photographic display. Obviously this identification was devastating to petitioner at trial, yet his attorney never challenged the procedure.
Finally, and for the purposes of this court's review, most importantly, counsel failed to thoroughly investigate the events surrounding petitioner's arrest. In this case very little was done in the days, and even months, following petitioner's arrest. The attorney neglected to obtain the police radio transmission tapes which he knew could be destroyed at any time and were essential to petitioner's case. Not only could these tapes have pinpointed the exact time of petitioner's arrest, a fact critical to the defense, they also may have negated the detrimental effect of petitioner's incriminating statements at the time of his arrest. Along the same line, counsel's failure to test the available sperm sample (which had to be done as quickly as possible) was inexcusable. The reason he offered for his inaction, that he did not think the sperm test would work on black men, defies belief. The test, if successful, could have worked to the petitioner's advantage; if unsuccessful, it would have been inadmissible.
The state argues that neither of these avenues of investigation would have necessarily helped petitioner's case. This is not a relevant factor prior to conducting investigation since it is the attorney's job to investigate. Only after obtaining all the results, should counsel determine if such evidence will be useful at trial. In this case the attorney never completed the investigative stage. He had no way of knowing whether any of the unobtained pieces of evidence would have been useful in helping to prove his client's innocence. For these reasons we conclude that petitioner's attorney failed to conduct an adequate investigation. See Baynes II, supra.
After demonstrating that counsel was ineffective, petitioner must show that his attorney's negligence was prejudicial. See United States v. Frady, 456 U.S. 152, 102 S. Ct. 1584, 1594, 71 L. Ed. 2d 816 (1982); United States ex rel. Johnson v. Johnson, 531 F.2d 169, 177-78 (3rd Cir. 1975), cert. denied, 425 U.S. 997, 96 S. Ct. 2214, 48 L. Ed. 2d 823 (1976). Respondents maintain that petitioner cannot show prejudice since any damage caused by the attorney's failure to investigate is purely speculative. The court in United States ex rel. Green v. Rundle, 434 F.2d 1112 (3rd Cir. 1970) addressed just that issue, concluding that "in many instances ineffective assistance of counsel may have had such a pervasive effect on the process of guilt determination that it is impossible to determine accurately the presence or absence of prejudice." 434 F.2d at 1115. For this reason, it is the responsibility of the government to prove beyond a reasonable doubt that no prejudice resulted from counsel's failure to investigate. Baynes II, supra, 687 F.2d 659, slip op. at 20-21; see also Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967).
In the situation we are faced with, none of the evidence heretofore discussed was available at trial due to counsel's failure to investigate. Obviously, it is not available for examination now since most of the evidence has either been destroyed or forgotten over time. According to the court in Baynes II, however, "all we need to determine is that [petitioner's] defense was prejudiced by his counsel's ineffectiveness -- i.e., that the . . . evidence, if investigated, might have led to a viable defense and a [favorable] verdict." Baynes II, at 673, quoting from 622 F.2d at 69.
Based on the facts with which we have been presented, it seems clear that a more thorough investigation could easily have produced evidence which might have led to petitioner's acquittal. The police report tapes, for example, may have placed the time of petitioner's arrest at 11:00 A.M. If that was the case, it would have been almost impossible for him to have committed a crime twenty miles away. Counsel's failure to test the available sperm sample is another example of an act which, if completed and successful, may have proved that petitioner did not commit the rape. Respondents' argument that the sperm cells were probably useless by the time counsel was retained, is not relevant to our decision. Since no attempt was made to test the sperm, the state cannot prove that such an attempt would have actually been fruitless. In the absence of such proof, we cannot dismiss these errors as de minimis mistakes. See Baynes II, supra.
We want to emphasize, once again, that this court recognizes the inherent difficulty in assessing an attorney's performance after the trial. In this case, however, we cannot ignore the fact that petitioner did not have the benefit of adequate representation as contemplated by the Sixth Amendment. We, therefore vacate our order of March 29, 1982, and deny respondents' motion for summary judgment. Moreover, as a result of the constitutional violation, we must grant petitioner's writ of habeas corpus and direct the state court to hold a new trial, if possible, within a reasonable time.
To protect the identity of the rape victim, it is on this 16th day of November, 1982, hereby ORDERED that all references in this court's opinion of October 28, 1982, to her name and that of her fiance shall be deleted and in their place and stead the following substituted:
"J.D." (rape victim)
"L.S." (her fiance)
The clerk shall make the necessary changes in the opinion filed on that date.
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