McMullin v. Amsberry

To establish a violation of adequate counsel it must be shown that counsel “failed to exercise reasonable professional skill and judgement,” and second, that petitioner “suffered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).

Petitioner sought post-conviction relief. Petitioner claimed that because his counsel did not adequately investigate the testimony of the state’s witnesses regarding a lack of physical evidence, his counsel was constitutionally inadequate under Article 1, section 11 of the Oregon constitution and the Sixth and Fourteenth Amendments. The state argued that the Petitioner’s counsel did consult with at least two lawyers and two experts who had experience in sexual abuse cases. Consequently, the Petitioner’s counsel decision not to attack the state’s witness was a strategic move not an error of counsel. To establish a violation of adequate counsel it must be shown that counsel “failed to exercise reasonable professional skill and judgement,” and second, that petitioner “suffered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017). The Court found that Petitioner's counsel did not make an informed decision when deciding not to investigate the testimony of the state. Counsel did not make attempts to understand the scientific evidence presented at the trial, and, because of that, she could not reasonably weigh the pros and cons of challenging the state’s expert. Further, the Court concluded that the Petitioner’s failure to call their own expert with extensive knowledge on the issue at the sentencing hearing was prejudicial to the Petitioner. Reversed and remanded with instructions to grant relief on inadequate investigation claim; otherwise affirmed.