Johnson v. Premo

Under Article I, section 11, of the Oregon Constitution, an attorney’s decision to pursue only one argument despite the available information presenting stronger arguments is not a reasonable tactical decision.

The State appealed a judgment from the Court of Appeals affirming a post-conviction court’s grant of a new trial for Defendant.  The State assigned error to the Court of Appeals conclusion that trial counsel provided inadequate assistance by not consulting a toxicology expert in the face of conflicting information. The State argued that since trial counsel already consulted two forensic pathology experts, finding a toxicology expert was unnecessary. Under Article I, section 11, of the Oregon Constitution, to demonstrate ineffective assistance of counsel, a petitioner must show that trial counsel’s performance “fell below an objective standard of reasonableness.” And, if a petitioner proves that counsel was ineffective, he or she also must show that there was a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Montez v. Czerniak, 355 Or 1, 6-7 adh’d to as modi ed on recons, 355 Or 598 (2014); Strickland v. Washington, 466 US 668, 688 (1984). Under Article I, section 11, an attorney’s decision to pursue only one argument despite the available information presenting stronger arguments is not a reasonable tactical decision.  Johnson v. Premo, 361 Or. 688, 703 (2017).  In this case, the attorney’s decision to pursue only one argument despite the available information presenting stronger arguments was not a reasonable tactical decision. The Supreme Court held that the post-conviction court and the Court of Appeals correctly determined that the tactical decision by Defendant's trial counsel not to pursue a drug overdose theory was unreasonable because the conflicting information from the experts about the role the morphine in HF’s body played in her death would have prompted reasonable counsel to seek additional information about the effects of the drugs found in the victim’s body. Affirmed.