choices made after less than complete investigation are reasonable, precisely to the extent that reasonable professional judgments support the limitations on investigation." U.S. at , 104 S. Ct. at 2066. The court's language was carefully tailored. "Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id.
In this case counsel did not make merely a "less than complete investigation," and then decide not to pursue the confession issue further. Counsel made no investigation. To that extent, the strategic choice that the confession could not, under any circumstances, be a helpful line for Mr. Friel's defense to pursue was not a reasoned choice, in the sense that the court contemplated in Strickland. "Counsel has a duty to make a reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary." Id. I judge that when a client advises counsel of reports of a confession, even where the client accompanies that report with no assertion of confidence that what is ultimately to be found will turn out to be substantial, counsel has, within the meaning of Strickland and Baynes II, an obligation to make at least enough of a minimal inquiry as to give counsel a reasoned basis for determining whether further inquiry is indicated or whether investigation should be cut off at that point in deference to counsel's obligations to pursue what may reasonably seem to be more fruitful lines of endeavor.
My analysis up to this point has taken as its predicate acquiescence in Mr. Gaskins' perception of what he was told by Mr. Friel and the attitudes of doubt with which Mr. Friel accompanied the report. As I have noted, Mr. Friel's account is a very different one. Before preferring Mr. Friel's account to Mr. Gaskins'" one would be prudent to apply an enormous discount. Mr. Friel has obviously so very much at stake in being persuaded himself and, in turn, persuading the court, that his lawyer did too little.
Nonetheless, it is of importance to know that Mr. Friel's version, which is at odds with Mr. Gaskins' perception that Mr. Friel did not take the matter seriously, has some extrinsic corroboration. Mr. Friel testified that he passed on to Mr. Gaskins that Mr. Lance had advised Mr. Friel that Mr. Brooks had acknowledged responsibility for the fire to Ms. Willis. Mr. Friel also testified that he told Mr. Gaskins about Mr. Ward's report of a conversation with Mr. Brooks which was, in effect, a repetition of what Ms. Willis said Mr. Brooks had told her.
Indeed, Ms. Willis testified that she had herself reported to Mr. Ward about what Mr. Brooks had told her. Ms. Willis confirmed that she had tried to reach Mr. Friel and had reached Mr. Lance, who said he would advise Mr. Friel. Mr. Ward confirmed that he had spoken to Mr. Friel. He also said that he was requested to get in touch with Mr. Gaskins directly, with a view to telling Mr. Gaskins all about the Brooks confession. Mr. Ward testified further that he did phone Mr. Gaskins' office many times, left messages and was advised that Mr. Gaskins would get back to him. Mr. Ward testified that there was, in the event, no such return call. Mr. Friel testified that he told or requested Mr. Ward to get in touch with Mr. Gaskins. So, that aspect of Mr. Friel's testimony, which gives emphasis to Mr. Friel's report that he indeed was trying to make Mr. Gaskins see that he took the matter seriously, is confirmed by Mr. Ward's direct testimony that Mr. Ward asked to, and did in fact, undertake to get in touch with Mr. Gaskins.
Mr. Ward's testimony, then, supports Mr. Friel's testimony that Mr. Friel took the matter of the Brooks confession seriously and wanted his lawyer to do so as well. My own intuition is that Mr. Friel did take the matter seriously and tried to communicate that to his attorney. Why do I say that is my intuition rather than a flat finding? My judgment, as a matter of human experience, is that it is most unlikely that a client would advise a lawyer of a report which had come to the client that another person had confessed, and would at the same time say to the lawyer that he did not think there was anything here. So I call it my intuition that Mr. Friel regarded the matter as something to be reported to his lawyer, and also that Mr. Friel expected his lawyer to make some inquiry.
It is my corollary intuition that Mr. Gaskins was himself persuaded that the report which he got from his client was insubstantial. Mr. Gaskins concluded that Brooks' confession was unlikely to be a promising line of inquiry. Mr. Gaskins thereupon persuaded himself that his client shared that perception.
That is my best judgment on this record of what in fact happened. It is, I think, consistent with the mode of trial preparation which Mr. Gaskins acknowledged. Mr. Gaskins took the view that it was not really up to him to go and find witnesses, with the exception of one woman, who Mr. Gaskins said he did go and look for:
It is quite clear that I never went out to seek out, to search out or to investigate or to determine or to find any witnesses. We developed -- our strategy for the trial was that the place was accidently burned down by virtue of a defective ice box, and I was convinced that that was the fact. And I am still convinced that that was the fact.
Notes of Testimony of November 4, 1983, at 113. That, by Mr. Gaskins' own testimony, is the attitude with which he received the report of the confession, a report which was inconsistent with the theory that Mr. Gaskins was pursuing.
However, taking as my predicate acquiescence in Mr. Gaskins' testimony that he did not perceive that his own client took seriously the report which Mr. Friel was presenting to him, I conclude that even so Mr. Gaskins failed in his obligation to investigate a possible, if not probable, exculpatory line, in that he made no investigation whatsoever.
Having so concluded, I tender the question whether Mr. Friel has demonstrated prejudice from this non-investigation. Strickland announces a standard of prejudice. "The defendant must show that there is a reasonable probability that, but for counsel's own professional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." U.S. at , 104 S. Ct. at 2068.
This standard is not the standard which has prevailed in this circuit under Baynes II. Baynes II applies what, in effect, is a "harmless error" standard. The Baynes II court put the standard as follows: "Trice need only demonstrate that his attorney's ineffectiveness was not harmless 'beyond a reasonable doubt.'" 687 F.2d at 671; cf. Bradshaw, 726 F.2d at 117-118 (proffered alibi witnesses' testimony "devoid of probative value" so not ineffective assistance to fail to investigate). That standard is no more. The Strickland standard really demands much more of a defendant. But how much more? Does the language of probability connote that a defendant must show that if the error of counsel had not been made, the probability is that a different result would have ensued? Must defendant show that it is more likely than not that there would not have been a guilty verdict?
Justice O'Connor made it plain that that is not the signification to be attached to the reasonable probability standard. "We believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case." U.S. at , 104 S. Ct. at 2068. She points out that the "more-likely-than-not" standard has certain attractions but that it is not the standard which the Court accepts.
The Court accepted a burden which, though a substantial one, is a lesser one:
Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.
U.S. at , 104 S. Ct. at 2069.
Suppose Mr. Gaskins had made inquiry. He would, it can be reasonably predicted, have adduced the testimony of Mr. Ward and Ms. Willis which was in fact given to this court on this section 2255 application. Would that testimony have met the requirement? The Government takes the position that the testimony would have been inadmissible and even if admissible, it would not have met the requirement.
It is the Government's submission that the testimony of Ms. Willis and Mr. Ward about what Mr. Brooks allegedly said to each of them is classic hearsay. And so it is. It would be inadmissible for the truth of Mr. Brooks' assertions unless it satisfies some exception. The exception which suggests itself is Fed.R.Evid. 804(b)(3), a statement against interest.
Rule 804(b) governs statements by a declarant unavailable as a witness. There is, as of now, no question about Mr. Brooks' unavailability. His whereabouts have apparently not been known for approximately four years. But I will come back in a moment to the question at what point Mr. Brooks became unavailable.
Proceeding on the assumption that at trial Mr. Brooks would have been unavailable, the question arises whether the reported statements fit as statements against interest and are sufficiently corroborated. See Fed.R.Evid. 804(b)(3). There can be no real doubt that these are statements which would subject Mr. Brooks to criminal liability. The question whether they were made under circumstances which attest to their trustworthiness is harder, but I think not so hard as to take them out of the Rule.
We can test the matter, perhaps, by what would clearly be uncorroborated and, in the nature of things, unsusceptible of corroboration. Judge Weinstein gives the example of undisputed proof "that the person confessing to a shooting could not have been at the scene of a crime because he was in prison. . . ." 4 J. Weinstein & M. Berger, Weinstein's Evidence para. 804(b)(3) at p. 804-105 (1981).
Now, in this instance we have some corroboration in the fact that Mr. Brooks was reported to have made the same statement separately to two different auditors. Furthermore, to the extent that the statement can carry its own corroboration, though that has a certain bootstrapping implication, the statement attributed to Mr. Brooks is one which not merely describes the crime, but gives it a rationale, namely, hostility to Mr. Friel for discharge. There appears no independent reason to doubt the assertion that Mr. Brooks was discharged by Mr. Friel. So I conclude that sufficient corroboration was available so as to make these recitals admissible under Rule 804(b)(3), albeit with appropriate caveats to the jury.
If the Willis and Ward testimony were all, could one conclude that the standard set by the court in Strickland of reasonable probability had been met? In making the prejudice inquiry, a court must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.
In the nature of things, answering that question is an exercise in prophecy in the subjunctive which is an inordinately difficult one, and one which ultimately must be recognized as not yielding to precision as the bottom line. If the test were the one rejected by the Court in Strickland, the more-likely-than-not test, I would be satisfied, though not easily, that a conscientious answer is that it is not more likely than not that testimony by Ward and Willis with respect to Brooks' recital would have yielded a verdict of acquittal. But when the question is posed in the form that is authenticated in Strickland, I conclude that there is a reasonable likelihood, albeit less than a quantifiable probability, that a jury listening to testimony that an absent person had twice acknowledged culpability and had given a reason for the offense would have concluded that the Government had not proved its case against Mr. Friel beyond a reasonable doubt.
With respect to the particular jury that tried this case, the care with which they approached the matter was reflected in their rendering a verdict of acquittal with respect to Mr. Lance, Mr. Friel's co-defendant. If the case against Mr. Friel had been diluted by the admission into evidence of the Ward and Willis testimony, I conclude that there is a reasonable likelihood that the jury would have acquitted Mr. Friel.
I do not conclude that there is a quantifiable probability that the jury would have reached a different verdict, but only the reasonable likelihood called for by Strickland.
Now, I have put the question on the assumption that all that a prompt and efficient investigation carried out in preliminary fashion would have fetched up would have been the testimony of Mr. Ward and Ms. Willis. I have found that both Mr. Ward and Ms. Willis had immediately reported to Mr. Friel and Mr. Lance, respectively, what they had been advised by Mr. Brooks, so they said, and I have found that Mr. Ward repeatedly called Mr. Gaskins' office. There is no basis for concluding that there would have been any difficulty finding either of these persons, and getting their potential testimony into the defense file forthwith. But it must be pointed out that the prompt inquiry which, in my judgment, Mr. Gaskins should have at least initially commenced, might perhaps have yielded Mr. Brooks, as well.
Whether Mr. Brooks' testimony, if Mr. Brooks were found, would have been helpful is, of course, at this point wholly speculative. But we must proceed with what limited resources we have, and at the moment what we have are the concurrent statements of two witnesses. And this court has heard that Mr. Brooks spoke to them in terms which were directly exculpatory of this defendant. The burden of investigation, which Baynes II calls for, and which I think Strickland incorporates, is a burden to search with no guarantee that the avenue of exculpation will prove fruitful, as I pointed out before. The Baynes II court was at pains to explain that a decision to investigate carried with it no decision to use what was ultimately found. Baynes II, 687 F.2d at 666.
I say that a prompt investigation might have yielded Mr. Brooks in person with the possibility, of course, of enormously strengthening the defense. We know that Mr. Brooks disappeared. Was he gone by the time Mr. Ward and Ms. Willis reported to Mr. Friel and Mr. Lance, and Mr. Friel in turn reported to Mr. Gaskins? The evident answer is no.
Ms. Willis testified that she called Mr. Friel but reached Mr. Lance, and indeed also Mr. Ward, either the night of her conversation with Mr. Brooks or the next morning. Notes of Testimony of October 6, 1983, at 72. Ms. Willis had also testified as follows on examination by Mr. Shmuckler:
Q. I think you said the last time you saw Brooks was in '79?
Q. How --