Ineffective assistance of counsel; People v Trakhtenberg; Failure to get into contact with potential witnesses; Duty to conduct a reasonable investigation

The court held that it was objectively unreasonable for defense counsel (J) to not adequately investigate three potential witnesses and, as a result, “fail to procure their testimonies at” trial. Thus, it reversed a portion of the order denying defendant’s motion for a new trial and remanded for the trial court to consider the issue of prejudice. Defendant was convicted of first-degree murder. At a Ginther hearing, J testified that he hired an investigator, P, to interview the witnesses listed in the police report, an estimated 20 to 30 witnesses. Defendant contended that J knew or should have known that three witnesses (D, W, and K) “told police that they saw the victims alive after the victims were seen leaving 7-Eleven with defendant.” The court concluded that J “did not satisfy his duty to conduct a reasonable investigation, and the limits on his investigation were not supported by reasonable professional judgment, due to the confluence of two interrelated considerations. First, as [J] testified, he asked [P] to interview between 20 and 30 witnesses but did not ask [P] to prioritize any witnesses.” The statements D, W, and K “gave to police—which [J] was aware of because they were included in the discovery materials—helped rebut the prosecution’s timeline of events. And” it was clear that J understood that rebutting that timeline was important. “But rather than instructing [P] to make a concerted effort to contact [D, W, and K] to verify their statements to police, [J] instead gave [P] a list of 20 to 30 witnesses then ‘trusted her discretion.’” This related to the “second consideration—in part because [P] was not given any direction on which witnesses to prioritize, her investigation was seemingly hampered.” The court noted that “if funding was scarce, it is unclear why [J] believed it best to use the limited resources available to conduct a broad and directionless investigation instead of a targeted [one] into witnesses whose testimony could aid the defense based on what [they] told police.” P’s method of trying to contact the witnesses also raised “concerns about the reasonableness of the investigation.” She only tried calling them; she did not try reaching out “through text, email, or social media, nor did she attempt to go to a witness’s home or place of work.” The court found that J’s failure to adequately investigate D, W, and K rendered his performance objectively unreasonable because their testimonies “clearly would have aided defendant’s defense, and there was no strategic reason to not call them as witnesses.”