Thursday, November 14, 2013

Vega v. Ryan (9th Cir. - Nov. 13, 2013)

The Ninth Circuit grants a habeas petition, holding that in a child molestation case, it constituted ineffective assistance of counsel for the defendant's trial counsel to not know (and to not call as a witness) the priest to whom the alleged victim had recanted her molestation claims.

The trial court denied the habeas petition on the ground that the priest's testimony would merely have been cumulative, since the alleged victim already testified at trial that she told her mother that no molestation had taken place.  The Ninth Circuit disagrees.  That the victim recanted her testimony to two people, it says, is more powerful than the fact that she recanted her testimony to one.  That's not "merely" cumulative, but is instead more "powerful" evidence.  When you say something to two people, instead of one, that makes it more likely that it's true.  Even if you say something different at trial.

To me, however, a better argument is that there's a huge difference between telling something to your mother and telling something to your priest.  Including but not limited to recantations about molestation charges.  It's one thing for a victim to tell her mother that she wasn't really molested.  There may be lots of reasons to do so.  To protect the mother.  Because the mother and the defendant are close.  Because sex is a difficult topic to discuss with parents.  Etc.  Were I on a jury, I might not find it all that significant that an alleged victim told her mother that she wasn't molested, but at trial nonetheless insisted that molestation indeed transpired.

By contrast, there's usually much less -- indeed, probably very little -- reason to lie to one's priest.  If only because the alleged consequences (e.g., potential damnation) might be pretty darn severe.  When you tell your priest something, to me, that's usually pretty powerful evidence.  It doesn't mean it's always true.  But it's nonetheless super probative.  And that fact is much, much more powerful than the fact that the witness said the same thing to her mother.

Which is also why it's not cumulative.  Indeed, it's qualitatively different.

So were I writing the opinion, I'd have focused on that fact.  Not merely the fact that two witnesses are better than one.  But, instead, the fact that the excluded testimony related to a statement by the victim to a priest.  That she said the same thing to her mother isn't nearly the same thing.

(Which, to be clear, doesn't necessarily mean that the victim wasn't telling the truth at trial.  Maybe there were reasons for telling the priest a lie.  But that's something a jury has to determine.  After they hear the relevant evidence.)