Metropolitan News-Enterprise


Thursday, November 14, 2013


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Ninth Circuit Panel Overturns Molestation Conviction, Cites ‘Inexplicable’ Oversight by Defense Counsel


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has granted a habeas corpus petition to a defendant accused of sexually molesting his stepdaughter, ruling that his trial counsel was ineffective for failing to read his case file which led to his failure to call a key witness who could have provide exculpatory testimony.

Pedro Imperial Vega had been convicted by an Arizona trial court of contributing to the delinquency of a minor, child molestation, and three counts of sexual abuse of his stepdaughter.

Between 1996 and 2002, Vega had been represented by three different attorneys in connection with his case. His first attorney represented him on federal charges which were dismissed on jurisdictional grounds. His second attorney represented him on state charges which were eventually dropped by prosecutors.

The state charges against Vega were eventually revived after a new set of allegation from the reported victim surfaced, causing him to be represented by a third attorney. Vegas was eventually convicted and sentenced to 28 years.

Shortly after Vega’s conviction, his trial lawyer discovered that the reported victim had recanted her allegations to her priest, prompting him to file a motion for a new trial.

The trial judge in Arizona rejected Vega’s motion, stating that the priest’s testimony was not “newly discovered evidence” since both Vega and his two previous defense attorneys were all previously aware of it.

 The Arizona Court of Appeals affirmed, holding that the priest’s testimony was not “newly discovered evidence,” and that there was not a reasonable probability that it would have changed the outcome of the case.

Following a denial of review by the Arizona Supreme Court, Vega then challenged his conviction based on ineffective assistance of counsel.

The Arizona courts denied his challenge on the grounds that Vega never told his third attorney about the reported victim’s recantation to the priest, plus the fact that she admitted recanting her allegations to her mother during trial testimony, making evidence of other recantations “cumulative.”

After a U.S. district judge declined to disturb the decision by the Arizona courts, the Ninth Circuit reversed, holding that the state courts unreasonably applied clearly established federal law regarding ineffective assistance of counsel.

Sitting in by designation, U.S. District Judge Ralph Beistline of Alaska wrote on behalf of the appellate court:

“[C]ounsel’s failure to familiarize himself with his client’s file—despite this case’s tortured history—led to a failure to present a key witness to the jury. A reasonable lawyer would not have made such an inexplicable decision. Accordingly, counsel’s performance was deficient.”

Citing the Supreme Court’s holding in Strickland v. Washington 466 U.S. 668 (1984), Beistline noted that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” He said that under the circumstances, the defense counsel’s failure to read his client’s file was “not excused” by Vega’s failure to inform him about what was in it.

Beistline also rejected the notion that the defense counselor’s failure to investigate didn’t prejudice Vega, stating that “the testimony of a priest who heard ‘what he believed to be a sincere recantation’ could have tipped the scales in Vega’s favor” and was thus a “critical failure” on the part of his attorney.

Noting that it was “undisputed” that the reported victim had recanted, Beistline flatly rejected the idea that evidence of additional recantations would have been “merely cumulative,” saying it also could have impacted the credibility of the accusing witness.

The case is Vega v. Ryan, 12-15631.


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