Inadequate defense - Failure to investigate

[Marina]

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http://www.sccourts.org/opinions/displa ... seNo=26484

b. Failure to investigate

McKnight also argues that counsel was ineffective in failing to investigate medical evidence contradicting the State’s experts’ testimony on the link between cocaine and stillbirth, and in further failing to investigate methods to challenge Dr. Woodard’s conclusions ruling out natural causes of death. We agree.

A criminal defense attorney has the duty to conduct a reasonable investigation to discover all reasonably available mitigation evidence and all reasonably available evidence tending to rebut any aggravating evidence introduced by the State. Nance v. Ozmint, 367 S.C. 547, 557 n.8, 626 S.E.2d 878, 883 n.8 (2006) (quoting Wiggins, 539 U.S. at 524-25). In this case, counsel testified that her failure to rebut the medical research cited by the State’s experts, as well as the State’s expert’s own methods in arriving at those conclusions – either through the defense’s own expert testimony or with a thorough cross-examination – was due to her belief that Dr. Conradi’s testimony alone was adequate and that she did not otherwise have time to interview additional experts. Counsel, however, did not attempt to rebut the medical studies she knew the State’s experts would cite, nor did she examine Dr. Conradi on the study the doctor cited at the first trial that concluded cocaine is no more harmful to fetuses than other adverse factors during pregnancy. In light of counsel’s thorough investigation and examination of witnesses at the first trial, counsel, in our view, was deficient in failing to conduct a reasonable investigation which resulted in a substantially weaker defense at the second trial.

Furthermore, in the absence of testimony from the defense on medical research to the contrary, there is a reasonable probability that the jury used the adverse and apparently outdated scientific studies propounded by the State’s witnesses to find additional support for the State’s experts’ conclusions that cocaine caused the death of the fetus. Accordingly, we hold that the PCR court erred in determining that counsel was not ineffective on these grounds

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