OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT PARISH
was found guilty of armed robbery and two counts of attempted
armed robbery based solely on his identification by the two
victims, Adrian Maldonado and Wilson Vargas, and an
eyewitness to the crimes, Anibal Maldonado. The offenses were
committed on August 15, 2009, by three armed men. Two of the
men wore masks. Defendant was identified as the unmasked man
after the witnesses collaborated with an officer to make a
computerized composite of a dark-skinned man with short hair
and a distinctive hairline. A detective proposed placing
defendant in a photographic lineup based on the composite.
The three witnesses then each identified defendant from a
victims expressed uncertainty, however, in their
identifications to a defense investigator. Vargas told the
investigator that the unmasked man was light-skinned with a
distinctive hairline,  and that he had picked out defendant from
police photographs as a man who "looked a lot like the
person who'd robbed [him]." When asked to express
his certainty in the identification on a scale of one to ten,
Vargas chose a five. Adrian Maldonado described the unmasked
man as light-skinned with short hair, and expressed his
confidence on the ten-point scale as a five. In addition,
Adrian Maldonado stated that it was difficult to make an
identification because "all black people look
alike" to him.
the defense investigator provided these statements to defense
counsel, he did not use them at trial. In addition,
defendant's head was cleanshaven at the time of the
crimes and had been since 2007, as evidenced by photographs
and testimony presented at the evidentiary
hearing. Furthermore, the witnesses described the
unmasked robber as standing approximately five feet nine
inches tall and weighing approximately 180 pounds. According
to the arrest register, defendant stands five feet seven
inches tall and weighs 152 pounds. Nonetheless, counsel
conceded at the evidentiary hearing that he did not use the
discrepancies between the robber's complexion, hair,
height, and weight, and his client, and counsel was unable to
recall why he failed to use the witnesses' statements to
undermine their identifications.
defendant was found guilty by the jury, the district court
sentenced him to 50 years imprisonment at hard labor as a
second-felony offender for armed robbery, and two terms of 24
years imprisonment at hard labor for attempted armed robbery,
with the sentences to run concurrently and without benefit of
parole, probation, or suspension of sentence. The court of
appeal affirmed. State v. Jackson, 10-1633 (La.App.
4 Cir. 10/12/11), 76 So.3d 602, writ denied, 11-2528
(La. 3/30/12), 85 So.3d 116.
timely sought relief on collateral review on the ground of
ineffective assistance of counsel. After conducting an
evidentiary hearing, the district court granted defendant a
new trial. In ruling, the district court emphasized the
problematic nature of cross-racial identifications, and the
strong indications here that the identifications were
unreliable. A divided panel of the court of appeal granted
the state's writ application and reinstated the
convictions and sentences. The majority found that defendant
had failed to carry his burden under Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984) of showing that he was prejudiced by counsel's
error. State v. Jackson, 15-1358 (La.App. 4 Cir.
5/16/16) (unpub'd). Judge Jenkins dissented, emphasizing
that the identification testimony presented by the state was
the "sole evidence linking defendant to the crimes,
" and that defense counsel possessed statements from the
two victims, which "conflict[ed], and even
contradict[ed], the original police report narrative, the
supplemental police report, and the victims'
testimony." Id., 15-1358, p. 3 (Jenkins, J.,
dissenting). Therefore, the dissent would deny the
state's writ application and leave the district
court's order that granted defendant a new trial intact.
We agree with Judge Jenkins.
Sixth Amendment, applicable to the States by the terms of the
Fourteenth Amendment, provides that the accused shall have
the assistance of counsel in all criminal prosecutions."
Missouri v. Frye, 566 U.S. 134, 138, 132 S.Ct. 1399,
1404, 182 L.Ed.2d 379 (2012). The United States Supreme Court
has long recognized that the right to counsel is the right to
the effective assistance of counsel. See McMann v.
Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449,
25 L.Ed.2d 763 (1970) (citing Reece v. Georgia, 350
U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Glasser v.
United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680
(1942); Avery v. Alabama, 308 U.S. 444, 60 S.Ct.
321, 84 L.Ed. 377 (1940); Powell v. Alabama, 287
U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). Claims of
ineffective assistance of counsel are generally governed by
the standard set forth by the Supreme Court in Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), and adopted by this Court in State v.
Washington, 491 So.2d 1337, 1339 (La. 7/18/86).
prevail on such a claim, a defendant must first show that
"counsel's representation fell below an objective
standard of reasonableness." Strickland, 466
U.S. at 687-88, 104 S.Ct. at 2064. The Supreme Court further
noted that "[a]n error by counsel, even if
professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error has no
effect on the judgment." Id., 466 U.S. at 691,
104 S.Ct. at 2066. Additionally, the Court reasoned
"[t]he purpose of the Sixth Amendment guarantee of
counsel is to ensure that a defendant has the assistance
necessary to justify reliance on the outcome of the
proceeding. Accordingly, any deficiencies in counsel's
performance must be prejudicial to the defense in order to
constitute ineffective assistance under the
Constitution." Id., 466 U.S. at 691-92, 104
S.Ct. at 2067. Thus, the Strickland court held that
the "defendant must [also] show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome." Id., 466 U.S. at 694, 104 S.Ct. at
2066. The court further explained that in making a
determination of ineffectiveness of counsel, "the
ultimate focus of inquiry must be on the fundamental fairness
of the proceeding whose result is being challenged. In every
case the court should be concerned with whether, despite the
strong presumption of reliability, the result of the
particular proceeding is unreliable because of a breakdown in
the adversarial process that our system counts on to produce
just results." Id., 466 U.S. at 696, 104 S.Ct.
state here suggests without evidence that the defense
investigator may have pressured the witnesses to recant their
identifications, mischaracterized what they said when
transcribing it, or otherwise obstructed justice, State's
brief at p. 12, and further speculates that counsel may have
chosen not to use the information obtained by the
investigator for that reason. Thus, the state, in essence,
proposes that counsel might have acted strategically to
conceal the investigator's misconduct rather than
committed professional error. This conjecture does not merit
serious consideration, and (if true) could provide further
evidence of a failure in the representation. Instead, it
seems clear counsel's representation fell below an
objective standard of reasonableness. Counsel was provided
with information that undermined the witness identifications,
in a case that rested entirely on the witness
identifications, but did not use it.
addition, the state faults the district court for considering
the strong indicia here that the identifications were
unreliable, and further faults the court for seizing on the
cross-racial nature of the identifications. Courts, however,
have recognized that "centuries of experience in the
administration of criminal justice have shown that
convictions based solely on testimony that identifies a
defendant previously unknown to the witness is highly
suspect, " and that, "[o]f all the various kinds of
evidence[, ] it is the least reliable, especially where
unsupported by corroborating evidence." See, e.g.,
Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir. 1978);
see also United States v. Wade, 388 U.S. 218, 228,
87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967) ("[T]he
annals of criminal law are rife with instances of mistaken
identification. [As] Mr. Justice Frankfurter once said:
'What is the worth of identification testimony even when
uncontradicted? The identification of strangers is
proverbially untrustworthy.'"). Scholars and judges
alike have commented that the inherent risk of
misidentification is generally exacerbated by the compelling
nature of eyewitness testimony: "there is almost nothing
more convincing than a live human being who takes the stand,
points a finger at the defendant, and says[, ]
'That's the one!'" Elizabeth F. Loftus,
Eyewitness Testimony 19 (1979). As Justice
Brennan put it, "eyewitness identification evidence has
a powerful impact on juries. Juries seem most receptive to,
and not inclined to discredit, testimony of a witness who
states that he saw the defendant commit the crime."
Watkins v. Sowders, 449 U.S. 341, 352, 101 S.Ct.
654, 661, 66 L.Ed.2d 549 (1981) (Brennan, J., dissenting).
Furthermore, cross-racial identifications have, in the words
of the Fifth Circuit, been "demonstrated to be
particularly unreliable." Gonzales v. Thaler,
643 F.3d 425, 432 (5th Cir. 2011).
only real question here is whether counsel's deficient
performance prejudiced defendant. We find it clear that it
did. The United States Supreme Court instructed in
Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770,
178 L.Ed.2d 624 (2011) as follows:
In assessing prejudice under Strickland, the
question is not whether a court can be certain counsel's
performance had no effect on the outcome or whether it is
possible a reasonable doubt might have been established if
counsel acted differently. Instead, Strickland asks whether
it is reasonably likely the result would have been different.
This does not require a showing that counsel's actions
more likely than not altered the outcome, but the difference
between Strickland's prejudice standard and a
more-probable-than-not standard is slight and matters only in
the rarest case. The likelihood of a different result must be
substantial, not just conceivable.
Richter, 562 U.S. at 111-12, 131 S.Ct. at 791-92
(internal citations and quotation marks omitted). Here, there
are stark contrasts between the witnesses' descriptions
of the robber's complexion, hair, height, and weight, and
those characteristics of the defendant. Furthermore, the
convictions rested solely on the witness identifications,
which went virtually unchallenged at trial. The likelihood of
a different result if that information had been used at trial
in a case with no other evidence linking defendant to the
crimes is more than conceivable; it is substantial.
Therefore, we find it sufficient to undermine confidence in
the outcome. We reverse the court of ...