State v. Lopez , 190 Wash. 2d 104 ( 2018 )

This opinion was filed for record
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CHIEF JUSTKE
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 94418-1
Respondent,
V. EN BANC
OSCAR RAUL LOPEZ,
Petitioner.
Filed FEB I 5 21
GORDON McCLOUD, J.—The trial court found that Oscar Lopez's lawyer
was "fairly obvious[ly]" "severely handicapped" by depression during the pretrial
and trial phases of Lopez's case.' That finding was supported by the trial court's
own observations ofdefense counsel's performance—and sometimes failure to show
up—at trial. That finding was also supported by declarations and testimony
presented at the hearing on Lopez's motion for a new trial. That evidence revealed
that defense counsel could not perform basic tasks, such as showing up to meetings
with his investigator to prepare Lopez's defense, submitting routine paperwork to
11 Verbatim Report of Proceedings(VRP)(Oct. 30, 2015) at 1315.
State V. Lopez(Oscar Raul), No. 94418-1
obtain public funding so his investigator could complete her pretrial investigation,
and calling his investigator back to learn about her "important" findings.^ Based on
that evidence,the trial court concluded that Lopez was denied his constitutional right
to effective assistance of counsel and granted Lopez's motion for a new trial. See
U.S. Const, amend. VI; Wash. Const, art. I, § 22. We agree with the trial court.
We therefore reverse the Court of Appeals' decision to reverse the trial court.
Facts and Procedural Background
Lopez was employed as a bus driver by an after-hours day care center. He
drove children from the day care center to school in the morning,and then back again
in the afternoon after school. 9 VRP (Mar. 11, 2015) at 1076, 1085. One of those
children was six-and-a-half-year-old L.M. Def. Ex. 18 (Tr. of Interview ofL.M.) at
2. Sometimes, due to the children's schedules and the location of their schools,
Lopez would be alone with L.M. on the bus. 6 VRP(Mar. 4, 2015) at 498-509.
On June 6, 2014, L.M. reported to her mother that Lopez had '"touched [her]
butt yesterday'" morning before school when she was alone with him on the bus. 7
VRP (Mar. 5, 2015) at 663. When questioned further about that touching, L.M.
explained that Lopez had "itch[ed]" and "tickl[ed]" her vagina in a way that felt as
though he was "trying to pinch [her]." Def. Ex. 18, at 13. L.M.'s mother contacted
^ Clerk's Papers(CP)at 289.
State V. Lopez(Oscar Raul), No. 94418-1
the police, and the State charged Lopez with first degree child molestation. CP at
77.
Lopez denied L.M.'s allegation of child molestation. Attorney Steven
Witchley represented him, and the case proceeded to a jury trial. Lopez's defense
theory was that L.M.'s claim was not believable. 10 VRP (Mar. 12, 2015) at 1198.
To credit L.M.'s version, Witchley explained, the jury would have to believe four
unbelievable things: (1) that Lopez, a family man, molested L.M.; (2) that the
molestation occurred sometime between January and June 2014, but not"yesterday"
morning before school as L.M. reported because the bus logs proved that Lopez was
never alone with L.M. that morning;(3) that L.M. waited weeks or months before
reporting the incident to her mother even though L.M. testified that she reported the
incident immediately; and finally (4) that Lopez would be brazen enough to touch
L.M. like that in public in the day care center's busy parking lot. Id. at 1185-97.
The jury apparently believed L.M. and convicted Lopez of first degree child
molestation. CP at 81.
After the verdict but before sentencing, Lopez fired Witchley and hired a new
attorney. The new attorney filed a motion for a new trial based on ineffective
assistance of counsel. Id. at 292-97. To prevail on a claim of ineffective assistance
of counsel, a defendant must generally show that counsel performed deficiently and
State V. Lopez(Oscar Raul), No. 94418-1
that the deficient performance caused prejudice.^ Lopez argued that he did not have
to prove deficient performance or prejudice because severe mental depression
coupled with contemporaneous or nearly contemporaneous disbarment"^ constitutes
ineffective assistance of counsel per se. Id. at 294(quoting In re Pers. Restraint of
Brett, 142 Wash. 2d 868, 883-85, 16 P.3d 601 (2001)(Talmadge, J., concurring)).
Alternatively, Lopez identified Witchley's performance, including his failure to
adequately investigate, id. at 121-24, and failure to call certain witnesses that Lopez
had identified, id. at 295-96, as grounds for ineffective assistance.^
It is undisputed that while Witchley was representing Lopez, Witchley was
suffering from severe depression, had suicidal thoughts, 11 VRP (Oct. 8, 2015) at
1298, and struggled with just getting out of bed each day, CP at 291. Karen
Sanderson, Witchley's longtime investigator, acknowledged that as Lopez's case
neared trial, she observed Witchley's depression worsening under the weight of
^ E.g., In re Pers. Restraint of Canha, 189 Wash. 2d 359, 377, 402 P.3d 266 (2017)
(citing State v. Grier, 171 Wash. 2d 17, 32-33, 246 P.3d 1260 (2011)).
Witchley was never formally disbarred from practice in Washington because he
voluntarily resigned his license in lieu of disbarment. CP at 298-310.
^ Unrelated to the issues before us, Lopez also claimed that Witchley was deficient
because Witchley allegedly failed to convey a plea offer to Lopez, id. at 129-33, and
allegedly knew that Lopez could not understand the court appointed interpreter and did not
inform the court ofthat communication barrier, id. at 125-28. The trial court rejected those
claims, 11 VRP (Oct. 30,2015) at 1317, and Lopez did not seek review of that ruling.
4
State V. Lopez(Oscar Raul), No. 94418-1
significant financial troubles, health problems, and a pending disbarment
proceeding. 11 VRP (Oct. 8, 2015) at 1298; CP at 289-90.
The record supports this assessment and shows that these problems impacted
his performance. Witchley failed to appear at court one day without explanation.
11 VRP (Oct. 8, 2015) at 1252. He also called in sick at the last minute on the
morning of trial another day and asked to postpone trial to the afternoon. CP at 59.
On the days when he did manage to show up, he was usually late. E.g., 2 VRP(Feb.
12, 2015) at 48 (10 minutes late), 3 VRP (Feb. 23, 2015) at 238 (15 to 20 minutes
late). Once, he was over an hour late. 6 VRP (Mar. 4, 2015) at 521 (one hour and
20 minutes late). Witchley's inability to show up for trial alarmed the trial judge so
much that he asked Lopez—either close to or in the middle of trial—if he wanted a
new attorney. 11 VRP (Oct. 8, 2015) at 1252-53. At that point, Lopez declined the
offer. But when Witchley continued to arrive late for trial, the trial court warned
him: "[FJrankly, I'm a little baffled. We've spoken about this a number of times.
You're obviously a very able trial attorney, but this continues to be an issue. So Mr.
Witchley, sir, if you could ~ I really want to make sure we're communicating here.
... I expect you to be on time." 3 VRP (Feb. 23, 2015) at 238-39. That warning
proved inadequate, however; Witchley continued to show up late for trial. 6 VRP
(Mar. 4,2015)at 522-24. He also failed to submit briefing specifically requested by
the court. Id.
State V. Lopez(Oscar Raul), No. 94418-1
Sanderson's testimony also supported this assessment of Witchley's mental
health and its impact on Lopez's trial. Sanderson testified that she met with Witchley
in October, several months before Lopez's trial, to create a checklist of matters that
Witchley needed her to prepare for Lopez's defense. The checklist included
interviewing certain employees at the day care center, locating witnesses from the
children's schools to verify Lopez's whereabouts on the morning of the alleged
incident, performing another site visit to the day care parking lot, and developing
evidence regarding both L.M.'s penchant for lying or exaggerating stories and
Lopez's sexual morality and decency. 11 VRP (Oct. 8, 2015) at 1289-90.
After that October meeting, however, Sanderson explained that Witchley
"checked out." CP at 289. Witchley was routinely late and often failed to show up
at case development meetings scheduled with her. Id. at 288. According to
Sanderson, she and Witchley "tr[ied] to set up some times to meet to go to the scene
together but he almost always cancelled at the last minute, with a different excuse
every time." Id. "Every time he cancelled at the last minute he offered a new
excuse" that "was always something like T over slept and can't make it' or T didn't
sleep last night' or 'I'm sick.'" Id. at 288-89.
Eventually, Witchley stopped communicating with Sanderson altogether. 11
VRP(Oct. 8,2015)at 1286. As a result, Sanderson was unable to give him important
case information she discovered during her investigation. Sanderson said she left
6
State V. Lopez(Oscar Raul), No. 94418-1
Witchley a voicemail, an e-mail, and text messages asking him to call her back so
they could talk about the new information she learned during her last interview,
which she believed was "important" to Lopez's case. CP at 289. But Witchley never
called her back, so she never told him what that "important" information was. Id.
She also did not document that "important" new information in a memo because
Witchley stopped paying her to do so and refused to take the simple steps necessary
to procure additional payments. Id.
In fact by December 2014, Sanderson had been working on Lopez's case for
two months without payment based on Witchley's promise of eventual payment.
Because Lopez was indigent, Sanderson's investigative work was paid through the
Office ofPublic Defense (OPD). Id. at 89-90. The OPD had preauthorized $1,500
for Sanderson to develop Lopez's defense, id. at 89, but Sanderson had exceeded
that amount by October 2014, id. at 289. To receive additional funding for
Sanderson's investigation, Witchley had to submit a request to OPD. Id. This is a
fairly routine process. Because Witchley repeatedly implied to Sanderson that he
had submitted a request for additional funding, Sanderson continued to work on
Lopez's case for an additional two months, from October to December, without
payment. Id. After two months without payment and after Witchley stopped
returning her calls, Sanderson had to stop work on Lopez's case. Id. "This meant
that some things [they] had planned to do on the case prior to trial never took place.
7
State V. Lopez(Oscar Raul), No. 94418-1
[Sanderson] had several reports that should have been written that were not typed
up. There were interviews that never took place, as far as [Sanderson] kn[e]w.
Demonstrative exhibits, prep for [Sanderson's] testimony and other tasks never
happened." Id. According to Sanderson, Witchley claimed to have strategic reasons
for not calling Sanderson as a witness at trial. Id. at 291. But he never claimed to
have strategic reasons for failing to follow through on the work that he himself had
deemed necessary in October before he became severely handicapped by illness—
interviews, meet ups, exhibits, "other tasks" for trial preparation, and simple
communication about the defense. Id. at 289.
OPD records show that Witchley did not submit the request for additional
funding until after Lopez's trial ended. Id. at 89. In that request for additional,
retroactive, funding, Witchley acknowledged that Sanderson had reminded him
continuously throughout Lopez's case that he needed to secure extra OPD funding
for her continued investigation and that he "simply failed to appropriately prioritize
submission of [the request]" "[f]or a variety of not-very-good reasons." Id. at 92-
93.
After considering all this evidence, the trial court granted Lopez's motion for
a new trial due to ineffective assistance of counsel and denial of due process clause
protections. 11 VRP (Oct. 30, 2015) at 1309-10, 1315-17. The trial court found,
based largely on Sanderson's testimony and declaration, that it was "fairly clear that
8
State V. Lopez(Oscar Raul), No. 94418-1
had [Witchley] not been handicapped by his depression, he would have been more
effective," id. at 1316, in "[his] handling of the entire case, including pretrial
investigation and communications with his client," id. at 1311. Witchley's
depression, the trial court found, "fairly obvious[ly]" "severely handicapped" his
representation of Lopez. M at 1315.
One of the failures that the trial court cited was Witchley's failure to
investigate reputation evidence or call reputation witnesses. Regarding this failure,
Witchley specifically acknowledged that "[he] did not have any tactical reasons for
not calling reputation witnesses." CP at 347. That acknowledgement corresponded
with Sanderson's testimony. Sanderson testified that she developed reputation
evidence in other cases for Witchley before, 11 VRP(Oct. 8, 2015)at 1297, and that
it was her understanding, based on her 15 plus years of experience working with
Witchley, CP at 285, that it was his intent to pursue credibility evidence regarding
L.M. and sexual morality reputation evidence regarding Lopez in this case, 11 VRP
(Oct. 8, 2015) at 1293.^ But Sanderson never performed this investigation because
Witchley stopped paying her and stopped communicating with her. CP at 289.
^ According to Sanderson, her assignment was to "go back and interview day care
workers to find out if[L.M.] had a propensity for lying or making up stories or exaggerating
stories" and learn "what[Lopez's] reputation in the community was for . .. along the lines
of that he's not a child molester, that he's a good, a good person," 11 VRP (Oct. 8, 2015)
at 1293, specifically Lopez's "good sexual morality and/or decency in the community," id.
at 1297.
State V. Lopez(Oscar Raul), No. 94418-1
The trial court found this failure particularly troubling since Witchley did not
have to even search for the reputation witnesses because Lopez told him who they
were, though Lopez described these witnesses' anticipated testimony in terms of
character rather than reputation evidence. 11 VRP (Oct. 30, 2015) at 1309.
According to the trial court, Witchley"simply failed to spot the issue." Id. Witchley,
in dismissing Lopez's request that he call "certain character witnesses,""never took
the additional step [in] asking whether the proposed testimony might be recast as
admissible reputation testimony." Id. (emphasis added). Based on this evidence,
on the trial court's own observations of Witchley's performance before and during
trial, and on the new evidence heard and reviewed at the hearing on the motion for
a new trial—including the evidence showing Witchley's failure to communicate,
failure to prepare, and sometimes failure to perform at all—^the trial court granted
Lopez's motion for a new trial.
The Court of Appeals reversed. State v. Lopez, No. 74333-3-1, slip op. at 2
(Wash. Ct. App. Mach 20, 2017) (unpublished),
http://www.courts.wa.gov/opinions/pdf/743333.pdf, review granted, 189 Wash. 2d
1001, 400 P.3d 1263 (2017). It interpreted the trial court's finding of ineffective
assistance of counsel as being based solely on Witchley's failure to call reputation
witnesses to testify about Lopez's sexual morality and decency. Id. at 4. Because
the fact that Witchley failed to call reputation witnesses was not in dispute, the issue
10
State V. Lopez(Oscar Raul), No. 94418-1
that the Court of Appeals identified was solely a question oflaw, which it reviewed
de novo. See id. at 4-6. On that purely legal question, the Court of Appeals held
that Witchley's failure to investigate and present sexual morality and decency
evidence could not be classified as deficient performance because such evidence is
not admissible under a published decision from that division: State v. Jackson, 46
Wash. App. 360, 365, 730 P.2d 1361 (1986). Id. at 6. This Division One panel
recognized that Divisions Two and Three of the Court of Appeals have reached an
opposite conclusion regarding the admissibility of sexual morality evidence^ but
determined that that conflict was immaterial because "counsel has ... no duty to
pursue strategies that appear unlikely to succeed, and no duty to anticipate changes
in the law." Id. (citing State v. Brown, 159 Wash. App. 366, 371-72, 245 P.3d 776
(2011)).
As for the trial court's finding that Witchley's depression had "fairly
obvious[ly]" "severely handicapped" his representation of Lopez, 11 VRP (Oct. 30,
2015) at 1315, the court interpreted that finding as relating solely to Lopez's per se
^ Compare State v. Griswold,98 Wn. App. 817, 828,991 P.2d 657(2000)(Division
Three holding evidence ofsexual morality and decency is admissible), abrogated on other
grounds by State v. DeVincentis, 150 Wash. 2d 11, 74 P.3d 119(2003), and State v. Harper,
35 Wash. App. 855, 859-60, 670 P.2d 296 (1983)(Division Two stating such evidence is
admissible), with Jackson, 46 Wash. App. at 365 (Division One holding such evidence is
inadmissible).
11
State V. Lopez(Oscar Raul), No. 94418-1
prejudice/quasi-due process argument and held that defendants have no right to
counsel free from mental illness. Id. at 2.
Lopez petitioned this court for review, which we granted. Lopez, 189 Wash. 2d
1001.
Analysis
I. Ineffective Assistance of Counsel Requires a Showing of Deficient
Performance and Prejudice; Whether Counsel's Performance Was
Deficient and Prejudicial Is a Mixed Question ofFact and Law, Which
We Review De Novo
A. The Testfor Ineffective Assistance ofCounsel
A criminal defendant is entitled to effective assistance of counsel. U.S.
Const, amend. VI; Wash.Const, art. I, § 22;In re Pers. Restraint of Yung-Cheng
Tsai, 183 Wash. 2d 91, 99, 351 P.3d 138 (2015). Effective assistance includes many
things. "It is thus impossible to 'exhaustively define the obligations of counsel[]or
form a checklist forjudicial evaluation of attorney performance.'" Tsai, 183 Wash. 2d
at 99-100 (alternation in original)(quoting Strickland v. Washington, 466 U.S. 668,
688, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984)).
Nevertheless, effective representation 'entails certain basic
duties,' such as
a duty of loyalty, a duty to avoid conflicts of interest[,]. .
. the overarching duty to advocate the defendant's cause
and the more particular duties to consult with the
defendant on important decisions and to keep the
12
State V. Lopez(Oscar Raul), No. 94418-1
defendant informed of important developments in the
course ofthe prosecution. Counsel also has a duty to bring
to bear such skill and knowledge as will render the trial a
reliable adversarial testing process.
Id. at 100 (alterations in original)(quoting Strickland,466 U.S. at 688). In addition,
the "right to effective assistance includes a 'reasonable investigation' by defense
counsel." State v. Boyd, 160 Wn.2d 424,434,158 P.3d 54(2007)(citing Strickland,
466 U.S. at 684; Brett, 142 Wash. 2d at 873). Reasonable investigation "includes
expert assistance necessary to an adequate defense." State v. Punsalan, 156 Wash. 2d
875, 878, 133 P.3d 934(2006)(citing v. Oklahoma,470 U.S. 68,72, 105 S. Ct.
1087, 84 L. Ed. 2d 53 (1985)).
Ifan attorney's performance is deficient,the next question is whether it caused
prejudice. "Prejudice exists ifthere is a reasonable probability that 'but for counsel's
deficient performance,the outcome ofthe proceedings would have been different.'"
State V. Estes, 188 Wash. 2d 450, 458, 395 P.3d 1045 (2017)(quoting State v. Kyllo,
166 Wash. 2d 856, 862, 215 P.3d 111 (2009) and citing Strickland, 466 U.S. at 694).
"[A] 'reasonable probability' is lower than a preponderance standard." Id. (citing
Strickland, 466 U.S. at 694; State v. Jones, 183 Wash. 2d 327, 339, 352 P.3d 776
(2015)). "Rather, it is a probability sufficient to undermine confidence in the
outcome." Id. (citing Strickland, 466 U.S. at 694).
13
State V. Lopez(Oscar Raul), No. 94418-1
B. The Standard of Review for Trial Court Rulings on Ineffective
Assistance ofCounsel
"[C]laims of ineffective assistance of counsel present mixed questions of law
and fact." Brett, 142 Wash. 2d at 873 (citing State v. S.M., 100 Wash. App. 401, 409,
996 P.2d 1111 (2000)). We review a trial court's factual findings made in the course
of deciding an ineffective assistance issue for substantial evidence.^ See id. (citing
In re Pers. Restraint of Gentry, 137 Wash. 2d 378, 410, 972 P.2d 1250(1999)(citing
RAP 16.14(b))). But we review "[t]he legal conclusions flowing from such findings
and testimony . . . de novo." Id. at 873-74 (citing State v. Davis, 25 Wash. App. 134,
137 n.l, 605 P.2d 359 (1980)). Because the ultimate conclusion of whether
counsel's performance was ineffective constitutes an application of law to
established facts, it is "a mixed question of fact and law reviewed de novo." State
V. Sutherby, 165 Wash. 2d 870, 883, 204 P.3d 916 (2009)(citing In re Pers. Restraint
ofFleming, 142 Wash. 2d 853, 865, 16 P.3d 610 (2001)); accord Ornelas v. United
^ '"Substantial evidence' means evidence that is sufficient "'to persuade a rational,
fair-minded person ofthe truth ofthe finding.'"" Blackburn v. State, 186 Wn.2d 250,256,
375 P.3d 1076(2016)(pyxoXing Hegwine v. Longview Fibre Co., 162 Wash. 2d 340, 353, 172
P.3d 688(2007)(quoting/« re Estate ofJones, 152 Wash. 2d 1, 8, 93 P.3d 147(2004)))."So
long as this substantial evidence standard is met, 'a reviewing court will not
substitute its judgment for that of the trial court even though it might have resolved
a factual dispute differently.'" Id. (quoting Sunnyside Valley Irrig. Dist. v. Dickie,
149 Wash. 2d 873, 879-80, 73 P.3d 369 (2003)).
14
State V. Lopez(Oscar Raul), No. 94418-1
States, 517 U.S. 690, 696-97, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996)(applying
same standard of review to ultimate conclusions of probable cause and reasonable
suspicion because they involve mixed questions oflaw and fact).
Lopez argues that a different, more deferential, standard applies when the trial
court grants (rather than denies) a new trial based on ineffective assistance of
counsel. Lopez correctly observes that a trial court's decision to grant or deny a
motion for a new trial is reviewed for an abuse of discretion. State v. Hawkins, 181
Wash. 2d 170, 179, 332 P.3d 408(2014)(citing State v. Williams, 96 Wash. 2d 215, 221,
634 P.2d 868 (1981)), but that we generally give greater deference to a trial court
decision to grant a new trial than to deny one, id. (citing State v. Brent, 30 Wash. 2d
286, 290, 191 P.2d 682 (1948)). He is also correct that trial courts generally have
"wide discretion in deciding whether or not to grant a new trial" because '"the trial
judge who has seen and heard the witnesses is in a better position to evaluate and
adjudge than can [appellate courts] from a cold, printed record.'" Id. (quoting State
V. Wilson, 71 Wash. 2d 895, 899, 431 P.2d 221 (1967)).
Those reasons and that deferential standard do not, however, apply to
questions of law and mixed questions of law and fact. See State v. Mohamed, 186
Wash. 2d 235, 240-41, 375 P.3d 1068 (2016)("'Except where questions of law are
involved, a trial judge is invested with broad discretion in granting motions for new
trial '"(quoting Williams,96 Wn.2d at 221)). And that is precisely what we have
15
State V. Lopez(Oscar Raul), No. 94418-1
here. We therefore review the trial court's factual findings for substantial evidence
and its legal conclusions de novo.
C. There Is No Separate, Dijferent Inejfective Assistance Test for
Lawyers Sufferingfrom Mental Illness
Lopez argues that the court should presume deficient performance when
counsel is afflicted by mental illness. Pet'r's Suppl. Br. at 9 (citing U.S. CONST,
amend. XIV). We disagree.
Lopez's argument is based on the notion that an attorney suffering from
mental illness is categorically unable to provide effective representation. Lopez
provides no evidence to support this notion, and we cannot find any support for it
either. In fact, the rule we find is just the opposite: attorneys and judges may have
disabilities of all kinds, mental as well as physical, but that alone does not disable
them from practicing law or adjudicating cases. The ability to be an effective
professional depends, instead, on the actual effect of the disability on the attorney's
performance. Dows v. Wood,211 F.3d 480,485 (9th Cir. 2000)("The mere fact that
counsel may have suffered from a mental illness at the time of trial .. . has never
been recognized by the Supreme Court as grounds to automatically presume
prejudice."); Smith v. Ylst, 826 F.2d 872, 876 (9th Cir. 1987)("Rather than attempt
to identify mental illnesses that would presumptively disable an attorney from
conducting a criminal defense we believe it is more prudent to evaluate the attorney's
16
State V. Lopez(Oscar Raul), No. 94418-1
actual conduct of a trial in light of allegations of mental incompetence."); Johnson
V. Norris, 207 F.3d 515,518(8th Cir. 2000)(declining to adopt a per se presumption
of ineffective assistance of counsel when trial counsel suffers from mental illness
(citing Pilchakv. Camper, 935 F.2d 145, 149 (8th Cir. 1991))). Indeed, there are
many exceptionally talented lawyers who suffer from mental illness without causing
harm to their clients. Br. of WACDL(Washington Association of Criminal Defense
Lawyers) as Amicus Curiae at 5; see James T.R. Jones, "High Functioning :
Successful Professionals with Severe Mental Illness, 7 DUKE F. L.& SOC. CHANGE
1 (2015).
This does not mean that evidence of counsel's mental health (or physical
health) is irrelevant. When counsel's ability to adequately investigate, prepare,
communicate, or present the client's case is impaired by disability, counsel's
performance might well be deficient. The trial court therefore applied the correct
standard when it stated that the proper focus is on the attorney's performance, not
on the mere existence of a disability: "Really,the question is whether Mr. Witchley's
handling ofthe entire case,including pretrial investigation and communications with
17
State V. Lopez(Oscar Raul), No. 94418-1
his client, may have been adversely affected by his mental health."^ 11 VRP (Oct.
30, 2015) at 1311 (emphasis added).
^ The concurrence in the dissent is concemed that this decision will create several
problems. Those concerns lack foundation.
The first problem that it suggests is that this decision will allow attacks on
convictions based on defense counsel's mental illness alone. But that is not what this
opinion says; it says just the opposite: "[AJttomeys and judges may have disabilities of all
kinds, mental as well as physical, but that alone does not disable them from practicing law
or adjudicating cases." Supra p. 16(emphasis added).
The second problem that the concurrence in dissent suggests is that this decision
creates a new rule allowing evidence of defense counsel's mental health to be admitted in
ineffective assistance of counsel proceedings. But this opinion does not change the law on
the admissibility of such evidence at all; in fact, it maintains the status quo. It adheres to
the general rule that factual data within and outside the record is relevant to whether
counsel's performance is deficient. Sometimes, that factual data involves evidence of
defense counsel's health. State v. Herron,noted at 130 Wn.App. 1015,2005 WL 2858080,
at *1 (involving claim that defense counsel was under the influence of alcohol during trial
proceedings); Babbitt v. Woodford, 111 F.3d 744,746 (9th Cir. 1999)(citing evidence that
defense counsel had resigned from legal practice amid evidence that he had drank three or
four alcoholic drinks on a number of occasions while on lunch recess during trial); In re
Pers. Restraint ofLui, 188 Wash. 2d 525, 573, 397 P.3d 90 (2017)(Madsen, J., dissenting)
(involving claim that defense counsel was functionally and mentally absent at trial due to
old age and deteriorating health). That is because central to the deficient performance
analysis is whether counsel had tactical reasons for acting or failing to act. Evidence that
counsel failed to act because he or she "checked out" ofthe case for whatever reason (e.g.,
sleeping, mental health, drug use, alcoholism, or financial problems) is certainly relevant
to rebut Strickland''?, presumption that counsel had tactical reasons for failing to act.
The third problem that the concurrence in dissent suggests is that any inquiry into
defense counsel's mental health would somehow violate the Americans with Disabilities
Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213, or be inconsistent with administration
guidelines from the American Bar Association(ABA). The ADA prohibits employers and
public entities from discriminating against individuals who have a physical or mental
impairment. It does not prohibit courts from inquiring into whether an attorney's
performance was impaired by a mental condition while representing a client. Nor does the
18
State V. Lopez(Oscar Raul), No. 94418-1
Thus, to prevail on his ineffective assistance of counsel claim, Lopez must
prove that Witchley's performance was both deficient and caused prejudice. We
review the trial court's factual findings related to these issues for substantial
evidence. We review its conclusions of law, and its resolution of mixed questions
oflaw and fact, de novo.
II. The Trial Court's Factual Finding That Witchley's Performance before
and during Trial Was "Severely Handicapped" by Depression Is
Supported by Overwhelming Evidence; The Trial Court's Conclusion
That This Constituted Deficient Performance Is Legally Correct
The trial court found that Witchley's pretrial investigation and trial
performance was "severely handicapped" by his depression. Id. at 1315. This
finding, the trial court explained, extended beyond Witchley's failure to present
ABA. The ABA's Resolution 102 urges legal licensing entities to focus their admission
questions on conduct or behavior that impairs an applicant's ability to practice law in a
competent, ethical, and professional manner rather than on the presence of any mental
health diagnosis, which is exactly what we do in our ineffective assistance of counsel
analysis in this case. Am. Bar Ass'n, Resolution 102 (Aug. 2015),
https://americanbar.org/content/dam/aba/images/abanews/2015annual resolutions/102.pdf
Our analysis is focused on Witchley's conduct and failures at trial, though we have not
ignored evidence of Witchley's deteriorating mental health either. But nothing in the
ABA's resolutions or guidelines suggest that we should ignore mental health or substance
abuse issues in our legal community. To the contrary, the ABA's Resolution 106 requires
that we maintain an open discussion about mental health and substance use disorders. To
that end, the ABA maintains a public database of attomey disciplinary cases involving
mental health and substance abuse concems. Am. Bar Ass'n, Case Law Reviews,
https://www.americanbar.org/groups/lawyer_assistance/resources/case_law_reviews.htnil
(last visited Jan. 19, 2018).
19
State V. Lopez(Oscar Raul), No. 94418-1
sexual morality and decency evidence since "the motion for new trial in this matter
raises issues that go beyond simply the failure to call reputation testimony." Id. at
1311. According to the trial court,"Really, the question is whether Mr. Witchley's
handling ofthe entire case,including pretrial investigation and communications with
his client, may have been adversely affected by his mental health." Id. The trial
court found that it was. Id. at 1315.'°
The trial court made this finding after considering Sanderson's live testimony,
Sanderson's written declaration, Witchley's transcribed and audio recorded
interview, Witchley's written declaration, the letter written by Witchley's
psychologist, and the trial court's own observations throughout trial proceedings.
But the trial court did not enter any written factual findings and conclusions of law
to explain that finding. The trial court did not do so because Lopez's second lawyer
said he did not need them and the State did not request them. Id. at 1319. Instead,
the trial court incorporated its oral ruling into its written order. CP at 350. We
therefore review the trial court's oral ruling in conjunction with the record to
determine whether the trial court's factual finding that Witchley's pretrial and trial
'° We are unpersuaded by the State's attempt to narrow the trial court's finding to
only Witchley's tardiness. Wash. Supreme Court oral argument.State v. Lopez,No.94418-
1 (Nov. 16, 2017), at 23 min., 20 sec. through 24 min., 39 sec., audio recording by TVW,
Washington State's Public Affairs Network, http://www.tvw.org.
20
State V. Lopez(Oscar Raul), No. 94418-1
preparation was severely handicapped by depression is supported by substantial
evidence. We hold that it was.
First, we have the record oftrial and pretrial proceedings. As discussed above,
supra pp. 4-5, Witchley's failures to appear, failure to submit briefing, and apparent
inability to follow simple court orders were clear from the record. They were also
red flags for the judge, who tried to address these deficiencies as they arose but
became convinced that his efforts did not work.
Next, we have the hearing on the motion for a new trial. Sanderson testified
that Witchley identified several tasks as necessary for trial preparation. For example,
he told her to investigate how busy the day care center's parking lot was. 11 VRP
(Oct. 8, 2015) at 1293. He sought that evidence to undermine L.M.'s claim that
Lopez molested her in such a busy area yet there were no witnesses. Witchley also
asked Sanderson to compile evidence regarding L.M.'s reputation for lying. Id.
But Witchley completely '"checked out'" of Lopez's case before those tasks
were completed. 11 VRP (Oct. 30, 2015) at 1312. Witchley failed to request
additional OPD funding for Sanderson to complete that investigation, failed to show
up for meetings with her so she could not help him develop the defense, and failed
to return her messages so she could not tell him about the "important" case
information she discovered. CP at 289. These examples support Sanderson's
assertion that Witchley "checked out" of other necessary trial preparation and the
21
State V. Lopez(Oscar Raul), No. 94418-1
trial court's conclusion that this partial development of Lopez's case "severely
handicapped" Witchley's performance at trial. Indeed, according to Sanderson,
Witchley never followed through on trial exhibits he originally requested and other
trial necessities.
Witchley's own statements also support the assertion that he "checked out"
before the trial. Witchley acknowledged that he did not submit additional OPD
funding requests because he "simply failed to appropriately prioritize submission of
[the request]" "[f]or a variety of not-so-good reasons." Id. at 93. Clearly, those
"not-so-good reasons" included his severe depression, which caused him to miss
meetings with Sanderson to discuss the progress of her investigation, to not prepare
trial exhibits and witness examinations, and to not view the day care center's parking
lot. Notably, according to Sanderson, Witchley knew "'that he shouldn't have taken
the case to trial and that he was not emotionally capable of working on it,"' 11 VRP
(Oct. 30, 2015) at 1313, but '"didn't want to get off the case'" because "'he was
financially dependent on Mr. Lopez's case,"' id. at 1312-13."
" The State disputes whether Witchley ever admitted that he was not mentally
equipped to represent Lopez at trial and that he was financially dependent on the ease.
Wash. Supreme Court oral argument, supra, at 36 min., 10 sec. through 36 min., 22 sec.
But the State never contested this statement or Sanderson's credibility during the reference
hearing. Even if the State had challenged Sanderson's credibility, our review of the trial
court's factual finding is for substantial evidence to support that finding, not to make
credibility determinations. In re Marriage ofRideout, 150 Wash. 2d 337, 350-51, 77 P.3d
1174 (2003).
22
State V. Lopez(Oscar Raul), No. 94418-1
We agree with the trial court that this fell well below prevailing professional
norms and therefore constitutes deficient performance. Wiggins v. Smith, 539 U.S.
510,521, 123 S. Ct. 2527, 156L.Ed.2d471(2003)(Whether counsel's performance
was deficient depends on '"prevailing professional norms.'" (quoting Strickland,
466 U.S. at 688)).
Neither Witchley nor the State provides any strategic or tactical explanation
for Witchley's failure to conduct trial preparation that he himself deemed necessary
when he was well. And there is no permissible strategic reason for failing to submit
court-requested briefing, failing to procure payment for the investigator, and failing
to show up for trial. To the contrary, Witchley acknowledged that Sanderson's
investigative services were "necessary to [Lopez's] defense," CP at 92, and
necessary for him to "adequately prepare[] for trial in this case," id. at 94.
We therefore conclude the trial court's factual findings about Witchley's
deficiencies are supported by substantial evidence. We further agree with the trial
court that these basic failures—including Witchley's failure to investigate, failure to
prepare for trial, and failure to show up to court—"fairly obvious[ly]" meet the legal
definition of"deficient performance."'^ 11 VRP (Oct. 30, 2015) at 1315; see Yung-
The concurrence in the dissent misapprehends our holding. We do not affirm the
trial court's finding of ineffective assistance based on Witchley's chronic tardiness or
failure to submit invoices for payment. Rather, we affirm based on Witchley's many
23
State V. Lopez(Oscar Raul), No. 94418-1
Cheng Tsai, 183 Wash. 2d at 100; Boyd, 160 Wash. 2d at 434; Punsalan, 156 Wash. 2d at
879.'3
III. The Trial Court's Factual Finding That Witchley's Failures "Severely
Handicapped" His Performance Is Supported by Substantial Evidence,
and Its Implicit Conclusion That This Caused Prejudice Is Legally
Correct
To prevail on a claim of ineffective assistance of counsel, a defendant must
also show that counsel's deficient performance caused prejudice. E.g., Canha, 189
Wash. 2d at 377 (citing Grier, 171 Wash. 2d at 32-33). The Strickland prejudice test "is
ultimately concerned with 'the fundamental fairness ofthe proceeding whose result
is being challenged.'" In re Pers. Restraint ofGrace, 174 Wash. 2d 835, 844,280 P.3d
1102(2012)(quoting Strickland, 466 U.S at 696). "'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
failures: his failure to investigate, his failure to prepare for trial, and his failure to show up
for court.
Notably, we agree with the Court of Appeals that had the trial court based its
finding of deficient performance solely on Witchley's failure to investigate reputation
evidence, that finding would not be sustainable. We agree with the Court of Appeals that
"counsel has ... no duty to pursue strategies that appear unlikely to succeed, and no duty
to anticipate changes in the law." Lopez, slip op. at 6(citing Brown, 159 Wash. App. at 371-
72). Even though there was an existing split among the Court of Appeals divisions
regarding the admissibility of sexual morality and reputation evidence at the time of
Lopez's trial, any appeal in Lopez's case would have been reviewed by Division One,
which had already held that such reputation evidence is inadmissible. Jackson, 46 Wn.
App. at 365.
24
State V. Lopez(Oscar Raul), No. 94418-1
process that our system counts on to produce just results.'" Id. A defendant must
therefore show '""a reasonable probability that, but for counsel's deficient
performance,the outcome ofthe proceedings would have been different.'"" Canha,
189 Wash. 2d at 377 (quoting Grier, 171 Wash. 2d at 34 (quoting Kyllo, 166 Wash. 2d at
862)). But a "reasonable probability" is lower than a preponderance standard.
Strickland, 466 U.S. at 694; Estes, 188 Wash. 2d at 458. It "is a probability sufficient
to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The trial court said Witchley's performance "fairly obvious[ly]" "severely
handicapped" the defense. 11 VRP (Oct. 30, 2015) at 1311, 1315. To the extent
this is a factual finding about what really happened, it is supported by substantial
evidence. Sanderson testified that Witchley defined the investigation necessary for
the case before his illness overcame him. 11 VRP (Oct. 8, 2015) at 1293. She also
explained that Witchley defined other necessary trial preparation, including the
assembly of exhibits, before his depression "handicapped" him. She further
explained that she knew the unfinished work was sufficiently "important" to Lopez's
case based on her 15 plus years of work on criminal defense cases, including many
cases with Witchley. She shared her contemporaneous concern about the importance
of this unfinished work by leaving a voicemail, an e-mail, and text messages asking
Witchley to call her back. CP at 289. And she explained that that work was never
finished because Witchley "checked out" of the case—and there was no evidence
25
State V. Lopez(Oscar Raul), No. 94418-1
that he ever fully checked back in. Id. In addition, Sanderson never got around to
collecting evidence regarding "[L.M.'s] propensity for lying or making up stories or
exaggerating stories," 11 VRP (Oct. 8, 2015) at 1293, even though Lopez's entire
defense theory at trial was that L.M. was lying. 10 VRP (Mar. 12, 2015) at 1198.
Sanderson's testimony corresponded with the trial judge's own
contemporaneous observations of Witchley's performance (and failures) at trial.
The trial judge observed firsthand Witchley's inability to follow through on simple
tasks like submitting required briefing or waking up to come to court. Supra p. 5.
The judge tried talking to Witchley, threatening him with financial sanctions, and
eventually sanctioning him to correct the problem, but none of this worked. All of
this evidence supports the trial court's factual finding that Witchley's trial
preparation and performance was "fairly obvious[ly]" "severely handicapped." 11
VRP (Oct. 30, 2015) at 1315.
It also supports the trial court's implicit legal conclusion that this adverse
effect amounted to prejudice. Id. at 1311-15. This case was not a slam-dunk case
for the State. The outcome depended solely on the credibility of a six-and-a-half-
year-old's contradictory report. The jury deliberated for over a day,"" after a seven
10 VRP (Mar. 12, 2015) at 1211 (deliberation beginning around 12:36 p.m.); 10
VRP (Mar. 13, 2015) at 1212(jury verdict at 2:03 p.m. the next day).
26
State V. Lopez(Oscar Raul), No. 94418-1
day trial. The trial judge who heard and saw the same evidence as the jury
expressly stated that "this was a close case" that "could have gone the other way."
Id. at 1310. The trial court's assessment reflected Witchley's professional
assessment as well. Witchley believed, based on his 25 years of experience as a
criminal defense attorney, CP at 304, that this was a close case:
I thought it-I really thought it was gonna be a hung jury is what I
thought to tell you the truth, you know. No-um anyone's an idiot if
they-any defense attorney is an idiot ifthey tell you that you're-they're
gonna win. Any defense case can be lost[,] .. . includ[ing]-you know
obviously including this one. But, I did think it had the hallmarks of a
hung jury.
CP at 245-46.
Given the fact that the outcome of this case turned on L.M.'s credibility, that
it was a close case, and that the serious deficiencies in Witchley's pretrial preparation
and trial performance were clear and debilitating, we are convinced based on these
unique facts that there is a reasonable probability of prejudice sufficient to
undermine confidence in the outcome of Lopez's trial.'^
CP at 54-73.
1^ We reject Lopez's argument that he does not have to prove prejudice. The United
States Supreme Court, in ""Cronic {{United State v. Crania,466 U.S. 648, 104 S. Ct. 2039,
80 L. Ed. 2d 657 (1984)),] recognized a narrow exception to Strickland's holding that a
defendant who asserts ineffective assistance of counsel must demonstrate not only that his
attomey's performance was deficient, but also that the deficiency prejudiced the defense."
Florida v. Nixon,543 U.S. 175,190,125 S. Ct. 551,160 L. Ed.2d 565(2004). This narrow
exception applies when '"counsel entirely fails to subject the prosecution's case to
meaningful adversarial testing,"' Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843, 152 Lans. Ch.
27
State V. Lopez(Oscar Raul), No. 94418-1
Conclusion
We agree with the trial court that Witchley's pretrial and trial performance
was deficient and that the deficiency caused prejudice. We therefore reverse the
Court of Appeals and affirm the trial court's decision to grant a new trial due to
ineffective assistance of counsel.
Ed. 2d 914(2002)(quoting Cronic, 466 U.S. at 659), or the defendant "'is denied counsel
at a critical stage of his trial," Woods v. Donald, U.S. , 135 S. Ct. 1372, 1375, 191
L. Ed. 2d 464(2015)(quoting Cronic,466 U.S. at 659). Although Witchley's pretrial and
trial deficiencies were serious, they did not deprive Lopez entirely of a defense.
28
State V. Lopez(Oscar Raul), No. 94418-1
WE CONCUR:
loAAA^i. C.(Jj
O'
29
State V. Lopez(Oscar Raul)
No. 94418-1
JOHNSON, J.(dissenting)—This case involves review of a trial court's
decision to grant a new trial based on a claim of ineffective assistance of defense
counsel. The trial court identified two separate, independent grounds for granting
relief:(1) counsel's alleged failure to call certain witnesses to testify to the
defendant's good character for sexual morality in defending against a child
molestation charge and (2) counsel's alleged clinical depression. The Court of
Appeals reversed and reinstated the conviction. The majority correctly agrees with
the Court of Appeals holding that no independent Fourteenth Amendment to the
United States Constitution due process right to representation by counsel who is
not suffering from mental illness exists and that the Strickland)^ analysis controls.
However, in applying Strickland, the majority is impermissibly selective in its
reading of the record, mischaracterizing what occurred before and during trial. In
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
State V. Lopez(Oscar Raul), No. 94418-1
(Johnson, J., dissenting)
fact, the majority barely mentions, let alone analyzes, counsel's trial performance.
Even more troubling is the majority's discovery in the trial court's oral ruling of an
"implicit conclusion" oflaw, which it upholds as "legally correct." On the record
before us, properly analyzed, no ineffectiveness exists.
The majority apparently believes that de novo review is a mandate to
sidestep the deficiencies raised by Oscar Lopez and reached by the trial court, and
to read "implicit" conclusions, which the trial court never articulated, into the trial
court's ruling. The majority starts by announcing that the Court of Appeals
"interpreted that finding [that trial counsel was severely handicapped by his
depression] as relating solely to Lopez's per se prejudice/quasi-due process
argument." Majority at 11. But the Court of Appeals correctly concluded that when
the trial court stated in its oral ruling that
even though the court finds it difficult to make any conclusions on a
more probable than not basis as to what the result would have been
had Mr.[Steven] Witchley been functioning at full capacity, it seems
to the court that, as a matter ofdue process, a defendant is entitled to
be represented by somebody who is not suffering from mental
illness[,]
it meant exactly what it said. 11 Verbatim Report ofProceedings(VRP)(Oct. 30,
2015) at 1316-17(emphasis added). The trial court, in discussing what effect, if
any, Witchley's depression may have had on his representation of Lopez, stated:
State V. Lopez(Oscar Raul), No. 94418-1
(Johnson, J., dissenting)
And I think the court should make it clear that in taking the
mental health issues into consideration, that this is really not a
Strickland analysis because under Strickland, the court would be
required to actually find that as a result of Mr. Witchley's depression
that [Lopez] was convicted essentially and that the result would have
been different. That is a very difficult judgment call to make. Mr.
Witchley, even despite his shortcomings, was a competent trial
attorney for the most part, exceptfor the evidentiary issues.
11 VRP (Oct. 30, 2015) at 1316(emphasis added). It is evident from this statement
that the trial court's finding at issue, i.e., that Witchley's handling ofthe entire case
was severely handicapped by his depression, was not susceptible, in the eyes of the
trial judge, to a Strickland analysis. Furthermore, it is evident that the trial court
believed that the only Strickland-type deficiency raised by Lopez was the trial
attorney's performance as to the evidentiary issues, and that his overall
performance at trial was "competent." And the Court of Appeals correctly
concluded, and the majority apparently agrees, that the evidentiary issues did not
constitute deficient performance and further did not prejudice Lopez. As ofthe
time of the trial, case law existed recognizing that ER 404(a)(1) evidence of a
defendant's good reputation for sexual morality was not admissible. In State v.
Jackson^ Division One explicitly held that evidence of a defendant's good
reputation for sexual morality is not admissible in cases involving sexual offenses
'46 Wn. App 360, 365, 730 P.2d 1361 (1986).
State V. Lopez(Oscar Raul), No. 94418-1
(Johnson, J., dissenting)
against children. Witchley's failure to "unearth" a potential divisional conflict and
to anticipate or argue for a potential change in the law does not render his
performance constitutionally ineffective.
The majority, however, goes on to conclude that the trial court made a
factual finding that "Witchley's [fjailures '[sjeverely [hjandicapped' [h]is
[pjerformance," and that that is what constitutes deficient performance by
Witchley. Majority at 23. This does not make sense. Contrary to the majority's
pronouncement that "the trial court did not enter any written factual findings and
conclusions of law to explain thatfinding'' because counsel said "he did not need
them,"^ the trial court did not do so because the deficiency it identified was only
that Witchley was depressed and that "had he not been handicapped by his
depression, he would have been more effective." 11 VRP (Oct. 30, 2015) at 1316
(emphasis added).
Even if we were to assume that the majority is drawing its own legal
conclusions as to the deficient performance prong, the deficiencies it does
eventually articulate—failure to investigate, failure to prepare for trial, and failure
^ Majority at 20(emphasis added). Lopez's second attorney simply stated that he did not
object "to the court incorporating by reference its oral ruling since it was in detail." 11 VRP
(Oct. 30, 2015) at 1319.
State V. Lopez(Oscar Raul), No. 94418-1
(Johnson, J., dissenting)
to show up to court—do not withstand even cursory scrutiny. When reviewing a
claim of ineffective assistance of counsel,"we look to the totality of the
circumstances, ever mindful ofthe fact that there exists a strong presumption that
counsel rendered reasonably effective assistance." United States v. Muehlbauer,
892 F.2d 664, 668 (7th Cir. 1990)(citing Strickland, 466 U.S. at 689). Instead, the
majority all but presumes Witchley's ineffectiveness based on the fact that he was
suffering from depression at or around the time of trial.
In examining the deficient performance prong ofStrickland, the majority
relies heavily on trial counsel's investigator Karen Sanderson's statements about
Witchley's mental state and actions. The majority fails to mention the fact that to
the extent Lopez complains of trial counsel's failure to investigate in preparation
for trial, no duty to investigate and call all available witnesses exists."^ It fails to
mention that Witchley did call eight witnesses at trial, and that the witnesses he
allegedly failed to interview and call, and whom Sanderson perhaps was initially
called upon to investigate, were, in Witchley's opinion, unnecessary because, as he
explicitly advised Lopez,"[T]he fact that you don't molest child A is not relevant
"Under the Sixth Amendment [to the United States Constitution], counsel is required to
conduct a reasonable investigation." In re Pers. Restraint ofDavis, 152 Wash. 2d 647, 735, 101
P.3d 1 (2004). "Generally the decision whether to call a particular witness is a matter for
differences of opinion." Davis, 152 Wash. 2d at 742.
State V. Lopez(Oscar Raul), No. 94418-1
(Johnson, J., dissenting)
to prove that you didn't molest child B." Clerk's Papers(CP)at 227. The majority
fails to mention that Witchley, among other things, aggressively sought Lopez's
release pretrial, professionally litigated pretrial motions, and skillfully examined
and cross-examined witnesses. In short, the majority fails to consider all ofthe
circumstances the objective standard ofStrickland commands. It does, however,
embellish Witchley's tardiness and assigns great weight to Witchley's
communications with Sanderson, but that proves nothing about counsel's actual
effectiveness. The Strickland focus is, and has always been, on counsel's function,
which,"as elaborated in prevailing professional norms, is to make the adversarial
testing process work in the particular case." Strickland, 466 U.S. at 690.
To the extent the majority finds any deficiency it identifies to constitute
deficient performance by itself under Strickland is unclear, as is whether it finds
deficient performance only by pooling piecemeal what it deems Witchley's "basic
failures" together. Majority at 23. To be clear, however, none ofthe "deficiencies"
the majority articulates, by themselves, or in their totality, are sufficient to meet the
first prong ofStrickland. What the record shows is that Witchley did conduct a
reasonable investigation, including five critical witness interviews with
Sanderson's help: those ofthe complainant, the child's mother, the first responding
State V. Lopez(Oscar Raul), No. 94418-1
(Johnson, J., dissenting)
police officer, the defendant's wife, and the defendant's supervisor. Witchley had
Sanderson photograph the parking lot and the church, i.e., the scene of the alleged
crime. He subpoenaed documents from Truman Elementary School to establish
Lopez's whereabouts on the day of the alleged incident. The record also shows,
and the State correctly argues, that in the course of preparing for trial, Witchley
was present for the State's interviews of all ofthe defense witnesses and litigated
over 20 pretrial motions, with no claimed counsel deficiencies or severe handicap.
The majority also points to Witchley's e-mailing the court to "'call[] in sick,"' 11
VRP (Oct. 30, 2015) at 1313, as well as his alleged absence before a different
judge in support of its Strickland deficiency. While not commendable, attorney
tardiness presumably may be more common than the majority would like to
believe. The majority's conclusion that counsel's performance fell below an
objective standard of reasonableness in light of all the circumstances without
mentioning or analyzing the entirety ofthe trial court's factual findings, by
selectively assigning weight to facts in the record and ignoring the attorney's
actual trial performance, erroneously abandons the burden Strickland imposes.
Ultimately, the majority agrees with the trial court's decision to grant a new
trial based on its "implicit legal conclusion that [the adverse effect of Witchley's
State V. Lopez(Oscar Raul), No. 94418-1
(Johnson, J., dissenting)
mental illness] amounted to prejudice." Majority at 24 (citing 11 VRP (Oct. 30,
2015) at 1311-15). This flies in the face ofthe trial court's own statement that it
cannot "actually find that as a result of Mr. Witchley's depression that [Lopez] was
convicted .. . and that the result would have been different."^ 11 VRP (Oct. 30,
2015) at 1316. The Court of Appeals on de novo review correctly found that the
trial court's conclusions of law were unsustainable, both as to its pronouncements
pertaining to the admissibility of character evidence and as to the defendant's due
process entitlement to counsel free from mental illness. Neither is supported by the
facts in the record before us; neither is a sound legal conclusion to be drawn. While
it may very well be that trial counsel was depressed, the majority's characterization
of Witchley's deficiencies as "debilitating," majority at 25, is hard to reconcile
with the trial court's characterization of that same performance as "competent," 11
VRP (Oct. 30, 2015) at 1316, and Sanderson's statement that despite Witchley's
depressed state, once he "got to court, it was okay." CP at 291.
And even if Witchley's performance fell below an objective standard of
reasonableness in light of all the circumstances, none ofthe other acts or omissions
by Witchley the majority selectively relies on reaches the requisite level of
The majority omits this statement hy the trial court entirely.
State V. Lopez(Oscar Raul), No. 94418-1
(Johnson, J., dissenting)
reasonable probability of a different result for Lopez. The majority's legal analysis
does little to clarify on what grounds it upholds the trial court's reasoning. To
conclude that Lopez was prejudiced because "the serious deficiencies in
Witchley's pretrial preparation and trial performance were clear and debilitating,"
majority at 26, is to employ circular reasoning. The majority's reliance on the close
nature ofthe case is also unpersuasive in this context.^ Perhaps the most troubling
aspect ofthe decision the majority reaches today is that it requires our appellate
courts to divine "implicit" conclusions in reviewing the trial courts' actions in
^ To assert that there is a reasonable probability that but for instances of tardiness, failure
to interview more witnesses whose testimony counsel deemed inadmissible to begin with, or
failure to "develop the defense" that from the trial record appears to have been reasonably
developed, the result of the proceedings would have been different because this was not a "slam-
dunk" case is not a sound legal conclusion. Majority at 21, 26. Whether the majority views the
strength or weakness of the State's case as a factor, the jury and not this court makes the final
decision.
State V. Lopez(Oscar Raul), No. 94418-1
(Johnson, J., dissenting)
order to avoid being overturned. We should affirm the Court of Appeals' well-
reasoned opinion.
/
/
10
State V. Lopez(Oscar Raul), No. 94418-1
(Yu, J., concurring in dissent)
No. 94418-1
YU,J.(concurring in dissent) — I agree with the concerns expressed by the
dissent that the majority mischaracterizes the record in order to affirm a finding of
deficiency for counsel's failure to offer evidence of Lopez's "good reputation" for
sexual morality in a child molestation case when binding precedent held such
evidence inadmissible. Dissent at 1, 3-4. I also agree that we should affirm the
Court of Appeals' decision that the trial court erred in granting a new trial on the
basis that counsel suffers from severe depression. Id. at 1. Strickland^ requires an
actual showing of deficient performance and prejudice, and the record in this case
does not support either.
I write separately because I cannot find myself embracing a standard that
permits constitutional ineffectiveness when counsel is chronically late or has not
submitted invoices for payment. As a former trial court judge, I could list a host of
other reasons lawyers routinely made trial management difficult for me, but none
'Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
1
State V. Lopez(Oscar Raul), No. 94418-1
(Yu, J., concurring in dissent)
go to the heart ofthe issue: effective representation of a client. To permit
behaviors like chronic lateness to be the basis for constitutional ineffectiveness, as
the majority does, is to dramatically lower our threshold for prejudice.
I also write to state my unease with shifting the inquiry of"ineffectiveness
of counsel" from a review of overall trial performance to a review of counsel's
mental health as a measure of performance. I refuse to accept the underlying
proposition that depression or some form of mental illness renders an attorney
incompetent, especially in hindsight. The majority paves the way for a per se rule
that permits inquiry into an attorney's mental health, including any history of
diagnosis and treatment, rather than focusing on his or her actual conduct or
performance. Lawyers should now expect that their mental health or personal
stress level will be part of an ineffectiveness and/or malpractice claim.
As noted in the State's answer to the Washington Association of Criminal
Defense Lawyers'(WACDL)amicus brief, asking lawyers about their history of
diagnosis or treatment likely violates the Americans with Disabilities Act of 1990,
42 U.S.C. §§ 12101-12213, and serves to perpetuate myths about mental illness.
Answer to WACDL Amicus Br. at 1? In 2016, we amended the Admission and
^ See also Disability Rights Wash., Questions of Discrimination,
http://stats.disabilityrightswa.org/questions-discrimination [https://perma.cc./N3PH-BH7J](last
visited Feb. 7, 2018).
State V. Lopez(Oscar Raul), No. 94418-1
(Yu, J., concurring in dissent)
Practice Rules to remove questions that target applicants who have sought
mental health treatment. It was a milestone in the fight for equality when we
focused the inquiry offitness to practice law on the ability to perform essential
functions rather than on a knee-jerk reaction to disability status. It was an effort to
ensure that applicants are not barred because of a diagnosis or history, while still
prohibiting those who cannot perform the essential functions-even if due to a
disability—from practicing law. The unintended consequence oftoday's majority
decision is to shift that inquiry right back to disability status and make it center
stage.
I respectfully concur in the dissent.
State V. Lopez(Oscar Raul), No. 94418-1
(Yu, J., concurring in dissent)