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Name: Griffin v. Harrington
Case #: 12-57162
Court: US Court of Appeals
District 9 Cir
Opinion Date: 08/16/2013

Trial counsel provided ineffective assistance by failing to timely object to the unsworn testimony of the only witness who identified defendant as the shooter in a murder case. Griffin was convicted by jury of the first degree murder of a rival gang member. Prior to the trial, a federal prisoner, Wilberger, identified Griffin as the shooter. He was the only witness who made that identification. He later changed his story. Griffin’s attorney was aware of Wilberger’s repudiation prior to trial and knew that the jury would most likely hear a recording of Wilberger’s original statement. At trial, Wilberger refused to take the oath to tell the truth during his testimony. The trial court allowed Wilberger to “testify” despite this refusal and defense counsel failed to object at this time. Defense counsel attempted to object to Wilberger’s testimony later but the trial court ruled the issue had been waived. The appellate court affirmed Griffin’s conviction and denied his habeas petition, holding that counsel’s failure to object was a valid tactic. The California Supreme Court denied review. The federal district court granted a habeas petition, concluding that Griffin had been the victim of ineffective assistance of trial counsel. The Ninth Circuit affirmed that opinion. Trial counsel knew that Wilberger’s testimony could not be considered evidence because he refused to take the oath, but did not comprehend that by failing to timely object to it, he was waiving any objection he had. The consequences of his ignorance were that Wilberger’s prior inconsistent inculpatory statement then became admissible against his client, and that his client would be barred from raising the issue on appeal. The evidence against Griffin was so weak without Wilberger’s statement that it was reasonably probable that the jury would have come to a different conclusion without it. The state court’s conclusion that defense counsel’s decision to not make a timely objection was tactical was objectively unreasonable and its factual determinations were unsupported by the record.