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Name: Saesee v. McDonald
Case #: 10-15895
Court: US Court of Appeals
District 9 Cir
Opinion Date: 08/05/2013

Trial attorney did not provide ineffective assistance when he expressed hope during his opening statement that a defense witness would appear and corroborate the defendant’s alibi but then failed to produce the witness at trial. Saesee was convicted of first degree murder and other offenses and was given life in prison without possibility of parole. During his opening statement at trial, defense counsel stated that the grandfather of appellant’s girlfriend was with Saesee and his girlfriend on the night of the killing and counsel “was counting on him to tell the truth” and corroborate the girlfriend’s alibi for Saesee. The grandfather did not appear for trial and counsel did not explain his absence. Saesee’s conviction was affirmed in state court. He sought federal writ relief based on his counsel’s unfulfilled “promise” that an additional alibi witness would testify, which prejudiced the outcome of his case. Held: Affirmed. In some cases where defense counsel says the jury will hear testimony and the witness’ absence is unexplained, an attorney’s broken promise to present a witness may prejudice the defendant’s case. This is especially true where the promised witness is crucial to the defense’s case. For prejudice to be found, however, there must first exist a promise. The California Court of Appeal reasonably concluded that no such promise was made here, but that defense counsel merely expressed hope that the witness would testify.