Gabaree v. Steele, No. 13-3486 (8th Cir. 2015)
Annotate this CaseIn 1992, Gabaree began living with a woman who had two daughters; the two later had two children together. In 1996, three children told a social services employee that Gabaree was abusing them. A physician found marks that had been inflicted intentionally. The girls, ages five and six, made inconsistent statements concerning sexual abuse; no physical evidence was found. Gabaree was convicted of statutory sodomy, first-degree child molestation, and child abuse. A court granted post-conviction relief because Gabaree’s attorney had failed to impeach the girls. At a 2003 retrial, one girl testified that Gabaree had sex with her and that she saw Gabaree having sex with her sister, who testified that Gabaree had “touched her ‘private part’ with his hands.” The court admitted the statement of an unavailable witness that the girls had previously recanted their allegations. A doctor’s testimony about Gabaree’s “propensity” was not challenged. Gabaree again was convicted of all counts. The state court denied Gabaree’s post-conviction petition, concluding that counsel’s stated possible reasons for not objecting to the doctors’ testimony were not necessarily unreasonable. Gabaree sought habeas corpus under 28 U.S.C. 2254. The district court granted Gabaree’s petition with respect to his convictions for sodomy and child molestation and denied his petition with respect to child abuse. The Eighth Circuit affirmed. By not challenging the testimony of the doctor concerning sexual abuse, counsel failed to make the adversarial testing process work.
Court Description: Kelly, Author, with Bye and Shepherd, Circuit Judges] Prisoner case - Habeas. In the context of the case, the state court's application of Strickland was unreasonable as defense counsel's failure to object to expert testimony that the victims were truthful in speaking with a different doctor fell below professional norms and, with a proper objection, would have been rules inadmissible; likewise, counsel's failure to object to another doctor's testimony was unreasonable as the testimony was improper propensity evidence and would have been inadmissible, had a proper objection been made; there was no reasonable strategic reason for not objecting to the testimony from these witnesses and the admission of their testimony prejudiced Gabaree as the evidence against him was weak and the credibility of the minor victims was a critical issue in the case; as a result, the district court did not err in finding trial counsel had rendered ineffective assistance with respect to Gabaree's charges of sodomy and child molestation; the court did not err in rejecting the claim of ineffective assistance based on these same arguments with respect to defendant's convictions for child abuse as the case was much stronger on this charge, even without the objected-to testimony, and it is unlikely that counsel's performance affected the verdict on these counts. Judge Shepherd, dissenting from the court's decision with respect to the charges of sodomy and child molestation.
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