Jackson v. Franke
Annotate this CaseAt issue in this post-conviction case was petitioner Steve Franke’s attempt to prove that his criminal trial counsel provided constitutionally inadequate and ineffective assistance by failing to object that an expert diagnosis of child sexual abuse was inadmissible in the absence of corroborating physical evidence. Although the objection would have been contrary to controlling Court of Appeals precedent at the time of petitioner’s 2001 criminal trial, the Oregon Supreme Court later held that the rules of evidence required exclusion of a diagnosis of sexual abuse if it was not based on physical evidence, effectively overruling the Court of Appeals precedent. To survive summary judgment, petitioner offered evidence that some criminal defense attorneys in 2001 viewed the Court of Appeals precedent as vulnerable, were raising the kind of challenge to sexual abuse diagnoses that ultimately succeeded, and were recommending that practice to other criminal defense attorneys. Petitioner contended the evidence would have allowed him to establish that the exercise of reasonable skill and judgment obligated his attorney to raise a similar objection, or at least that his attorney’s failure to raise the argument was the product of a failure to adequately prepare and familiarize himself with the state of the law. Both the post-conviction court and the Court of Appeals held that petitioner’s claim failed as a matter of law. The Supreme Court agreed with the Court of Appeals that the argument that ultimately succeeded in Southard was not so obviously correct in 2001 that the exercise of reasonable skill obligated attorneys to raise the argument, and petitioner’s evidence did not permit a different conclusion. But the Supreme Court disagreed that petitioner’s claim could be resolved on summary judgment; the evidence created genuine issues of material fact that, if resolved in petitioner’s favor, could establish the failure by petitioner’s attorney to raise a Southard-type challenge to the sexual abuse diagnosis was the product of an unreasonable failure to investigate and familiarize himself with the state of the law to the extent appropriate to the nature and complexity of the case. Accordingly, the Supreme Court reversed the lower courts' judgments and remanded for further proceedings.
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