McMullin v. Amsberry ( 2021 )

542
Argued and submitted March 14, 2019; reversed and remanded with
instructions to grant relief on inadequate investigation claim, otherwise
affirmed April 7, 2021
KEITH ALLEN McMULLIN,
Petitioner-Appellant,
v.
Brigitte AMSBERRY,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
16CV23691; A164404
485 P3d 278
Petitioner appeals a judgment denying his petition for post-conviction relief,
which alleged inadequate assistance of counsel at his trial for the rape, sodomy,
and sexual abuse of his adopted adolescent daughter. Petitioner claims that his
lawyer’s failure to adequately investigate whether to dispute the testimony of the
state’s witness concerning the significance of the absence of physical evidence of
abuse violated his guarantee to adequate representation, in violation of both the
state and federal constitutions. Held: Petitioner’s trial lawyer’s strategic deci-
sion was not based on a sufficient investigation of the state’s witness testimony
and the significance of the absence of physical evidence of abuse. That decision
therefore violated petitioner’s right to adequate counsel. As a result, petitioner
suffered more than a mere possibility that adequate representation would have
had a tendency to affect the result of the trial.
Reversed and remanded with instructions to grant relief on inadequate
investigation claim; otherwise affirmed.
Dale Penn, Senior Judge.
Ryan Scott argued the cause and filed the briefs for
appellant.
Patrick M. Ebbett, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, and DeVore, Judge, and
Landau, Senior Judge.*
______________
* DeVore, J., vice Hadlock, J. pro tempore; Landau, S. J., vice DeHoog, J.
Cite as 310 Or App 542 (2021) 543
LANDAU, S. J.
Reversed and remanded with instructions to grant relief
on inadequate investigation claim; otherwise affirmed.
544 McMullin v. Amsberry
LANDAU, S. J.
Petitioner was charged with numerous counts of
first-degree rape, first-degree sodomy, and first-degree
sexual abuse arising from his alleged sexual abuse of his
adopted adolescent daughter. The nurse who examined the
complainant found no physical evidence of sexual activity,
but she testified at trial that it was not unusual for an ado-
lescent victim of sexual abuse not to show physical evidence
of abuse. Petitioner’s trial counsel did not call an expert
witness to rebut the nurse’s testimony in that regard. Nor
did counsel cross-examine her about her assertion that the
absence of physical signs of abuse was not unusual. Petitioner
ultimately was found guilty of most of the charges.
Petitioner sought post-conviction relief. He claimed
that his criminal trial counsel was constitutionally inad-
equate, in violation of Article I, section 11, of the Oregon
Constitution and the Sixth and Fourteenth Amendments to
the United States Constitution, because she failed to ade-
quately investigate whether to dispute the testimony of the
state’s witness concerning the significance of the absence of
physical evidence of abuse.
The state1 contended that trial counsel’s investi-
gation amounted to a reasonable strategic decision under
the circumstances that, in any event, did not prejudice
petitioner.
The post-conviction court agreed with the state
and entered judgment denying petitioner’s claim for relief.
Petitioner appeals, reprising his claims that his criminal
trial counsel was constitutionally inadequate. We conclude
that the post-conviction court erred and that petitioner is
correct that trial counsel was constitutionally inadequate
in failing to adequately investigate the significance of the
absence of physical evidence of sexual abuse. We therefore
reverse and remand with instructions to enter judgment
ordering a new trial.
1
Respondent is the Superintendent of the Two Rivers Correctional
Institution. We refer to the superintendent as “the state” in this opinion. See, e.g.,
Richardson v. Belleque, 362 Or 236, 238 n 1, 406 P3d 1074 (2017) (referring to the
superintendent as “the state”).
Cite as 310 Or App 542 (2021) 545
I. RELEVANT FACTS AND PROCEEDINGS BELOW
A. Before the Criminal Trial
Petitioner’s 13-year-old adopted daughter reported
that petitioner had been repeatedly sexually abusing her
since she was five years old, starting with sexual touching
and evolving to oral sodomy and, eventually, to repeated inter-
course over several years. Following the report, Smith, a nurse
practitioner at the Children’s Center who specialized in child
sexual assault, conducted a medical examination of the com-
plainant. Smith observed that the child had “some decreased
hymenal tissue” in one place but that it was a “normal vari-
ation” for a girl her age. Although there was no physical evi-
dence of sexual abuse, Smith did not “expect” to find any.
The state ultimately charged petitioner with 10
counts of first-degree rape, five counts of first-degree sodomy,
and 10 counts of first-degree sexual abuse.
Karabeika was appointed to represent petitioner.
Karabeika anticipated that Smith would be called to tes-
tify for the state and that the nurse practitioner would
state that it was not unusual for an adolescent victim of
sexual abuse to show no physical symptoms of such abuse.
Karabeika “struggled” with that idea and decided to consult
with Dr. Brady, a former medical examiner. She sent Brady
the examination report, but he responded that he would not
be a helpful witness for the defense. Brady had reviewed
the report but concluded that “he can’t really help us.” As
Karabeika later recalled, Brady told her, “I’ve been retired
for a long time. I haven’t performed an exam in a while and
I don’t think I can help you.”
Karabeika then located a second expert, Fitzgerald,
a nurse practitioner whom she thought might be helpful.
But after consulting with Fitzgerald, she concluded that the
expert “had some really wacky ideas that weren’t necessar-
ily supported by the information I wanted to talk about.” As
she explained to petitioner, Fitzgerald was “an odd duck and
not terribly likeable and frankly she goes off on tangents
and I don’t think she’d help us.”
Karabeika also consulted with two other attorneys.
As she later recalled, both lawyers told her that “[y]ou’re
546 McMullin v. Amsberry
not expected to see damage unless there’s an acute incident.
There’s really not going to be—she’s a menstruating teen-
ager and she’s of a certain age. There is not going to be find-
ings one way or the other.” One of the lawyers, Cohen, gave
what Karabeika regarded as a “glib” response that “you can’t
make nothing out of no hymen anymore.” The other law-
yer, Maxfield, told Karabeika that “[i]f you plan to aggres-
sively cross the expert on the ‘normal’ exam, we should talk
about which studies she is likely to hide behind and what
weaknesses there are in those studies.” Maxfield noted that
“[t]here is plenty of literature to suggest that it would be
highly unusual for a girl to suffer repeated ‘blunt force
trauma’, especially recently and not have physical evidence
that the hymen has been torn.” Maxfield cautioned, however,
that such cross-examination “needs to be done surgically or
it can blow up.”
Maxfield suggested a different approach, one that
appealed to the jurors’ common sense:
“Invite them to use their common sense. Does it make
sense that a very thin, taut, nonelastic hymen would not
tear when a hard penis that is two or three times the size
of the opening is thrust into the vagina again and again?
There is a reason married women no longer have hymens.
Penetration tears the hymen. You know that. Yet the state
wants you to believe that an adult erect penis was thrust
into [the victim] again and again, twice a week for years
and it never tore.”
Karabeika ultimately decided not to retain an expert
witness to testify for the defense and further decided not to
challenge on cross-examination Smith’s expected testimony
concerning the insignificance of any physical evidence of
sexual abuse. Based on her conversation with Maxfield, she
concluded that the strategy of aggressively cross-examining
Smith “could blow up in your face. It could backfire and you
could basically give [the state] another platform to say the
same thing that they’ve already said but in a new way with
new information.”
B. The Criminal Trial Proceedings
At trial, Karabeika’s strategy was to challenge the
complainant’s credibility and, without expert testimony,
Cite as 310 Or App 542 (2021) 547
appeal to the jurors’ “common sense,” asserting the unrea-
sonableness of the idea that an adolescent girl could be
repeatedly sexually abused without any resulting physical
evidence of abuse. In her opening statement, Karabeika told
the jury that people working at the Children’s Center “diag-
nose or at least look for injuries to support allegations of
child abuse.” Nevertheless, she continued, “despite the fact
that [the complainant] claimed to have been abused for nine
years and having intercourse for two-plus years, there isn’t
one shred of proof during that physical exam that she has
been sexually abused.” During the trial itself, Karabeika
elicited from one of the state’s witnesses that the child had a
reputation for being untruthful, and from the complainant’s
pediatrician’s testimony that the child had reported to him
that she had never had any sexual experiences nor ever
been forced to do something sexual that she did not want to
do. Petitioner also testified, denying ever having any sort of
sexual contact with the child.
As Karabeika expected, Smith testified that, although
the complainant had reported multiple instances of sexual
intercourse with petitioner, the child’s physical examina-
tion was normal. Smith explained that a “Kellogg” study2
of 36 pregnant adolescents established that “you can have
a penetrating trauma and have a completely normal exam.”
Karabeika did not object to Smith’s testimony and conducted
no cross-examination about the Kellogg study or the wit-
ness’s assertion that she had “expected” a normal physical
examination despite the allegations of repeated penetrative
trauma.
In closing argument, Karabeika returned to her
chosen strategy:
“The physical piece of this doesn’t add up. [The com-
plainant] is about 5 feet tall, maybe shorter than that. She
alleges nine years of abuse, two and a half years of being
raped on a regular basis daily by her father, who is a large
man. They say there are no physical findings that she was
raped. No physical findings that there are any injuries to
2
Nancy D. Kellogg et al, Genital Anatomy in Pregnant Adolescents: “Normal”
Does Not Mean “Nothing Happened,” 113 Pediatrics, no 1 at e67 (Jan 2004),
https://pediatrics.aappublications.org/content/pediatrics/113/1/e67.full.pdf
(accessed Mar 18, 2021).
548 McMullin v. Amsberry
her. How is it possible that this small child could be forced
to be raped this many times and for there not to be one
shred of proof that she was abused in this action? Now
the Children’s Center people said, ‘Oh well, that’s what we
expected.’ Well, that’s not true, because that’s why they do
this exam. They are looking for evidence of injuries or tear-
ing or scarring or something. She had nothing—nothing.
So that gives you nothing to go on except, wow, is she tell-
ing us the truth. Why is she saying she is being raped this
often? Wouldn’t there be some evidence of it? Nothing.”
The jury returned verdicts of guilty on 10 counts of
first-degree rape, two counts of first-degree sodomy, and 10
counts of first-degree sexual abuse.
C. The Post-Conviction Hearing
Petitioner filed a petition for post-conviction relief.
He alleged, among other things, five claims for relief related
to Karabeika’s handling of Smith’s testimony: (1) Trial coun-
sel “failed to retain a qualified expert witness to help her
prepare to cross-examine the state’s expert on the ‘Kellogg
Study’ ”; (2) counsel “failed adequately to cross-examine * * *
Smith to show that her understanding of the Kellogg study
was incorrect”; (3) counsel “failed to prepare and investigate
the scientific and medical issues in the state’s case”; (4) coun-
sel “failed to discover and understand the relevant studies
that undercut the Kellogg study”; and (5) counsel “failed to
retain and call a qualified expert to testify that there was
a high likelihood that evidence of abuse would have been
present because of the number of reported instances of
intercourse.”
The state argued that Karabeika did consult with
at least two experts, as well as two lawyers with experi-
ence trying sexual abuse cases. In consultation with those
resources, she decided not to attack Smith’s testimony and
its reliance on the Kellogg study. That, the state argued,
was a strategic call that was at least reasonable under the
circumstances.
In support of his post-conviction claims, petitioner
offered the testimony of Dr. Guertin, a child abuse physi-
cian; medical director of the children’s center and director
of the pediatric care unit at Sparrow Hospital in Lansing,
Cite as 310 Or App 542 (2021) 549
Michigan; and associate professor of pediatrics at Michigan
State University School of Medicine. Guertin testified that,
had Karabeika retained him in this case, he could have
suggested “many ways [counsel] could have cross-examined
Ms. Smith on the limitations” of the Kellogg study.
First, Guertin noted that the Kellogg study was
flawed in that it relied solely on a retrospective review of
photographs of 36 adolescents, which he explained is “not
the same as being able to literally go all the way around the
hymen and then record what you’re seeing.” He explained
that the study was further flawed in that the authors failed
to recognize that, of the 36 adolescents, eight had incon-
clusive exams, and five had abnormal exams. Finally,
he explained that the study was also flawed because the
authors had adopted an “extremely restrictive” definition of
what constituted physical evidence of abuse.
Second, Guertin testified that Smith had relied on
only a single study, which he characterized as “a disser-
vice to the jury, because you’re not giving them proper per-
spective.” He explained that “the literature actually is all
over the place in terms of what the frequency is of seeing”
physical evidence of sexual abuse. He cited as an example a
second Kellogg study—by the same lead author of the study
Smith relied on—involving adolescent girls who had admit-
ted to having vaginal intercourse. He said that the study
showed that 63 percent of the older subjects had the sort of
hymenal “notches” that indicated intercourse, which he said
casts doubt on the other study:
“So in the same year, 2004, the same author showed
that there are findings that are—that are—that actually
are typical for intercourse and showed that in the most
experienced population, that is the older kids, incidence of
abnormality was 63 percent.
“So to be fair to a jury, if you look at the same author
in the same year, you have one study that says 18 percent
abnormal in a fairly flawed study and you have one study
that says 63 percent abnormal in a far less flawed study.”
Moreover, he said, the second study concluded “that those
particular physical findings are really important and
550 McMullin v. Amsberry
they are indicators of sexual trauma, of penetrative sexual
trauma.”
Guertin also cited as another example a study cited
in the second Kellogg study, which reported that of a group
of children who had reported penile-vaginal intercourse,
74 percent had hymenal injuries. Guertin continued:
“So it’s really interesting that you have a lot of consis-
tency between those two studies and they are a far cry from
the single study that was quoted by [Smith].
“So I think to be fair, if you’re in front of a jury, if you’re
asking me what I would have told the attorney, I would
have told the attorney that there’s perspective that needs
to be created here and that that perspective is found in the
literature and it wasn’t presented.”
Guertin concluded that, in his opinion, had
Karabeika “been properly prepared, she could have substan-
tially undermined Smith’s conclusion that in the circum-
stances of this case, a normal physical examination of [the
victim] was to be expected.”
On cross-examination, Guertin acknowledged that
normal genital findings are not, in general, uncommon for
sexually abused children. He explained, however, that the
key to such findings is that they are based on populations
of both pre-pubertal and post-pubertal girls. He said that
studies of older adolescents, particularly those older adoles-
cents who have reported penile-vaginal intercourse, there is
commonly a high rate of abnormal physical findings.
The state countered with an affidavit of Smith, who
asserted that some of the studies on which Guertin relied
were dated. She said that, had she been cross-examined, she
would have cited other studies than the Kellogg study that
she mentioned at trial, which support the view that a nor-
mal physical examination of sexual abuse victims is to be
expected.
The post-conviction court concluded that petitioner
failed to prove the allegations of his petition, noting that it
agreed with and adopted the state’s arguments.
Cite as 310 Or App 542 (2021) 551
II. ANALYSIS
A. Standards of Review
Article I, section 11, of the Oregon Constitution
guarantees a criminal defendant the right to the assistance
of adequate counsel. Farmer v. Premo, 363 Or 679, 690,
427 P3d 170 (2018). To establish a violation of that right, a
petitioner must prove two things—first, that trial counsel
“failed to exercise reasonable professional skill and judg-
ment,” and second, that petitioner “suffered prejudice as a
result of counsel’s inadequacy.” Johnson v. Premo, 361 Or
688, 699, 399 P3d 431 (2017). Whether a petitioner proved
those two things presents a question of law. Green v. Franke,
357 Or 301, 312, 350 P3d 188 (2015).
The Sixth Amendment likewise guarantees the
right to the assistance of adequate—or, in federal parlance,
“effective”—counsel. To establish a violation of that right, a
petitioner must also prove both that trial counsel was defi-
cient and that the deficiency caused prejudice. Strickland v.
Washington, 466 US 668, 687, 104 S Ct 2052, 80 L Ed 2d 674(1984). The Oregon Supreme Court has concluded that the
federal Sixth Amendment standard of proof is “functionally
equivalent” to the state standard under Article I, section 11.
Montez v. Czerniak, 355 Or 1, 6-7, 322 P3d 487, adh’d to as
modified, 355 Or 598, 330 P3d 595 (2014). In this case, how-
ever, we find that state law is adequate to dispose of the
issues on appeal.
B. Arguments on Appeal
Petitioner argues that Karabeika failed to exercise
reasonable skill and judgment in failing to retain an expert
and more thoroughly investigate the strategy of challeng-
ing Smith’s reliance on the Kellogg study for the proposi-
tion that a normal physical examination is to be expected
from an adolescent girl who has been repeatedly vaginally
raped. Petitioner argues that such a strategic decision must
be based on a reasonable evaluation of the costs and benefits
of pursuing such an investigation. He argues that, without
consulting a sufficiently knowledgeable expert, Karabeika
could not evaluate those costs and benefits.
552 McMullin v. Amsberry
According to petitioner, counsel’s evaluation of the
matter consisted of briefly discussing the case with two
experts. The first, Brady, explained that he had been retired
a long time and, without further explanation, said that he
could not provide any help. The second, nurse practitioner
Fitzgerald, counsel immediately dismissed as “wacky”
and unreliable. Petitioner notes that in neither case did
Karabeika actually discuss the possibility of challenging
Smith’s testimony.
Petitioner acknowledges that Karabeika also dis-
cussed the matter with two lawyers who had experience
defending sexual abuse cases. The first of the lawyers, he
argues, simply responded that “no hymen” is not a fruitful
strategy “anymore,” without providing further detail. And
petitioner notes that the second, Maxfield, actually told
Karabeika that “[t]here is plenty of literature to suggest
that it would be highly unusual for a girl to suffer repeated
blunt force trauma especially recently and not have physi-
cal evidence that the hymen has been torn.” Petitioner con-
cedes that Maxfield did caution Karabeika that challenging
Smith’s testimony “needs to be done surgically or it can blow
up.” But, he insists, Karabeika never looked for the litera-
ture that Maxfield mentioned; without even knowing what
that literature said, she simply concluded that she would
pursue a different strategy, one that did not involve directly
challenging Smith on cross-examination. That decision,
petitioner argues, fell below the requirements of constitu-
tionally adequate assistance.
Moreover, petitioner argues, Karabeika’s failure to
investigate prejudiced him. Had she followed up on Maxfield’s
suggestion that there is “plenty of literature” to suggest that
it is actually unusual for an adolescent child victim of rape
not to show physical evidence of that abuse, she would have
been in a position to undercut Smith’s reliance on a sin-
gle study for a contrary conclusion. And offering the testi-
mony of an expert witness such as Guertin could have been
especially significant, petitioner argues. He argues that
Guertin’s critique of the Kellogg study and his reference
to other studies showing that between 63 and 74 percent
of adolescent girls reporting sexual activity showed physi-
cal symptoms strongly suggests that it is significantly less
Cite as 310 Or App 542 (2021) 553
likely that sexual intercourse occurred in this case, where
there were no physical symptoms at all.
The state contends that Karabeika reasonably
decided not to investigate further whether to challenge
Smith’s testimony. According to the state, counsel “based
her decision on a full investigation, including consultation
with multiple experts, and with multiple attorneys special-
izing in the field.”
In any event, the state argues, petitioner failed to
prove that any deficiency in Karabeika’s representation at
trial caused him prejudice. The state argues that Smith’s
testimony was “minor” in the larger scheme of things. There
was, the state contends, “plenty of far more significant evi-
dence for the jury to evaluate” in determining whether the
complainant was telling the truth. In the state’s view, that
more significant evidence consisted of several witnesses
about her report of the abuse, a recorded Children’s Center
interview with the complainant, and the testimony of the
complainant herself.
The state suggests that, if Karabeika had put
Guertin on the stand, his testimony would not have refuted
Smith; it would simply have precipitated a battle of experts,
with each citing studies to support their opinions. Moreover,
the state contends, Guertin would have had to concede—as
he did during the post-conviction hearing—that it would not
be unusual for a child victim of sexual assault to have a nor-
mal exam.
C. Discussion
1. Reasonable skill and judgment
We begin with the question whether trial counsel
Karabeika failed to exercise reasonable skill and judgment
in failing to investigate whether to challenge the state’s
expert’s assertion that a normal physical examination is
to be expected from an adolescent victim of sexual abuse.
In Krummacher v. Gierloff, 290 Or 867, 875, 627 P2d 458(1981), the Oregon Supreme Court held that the constitu-
tional right to counsel requires that counsel investigate
the relevant facts and the controlling law “to the extent
554 McMullin v. Amsberry
appropriate to the nature and complexity so that [counsel]
is equipped to advise [the] client, exercise professional judg-
ment and represent the defendant in an informed manner.”
The standard “is not whether counsel investigated or intro-
duced every shred of evidence.” Montez, 355 Or at 16. It is
instead whether the extent of the investigation was “based
on a reasonable evaluation of the likely costs and potential
benefits of pursuing the investigation.” Stevens v. State of
Oregon, 322 Or 101, 109, 902 P2d 1137 (1995).
In our evaluation of trial counsel’s calculation of the
costs and potential benefits in this case, we are informed by
several Supreme Court decisions.
First, in Stevens, the petitioner was charged with
first-degree rape of a young girl. Id. at 103. With no witnesses
to the assault itself and no physical evidence, the trial was
essentially a credibility contest between the victim and the
petitioner. Id. Following conviction on the lesser-included
offense of second-degree sexual abuse, the petitioner filed a
petition for post-conviction relief. Id. at 104. He alleged that
his trial counsel was constitutionally inadequate because of
a failure to investigate properly. Id. at 104-05. Specifically,
the petitioner alleged that his trial counsel failed to inter-
view any members of the victim’s school’s staff or her class-
mates, relying instead on the police report to identify mate-
rial witnesses. Id. at 105-06. He also complained that his
trial counsel had failed to obtain medical diagnosis that he
had been impotent at the time of the assault. Id. at 104-05.
At the post-conviction hearing, the petitioner intro-
duced the testimony of two teachers, a teacher’s assistant,
and four classmates, each of which contradicted the testi-
mony of the victim in various aspects. Id. at 105-06. He also
introduced an affidavit of a urologist, which included the
opinion that the petitioner had been impotent for years and
was unable to attain an erection at the time of the assault.
Id. at 106.
The state relied on the testimony of the petitioner’s
trial counsel, who stated that the extent of his investigation
was a matter of strategy under the circumstances of that
case. In particular, counsel argued that he did not obtain
Cite as 310 Or App 542 (2021) 555
a medical diagnosis of his client because he believed that
presenting that sort of evidence would risk the petitioner’s
credibility. Id. at 106-07.
The Supreme Court agreed with the petitioner. The
court explained:
“In investigating a case, a lawyer inevitably is faced
with choices as to what avenues of investigation to pursue.
A ‘tactical decision’ in the course of an investigation is a
conscious choice by a lawyer either to take or to omit some
action on the basis of an evaluation of the nature and com-
plexity of the case, the likely costs and potential benefits
of the contemplated action, and other factors. But the fact
that a lawyer has made a ‘tactical decision’ does not mean
that the lawyer’s choice meets the constitutional standard
for adequate assistance of counsel.”
Id. at 109. In that case, the court concluded, there was no
evidence that counsel had engaged in any sort of cost-benefit
determination; rather, it appeared to the court that counsel
had merely relied on the list of witnesses from the police
report. Id. at 109-10.
Second, in Richardson v. Belleque, 362 Or 236,
406 P3d 1074 (2017), the petitioner had been found guilty
of manslaughter and assault. The state had then sought to
have him sentenced as a dangerous offender who suffered
from a serious personality disorder. Id. at 240. Before the
presentencing hearing, the petitioner’s trial counsel did not
conduct an extensive investigation of the petitioner’s back-
ground. Id. at 238. Nor did counsel consult with an expert.
Id. Instead, counsel chose to rely on cross-examination of the
state’s expert witness. Id. At the hearing, the state’s expert
testified that the petitioner suffered from a serious person-
ality disorder indicating a propensity toward crimes that
seriously endanger others. Id. at 242. On cross-examination,
the petitioner’s counsel challenged the expert’s foundation
for that opinion. Id. at 243-44. The jury ultimately found
that the petitioner suffered from a serious personality disor-
der, and the court imposed a dangerous-offender sentence.
Id. at 248.
The petitioner sought post-conviction relief, alleging
that his trial counsel had provided inadequate assistance
556 McMullin v. Amsberry
in failing to conduct an adequate investigation before mak-
ing the tactical decision not to obtain a defense expert and
instead to rely on cross-examination alone. Id. The peti-
tioner introduced evidence from a clinical psychologist
that the state expert’s diagnosis was incorrect and based
on incomplete information. Id. at 250-51. The state argued
that the petitioner’s counsel had made a reasonable stra-
tegic decision. Id. at 251. The Supreme Court disagreed.
Strategic decisions, the court said, must be based on an ade-
quate investigation of the relevant information:
“[A]lthough defense counsel asserted that he had made
a calculated strategic decision that this was one of the
minority of cases in which it was preferable not to rely on
a defense expert, he did so without adequate knowledge of
the underlying facts. * * * [A]dequate counsel in this situ-
ation would have gained further information about peti-
tioner’s psychological conditions and juvenile history and
consulted with a defense expert in the field of psychology
to determine how best to counter [the state’s] evidence that
petitioner suffered from an antisocial personality disorder.”
Id. at 262.
Third, in Farmer, the petitioner was convicted of
murder with a firearm. 363 Or at 681. At trial, part of his
defense had been that the weapon seized from another sus-
pect’s residence was likely the murder weapon. Id. at 682.
The petitioner’s trial counsel had retained an expert to tes-
tify to that effect. Id. at 684. After hearing the state’s expert
testify, though, counsel decided not to call the defense expert,
because she worried that the expert’s credentials were not
adequate to withstand cross-examination and because she
mistakenly believed that the testimony that she had just
heard from the state’s witness would not differ significantly
from what her own expert would say. Id. at 682-87.
Seeking post-conviction relief, the petitioner argued
that he had been denied constitutionally adequate coun-
sel when his trial lawyer decided not to call the defense
expert witness. Id. at 687. The state argued that the trial
counsel had made a reasonable tactical choice. Id. at 691.
The Oregon Supreme Court disagreed. A tactical choice,
the court explained, “must be grounded on a reasonable
Cite as 310 Or App 542 (2021) 557
investigation.” Id. at 690. And such a reasonable investiga-
tion necessarily requires acquiring an accurate understand-
ing of the relevant information:
“We see little difference between failing to gather informa-
tion and failing to understand its import. In ensuring that
individuals receive the legal assistance that the constitu-
tion requires, it would make little sense to demand that
attorneys gather sufficient information to make a decision,
but not require them to reasonably understand and assess
it. After all, the purpose of requiring attorneys to make
a reasonable investigation is to enable them to reasonably
consider the costs and benefits of pursuing a given action
and thus permit them to make an informed decision.”
Id. at 697. Applying those principles to the case at hand,
the court concluded that the petitioner’s trial counsel could
not make the required cost-benefit calculation based on a
misunderstanding of the nature of the expert testimony.
Id. at 699-700.
The consistent thread that runs through the fore-
going three cases is this: For purposes of adhering to state
constitutional standards of adequate representation, tacti-
cal decisions cannot be made in a vacuum. They must be
preceded by an investigation that, under the circumstances
of the case, enables trial counsel to meaningfully evaluate
the costs and potential benefits of further investigation.
In this case, Karabeika’s representation of peti-
tioner did not meet that standard. She did briefly discuss
the case with two experts, Brady and nurse practitioner
Fitzgerald. But her consultation with Brady was cut short
by his explanation that he had been retired for quite some
time and that he could provide no help. And her consultation
with Fitzgerald did not go beyond her determination that
the witness was “wacky” and would not be helpful. Thus,
in neither case did Karabeika actually acquire information
about whether the state’s expert witness correctly under-
stood the literature concerning the incidence of normal
physical examinations among adolescent victims of sexual
abuse.
Karabeika also consulted with two lawyers with
experience in trying sexual abuse cases. But once again,
558 McMullin v. Amsberry
those consultations did not provide her with the information
necessary to enable her to make the required cost-benefit
calculation about whether to challenge Smith’s testimony.
To the contrary, one of the attorneys, Cohen, merely said
something oblique to the effect that such challenges are
not done “anymore.” And the other, Maxfield, told her that
“[t]here’s plenty of literature to suggest that it would be
highly unusual for a girl to suffer repeated ‘blunt force
trauma’, especially recently and not have physical evidence
that the hymen has been torn.” Maxfield did caution that
cross-examination on the basis of that literature “needs to be
done surgically, or it can blow up.” But she also said that she
and Karabeika should talk about the relevant studies before
making a decision whether to go after the state’s expert.
Karabeika did not do that. She did not familiarize
herself with any of the literature that Maxfield had referred
to, much less consult with an expert about whether Smith’s
reliance on the Kellogg study was warranted. Instead, she
decided that the better tactical choice was to avoid cross-
examining Smith on the matter and make an appeal to the
jury that it made no sense that a victim of repeated sexual
assault would not show physical signs of that abuse.
It was a tactical choice, to be sure. But it was not an
informed one. Without acquiring an adequate understand-
ing of the relevant scientific issues, Karabeika could not
reasonably assess the costs and potential benefits of more
directly challenging the state’s expert. That deprived peti-
tioner of the reasonable professional skill and judgment that
he is guaranteed by Oregon’s constitution.
2. Prejudice
We turn to the question of prejudice. Under Article I,
section 11, to establish inadequate assistance of counsel
requires that a petitioner establish that trial counsel’s defi-
cient representation “had a tendency to affect the result of
the trial.” Burdge v. Palmateer, 338 Or 490, 492, 112 P3d
320 (2005). To satisfy the “tendency” requirement, a peti-
tioner must show “more than a mere possibility, but less
than probability” of such an effect. Green, 357 Or at 322-23.
In a failure-to-investigate case, a petitioner must establish
“that there is ‘more than a mere possibility’ that competent
Cite as 310 Or App 542 (2021) 559
counsel ‘could have used’ the information that counsel failed
to uncover or understand in a way that ‘could have tended
to affect’ the outcome of the trial.” Farmer, 363 Or at 700-01(quoting Richardson, 362 Or at 266). Whether that show-
ing has been made is a question of law. Stomps v. Persson,
305 Or App 47, 55, 469 P3d 218 (2020), rev den, 367 Or 496(2021).
In Farmer, the Oregon Supreme Court directly
addressed the application of that standard in the context of
a failure-to-investigate case. As we have noted, in that case,
the petitioner’s criminal trial counsel elected not to call a
defense expert to testify that a gun seized from another per-
son was likely the murder weapon. 363 Or at 687. Trial coun-
sel had made that decision after hearing the state’s expert
testify that it could not be determined whether that weapon
was the one that killed the victim. Id. at 684. Counsel mis-
takenly believed that the defense expert’s testimony would
not be appreciably different. Id. at 687. The Supreme Court
concluded that counsel’s mistaken understanding of the
defense expert’s opinion rendered counsel’s decision not to
call the expert constitutionally deficient. Id. at 699-700.
Turning to the issue of prejudice, the court rejected the
state’s contention that counsel’s performance could not have
had a tendency to affect the outcome of the case because the
evidence against the petitioner was “overwhelming.” Id. at
701. That, the court explained, is beside the point; it does
not mean that omitted evidence would not have tended to
affect the outcome of the trial. Id. That evidence still “would
have challenged” the state’s expert’s testimony, a fact made
all the more significant by the absence of physical evidence,
leaving the trial to turn on witness credibility. Id.Similarly, in Richardson, the Oregon Supreme Court
concluded that trial counsel’s failure to investigate the peti-
tioner’s background or consult with an expert before cross-
examining the state’s expert in a dangerous-offender hear-
ing was prejudicial. 362 Or at 267. The court explained that,
had trial counsel consulted with an expert, it was more than
a mere possibility that he could have used that information
in a way that could have tended to affect the outcome of
the dangerous-offender hearing by calling the expert, or
better cross-examining the state’s expert, or both. Id. That
560 McMullin v. Amsberry
evidence, the court noted, could have been used to show that
the state’s expert “had not been thorough in reaching his
opinion.” Id. Further, the court said, trial counsel could have
called a defense expert to rebut the state’s expert’s diagnosis
and provide an explanation for the petitioner’s conduct that
was not as damaging as the state’s expert had suggested.
Id. at 268. Under the circumstances, the court concluded, it
was more than a mere possibility that the jury could have
rejected the state’s expert’s diagnosis of a severe personality
disorder. Id.
More recently, in Running v. Kelly, 306 Or App 589,
475 P3d 450 (2020), we addressed whether the trial counsel’s
failure to call an expert witness in the penalty phase of an
aggravated murder trial was prejudicial. At the sentencing
hearing, the state had successfully argued that the petition-
er’s extensive history of violent acts, especially when in cus-
tody, was indicative of his future dangerousness. Id. at 593.
Seeking post-conviction relief, the petitioner offered the tes-
timony of an expert witness, Reidy, who testified that, had
he been called during the sentencing hearing, he could have
challenged the state’s assertion that the petitioner’s record
of violence while in custody was an accurate predictor of
future dangerousness. Id. at 599-600. The state responded
that the absence of such expert testimony was not preju-
dicial because it relied on statistical analysis that would
have been subject to challenge on cross-examination. Id. at
604-05.
We concluded that the failure to call Reidy was prej-
udicial. The court explained that the jury could have cred-
ited Reidy’s opinion, which could have undercut the state’s
assumption that prison behavior is an accurate predictor of
future dangerousness. Id. at 605. As for the state’s argu-
ment that such testimony would have been challenged on
cross-examination, we explained:
“Although Reidy’s testimony was not ‘conclusive’ regarding
petitioner’s future dangerousness, and any expert called as
a witness by petitioner’s trial counsel would have been sub-
ject to thorough cross-examination about the limitations of
statistical analysis in predicting future dangerousness in
prison, * * * there was more than mere possibility that the
outcome of the penalty phase of petitioner’s criminal trial
Cite as 310 Or App 542 (2021) 561
would have been different if his trial counsel presented
expert testimony on the subject of future dangerousness.”
Id. at 605.
In this case, we agree with petitioner that
Karabeika’s failure to conduct an adequate investigation
caused him to suffer prejudice. Smith’s testimony that a
normal physical examination was to be expected of an
adolescent girl who had been repeatedly raped was based
solely on the Kellogg study. Had Karabeika conducted an
adequate investigation, as in Richardson, she could have
retained a defense expert or better cross-examined Smith,
or both. Cross-examination or the testimony of an expert
such as Guertin could have brought to the jury’s attention
the flaws in the Kellogg study itself and the fact that the
principal author of the Kellogg study actually concluded in
another study that “physical findings are really important
and they are indicators of sexual trauma, of penetrative
sexual trauma.” Cross-examination or testimony from an
expert such as Guertin likewise could have brought to the
jury’s attention other studies showing that, contrary to the
Kellogg study, between 63 and 74 percent of adolescent girls
reporting sexual activity showed physical signs. It is more
than merely possible that such evidence could have made a
difference to the outcome of the case.
As in Farmer, the state’s argument here that there
was a great deal of evidence of the petitioner’s guilt misses
the point. Here, like Farmer, the absence of physical evi-
dence left the case to turn on the reliability and credibil-
ity of witnesses. Under those circumstances, it is more than
possible that better cross-examination or expert testimony,
or both, would have made a difference.
Likewise, the state’s argument that an expert
like Guertin would have been subject to vigorous cross-
examination is unavailing. As we said in Running, defense
experts always will be subject to cross-examination, and
the fact that a defense expert’s testimony may not conclu-
sively rebut the prosecution’s case is not dispositive. As in
Richardson, defense expert testimony may show that the
state’s expert “had not been thorough in reaching his opin-
ion.” 362 Or at 267. And the absence of such testimony may be
562 McMullin v. Amsberry
prejudicial. Id. In this case, for instance, cross-examination
or testimony of an expert such as Guertin could have shown
that Smith—who relied on the single Kellogg study—had
not been thorough in reaching her own opinion. It is more
than possible that such information could have made a
difference.
As for the state’s argument that Guertin’s own tes-
timony would have been undercut by his concession that
most children who reported abuse involving vaginal pene-
tration will have normal genital exams, the state mischar-
acterizes the expert’s testimony. As we noted above, Guertin
agreed that, among children of all ages, a normal genital
examination is common. But he also emphasized repeatedly
that studies reporting such findings are based on popula-
tions of both pre-pubertal and post-pubertal girls. He said
that in studies of older adolescents—particularly those older
adolescents who have reported penile-vaginal intercourse—
there is commonly a high rate of abnormal physical find-
ings. The victim in this case was post-pubertal and reported
that petitioner had repeatedly raped her. It is more than
merely possible that testimony that a high rate of abnormal
physical findings would be expected in such circumstances
could have made a difference to the outcome of this case.
Reversed and remanded with instructions to grant
relief on inadequate investigation claim; otherwise affirmed.