7th Circuit Rules Ineffective Counsel in Sexual Strangulation Case Posted on September 15, 2015 by Larry Bodine The Seventh Circuit Court of Appeals granted a writ of habeas corpus for a man who is arguing that his counsel was ineffective in failing to consult a pathology expert in his trial for the strangulation death of his ex-wife during sex. Joyce Oliver-Thomas died of manual strangulation caused by consistent pressure on her neck. Oliver-Thomas and her ex-husband, Oscar, lived together as roommates who occasionally had sex with one another after their divorce in 1999. Ex believes he caused death accidentally Oscar Thomas called the police to report that Joyce was unconscious at 3:24 am on December 27, 2006. Police found her unresponsive and she was later pronounced dead in the hospital. In a police interview, Thomas said he had his “left arm around Joyce’s neck” and his right arm “underneath her” while having sex. He further stated, “I didn’t think I was squeezing hard but Joyce was struggling, yelling to stop.” He stopped when Oliver-Thomas threatened to bite him. Thomas said he came back later to find her laying face down on the floor and believed he was “accidentally responsible” for her death. Thomas was convicted of intentionally committing her murder, first degree sexual assault and false imprisonment. The state medical examiner testified that there was no evidence of external bruising on Oliver-Thomas’s neck and no signs of a struggle or fight between the former spouses. However, the autopsy revealed hemorrhages inside her neck and bruises to her thyroid and larynx, showing that the application of intentional pressure by an arm or forearm caused Oliver-Thomas’s strangulation death. Ex-husband appeals conviction In his post-conviction hearing, Thomas’s new attorney argued that his trial counsel denied effective assistance because he did not use a pathologist to review the state medical examiner’s findings. A forensic pathologist used by Thomas in the post-conviction hearing reported that there was no physical evidence showing that “intentional” pressure was applied to the neck and there was “actually no evidence of manual strangulation.” The post-conviction court denied relief, finding no prejudicial deficient performance by the trial attorney. The state appellate court affirmed, but did not address whether trial counsel’s performance was deficient. The district court found that trial counsel had no reason to question the cause of death and did not prejudice Thomas because the expert pathologist could not rule out strangulation as a cause of death. Court of Appeals finds deficient representation The Court of Appeals determined that Thomas’s right to effective counsel was violated, allowing him to move forward on his habeas petition. The court found that Thomas’s trial attorney was deficient in failing to consider and consult with a pathologist expert. Trial counsel testified that he did not “consider retaining a forensic pathologist to at least review” the state medical examiner’s report. For another interesting article, see the case where two chimpanzees sought a habeas corpus ruling. The court explained that it typically would give deference to counsel’s strategic decision to “forgo a certain trial strategy,” such as consulting an expert, but in this case the trial attorney admitted that his failure to reach out to an expert was not a conscious decision, rather “he just did not think to do so.” The court reasoned that trial attorney should have known that an expert witness pathologist should have questioned the autopsy finding of intentional homicide, especially because there were no external marks or signs of a struggle on Oliver-Thomas. Furthermore, the appeals court stated that reasonable counsel would have at least consulted a “pathologist to see if the medical findings could be reconciled with Thomas’s version” of Oliver-Thomas’s unintentional death. Attorney’s performance prejudiced Thomas The Appeals court reviewed and determined that the trial attorney’s performance prejudiced Thomas in not using a pathology expert. It wrote that the “state’s case was not ironclad by any stretch of the imagination,” and that “Thomas’s intent was one of the lynchpin of the case.” However, Thomas’ trial counsel did not use an expert witness, such as the one used during the post-conviction hearings. That expert provided reconciliation of the facts of the case with Thomas’s statement to the police that he did not intentionally kill Oliver-Thomas, but instead had his arm around her neck during consensual sex. The court found that there was a reasonable probability that with the use of an expert pathologist, such as the one used in the post-conviction hearing, the “outcome of the trial would have been different had counsel provided adequate representation.” The court reversed and remanded to allow Thomas to continue his case. The case is Thomas v. Clements, case number 14-2539 in the United States Court of Appeals for the Seventh Circuit.