Saesee v. McDonald

When the opening statement by the defense counsel only suggests hope for a witness to testify, the statement does not constitute a promise, and therefore does not establish ineffective assistance of counsel.

During Roger Saesee’s murder trial, Saesee’s defense counsel, Michael Kordell, mentioned two witnesses who could corroborate Saesee’s alibi. After the first witness testified, Kordell checked outside the courtroom for the other witness. The defense then rested, and Kordell did not call another witness to the stand, nor explain why the other witness did not testify. Saesee argued that his counsel made a broken promise to the jury that prejudiced the trial’s outcome and constituted ineffective assistance of counsel. Saesee was found guilty of his crimes, and the California Court of Appeal affirmed. After the district court denied Saesee’s habeas petition, Saesee filed a notice of appeal, and the Ninth Circuit issued a certificate of appealability. Reviewing the denial de novo and under the Antiterrorism and Effective Death Penalty Act of 1996, this was a case of first impression. The panel applied the principles of Strickland v. Washington in determining whether Kordell provided ineffective assistance of counsel. The panel looked to see whether there was a “reasonable probability” that the result of the proceeding would have been different had counsel not made his errors. In order to satisfy Strickland’s prejudice prong, a promise must be made. The panel determined that in some cases, an unfulfilled promise to produce a witness could constitute ineffective assistance of counsel. However, the panel found there was no actual promise because a promise creates expectations, and Kordell’s statements only expressed a hope that the witness would come forward and tell the truth; there was no certainty in Kordell's statement promising that the witness would testify. Therefore, the panel held that the California Court of Appeal reasonably concluded that Kordell’s statement of “I’m counting on [the grandfather] to tell the truth and corroborate what the girl said” did not constitute a promise to the jury. AFFIRMED.