by Mark Wilson

The Oregon Supreme Court held that a lower court misapplied the prejudice prong of the ineffective assistance of counsel standard when it found petitioner’s claim “purely speculative” in the absence of “affidavits of Supreme Court justices regarding whether the court might have allowed review.”

In 2001, Melton Jackson Jr., was charged with three sex crimes against his 10-year-old son. He requested a bench trial.

The prosecution called Dr. Steinberg, a pediatrician with CARES Northwest, who specializes in child abuse. Steinberg testified that she had examined Jackson’s son, found no physical evidence of abuse but made a “medical diagnosis” based solely on her interview of the child, which “was highly concerning for sexual abuse.” Trial counsel knew that Steinberg’s testimony “would carry great weight with the factfinder,” but he “could not think of any possible objection to her diagnosis.”

At that time, the Oregon Court of Appeals had held that a medical diagnosis of sexual abuse without corroborating physical evidence was admissible. See: State v. Trager, 158 Or App 399, 974 P2d 750 (1999). The case was decided en banc, but the judges disagreed about whether the evidence was “scientific evidence” that required a proper foundation. The Oregon Supreme Court later denied review, but one justice would have granted review. See: State v. Trager, 329 Or 358 (1999).

Jackson’s attorney was not aware of Trager. He also did not know that Office of Public Defense Services attorneys believed Trager was wrongly decided and were encouraging trial attorneys to object to such medical diagnoses in an effort to persuade the Supreme Court to accept review.

Jackson was ultimately convicted of one count and acquitted of two. He was sentenced to 130 months in prison. Jackson appealed but appellate counsel could not challenge Steinberg’s medical diagnosis because trial counsel failed to preserve the issue by objecting. The appeal was ultimately affirmed without opinion.

Two and a half years after Jackson’s direct appeal, the Oregon Supreme Court effectively overruled Trager, holding that a medical diagnosis of sexual abuse without physical evidence corroboration is inadmissible. See: State v. Southard, 341 Or 127,218 P3d 104 (2009).

Jackson filed a post-conviction relief action, alleging that he was denied effective assistance of trial counsel. He claimed that his attorney improperly failed to object to Steinberg’s sexual abuse medical diagnosis testimony. The trial court denied relief, holding that trial counsel was not ineffective in failing to anticipate the Court’s Southard decision. It also held that Jackson did not prove prejudice, finding that “in the absence of an affidavit from an Oregon Supreme Court Justice confirming that petitioner’s case would have been the vehicle for the principle of law announced in Southard, petitioner’s claims in this regard are unsubstantiated speculation.” The Oregon Court of Appeals affirmed, addressing only the prejudice prong. See: Jackson v. Franke, 284 Or App 1,392 P3d 328 (2017).

The Oregon Supreme Court reversed, holding that trial counsel’s failure to object to Steinberg’s testimony had a tendency to affect the result of the prosecution. In reaching that conclusion, the Court instructed that proving a tendency to affect the outcome requires three events to occur in conjunction: (1) reasonable appellate counsel would have raised the issue if preserved by trial counsel; (2) the Supreme Court would have allowed review; and (3) the Court would have ruled in Jackson’s favor and reversed. Given that Jackson submitted uncontested appellate counsel affidavits averring that the issue would have been raised and the Court ultimately ruled in Jackson’s favor in Southard, the Court found that “the first and third parts of that chain are not in serious dispute.” Accordingly, “the key dispute” was whether the Court “would have allowed review ... at all.”

While the Court “has complete discretion” to allow review, “and parties can never be certain whether or not review will be allowed” because the “Court’s decisions ... are discretionary, generally unexplained, and rest on a multiplicity of factors,” the Court instructed that “certainty is not required” and “the absence of certainty does not render any evaluation of a tendency to affect the outcome purely speculative.”

The Court expressly rejected the trial court’s suggestion that Jackson could not prevail without offering affidavits of Supreme Court justices. “As a matter of law, ... the prejudice analysis should not involve any consideration of the individual justices, or the factors that might or might not have motivated specific judges in deciding whether to allow review,” the Court held. “Not only is such evidence unnecessary, but it is also irrelevant. The private views of specific members of this court are of no weight in assessing prejudice.”

Rather, “whether review would have been allowed, for purposes of the prejudice inquiry, must be determined based on objective indicators that allow meaningful assessments of the likelihood of a petition for review being allowed.” The Court then offered several, seemingly nonexclusive, examples of possible subjective factors that may be considered.

The Court ultimately found that “several objective indicia support” Jackson’s claim that he was prejudiced by trial counsel’s failure to preserve his argument. While “no one could have predicted with any certainty whether this court would have allowed review,” the Court reversed, agreeing “that there was more than a mere possibility that, if the issue had been preserved and adequately presented, this court would have allowed review and reversed his conviction.” See: Jackson v. Franke, 364 Or 312, _ P3d _ (Or. 2019).

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