Liao v. Junious, No. 14-55897 [April 1, 2016]
Amended opinion and order denying the petition for rehearing en banc as moot.
Liao was charged with assaulting and attempting with premeditation to kill his ex-girlfriend’s son. His defense was that at the time he struck the son with a hammer he lacked the intent to commit the crimes because “he was in a state of unconsciousness during an episode of sleepwalking.” The California Court found that his trial counsel performance, in failing to secure medical evidence to support his primary expert’s sleepwalking opinion, was ineffective, but counsel’s failure had not been prejudicial. The Court concluded that the California Superior Court’s decision “was (1) based on an unreasonable determination of the facts, and (2) objectively unreasonable in its application of clearly established Federal Constitutional law” and, therefore, reversed. Trial counsel was ineffective in failing to verify a court clerk’s statement that the judge had denied his request for funds for a sleep study as suggested by a defense expert witness. In fact, the judge had granted the request, although no one notice until Mr. Liao’s appeal. As the study was never done the expert, who did testify, couldn’t diagnose Liao as a sleepwalker, thereby, enabling the prosecution to discredit his opinion that Liao suffered from sleepwalking. Over and over the prosecution hammered on the lack of a sleep study to discredit Liao’s defense and called its own expert to emphasis a diagnose could not be made without such a study. Liao was diagnosed after his trial, based on a sleep study, as a somnambulist, i.e., a sleepwalker. The state argued that the new sleep study would not have helped Liao’s defense and, therefore, he suffered no prejudice. The court found the argument “unconvincing and patently irreconcilable with the record. The court's fact-finding on a lack of prejudice suffered from several errors which highlighted the unreasonableness of its decision: (1) the court failed to acknowledge the sleepwalking diagnosis and objective evidence supporting it; (2) the court’s use of lay evidence admitted during the trial to support Liao’s defense [the court stated “[e]quating lay testimony on a medical subject with the testimony of two qualified doctors makes no sense.”]; (3) the court errored by brushing off the absence of a sleep study because of the state court finding that it was an optional procedure; (4) the state court errored by discrediting the sleep study because Liao didn’t sleep walk during the study, which according to the experts was highly unlikely to happen; and (5) the state court selectively ignored favorable evidence and focused on evidence that would show Liao was conscious. Laio "conviction represents an extreme malfunction of justice caused by a violation of his Sixth Amendment right to competent and effective counsel, a violation the state does not dispute. This error was anything and everything but harmless."