Appellate Court of Illinois denies petitioner’s claim of ineffective post-conviction counsel when counsel failed to request independent forensic testing of evidence

Petitioner was convicted in a trial of the sexual assault of his young stepdaughter at her mother’s house. The evidence at issue was a blanket, which the victim claims she spit on and wiped her hands after the defendant forced her to perform oral sex on him. The blanket was tested by the state’s investigators and revealed the presence of defendant’s semen, the genetic material of an unknown female, and the saliva of the victim.

Petitioner contended in a post-conviction proceedings that if the blanket was tested independently, the blanket may provide evidence that the presence of defendant’s semen and the victim’s saliva was coincidental and that the victim could have gotten her saliva on the blanket while playing with her mother on the bed. Petitioner claimed he had received ineffective counsel at trial because of trial counsel’s failure to investigate an alibi and because of counsel’s failure to have the blanket independently tested. Post-conviction counsel also failed to request independent testing of the blanket during post-conviction proceedings. As a result, petitioner asserted another claim of ineffective assistance of counsel regarding his post-conviction representation.

The court disagreed that his post-conviction counsel was unreasonably deficient. It analogized his case to prior cases in which the counsel  would have had to go on a “fishing expedition” to investigate the claims that the defendants had sought to explore. The court noted that the petitioner only showed that testing “might” lead to exculpatory evidence but did not provide any additional support to these claims. Further, it might have been a reasonable strategic decision to not request further testing if the testing was to reveal that the victim’s saliva is only present in the stains that also contain the defendant’s semen, which could thereby bolster the state’s case.

People v. Greathouse, 2015 IL App (2d) 131334-U

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