“You can’t kill a dead man.” That was the sole theory of Jeffrey Workman’s lawyer, who argued that the man his client shot was already dead when Workman walked into the middle of a gunfight between Gary Moses and Lawson Hunt in Philadelphia.
But the medical examiner testified that Hunt was still alive after Moses shot him, and that it was Workman who fired the ricochet shot that killed Hunt. The jury, apparently not convinced of Workman’s defense, convicted him of first-degree murder and acquitted Moses in 2006. Workman has been incarcerated at Albion state prison since then.
Workman filed a writ of habeas corpus and argued that his trial counsel failed to give him an adequate defense. Workman also claimed that his post-conviction lawyer was incompetent, but he failed in both challenges. Workman was represented by Jay S. Gottlieb at trial and Mitchell Strutin post-conviction, according to his habeas petition.
At trial, Gottlieb did not put on a case for his client, declining to call witnesses or address the prosecution’s case other than to claim the medical examiner was wrong.
Now, however, the U.S. Court of Appeals for the Third Circuit has ruled that the level of representation Workman received was so ineffective that it violated his constitutionally guaranteed right to counsel.
“Trial counsel’s failure to present a case on behalf of Workman or to modify his theory of the case to account for, if not rebut with evidence, the testimony offered by the commonwealth, represents a near-total failure on the part of trial counsel to contest the commonwealth’s case,” Third Circuit Judge Julio Fuentes wrote in the court’s opinion.
“This is not to say that the decisions not to call a rebuttal expert on a defendant’s behalf or to decline to call fact witnesses in a defendant’s case-in-chief are inherently unreasonable,” Fuentes continued. “Here, however, they clearly derived not from a legitimate and reasonable trial strategy but from trial counsel’s failure to understand what was happening in the case in which he was ostensibly participating. The commonwealth sought to prove that Workman killed Hunt, but Workman’s counsel sought only to prove his chosen theory seemingly without regard for the facts in evidence. This deprived Workman of his Sixth Amendment right to counsel.”
As for Strutin, Fuentes said he failed to recognize the merit in Workman’s claims.
Fuentes said: “In a case in which trial counsel presented no witnesses or evidence and appeared on the face of the record to be unable to adapt to the medical examiner’s testimony that Hunt was alive when the ricocheted bullet struck him in the chest, Workman’s state post-conviction counsel presented one claim in PCRA proceedings: ‘ineffective assistance of trial counsel for failing to request a jury instruction that indicated that the transferred intent doctrine also applied to the petitioner’s claim of defense of use of force to protect a third person.’ The Superior Court found that claim ‘nonsensical,’ to the extent that it could not determine what exactly Workman, through state post-conviction counsel, claimed.”
Fuentes said Strutin’s decision not to address trial counsel’s failure to rebut the prosecution’s case and instead to pursue an argument that was ”clearly and significantly weaker” constituted ineffective assistance.
Workman is currently represented by Marshall Dayan of the Federal Public Defender’s Office, who did not respond to a request for comment. Susan Affronti of the Philadelphia District Attorney’s Office also did not respond to a request for comment.