FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTI LYN LUNBERY,
Petitioner-Appellant, No. 08-17576
v.
D.C. No.
2:07-cv-01279-GGH
TINA HORNBEAK, Warden;
ATTORNEY GENERAL, OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Gregory G. Hollows, Magistrate Judge, Presiding
Argued and Submitted
January 15, 2010—San Francisco, California
Filed May 25, 2010
Before: John T. Noonan, Michael Daly Hawkins and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Noonan;
Concurrence by Judge Hawkins
7427
7430 LUNBERY v. HORNBEAK
COUNSEL
Juliana Drous, San Francisco, California, for the petitioner-
appellant.
Barton Bowers, Deputy Attorney General, Sacramento, Cali-
fornia, for the respondents-appellees.
OPINION
NOONAN, Circuit Judge:
Kristi Lyn Lunbery appeals the denial by the district court
of her petition for a writ of habeas corpus. We reverse the
judgment of the district court and remand with directions to
issue the writ.
FACTS
The Crime. At approximately noon on Friday, April 17,
1992, Charlie Bateson (Charlie) was discovered dead. He had
been shot in the head with a single bullet discharged four to
six inches from his head. His death by violence had been
caused by another person. The time of his death is not estab-
lished by the record on appeal.
The Investigation. A neighbor, Belinda Strickland, discov-
ered the body in a bed in Charlie’s home in Burney, Shasta
County, California. The Shasta County Sheriff was notified.
Detectives from his office examined the house. Blood had
splattered on the floor and wall of the bedroom and on the
LUNBERY v. HORNBEAK 7431
outside of the door frame leading to a hall. No weapon was
found. No bloodstained clothes were found. No signs were
found of any clothes or area having been recently washed.
Fingerprints, when they were taken, were of the present and
recent tenants, plus some unidentified prints and an unidenti-
fied palm print. A medical examiner performed a field investi-
gation at the house and four days later conducted an autopsy.
The house was unlocked. It was the last house on a cul-de-
sac, and the detectives found footprints and tire tracks in the
wooded area at the end of the street. The detectives also found
a note to Charlie on the refrigerator from his wife, telling him
that she was taking their two daughters to go shopping in
Redding and would be back by 1 p.m. or so.
Sheriff’s officers found Charlie’s wife, Kristi, at the Mt.
Shasta Mall in Redding with her two children and her grand-
father. She was visibly upset by the terrible news the detec-
tives brought her. She immediately consented to a search of
her car, parked nearby. The detectives found no bloodstains
and no weapon. Kristi herself had no apparent bloodstains on
her clothes.
The detectives escorted Kristi to the Sheriff’s office where
she gave an account of her day. Charlie worked on the swing
shift, 5 p.m. to 3 a.m., at Sierra Pacific Mills. The couple had
two children, Kayla, aged 3½, and Kelsey, aged about four
months. The children went to bed in the single bedroom in the
small house. Kristi greeted Charlie when he returned from
work, and they talked to about 3:30 a.m. Then, as ususal, they
went to sleep together on a hide-away bed in the living room.
As usual, the children woke around 6:30 a.m. Charlie
moved from the living room to the bed they had occupied.
Kristi got up, dressed the children and got breakfast for them.
She had told Charlie about the plan to go to Redding and left
the note to remind him. She and the children left the home
about 7:40 a.m. She left the house unlocked, as she usually
did when Charlie was home.
7432 LUNBERY v. HORNBEAK
Kristi drove to her parents’ home in Burney. Her parents
were out of town, but she talked to her grandfather, who was
visiting there. He told her that he was planning to go to Redd-
ing, too. She then drove to the Mt. Shasta Mall, about an
hour’s distance.
She and the children window-shopped at the mall. At about
11 a.m., when she went to move her car, she discovered it had
a flat tire. Neither she nor her grandfather could change it.
She decided to call Charlie and ask for him to come with his
truck. She called two times but got no answer. It was her habit
to turn off the ringer while Charlie slept. She then called
Belinda and asked her to go to the house to wake him.
Forensic tests established that the fatal bullet could have
been discharged by twenty-seven different weapons. Fourteen
such weapons were found in the course of the investigation,
and two could not be ruled out as the murder weapon. They
carried no identifying marks. Charlie himself had a rifle given
to him by his wife’s grandmother, and the model was the most
common of the twenty-seven possible murder weapons. The
gun had last been seen just over a week earlier in Charlie’s
truck. This gun was not found.
Charlie and Kristi had lived in the small house (a bedroom,
a living room, a kitchen, a hall and a bathroom) for two
weeks. It was located at 20292 Fir Street, Burney. It belonged
to Kristi’s grandmother, Margaret Beaman, who let Kristi and
Charlie have it rent-free, so they could save money for a
house of their own.
According to Margaret Beaman, her house had been previ-
ously occupied by Cindy Ellis and Ellis’s ex-husband Frank
Delgado, a known drug dealer. After Ellis and Delgado
moved in, Beaman noticed an increase in traffic to and from
the house at all hours of the day and night in a relatively rural
area—traffic consistent with drug sales—and she evicted
them because of that activity.
LUNBERY v. HORNBEAK 7433
The Sheriff’s investigators interviewed an acquaintance of
Delgado, Oney Rhoades, who had stayed with Delgado at the
Fir Street house in late February 1992. Rhoades reported that
he had seen Delgado and Henry Garza in that house in posses-
sion of “dope” worth $40,000.
A confidential informant told Sheriff’s detective Willie
Cox on April 20, 1992, three days after the murder, that he
felt the killing had been a mistake. The intended victim had
been Delgado because he had “ripped off several people in
town over drug dealings.”
A neighbor on Fir Street, John Voet, had been up in the
early morning of April 17, taking his mother to the hospital.
When he returned to Fir Street around 3 a.m., he had observed
a ‘78 or ‘79 Ford Fiesta with a distinctive orange stripe enter
the cul-de-sac. Voet watched the car turn around at the end of
the street, park in front of the Bateson house, switch off its
lights and engine, and after twenty to thirty seconds depart at
a high rate of speed. This deliberate maneuver reminded Voet
that he had seen the same car a week earlier enter the cul-de-
sac and drive in and out around midnight. Voet also saw the
car a second time on the day of the murder, parked in the
parking lot of a pizza parlor, Half Time Pizza. A confidential
informant linked the car to both Garza and Delgado.
On May 6, 1992, Rory Keim informed Sheriff’s deputy
Compomizzo that on Sunday night following the murder, he
and two friends were in Half Time Pizza discussing Charlie’s
death. Henry Garza approached their table and said: “That’s
a bummer. My partners blew away the wrong dude.”
As of May 6, 1992, the police had four independent sources
connecting the murder to drugs. A motive for the murder had
been provided. A connection between the intended victim and
Garza had been established. Garza had admitted knowledge of
the murderers and of their mistake. No further information on
the case was obtained until December 2001.
7434 LUNBERY v. HORNBEAK
Two years later, Kristi married Troy Lunbery, a man she
had dated occasionally before her marriage to Charlie. She
and Troy have one child.
The Investigation Reopened. In December 2001, the inves-
tigation of the crime reopened. Detectives Steve Grashoff and
Cliff Blankenship interviewed Troy on December 20, 2001.
Later that day, at about noon, they dropped in on Kristi at her
home. They told her they wanted to discuss Charlie’s death.
She could tell them to leave at any time. The interview was
recorded.
For the first hour and one half, the detectives’ approach
was low-key, touching on various aspects of Kristi’s life with
Charlie and the events of April 17, 1992. Kristi was providing
care to Jim, a man with severe mental retardation and epi-
lepsy, and at various points in the interview his interruptions
and inarticulate noises may be heard. Kristi’s children were
not home.
The interview became intense when the detectives showed
her a FBI profile of the case and told her that a secret witness
had inculpated her. Detective Grashoff then said, “Kristi, we
think you did it.” She denied it. The detectives said they knew
she had done it and only wanted to know why. Was it because
he was abusive? “For God’s sake, tell the truth,” Grashoff
urged.
Eventually, Grashoff asked, “Did you shoot Charlie?” She
answered, “Yes.”
Proceedings. Kristi was indicted for “open murder,” per-
mitting conviction for murder in the first degree. She was not
taken into custody. In preparation for the trial, Kristi’s two
lawyers accepted her statement that she had confessed falsely
to the crime. They set about to see whether there was evi-
dence of persons confessing to crimes they had not commit-
ted. They came in contact with Richard Ofshe.
LUNBERY v. HORNBEAK 7435
Ofshe holds a doctorate in psychology from Stanford Uni-
versity and is a professor of social psychology at the Univer-
sity of California at Berkeley. He has been an expert witness
both for prosecutors and for defendants on the psychology of
interrogations and the psychology of false confessions. At
counsel’s request, Ofshe interviewed Kristi. He reported that
she had described to him “a well-recognized type of confes-
sion — a stress compliant false confession.”
Ofshe suggested to counsel that they have Kristi further
examined by a clinical psychologist familiar with the Gud-
johnsson Suggestibility Test. The author of this test was Gisli
H. Gudjonsson, a faculty member of the Institute of Psychia-
try, King’s College, London, who had written The Psychology
of Interrogation and Confessions (2003). In that treatise, Gud-
jonsson had reported on the basis of research that some con-
fessions of crime were false. The false confessions were made
either to shield another suspect or to end the stress of interro-
gation. There was no information on the number of false con-
fessions. That they occurred was an established fact.
Counsel located one psychologist in the Redding area who
had never heard of the Gudjonsson test, and another local psy-
chologist who had heard of it but had never used it. Counsel
did not investigate further. They entered into their trial file a
memorandum stating their belief that Ofshe’s testimony
would be inadmissible and, if admitted, would have a nega-
tive impact on the jury because of its lack of substance.
Trial counsel sought pretrial rulings to permit the introduc-
tion of the evidence that the murder had been committed by
Garza’s partners. The trial court ruled against them.
At trial, the state suggested motives for murder — Charlie’s
$15,000 life insurance; the existence of an old boyfriend;
Charlie’s “controlling” conduct. However, one-third of the
insurance had gone for Charlie’s funeral; Kristi, as the mother
of two little children, was dependent on Charlie’s income.
7436 LUNBERY v. HORNBEAK
The ex-boyfriend was the man Kristi married two years later;
he was not on the scene in 1992. That Charlie was abusive to
Kristi was suggested to her by the detectives throughout the
2001 interview, and Kristi appeared to adopt that reasoning as
her own when she confessed to the crime. There was no evi-
dence of physical abuse. The popular psychological term
“controlling” was picked up by the detectives as an alternate
description of Charlie’s conduct. When Kristi gave the detec-
tives an example of Charlie being controlling, the story she
told was not about Charlie at all but about his father.
Kristi denied her guilt and repudiated her confession. Wit-
nesses testified to her gentle disposition. The prosecution
attempted to show that the murder had been planned, but pro-
duced no evidence of premeditation. It became the prosecu-
tion’s burden to persuade the jury beyond a reasonable doubt
that Kristi, at some time between 6:30 a.m. and 7:40 a.m.,
during which she had dressed and fed their children, had shot
her husband and then had disposed of the murder weapon and
any incriminating spots of blood. The sole significant evi-
dence against her was her confession. The jury found her
guilty of second degree murder.
Appeal. The centerpiece of the appeal was the evidence of
third party culpability that the trial court had excluded. The
California Court of Appeal for the Third Appellate District
issued an unpublished opinion. As the Supreme Court of Cali-
fornia summarily denied review, this unpublished opinion is
the final judgment that in this habeas proceeding we review.
The court of appeal declared that “the only real evidence”
that someone else had killed the victim was Rory Keim’s
report of Henry Garza’s admission. That report was hearsay
but admissible if three conditions were met. The first condi-
tion was that the declarant be unavailable. The condition was
met. Garza was dead. The second was that the statement was
against Garza’s “penal interest.” This condition, the court
ruled, was not met. The third was that the declarant have “suf-
LUNBERY v. HORNBEAK 7437
ficient knowledge of the subject.” This condition, too, the
court of appeal said, had not been met. The court found that
the statement “may have been nothing more than boasting or
the mindless remark of someone under the influence of
liquor,” and deemed the statement inadmissible.
Once Garza’s statement was ruled out, the court of appeal
in a single paragraph disposed of the other evidence of
Garza’s connection to the murder, ruling that “it lacked suffi-
cient probative value to raise a reasonable doubt of defen-
dant’s guilt.” Kristi’s appeal was denied.
On December 7, 2006, Kristi filed a petition for habeas cor-
pus with the Supreme Court of California. This petition
included a claim of ineffective assistance of counsel. The peti-
tion was summarily denied.
On June 11, 2007, Kristi filed the present petition pursuant
to 28 U.S.C. § 2254 in the district court. Habeas counsel inter-
viewed Kristi’s two defense lawyers as to why they had not
offered Ofshe’s testimony or investigated the false confession
further. Each reported that the other had made the decision.
A magistrate judge recommended denial of the petition,
and the district court denied it. This appeal followed.
STANDARD OF REVIEW
We review de novo the district court’s denial of a petition
for a writ of habeas corpus. Musladin v. Lamarque, 555 F.3d
830, 835 (9th Cir. 2009).
Lunbery filed her federal habeas petition after 1996, and
thus the petition is subject to review under the Antiterrorism
and Effective Death Penalty Act (AEDPA). Under AEDPA,
a writ of habeas corpus may be granted only if the state
court’s decision (1) was “contrary to or involved an unreason-
able application of, clearly established Federal law, as deter-
7438 LUNBERY v. HORNBEAK
mined by the Supreme Court of the United States,” or (2) was
“based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d); see also Davis v. Woodford, 384 F.3d 628,
637 (9th Cir. 2004), cert. dismissed, 545 U.S. 1165 (2005). A
decision involves an “unreasonable application” of federal
law “if it correctly identifies the governing rule but unreason-
ably applies it to a new set of facts, or fails to extend a clearly
established legal principle to a new context in a way that is
unreasonable.” Himes v. Thompson, 336 F.3d 848, 852 (9th
Cir. 2003) (internal citations omitted).
ANALYSIS
I. Ineffective assistance of counsel.
Petitioner presses her claim that counsel was ineffective
because they failed to call Professor Ofshe and failed to inves-
tigate further the validity of Kristi’s confession. These fail-
ures, if established, constitute errors requiring the grant of the
petition. See Richter v. Hickman, 578 F.3d 944, 952-53 (9th
Cir. 2009) (en banc) (finding ineffective assistance of counsel
where counsel failed to investigate and present at trial critical
expert testimony), cert. granted sub nom. Harrington v. Rich-
ter, 130 S.Ct. 1506 (2010).
Failure has yet to be established. As evidence so far, we
have only a memorandum in trial counsel’s file stating why
counsel decided not to call Ofshe and an affidavit of federal
habeas counsel stating that she had interviewed Kristi’s two
defense counsel on the subject and that each had put responsi-
bility on the other for not putting on expert evidence. To
decide petitioner’s claim we need the live testimony of her
trial attorneys. See Schriro v. Landrigan, 550 U.S. 465, 474
(2007) (“In deciding whether to grant an evidentiary hearing,
a federal court must consider whether such a hearing could
enable an applicant to prove the petition’s factual allegations,
LUNBERY v. HORNBEAK 7439
which, if true, would entitle an applicant to federal habeas
relief.”).
We do not, however, need to delay our decision on her
other contention.
II. The right of defense.
[1] The Sixth Amendment to the Constitution guarantees
the right of a criminal defendant to have a public trial, to con-
front the witnesses against him and to obtain witnesses in his
favor. These guarantees are incorporated by the due process
clause of the Fourteenth Amendment, binding the states. Due
process includes a right to “ ‘a meaningful opportunity to
present a complete defense.’ ” Crane v. Kentucky, 476 U.S.
683, 690 (1986) citing California v. Trombetta, 467 U.S. 479,
485 (1984). That constitutional right is violated by the exclu-
sion of probative admissible evidence that another person may
have committed the crime. Chambers v. Mississippi, 410 U.S.
284, 302-03 (1972).
In Chambers, the defendant sought to introduce the testi-
mony of three individuals to whom a third party had con-
fessed to committing the murder for which Chambers was on
trial. Id. at 298. The Mississippi State Supreme Court upheld
the exclusion of this evidence because it was hearsay and not
subject to exception under state evidentiary rules which, at the
time, recognized only declarations against pecuniary interest.
The United States Supreme Court noted that the hearsay state-
ments involved in the case were made under circumstances
that provided assurance of their reliability: the confessions
were made spontaneously shortly after the murder, corrobo-
rated by some other evidence in the case, and were self-
incriminatory. Id. at 300-01.
The Supreme Court ultimately determined that “under the
facts and circumstances” of that case, exclusion of the evi-
dence violated Chambers’ constitutional rights. Id. at 303.
7440 LUNBERY v. HORNBEAK
Stating that “[f]ew rights are more fundamental than that of
an accused to present witnesses in his own defense,” the
Supreme Court noted that the rejected testimony “bore per-
suasive assurances of trustworthiness” and that the “testimony
also was critical to Chambers’ defense.” Id. at 302. “In these
circumstances, where constitutional rights directly affecting
the ascertainment of guilt are implicated, the hearsay rule may
not be applied mechanistically to defeat the ends of justice.”
Id.
Chambers controls. The state court excluded as hearsay
Rory Keim’s testimony that Henry Garza, dead at the time of
Kristi’s trial, had admitted that his partners had murdered
Charlie Bateson in error, and the California court of appeal
affirmed that ruling.1
[2] As in Chambers, Garza’s statement was against his
penal interest. He admitted the murder had been committed by
his “partners.” He exposed himself to the risk of criminal
prosecution. At a minimum, he was an accessory after the
fact. Cal. Pen. Code §§ 32-33. At a maximum he was an
accessory before the fact or a co-conspirator with the killers
and subject to the same penalty as the actual murderer. Bom-
pensiero v. Superior Court, 281 P.2d 250, 256 (Cal. 1955);
Cal. Pen. Code §§ 971, 182(a). As in Chambers, Garza’s
statement was made shortly after the murder, albeit not to a
close acquaintance. As in Chambers, the incriminating state-
ment was corroborated by other evidence in the case: (1) an
acquaintance of Delgado’s indicated that Garza and the for-
mer tenant of Kristi’s home, Frank Delgado, were involved in
drug deals together and had been seen in the house with
1
As a habeas court, we do not review the propriety of the state court’s
application of its own evidentiary rules; rather, we consider whether it was
unreasonable for it to conclude, in light of Chambers, that the exclusion
did not violate Kristi’s due process right to present a defense and receive
a fair trial. See Rice v. McCann, 339 F.3d 546, 549 (7th Cir. 2003); see
also Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004).
LUNBERY v. HORNBEAK 7441
$40,000 worth of illegal drugs, (2) a confidential informant
told police three days after the murder that Delgado had been
the intended victim because he had ripped off several people
in drug deals,2 and (3) a neighbor saw a car linked to both
Garza and Delgado on the street in front of Kristi’s house a
few hours before the murder. The excluded testimony thus
bore substantial guarantees of trustworthiness and was critical
to Kristi’s defense. Cf. Chambers, 410 U.S. at 302; Chia, 360
F.3d at 1006-07 (applying Chambers).3
[3] As is usually the case with pieces of evidence, each
item of information Kristi sought to introduce gave meaning
and coherence to Garza’s admission, put it in context, and
explained it. The state court of appeal, however, addressed
each item independently without connecting it to the chain of
circumstances, thereby missing the probative force of the
whole chain. By deeming Garza’s statement to Keim inadmis-
sible hearsay, the state court of appeal dismissed the remain-
ing pieces of evidence as providing only motive and
opportunity to commit the crime, because there was no direct
or circumstantial evidence that a third party had done so. Had
Garza’s statement been admitted, however, this missing ele-
ment would have been supplied, and the remaining pieces of
the puzzle would have become more relevant.
[4] The denial of Kristi’s right to present a defense was
compounded and magnified by factual mistakes made by the
2
This confidential informant came forward within three days of the mur-
der. However, the detective or prosecutor lost all notes regarding the iden-
tity of this informant and Kristi was thus unable to place his testimony
before the jury. The trial court also denied her request to introduce the
informant’s statement or advise the jury that the prosecution had failed to
preserve identifying information of the informant.
3
These facts also distinguish this case from our recent decision in Chris-
tian v. Frank, 595 F.3d 1076, 1084 (9th Cir. 2010), where there was a
“dearth of other corroborating evidence linking [the third party] to the
crime.” Here, the murder evidence was completely consistent with Garza’s
out-of-court statement.
7442 LUNBERY v. HORNBEAK
court of appeal in the course of disposing of the evidence
offered. The testimony of John Voet that identified the car in
the cul-de-sac on the morning of the murder, April 17, was
misstated by the court, putting the car there a day earlier on
April 16, erroneously leading the court to conclude this evi-
dence was not even probative.4
[5] The rulings of the state courts were prejudicial to Kris-
ti’s defense. Exclusion of the evidence of Garza’s admission
and Delgado’s drug-dealing stripped her of evidence that
someone other than she had probably committed the murder
of her husband. Nor, as the state argues, was this evidence
merely cumulative of other evidence in the trial. That Kristi’s
first statement to the police mentioned the drug-dealing at Fir
Street was no substitute for Oney Rhoades’ statement that he
saw Garza and Delgado with a large amount of drugs at Fir
Street, nor was it a substitute for Garza’s admission that his
partners committed the murder. Statements made by Kristi,
the defendant, could not have been given near the level of
weight as this independent evidence.
[6] Because Kristi was prevented from presenting this evi-
dence, she was prevented from offering any alternate theory
as to who might have committed the crime. The jury would
not have been confused by such evidence. It would probably
have been led to a state of reasonable doubt. The murder cal-
led out for a murderer. The trial as conducted by the superior
court and as approved by the court of appeal left only Char-
lie’s wife in view as the murderer.
[7] An accused does not have an “unfettered right” to pres-
ent any evidence he or she wishes. Taylor v. Illinois, 484 U.S.
400, 410 (1988). However, as Chambers teaches, depending
on the facts and circumstances of the case, at times a state’s
rules of evidence cannot be mechanistically applied and must
4
Moreover, the identification of the car as being associated with Garza
was not mentioned by the court.
LUNBERY v. HORNBEAK 7443
yield in favor of due process and the right to a fair trial. 410
U.S. at 302. As in Chambers, the excluded testimony here
“bore persuasive assurances of trustworthiness” and “was crit-
ical to [Kristi’s] defense.” Id. California’s application of its
evidentiary rules denied Kristi her constitutional right to pre-
sent a defense.
[8] That Kristi confessed to the crime does not detract
from the prejudice flowing from her inability to present the
defense of third party culpability, especially since she vigor-
ously contested the truthfulness of that confession. The
Supreme Court recently reaffirmed the rule of Chambers and
other cases involving improper denials of the right to present
a defense, when it overturned a South Carolina conviction in
which a defendant was denied the opportunity to present evi-
dence of third party culpability because of the strength of
forensic evidence in that case. See Holmes v. South Carolina,
547 U.S. 319, 326-31 (2006). The error in this case had a
“substantial and injurious effect” on the verdict, and therefore
is not harmless. See Brecht v. Abrahamson, 507 U.S. 619,
637-38 (1993). The California court of appeal’s conclusion to
the contrary constitutes an objectively unreasonable applica-
tion of Chambers. See Chia, 360 F.3d at 1006-07.
[9] For the reasons stated, the judgment of the district court
is REVERSED and the case is REMANDED to it with direc-
tion to issue the writ.
HAWKINS, Circuit Judge, concurring:
I concur in the majority Opinion and write separately only
because I believe Kristi Lunbery presented sufficient evidence
that her trial defense counsel’s decision not to further investi-
gate or present expert testimony regarding false confessions
fell below an objective standard of reasonableness.
7444 LUNBERY v. HORNBEAK
The only evidence linking Kristi to the murder was her own
statement, which she claimed was false. There was no foren-
sic evidence connecting her to the crime, the murder weapon
was never found and, even in her confession, Kristi displayed
no knowledge of crime details not publicly known (such as
the location of the murder weapon or how she managed to
shoot her husband in a small, one bedroom house with two
small children present). But she had confessed and it is hard
to imagine anything more difficult to explain to a lay jury.
After all, people do not just confess to crimes they did not
commit, do they? Well, it turns out they sometimes do.
Among the hundreds of persons exonerated of serious crimes
through DNA testing are numerous individuals who earlier con-
fessed.1
Kristi’s defense lawyers recognized this problem and
reached out to an expert in the field of false confessions, Dr.
Richard Ofshe. Dr. Ofshe reviewed various materials relating
to the murder and a videotape of Kristi’s confession, and con-
cluded it was likely a “stress compliant false confession.” For
Dr. Ofshe, the failure of a confession to fit the facts of a crime
and the inability of a confessor to supply information that
should be known to the perpetrator were “hallmarks of a false
confession.”
Dr. Ofshe recommended that Kristi be evaluated by a com-
petent clinical psychologist who was familiar with the phe-
nomenon of stress compliant confessions, and, in particular,
1
Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L.
Rev. 1051 (April 2010) (examining forty false confessions to rapes and
murders later exonerated by DNA evidence); see also Mark A. Godsey,
Shining the Bright Light on Police Interrogation in America, 6 Ohio St.
J. Crim. L. 711, 724 (Spring 2009) (noting that in addition to DNA exon-
eration, confessions have also been proven false when the identity of the
true perpetrator is later discovered, or when it is later demonstrated it
would have been physically impossible for the defendant to have commit-
ted the crime, such as when it is proven the defendant was in jail for
another crime on the date the new crime occurred).
LUNBERY v. HORNBEAK 7445
that Kristi take the “Gudjonsson test” for interrogative sug-
gestibility. Kristi’s attorney then contacted two local Redding
psychologists; one had not heard of the test but agreed to
“look into the situation”; the other had heard of it but had
never administered it, and also suggested that he would need
additional corroboration not mentioned by Dr. Ofshe to “sup-
port any conclusion that Kristi was vulnerable to manipulation
techniques” (apparently not understanding he was only being
asked to administer the test).
Kristi never took the Gudjonsson test prior to trial. In a
somewhat confusing memo to the file, her attorney notes in
one paragraph that he has made arrangements for Dr. Ofshe
to testify on November 5th, then in the following paragraph
concludes that the testimony would likely be inadmissible,
and finally that it would be best simply to have Kristi testify
because the jury ultimately needed to believe her. After Kristi
was convicted, Dr. Ofshe wrote to her to express his sadness
and related that he had anticipated he would be testifying at
her trial, noting that he did not discover he was not going to
be called until he contacted the attorney’s office himself and
discovered the trial was already underway. When Kristi’s
habeas counsel contacted Kristi’s trial attorneys about the
decision not to call Dr. Ofshe, they engaged in finger point-
ing, each claiming the decision was made by the other.
Because the California Supreme Court summarily denied
this claim without a reasoned opinion, we must conduct a de
novo review of the record to determine whether the denial
was contrary to or an unreasonable application of federal law.
Greene v. Lambert, 288 F.3d 1081, 1088-89 (9th Cir. 2002).
The district court concluded that Kristi failed to establish that
her counsel’s representation fell below an objective standard
of reasonableness, see Strickland, 466 U.S. at 688, and con-
cluded instead that counsel made a reasonable, tactical deci-
sion not to call Dr. Ofshe. But a tactical decision infers a
calculated reason to do or not do something. Here there was
no reason not to call Dr. Ofshe and every reason to do so. The
7446 LUNBERY v. HORNBEAK
record fairly smacks of incompetence, from the conflicting
note to file, to the attorneys pointing fingers at one another,
to the failure to even communicate the decision to the expert.
It is also far from clear whether any decision, reasoned or not,
was ever made here or by whom. Even though “strategic
choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable,”
the decision to prematurely limit an investigation may be, in
and of itself, unreasonable. Id. at 690-91 (“[C]ounsel has a
duty to make reasonable investigations.”).
As the Supreme Court explained in Wiggins v. Smith, a pre-
mature choice to abandon a potentially fruitful avenue can
make “a fully informed decision with respect to [ ] strategy
impossible” and render counsel’s performance deficient. 539
U.S. 510, 527-28 (2003). Here, counsel gave up after contact-
ing two local psychologists by phone, and never tested Kristi
to determine whether Dr. Ofshe’s preliminary opinion could
be bolstered or corroborated.
Counsel’s proffered reasons for failing to offer Dr. Ofshe’s
testimony are also problematic. Counsel opined that Dr.
Ofshe’s testimony would likely be inadmissible if the govern-
ment lodged a Kelly-Frye objection because the Gudjonsson
test was not widely accepted.2 Leaving aside that counsel
failed to even attempt its admission, at the time of Kristi’s
trial, expert testimony based in part on the Gudjonsson test
had been admitted in several other cases. See Canady v. State,
100 S.W. 3d 28, 31 (Tex. Ct. App. 2002); United States v.
Doe, 74 F. Supp. 2d 310, 318 (S.D.N.Y. 1999); United States
v. Raposo, 1998 WL 879723, *3, 5-6 (S.D.N.Y. Dec. 16,
1998); see also Vent v. State, 67 P.3d 661, 670 (Alaska App.
2
The trial memo does not elaborate on whether this conclusion is based
on further research, or if it is based only on unfamiliarity of two local psy-
chologists with the test.
LUNBERY v. HORNBEAK 7447
2003) (noting “case law and law review commentary is split
over whether to admit false confession expert testimony”).3
Second, counsel opined that Ofshe’s testimony could have
a “negative impact” because it was “so lacking in substance.”
This is not an excuse but a self-fulfilling prophesy: if Dr.
Ofshe’s testimony lacked “substance” or corroboration, it was
due to counsel’s failure to obtain testing that would have pro-
vided it, despite being advised to do so. Surely that should be
enough, but counsel also appears to have discounted Dr.
Ofshe’s specialized expertise in the area of false confessions
in favor of the preliminary views of a local psychologist, Dr.
Caruso. Summing up the decision not to even attempt to offer
Dr. Ofshe as a witness, counsel wrote: “As Dr. Caruso put it:
‘Kristi’s best defense would be her explanation, the jury needs
to believe Kristi.’ ”
This rather naively assumes that a jury would be easily
persuaded—that an innocent person would confess to a crime
they did not commit—by the confessor’s testimony alone. Of
course the jury had to believe Kristi, but the jurors would
have been better equipped to evaluate her credibility and the
confession itself had they known of the identified traits of
stress-compliant confessions and been able to compare them
to her testimony. Reversing a conviction where the trial court
excluded the testimony of the very expert involved here, the
Seventh Circuit noted that Dr. Ofshe’s testimony went to the
heart of the defense, and had it been admitted, it “would have
let the jury know that a phenomenon known as false confes-
sions exists, how to recognize it, and how to decide whether
it fit the facts of the case being tried.” United States v. Hall,
93 F.3d 1337, 1345 (7th Cir. 1996); see also Boyer v. State,
825 So.2d 418, 420 (Fla. Ct. App. 2002) (“It is for the jury
3
Indeed, after Kristi’s trial, Dr. Ofshe’s testimony was admitted in two
other California cases, People v. Gulley, 2008 WL 4152951, *8 (Cal. Ct.
App. 2008), and People v. Cota, 2007 WL 3360054, *12 (Cal. Ct. App.
2007).
7448 LUNBERY v. HORNBEAK
to determine the weight to give to Dr. Ofshe’s testimony, and
to decide whether they believed his theory or ‘the more com-
monplace explanation that the confession was true.’ ”) (quot-
ing Hall, 93 F.3d at 1345).
For these reasons, in addition to the persuasive case for
granting the writ made by Judge Noonan in the majority
Opinion, I would also reverse the district court’s decision that
counsel’s choice—not to further investigate or offer Dr. Ofshe
as an expert witness— was a reasonable tactical decision and
that the California court was not objectively unreasonable in
denying the claim. Having said that, I agree that it is not pres-
ently necessary to delay the grant of the writ by remanding for
an evidentiary hearing to determine Strickland prejudice.4
4
Obviously, if this were the only issue before us, I would favor remand
for such purposes.