Bozelko v. Warden
Evidence that other calls were made from the petitioner's residence on the relevant date may be insufficient to establish who made the other calls and that the petitioner's attorney should have discovered the other calls, as part of his pre-trial investigation. Jurors allegedly received calls from a business establishment, in which a male caller asked them about their status as jurors and instructed them to find the petitioner "not guilty." Police found that a computer in the petitioner's residence and a credit card that belonged to a relative allegedly were used to purchase "spoof cards," which enabled a caller to attach false contact information. The "spoof cards" also enabled the caller to change the voice to male or female. Police charged the petitioner with attempting to tamper with jurors. The petitioner pled guilty and filed a petition for a writ of habeas corpus, alleging that Attorney Dean Popkin provided ineffective assistance of counsel. The petitioner possessed the burden to prove the benefit that additional investigation allegedly would have furnished. Attorney Popkin hired an investigator who hired a forensic examiner. Allegedly, the forensic examiner found evidence more detrimental to the petitioner than the evidence the police discovered. Popkin requested phone records and concluded that they did not prove the petitioner's innocence. Allegedly, a male voice was not always used in the calls that were recorded on the "spoof" card, and sometimes the voice sounded like the plaintiff's. Popkin was convinced that a jury that heard the tapes would find the petitioner made some of the calls. The petitioner pled guilty after she listened to the tapes. At the habeas trial, the petitioner produced evidence that she allegedly called relatives and business associates on the date that jurors were called. Records of these calls were insufficient to prove that the petitioner made them and that the petitioner did not call the jurors. Attorney Popkin's investigation was "objectively reasonable," and the habeas court found that the petitioner failed to prove that trial counsel provided ineffective assistance and should have discovered exculpatory information. The court denied the petition for a writ of habeas corpus.