August 6, 2008 By Wallin & Klarich

For the second time last month, the Ninth Circuit Court of Appeals overturned a death sentence, citing inadequate assistance of counsel. 2008 DJDAR 9426.

In March of 1986, appellant Henry Earl Duncan was convicted of robbery and first-degree murder. After finding the special circumstance allegation of his case to be true, Duncan was sentenced to death for murder by the jury. Id.

The victim in the case, Josephine Eileen DeBaun, was Duncan’s supervisor at the International Host Restaurant in the Los Angeles International Airport. DeBaun’s body was found on the morning of November 14, 1984 in a small caged area in the back of the restaurant where money was deposited at the end of the day. DeBaun was last seen alive around 11:50 pm. Duncan was seen not far from the restaurant around 11:30 pm. DeBaun was stabbed multiple times and over $2100 was found missing from the “money room.” Duncan’s as well as fifteen other individuals’ fingerprints were taken. Duncan’s fingerprints were not found to match the prints at the crime scene. Id. at 9427.

A second robbery occurred at the restaurant three months later, for which Duncan was arrested. His prints were taken again and the additional evidence led police to determine that the bloody prints at the murder scene were Duncan’s. Duncan pled guilty to California grand theft charges related to the second robbery and was tried on robbery and murder counts in relation to the first incident. Id.

The court believed that Duncan’s palm prints, fingerprint, and shoe print were compelling enough evidence to indicate Duncan’s presence and participation in the first robbery. Since this robbery was related to the murder, the court rejected Duncan’s request that his conviction be reversed. The court believed that Duncan’s claims of inadequate assistance of counsel were pertinent to the jury’s special circumstance allegation. Id. at 9430.

The Ninth Circuit concluded that Duncan’s California criminal defense lawyer deficiently performed during the guilt phase of trail because he did not investigate and present evidence of blood samples from the crime scene that did not belong to the victim or Duncan. The court believed this evidence could have allowed for the inference that an accomplice killed the victim, rather than Duncan. Duncan’s lawyer’s deficiency did not prejudice his client in terms of his conviction, but in respect to the jury’s special circumstance finding.

This finding required proof beyond a reasonable doubt, under California law at that time, that Duncan intentionally killed the victim, or intended that she be killed. Presenting exculpatory serological evidence could have brought uncertainty upon whether Duncan was the killer. Furthermore, since there was no evidence beyond a reasonable doubt that Duncan intended that the victim be killed, the court vacated the sentence due to this violation of the Sixth Amendment and the defendant’s “right to the effective assistance of counsel.” Id. at 9431.

You and your loved ones have the right to competent counsel. If you feel you were insufficiently represented, contact Wallin and Klarich 24 hours a day, 7 days a week at 888-749-0034 and visit us at Our experienced California appeals lawyers can review the transcripts from your proceedings and advise you accordingly. With almost 30 years experience in criminal appeals, Wallin and Klarich can maximize your chances of success.

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