Defendant Claims Ineffective Counsel for Failing to Call OB/GYN Expert in Sexual Battery Case

    Court: United States District Court for the Middle District of Florida, Jacksonville Division
    Jurisdiction: Federal
    Case Name: Hester v. Sec’y, Fla. Dep’t of Corr.
    Citation: 2019 U.S. Dist. LEXIS 210539


    The petitioner sought a writ of habeas corpus challenging his state court conviction for one count of sexual battery, two counts of child abuse, and one count of lewd or lascivious molestation. Among his grounds for the petition was one claim that his defense counsel provided him ineffective assistance because she failed to obtain an obstetrician/gynecologist expert witness to challenge the state witness’s testimony claiming blunt force trauma had caused a tear in the victim’s hymen.

    The OB/GYN Expert Witness

    In his plea for habeas relief, the petitioner claimed ineffective assistance from his counsel for her failure to investigate, consult, and obtain an OB/GYN expert witness to refute the testimony of the government’s OB/GYN witness. The petitioner argued that this form of evidence was necessary to counter the opposing witness’s testimony that the victim’s healing partial transactional hymenal tear (a laceration or tear through a portion of the hymenal membrane) was caused by blunt force trauma.

    The petitioner also claimed his counsel should have consulted another OB/GYN expert pretrial to obtain a photo of the healing tear. The petitioner conjectured that an OB/GYN expert would have been able to evaluate the photograph of the injury to determine whether the hymen had been torn long ago and possibly caused by vigorous activity, not blunt force trauma.

    During the initial trial, the court found the defense counsel had not performed deficiently by failing to call an OB/GYN expert to testify. The trial court depended on the testimony of the petitioner’s lawyer that she had reviewed the victim’s injuries and did not believe that an OB/GYN expert could refute the state witness’s testimony. For this reason, the defense counsel concluded there was no basis for an expert to attempt to challenge that testimony. More importantly, she believed that obtaining an OB/GYN expert would harm the petitioner’s case. Ultimately, the trial court decided, on the strength of the testimony of the defense counsel, that the defendant knew that there would be no OB/GYN expert witness for the defense and agreed with the trial strategy. The trial court considered this strategy to be well-reasoned and the defense counsel’s performance to be well within the limits of the standard of reasonableness.


    The court’s review of the evidentiary hearing showed that the defense counsel decided to instead retain a very experienced sexual battery attorney to cross-examine the state’s witness. In doing so, the defense counsel conducted research and obtained a copy of the photos taken of the victim to validate the witness testimony. The defense counsel explained she did not use the photos because they were not in the defendant’s favor. She said that if the defense had retained an OB/GYN expert to consult on the photos, the expert would have confirmed that blunt force trauma caused the victim’s tear.

    The court noted that in order to demonstrate ineffectiveness, the decision must be so patently unethical that no qualified counsel would have taken that direction. Here, the defense counsel assessed the situation, considered the evidence of the state, sought the opinion of a doctor, and then reasonably decided on a trial strategy. In her closing argument, the defense counsel argued that the injury to the hymen could have been caused under any circumstances, including horse riding, falling, and sports.


    The court found the defense counsel’s performance to be qualified as counsel guaranteed by the Sixth Amendment. Therefore, the petitioner was denied habeas relief on this ground.