reasonable doubt standard made in closing; and (4) hearsay testimony by Fletcher describing Tamika's reports of abuse to her should not have been admitted. After reviewing the record carefully, this Court finds that, while the failure to raise these issues arguably demonstrates a deficient performance by Howard's appellate counsel, Howard cannot show any prejudice from the failure to raise these issues.
The Court is well aware of the "strong presumption" that an attorney's assistance was effective within the meaning of the constitution. See Mason, 97 F.3d at 892 (citing Strickland, 466 U.S. at 688). And, as noted below, there are several problems with the arguments that Howard asked his appellate counsel to make. Nevertheless, we believe that the better practice for appellate counsel is to raise all issues that their clients want raised, so long as those arguments are consistent with Federal Rule of Civil Procedure 11 and he dictates of legal strategy. Moreover, when we compare the issues that Howard wanted raised with the single issue that his appellate counsel did present, we conclude that at least some of Howard's issues had a better factual and legal basis than the issue that his counsel presented. We can discern no reason why Howard's attorney could not simply have added the issues Howard wanted raised to the single issue she already planned to present; if more time were needed, a motion for extension of time could easily have been made. Under the test of Gray v. Greer, then, the Court finds that the presumption of effective assistance of counsel has been overcome.
To be successful in his petition for habeas corpus, however, Howard still must demonstrate that his appellate counsel's deficiencies caused him real prejudice, in that without those deficiencies he would be entitled to the reversal of his conviction or a new trial. For the reasons discussed below, Howard cannot meet this second prong of the Strickland test.
The first issue Howard contends his appellate attorney should have raised is the scientific validity of Dr. Blade-Schlessinger's testimony that a hymen can regenerate.
Unfortunately, Howard has not presented by evidence to support his argument that this testimony was improperly admitted.
Moreover, this issue was not preserved for appellate review, because Howard's trial counsel did not object to the admission of this expert opinion. If the trial counsel does not object, the issue is waived on appeal. See People v. Mahaffey, 166 Ill. 2d 1, 27, 651 N.E.2d 1055, 1067, 209 Ill. Dec. 607 (failure to object contemporaneously to an expert's testimony waives the issue on appeal unless it rises to the level of plain error, cert. denied, 116 S. Ct. 547 (1995); In re Marriage of Blinderman, 283 Ill. App. 3d 26, 31, 669 N.E.2d 687, 691, 218 Ill. Dec. 544 (1st Dist. 1996) ("Failure to object to an expert's qualifications results in a waiver on appeal.").
The record makes clear that, at least during Dr. Blade-Schlessinger's testimony at trial, the defense counsel did not object to the substance of her opinions. Instead, the record indicates that the defense cross-examined the doctor on those opinions. No less an authority than our Supreme Court has noted that the "traditional and appropriate" cure for expert testimony of dubious scientific validity is vigorous cross-examination. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). For all of these reasons, Howard has failed to make a case that his appellate counsel prejudiced him by not attacking the scientific basis for Dr. Blade-Schlessinger's opinions.
Improper prosecutorial Remarks
The second issue that Howard wished his appellate counsel to raise is the cumulative effect of several instances of claimed prosecutorial misconduct. Many of these instances involved suggestions by the prosecution that Howard was charged with a crime in 1983 related to his alleged abuse of Tamika, and that, as a result of a DCFS investigation that same year, Howard was denied visitation with Tamika.
The comments at issue began during the State's re-direct examination of Linda Fletcher. After eliciting testimony that Fletcher had taken Tamika to Dr. Rosen in 1983 to be examined for signs of abuse, the following exchange took place:
Q: And after that there was a DCFS investigation, is that correct?
A: Yes, there was.