¶1concurring.
¶2¶36 I concur with the Court on the resolution of all issues.
¶3¶37 Under Issue 1, however, I am not persuaded by the Court’s conclusion that defense counsel’s failure to interview any of the potential witnesses did not fall below an objective standard of reasonableness. The State brought a homicide charge against Weaver premised upon his alleged confession and circumstantial evidence. There was no direct evidence against Weaver. There were, however, many witnesses who had made various statements about others who may have been involved with the crime. In the absence of direct proof of the crime, these statements had a heightened significance: they could potentially identify a different perpetrator.
¶4¶38 Defense counsel respected Officer Crego and believed that ‘Crego had followed all those leads.”However, under the circumstances of this case, I believe it was defense counsel’s minimum obligation to independently investigate the witnesses to the extent necessary to verify Officer Crego’s conclusions. It is certainly not beyond the realm of possibility that another interview, conducted by the defense instead of the State, could have elicited different answers from the witnesses-particularly if the witnesses were “squirrelly” in nature, as defense counsel believed. Defense counsel apparently did not consider that the “squirrelly” nature of the witnesses may have enhanced the possibility that the statements they originally gave to law enforcement were less than accurate or subject to change.
¶5*452¶39 I would conclude, therefore, that defense counsel’s actions fell below an objective standard of reasonableness ‘in light of all of the circumstances of the case.” State v. Thomas (1997), 285 Mont. 112, 119, 946 P.2d 140, 144. Nonetheless, I concur with the Court’s determination that Weaver has not demonstrated a reasonable probability that the trial result would have been different had counsel not failed in this regard. Weaver has not demonstrated that anything which defense counsel would have learned by an appropriate investigation rose to the level of significance necessary to affect the outcome.
¶6dissents.
¶7¶40 I dissent. I would conclude that the failure of counsel for Weaver to introduce the Catts’ entomological report constituted ineffective assistance of counsel. I would therefore reverse Weaver’s conviction and remand for a new trial.
¶8¶41 As the Court notes at ¶ 33, the primary defense theory was that the State was wrong about the date of Fremou’s death. In support of this theory, Borg apparently elicited testimony from Crego that McKean’s weapon-which the State alleged was used by Weaver to kill Fremou-was pawned on October 11,2003. This was two days after the date the State claimed Weaver killed Fremou, but three days before the earliest date of death fixed by Catts. Thus, evidence of Catts’ conclusions would have radically undermined the State’s case.
¶9¶42 Borg’s contention that, because Haskell might have been able to contradict the Catts’ report, the price of admission of the Catts’ report was too high, is unreasonable. With Catts’ report, the jury would have before it evidence from an expert renowned in his field that cast direct, objective, and scientific doubt on the date of death. Without it, the jury had only surmise. While the court may well have allowed Haskell to present his countervailing theory had the Catts’ report been introduced, so what? The jury would then be faced with reports from two respected experts which reached different conclusions about the date of Fremou’s death, one inculpatory of Weaver’s guilt and one exculpatory-in other words, reasonable doubt. Moreover, given that Dr. Catts was Dr. Haskell’s mentor, a fact known to Borg, it is highly likely that, while Haskell might have disagreed with Catts’ conclusions, he would have readily conceded Catts’ expertise and qualifications.
¶10¶43 As we stated in Crawford v. State, 2003 MT 118, ¶ 18, 315 Mont. *453480, ¶ 18, 68 P.3d 848, ¶ 18, jurors are naturally inclined to accord greater weight to objective scientific evidence than to the subjective observations of the non-scientist. The State’s case against Weaver was built upon circumstantial evidence and the testimony of a jailhouse snitch whose credibility was called into question through the testimony of witnesses. Moreover, as the Court concedes at ¶ 26, Crego made a number of concessions during cross-examination that supported the defense theory of reasonable doubt. The scientific evidence that Borg had at her fingertips would have substantially elevated the plausibility of her reasonable doubt argument. Borg had everything to gain and virtually nothing to lose by introducing the Catts’ report. Therefore, in my view, Borg’s decision not to introduce this evidence fell below the objective standard of reasonableness, and a reasonable probability does exist that, had she offered the Catts’ evidence, the result of the proceeding might well have been different. Clause.il, ¶ 19.
¶11¶44 I would therefore conclude that Borg rendered ineffective assistance of counsel to Weaver, and I would reverse and remand for a new trial. I dissent from our refusal to do.
¶12dissents.
¶13¶45 I cannot join the Court’s Opinion in this case as to either Issues One, Two or Three.
¶14¶46 As to Issues One and Two, we conclude that trial counsel’s decision not to interview Weaver’s witnesses was a tactical decision based on her conclusion that the witnesses were “squirrelly” and, therefore, not likely to give as credible testimony as the State’s lead investigator.
¶15¶47 In State v. Denny (1993), 262 Mont. 248, 865 P.2d 226, we addressed a similar situation. Denny defended charges of conspiracy to sell dangerous drugs on the basis of her innocence. Denny, 262 Mont. at 250, 252, 865 P.2d at 227-28. Trial counsel, knowing that Denny would need help at trial, failed to interview possible witnesses who could have supported her testimony. Denny, 262 Mont. at 252, 865 P.2d at 228. As here, defense counsel made a tactical decision not to interview or call the witnesses based on counsel’s suppositions and characterizations about the testimony that the witnesses would likely provide. Denny, 262 Mont. at 252, 865 P.2d at 228.
¶16¶48 Concluding that defense counsel should have at least interviewed the witnesses before rejecting the possibility of using their testimony at trial, we adopted the following reasoning of the Fifth and D.C. Circuit Courts of Appeal:
*454‘\A\t a minimum, counsel has the duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case.” [Citing the American Bar Association Standards for Criminal Justice.]
“The complete failure to investigate potentially corroborating witnesses, however, can hardly be considered a tactical decision.”
¶17Denny, 262 Mont. at 253, 865 P.2d at 228-29 (citations omitted) (emphasis in original).
¶18¶49 We next proceeded to adopt a test from the Seventh Circuit. We observed, as is implicit in the Court’s Opinion here, that
“if the potential witnesses are not called, it is incumbent on the petitioner to explain their absence and to demonstrate, with some precision, the content of the testimony they would have given at trial. The district court simply cannot fulfill its obligation under Strickland to assess prejudice until the petitioner has met his burden of supplying sufficiently precise information.”
¶19Denny, 262 Mont. at 254, 865 P.2d at 229-30 (citation omitted) (emphasis in original).
¶20¶50 Unlike this Court in the case subjudice, however, we then went the next logical step. We concluded that Denny’s counsel at the hearing on her motion for new trial-here, the attorney-equivalent to Weaver’s postconviction counsel (who is the same person as his counsel in this appeal)--was ineffective in failing to present at Denny’s motion hearing-the equivalent of Weaver’s postconviction hearing-sufficient precise information about the prospective testimony of the witnesses who were never interviewed by trial counsel, so as to allow the district court to assess prejudice. Denny, 262 Mont. at 255, 865 P.2d at 230.
¶21¶51 The Court’s Opinion to the contrary, it was postconviction counsel’s duty under Denny to interview the witnesses not interviewed by trial counsel and, if favorable, to bring the information before the postconviction court. In Denny, we adopted the following statement of the law from the Eighth Circuit’s decision in Lawrence v. Armontrout (8th Cir. 1990), 900 F.2d 127, 130:
“A petitioner seeking relief based on ineffective assistance of counsel must ‘affirmatively prove prejudice.’ To affirmatively prove prejudice, a petitioner ordinarily must show not only that the testimony of uncalled witnesses would have been favorable, but also that those witnesses would have testified at trial. Moreover, if potential trial witnesses are not called to testify at a post-conviction review hearing, the petitioner ordinarily should *455explain their absence and ‘demonstrate, with some precision, the content of the testimony they would have given at trial.’ In view of these requirements, we believe that [petitioner’s] postconviction counsel also failed to exercise the skill and diligence expected of a reasonably competent attorney under similar circumstances. ”
¶22Denny, 262 Mont. at 255, 865 P.2d at 230 (emphasis added). Here, postconviction counsel unarguably failed in this obligation; he did not interview the witnesses either. That is evident from the record. Apparently, under the Court’s view, Weaver will now be entitled to a second postconviction hearing with new counsel to demonstrate that his first postconviction counsel was ineffective.
¶23¶52 So there, in a nutshell, is Weaver’s conundrum. Defense counsel, without interviews, concluded that the potential witnesses’ testimony would not be helpful at trial because the witnesses were “squirrelly.” And, to add insult to injury, we conclude that trial counsel’s decision was a correct tactical decision because Weaver-translated, postconviction counsel-failed to present the District Court with any information to the contrary about the prospective testimony.
¶24¶53 The Court ignores Dennyand our analysis founders. Weaver can’t win for losing. Both counsel failed to render effective assistance. And we agree that was appropriate.
¶25¶54 As to Issue Three, I do not necessarily disagree that trial counsel made the right decision in not offering the Catts entomological report. There were not many alternatives left given that on the day before trial counsel learned that Catts had died eight months earlier.
¶26¶55 It is undisputed that the Catts report was damning. Apparently even the prosecution acknowledged that the report might well torpedo the State’s case because the report would contradict the State’s theory about the time of Fremou’s death and the weapon used. In that light, one might reasonably expect that the Defense would call Catts as its witness and that the State might not want to call Catts at all. If that premise is reasonable, it begs the question of why trial counsel did not, early on, interview and subpoena Catts in sufficient time before trial to: (1) assure his presence and testimony; or (2), as it would have turned out, discover that he was dead. Had counsel learned of Catts’ death at some time other than the day before the trial, she well might have been able to obtain a new expert. I conclude that, under these facts, trial counsel did not render effective assistance.
¶27¶56 I would reverse and order a new trial. I dissent.