Petition — Lischko v. Galli

MICHAEL RODAK, JR. CLERK

In the Supreme Court

OF THE

United Staten

OctToRER TERM, 1976

No 76-49

JOSEPH LISCHKO,

Petitioner,

|

|

vs.

Rosert J. Gaui, Sheriff of Washoe County,

State of Nevada,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Varaas, Bartierr & Drxon,

JOHN C, BARTLETT,

201 West Liberty Street, Suite 300,

Reno, Nevade 89504,

Telephone: (702) 786-5000,

Attorneys for Petitioner.

PERNAU - WALSH PRINTING CO... 562 MISSION STREET - SAN FRANCISCO. CA 94105

as

Table of Contents

Page

Summary of official and unofficial reports ................ 1

Statement of grounds invoking jurisdiction of this court ... 3

Questions presented for review .............ccceceeceeees 4

Constitutional provisions involved ............-...eeceeees 4

Statement of facts material to questions presented ........ 5

BE 6046006044040 chnkankdscedecdadhaatenedusantves 12

REL 4 6¢-d0neuedessNedendibsneeeneenmornaeceecune 15

Table of Authorities Cited

Cases Pages

Beasley v. U.S., 491 F.2d 687 (5th Cir. 1974) ........... 12

Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1963) ....... 12

Crow v. South Dakota, 484 F.2d 1359 (8th Cir. 1973) .... 13

McQueen v. Swenson, 498 F.2d 207, 214 (1974) ...... 12, 13, 14

Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974) ...... 2

Constitutions

United States Constitution:

eh IR nc Ec sccubdweids souks 2, 4, 5, 12, 13, 14, 15

I Co 60 din dens boncscqcicstevstians 2,15

DUNN BORE, TE ccc cccsccccccoccesscccccs 5

Statutes

28 U.S.C.A.:

DE écudecevendss shdadeseteds eieesueeeenaaees 5

DEE ‘sivcdenetdduncdédeneetuduedadwensceebebens 3

Iu the Supreme Court

OF THE

Rnited States

OctoseR TERM, 1976

No.

JOSEPH LiscHKO,

Petitioner,

vs.

Rosert J. Gaui, Sheriff of Washoe County,

State of Nevada,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

SUMMARY OF OFFICIAL AND UNOFFICIAL REPORTS

Joseph Lischko, defendant in Action No. 75-2525,

was convicted on the 4th day of February, 1970, in

the Second Judicial District Court of the State of

Nevada, in and for the County of Washoe, and there-

after on March 12, 1970, was sentenced by the above

entitled Court to serve a term of twenty years in the

Nevada State Prison. Lischko had retained counsel

for the trial of his case. Thereafter, through ap-

2

pointed counsel, Lischko appealed his conviction to

the Supreme Court of the State of Nevada and his

conviction was upheld before that Court. 87 Nev. 493,

489 P.2d 80 (1971). (Appendix A to this petition)

On July 20, 1972, through John C. Bartlett, newly

retained counsel, Lischko filed a petition for post-

conviction relief, claiming that his constitutional

rights of due process and his 6th Amendment right

to have assistance of counsel for his defense were

violated. A hearing was had upon this petition and

on October 3, 1972, the Honorable Emile J. Gezelin,

Judge of the District Court, entered his Decision,

Findings of Fact, and Conclusions of Law and or-

dered that defendant be granted a new trial on the

grounds that his counsel at the trial had failed to

inquire and investigate facts necessary and crucial

for the defense of the defendant, to-wit, that no kid-

napping ever existed but that the entire matter was

the result of a hoax. (Appendix B to this petition)

Thereafter, the State of Nevada took an appeal to

the Nevada Supreme Court, which on a four to one

decision reversed the trial judge in Warden v.

Lischko, 90 Nev. 221, 523 P2d 6 (1974), which opin-

ion was filed on June 10, 1974. (Appendix C to peti-

tion )

Defendant Lischko filed a Pet.*‘on for Rehearing

before the Nevada Supreme Co:.., which petition

was denied on the 6th day of August, 1974. Lischko

then elected to seek a Writ of Habeas Corpus from

the United States District Court for the District

of Nevada, being Action No. R-74-118-BRT in that

3

Court. On March 24, 1975, the Honorable Bruce R.

Thompson, United States District Judge, denied the

Writ for Habeas Corpus, (Appendix D to petition)

and thereafter Lischko took an appeal to the 9th

Cireuit Court of Appeals. On April 14, 19/6, that

Court entered its order affirming the Decision of

Judge Thompson, denying the Petition for a Writ

of Habeas Corpus, (Appendix E to petition) A Peti-

tion for Rehearing and Suggestion for Rehearing

En Bane was filed and the latter motion denied by

date of June 17, 1976. (Appendix F to petition)

Subsequently, and on June 25, 1976, an order stay-

ing issuance of mandate was issue’ by the above

entitled Court providing that the issuance of man-

date would be stayed provided appellant filed a peti-

tion for Writ of Ceritorari, to be filed on or before

July 19, 1976 before the above entitled Court.

STATEMENT OF GROUNDS INVOKING

JURISDICTION OF THIS COURT

The date of Judgment and Entry of the Judgment

sought to be reviewed is April 14, 1976. The date of

the Order denying the rehearing is June 17, 1976.

The date of the Order staying issuance of mandate

and setting July 19, 1976 for the time for petitioner

to file this Petition for Writ of Certiorari is June

25, 1976.

The statutory provision believed to confer juris-

diction in the above entitled Court to review this

Judgment is 28 U.S.C.A. 2254(1).

4

QUESTIONS PRESENTED FOR REVIEW

The basic question presented for review is whether

or not the defendant Lischko was denied his consti-

tutional right to the effective assistance of counsel at

his original trial before the state District Court in

and for the County of Washoe, State of Nevada.

To reach the basic question, the following issues

must also be resolved.

A. Is it constitutionally permissible for the Ne-

vada Supreme Court in reviewing a trial judge’s

decision that a defendant did not have constitutional

“assistance of counsel for his defense” to apply the

standard that effectiveness of counsel must reduce the

trial to “a sham, a farce or a pretense” before a de-

fendant can establish a violation of his 6th Amend-

ment rights?

B. In ruling upon the question of effectiveness of

counsel, is it constitutionally permissible for the Ne-

vada Supreme Court to apply a presumption that

counsel “fully diseharged his duties”, and require

further that this presumption can only be overcome

by “strong and convincing proof to the contrary”.

C. Did the Federal District Court for Nevada

err in not following the Findings of Fact made by

the trial judge in the State of Nevada as set forth

in Appendix B?

CONSTITUTIONAL PROVISIONS INVOLVED

“Amendment VI. Rights of Accused in Criminal

Prosecutions

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

5

an impartial jury of the State and district where-

in the crime shall have been committed, which

district shall have been prevously ascertained by

law, and to be informed of the nature and cause

of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defense.”

U.8.C.A. Const. Amend, 6, p. 4.

“Amendment XIV. Citizenship; Privileges and

Immunities; Due Process; Equal Protection; Ap-

portionment of Representation; Disqualification

of Officers; Public Debt; Enforcement

Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person

of life, liberty, or property without due process

of law; nor deny to any person within its juris-

diction the equal protection of the laws. U.S.C.A.

Const. Amend. XIV §1, p. 33.” (Only Section 1

is deemed pertinent to this issue)

STATEMENT OF THE CASE CONTAINING THE FACTS

MATERIAL TO QUESTIONS PRESENTED

The jurisdictioin of the Court of first instance was

based upon 28 U.S.C.A. §1331(a).

It is and always was defendant’s version to his

counsel that he picked up Dean Petersen pursuant

to the instructions of Faye Petersen Johnson given

6

to him in Las Vegas the night before the alleged kid-

napping. It is his contention that Faye Petersen

Johnson, driving a black Lincoln automobile, picked

him up in front of a service station in Las Vegas

the night before the alleged kidnapping and drove

with him in the ear while explaining to him where to

pick up Dean Petersen. Dean Petersen was, in fact,

at the place and time Faye Petersen Johnson advised

defendant that he would be. At that meeting, Faye

Petersen Johnson advised Lischko that she would

meet him in Reno at the airport the morning after

Lischko arrived in Reno with Dean Petersen. The

defendant claims he knew the Petersen family, in-

cluding the alleged victim, Dean Petersen, and Faye

Petersen Johnson for many years prior to this inci-

dent and knew as well many other members of the

Petersen family, uicluding one Sam Zona, step-father

to the Petersen children.

On the trip from Las Vegas to Reno, the defendant,

the victim, and a co-defendant named McCoole stopped

in Beatty, Nevada, where the alleged victim and the

co-defendant went to a grocery store to purchase food

and beverages. During this time, the defendant

showed a service station attendant through the Win-

nebago motor home. The identity of the attendant

was unknown.

Dean Petersen was picked up at the time and

place Faye Petersen Johnson advised the defendant

he would be; Faye Petersen Johnson arrived at the

Reno airport where she and the defendant met in

broad daylight with no subterfuge the morning of

7

the day that defendant arrived in Reno with Dean

Petersen. Faye Petersen Johnson advised defendant

at this meeting to “sit tight” and if anything went

wrong, her attorney, Louis Weiner, would look out

for defendant and that defendant need not worry

but should not get Faye Petersen Johnson involved

in any way in this hoax kidnapping. At the trial,

Faye Petersen Johnson testified that the defendant

told her when he met her at the airport, “You got

me into this mess, now get me out of it”. She was

not cross-examined on this matter by counsel for

Lisch ko.

Prior to the alleged kidnapping, the step-father,

mother, sister-in-law and a brother of Dean Petersen

and Faye Petersen Johnson sued Dean and Faye

Petersen in the District Court in and for the County

of Clark, State of Nevada, requesting an accounting

from Dean and Faye Petersen from several family

owned corporations that were managed by Dean and

Faye Petersen.

The defendant retained as counsel one Carl Martil-

laro the next day after his arrest, paid Martillaro

a substantial retainer and told him at that time that

the entire kidnapping was a hoax. According to Mar-

tillaro, the defendant never backed away from that

position.

Although the defendant told the entire story to

Martillaro when he first retained him, Martillaro did

not obtain an investigator in the Las Vegas area

until some three to four months thereafter and never

really made a good investigation of the defense of

8

hoax which was the only defense defendant had to this

charge of kidnapping.

The police report of the Las Vegas Police Depart-

ment indicated that Mary Petersen, wife of Dean

Petersen, reported the kidnapping on 10/10/69 at

12:30 A.M. At the trial of the case, the prosecution

witnesses testified that the alleged kidnappers called

Mary Petersen, who called Faye Petersen Johnson,

who called Louis Weiner, who called the police de-

partment to report the kidnapping. No mention was

made of the police report of the Las Vegas Police

Department at the trial of this case nor is there

any indication that attorney Martillaro discovered

the same prior to trial. A prompt investigation of

the circumstances of this case would have discovered

the following significant facts.

1. Whether Faye Petersen Johnson made reser-

vations on the airlines prior to many calls to Mary

Petersen regarding a kidnapping. If she did, this

would confirm the fact that she was involved in a

hoax. By the time attorney Martillaro engaged the

detective, the airline passenger lists and reservation

information had been destroyed, since more than 90

deys had passed.

2. The testimony of the witness, Brady, confirm-

ing the fact that the defendant was picked up in

front of a service station the night before the alleged

kidnapping by a lady driving a black Lincoln sedan.

3. The parents and a brother of Dean and Faye

Petersen Johnson could have been subpoenaed to

prove, despite Dean’s denial, that the defendant

9

Joseph Lischko knew Dean before the kidnapping and,

in fact, knew him well.

4. The identity of the service station attendant in

Beatty could have been ascertained. Subsequent in-

vestigation to learn the name and whereabouts of this

person have been frustrated because he was a tempo-

rary summer employee, paid in cash and not listed

by his employer as an employee because of the com-

plex bookkeeping problems involved. The chance of

finding such an employee now are very remote whereas

prompt investigation would certainly have revealed

who this was.

5. The defendant asked his counsel to permit him

to take a polygraph test and the trial judge took

judicial notice of the fact that this procedure was

used by the Washoe County District Attorney’s of-

fice in evaluating cases. His counsel advised him not

to have any such test and thereby deprived this de-

fendant of an opportunity to clear himself before

trial.

6. A note was written to defendant by his co-

defendant McCoole, when they both were in jail. Al-

though attorney Martillaro denied knowing of this

note, the original of this note was in the hands of

the Public Defender’s office who was defending the

co-defendant, McCoole. The note is set forth herein;

Fri Nov 21 10:20 P.M.

Joe—If things don’t take a turn for the better

damn soon regarding bail or attorneys or possible

negotiations on the outside, I suggest we speed

things up by making some sort of deal with the

10

D.A. by telling him what really happened—Peter-

sen & yourself had a financial agreement to set

up a phoney kidnapping where you two would

split—did not know how much money was in-

volved—& pay me $1,000.00 for being the driver

—This way Petersen would obtain some tax-free

$ from his company & you would be reimbursed

for your being close-mouth regarding the real-

estate deal or what-ever it was that he was in-

volved in 5 yrs. ago, the details of which I know

nothing about—There were no weapons involved

whatsoever, no assault & no so-called robbery—

However, it seems as if Petersen had this whole

thing planned from the beginning as a double-

cross in order to get you pul away to close your

mouth permanently regarding what you know

about his past financial involvements and I was

just caught in the middle—He drank our booze

and ate our food on the way up from LV ex-

pressing his desire for the companionship of the

pre-arranged females—He obviously had the

thing planned with his sister to notify the police

as soon as he (and/or you) called demanding the

ransom—Then he just waited until I left to

meet you & made his dramatic & phony escape,

taking along the cuffs we had in the camper to

make it look good & ealled the cops, knowing

all the time that you had been watched all day

& we both would be arrested—Then he told them

those lies about being assaulted and robbed—in

any event, I feel we should demand a change

of venue when trial comes up because of public

opinion up here—also if Petersen is as dis-liked

as you seem to think he is in L.V., we would be

better off being tried there, because they would

be more inclined to believe how he could have

11

set this whole thing up because of his past shady

$ deals—send me your answer on the back of

this so I can destroy it myself—I can’t see why

the judge & jury won’t believe this since it is

the truth—otherwise, why would you be expos-

ing yourself all day & why did I let him get to

know me well enough to identify me? If it had

been a real kidnapping we sure as hell would

have at least blind-folded him and anyone who

was going to make the money demand would have

been a lot more careful and discreet than you

were—make sure you reply on here so I can

destroy it!! I still haven’t been able to contact

Ross—what happened when you went out late

last night?

Certainly any investigation of counsel for the de-

fendant should have revealed this note and its usa-

bility is obvious particularly since attorney Martillaro

admitted his decision as to whether or not to put the

defendant on the stand would have been different

had he had the benefit of this note.

12

ARGUMENT

The law as to what tests should be used by the

Courts, both State and Federal, to decide whether a

defendant’s 6th Amendment rights have been violated

by ineffective assistance of counsel for his defense

has for several years been in conflict, both in the

State and Federal Courts. The Supreme Court has

not established any clear standards for courts to fol-

low in basing all claims of ineffective assistance of

counsel. See McQueen v. Swenson, 498 F.2d 207, 214

(1974). That such guidance is needed is demonstrated

clearly by the instant case. Here the Nevada Court

uses the phrase “sham, farce or pretense”. The Fed-

eral District Court in this case gave lip service to

the concept that the defendant had to show “that he

had counsel who was not reasonably likely to render

and did not render reasonably effective assistance”.

This rule finds support in Brubaker v. Dickson, 310

F.2d 30 (9th Cir. 1963) and Beasley v, U.S., 491

F.2d 687 (5th Cir. 1974) Many older Federal cases

use the words “farce and mockery of justice” which

would appear to be the thought contained in the test

used by the Supreme Court of the State of Nevada.

The importance of the United States Supreme

Court decision clarifying the test to be used becomes

even more essential when added to the test used by

the Nevada Supreme Court in this case, the presump-

tion that counsel fully discharged his duties. It is

true that a presumption of competency of counsel

has long been a part of the judicial system, both

Federal and State, and some showing would be re-

13

quired by a defendant to overcome that presumption.

A reading of such cases would seem to indicate that

such a presumption outside of the State of Nevada

simply means that a showing had to be made by the

defendant of something that his counsel did or failed

to do before the Courts would consider the question

of ineffective assistance of counsel. Most cases do

not define the burden of proof but those that do in-

dicate that a preponderance of the evidence is a

proper burden. See Crowe v. South Dakota, 484

F.2d 1359, 1361 (8th Cir. 1973) and McQueen v.

Swenson, supra, A clarification of what this pre-

sumption means in relation to the burden of proof

required to overcome it is another reason why this

Court should grant certiorari.

The third reason involves the requirement of the

State of Nevada that the presumption used by them

which, it is submitted, is different from any other

presumption in any other state or the Federal courts,

can only be overcome “by strong and convincing

proof to the contrary”. This extraordinary require-

ment for a defendant in a criminal case so far as

petitioner’s research indicates is found only in the

State of Nevada. If Nevada is allowed to do this,

certainly all the states could do it and the 6th Amend-

ment right to the effective assistance of counsel would

be, if not destroyed, diminished in a manner that

would destroy the ideal of the founders of this coun-

try. If this added burden can be put upon a defend-

ant choosing to exercise his constitutional right, why

can it not be put upon a defendant exercising any

14

other coustitutional right? If a state can make it

this difficult to assert and protect the right to effective

assistance of counsel, why cannot a state make the

presumption of competency of counsel a conclusive

one and thus destroy the 6th Amendment rights of all

people living in that state?

A fourth reason for granting the Writ is to give

citizen, Joseph Lischko, a full and fair trial before

a jury of his peers, and give him the constitutional

right to effective assistance of counsel which he did

not receive in this case. In McQueen v. Swenson,

supra, the United States Court of Appeals for the

8th Circuit held that a defense counsel who failed to

do no other investigating of a murder charge than

to interview the defendant, failed to give effective

assistance of counsel. Can it be said that counsel who

failed to investigate an affirmative defense, where

that defense was the only defense to the charge, and

having failed to investigate made an uninformed de-

cision not to put his client on the stand to relate this

affirmative defense of a hoax where this defendant

was the only one who knew the details of this defense

is any more effective than counsel in the McQueen

case ?

15

CONCLUSION

This Court should grant the Writ of Certiorari

requested, so that the 6th Amendment rights under

the Federal Constitution which under the 14th Amend-

ment were given to all citizens appearing before State

Courts as well as the Federal Courts can be made

clear and uniform. Equally important, certiorari

should be granted so that the petitioner in this pro-

ceeding can at long last have an opportunity to pre-

sent his defense to a jury of his peers.

Dated, Reno, Nevada,

July 12, 1976.

Respectfully submitted,

Varaas, BartLett & Dixon,

JOHN C, Bart Lert,

Attorneys for Petitioner.

(Appendices Follow)

APPENDICES

Appendix “a”

In the Second Judicial District Court of the

State of Nevada in and for the

County of Washoe

No. 6238

October 6, 1971 489 P.2d 89

Joo Lischko, )

Appellant,

vs. ,

State of Nevada,

Respondent. ;

OPINION

Per Curiam:

The appellant, who was charged by indictment,

stands convicted of first degree kidnaping. He asks

us to set aside his conviction for three reasons. First,

because the trial court refused his request to order

the district attorney to supply him with a list of wit-

nesses to be called during presentation of the State’s

ease in chief. When an accused is charged by indict-

ment, a list of witnesses need not be supplied. Smith-

art v. State, 86 Nev. 925, 478 P.2d 576 (1970) ; Mathis

v. State, 82 Nev. 402, 419 P.2d 775 (1966). Second,

because evidence suggesting the perpetration of an-

other offense by appellant was received. As to this,

no objection was interposed by trial counsel and the

error, if any, was waived. Wilson v. State, 86 Nev.

320, 468 P.2d 346 (1970); Smithart v. State, supra.

ii

Third, because the trial court denied his motion, made

during trial, to produce statements, if any, submitted

to the prosecution by one Robert Sheridan. Sheridan

was not called as a witness. Cf. Mears v. State, 83

Nev. 3, 422 P.2d 230 (1967) ; Walker v. State, 78 Nev.

463, 376 P.2d 137 (1962); State v. Bachman, 41 Nev.

197, 168 P. 733 (1917). Moreover, the record does not

show that Sheridan gave statements or evidence, or

that he even possessed relevant information.

Affirmed.

———

Appendix “BR”

No. 279498 Dept. No. 5

In the Second Judicial District Court of the

State of Nevada in and for the

County of Washoe

Joseph Lischko, )

Petitioner,

vs.

State of Nevada,

Respondent. :

[Filed Oct. 3, 1972]

DECISION, FINDINGS OF FACT,

CONCLUSIONS OF LAW AND ORDER

Joseph Lischko, the above-named defendant, was

indicted by the Grand Jury of Washoe County on Oc-

tober 23, 1969 of the crime of Kidnapping First De-

gree. A co-defendant, William George McCoole was

also charged in the same indictment. Both defendants

entered pleas of not guilty. Defendant Lischko was

represented by Carl Martillaro, Esq. of Carson City,

Nevada, and McCoole was represented by other coun-

sel.

A trial by jury was begun on January 26, 1970.

The jury returned a verdict of guilty against both

defendants on February 4, 1970. Neither defendant

testified during the trial or presented any evidence

in defense of the charges. Lischko was sentenced to a

term of twenty years in the Nevada State Prison, A

iv

court-appointed attorney appealed his conviction to

the Nevada Supreme Court, and that court affirmed

the lower court conviction. Lischko v. State of Ne-

vada, 87 Nev. 493.

On July 20, 1972, defendant Lischko filed a Petition

for Post Conviction Relief. The grounds asserted

therein by the petitioner were not urged in the appeal

from judgment in the Nevada Supreme Court. Thus,

this Court has proper jurisdiction to hear this matter

and render a decision thereon. NRS 177.335.

Relief in such proceedings may be granted when

there exists evidence of material facts not heretofore

presented and heard, which may require vacation of

the conviction or sentence in the interests of justice.

StanDARDS ReLatTinG To Post Conviction REMEDIES,

ABA Institute of Judicial Administration (1967) p. 9.

Pursuant to NRS 177.365, an Evidentiary Hearing

was ordered and it was held on September 6, 1972.

The Petition for Post Conviction Relief requests

that this court set aside the conviction and sentence

imposed and grant the defendant a new trial on the

grounds that:

1. The conviction was obtained and sentence im-

posed in violation of the Constitution of the United

States and Nevada in that the petitioner was deprived

of his right to constitutional due process as set forth

in Article T, Section 8 of the Nevada Constitution and

violation of the Fifth, Sixth and Fourteenth Amend-

ments of the United States Constitution.

2. That petitioner was deprived of his right “to

have the assistance of counsel for his defence,” in

Vv

that although he had competent counsel, his counsel

acted incompetently when he did not permit the de-

fendant to take the stand, and, further, persuaded the

defendant to not take a lie detector test to ascertain

the truth of the defendant’s factual story that the

alleged kidnapping was nothing but a hoax.

3. That certain state witnesses (Faye and Dean

Petersen) lied concerning material facts during the

trial.

4. That defendant’s counsel never permitted the

defendant to tell his story to the jury.

5. That defendant’s counsel never cross-examined

the Petersens in a way to implicate them although the

defendant had told his attorney that the Petersens

were completely implicated in the hoax.

6. That the truth of the defendant’s story of an

alleged hoax is supported by the results of two lie

detector tests ani a truth serum test administered and

arranged for by his present attorney and the office of

Washoe County District Attorney.

Several documents and papers were admitted in evi-

dence on behalf of the petitioner and the State during

the course of the hearing. In addition thereto, the

Court hereby orders admitted into evidence (as stip-

ulated by counsel) petitioner’s Exhibit “C” which con-

sists of certain written notes passed between defend-

ants Lischko and McCoole during their confinement in

the County Jail previous to the original trial, and pe-

titioner’s and State’s joint Exhibit “D” which is a

copy of the Las Vegas Police Department Report of

the crime.

vi

The principal allegations ir the Petition for Post

Conviction Relief are that the petitioner was deprived

of effective assistance of counsel because of counsel’s

failure to thoroughly consider and present counsel’s

pre trial information of petitioner’s background’ ac-

quaintanceship and personal relationships with the

Petersens; counsel’s failure to permit the defendant

to take the stand to tell his story of the hoax; that

counsel failed to properly investigate and ascertain

relevant facts previous to trial in order to impeach

certain statements made by the Petersens during the

trial.

“Although the determination of whether the de-

mands of due process have been met in a partic-

ular case is always a ‘question of judgment and

degree’ to be answered in light of all of the cir-

cumstances and with a view to ‘fundamental fair-

ness’ (citing cases), certain general standards

have evolved for the aid of the Court making this

determination. Fundamental among these is that

which places upon counsel the duty to conduct

careful factual and legal investigations and

inquiries with a view to developing matters of de-

fense in order that he may make informed deci-

stons on his client’s behalf both at the pleading

stage (citing cases) and at trial.” (Citing cases)

(Emphasis supplied) In re Saunders, 2 Cal. 3d

1033, 472 P.2d 921, 88 Cal. Reporter 633, 638.

“Tf counsel’s failure (to undertake such careful

inquiries and investigations) results in withdraw-

ing a crucial defense from the case, the defendant

has not had the assistance to which he is entitled.”

In re Saunders, supra, citing; People v. Ibarra,

386 P.2d 487; In re Williams, 460 P.2d 984; Bru-

baker v. Dickson, 310 F.2d 30.

vii

This Court realizes that there is a distinction be-

tween cases involving a failure to make a careful

factual inquiry and investigation to present an ade-

quate defense, and those cases where counsel having

made such inquiries and investigation, makes tactical

or strategic decisions, whether wise or unwise, when

viewed with the benefit of hindsight. The present

matter before the Court, falls into the category of the

first class of cases.

It was the Judge of this court who presided at the

original virial. The impressions received at the original

trial and which are now supplemented with the alle-

gations of the petition, together with evidence pre-

sented at the evidentiary hearing convince the Court

that the matters comnlained of resulted from a fail-

ure on the part of counsel to adequately inquire and

investigate facts and circumstances in order to be in

a position to make informed decisions on behalf of

his client. Counsel’s decisions based upon lack of in-

formation denied the petitioner the right to the effec-

tive assistance of counsel guaranteed by the Sixth

and Fourteenth Amendments of the United States

Constitution.

There are, of course, disputed facts present. The

petitioner stated that he requested of his counsel to

take a lie detector test to establish in the mind of his

attorney that his story of the hoax was the truth. His

attorney, petitioner further testified “seemed to brush

it off, and said it wasn’t necessary. He more or less

brushed it off.” (Transcript, p. 16, lines 3-8) Mar-

tillaro testified he does not recall being asked. (Tran-

eee

script, p. 38, lines 8-11; p. 44, line 20) Counsel admit-

ted, however, during the hearing that even at the

beginning of the trial and during the trial the peti-

tioner’s story was one “that he never backed away

from” and that he was “firm” in the assertion of this

defense. (Transcript p. 37, lines 29-30; p. 38, lines

1-2)

In any event, the evidence is clear, and the State

admits that the petitioner has taken two lie detector

tests and a truth serum test. Two of the experts who

administered the tests testified that in their opinion

the petitioner was telling the truth and not fabricating

a story. (Testimony of Russell Jones, Transcript be-

ginning on p. 19, and testimony of F. William All-

port, M.D., p. 25).

It is true that in a criminal trial, lie detector test

results are not admissible in evidence except by stip-

ulation. This Court, however, must take and does

take judicial notice of the fact that lie detector tests

are widely used by and the results thereof heavily re-

lied upon generally by prosecutors, defense attorneys

and law enforcement agencies. The office of District

Attorney of Washoe County is no exception.

The results of these tests and the testimony of the

experts who administered them weigh in favor of the

petitioner’s allegations of the petition. The petition-

ers testimony at the evidentiary hearing was not re-

butted by the State. While it is true that the District

Attorney objected to oral testimony adduced from the

petitioner, this objection was overruled because the

evidence was relevant and necessary in order for the

ix

Court to have sufficient information before it to de-

termine whether the demands of due process in this

case were met. What counsel knew or was told, and

what inquiry and investigation were carried out con-

cerning the relevant facts was highly important to the

Court to enable it to arrive at a decision with “fun-

damental fairness”.

Furthermore, the characteristics of a post convic-

tion remedy partakes of some attributes of both civil

and criminal proceedings.

“The procedures should be appropriate to the ob-

jectives of the remedy. While the post conviction

proceeding will necessarily be separate from the

original prosecution proceeding for many pur-

poses, the post conviction stage is, in a sense, an

extension of the original proceeding and should be

related to it insofar as feasible.”

ABA StTanparps Reiatinc To Post Conviction

Remepies, Institute of Judicial Administration,

p. 7 (1967) (Emphasis supplied)

There is no evidence in the record of this hearing

which establishes a compelling reason which was

reached through independent inquiry and investiga-

tion by counsel to not permit the petitioner to take the

stand and recount his defense to the jury from which

he “never backed away from”. Failure to put the

petitioner on the stand resulted in a complete failure

to present any defense in the case, and thus the peti-

tioner was not afforded the effective assistance of

counsel to which he is entitled. The cause of the ac-

cused was not presented to the jury. It was not a

trial contemplated by the due process clause of the

Constitution.

“It is counsel’s duty to investigate carefully all

defenses of fact and law that may be available to

the defendant, and if his failure to do so results

in withdrawing a crucial defense from the case,

the defendant has not had the assistance to which

he is entitled.” People v. Ibarra, 34 Cal. Rptr.,

863 (1963); 386 P.2d 487; See also: In re Saun-

ders, 472 P.2d 921.

It was counsel’s duty to further investigate the

story of the hoax, the long acquaintance of the peti-

tioner, the victim and his sister, and other matters

now being questioned. This Court, of course, cannot

say what such further investigation may have re-

vealed. However, failure to make truly diligent efforts

to follow up the leads of information in his posses-

sion, counsel precluded himself from making informed

decisions for an effective trial. What the Federal

Court said in Brubaker, supra, equally applies here.

The crucial defense of “a hoax” was “withheld not

through deliberate, though faulty judgment, but in de-

fault of knowledge that reasonable inquiry would have

produced and hence in default of any judgment at

all.”

From a careful consideration of the entire record,

this Court concludes that the relief sought in the Pe-

tition for Post Conviction Relief should be granted.

Accordingly, the Court Makes the Following

Findings of Fact and Conclusions of Law, to wit:

Findings of Fact

The Judge of this Court was the presiding Judge at

the original trial of the petitioner, Joseph Lischko,

(defendant in the criminal proceedings) and takes

judicial notice of all matters which occurred at said

trial for purposes of making these Findings of Fact

and Conclusions of Law.

I.

That counsel for petitioner was fully advised, prior

to trial, of the details of petitioner’s defense which

was that he claimed there could have been no kidnap-

ping because the alleged victim went voluntarily with

the petitioner and his co-defendant; that the kidnap-

ping was a hoax instigated by the sister of the victim;

that the petitioner was hired to perpetrate the hoax.

II.

That petitioner’s counsel before the criminal trial

failed to undertake appropriate inquiries and inves-

tigation to determine the reliability of petitioner’s

claimed defense; that this resulted in the withdrawal

from the ease of a crucial defense; that because of the

withdrawal of the crucial defense, the defense actually

offered was insubstantial.

TIT.

That petitioner did not take the stand in his own

defense; that the claimed defense of the petitioner

was, therefore, never presented to the jury.

IV.

That since his conviction and just previous to this

post conviction hearing, petitioner undertook a truth

serum test and two polygraph tests; two experts, one

xii

of whom administered the truth serum test and one

a polygraph test testified that the petitioner “passed”

them; that the petitioner was never given a poly-

graph test before the original trial.

V.

The pre-trial investigation for evidence to impeach

statements made at the trial by State’s witnesses (the

victim and his sister) was inadequate, and counsel,

as a result of this inadequacy, was not informed to

properly assist; that the petitioner, the victim, and his

sister had been longtime acquaintances, but at the trial,

the victim testified he had never seen Joe Lischko be-

fore; that inadequate investigation precluded Lisch-

ko’s attorney to be informed to properly cross-examine

on this fact.

VI.

That an adequate fee was paid to petitioner’s coun-

sel to defray expenses of a proper investigation.

VIL.

That certain written notes (Exhibit “C” in evi-

dence) were exchanged between Lischko and co-

defendant McCoole while in the County Jail awaiting

trial, the contents of which corroborate the claimed

defense of a hoax by petitioner; that petitioner’s

counsel did not know the exisence of these notes.

Conclusions of Law

From the foregoing facts, the Court makes the fol-

lowing Conclusions of Law, to wit:

I.

That as a result of counsel’s failure to adequately

inquire and investigate facts the petitioner’s crucial

defense was withdrawn, and further resulted in in-

adequate cross-examination vf state witnesses, and,

therefore, the petitioner did not have the effective

assistance of counsel, in violation of his rights under

the Sixth and Fourteenth Amendments of the Consti-

tution of the United States.

II.

That the petitioner, Joseph Lischko, should be

granted a new trial in Action No. 257329 entitled

“State of Nevada, Plaintiff, vs. Joseph Lischko, De-

fendant”, and the judgment of conviction and sentence

heretofore imposed should be set aside and vacated.

Let An Order Be Entered Accordingly.

ORDER

IT IS HEREBY ORDERED AS FOLLOWS:

1. That the Judgment of Conviction heretofore

entered and the Sentence imposed is hereby vacated

and set aside.

2. That petitioner, Joseph Lischko be, and he is

granted a new trial in Action No. 257329.

3. That the said Joseph Lischko be returned forth-

with by Carl Hocker, Warden of the Nevada State

Prison to the custody of Robert J. Galli, Sheriff of

Washoe County, Nevada.

4. That the said Joseph Lischko be released on bail

by Robert J. Galli, Sheriff of Washoe County upon

xiv

the posting of bail by the petitioner in the sum of

$5,000.00.

5. That Robert E. Rose, District Attorney of

Washoe County, forthwith take steps to set a date

for the new trial at the convenience of the Court and

respective counsel.

Dated this 3rd day of October, 1972.

/s/ Emile J. Gezelin

Emile J. Gezelin

District Judge

Appendix “C”

In the Second Judicial District Court of the

State of Nevada in and for the

County of Washoe

No. 7088

June 10, 1974 523 P.2d 6

Warden, Nevada State Prison,

MO ee ee

Appellant,

vs.

Joseph Lischko,

Respondent.

OPINION

By the Court, THompson, C.J.:

This appeal by the State is from an order of the

district court granting post-coviction relief in the

form of another trial. That court found that Joseph

Lischko was denied the effective assistance of counsel

in connection with his 1970 trial upon the charge of

kidnapping. He was then represented by privately

retained counsel. A jury found him guilty as charged

and judgment was duly entered upon the verdict. Dif-

ferent counsel was appointed to prosecute an appeal to

this court. The judgment of conviction was affirmed.

Lischko v. State, 87 Nev. 493, 489 P.2d 89 (1971). On

appeal, he did not assert that he had been denied the

effective assistance of counsel at trial. The present

post-conviction proceeding was instituted through still

xvi

another attorney of Lischko’s choice, and after an evi-

dentiary hearing thereon, resulted in the order grant-

ing another trial from which the State has taken this

appeal.

1. Although the district court properly may have

refused to entertain Lischko’s post-conviction peti-

tion because of his failure to urge the incompetency

of trial counsel as a claim of error upon direct ap-

peal,’ it chose instead to conduct an evidentiary hear-

ing and rule upon the merits. That choice fell within its

discretionary power. Consequently, we must review

the merits also and decide, as a matter of law, whether

due process was denied Lischko at trial by reason of

the alleged ineffective assistance of counsel.

2. The standard by which such a claim is to be

tested is whether the effectiveness of counsel was of

such low caliber as to reduce the trial to a sham,

a farce, or a pretense. Layton v. State, 87 Nev. 598,

602, 491 P.2d 45 (1971); Smithart v. State, 86 Nev.

925, 931, 478 P.2d 576 (1970); Bean v. State, 86 Nev.

80, 92, 465 P.2d 133 (1970). It is presumed that coun-

sel fully discharged his duties, and that presumption

can only be overcome by strong and convincing proof

to the contrary. Smithart v. State, supra. Measured

by this standard we are wholly unabie to find, as did

the district court, that trial counsel’s handling of the

case was ineffective and inadequate, and resulted in

the deprivation of constitutional rights. We turn to

express our view in this regard.

1See: NRS 177.375(2)(b); Roseneau v. State, 90 Nev. 161, 521

P.2d 369 (1974); Johnson v. Warden, 89 Nev. 476, 515 P.2d 63

(1973); Craig v. Warden, 87 Nev. 39, 482 P.2d 325 (1971).

xvii

Preliminarily, we note that in October 1969, Lischko

and William McCoole jointly were charged with hav-

ing kidnapped one, Dean Petersen, for the purpose

of ransom. Lischko retained private counsel. McCoole

was represented by the Public Defender of Washoe

County. Neither defendant testified at the trial. Each

was convicted and sentenced to prison. Sometime later,

a third participant in the offense, a Robert Sheridan,

was apprehended, tried and convicted. Lischko’s ap-

peal to this court was denied. Almost three years

later, this post-ce* viction proceeding was commenced

in which, for the first time, trial counsel is charged

with incompetency. The charge is premised mainly

upon the fact that counsel elected not to have Lischko

testify on his own behalf and tell the story that the

whole affair was a hoax planned by the victim’s sister,

Faye Petersen.

At the evidentiary hearing counsel stated several

reasons for his decision not to offer Lischko as a wit-

ness. Faye Petersen, who according to Lischko, set

up the kidnapping plot, was the person who initiated

steps which culminated in a report to law enforcement

and the subsequent arrests. Counsel could not square

that conduct on her part with his client’s tale that she

had planned the hoax. Moreover, counsel knew of a

recorded statement given by Lischko after his arrest

to the district attorney, which could be used to im-

peach Lischko were he to testify. Finally, the pri-

vate investigator counsel had hired before trial in an

effort to uncover evidence to corroborate Lischko’s

story found nothing of value. For these reasons and

others counsel elected not to offer Lischko as a witness.

eee

Counsel had practiced law for many years and had

extensive experience in the handling of criminal cases.

Contrary to the view of the district court, we find it

quite impossible at this late date to declare counsel’s

trial strategy an indicia of ineffective or inadequate

representation.

The lower court apparently gave weight to the fol-

lowing bits of evidence in deciding that Lischko should

have another trial. Lischko testified that he wished to

take a lie detector test before trial, but that his coun-

sel would not permit him to do so. Counsel did not re-

call Lischko having expressed that wish. In April

1972 long after the trial, a lie detector test was ad-

ministered to Lischko and the examiner was of the

opinion that his responses to questions were truthful.

This was followed in May 1972 by an interview of

Lischko while under sodium amytal and the doctor

concluded “that the descriptions given are at a high

level of validity.” Although the results of those tests

may weigh in favor of the petitioner’s truthfulness,

neither narco-interrogation nor the lie detector method

has received court recognition as possessing the trust-

worthiness and reliability needed to accord the results

the status of competent evidence. Vol. 3A, Wigmore,

Chadbourn Revision, §§ 998, 999 (1970). Moreover, it

is evident that the test results ha.e no bearing at all

upon the charge that trial counsel was ineffective.

Counsel accepted his client’s story as the truth and

urged the defense of a hoax during his closing argu-

ment to the jury. Had the test results been available

before trial, they would not have heen admissible evi-

dence during trial, nor may we assume that counsel’s

xix

decision not to offer Lischko as a witness would have

been altered thereby.

Finally, the district court believed that counsel

failed to adequately investigate the case before trial.

The record does not demonstrate this to be so. It re-

veals only that counsel hired a private investigator

who was unable to corroborate Lischko’s story of a

hoax. The investigator’s reports are not in the record.

We are not informed as to the details of his work,

nor as to the extent of his investigation. There was

nothing of substance before the court upon which it

properly could charge counsel with an inadequate

pretrial investigation.

In short, the record before us does not show by

clear and convincing evidence that counsel’s repre-

sentation was of such low caliber as to reduce the

trial to a sham, a farce, or a pretense.

Reversed.

Batser, J., and Compton, D.J., and McDANIEL,

D.J., coneur.

Mowsray, J., dissenting:

Respectfully, I dissent.

This is an appeal from an order of the district

court granting Joseph Lischko’s petition for post-

conviction relief and ordering a new trial.

Lischko was tried before a jury and convicted of

first-degree kidnapping. He was sentenced to serve

20 years in the Nevada State Prison. At the time of

his arrest, Lischko secured private counsel, who repre-

sented him throughout his trial. Lischko did not take

xx

the stand, nor were any witnesses called in his behalf.

His conviction was appealed by court-appointed coun-

sel. This court affirmed, rejecting the issues upon

which the direct appeal was then predicated. Lischko

v. State, 87 Nev. 493, 489 P.2d 89 (1971).

On July 20, 1972, Lischko, through his present

counsel, filed a petition for post-conviction relief in

the district court. He claimed that he was denied

effective assistance of counsel during his jury trial,

in derogation of his rights under the Sixth and Four-

teenth Amendments to the United States Constitution.

The petition was heard before the late Judge Emile

Gezelin, who had presided at Lischko’s jury trial. Judge

Gezelin, after conducting an extensive evidentiary

hearing, held that the petition was meritorious and

granted Lischko a new trial. He specifically found

that Lischko’s trial counsel had failed to properly in-

vestigate certain alleged facts and circumstances

which, because they would have gone to the impeach-

ment of statements made by the prosecution’s wit-

nesses, fatally impaired counsel’s ability to make in-

formed decisions on behalf of his client. The judge

carefully distinguished between those cases involving

failure to make a careful inquiry in order to present

an adequate defense, and those cases where counsel,

having made such an inquiry, then made tactical

or strategic errors in his handling of the case.

Judge Gezelin did not consider the evidence presented

to him at the post-conviction relief hearing in a

vacuum, but rather against the background of the

entire case. He presided over the trial resulting in

the conviction of Lischko, and he thereafter deter-

mined, in light of all the facts before him, from his

impressions at the trial, and from the evidence pro-

duced at the hearing, that Lischko’s basic rights had

been violated.’

The majority would now substitute its opinion on

a factual determination as to the effectiveness of

counsel for that of the trial judge in his role as trier

of fact. This court, in State v. Sorenson, 73 Nev. 218,

315 P.2d 508 (1957), cited and quoted with approval

People v. Canfield, 173 Cal. 309, 159 P. 1046, 1047:

“... ‘It was for the judge of the trial court to say

what had been the effect of the evidence upon the

jury, and whether or not the defendant, in view of

all the facts, had been given a fair trial... . The

judge, who presided at the trial c_ the cause, who

heard the testimony, who observed the jurors and had

an opportunity also of testing the truth of the

defendant’s statements by noticing his demeanor, was

in a peculiarly favorable position for determining

justly the question whether or not the defendant had

been accorded a fair trial... . We can hardly manu-

facture in fancy an hypothetical situation in which

1Juge Gezelin ruled, inter alia, in his decision:

“Tt was the Judge of this court who presided at the original

trial. The impressions received at the original trial and which

are now supplemented with the allegations of the petition, to-

gether with evidence preesnted at the evidentiary hearing[,] con-

vinee the Court that the matters complained of resulted from a

failure on the part of counsel tc adequately inquire and investi-

gate facts and circumstances in order to be in a position to make

informed decisions on behalf of his client. Counsel’s decisions

based upon lack of information denied the petitioner the right to

the effective assistance of counsel guaranteed by the Sixth and

Fourteenth Amendments of the United States Constitution.”

ee

a reviewing court would be justified in questioning

the discretion of the trial court who should grant a

new trial in a case involving a criminal charge... .”

(Emphasis added.) State v. Sorenson, supra, at 223-

224. See also, State v. Varga, 66 Nev. 102, 124, 205

P.2d 803 (1949).

The views expressed in Sorenson parallel my posi-

tion in this case. We know nothing regarding the ulti-

mate merit of Lischko’s story, but we do know that

the trial judge, who presided at Lischko’s jury trial

and who sentenced him to the state penitentiary, did

conclude, after carefully considering Lischko’s peti-

tion and the evidence adduced at the hearing thereon,

that justice demanded Lischko be given a new trial.

In the conceded absence of any judicial irregularity,

I would not interfere with that conclusion.

A review of the record below shows no abuse of

discretion by the district judge, but, rather, substan-

tial evidence to support his order. In my opinion,

such an order should not be disturbed on appeal.

Wallace v. State, 88 Nev. 549, 550, 501 P.2d 1036

(1972). I would affirm the order of the district court

granting the petition for post-conviction relief and

ordering a new trial.

Appendix “D”

In the United States District Court

for the District of Nevada

Civil No. R-74-118 BRT

Joseph Lischko, ]

Petitioner,

vs.

Robert J. Galli, Sheriff of Washoe

County, State of Nevada,

Respondent. :

[Filed March 24, 1975]

ORDER

In this petition for a writ of habeas corpus, Peti-

tioner, Joseph Lischko, seeks to overturn a decision

of the Supreme Court of Nevada (Warden v.

Lischko, June 10, 1974, Docket No. 7088, 523 P.2d 6).

In a post-conviction petition, Lischko had sought

relief from his kidnapping conviction in the state

trial court, alleging that his constitutional right to

adequate representation by counsel had been in-

fringed. The state trial court held a post-conviction

evidentiary hearing, and at the conclusion, de -ided

that Petitioner’s right to due process under the Four-

teenth Amendment and his right to adequate repre-

sentation by counsel under the Sixth Amendment

xxiv

had, indeed, been violated. The conviction was set

aside and a new trial ordered. The state appealed

and the Supreme Court reversed, holding that the

evidence did not support the findings and conclusions

of the trial court. The facts are correctly summarized

in the Supreme Court opinion, supra.

This Court held another evidentiary hearing. The

information elucidated added little to the record

theretofore made in the state post-conviction hearing.

This Court did have an opportunity to observe

Lischko as a witness and finds that his credibility is

subject to serious question. This probably is due as

much to ineptness and the basic unbelievability of

some of his statements as to a desire wilfully to

testify falsely.

The conclusions reached by the Nevada Supreme

Court cannot be successfully attacked upon a theory

that that Court was bound to accept the findings and

conclusions of the trial court. For example, in La-

Vallee v. Delle Rose, 410 U.S. 690 (1973), a federal

district court had held an evidentiary hearing and

upset a conviction upon the ground that confessions

received in evidence were involuntary. The Court of

Appeals affirmed, but the Supreme Court of the

United States reversed and held that the federal

courts were bound to honor the contrary finding after

an adequate evidentiary hearing in the state court.

In Murch v. Mottram, 409 U.S. 41 (1972), the High

Court again undertook to weigh and analyze the

quality of the evidence to support a lower court find-

ing and reversed a reversal by the Court of Appeals.

xXV

The primary thrust of Petitioner’s argument is that

the Nevada Supreme Court applied an incorrect legal

standard in assessing the validity of Petitioner’s con-

tention under the Sixth Amendment and that Judge

Gezelin in the trial court had applied a correct legal

standard,

The Ninth Circuit has been in the vanguard of

courts which have used the phrase “a farce and a

mockery” in assessing the quality of an attorney’s

performance in the representation of his client.

Stanley v. United States, 239 F. 2d 765 (9th Cir.

1957) ; Peck v. United States, 321 F. 2d 934 (9th Cir.

1963); Wright v. Craven, 412 F. 2d 915 (9th Cir.

1969) ; Grove v. Wilson, 368 F. 2d 414 (9th Cir. 1966).

On the other hand, this phrase, however it may be

applied in the context of particular circumstances,

has not always been used without qualification. As

early as 1963, Judge Browning, writing for the Court

in Brubaker v. Dickson, 310 F. 2d 30 (9th Cir. 1963),

said that a defendant is entitled to “effective aid in

the preparation and trial of the case” and that due

process requires counsel “reasonably likely to render

anu rendering reasonably effective assistance.” While

the words “farce and mockery of justice” continue to

be used, recent cases have added the explanation: “To

demonstrate inadequacy of counsel, a petitioner must

show that he had counsel who was not reasonably

likely to render and did not render reasonably effec-

tive assistance.” Loano v. United States, 457 F. 2d

1208 (9th Cir. 1972); United States v. Miramon, 470

F. 2d 1362 (9th Cir. 1972).

xxvi

Petitioner cites the case of Beasley v. United States,

491 F. 2d 687 (5th Cir. 1974), for the proposition

that the standard applied by the Nevada Supreme

Court was wrong and much too restrictive. A similar

comprehensive discussion of the problem is found in

United States v. DeCoster, 487 F. 2d 1197 (D.C. Cir.

1973). These decisions seem to track the concepts

express in the Brubaker case, supra.

The Nevada Supreme Court said:

“The standard by which such a claim is to be

tested is whether the effectiveness of counsel was

of such low caliber as to reduce the trial to a

sham, a farce, or a pretense. Layton v. State,

87 Nev. 598, 602, 491 P. 2d 45 (1971); Smithart

v. State, 86 Nev. 925, 931, 478 P. 2d 576 (1970) ;

Bean v. State, 86 Nev. 80, 92, 465 P. 2d 133

(1970.) It is presumed that counsel fully dis-

charged his duties, and that presumption can only

be overcome by strong and convincing proof to

the contrary. Smithart v. State, supra. Measured

by this standard we are wholly unable to find, as

did the district court, that trial counsel’s han-

dling of the case was ineffective and inadequate,

and resuited in the deprivation of constitutional

rights. We turn to express our view in this

regard.” Warden, Nevada State Prison v. Lischko,

523 P. 2d 4.

It may well be that the standard as so enunciated

is excessively harsh, especially if a literal meaning is

accorded the words used. For the purposes of this

decision, we adopt the principle that a petitioner has

the burden of showing that he had counsel who was

se

not reasonably likely to render and did not render

reasonably effective assistance.

It is conceded that Petitioner’s retained counsel,

Carl Mart. .aro, was a competent, experienced crim-

inal defense attorney. The attack on the quality of

his performance falls far short of a showing that

reasonably effective assistance was not rendered. The

Beasley and DeCoster cases, supra, state facts show-

ing that counsel was just barely on the job. He was

physically present and that is about all. By contrast,

in the instant case counsel did investigate, did pre-

pare, and did make informed tactical decisions. The

facts in this respect have been correctly related by

the Nevada Supreme Court.

Parenthetically, it may be observed that Petitioner’s

reliance upon the exchange of notes between himself

and a co-defendant while in jail, this evidence having

been submitted at the state post-conviction hearing,

is difficult for this Court to understand. They seem to

me to be an effort to agree upon a story in defense

of the charge rather than an unequivocal assertion of

innocence, and they seem to impugn, rather than to

support, the defense theory of a hoax. Accordingly,

It Hereby Is Ordered that a judgment shall be

entered denying the petition for a writ of habeas

corpus.

Dated: March 24, 1975.

/s/ Bruee R. Thompson

United States District Judge

Appendix “E”

In the United States District Court

for the District of Nevada

Do Not Publish

United States Court of Appeals

for the Ninth Circuit

Civil No. R-74-118 BRT

Joseph Lischko, q No. 75-2525

Petitioner,

County, State of Nevada, Petitioner-A ppellant,

Respondent. :

vs.

Robert J. Galli, Sheriff of Washoe

County, State of Nevada,

Respondent-A ppellee.

a

[ Filed March 24, 1975]

JUDGMENT

In accordance with the Order this day entered in

the action entitled above,

It Hereby Is Ordered, Adjudged And Decreed that

the petition for a writ of habeas corpus is denied.

Dated: March 24, 1975.

/s/ Bruce R. Thompson

United States District Judge

[April 14, 1976]

Appeal from the United States District Court

for the District of Nevada

MEMORANDUM

Before: Duntway and WALLACE, Circuit Judges,

and SWEIGERT,* District Judge.

Lischko asserts that his attorney did not investigate

the possibility that the kidnapping of Dean Peterson

was a hoax in which Faye Peterson, Dean’s sister,

had participated. Lischko claims that he informed his

attorney that both Dean and Faye Peterson were

involved in the kidnapping. The attorney testified that

*The Honorable William T. Sweigert, Senior United States

District Judge for the Northern District of California, sitting by

designation.

vs.

Robert J. Galli, Sheriff of Washoe ' Joseph Lischko, |

Lischko never implicated Dean, telling him only that

the scheme was Faye’s idea. The district judge’s deci-

sion to believe the attorney and Lischko is supported

by the evidence.

Lischko argues that he was deprived of an adequate

defense by his attorney’s failure to call him as a wit-

ness. We do not agree. The attorney concluded, as did

the district court, that Lischko’s “credibility is sub-

ject to serious question.” Rather than presenting his

client’s incredible tale, the attorney focused his ener-

gies on discrediting prosecution witnesses in the hope

of raising a reasonable doubt of guilt. In retrospect,

Lischko could have done no worse had he testified, but

that is not the standard by which we evaluate a law-

yer’s performance.

To demonstrate inadequacy of counsel, a peti-

tioner must show that he had counsel who was

not reasonably likely ic render and did not render

reasonably effective assistance.

Leano v. United States, 9 Cir., 1972, 457 F.2d 1208,

1209, cert. denied, 409 U.S. 889; see Brubaker v. Dick-

son, 9 Cir., 1962, 310 F.2d 30, 37, cert. denied, 1963,

372 U.S. 978. Lischko has made no such showing.

The Nevada Supreme Court’s use of the “sham,

farce, or pretense” test in disposing of Lischko’s state

habeas corpus petition, Warden v. Lischko, ........ Nev.

‘sill , 523 P.2d 6, is not this court’s concern. We need

only determine, as we have, that the district court

based its conclusion on a correct view of the law and

facts. It did.

Affirmed.

Appendix ‘eR

United States Court of Appeals

for the Ninth Circuit

No. 75-2525

Joseph Lischko, )

Petitioner-A ppellant,

vs.

Robert J. Galli, Sheriff of Washoe

County, State of Nevada,

Respondent-A ppellee. !

[Filed June 19, 1976]

ORDER

Before: Dunrway and WaALLAcE, Circuit Judges,

and SwEIGERT,* District Judge

The panel as constituted in the above case has voted

to deny the petition for rehearing and to reject the

suggestion for a rehearing in bane.

The full court has been advised of the suggestion

for in bane rehearing, and no judge of the court has

requested a vote on the suggestion for rehearing in

bane. Fed. R. App. P. 35(b).

The petition for rehearing is denied and the sug-

gestion for a rehearing in banc is rejected.

*The Honorable William T. Sweigert, Senior United States

District Judge for the Northern District of California, sitting

by designation.