97-6365
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID RONALD CHANDLER,
Appellant.
INITIAL BRIEF FOR THE APPELLANT
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
ALABAMA
JOHN R. MARTIN
MARTIN BROTHERS, P.C.
44 Broad Street,N.W.Suite D
500 Grant Building
Atlanta, GA 30303
(404)
522-0400
NATASHA ZALKIN
204 El Reposo Place
Panama City Beach, Fl 32408
(850) 230-0468
United States v. David Ronald Chandler ,
Docket No. 97-6365
CERTIFICATE OF INTERESTED PERSONS
Pursuant to Rule 26.1, Fed.R.App.P. and Eleventh Circuit Rule 26.1-1, 1-2 and 1-3, Appellant submits the following Certificate of Interested Persons:
Barnett, Bill L. -- Assistant United States Attorney
Chandler, David Ronald -- Appellant
Davis, III, Harwell G. -- Assistant United States Attorney
Honorable James H. Hancock -- United States District Judge
Jones, Doug -- United States Attorney
Martin, John R.-- Appellant’s Counsel
Martin Brothers, P.C. -- Appellant Counsel’s law firm
Shuler, Marlin -- Alleged Victim (deceased)
Zalkin, Natasha -- Appellant’s Counsel
STATEMENT REGARDING ORAL ARGUMENT
This appeal is a death penalty case, involving the first death penalty imposed in a United States District Court after Congress reinstituted the federal death penalty in 1987 by passing 28 U.S.C. § 848(e). This case raises significant issues of first impression, including the applicability of Simmons v. South Carolina, 520 U.S. 154 (1994) in the context of a federal death penalty prosecution. This appeal is difficult and complex both legally and factually. Among the claims raised on appeal are (1) whether the Appellant should have been granted a new trial and/or sentencing due to newly discovered evidence, including the recantation of the only witness who tied the Appellant directly to the murder upon which the death sentence was based; (2) whether the Appellant’s convictions and sentence should be set aside due to the suppression by the government of evidence favorable to the Appellant as to guilt/innocence and as to sentence; (3) whether the government knowingly presented substantially misleading testimony both as to guilt/innocence and as to sentence; and (4) whether the Appellant received effective assistance of counsel at sentencing (an issue which the District Court conceded was "a close" question about which "reasonable people could disagree") (R7-457-63). The record in this case is voluminous (9 volumes of pleadings, including 509 separate items, 5 separate orders entered by the District Court, totaling 230 pages, 11 volumes of transcripts of the Appellant’s original trial and 6 volumes of transcripts of evidentiary hearings held during post-conviction proceedings). Given the novelty, complexity and fact-specific nature of the claims raised on appeal, as well as the seriousness and importance of this case, argument of counsel should be of assistance to the Court.
CERTIFICATION OF TYPE SIZE AND STYLE
Pursuant to Eleventh Circuit Rule 28-2(d), Appellant certifies that this Brief is typed in 14 point Times New Roman.
CERTIFICATE OF INTERESTED PERSONS
STATEMENT REGARDING ORAL ARGUMENT
CERTIFICATE OF TYPE SIZE AND STYLE
TABLE OF CONTENTS
2. Ineffectiveness of Trial Counsel at Sentencing
C. STATEMENT OF THE STANDARDS OF REVIEW
A. THE DIFFERENT STANDARDS FOR RELIEF.
C. THE DISTRICT COURT’S FAILURE TO APPLY THE BERRY STANDARD
D. THE WEAKNESSES IN THE CASE FOR CONVICTION AND DEATH.
E. A NEW TRIAL SHOULD BE ORDERED UNDER RULE 33.
F. BRADY AND GIGLIO VIOLATIONS INDEPENDENTLY REQUIRE A NEW TRIAL.
G. INEFFECTIVE ASSISTANCE OF COUNSEL AT THE GUILT PHASE .
H. CUMULATIVE IMPACT OF ALL NEWLY DISCOVERED EVIDENCE RELATED VIOLATIONS.
A. THE PURPOSE OF THE SENTENCING HEARING.
B. INEFFECTIVENESS OF COUNSEL AT SENTENCING.
C. COUNSEL’S DUTY TO INVESTIGATE.
D. THE FAILURE TO CONDUCT ANY SENTENCING INVESTIGATION.
C. THE GOVERNMENT’S FUTURE DANGEROUSNESS ARGUMENTS.
D. THE DISTRICT COURT’S MISINTERPRETATION OF THE RULE IN SIMMONS
CASES
Anderson v. United
States, 948 F.2d 704 (11th Cir. 1991)
Armstrong v. Dugger, 833
F.2d 1430 (11th Cir. 1987)
Baxter v. Thomas, 45 F.3d 1501 (1995)
Berry v. State, 10 Ga.
511 (1851)
Blankenship v.
Estelle, 545 F.2d 510 (5th Cir. 1977)
Bowen v. Maynard, 799 F.2d 593 (10th Cir.
1980)
Blanco v.
Singletary, 943 F.2d 1477 (11th Cir. 1991)
Blake v. Kemp, 758 F.2d 523 (11th Cir. 1985)
Bonner v. City of
Pritchard, 661 F.2d 1206 (11th Cir. 1991)
Brady v. Maryland, 373 U.S. 83 (1963)
Brain v. Wainwright, 785
F.2d 1457 (11th Cir. 1986)
Bussey v. State, 64 S.W. 268 (1901)
California v. Brown, 479
U.S. 538 (1987)
Cave v.
Singletary, 971 F.2d 1513 (11th Cir. 1992)
Chapman v. California, 386 U.S. 18 (1967)
Dupart v. United States,
541 F.2d 1148 (5th Cir. 1970)
Eddings v. Oklahoma, 455 U.S. 104 (1982)
Elledge v. Dugger, 823
F.2d 1439 (11th Cir. 1987)
Enmund v. Florida, 458 U.S. 782 (1982)
Eutzy v. Dugger, 746
F.Supp. 1492 (N.D.Fla. 1989)
Georgetown University Hospital v. Bowen, 821 F.2d
750 (D.C.Cir. 1987)
Giglio
v. United States, 405 U.S. 150 (1972)
Gregg v. Georgia, 428 U.S. 153 (1976)
Griffith v. Kentucky, 479
U.S. 314 (1987)
Hall v.
Washington, 106 F.3d 742 (7th Cir. 1992)
Harris v. Dugger, 874 F.2d 756 (11th Cir.
1989)
Horton v. Zant,
941 F.2d 1449 (11th Cir. 1991)
Ingram v. Zant, 26 F.3d 1047 (11th Cir. 1994)
Jackson v. Herring, 42
F.3d 1350 (11th Cir. 1995)
Johnson v. Dugger, 615 F.Supp. 355, Aff’d 781
F.2d 1482 (11th Cir. 1986)
Johnson v. Scott, 68 F.3d 106 (5th Cir. 1995)
King v. Strickland, 714
F.2d 1481 (11th Cir. 1983)
Kyles v. Whitley, ___ U.S. ___ 115 S.Ct. 1555
(1995)
Larrison v. United
States, 24 F.2d 82 (7th Cir. 1928)
Ledet v. United States, 297 F.2d 737 (5th Cir.
1962)
Lockett v. Ohio,
438 U.S. 586 (1978)
Lockhart v. Fretwell, 586 U.S. 364 (1993)
Martin v. United States,
17 F.2d 973 (5th Cir. 1927)
Mistretta v. United States, 438 U.S. 361
(1989)
Mooney v.
Holohan, 294 U.S. 103 (1935)
Morgan v. Illinois, 504 U.S. 719 (1992)
Napue v. Illinois, 360
U.S. 264 (1959)
Newsom v.
United States, 311 F.2d 74 (5th Cir. 1462)
Penry v. Lynaugh, 492 U.S. 302 (1989)
Porter v. Singletary, 14
F.3d 554 (11th Cir. 1994)
Pyle v. Kansas, 317 U.S. 213 (1942)
Rogers v. Zant, 13 F.3d
384 (11th Cir. 1994)
Simmons v. South Carolina, 520 U.S. 154, 114
S.Ct. 2187 (1994)
Stanley
v. Zant, 697 F.2d 955 (11th Cir. 1983)
State v. Simmons, 427 S.E.2d 175 (S.C. 1993)
Strickland v. Washington,
466 U.S. 668 (1984)
Teague
v. Lane, 489 U.S. 288 (1989)
Thomas v. Kemp, 796 F.2d 1322 (11th cir. 1985)
Thompson v. Wainwright,
787 F.2d 1447 (1986)
Tison
v. Arizona, 481 U.S. 137 (1987)
Tyler v. Kemp, 755 F.2d 741 (11th Cir. 1985)
United States v. Adams,
74 F.3d 1093 (11th Cir. 1996)
United States v. Agurs, 427 U.S. 97 (1976)
United States v. Bagley,
473 U.S. 667 (1985)
United
States v. Candelaria-Gonzalez, 547 F.2d 291 (5th Cir. 1977)
United States v.
Champion, 813 F.2d 1154 (11th Cir. 1937)
United States v. Chandler, 996 F.2d 1073 (11th
Cir. 1993)
United States
v. Draper, 762 F.2d 81 (10th Cir. 1985)
United States v. Freeman, 77 F.3d 812 (5th Cir.
1996)
United States v.
Garcia, 13 F.3d 1464 (11th Cir. 1994)
United States v. Gates, 10 F.3d 765 (11th Cir.
1993)
United States v.
Hewitt, 663 F.2d 1381 (11th Cir. 1981)
United States v. Hiss, 107 F.Supp. 128 (S.D.N.Y.
1952)
United States v.
Jackson, 579 F.2d 533 (10th Cir. 1978)
United States v. Johnson, 142 F.2d 588 (7th Cir.
1944)
United States v.
Johnson, 713 F.2d 654 (11th Cir. 1983)
United States v. Lee, 68 F.3d 1267 (11th Cir.
1995)
United States v.
Lopez, 985 F.2d 520 (11th Cir. 1993)
United States v. Mason, 993 F.2d 406 (4th Cir.
1993)
United States V.
Mejia, 82 F.3d 1032 (11th Cir. 1996)
United States v. Morgan, 554 F.2d 31 (2nd Cir.
1977)
United States v.
Oshatz, 912 F.2d 534 (2nd Cir. 1990)
United States v. Overton, 421 F.2d 277 (5th Cir.
1969)
United States v.
Pearson, 746 F.2d 787 (11th Cir. 1984)
United States v. Preciados-Cordobas, 981 F. 3d
1206 (11th Cir. 1973)
United States v. Rivera Pedin, 861 F.2d 1522
(11th Cir. 1988)
United
States V. San Filippo, 564 F. 2d 176 (5th Cir. 1977)
United States v.
Santiago, 837 F.2d 1545 (11th Cir. 1987)
United States v. Siers, 873 F.2d 744 (4th Cir.
1989)
United States v.
Smith, 433 F.2d 149 (5th Cir. 1970)
United States v. Starrett, 55 F. 3d 1525 (11th
Cir. 1995)
United States
v. Wilson, 983 F.2d 221 (11th Cir. 1993)
Woodson v. North Carolina, 428 U.S. 280
(1976)
STATUTES PAGE
18 U.S.C. § 3569 et. seq.
21 U.S.C. § 848(e)
21 U.S.C.
§ 848(k)
21 U.S.C. § 848(m)(6)
21 U.S.C. § 848(m)(8)
28
U.S.C. § 1291
28 U.S.C. § 2253
28 U.S.C. § 2255
RULES
Rule 33, Federal Rules of
Criminal Procedure
Rule 404(b), Federal Rules of
Evidence
REGULATIONS
28 C.F.R. §§ 26.1-26.5
SENTENCING GUIDELINES PROVISIONS
U.S.S.G.§ 2A1.1
U.S.S.G. § 2A1.5
ANNOTATIONS
Recantation of Testimony of Witness as Grounds for New Trial-Federal Cases, 94 ALR Fed 60
This case involves appeals of denials by the District Court of claims under Rule 33 of the Federal Rules of Criminal Procedure and 28 U.S.C. § 2255. Jurisdiction to hear the denial on the Motion for New Trial Under Rule 33 is conferred by 28 U.S.C. § 1291. Jurisdiction to hear the appeal of the denial of relief under 28 U.S.C. § 2255 is conferred by 28 U.S.C. § 2253.
I. WHETHER A NEW TRIAL AS TO GUILT/INNOCENCE OR AS TO SENTENCE, IF NECESSARY, SHOULD BE GRANTED UNDER RULE 33 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE BECAUSE OF SUBSTANTIAL NEWLY DISCOVERED EVIDENCE OF CHANDLER’S INNOCENCE.
II. WHETHER A NEW TRIAL AS TO GUILT/INNOCENCE OR AS TO SENTENCE, IF NECESSARY, SHOULD BE GRANTED BECAUSE OF THE GOVERNMENT’S INTENTIONAL PRESENTATION AT TRIAL OF FALSE OR SUBSTANTIALLY MISLEADING TESTIMONY.
III. WHETHER A NEW TRIAL AS TO GUILT/INNOCENCE OR AS TO SENTENCE, IF NECESSARY, SHOULD BE GRANTED BECAUSE OF THE FAILURE OF THE GOVERNMENT TO DISCLOSE TO THE DEFENSE AT TRIAL IMPORTANT INFORMATION AND EVIDENCE FAVORABLE TO THE DEFENDANT AS TO GUILT/INNOCENCE OR AS TO SENTENCE.
IV. WHETHER A NEW TRIAL AS TO GUILT/INNOCENCE OR AS TO SENTENCE, IF NECESSARY, SHOULD BE GRANTED DUE TO THE INEFFECTIVENESS OF TRIAL COUNSEL DURING THE GUILT/INNOCENCE PHASE OF THE TRIAL.
V. WHETHER A NEW SENTENCING HEARING SHOULD BE GRANTED BECAUSE TRIAL COUNSEL FAILED TO PROVIDE CONSTITUTIONALLY EFFECTIVE ASSISTANCE OF COUNSEL AT THE DEFENDANT’S SENTENCING WHEN HE FAILED TO LOCATE, INTERVIEW AND PRESENT WITNESSES WHO WOULD HAVE TESTIFIED TO THE DEFENDANT’S GOOD CHARACTER AND AS TO NUMEROUS GOOD DEEDS PERFORMED BY THE DEFENDANT.
VI. WHETHER A NEW SENTENCING HEARING SHOULD BE GRANTED BECAUSE DESPITE THE REQUEST OF THE DEFENSE THE JURY WAS NOT TOLD THAT SHOULD THEY NOT RETURN A DEATH SENTENCE VERDICT THE DEFENDANT WOULD BE SENTENCED TO LIFE IMPRISONMENT WITHOUT PAROLE AND THE GOVERNMENT MADE GENERALIZED ARGUMENTS CONCERNING THE DEFENDANT’S ALLEGED FUTURE DANGEROUSNESS, CONTRARY TO THE DECISION OF THE SUPREME COURT IN SIMMONS V. NORTH CAROLINA.
VII. WHETHER THE EXECUTION OF THE DEFENDANT UNDER REGULATIONS PROMULGATED BY THE JUSTICE DEPARTMENT WOULD VIOLATE THE DEFENDANT’S CONSTITUTIONAL AND STATUTORY RIGHTS.
On April 2, 1991, Appellant (hereinafter referred to also as "Defendant", "Mr. Chandler" or "Chandler"), was convicted by a jury in the United States District Court for the Northern District of Alabama on all counts of a nine count indictment charging him with conspiracy to distribute marijuana (21 U.S.C. § 846)(Count I), engaging in a continuing criminal enterprise (21 U.S.C. § 848)(Count II), procuring the killing of an individual in connection with a continuing criminal enterprise ( 21 U.S.C. § 848(e)(1)(A))(Count III), using or possessing a firearm during the commission of an offense (18 U.S.C. § 924(c)(1))(Count IV and V) and laundering of monetary instruments (18 U.S.C. § 1956 (a)(1)(B)(i))(Counts VI through IX). (OCR-115, 219).1 The next day, April 3, 1991, after a sentencing hearing which lasted less than three hours from start to finish, including jury instructions and closing arguments, the jury returned a death penalty verdict on Count III. (OCR-221; TT12-13-100).
On May 14, 1991, Final Judgment and Commitment was entered. The Defendant was sentenced to life imprisonment on Count I, a second concurrent life imprisonment sentence on Count II, the death penalty on Count III, a consecutive term of five years on Count IV, a consecutive term of five years on Count V and concurrent terms of six years on Counts VII through XI. (OCR-253, 254).
Notice of Appeal was filed. (OCR-258). This Court vacated the sentence and conviction on Count I, but affirmed the sentences and convictions on all other Counts. United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993). A Petition for Rehearing and Suggestion for Rehearing En banc was denied. United States v. Chandler, 5 F.3d 1501 (11th Cir. 1993). A Petition for a Writ of Certiorari was denied by the Supreme Court. United States v. Chandler, __ U.S. __, 114 S.Ct. 2724 (1994). A petition for rehearing of the denial for the petition for a writ of certiorari was denied. United States v. Chandler, __ U.S. __, 115 S.Ct. 23 (1994).
On March 20, 1995, the Defendant filed his Motion to Vacate the Defendant’s Convictions and Sentences and for a New Trial Under 28 U.S.C. § 2255 and Rule 33 of the Federal Rules of Criminal Procedure, as well as a supplement to this motion which the Court allowed to be filed under seal. (R1-326, 329, 330, 331). The Defendant was permitted to amend his motion on three occasions. (R3-381; R4-395; R6-442). The Defendant’s motion as amended will hereafter be referred to as the "Motion to Vacate."
After three evidentiary hearings and the consideration of evidentiary proffers and briefs from the parties, the District Court denied all of the claims raised in the Motion to Vacate in five separate orders, totaling 230 pages. (R3-384, R7-456, 457, R9-493, 497). Two of these orders are reported at 950 F.Supp. 1522 (N.D.Ala. 1996) and 950 F.Supp. 1545 (N.D.Ala. 1996). A timely Notice of Appeal was filed on April 28, 1997. (R9-498).
The government’s case at trial essentially consisted of two contentions: (1) that Chandler was involved in growing and distributing more than 1000 kilograms of marijuana and (2) that he procured the killing of Marlin Shuler to protect this marijuana operation. See, United States v. Chandler, 996 F.2d at 1080-82.
With respect to the first claim, the prosecution presented several witnesses to testify to Chandler’s cultivating and distributing marijuana, as well as purchasing marijuana from out of state. The prosecution also offered undercover evidence regarding attempts to purchase marijuana by Chandler. The prosecution could not, however, prove any particular amount of marijuana that could be attributed to Chandler, in part because no marijuana that could be reliably tied to Chandler was ever seized. It, therefore, attempted to satisfy the requirement in the Indictment that Chandler was involved in more than 1000 kilograms of marijuana by reference to possibly braggadocio statements by Chandler as to the amount of marijuana plants he "tried" to plant (not the amount that he actually planted or, more important, reasonably expected to harvest) and mathematical extrapolations from documentary evidence. (R7-457-3-7) (TT3-108-109). When the hard amounts of actual marijuana possessed or distributed are calculated from the government witnesses’ best estimations, estimations which were provided to the government, but never disclosed to the defense, one arrives at a figure of 357 kilograms (R5-403-84, n.4), a significant amount of marijuana, but far short of the 1000 kilograms for which Chandler was convicted and sentenced.
As to Chandler’s alleged involvement with the death of Marlin Shuler, the prosecution’s case was based upon the assumption that Chandler wanted to kill Shuler because Shuler had provided information to police authorities regarding his ex-wife, Donna Shuler, who the government contended was a "dealer" for Chandler. The government claimed that Chandler had arranged for the murder of Shuler by offering Charles Ray Jarrell five hundred dollars to kill Shuler, but acknowledged that no money was ever paid. The government also conceded that Shuler had severely abused Jarrell’s mother and sister (Shuler’s ex-wife), and that Jarrell had previously tried to kill Shuler, shortly before the actual murder, in retaliation for this abuse--a motive obviously unconnected with Chandler’s alleged marijuana activities. 996 F.2d at 1081-1082.
Appellant’s Motion to Vacate raised numerous claims which fall into five general categories. First, Appellant presented to the Court below a substantial body of newly discovered evidence, most important of which is the complete recantation of the trial testimony of Charles Ray Jarrell, the only witness to tie Chandler directly to the murder of Marlin Shuler, which was the basis for the Defendant’s conviction on Count III and the death sentence imposed thereon. Jarrell testified at trial that he killed Shuler for money promised by Chandler. (TT3-222-226; 4-58-59). He now swears that Chandler never offered him money to kill Shuler and that he actually killed Shuler in the midst of an argument about Shuler’s abuse, which argument occurred after the two of them had consumed more than twenty beers each. (R14-22-28). Second, the Defendant presented evidence below of numerous examples of intentional or negligent use by the prosecution of false or misleading testimony, both as to the murder and marijuana related charges, and as to sentencing. Third, the Defendant raised claims and presented evidence regarding the failure of the government to disclose to the defense important exculpatory information known to the government, contrary to its duties under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Fourth, the Defendant raised and was allowed to offer evidence regarding the ineffectiveness of his trial counsel, both as to the guilt/innocence and as to sentencing. Finally, the Defendant has raised various substantive legal challenges to the Defendant’s convictions and sentences, and the implementation thereof, including violations of the Supreme Court holding in Simmons v. South Carolina, 520 U.S. 154 (1994).
The Defendant raised claims and presented evidence below based upon substantial new information and evidence relevant to the Defendant’s guilt or innocence and/or as to his sentences which was not discovered by post-conviction counsel until long after the Defendant’s trial. This evidence is relevant to all of the first four legal claims summarized immediately above. Since this body of evidence generally relates to all four claims, it will be dealt with cumulatively in this section.
The significance of this newly discovered evidence can only be understood within the context of the original facts and circumstances upon which the government sought the Defendant’s convictions and sentence to death in his trial in 1991. As this Court summarized in its decision in United States v. Chandler, 996 F.2d at 1080-1082, there were essentially four evidentiary pillars upon which the government built its case for Chandler’s involvement in the murder of Shuler and for the imposition of the death penalty for that murder. (1) The government contended that "a slip of paper" that contained the words "Bill Broome" (a local attorney) and "copy of police report", which was found in a search of Chandler’s residence, provided compelling documentary proof of a motive for Chandler to kill Shuler, because a search warrant executed on the home of Donna Shuler, one of "Chandler’s dealers", had been based upon information provided by Shuler, who was represented by Bill Broome. (2) The government further relied upon the testimony of Raymond Pointer that he had been offered $5,000 by Chandler to kill Shuler. (3) The government was also allowed to present evidence that at "approximately the same time that Shuler was murdered", Chandler had made statements indicating that he would kill Patrick Burrows and Jeffrey McFry if they kept stealing his marijuana and that these two individuals later disappeared. (4) Finally, and most important, the government presented the testimony of Charles Ray Jarrell, the actual killer of Shuler, that his sole motivation for killing Shuler was because Chandler had allegedly offered him $500 to kill Shuler. This testimony of Jarrell, of course, was crucial to the conviction and sentence. As the District Court recognized in its Orders below, Jarrell’s testimony was "the centerpiece of the government’s evidence linking Chandler to the Shuler murder" (R7-457-9) and the jury "necessarily had to believe Jarrell in order to convict Chandler." (R9-493-41).
Subsequent to trial, newly discovered evidence was discovered by post-conviction counsel which undermines the evidence related to each of these four pillars of the government’s case. Indeed, virtually all of this critical evidence has either been recanted or convincingly disproved by newly discovered evidence.
A. Handwritten Note Found at Chandler Residence.
This piece of paper, sometimes referred to as the "Calvin Klein ad" because the notes were written on a mailed circular, was discovered by post-conviction counsel not to have been written by Mr. Chandler at all. In fact the notes on the paper were written in the handwriting of the Defendant’s wife, Deborah Chandler. More important, the words "Bill Broome" and "copy of police report" written on the piece of paper had nothing to do with Marlin Shuler. Instead, they related to Chandler’s young son, Randall Chandler, who had gotten into trouble with juvenile authorities and the efforts of the Chandlers to select an attorney Broome to handle the matter. Indeed, in addition to "Bill Broome", several other local attorneys names appear in the writing, as well as the name of Alma Turner, Randall Chandler’s juvenile probation officer. These circumstances were convincingly proven at the evidentiary hearing before the District Court by handwriting analysis (R12-37, 312) and by the testimony of Mrs. Chandler (R12-12-19) and Alma Turner (R12-29-36). Indeed, following the presentation of this evidence, the District Court assumed that the writing on the Calvin Klein ad had nothing to do with the search of Donna Shuler’s home. (R7-457-31-32).
B. Testimony of Raymond Pointer.
As this Court noted, Raymond Pointer gave dramatic and colorful testimony that Chandler showed him a brief case full of money and a gun and offered him $5000 to kill Shuler and $10,000 to kill the Chief of Police of Piedmont, Alabama. 996 F.2d at 1081 (TT4-74-83). This testimony, too, has been seriously brought into question by evidence discovered after the trial.
It was known at the time of trial that Pointer had given several inconsistent accounts of his alleged dealings with Chandler. Indeed, Pointer had recanted his original police statement to Mr. Chandler’s trial counsel prior to trial, stating that he had never been offered money by Chandler to kill Shuler but instead had been offered $100 by Donna Shuler to "run off" Shuler. (TT4-92-93;9-20, 9-159-160) (R13-346-350). But, then he proceeded to recant his recantation at trial and returned to his original statement implicating Chandler. The defense had no explanation for this behavior and no response to the prosecution’s closing argument: "Ask yourself why Raymond Pointer would make up a story like he told to begin with." (TT10-157).
It was not known by the defense at the time of trial that the inconsistencies in Pointer statements reflected something more than a wrong-doer likely trying to talk his way out of trouble. However, after the trial it was learned by the defense for the first time that Raymond Pointer had a long and documented history of mental illness, including a mental disorder that causes him to lie compulsively. Although trial counsel was unaware of Pointer’s illness because, as the District Court noted, "Pointer was not simply a habitual liar, but was also skilled at lying in a convincing manner," (R7-457-38-39), we now know that Pointer is seriously mentally ill and, quite literally, a pathological liar. This was proven not only through testimony of Pointer family members, but also through medical records.(R12-6; R13-281-282, 355-427-437; 447-463; 471-480; 481-492; Exhibits 10-21 to October 31, 1995 hearing). Indeed, Pointer told family members prior to trial that, contrary to his trial testimony, Donna Shuler, not Chandler, offered him money to kill Marlin Shuler, a woman named Kathy Jarrell and the Police Chief of Piedmont and even that he himself had killed Shuler. (R13-45, 460-461, 475, 483, 489).
C. The Burrows and McFry Disappearances.
Although Chandler was not charged with the deaths of Burrows and McFry, the government was permitted to present evidence suggesting that Chandler had caused the demise of these two individuals because they had been stealing marijuana from him. 996 F.2d at 1081-1082. This evidence, consisting of the testimony of Melissa McFry and Toby Barnwell, was admitted under Rule 404(b) of the Federal Rules of Evidence allegedly to support the government’s claims that Chandler intended to kill Shuler. It was also admitted as evidence in the sentencing hearing to support the aggravating factor of substantial planning and premeditation. 996 F.2d 1081-1082, 1089-1091. The evidence upon which the government based its claims regarding McFry and Burrows, however, has been seriously undermined by newly discovered evidence.
Melissa McFry testified at trial that Chandler had told her that Aif he caught [Jeff McFry] in his pot patch, he would kill him." (TT4-137). She now swears that this conversation never occurred. In fact, Chandler had never said anything threatening about Jeff McFry and she had given false testimony at Chandler’s trial due to coercion from the prosecution. (R11-12-23).
The other witness to testify about threats allegedly made by Chandler against McFry and Burrows was Toby Barnwell, who testified that Chandler had told him, in the presence of Barnwell’s father, Joe Barnwell, and Junior Shell, that Burrows was now dead and that McFry was going to be next. (TT4-151-152). Joe Barnwell and Junior Shell have now come forward after trial to state that this conversation never took place. (R6-438-32-34). Moreover, it is now known that Toby Barnwell revealed to his brother, at the time of his trial testimony, that the prosecutors had told Toby Barnwell that Ait would really look good about getting my sentence reduced if I could put something in about Burrows and McFry in my testimony." (R6-438-34-35).
Not only has this newly discovered evidence severely undermined the only two witnesses who claimed that Chandler threatened Burrows or McFry, but post-conviction counsel has also discovered substantial evidence indicating that individuals other than Chandler had powerful motives to harm Burrows and McFry and that these individuals are likely responsible for their disappearances. Indeed, post-conviction counsel was able to obtain testimony concerning the confession of Jimmy Steed to the murder of Patrick Burrows, including a surreptitiously recorded conversation with Steed in which he discussed the location of Burrows’ body. (R6-439). In fact, Burrows and McFry had amassed numerous enemies over the years and post-conviction counsel were able to present evidence, of which law enforcement involved in this case was aware, that these suspects had at least equally and often much more compelling and immediate reasons to do Burrows and McFry harm than did Chandler. (E.g.R14-490-129-139 (Testimony of Virgil Michael Bundum); R14-490-139-144 (Testimony of David Fortenberry); R6-438-61-62 (Proffered testimony of Jeff Roberts); R6-62 (Proffered evidence related to Eddie Paris); R6-438-62-63 (Proffered testimony of Randy Heard); R6-438-63 (Proffered Testimony of Frankie Lee Bonner )).
The District Court, nevertheless, discounted the importance of this new evidence regarding the real culprits in the disappearances of McFry and Burrows, claiming that this evidence was presented solely as 404(b) evidence of Chandler’s intent to kill Shuler and that it was "convinced that the jury would probably have returned the same verdict even if it believed that someone other than Chandler had killed Burrows (or McFry)." (R7-456-55; R9-493-41-42). The District Court ignored the fact that since Jarrell was the actual perpetrator of the Shuler killing, Chandler’s "intent" as it related to this murder was the dispositive issue in the case. After all, as the District Court otherwise had correctly observed, "The government’s theory at trial was that the three murders (Shuler, McFry and Burrows) were all actions taken by Chandler to protect his marijuana operation from interference." (R7-456-5, n. 2).
D. Testimony of Charles Ray Jarrell
The primary pillar in the government’s case, of course, was the testimony of Charles Ray Jarrell that Chandler had offered him $500 to kill Marlin Shuler, and that this offer, and this offer alone, was the reason that he had killed Shuler. 996 F.2d at 1081; (TT3-222-226; 4-58-59). As the District Court conceded, Jarrell’s testimony was "the centerpiece of the government’s evidence linking Chandler to the Shuler murder" (R7-457-9) and the jury "necessarily had to believe Jarrell in order to convict Chandler." (R9-473-41). Jarrell has now totally recanted his trial testimony concerning his motivation for killing Shuler, despite the fact that in doing so he risks losing his plea bargain and sentence of 25 years for both his marijuana related activities and the death of Marlin Shuler and subjects himself to a potential state or federal prosecution for the murder of Shuler.
After trial, Jarrell, on his own, contacted post-conviction counsel and admitted that he had lied at Chandler’s trial with regard to the death of Shuler. (R14-82-83). In fact, Jarrell had killed Shuler in an impulsive act after he and Shuler had each consumed almost a case of beer. The shooting had been triggered by a remark made by Shuler dismissing his responsibility for his abuse of Jarrell’s sister and mother, which abuse included, among countless other incidents which are set out at (R6-438-15-21 and attached affidavits of Imogene Johnson, Donna Shuler, Sherry Simpson, Randy Heard and Frankie Lee Bonner), the rape of Jarrell’s sister in front of his mother, the physical assault of Jarrell’s mother while she was immobilized in two full length leg casts, and numerous other beatings. (R14-21-31). Jarrell’s killing of Shuler was not, in fact, the cold-blooded act of a person operating on the orders of Chandler to dispose of a threat to Chandler’s marijuana enterprise, as the government contended at trial. Rather, Jarrell shot Shuler in the midst of an argument relating to Shuler’s abusiveness, in much the same way he had previously attempted to shoot Shuler only a few weeks earlier. 996 F.2d 1082. This prior attempt to kill Shuler, was, of course, totally unrelated to Chandler. (R-14-55-56, 15-277-278; TT4-40; 8-109-112).
Following Jarrell’s recantation, post-conviction counsel discovered substantial additional evidence strongly corroborating Jarrell’s current statement. Numerous family members of Jarrell came forward to testify that Jarrell had told them, at or about the time of his trial testimony, that Chandler had had nothing to do with the murder of Shuler, but that he had to implicate Chandler to save himself and his son. (R14-93-108; Deposition of Inez McDonald, pp. 5-14). Similar testimony, was discovered from inmates who were in jail with Jarrell at the time of his trial testimony. (R14-108-153; R15-373-378; Deposition of Joe Barnett, pp. 5-17). Finally, and perhaps even most important, when the District Court finally ordered an evidentiary hearing regarding the Jarrell recantation issue, the government disclosed to the defense, for the first time, notes of AUSA Davis during the early stages of the investigation which also corroborate that the shooting of Shuler was in the context of an argument, rather than at the behest of Chandler, as Jarrell originally testified. These notes describe an interview with Jarrell at which Jarrell recounted Shuler’s abusiveness and stated that he and Shuler had gone drinking and were drunk when Shuler "called him something and he (Jarrell) shot him." (Defendant’s Exhibit 6 to February, 1997 Evidentiary Hearing, Tab 11 to the Record Excerpts). (R14-154, 275-286).
E. Testimony of Billy Jo Jarrell
Billy Jo Jarrell, Charles Ray Jarrell’s son, was not called as a government witness at trial, but was called by the defense, because instead of corroborating Charles Ray Jarrell’s testimony, Billy Jo Jarrell’s testimony contradicted Charles Ray Jarrell’s testimony on many important points. (TT8-131). For example, Billy Jo Jarrell stated that Chandler had offered his father $5,000 to kill Marlin Shuler, while Charles Ray Jarrell said it was only $500, and Billy Jo Jarrell stated that the money had actually been paid to his father, who had purchased some vehicles with the money, while Charles Ray Jarrell testified that the money had never been paid. (TT8-137-138). Nevertheless, the government argued at trial that this testimony was corroborating evidence of Charles Ray Jarrell’s testimony that he killed Shuler at Chandler’s behest. (TT10-96, 10-164, 12-66). Moreover, the District Court in these proceedings has also pointed to Billy Jo Jarrell’s trial testimony as important testimony corroborating Charles Ray Jarrell’s trial account. (E.g. R7-457-47; R9-493-41).)
Billy Jo Jarrell after trial recanted his trial testimony and disclosed to post-conviction counsel that his trial testimony, which essentially tracked a police statement he had given, was a story that he made up in response to intense interrogation tactics in order to avoid prosecution of himself. (R-11-71-75, 81). Indeed, Billy Jo Jarrell’s statement that Chandler paid his father $5,000 to kill Shuler was in part the result of a telephone call from Billy Jo Jarrell’s mother arranged and monitored by law enforcement in which his mother was told to tell Billy Jo Jarrell that he would "fry in the electric chair", if he did not "cooperate" with the officers and tell them what they wanted to hear. (R6-27-28). The District Court noted in considering Billy Jo Jarrell’s recantation that given the number of stories that Billy Jo Jarrell had given over the years and his own characterization of himself as a "liar", it is impossible to know whether anything that Billy Jo Jarrell has ever stated regarding the Shuler murder, including his trial testimony, is the truth. (R3-384-9-10, n.12 ).
2. Ineffectiveness of Trial Counsel at Sentencing.
The District Court held a two day hearing at which evidence was received regarding the constitutional effectiveness of trial counsel at the Defendant’s sentencing. (R12, 13). As this Court noted in its opinion during the direct appeal, the total mitigation case presented on behalf of the Defendant during the sentencing phase consisted of a stipulation that Chandler had no prior convictions, a stipulation that the state murder charges against Jarrell and Jarrell’s son in connection with the Shuler murder had been dismissed, and the brief testimony of Chandler’s mother and wife. 996 F.2d at 1082. The entire mitigation case presented by the defense consists of only sixteen pages of transcript (R13-29-45) and lasted no more than twenty minutes.
Trial counsel was examined as to why nothing more was presented on the Defendant’s behalf on the issue of sentence. Counsel conceded that both prior to trial and during trial up until the guilty verdict was read on the afternoon of April 2, 1991 (TT11-22), he had done "basically not anything explicit" or Avery little" to prepare for a sentencing hearing. (R13-331, 339, 395). All of his preparation had been devoted to the guilt/innocence phase of the trial and "you do what’s coming up first and you do what’s immediately on you." (R13-395). Moreover, trial counsel believed that, because Jarrell had previously attempted to kill Shuler for his own purposes, the murder case was "the weakest part of the case" and his client would likely be acquitted on the murder charge. Counsel further believed that the death penalty was even more unlikely. (R13-326, 360-361, 400-401).
Accordingly, all trial counsel did to prepare a mitigation case was to ask the Defendant’s wife at approximately 2:30 p.m. (less than an hour after the guilty verdict) on the afternoon prior to the date of the sentencing hearing, which was scheduled for the following day at 9:00 a.m., to try "to get somebody to stand up for Ronnie tomorrow." (R12-20; R13-363, 366, 371, 418, 420). Mrs. Chandler, who had an approximate three hour drive home ahead of her (R13-366, 419), and who was understandably "numb" and "just couldn’t seem to function right" after just witnessing her husband’s conviction for murder (R13-418, 419), was obviously unable to locate on such short notice the types of witnesses necessary to present a "life profile" of Chandler or to describe the type of person that he is and has been. Therefore, the only mitigation witnesses that were presented at the sentencing hearing were the Defendant’s wife and mother, whose total testimony was nothing more than a rudimentary biographical sketch of the Defendant, consisting of only twelve pages of transcript and lasting no more than fifteen minutes. (TT13-33-45). Even these witnesses were not prepared for their testimony by trial counsel until he spent only a few moments with them just prior to the sentencing hearing itself, which began on the morning of April 3, 1991.(R13-372).
If trial counsel had made the most rudimentary of mitigation investigation, he would have located numerous witnesses in the community where Chandler grew up and lived who would have testified that Chandler’s life could not be defined and summed up solely by the evidence presented by the government as to his marijuana related activities, but that Chandler was in fact a compassionate, generous, and caring person who loved to help others; that he was not only non-violent, but extremely forgiving and an active peacemaker; that he had a cheerful, optimistic and encouraging personality--someone who would get you through hard times and make you laugh if you were down; that he was fair, honest and respectful of others; that he was a skilled carpenter, brickmason and contractor, who was not only hardworking himself, but also encouraged others to work hard; that he loved to teach others the skills that he knew; that he was a good family man who was extremely supportive of his own and other children in the community, particularly those who did not have a father; that he was kind and respectful to the elderly; and that he was religious, involved in religious activities, charitable and patriotic. (R12-42-250; R13-251-278).
In addition, witnesses were available who could testify that Chandler’s life was peculiarly distinguished by numerous examples of his unsolicited generosity to others, without expecting anything in return, and kind-hearted encouragement of others when they were in difficult times, including providing food, shelter, clothing, money and work to those suffering hard times, encouraging and uplifting people in times of personal crisis, and remarkable acts of unsolicited kindness, such as building a porch for a disabled person so that he could get in and out of his house, while never being asked and without ever asking or expecting anything in return. This testimony of witnesses who were available, but not called to Chandler’s sentencing hearing because trial counsel failed to conduct any type of meaningful mitigation investigation, was presented during one day of testimony and consumes only a little over two hundred pages. (R12-42-250; R13-251-278). A more detailed description of this testimony is included in the Argument section, but for the Court to get the true flavor of the extraordinary and remarkable nature of this testimony it need read only these approximate two hundred pages.
The defense requested at trial that the District Court inform the jury of the sentence which would be imposed, i.e. life without parole, if the Defendant was not sentenced to death. (OCR-220-No. A-12). The Trial Court refused to give this instruction, to which the defense excepted. (TT12-93-94). Instead, the District Court instructed the jury that they should "not be concerned with the question of what sentence the Defendant might receive in the event you determine not to recommend the death sentence." (TT12-85).
Both during the guilt/innocence phase of the trial and during the sentencing phase of the trial, the government presented evidence and made numerous impassioned arguments directed at convincing the jury that Chandler was a "thoroughly dangerous man" (TT12-57), whose conviction and sentence to death was necessary as a matter of "self-defense." (TT12-75). Specific references to the nature of the evidence presented by the government and the extreme arguments made in support of its future dangerousness contentions are included in the Argument. These facts and circumstances violated the Supreme Court decision in Simmons v. South Carolina, 520 U.S. 154 (1994).
At the time that Chandler was convicted and sentenced to death in April of 1991, Congress had not provided for any method of executing this sentence. 21 U.S.C. § 848(e), enacted in 1987, is totally silent as to a means of execution. Congress has since not legislated a means to execute the Defendant’s sentence of death. The Violent Crime Control and Law Enforcement Act of 1994 (H.R. Rep. No. 711, 103rd Cong.2d Sess. 1994) (18 U.S.C. § 3596 et. seq.) by its terms applies only to persons "sentenced to death pursuant to this Chapter, (Chapter 28 of Title 18)", an entirely new chapter created by the 1994 Act, and not to the Defendants § 848(e) conviction.
Because Congress did not provide for any means of executing a death sentence when it enacted § 848(e) in 1987, the Justice Department, on January 19, 1993, promulgated 28 C.F.R. §§ 26.1-26.5 (the "Regulations"), which purport to specify procedures by which Defendant’s sentence may be implemented, specifically lethal injection. The government has submitted a Proposed Judgment and Order for execution of the death sentence in this case pursuant to the Regulations. (OCR-321). The District Court has indicated its intention to execute such an order. (OCR-320; R7-457-98-104).
C. STATEMENT OF THE STANDARDS OF REVIEW.
I. Newly Discovered Evidence.
Whether the District Court properly formulated and applied the correct standard for judging whether newly discovered evidence requires a new trial under Rule 33 is a question of law about which this Court has plenary review. This Court reviews a district court’s denial of Rule 33 relief when the district court has used the correct standard under an abuse of discretion standard of review. United States v. Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995); United States v. Gates, 10 F.3d 765, 767-68 (11th Cir. 1993).
II. Giglio violations.
The standard of review is whether the prosecutor’s failure to correct false evidence may have had an effect on the outcome of the trial. United States v. Lopez, 985 F.2d 520, 523 (11th Cir. 1993).
III. Brady violations.
A district court’s conclusion that no Brady violation occurred is subject to de novo review. United States v. Mejia, 82 F.3d 1032, 1036 (11th Cir. 1996).
IV. Ineffectiveness of counsel at Sentencing.
Ineffectiveness of counsel claims, both as to performance and prejudice, are mixed questions of law and fact for which appellate review is plenary. Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
V. Simmons Claims.
The standard of review is whether or not the District Court correctly formulated and applied the applicable law in determining if a constitutional violation occurred, and, if the Defendant’s constitutional rights were violated, whether such error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967).
VI. The Means of Execution.
The Defendant’s claims raise issues of law about which the Court’s standard of review is plenary.
I. NEWLY DISCOVERED EVIDENCE.
Substantial newly discovered evidence of the Defendant’s innocence was discovered after trial by post-conviction counsel, including the total and unequivocal recantation of Charles Ray Jarrell, the sole witness directly implicating Chandler in the death of Marlin Shuler, a witness whose testimony the District Court held the jury "necessarily had to believe...in order to convict Chandler." (R9-493-41). Jarrell’s current testimony is supported by, among other circumstances, statements made by Jarrell to the prosecution prior to trial that his shooting of Shuler immediately followed "words" that he had with Shuler while both of them were excessively inebriated, which statements were never revealed to the defense or the jury. Instead, Jarrell testified for the government that he killed Shuler solely at the behest of the Defendant and without any immediate provocation.
This newly discovered evidence, along with other important newly discovered evidence, seriously undermines the evidence upon which this jury based its verdicts for conviction and death. The evidence requires a new trial and sentencing, if necessary, under Rule 33 of the Federal Rules of Evidence, but the District Court denied Rule 33 relief by not applying the correct Rule 33 standard in this Circuit. This evidence also requires a new trial and sentencing, if necessary, due to violations of the Due Process Clause, because of the government’s intentional presentation of false or misleading testimony and its suppression of material evidence favorable to the defense. Finally, this new evidence reveals that trial counsel was constitutionally ineffective.
II. INEFFECTIVENESS OF COUNSEL AT SENTENCING.
Trial counsel’s representation at sentencing was deficient, because he totally failed to do any mitigation investigation until after the Defendant was convicted. The Defendant was substantially prejudiced by this deficient performance, because if only the most rudimentary of mitigation investigation had occurred, trial counsel would have been able to locate and call as mitigation witnesses numerous substantial members of the community who would have testified to the Defendant’s good character and extraordinary instances of good deeds performed by the Defendant over his life time. The failure to present this evidence denied the Defendant an individualized sentencing based upon his character, background and crime and resulted in an unreliable sentencing determination in which the Court can have no confidence. Accordingly, a new sentencing hearing should be ordered.
III. SIMMONS VIOLATION.
The prosecution argued for the death penalty in this case in part because of the claimed future dangerousness of the Defendant. Given this argument, the defense asked for an instruction that should the jury not sentence the Defendant to death he would then be sentenced to life without parole. The District Court refused this request, to which the defense excepted. The refusal to give the instruction concerning the alternative sentence to death in the circumstances of this case violated the holding in Simmons v. South Carolina, 520 U.S. 154 (1994).
IV. THE MEANS OF EXECUTION.
In passing 21 U.S.C. § 848(e), Congress authorized the death penalty but did not provide for a method of execution. This defect in § 848(e) cannot be corrected by Justice Department Regulations. Congress did not authorized the Justice Department to provide for such regulations and even if it had it would be an unconstitutional delegation of congressional authority. The Regulations also violate the Administrative Procedures Act and the Bill of Attainder and Ex Post Facto prohibitions of Article I, Section 9 of the Constitution.
A. THE DIFFERENT STANDARDS FOR RELIEF.
In the proceedings below, the Defendant raised numerous claims based upon substantial new information and evidence relevant to the Defendant’s guilt or innocence and as to sentence which was first discovered by post-conviction counsel long after the Defendant’s trial, including most significantly the total, unconditional and consistent recantation of the trial testimony of the only witness directly tying Chandler to the death of Shuler. This information supported four distinct types of claims for relief.
First, to the extent that the Defendant could show that the prosecution knowingly presented false or substantially misleading testimony leading to the Defendant’s convictions and sentence, the Defendant was entitled to have his convictions and sentences set aside under the Due Process Clause, based upon a long line of cases, beginning with Mooney v. Holohan, 294 U.S. 103 (1935) and including cases such as Pyle v. Kansas, 317 U.S. 213 (1942), Napue v. Illinois, 360 U.S. 264 (1959) and Giglio v. United States, 405 U.S. 150 (1972). See United States v. Agurs, 427 U.S. 97, 103 (1976). Under these claims, referred to by the District Court as Giglio claims (e.g. R7-456-3), the Defendant’s convictions and sentence must be set aside "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. at 103.
Second, this newly discovered evidence also supported claims of violations of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, due to the failure of the government to disclose to the defense at the time of trial evidence favorable to the Defendant both as to guilt/innocence and as to sentencing, which was known to the prosecutors or "to the others acting on the government’s behalf in the case, including the police." Kyles v. Whitley, ___ U.S. ____, 115 S.Ct. 1555, 1567 (1995). In this situation, the Supreme Court has borrowed the prejudice standard for ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668, 694 (1984), for determining when relief is required. The failure to disclose Brady-type material requires a new trial either as to guilt/innocence or as to sentence "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985); Kyles v. Whitley, 115 S.Ct. at 1566. The Supreme Court has defined the "reasonable probability" required as "a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 678; Kyles, 115 S.Ct. at 1566.
Third, to the extent that this newly discovered evidence should have actually been discovered and presented by trial counsel, it supports a claim for relief due to ineffective assistance of trial counsel under Strickland v. Washington, 466 U.S. 668 (1984). The prejudice standard is the same as for a Brady violation. Id. at 694.
Finally, the information and evidence discovered by the defense after trial also supported the granting of a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, which authorizes the District Court to grant a new trial "in the interest of justice" based upon newly discovered evidence. This Court has repeatedly asserted a five-part test for determining when a new trial or sentencing is required due to newly discovered evidence. In order to prevail under Rule 33, a defendant must show that A(1) the evidence was in fact discovered after trial; (2) the defendant exercised due care to discover the evidence; (3) the evidence was not merely cumulative or impeaching; (4) the evidence was material; and (5) the evidence was of such a nature that a new trial would probably produce a different result." United States v. Lee, 68 F.3d 1267, 1273 (11th Cir. 1995).
Although there are similar components in each test, the standards for judging Giglio, Brady, Rule 33 and ineffective assistance of counsel claims are also significantly different. Unfortunately, however, the District Court did not rigorously distinguish these standards in judging whether or not the evidence presented by the defense supported relief under each separate framework and, hence, failed to apply the standards correctly. This failure to distinguish the different standards depending upon the claim raised was especially egregious in connection with the Defendant’s Rule 33 claims.
The five-part test for judging a Rule 33 violation which has been adopted by this circuit is known as the Berry test and is derived from the decision of the Georgia Supreme Court in Berry v. State, 10 Ga. 511, 527 (1851). See, United States v. Freeman, 77 F.3d 812, 816 (5th Cir. 1996); Annotation, Recantation of Testimony of Witness as Grounds for New Trial-Federal Criminal Cases, 94 ALR Fed 60, 64-66. The Berry test has a strict standard of prejudice, i.e. the newly discovered evidence must be "of such a nature that a new trial would probably produce a different result," but does not require that the defendant convince the District Court of the "truth" of the newly discovered evidence or, when the newly discovered evidence is recanted testimony, that the recanted testimony is more likely the truth than was the trial testimony. All that a defendant need show is that a jury hearing all the evidence, including all the newly discovered recanted testimony, would "probably" have reached a different verdict, either as to guilt/innocence or sentence. At the guilt phase, the question is: Would the newly discovered evidence probably have created a reasonable doubt in the jurors’ minds that was not there before. At the penalty phase, the question is: Would the newly discovered evidence probably have tipped the balance between aggravating and mitigating factors. In neither case is the defendant required to persuade the District Court that the newly discovered evidence is, in fact, true or that recanted testimony is more likely true than the trial testimony.
The Berry test has been distinguished from the so-called Larrison test, established in Larrison v. United States, 24 F.2d 82 (7th Cir. 1928), which is employed by some other circuits. 94 ALR Fed. 60, 66-67. Under the Larrison test, if the Court finds that trial testimony was in fact perjury based upon newly discovered evidence, then a new trial is required when that testimony "might" have affected the result. Therefore, under the Larrison test, the defendant gets the benefit of a lower standard of prejudice, similar to the Giglio standard of prejudice, when the Court makes an affirmative finding that the trial testimony was perjurious, i.e. the newly discovered evidence must only "might" have affected the result. If the Court considering the newly discovered evidence does not make this finding, then the stricter standard of the Berry test, i.e. the newly discovered evidence "would probably produce a different result", applies. See United States v. Johnsons, 142 F.2d 588, 591-592 (7th Cir. 1944); United States v. Hiss, 107 F.Supp. 128, 136 (S.D.N.Y 1952); United States v. Jackson, 579 F.2d 533, 556-557 (10th Cir. 1978). Thus, even under the Larrison test, which has never been specifically adopted in this Circuit, if the Court does not find that the trial testimony was perjury due to the newly discovered evidence, it does not end the process. Instead, the Court should then turn to see if the newly discovered evidence satisfies the stricter standard of Berry.
C. THE DISTRICT COURT’S FAILURE TO APPLY THE BERRY STANDARD
Although in its December 17, 1996 Order the District Court correctly cited the five-part Berry test utilized in this Circuit for judging a Rule 33 claim (R7-456-48), inexplicably it failed to apply this standard. Instead of determining whether the newly discovered evidence (which otherwise satisfied the first four prongs of the Berry test) as a whole was of "such a nature" that it would "probably produce a different result", either as to guilt/innocence or as to sentence, the Berry standard applicable in this Circuit, the District Court denied Rule 33 relief because of its conclusion that it personally did not believe each particular item of newly discovered evidence, apparently applying its own version of the Larrison standard, which is not even the test in this Circuit. Moreover, the District Court compounded this error by considering each piece of newly discovered evidence in isolation and never judged the cumulative impact of all of the newly discovered evidence on the jury’s verdicts.
1. Charles Ray Jarrell’s Recantation.
With regard to the recanted testimony of Charles Ray Jarrell, the District Court stated that it was required to "assess the credibility of the various witnesses who testified, particularly Charles Ray Jarrell" (R9-493-15). Then, the District Court determined, based upon its view of the evidence, that "Jarrell manipulates his account of events to suit his then-present motives", which "speaks poorly about the credibility of his testimony at the hearing." (R9-493-19-20). As a result, the District Court concluded that the Defendant had "failed to carry his burden of showing that Jarrell’s trial testimony was false." (R9-493-31-32). This analysis was obviously error. Instead of applying the Berry test of this Circuit, the District Court applied its own version of the Larrison test, which requires a defendant to prove that the trial testimony was false. Under the proper test, the defendant need only show that the newly discovered evidence would result in a different verdict.
This failure to apply the correct Rule 33 standard was especially egregious with regard to the testimony of Charles Ray Jarrell, which the District Court conceded was "the centerpiece of the government’s evidence linking Chandler to the Shuler murder" (R7-457-9). The District Court acknowledged that the jury "necessarily had to believe Jarrell in order to convict Chandler." (R9-493-41). Now that Jarrell has totally recanted that testimony, an obvious reasonable doubt about his trial testimony exists which did not exist before, making probable a different result, and, therefore, requiring a new trial when the Berry standard is properly applied. This failure of the District Court rigorously to apply the correct standard in judging the Defendant’s Rule 33 claims alone requires reversal of the District Court’s rulings on these claims.
2. Billy Jo Jarrell’s Recantation.
This same error was made regarding the District Court’s evaluation of Billy Jo Jarrell’s recantation. The District Court stated that "it would be virtually impossible to be sure which of [Billy Jo] Jarrell’s testimony or statements were truthful, partially truthful or totally false." (R3-384-10, n. 12). As a result, the District Court then concluded: "Chandler has failed to prove that Billy Jo’s trial testimony was false. It follows that [the Rule 33 claim] must be denied." (R7-456-52-53). Of course, as discussed above, this ruling is an obvious misapplication of the Berry standard. If in fact, based upon the newly discovered evidence, there is no way to know when Billy Jo Jarrell is telling the truth, this circumstance should be weighed along with all the other newly discovered evidence in deciding whether a different result in the trial is probable.
3. Melissa McFry’s Recantation.
The identical error was, also, committed regarding the Melissa McFry recantation evidence where, again, the District Court opined: "Chandler has failed to prove that Melissa McFry’s trial testimony was false. That finding of fact disposes of this [Rule 33] claim." (R7-456-49). This finding is, again, an incorrect application of the Berry rule.
4. Pointer’s Mental Problems.
Regarding Pointer, the District Court conceded that the defense witnesses proved not only that Pointer is a habitual liar, but further, that because Pointer was so skilled at lying, Chandler’s attorney would not have been able to discover his history of pathological lying prior to trial. (R7-457-38-39). Accordingly, this evidence is clearly "newly discovered." Nevertheless, the District Court dismissed the newly discovered evidence concerning Pointer under the prejudice prong stating: "Raymond Pointer’s propensity for lying would have been completely irrelevant at Chandler’s trial, except to impeach Pointer’s testimony. Because newly discovered evidence cannot warrant a new trial when the evidence is pertinent only for impeachment, [this claim] fails as a matter of law." R7-456-52).
This conclusion also misapplied the Berry standard. Although under Berry if the only newly discovered evidence is impeaching evidence a new trial is not required, the Berry standard nevertheless mandates that all newly discovered evidence, both substantive evidence of innocence and impeaching evidence, be considered in determining the likelihood that the newly discovered evidence will result in a different result. Impeaching evidence standing alone cannot justify a new trial, but impeaching evidence in combination with substantive evidence of innocence can. Moreover, this consideration of the newly discovered evidence regarding Pointer in isolation, and not in combination with other newly discovered evidence, was particularly inappropriate here given that the District Court and this Circuit have both stressed the importance of Pointer’s testimony as significant corroboration of Charles Ray Jarrell’s trial testimony in other contexts. (R7-457-8-9, 30, 35, 47, 56); United States v. Chandler, 996 F.2d at 1081-1105. When this "corroboration" is undermined, then the prosecution’s case for conviction and death further collapses.
5. The Calvin Klein Ad.
It is now clear that the writing on the Calvin Klein ad, which the government contended at trial proved Chandler’s motive to cause Jarrell to kill Shuler (TT10-87), in fact had nothing to do with Shuler but instead related to juvenile court problems of Mr. Chandler’s son. See pp. 8 infra. The Defendant claimed that the failure of trial counsel to investigate the writing on this paper and to present the evidence showing its innocent circumstances constituted ineffective assistance of counsel. (R3-403-73-74). Chandler persists in this position.
The District Court, however, held that counsel’s performance could not be deficient, because "[i]t is ludicrous to suggest that counsel was constitutionally inadequate for failing to divine the government’s intentions regarding the advertisement and prepare accordingly." (R7-457-32, n. 13). If so, then this evidence qualifies as newly discovered evidence, which could not have reasonably been discovered prior to trial by due diligence. Under the Berry rule it should, therefore, be considered along with all the other newly discovered evidence in determining the probability of a different result at a new trial. Given the importance that was attached to this evidence at trial (TT10-87), 996 F.2d at 1081, the revelation that the Calvin Klein Ad had nothing to do with Shuler’s death, when combined with other newly discovered evidence, requires a finding that different verdicts as to guilt/innocence and sentence are likely.
6. Cumulative Prejudice.
Under the Berry standard prejudice from an individual item of newly discovered evidence is not to be judged in isolation, but in combination with all other newly discovered evidence presented. Here, the Court considered and dismissed virtually every item of newly discovered evidence in isolation, without considering the combined impact of all of this evidence under the Berry prejudice test. This legal error independently warrants reversal. See, e.g., United States v. Draper, 762 F.2d 81, 82-83 (10th Cir. 1985) (New trial granted based upon total effect of recantation of several witnesses); United States v. Overton, 421 F.2d 277, 278-279 (5th Cir. 1969)(Court considered impact of newly discovered evidence from six different witnesses).
D. THE WEAKNESSES IN THE CASE FOR CONVICTION AND DEATH.
In assessing the power of the newly discovered evidence and the likelihood that it would result in another verdict, it must be remembered that the government’s case at trial was itself weak. Charles Ray Jarrell had given several conflicting accounts of the murder of Shuler. He first denied any knowledge whatsoever concerning the murder. (Exhibits 1 and 2 at February, 1997 hearing). He later said that the shooting was an accident, while at the same time saying in the same statement that Chandler had offered him $500 to kill Shuler. (Exhibit 3 at February, 1997 hearing). He then testified at trial that the shooting was not an accident at all, but that he had done it solely for $500 promised by Chandler. (TT4-58-59). Jarrell was cross-examined not only about these inconsistent statements, but also about the fact that Shuler had abused his sister and mother and had previously tried to kill Shuler for reasons totally unrelated to Chandler. (TT4-40-44; 8-109-112). Moreover, Jarrell conceded that he was excessively inebriated at the time of the killing of Shuler, having consumed close to a case of beer that day, and at the time of his arrest and interrogation was also suffering from the effects of a rattlesnake bite, which brought into even greater doubt the reliability of his trial testimony. (TT3-226; 4-13-23; 8-142). Finally, Jarrell conceded at trial that as a result of his placing the blame for the Shuler murder on Chandler, the government had agreed to a favorable plea disposition for himself and in exchange for his locating the body of Shuler had further agreed not to prosecute his son, Billy Jo Jarrell. (TT3-245-247; 8-116-118). Therefore, there were numerous reasons to question the trial testimony of Jarrell, even without the newly discovered evidence.
Far from corroborating the testimony of his father, the testimony of Billy Jo Jarrell which was heard by the trial jury actually further weakened the prosecution’s case. Indeed, it was the defense, not the prosecution, who called Billy Jo Jarrell as a witness (TT8-131), a decision by trial counsel which the District Court endorsed. (R7-457-36). Billy Jo Jarrell contradicted his father on several important details, including the amount of the money allegedly offered by Chandler, $5,000 dollars as opposed to $500, and whether or not the money was even paid--Charles Ray Jarrell stated that he was never paid while Billy Jo Jarrell testified that his father received $5,000 and actually purchased some vehicles with the money. (TT4-12; TT8-137-138, Government Exhibit 1 at November 1995 hearing, document 6D). The account of Billy Jo Jarrell, therefore, raised even greater doubts as to the testimony of Charles Ray Jarrell and further raised the specter that all of the trial accounts were made up, apparently to protect Charles Ray Jarrell and Billy Jo Jarrell, by placing the blame on Chandler.
The only other "corroborating" witness of Charles Ray Jarrell’s trial account with regard to the Marlin Shuler murder was Raymond Pointer, who claimed that Chandler had also offered him not only $5,000 to kill Marlin Shuler, but also $10,000 to kill the Police Chief and $5,000 to kill a woman named Kathy Jarrell. (TT4-74-83). Not only does Pointer’s testimony not ring true because it is told in such colorful detail, but in addition he told counsel for the Defendant prior to trial that Chandler had never offered him any money to kill Marlin Shuler and that the whole story he had told the police was made up. In fact, according to what Pointer told trial counsel, Donna Shuler had offered Pointer $100 to "run off" Shuler. (TT9-55-56, 66, 67, 70; R13-349).
So, the government’s trial evidence, upon which Chandler’s conviction for the murder of Shuler and subsequent death sentence was based, already had substantial problems. It was far from an open and shut case. All of the witnesses told conflicting stories and had given numerous prior inconsistent statements. Both Jarrell and Pointer had admitted that they had previously lied about the relevant facts. Charles Ray Jarrell and Billy Jo Jarrell were impeached based upon inducements offered by the government for their testimony. Finally, and perhaps most important, Jarrell had conceded that he had previously tried to kill Shuler, within only a few weeks of actually killing him, for reasons totally unrelated to Chandler.
E. A NEW TRIAL SHOULD BE ORDERED UNDER RULE 33.
1. The Count III Murder Charge and the Count V Gun Charge.
While concededly a District Court "should use ‘great caution’ in granting a new trial motion based on newly discovered evidence," United States v. Garcia , 13 F.3d 1464, 1472 (11th Cir. 1994) (quoting United States v. Johnson, 713 F.2d 654, 661 (11th Cir. 1993), Rule 33 places an obligation upon the Courts "in the interest of justice" to Abe sensitive to any evidence that might show the original trial resulted in a miscarriage of justice and weigh it carefully against the interest in finality and adherence to procedural requirements." United States v. Overton, 421 F.2d 277, 278 (5th Cir. 1969).2 Where, as here, the newly discovered evidence is so pervasive and goes to the very heart of the conviction and sentence, i.e. refutes the only evidence tying the Defendant to the murder of Shuler and the Count V gun conviction3 or at least creates an obvious reasonable doubt about that evidence, the Court has an obligation under Rule 33 to grant a new trial. Ledet v. United States, 297 F.2d 737, 739 (5th Cir. 1960) (The former Fifth Circuit reversed the District Court’s denial of a motion for new trial where the sole witness implicating the defendant in the possession of heroin recanted his trial account that the heroin was possessed by the defendant not himself.); Newsom v. United States, 311 F.2d 74, 78-79 (5th Cir. 1962) (Denial of a motion for new trial based on newly discovered evidence reversed where a co-defendant in a marijuana possession case admitted after trial that the defendant had no knowledge of the marijuana involved. The government’s case included inculpatory testimony from a "special employee" working undercover for the government. The former Fifth Circuit held that "[a]nother jury may reasonably find (the co-defendant’s) testimony sufficiently credible to raise reasonable doubt as to the truth and meaning of testimony of the special employee, and hence of the defendant’s guilt, or it may not so find. Every practical precaution should be taken to insure that the verdict really speaks the truth, for if it does not an innocent man may be in prison for years."); Martin v. United States, 17 F.2d 973, 976 (5th Cir. 1927) ("In our opinion it is the duty of a trial court to grant a new trial, where a witness at the original trial subsequently admits on oath that he committed perjury, or even that he was mistaken in his testimony, provided that such testimony related to a material issue, and was not merely cumulative....There is no way for a court to determine that the perjured testimony did not have controlling weight with the jury, and, notwithstanding the perjured testimony was contradicted at the trial, a new light is thrown on it by the admission that it was false; so that, on a new trial, there would be a strong circumstance in favor of the losing party that did not exist, and therefore could not have been shown, at the time of the original trial.").
This case does not involve a Rule 33 claim based solely upon newly discovered evidence or recanted testimony that was either (1) of marginal value because of other compelling evidence of guilt or (2) subsequently retracted by the recanting witness, as in the cases cited by the District Court (R7-456-48), where this Court has understandably refused to reverse a District Court’s denial of Rule 33 relief. E.g., United States v. Lee, 68 F.2d at 274 (recanting testimony was cumulative and other evidence tied the defendant to the crime); United States v. Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995) (Newly discovered evidence merely involved impeaching information as to only one predicate act in a RICO prosecution.); United States v. Garcia, 13 F.3d 1464, 1472 (11th Cir. 1994) (Newly discovered evidence involved merely impeaching evidence as to a non-critical witness); United States v. Santiago, 837 F.2d 1545, 1550 (11th Cir. 1988) (recanting witness retracted recantation); United States v. Champion, 813 F.2d 1154, 1170 (11th Cir. 1987)(Newly discovered evidence would have merely further impugned the credibility of an already impeached witness.); United States v. Smith, 433 F.2d 149, 150 (5th Cir. 1970)(Recanting witness had "recanted his recantation.").
Here, as described above, the government’s case for conviction on Count III and Count V and for the sentence of death was itself weak, based upon unreliable witnesses who had given conflicting and inconsistent accounts and who had substantial motives to lie. Moreover, the case was based virtually exclusively upon the testimony of Charles Ray Jarrell. Without his testimony, no conviction could have occurred, much less a death sentence. (R7-457-9; R9-493-41). Now, Jarrell fully recants that testimony and has in no way retracted that recantation, although the recantation places him in personal peril by exposing him to renunciation by the government of his 25 year plea bargain and prosecution for murder by state and federal authorities. Moreover, other newly discovered evidence, such as the recantations of Billy Jo Jarrell and Melissa McFry, the newly discovered evidence regarding the mental problems of Raymond Pointer, the newly discovered evidence regarding the Calvin Klein ad, and the newly discovered evidence regarding other suspects in the McFry and Burrows disappearances, which was admitted at trial to prove Chandler’s intent in connection with the Shuler murder, further undermines the government’s case.
The recanted evidence has not itself been retracted and goes to the very heart of the prosecution. There is no other evidence upon which a conviction beyond a reasonable doubt could have been based. Each of the four pillars of the government’s case for conviction (see Statement of the Facts, pp. 8-13) has been undermined by newly discovered evidence. This is, therefore, one of the unique and compelling cases where, whatever the District Court thinks is the ultimate "truth" of the case, the newly discovered evidence would probably cause another jury to have a reasonable doubt as to the Defendant’s guilt. Even greater doubt is raised as to the sentence of death. See, United States v. Lee, 68 F.3d at 1274 n. 7 (This Court emphasized that the decisions in Newsom and L should be understood on the basis that in both of those cases, as here, there was "little other evidence against the defendant’s in those cases except for the recanted testimony."); Bussey v. State, 64 S.W. 268, 269 (Ark. 1901) (Recantation of the sole witness tying the defendant to the crime requires a new trial) (favorably cited by the former Fifth Circuit in Martin v. United States, 17 F.2d at 976).
The District Court never judged the Defendant’s Rule 33 claims under the appropriate standard, but instead appeared to apply the Giglio standard, i.e. requiring proof that the trial testimony of Charles Ray Jarrell and the other recanting witnesses, as opposed to their recanted testimony, was false, instead of the correct Berry standard which is whether a jury which heard all of the evidence from Charles Ray Jarrell, including his trial testimony and his recanted testimony, as well as all of the other newly discovered evidence in this case, including the recantations of Billy Jo Jarrell and Melissa McFry, the mental problems of Raymond Pointer and the other newly discovered evidence discrediting the government’s case on other points, would have probably reached a different result either as to guilt/innocence or as to sentence.
The defense believes that the sum of the evidence, both the evidence presented at trial and the newly discovered evidence, would leave any reasonable fact-finder with at least a reasonable doubt as to the Defendant’s involvement in the murder of Marlin Shuler and the Count V gun charge and certainly as to the propriety of the death penalty in this case. If, as the District Court itself repeatedly conceded, the witnesses relied upon by the government in convicting Mr. Chandler for the murder of Mr. Shuler and sentencing him to death are so unreliable that their testimony would not be credible under any circumstances4, then the Defendant has met his burden of showing the probability of a different result, as required under this Circuit’s test for relief under Rule 33. A reasonable juror would necessarily have a reasonable doubt as to guilt and certainly as to sentence. See, United States v. Draper, 762 F.2d 81, 83, n. 1 (10th Cir. 1985) (District Court ordered a new trial based on recanted testimony when it found that one of the witnesses upon whose testimony the prosecution was based had "testified falsely so often that it has become impossible for this court to determine which (the trial testimony or the recanted testimony) is the truth.").
2. The Count IV Gun Charge.
As discussed above, the defense has presented a compelling body of evidence demonstrating that Raymond Pointer has a mental illness causing him to lie compulsively to the point where even close friends and relatives affirm that one could never rely on anything Pointer said without personally investigating the facts oneself. This evidence is particularly troubling because Pointer’s colorful story that Chandler picked him up, drove him around, showed him a briefcase full of $100 bills and a pistol, and offered him $5,000 to kill Marlin Shuler and $10,000 to kill the Chief of Police (and, apparently, Pointer’s first version also recited yet another $5,000 offer to kill someone named Kathy Jarrell) formed the sole basis for Mr. Chandler’s gun-related conviction of Count IV. Given these extraordinary circumstances relating to the mental illness and pathological lying tendencies of a witness whose testimony formed the sole basis for Mr. Chandler’s conviction on Count IV, it is clear that a reasonable jury would have a reasonable doubt regarding this conviction.
F. BRADY AND GIGLIO VIOLATIONS INDEPENDENTLY REQUIRE A NEW TRIAL.
1. The Undisclosed Notes of AUSA Davis.
During the post-conviction proceedings below in response to a Court authorized subpoena, the government produced a document which the defense had never seen before consisting of the notes of AUSA Davis of an interview session with Charles Ray Jarrell on October 25, 1990. The notes included the following entries:
"Marlin Shuler
Donna Shuler, MS ex-wife & CJ’s mother (Ima Jean Johnston) were having trouble w/ M.S. -- told him not to do it anymore. He came over to beat them & tried to shoot him. -- No more trouble for awhile.
MS 2nd ct. date he was drunk & MS and he went and got beer. He called him something & he shot him 1st in chest, 2nd in neck.
RC had offered him $500 to kill MS in CJ’s bkyd.
Once before RC gave him a 9mm & told him to kill." (Defendant’s Exhibit 6 to February 1997 hearing; Tab 11 to Record Excerpts).
These notes were not turned over to the defense at the time of trial. Instead, the defense was provided only with a DEA-6 concerning this interview, authored by DEA Special Agent Fred Gasboro, one of the case agents. The DEA-6 did not even mention the discussion memorialized by AUSA Davis in his notes. (Defendant’s Exhibits 4 and 5 to November 1997; R14-274-275).
AUSA Davis was examined about his notes. Davis recalled that the interview on October 25, 1990 with Jarrell began with a chronological discussion of Jarrell’s knowledge of marijuana related activities. When the discussion turned to the Marlin Shuler matter at the end of the meeting (R14-276), Jarrell began by describing how Donna Shuler, Shuler’s ex-wife, and Charles Jarrell’s mother, Imogene Johnson, had been "having trouble" with Marlin Shuler approximately three to four weeks before Shuler was killed and that Jarrell had told Shuler not to cause any more problems, but that Shuler had come over to beat Donna Shuler and Ms. Johnson and that Charles Ray Jarrell had tried to shoot Shuler as a result. (R14-276-278). Jarrell then explained that there had been "no more trouble for a while", but that when Shuler had appeared in town for his second court date, Shuler and Jarrell got drunk together. This was the day that Shuler was killed. (R14-278). Jarrell went on to state at the interview that while they were drinking Shuler "called him something" and at that point Jarrell shot Shuler first in the chest and second in the neck. Davis testified that Jarrell stated that when Shuler "said something" that "made him angry" it "caused or ...was immediately followed by the shooting." (R14-279, 285). AUSA Davis conceded that his best recollection was that Jarrell said that "they had some words" immediately prior to the shooting. (R14-280).
The next entries in the notes are still Davis’ handwriting but the handwriting appears to be much larger and looser than the entries appearing immediately above. These entries indicate that Jarrell later stated in the interview that Chandler had offered him $500 to kill Shuler and that Chandler had given him a 9mm gun before and had told him to kill (apparently Shuler), but Davis conceded that the notes do not reflect whether Jarrell stated that his actual motivation for killing Shuler was the claimed $500 offer or as a result of the "words" that Jarrell and Shuler had immediately prior to the shooting. (R14-280).
Davis’ notes, of course, were never provided the defense at trial (R14-154) and Davis conceded that the defense was never informed that during the interview of October 25, 1990 that Jarrell, when asked about the Shuler murder, had first mentioned the abuse that Shuler had brought upon his sister and mother, that Jarrell had tried to shoot Shuler shortly before the actual murder, and that Jarrell and Shuler had "words" which had "made him angry" immediately prior to the shooting. All the DEA-6 which was disclosed to the defense stated was as follows: "Shuler stopped along side a tree stump to take a drink of beer or something. It was at this point that Jarrell walked up behind Shuler and fired the .9mm into Shuler’s back." (R14-283-284; Defendant’s Exhibit 4). Davis also conceded that even though Jarrell, after being confronted with his previous statements, ultimately stated that he had killed Shuler for the promise of $500 by Chandler, he had first claimed a different motivation for the shooting and gave a different description of how the shooting occurred. (R14-282-286). Davis also conceded that whether or not Jarrell stated the $500 was part of his motivation for killing Shuler, Jarrell had also stated that another part of his motivation was that Shuler had "made him angry." (R14-285-286).
Although it also ought to be combined with the prejudice from other Giglio, Brady and Rule 33 evidence in the case, the failure to disclose the notes of Davis from the October 25, 1990 meeting is in and of itself a sufficient Brady violation to require a new trial. It was undisputed at trial that Charles Ray Jarrell had killed Marlin Shuler. It was undisputed that Shuler had previously abused Jarrell’s sister and mother and only weeks before Shuler’s death Jarrell had tried to kill Shuler because of Shuler’s abuse alone, but had failed merely because Jarrell’s gun malfunctioned. It was also undisputed that Shuler and Jarrell were both inebriated at the time of the killing. The only dispute between the parties, but a dispute upon which Chandler’s guilt or innocence turned, was the specific motivation of Jarrell when the fatal shot was fired. Was it an accident, as Jarrell stated in his original statement? Was it "for the $500", as Jarrell unequivocally testified at Chandler’s trial?(TT4-58-59). Was it the result of yet another argument and conflict between Jarrell and Shuler over Shuler’s abuse of Jarrell’s sister and mother, as Jarrell originally told the federal agents on October 25, 1990?
Davis’ notes reflect that at the very first formal interview of Jarrell by the federal agents and prosecutors in the case, Jarrell first attributed the murder of Shuler to Shuler’s abuse of Jarrell’s mother and sister and stated that the fatal shot had been delivered immediately after Jarrell and Shuler had "words"--"He called him something." Nothing was mentioned by Jarrell during his trial testimony about any such argument or "words" immediately proceeding the shooting of Shuler. Jarrell simply testified, "Drank that case of beer, walked around the lake down towards the spillway and we turned around and started out like and I just shot him." (TT3-226). Moreover, nothing was mentioned by Jarrell during his trial testimony nor was it disclosed to the defense that when first interviewed by federal authorities Jarrell had originally attributed the murder of Shuler to the abuse of Jarrell’s sister and mother and "something" that Shuler had called Jarrell.
Indeed, giving the evidence regarding the Davis notes its best possible "spin" in the government’s favor, at a minimum Jarrell stated to the prosecutors during the October 25, 1990 interview that he had "mixed" motivations in killing Shuler. The claimed offer of $500 played some part. But, Jarrell was "angry" at Shuler at the time he killed him and they had "words" immediately prior to the shooting. However, instead of presenting this evidence to the jury in its totality so that the jury could decide whether or not the "true" motivation was the money or anger, the government, knowing that Jarrell had told them of mixed motivations, presented testimony from Jarrell that there was only one, unequivocal motive for his killing of Shuler, namely "the $500" offered by "Ronnie Chandler." (R4-58-59).
This portrayal of Jarrell’s motivation as singular and unambiguous, while knowing that at best his motivations were mixed, was at least the intentional presentation of "seriously misleading" testimony in violation of the Defendant’s Due Process Rights. United States v. Rivera Pedin, 861 F.2d 1522, 1530, n. 14 (11th Cir. 1988) ("the Napue rule applies where testimony, ‘even though technically not perjurious, would surely be highly misleading to the jury’....") (quoting Dupart v. United States, 541 F.2d 1148, 1150 (5th Cir. 1976); Blankenship v. Estelle, 545 F.2d 510, 513 (5th Cir. 1977) (Due process will "not tolerate prosecutorial participation in technically correct, yet seriously misleading, testimony."). A new trial as to guilt/innocence, or at least a new sentencing, should therefore be ordered because of the "reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. at 103. Moreover, even if this violation is considered to be "only" a Brady violation, relief nevertheless should still be ordered because given the fact that Jarrell’s motivation in killing Shuler was the central issue in the case, if Jarrell’s revelation of at least mixed motivations had been disclosed there is "a reasonable probability" that the verdict of the jury would have been different. United States v. Bagley, 473 U.S. at 682.
2. The Threat of the Electric Chair.
At trial, ABI Lieutenant Greg Cole testified that he was not present at any time when Billy Jo Jarrell was told that he might get the electric chair if he did not "cooperate" with the investigation of Chandler for Shuler’s murder. (TT9-99, 112-113). The defense proffered in the post-conviction proceedings evidence that in fact Lt. Cole repeatedly threatened both Billy Jo Jarrell and Charles Ray Jarrell with the electric chair. In particular, the Defendant proffered the testimony of Billy Jo Jarrell’s mother that Lieutenant Cole had come to her house after Billy Jo Jarrell had been arrested, that he called Billy Jo Jarrell on the phone, handed the phone to Billy Jo Jarrell’s mother, and instructed her to tell Billy Jo Jarrell that he would "fry" in the electric chair if he did not tell them what they needed to know. Lt. Cole than stood by and watched while Billy Jo Jarrell’s frightened mother complied. (R6-438-27-28).
However, without hearing the testimony of Billy Jo Jarrell, Billy Jo Jarrell’s mother or Lt. Cole concerning this incident, the District Court concluded that Lt. Cole had not testified falsely at Chandler’s trial. (R11-65-67, R6-436-27-28, R7-456-13). The Court’s reasoning was apparently based solely on a belief that Billy Jo Jarrell’s "testimony was lacking in credibility." (R7-456-13). But the District Court refused to hear from any of the witnesses with knowledge concerning the Defendant’s claims.
Indeed, Billy Jo Jarrell’s mother’s testimony was not mere "corroboration" of Billy Jo Jarrell’s general veracity, but was direct testimony by an eyewitness to the actual threat conveyed from Lt. Cole to Billy Jo Jarrell over the telephone, which at trial Lt. Cole denied ever occurred. The District Court, therefore, should not have dismissed the Defendant’s assertions on the basis of Billy Jo Jarrell’s credibility generally when the defense had a second witness who independently verified the event and Lt. Cole was never examined under oath concerning these allegations in the post-conviction proceedings. At a minimum, the District Court should have heard from these witnesses with knowledge, including Billy Jo Jarrell, his mother and Lt. Cole, before dismissing the claim. If not, then the proffered evidence which was not heard, i.e. the direct eyewitness testimony of Billy Jo Jarrell and his mother, should have been taken as true by the District Court. Anderson v. United States, 948 F.2d 704, 706 (11th Cir. 1991).
The facts as set forth in the defense’s proffer clearly demonstrate that Officer Cole made false statements on the stand and, hence, the District Court’s holding to the contrary, is clearly erroneous. The lenient Giglio standard of prejudice is also plainly met, here. Lt. Cole gave false testimony regarding a threat given to Billy Jo Jarrell, which was also relayed to Charles Ray Jarrell. Indeed, this initial threat was made immediately prior to both Charles Ray and Billy Jo Jarrell’s interrogations and very likely impacted the course of the interrogation that lead to both Jarrells’ police statements reciting money offers by Chandler, statements which were later recanted by both Jarrells. At a minimum, when this Giglio violation is factored into the cumulative prejudice inquiry, along with the three recantations and other evidence, it warrants a new trial or at least a new sentencing.
3. The Undisclosed Deal to Release Billy Jo Jarrell.
Brady requires that the government disclose all relevant evidence related to inducements given to cooperating witnesses. The government never disclosed, however, that Charles Ray Jarrell’s cooperation was, in part, motivated by an agreement not to prosecute Billy Jo Jarrell. That this inducement was, in fact, a quid pro quo for Jarrell’s cooperation was unequivocally established by the testimony of Jarrell’s attorney. (R15-344-349, Defendant’s Exhibit 14 to February, 1997 hearing; Tab 12 to Record Excerpts). Accordingly, the failure to disclose this significant inducement constitutes a Brady violation. The prosecution further committed a Giglio violation when it affirmatively stated, in closing argument, that the release of Billy Jo Jarrell had nothing to do with Charles Ray Jarrell but was solely because of "lack of evidence."(TT12-73).
The failure to disclose such a significant inducement, particularly where the jury was led to believe that there was no deal and that charges had been dropped solely because of a Alack of evidence", certainly meets both the Giglio and Brady standards of prejudice. Brown v. Wainwright, 785 F.2d 1457, 1464 (11th Cir. 1986)("The government has a duty not to exploit false testimony by prosecutorial argument affirmatively urging to the jury the truth of what it knows to be false."); United States v. San Filippo, 564 F.2d 176, 179 (5th Cir. 1977).
4. Other Suspects in the Burrows and McFry Disappearances.
In addition to producing the handwritten notes of Harwell Davis in response to a post-conviction subpoena, the government also produced a police statement given to one of the chief investigators in the case by Joe Barnwell, to the effect that an individual named Jack Buttram had threatened to kill McFry shortly before he disappeared, because McFry had stolen as much as $50,000 worth of marijuana from Buttram. (Exhibit 11 to February 1997 hearing). Barnwell testified that Buttram had made repeated and serious threats to kill McFry, from the time of the theft until McFry disappeared. Barnwell quoted Buttram as stating "he’s stealing from me, and I’ve got a bullet for him," after which Buttram never again mentioned McFry. (R14-146-149). AUSA Davis conceded that the written police statement reflecting this information was in his file at the time of Chandler’s trial, but that he had "overlooked" it and failed to disclose it. (R15-290-291).
The government also never disclosed statements given to law enforcement by Connie Farmer and Steve Law, that an individual named Scott Hackney had made repeated threats against McFry, because he was jealous of McFry for dating his girlfriend (R6-438-44-51; R11-97-121), and that these threats included several angry threats to kill McFry made, in Steve Law’s presence, only four days before McFry disappeared. (R6-438-48-49).
Further, the government never disclosed that it was aware of numerous other suspects in the Burrows disappearance. (E.g.R14-490-129-139 (Testimony of Virgil Michael Bundum); R14-490-139-144 (Testimony of David Fortenberry); R6-438-61-62 (Proffered testimony of Jeff Roberts); R6-62 (Proffered evidence related to Eddie Paris); R6-438-62-63 (Proffered testimony of Randy Heard); R6-438-63 (Proffered Testimony of Frankie Lee Bonner )). When all of this evidence is aggregated with the fact that the only two trial witnesses that implicated Chandler in threats against these two individuals have either recanted their trial testimony (Melissa McFry) or have been seriously impeached by evidence discovered after the conviction (Toby Barnwell), and the fact that the defense has secured a confession from the actual murderer of Patrick Burrows, one can only conclude that the jury, had it been aware of all of this information, would have totally discounted all evidence linking Chandler to threats against Burrows or McFry and to their subsequent disappearances.
However, despite the fact that this Court in its opinion on direct appeal emphasized the Burrows and McFry evidence as directly relevant to showing Chandler’s intent to murder Shuler, 996 F.2d 1110-1112, and the District Court in another context conceded that the "government’s theory at trial was the the three murders (Shuler, Burrows and McFry) were all actions taken by Chandler to protect his marijuana operation from interference" (R7-456-5, n.2), the District Court nevertheless denied all relief related to post-conviction claims dealing with Burrows and McFry on prejudice grounds, claiming that even if trial counsel had totally "neutralized" the evidence regarding Burrows and McFry by proving that others were responsible, the jury would still have convicted Chandler based upon Charles Ray Jarrell’s testimony, as "corroborated" by Billy Jo Jarrell and Raymond Pointer. (R9-493-41). However, when one adds the new Burrows and McFry related information to the fact that both Charles Ray Jarrell and Billy Jo Jarrell have recanted their testimony and that Pointer is now known to be a pathological liar, it is difficult to come to any other conclusion but that the combination of this new information would more than raise a reasonable doubt as to Chandler’s culpability for the Shuler murder under either the Brady or Berry (Rule 33) prejudice standards. See, e.g., Bowen v. Maynard, 799 F.2d 593 (10th Cir. 1986)(failure to disclose an alternate suspect who had an equally valid motive to commit the murder was a Brady violation); Miller v. Angliker, 848 F.2d 1312 (2nd Cir. 1988) (Suppression of evidence that another person may have been the actual perpetrator was a Brady violation, even though defendant had acknowledged he was the perpetrator when he plead guilty by reason of insanity.).
5. The Correct Amount of Marijuana Involved.
In the Motion to Vacate, the Defendant argued that the prosecution presented very misleading testimony regarding the actual amount of marijuana involved in Chandler’s growing operation. (R5-403-27-33). Specifically, the government had been informed by Paul Watson that the actual amount of marijuana grown was 263 pounds--yet it never disclosed this fact and presented only Watson’s misleading testimony of a bragging statement attributed to Chandler that he "always tried to start around five thousand" plants. (TT3-109) (R5-403-27-29). Further, the defense demonstrated that the government’s testimony was misleading when it stated that a seized notebook described specific numbers of marijuana plants--in fact, there was no reasonable correlation between the numbers of plant stems observed in the sample plots and the numbers the government cited from the book. (R5-403-29-33). The incomplete testimony by Paul Watson, and the testimony interpreting this book, were both misleading under Giglio and, hence, warrant a new trial on Counts I and II--which are specifically dependant on the government proving over 1000 kg. of marijuana. (OCR-115, Record Excerpts Tab 2). When the actual amounts of marijuana from all activities are totaled based on the government witnesses’ best estimates, the sum is 347 kg. (R5-403-84, n. 3), far short of the requisite 1000 kg. that the government was required to prove.
The Court, however, dismissed these issues without taking evidence claiming that, even if the evidence proffered by the defense were true, it would be immaterial under even the Giglio prejudice standard, opining: "In order to convict Chandler under § 848, the government only needed to prove that Chandler’s marijuana operation was large enough to generate ‘substantial income,’" (R7-456-14-16) and that, other than this, it did not need to prove any particular amount of marijuana.
This conclusion was erroneous. The government’s Count II CCE charge required, in addition to showing "substantial income," that the underlying conspiracy count be proved--and the underlying conspiracy count as charged in this case required that the government prove that Chandler had been involved with 1000 kg of marijuana, or 2200 pounds. (OCR-115). This specific amount of marijuana had to be proven by the government in order for Chandler to be convicted of either Count I or Count II. Accordingly, the District Court’s legal error warrants a new trial on Counts I and II and/or a new sentencing hearing on Count II, which sentence was based on incorrect marijuana amounts. At a minimum, the error warrants a remand to the District Court for the presentation of evidence and the reconsideration of this issue.
G. INEFFECTIVE ASSISTANCE OF COUNSEL AT THE GUILT PHASE .
The defense raised two issues at the post-conviction proceedings, primarily as ineffective assistance of counsel claims, but alternatively as newly discovered evidence claims: (1) the failure of trial counsel to have discovered the true significance of the Calvin Klein ad and (2) the failure of counsel to have interviewed the two individuals cited by Toby Barnwell as witnesses to an alleged threat against Burrows and McFry. Each of these claims warrant relief under one or the other legal theory.
1. The Calvin Klein Ad.
As discussed above, the writing "Bill Broome" and "copy of police report" on the back of a Calvin Klein ad found in a search of Chandler’s residence was cited with great significance by the government at trial, and indeed by this Court on appeal, as conclusive evidence that Chandler had taken an active role in retaliating against Marlin Shuler for informing against Donna Shuler. We now know that this document had nothing to do with the Shuler murder.
Post-conviction counsel argued that trial counsel’ failure to have discovered the true meaning of this writing, the only documentary evidence presented in the case in support of Chandler’s alleged intent, was ineffective. The District Court concluded, however, that trial counsel was not ineffective because he could not have been expected to "divine" the significance of this document and prepare to meet it. (R7-457-32, n. 13). This conclusion is troubling, because if trial counsel could not be expected to "divine" the significance of this document, why was it admitted without at least a relevance objection. If the government was going to the trouble to offer it into evidence, it was incumbent on counsel either to determine its significance or object on the basis of relevance. That trial counsel did neither is obviously deficient performance. The District Court should have, therefore, determined whether this failure of counsel, combined with other failures, undermined confidence in the results of the trial.
If, as mentioned above, counsel’s failure to appreciate the significance of the note can be excused, then, as noted above, the evidence regarding the truth concerning the Calvin Klein ad should be considered along with all the other newly discovered evidence under the Berry standard. See pp. 29-30, infra.
2. Toby Barnwell Evidence.
Toby Barnwell was one of two witnesses to testify that Chandler had threatened to kill Burrows and McFry. Barnwell recounted a supposed conversation where he claimed that Chandler stated, in the presence of himself, Joe Barnwell and Junior Shell, that Burrows was dead and that McFry would be next. (TT-151-152). Barnwell’s original testimony was obviously very damaging evidence of Chandler’s intent, as was argued at trial by the government and cited by this Court. Following the trial, the defense interviewed Joe Barnwell and Junior Shell, both of whom stated that this conversation never occurred.(R6-438-32-34). Counsel further investigated and discovered significant additional evidence indicating that Toby Barnwell likely fabricated this testimony. (R6-438-32-35). Had trial counsel done the same, all of this evidence could have been presented at the original trial.
This claim was raised both as ineffective assistance and as newly discovered evidence. The trial court held that because Toby Barnwell had identified these two witnesses in his direct trial testimony, and because Chandler, himself, knew the conversation never occurred, this evidence should have been discovered by trial counsel before trial and, therefore, did not qualify as Rule 33 evidence. (R7-456-51). The District Court accepted the fact that Joe Barnwell and Junior Shell would have refuted Toby Barnwell’s claim that Chandler had threatened Burrows and McFry(R5-407-2; R7-457-44-45), but denied the ineffectiveness of counsel claim on prejudice grounds stating: "The government’s response is that Chandler cannot show prejudice from this failure. The Court agrees that Chandler cannot show prejudice here. The testimony of ‘Junior’ Shell and Joe Barnwell, at best, would have completely neutralized Toby Barnwell’s testimony as 404(b) evidence of Chandler’s intent to kill Shuler. However, the jury would still have been left with nearly identical testimony [from Charles Ray Jarrell and Melissa McFry]." (R7-457-44-45).
Again, however, this prejudice analysis is erroneous as a matter of law. First, the District Court’s opinion that the evidence regarding threats against Burrows and McFry was insignificant is belied by both the government’s position, and this Court’s view on direct appeal, that this testimony was significant evidence of Chandler’s intent to kill Shuler. Indeed, the District Court itself noted that the "government’s theory at trial was that the three murders (Shuler, McFry and Burrows) were all actions taken by Chandler to protect his marijuana operation from interference." (R7-456-5, n. 2). Second, it is obvious that the District Court did not properly consider the cumulative prejudice question when it asserted that this evidence was irrelevant in light of the trial testimony of Charles Ray Jarrell and Melissa McFry. Of course, one comes to an entirely different prejudice consideration when one adds to the equation, not only the "neutralization" of Toby Barnwell’s testimony regarding threats against Burrows and McFry, but also the recantation of Melissa McFry and Charles Ray Jarrell of their original trial testimony (not to mention the recantation of Billy Jo Jarrell’s trial testimony and the evidence that Raymond Pointer suffered from a mental illness that caused him to lie compulsively.).
H. CUMULATIVE IMPACT OF ALL NEWLY DISCOVERED EVIDENCE RELATED VIOLATIONS.
As discussed in several of the above sections, the District Court dismissed most of the Defendant’s claims after undertaking only an isolated prejudice inquiry, often based upon an improper standard of prejudice, and without considering the aggregate impact of the totality of the newly presented evidence. Its language dismissing each claim on prejudice grounds makes it clear that, in fact, no cumulative prejudice inquiry was undertaken. See, e.g. (R7-456-50; R7-457-44-45; R7-456-52-53; R7-457-30-31; R7-456-52; R7-456-49; R9-497-31-32)
Indeed, at the conclusion of its opinion, the District Court considered only the cumulative prejudice of aggregated Brady claims and the ineffective assistance at the penalty phase claims (R9-493-44-45), and expressly did not consider the prejudice flowing from either ineffective assistance of counsel at the guilt phase (i.e. failure to call Junior Shell and Joe Barnwell and the failure to prove the true meaning of the Calvin Klein Jeans ad) or from the numerous different items of newly discovered evidence under Rule 33.
The Court’s parsing each such claim and denying each in isolation was legal error and ultimately failed to account for the fact that all of these shortfalls of the original trial, in the aggregate, created a situation whereby Chandler was denied fundamental fairness at trial and a reliable sentencing determination. See United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984) ("Even if we were to find any of the above errors, standing alone, to be harmless, their cumulative effect, especially in light of the relative strength of Petracelli’s possession defense, was clearly prejudicial and combined to deprive Petracelli of a fair trial."); United States v. Preciado-Cordobas, 981 F.2d 1206, 1215 n.8 (11th Cir. 1993) (noting that "the cumulative effect of several errors that are harmless by themselves could so prejudice the defendant’s right to a fair trial that a new trial might be necessary."); U.S. v. Adams, 74 F.3d 1093, 1099 (11th Cir. 1996) (same, quoting Preciado-Cordobas, 981 F.2d at 1215 n.8). In fact, when all of the legal errors related to newly discovered evidence are considered in the aggregate, as they should be, it is clear that a new trial, or at a minimum a new sentencing hearing, should be ordered.
A. THE PURPOSE OF THE SENTENCING HEARING.
The determination of whether or not trial counsel was constitutionally effective during the sentencing phase of this case should begin with an analysis of the purpose of that sentencing hearing. Whether trial counsel’s performance was deficient and whether that deficient performance substantially prejudiced the Defendant can be judged accurately only with an appreciation of the nature and purpose of a capital sentencing hearing as required by the Constitution.
As the Supreme Court held in Woodson v. North Carolina, 428 U.S. 280, 305 (1976), "the penalty of death is qualitatively different from a sentence of imprisonment, however, long," and, as a result, there must be "a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." Therefore, a mandatory death penalty, for example, violates the Eighth Amendment, because it "accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense," thereby excluding "from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of mankind. It treats all persons convicted of a designated offense not as a uniquely individual human being, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty." Id. at 304. The very constitutionality of the death penalty is, therefore, inextricably tied to a sentencing process whereby the sentencing body is required to focus on "’the characteristics of the person who committed the crime’." Eddings v. Oklahoma, 455 U.S. 104, 112 (1982)(quoting Gregg v. Georgia, 428 U.S. 153, 197 (1976). A capital punishment process must be "at once consistent and principled but also humane and sensible to the uniqueness of the individual." Id. at 110. (emphasis added).
This type of "individualized sentencing determination" required by the Constitution at a death penalty sentencing can occur only when there is a sentencing hearing which accurately informs the sentencing body, here the jury, of all relevant facets "of the character and record of the individual offender and the circumstances of the particular offense." Penry v. Lynaugh, 492 U.S. 302, 316 (1989) (quoting, Woodson v. North Carolina, 428 U.S. 304). This individualized consideration is "a constitutionally indispensable part of the process of inflicting the death penalty." Woodson v. North Carolina, 428 U.S. at 304. Therefore, in a sentencing hearing the sentencing body must "not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604 (1978)(emphasis in original); Thomas v. Kemp, 796 F.2d 1322, 1325 (11th Cir. 1985) ("The key aspect of the penalty trial is that it be individualized, focusing on the particular characteristics of the individual."). After all, it is only when the sentencer has been afforded the opportunity to be informed of and to consider a capital defendant as a "uniquely individual human being", Woodson v. North Carolina, 428 U.S. at 304, can there be assurance the its decision reflects "a reasoned moral response to the defendant’s background, character and crime," as required by the Eighth Amendment. California v. Brown, 479 U.S. 538, 545 (1987)(O’Connor, J. concurring) (emphasis in original); See also, Harris v. Dugger, 874 F.2d 756, 763 (11th Cir. 1989); Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir. 1987). If such particularized consideration does not occur at the sentencing hearing, then the result of that hearing cannot be constitutionally reliable.
Here, as will be discussed in more detail below, due to the admitted failures of trial counsel, the jury knew virtually nothing about the Defendant’s unique background and character --one peculiarly distinguished by numerous specific acts of unsolicited generosity and kindness with nothing asked in return--when it decided that death, as opposed to life imprisonment without the possibility of parole, was the required sentence in the Defendant’s case. As a result, the Defendant did not receive the reliable and individualized sentencing to which he was constitutionally entitled, requiring a new sentencing hearing in this case.
B. INEFFECTIVENESS OF COUNSEL AT SENTENCING.
The constitutional effectiveness of trial counsel at the sentencing phase of a capital trial is governed by the familiar two-pronged test established in Strickland v. Washington, 466 U.S. 668, 690, 694 (1984). Under the first prong, known as the performance prong, the defendant must show that "in light of all the circumstances, the identified acts or omissions (of counsel) were outside the wide range of professionally competent assistance." Id. at 690. Under the second prong, known as the prejudice prong, the defendant must show that "there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding (here the sentencing hearing) would have been different." Id. at 694.
Strickland made clear that an ineffective assistance of counsel inquiry is focused on whether or not the adversarial system functioned in a manner that produced a "reliable" result. Id. at 694. Therefore, the requirement on a defendant to show that due to counsel’s deficient performance there is a "reasonable probability" that a different result would have occurred does not mean a defendant must show "’that counsel’s deficient conduct more likely than not altered the outcome of the case.’" Jackson v. Herring, 42 F.3d 1350, 1361 (11th Cir. 1995)(quoting Strickland, 466 U.S. at 694). Instead, "’a reasonable probability is a probability sufficient to undermine confidence in the outcome.’" Id. at 1361. "The touchstone of the prejudice inquiry is the fairness of the trial and the reliability of the jury’s or judge’s verdict in light of any errors made by counsel, not solely the outcome of the case." Johnson v. Scott, 68 F.3d 106, 109 (5th Cir. 1995)(citing Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). AA petitioner satisfies the prejudice prong of Strickland when he or she can show that the trial counsel’s deficient performance deprived the Defendant of a (sentencing) whose result was reliable." Horton v. Zant, 941 F.2d 1449, 1463 (11th Cir. 1991); see also, Kyles v. Whitley, __ U.S. __, 115 S.Ct. 1555, 1560 (1995), in which the Supreme Court defined a "reasonable probability" under the second prong of the Strickland test, as "not whether the defendant would more likely than not have received a different verdict...., but whether....he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." (emphasis added).
Therefore, the analysis of the constitutional effectiveness of counsel at the sentencing phase of a trial is focused on whether or not counsel performed adequately in investigating, preparing and presenting the defendant’s case at sentencing and, if not, whether as a result of counsel’s omissions or errors the sentencing determination was not "reliable" or "worthy of confidence." Moreover, if due to counsel’s failures the sentencing decision was made without an "individualized" and "particularized" consideration, so that the jury’s determination did not truly reflect "a reasoned moral response to the defendant’s background, character and crime," treating him as a "uniquely individual human being," then that sentencing process for constitutional purposes is "unreliable" and not "worthy of confidence", requiring that a new sentencing hearing be ordered.
C. COUNSEL’S DUTY TO INVESTIGATE.
It is axiomatic that in a death penalty case there is no excuse for a defendant’s counsel not to fulfill the "duty to investigate, develop, and present mitigating evidence." Porter v. Singletary, 14 F.3d 554, 557 (11th cir. 1994); Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir. 1995) ("In cases where sentencing counsel did not conduct enough investigation to form an accurate life profile of a defendant, we have held representation beneath professionally competent standards."); Baxter v. Thomas, 45 F.3d 1501, 1513 (1995).
An attorney owes a heightened duty to provide adequate representation during the penalty phase of a death penalty case, because the consequences of such a hearing can be so severe and the importance of adequate representation in presenting mitigating evidence is so crucial. King v. Strickland, 714 F.2d 1481, 1490-91 (11th Cir. 1983) ("The special importance of the capital sentencing proceeding gives rise to the duty on part of defense counsel to be prepared for that crucial phase of the trial.") (quoting Stanley v. Zant, 697 F.2d 955, 963 (11th Cir. 1983)).
Moreover, given the fact that a death penalty trial is by its very nature an extremely emotional and traumatic time for the defendant, his family and friends, who can at times be greatly upset, depressed or irrational, the Constitution imposes on trial counsel in a capital case even "a greater obligation to investigate and analyze mitigation evidence." Blanco v. Singletary, 943 F.2d 1477, 1502 (11th Cir. 1991). Trial counsel has an affirmative duty to seek out mitigation evidence and cannot satisfy this obligation by expecting his client or his client’s family and friends to seek him out or to volunteer mitigation evidence. Tyler v. Kemp, 755 F.2d 741, 744-746 (11th Cir. 1985) ("New sentencing hearing required where mitigation evidence from family members was not presented because the trial attorney had not sought out this testimony. Family members thought that they could testify only as to guilt/innocence matters."); Blanco v. Singletary, 943 F.2d at 1501 (Trial counsel’s failure to "seek out any witnesses specifically prior to trial" constituted ineffectiveness. Counsel merely left messages for witnesses and awaited their response.)
D. THE FAILURE TO CONDUCT ANY SENTENCING INVESTIGATION.
The District Court did not decide whether trial counsel’s sentencing investigation was constitutionally deficient and, instead, rested its denial of the Defendant’s ineffective assistance of counsel at sentencing claim solely upon a prejudice analysis (R7-457-62). Nevertheless, based upon the record and applicable case law, there is no possible way that trial counsel’s failure to conduct any mitigation investigation in this case could be deemed anything other than deficient performance.
Indeed, trial counsel conceded at the evidentiary hearing before the District Court that both prior to trial and even during trial up until the guilty verdict was read by the jury at 1:50 PM on April 2, 1991 (TT11-22), he had done "basically not anything explicit" or Avery little" to prepare for a sentencing hearing. (R13-331,359, 395). All of his investigation and witness interviews had been directed exclusively to guilt/innocence issues. (R13-398, 406). His preparation for the sentencing phase involved only legal research and the preparation of jury instructions. (R13-396-397). Neither himself nor anyone on his behalf made any effort to obtain character or other mitigation witnesses. He merely had "only a hope" that somehow mitigation evidence might be "volunteered" to him. (R13-331, 359, 363, 369 396, 368). This failure to seek out mitigation evidence and the willingness merely to sit back with the unjustified "hope" that mitigation evidence would be "volunteered" is clearly deficient performance in investigating a mitigation case. Tyler v. Kemp, 755 F.2d at 744-746 (11th Cir. 1985); Blanco v. Singletary, 943 F.2d at 1501.
Indeed, trial counsel’s first and only effort to investigate and locate mitigation witnesses occurred only after the jury had already found the Defendant guilty and the Defendant was facing a sentencing hearing to begin promptly the next morning. Trial counsel testified that at approximately 2:30 PM (less than an hour after the guilty verdict), on the afternoon prior to the sentencing hearing scheduled to begin at 9:00 AM the next morning, he asked the Defendant’s wife, Deborah Chandler, to try to "get somebody to stand up for Ronnie tomorrow." (R12-20, R13-363, 366, 371, 418, 420). There was no way Mrs. Chandler, or for that matter anybody else, could have put together a character case in mitigation in such a short time frame, especially considering the fact that it would take Mrs. Chandler more than three hours merely to get home that evening. (R13-366, 419). Moreover, Mrs. Chandler, understandably distraught and in an emotional state, was in no condition to begin a mitigation investigation which should have been begun by counsel long before trial. (R13-367, 418-421). Clearly to wait until after the jury’s verdict on guilt/innocence to begin a mitigation investigation and then to turn that investigation over to the Defendant’s wife, who was understandably "numb" and "just couldn’t seem to function right" after just witnessing her husband’s conviction for murder (R13-418, 419), is deficient performance by counsel. See, Blanco v. Singletary, 943 F.2d at 1501-1502 ("To save the difficult and time-consuming task of assembling mitigation witnesses until after the jury’s verdict in the guilt phase almost insures that witnesses will not be available.").
As a result, the only mitigation witnesses who were presented by counsel on behalf of his client facing the death penalty were the Defendant’s wife and mother. (TT12-29-45). Counsel did not even prepare these two witnesses for their testimony until the morning he presented them as witnesses. (R13-372, 397, 421-422). Even then he only spent a few moments with them and conceded when asked about the time he spent preparing these witnesses that it was "not much." (R13-372). The only other character witness who could be located on such short notice, Reverend McCoy, was considered by trial counsel as a mitigation witness but was not called because Reverend McCoy’s contact with the Defendant was remote and to call one such witness "in the absence of some number of witnesses" would not, in his opinion, Abe wise." (R13-398-399, 420-421). Of course, this concern would not have even presented itself if trial counsel had done any reasonable search for character witnesses within the community.
The total mitigation case presented by trial counsel consisted of three stipulations, i.e. that Shuler was killed on May 8, 1990, that the Defendant had no prior convictions, and that Charles Ray Jarrell would not receive the death penalty (TT13-29-32), and the testimony of the Defendant’s wife and mother, whose entire testimony was nothing more than a rudimentary biographical sketch of the Defendant, consisting of only twelve pages of transcript and lasting no more than fifteen minutes. (TT13-33-45). For the Court to read the entire mitigation case presented by the defense, it need read only sixteen pages of transcript. (TT-29-45).
The failure of trial counsel to present any meaningful character evidence at sentencing, although it was readily available, was exploited by the prosecution in closing argument. The government argued that "David Ronald Chandler is a thoroughly dangerous man" (T12-570) and all that his wife and mother testified to "was that he is my child, he is my husband and here is his background." But, as the prosecutor continued, "probably every one of you have a husband or a wife" and "everyone of you had a mother at one time and hopefully still do." However, "Jack the Ripper had a mother" and "Charles Manson had a mother." (TT12-73-74). The defense had no evidence upon which to base a response. See, Cave v. Singletary, 971 F.2d 1513, 1519 (11th Cir. 1992) (The "failure to present character evidence allowed the prosecution to emphasize (the defendant’s) lack of redeeming character."). After deliberating for less than three hours, including a lunch recess, the jury returned a death verdict. (TT12-97).
Trial counsel offered two explanations for his failure to conduct any meaningful mitigation investigation. (1) Counsel had only six weeks to prepare for trial from the date that the death penalty notice was given and the Defendant’s case scheduled for trial and trial counsel’s time was consumed with investigation of the guilt/innocence issues. When trial counsel was asked by government counsel during the evidentiary hearing why he had "not done any specific preparation for the death penalty phase", his answer was simply "you do what’s coming up first, and you do what’s immediately on you." (R13-395). (2) Trial counsel believed that the government’s murder case was "the weakest part of the case", that his client would actually be acquitted on the murder charge, and that the death penalty was even more unlikely, given the government’s proof in the guilt/innocence phase (R13-326, 360-361, 400-401).
This second reason appears actually to be an after-the-fact rationalization for failure to investigate a mitigation case, in light of the fact that after the guilty verdict counsel in fact asked the Defendant’s wife A to find some additional witnesses" who would "demonstrate humanity, compassion, things of that sort" (R13-363-364) and called the Defendants wife and mother as witnesses at the sentencing phase. But, even if trial counsel felt that a murder conviction was unlikely and a death penalty sentence even more improbable, this type of overly optimistic prediction by trial counsel of a favorable verdict cannot justify the failure to prepare for a mitigation case. Blake v. Kemp, 758 F.2d 523, 532-534 (11th Cir. 1985) (Trial counsel failed to investigate character evidence because he believed a not guilty by reason of insanity verdict would be rendered. This Court debunked this excuse and found "beyond cavil that an attorney who fails to make any preparation for the penalty phase of a capital murder trial deprives his client of reasonably effective assistance of counsel by any objective standard of reasonableness."); Blanco v. Singletary, 943 F.2d at 1501 (same); Cave v. Singletary, 971 F.2d 1513, 1519 (11th Cir. 1992) (same).
In utterly failing to perform his duty to investigate and present a mitigation case on behalf of the Defendant, trial counsel’s performance was clearly deficient. The question then becomes whether if counsel had performed his constitutional duty he would have discovered witnesses whose testimony would have been valuable to the jury in making an individualized and particularized judgment as to whether based upon this Defendant’s background, character and crime a sentence of life imprisonment without parole instead of death was appropriate. The Defendant need not show that the jury would necessarily have reached a different verdict in his case if they had heard the mitigating evidence which was available but not presented, but only whether or not there is a "reasonable probability" that their decision would have been different, i.e. whether the decision to impose a death penalty, without knowing what they should have known about the Defendant’s character and background, was "reliable" and a verdict in which the Court can have "confidence."
The District Court found "that the prejudice question in this case is a close one" about which "reasonable people could disagree" (R7-457-63), yet nevertheless ruled against the Defendant. In fact, based upon the record below and the case law in this circuit, finding the required prejudice in this case is not even a "close" call. Prejudice is obvious.
1. The Government’s Case for Death.
First, this case does not involve a barbaric and heinous killing, accompanied by horrendous circumstances such as rape, torture and physical abuse, where it is unlikely that any mitigation evidence may have made a difference. E.g.Thompson v. Wainwright, 787 F.2d 1447, 1453 (1986)(The Court found insufficient prejudice where the defendant had beaten the victim with a chain, his fist, a chair leg, and a billy club and then raped the victim with the chair leg and the billy club); Elledge v. Dugger, 823 F.2d 1439, 1447 (11th Cir. 1987)("The cruelty of the rape and the murder made it more difficult for Elridge to alter the final sentence by introducing mitigating circumstances.").
Instead, since the jury expressly rejected the aggravating circumstance of "substantial planning and premeditation" in its sentencing findings(OCR-221), at worst this was a case in which the Defendant impulsively induced a friend to kill someone who had caused him and his friend personal and business troubles. Although this is an awful crime punishable in federal court with a minimum sentence of life imprisonment without possibility of parole, it is not the type of heinous murder where mitigating evidence no matter how compelling could not cause the jury to reach any verdict other than death. Indeed, the facts of this case are less egregious than those in Baxter v. Thomas, 45 F.3d 1501, 1504-1505 (11th Cir. 1995), where the defendant personally strangled a victim, whose hands and feet were bound, for "monetary gain" and this Court held that the failure to present available mitigating evidence sufficiently prejudiced the Defendant in part because the murder there, as here, "did not involve sexual abuse or kidnapping common to other death penalty cases". See also, Jackson v. Herring, 42 F.3d at 1369 ("Many death penalty cases involve murders that are carefully planned or accompanied by torture, rape or kidnapping. Jackson’s crime, by contrast, executed with a single plunge of a knife, apparently was borne of irrational and sudden temper."); Harris v. Dugger, 874 F.2d at 763-764 (Finding prejudice from the failure to present character evidence, the Court found it significant that the crime, although brutal, was committed without substantial planning or premeditation.).
Second, as summarized above, pp. 31-33, and as was conceded by the Government in its briefs below, the government’s case for death was itself weak. (R6-441-27-28). (1) The evidence at trial revealed the possibility that Jarrell’s motive for shooting Shuler was possibly unrelated to the Defendant. (2) Jarrell had consumed close to a case of beer at the time that he killed Shuler (TT4-23-24), making it likely that the murder was more alcohol related than induced by a promise to pay money, which Jarrell conceded was never actually paid. (3) The victim himself was known to be an abusive person. (4) The jury knew that the actual killer (Jarrell) would not receive the death penalty. In such a situation, where the case for death is questionable, the balance hangs precariously and character evidence, or even one specific instance of kindness and generosity reflecting a redeeming quality in the Defendant could be the decisive factor, tipping the balance in favor of life without parole in the mind of at least one juror. See, Strickland v. Washington, 466 U.S. at 696 (AA verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support."); Baxter v. Thomas, 45 F.3d at 1514; Harris v. Dugger, 874 F.2d at 764.
2. The Case for Life Never Presented.
On one side of the balance was a death penalty case which was marginal. On the other side of the balance was an extraordinary mitigation case, never presented because of the failure of counsel to investigate. This is not a case where defense counsel failed to locate and present a few character witnesses who could have said something nice about the Defendant, such as in Blake v. Kemp, 758 F.2d at 535, where this Court nevertheless held that sufficient prejudice was shown to require a new sentencing hearing. This is a case where the Defendant’s post-conviction counsel was able to locate within a two week time frame prior to a post-conviction evidentiary hearing (R13-422-426) approximately forty substantial character witnesses--only twenty-seven of whom the District Court allowed to testify--who believably testified "that the (defendant) was not the totally reprehensible person they apparently determined him to be", Blake v. Kemp, 758 F.2d at 535, based solely upon the evidence presented at the guilt/innocence phase, but was an exceptional person whose life story was filled with instances of remarkable kindness and generosity.
Anyone who has had experience in the trial of a sentencing phase in a capital case knows the value of good character evidence. It is seldom available, but when it is, it is virtually always presented. It reveals a side of the defendant that is almost never presented during the guilt/innocence phase of the case. Such evidence of redeeming qualities can be crucial in persuading death penalty qualified jurors, who have sworn that they will not automatically impose the death penalty for all murders, Morgan v. Illinois, 504 U.S. 719 (1992), not to impose the death penalty, especially on a first offender such as Mr. Chandler.
Make no mistake about it, the mitigation case available to the Defendant here which was not presented during his sentencing phase was extraordinary. Counsel knows of no other death penalty case that has withstood an ineffectiveness at sentencing challenge, in which the good character type of mitigation evidence available to the Defendant here, was not presented due to the failures of counsel. Indeed, this Court has on numerous occasions found sufficient prejudice to require reversal under circumstances where trial counsel failed to present far less compelling positive mitigation evidence to the jury and where the circumstances of the crime were far more heinous than those found here. See, e.g., Jackson v. Herring, 42 F.3d 1367 (11th Cir. 1995)("devotion to her mother, sister and daughter."); Blake v. Kemp, 758 F.2d at 534 (testimony "to the effect that Blake was a man who was respectful toward others, who generally got along well with people and gladly offered to help whenever anyone needed something."); Harris v. Dugger, 874 F.2d at 763 ("a devoted father, husband and brother" who relatives and a minister described "as a decent, loving man whose life was important to them."); Armstrong v. Dugger, 833 F.2d at 1433-34 ("reputation as a hardworking child" and "history of non-violence and religious activities"); Thomas v. Kemp,796 F.2d 1322, 1324-1325 (11th Cir. 1985) ("an excellent worker", "always punctual", "a loving son who cared deeply for his mother."); Tyler v. Kemp, 755 F.2d 741, 745 (11th Cir. 1985)("a good work record", "a good mother" who was "’crazy about her children’ and kept them clean and cared for", "her character and reputation as a wife and mother was good."); King v. Strickland, 714 F.2d at 1490 ("a good, non violent person and a trustworthy employee."); Horton v. Zant, 941 F.2d at 1463 ("a hard worker", a "good youth", "able to provide for his common-law wife and their daughter", he "successfully adjusted to previous stays in prison." Court holds, "Our Circuit has in the past held that the failure to present similar evidence at sentencing for a similar crime was sufficient to establish prejudice."); Eutzy v. Dugger, 746 F.Supp 1492, 1496 (N.D.Fla. 1989), (Anon-violent, caring personality", "outstanding performance as an employee", "a witty, congenial, likeable employee and friend."); Johnson v. Dugger, 615 F.Supp 355, 363, aff’d 781 F.2d 1482 (11th Cir. 1986) ("a person of good character and conduct, with no propensity for or a history of violent behavior."); see also, Hall v. Washington, 106 F.3d 742, 746, 749, 752 (7th Cir. 1992) (Sufficient prejudice shown as a result of trial counsel’s failure to present at sentencing evidence of "concrete instances of good behavior from (the defendant’s) past, as well as testimonials from people who knew (the defendant) in prison", even though evidence showed that defendant while an inmate killed a prison employee by stabbing her.).
Post-conviction counsel was allowed to call twenty-seven mitigation witnesses at an evidentiary hearing. More were available but the District Court allowed only twenty-seven to testify. (R12-7-8, 10, 40; R13-259, 278-279). All said they would have been available to testify at the time of the Defendant’s trial and would have been willing to testify if they had only been contacted. (R12-46-47, 80-81, 88-89, 93-95, 105, 114, 126, 139, 147, 158, 171, 181, 188-190, 194, 210, 223, 227, 237, 244-245, 247; R13-252, 258, 271, 277-278). The "life profile" of Mr. Chandler, Jackson v. Herring, 42 F3d at 1367, attested to by these witnesses was remarkable.
They testified that Mr. Chandler was a compassionate, generous, and caring person who loved to help others. H. McCord, (R12-44) ("compassionate"); Ruby McFry (R12-83 ("a caring man"); J. Masters (R12-92) ("caring"); D. Heath (R12-54) ("good-hearted", "giving"); J. Fortenberry (R12-65-66)(quick to help others without seeking anything in return) (R12-74)("generous"); J. Masters (R12-92) ("generous"); K. Chasteen R12-110 ("He has a reputation for being an extremely caring person."); E. Freeman (R12-111) ("He’s one of the most compassionate, generous caring people I’ve ever met."); D. Matthews (AI consider Ronnie an extraordinary person. He’s kind and cares about people."); J. McCoy (R12-144) ("Ronnie is a kind person....He’s a generous person. He’d just give you the shirt off of his back, even if it was his last one."); R12-146-147 ("I’ve just seen him reach out so many times and pick someone up, especially somebody who was down."); H. Lawler (R12-157) ("Good caring person"); T. Stokes (R12-181) ("he genuinely cared about people, had a love for people"); K. McCord (R12-198-99; D. McFry (R12-226) ("He helped you from the goodness of his heart. Not for anything in return."); S. Kelley (R12-235) (AI guess the difference between Ronnie is the fact that there are many people who say well, you know, I hope you get better soon, you know, or I hope your life improves down the road. But Ronnie would try to do something to make sure that their life did improve."); M. McFry(R12-249) ("He’s a loving man."); S. Robertson (R13-257) ("he’s always been giving and generous.").
Witnesses testified that Mr. Chandler was not only non-violent, but extremely forgiving and an active peacemaker, contrary to the "thoroughly dangerous man" (TT12-57) that the government contended him to be. J. Fortenberry (R12-66, 73) (peaceful); K. Chasteen (R12-104) (would always dispel conflicts at work); E. Freeman (R12-114) (never knew him to say a harsh word against anyone); Ruby McFry (R12-84-88) (not a violent person); J. Masters (R12-93) (non-violent); R.S. Smith (after a man who had been paid in advance quit in the middle of painting Mr. Chandler’s house, Mr. Chandler did not even get upset and said "well, the Bible said if they take your coat to give him your cloak."); B. Russell (R12-206) ("It takes a lot to get him upset."); T. Montgomery (R12-276-277) (Mr. Chandler forgave and rehired him, even after he sued Mr. Chandler for an accident at work); K. Kelley R12-166)(non-violent); D. McFry (R12-226) (non-violent); D. Kelley (R12-240) (non-violent).
A number of the witnesses described Mr. Chandler as a cheerful, optimistic and encouraging personality--someone who would get you through hard times and make you laugh if you were down. D. McFry (R12-226) ("well, if you were in a down and out mood he would always come in and have a big smile on his face and see that you were cheered up before he left."); T. Stokes (R12-180 (AA wonderful sense of humor."); B. Russell (R12-206) ("always smiling, carrying on and joking"); K. Chasteen (R13-265) ("He’s an outgoing, upbeat, always smiling, happy man.").
Witnesses called at the evidentiary hearing provided testimony that Mr. Chandler was fair, honest and respectful of others. Kerry Chasteen (R13-265-66 (fair); J. Fortenberry (R12-66-67 (respectful); Ruby McFry (age 75)(R12-84) (AI was always treated with love and respect."); B. Russell (R12-206)("he didn’t like for you to say ugly, bad words around kids....or an elderly person. [He was] very respectful."). They further testified that he was a skilled carpenter, brickmason and contractor who was not only hardworking himself, but also encouraged others to work hard. J. Fortenberry (R12-64-65) (skilled carpenter and brick-mason--encouraged others to work hard); D. Matthews (R12-123) ("One of the most skilled I’ve ever worked with"); J. Masters (R12-93) ("Ronnie will get up from daylight and work until dark and he wouldn’t quit until the job is done."); K. Chasteen (R12-100) ("he’s always been a conscientious, hard worker."); D. Matthews (R12-123) ("Extremely hard worker."); J. McCoy (R12-144-45)("a very hard-working person"); D. Heath (R12-56); D. Matthews (R12-123).
One characteristic of Mr. Chandler that was repeatedly mentioned by the witnesses was that not only was Mr. Chandler skilled himself but he loved to teach others the skills that he knew. R. Chasteen (R12-103) ("he had a favorite saying he liked to say about helping people. He was very....against giving just to give away. But a saying he used to use was if I give you a fish today you’ll eat it today, but if I can teach you how to fish, you will eat forever."); J. Fortenberry (R12-64-65)(taught carpentry); J. Masters (R12-91-92) (taught carpentry, hunting & fishing skills); K. Chasteen (R12-103)(carpentry and masonry); D. Matthews (R12-125-26)(carpentry, contracting); J. McCoy (R12-146)(taught husband how to lay brick and block, taught him hunting skills).
Numerous witnesses described Mr. Chandler as a good family man who was extremely supportive of his own children and the children of others, particularly children who did not have a father at home. J. Fortenberry (R12-67-68)(real encouraging, loved children); K. Chasteen (R12-102) ("fantastic" with children); R.S. Smith ("the fatherless children, he was particularly caring about those"); E. Freeman (R12-112,114)(discussing her children--"He was like a second dad after their dad passed away."); W. Twilley (R12-188)(age 18, had a step-father but no real father--"He was like my dad"); B. Russell (R12-208)("Very good role model [to children]....He would encourage them to stay in school, to go to church."); C. Chandler (R12-242) ("loves children"); Kerry Chasteen (R13-267-68 (very good with children); T. Stokes (R12-180)("he always had time for children").
Witnesses also described Mr. Chandler as kind and respectful to the elderly. B. Russell (R12-207) (the elderly residents of the community "were very special to him....he would treat them just like he was treating his own family."); R.S. Smith (R12-137) ("Ronnie has always had a compassion for the elderly people."); R.M. Trammell (age 82) (R12-192-94) ("he’s always wanting to help me with something and I just learned to love him." "he’s about the greatest friend I ever had."); Ruby McFry (age 75) (R12-84)(AI was always treated with love and respect"); R. Trammell (Mr. Chandler’s grandmother, age 83, describing how Ronnie would always come by, once or twice a week, to see if she needed anything).
Many of the witnesses testified about Mr. Chandler’s commitment to the church and his involvement in religious activities. Testimony of K.R. Chasteen (R12-103-04)("It wasn’t unusual at all for him to stop the vehicle and someone that he knew was needed prayer, really in need, to stop right there and pray for them right on the spot."); R.S. Smith (R12-136-37)(describing how Mr. Chandler would apply religious principles to his life--forgiveness); B. Russell (R12-206-07)("[he is] very religious....[H]e’s asked me many -- numerous times to go to church with he and his wife and take my family to church."); S. Robertson (R12-258)("Ronald knows the Bible.... yes, he’s very religious, yes."); H. McCord (R12-44); Ruby McFry (R12-83); H. Masters (R12-217); R. S. Smith (R12-136-37).
Chandler was described as generous with community projects and unusually patriotic. Testimony of H. McCord (R12-45-46)(donated generously to rescue squad; also very supportive of church); J. Masters (R12-93)(donated money and time to church, built fellowship hall); B. Russell (R12-208)(he would always donate to roadblocks for charitable causes--"[i]f he had a dime in his pocket, he would donate it"); J. Fortenberry (R12-67)("Oh, well, first we’d start off to do a job that morning, construction work, he’d just, say look fellows, we live in the best country in the world here, let’s get out here and do a good job, and do our best ‘cause we live in the best country, so let’s do our best work."); K.Chasteen (R12-10)(While hunting "he stopped on the peak of one of those mountains and crawled out on a ledge and sang God Bless America at the top of his voice, and completely, too, by the way."); R. Smith (R12-137)(AI don’t know anybody that’s more patriotic than he is. You can be going down the road with him and he would just get out and--pull over on the side of the road and get out and sing God Bless America, three verses, get back in and go back down the road.").
In addition, many specific acts of care and compassion toward others were described. Witness after witness described how Mr. Chandler brought groceries, lunch money, shoes, clothing, or firewood to poor families, children, and elderly residents of the community. See, e.g., J. Fortenberry (R12-68) (when he was only a child, Ronnie brought vegetables and lunch money to their family); D. Matthews (R12-124-25)(brought groceries to the poor); R.S. Smith(R12-133)(helped her with groceries, school money, shoes and clothes); H. McCord (R12-45)(bought cleats for disadvantaged boys so that they could participate in community sports league); D. Heath (R12-55-56)(brought two pairs of shoes for child living in the projects who was playing outside without shoes); J. McCoy (R12-145)(bought shoes for a poor child); M. McFry (R12-251)(bought new shoes for one of the church pastors who had holes in his shoes); Ruby McFry (R12-83-84)(brought groceries to her); H. Lawler (brought food to him and his family after he had been laid off his job and his wife was expecting); B. Russell (R12-83-84)(bought food for children in projects); B. Russell (R12-208) (helped those in need with utility bills and firewood in winter); S. Kelley (R12-234)(helped poor with food and clothing); L. McBrayer (R13-261) ("He’s sent us foods and stuff many a times when we didn’t have anything to eat."); L. McBrayer (R13-262)(provided transportation for children to go to the doctor).
Numerous others described how Mr. Chandler’s kind-hearted encouragement helped them through a difficult time in their lives, often accompanied by unsolicited acts of kindness.
--Chandler counseled and supported a woman who was in an abusive relationship with an alcoholic husband, and provided her with a means of returning home after she had moved out of state and her husband remained abusive. L. McBrayer (R12-262-63).
--Chandler helped, counseled and encouraged an alcoholic man to work, to provide for his family, and to overcome his alcohol problem, taking care of the man’s family while the man was in a rehabilitation program, and never giving up on him, even after the man sued him and won a judgment for an accident at work. T. Montgomery (R12-275)("the whole time I was in [rehab] he took care of my family for me. And, you know, he helped me get back and forth to AA meetings and supported me there."); (R12-276-77) ("He never did give up on me....He helped me more than anybody I know of."). See also R.S. Smith (R12-135-36).
-- Chandler provided comfort and support to a woman during a very difficult time after her husband had died and told her that she could live in a house he owned as long as she needed, refusing to accept anything in return. E. Freeman (R12-113).
--Chandler provided encouragement, support and care to a man who had burned his arm and could not work to support his family. B. Russell (R12-209)("Just about every day he was there. He would come by and make sure we had plenty of food, make sure everything was all right.").
--Chandler provided tremendous encouragement to a man who had been injured in an automobile accident, ultimately giving him the inspiration to walk again. J. Fortenberry (R12-69).
--Although he could ill afford it at the time, Chandler gave a poor family money to bury their son who had been unexpectedly killed in an accident. D. McFry (R12-225); E. Freeman (R12-113); M. McFry (R12-250).
--Chandler volunteered his time to cut the grass for a man whose heart condition was so bad that he could not do it himself. S. Kelley (R12-234).
--Without being asked Chandler built a porch for free for a handicapped man to make it easier for him to get into his house, asking nothing for his labor or the materials. C. Chandler (R12-241-242).
--Chandler encouraged a man who thought he would never be able to have children through a difficult period of several years until he and his wife finally had a baby. J. Fortenberry (R12-70-73).
--Chandler helped single mothers care for their children and provided a positive role model for them. R. S. Smith (R12-132-35); E. Freeman (R12-112-114)("He was like a second dad after their dad passed away."); W. Twilley (R12-188)(age 18, had a step-father but no real father--"He was like my dad"); B. Russell (R12-208)("Very good role model [to children]....He would encourage them to stay in school, to go to church.").
--Chandler gave money to the poor so that they could buy Christmas gifts for their children. S. Kelley (R12-235); Kerry Chasteen (R13-269-70)("Yes, there was a time when he came in, there was a friend of mine that I used to work with and he had overheard a conversation between her and this other lady and they were talking about what she could do because her children had--was going to have no Christmas and he just had some money stuck down or had give her what he had in his billfold at the time. And it just fascinated my supervisor because people just don’t do that. You know, they was trying to figure out what she could do and Ronnie overheard the situation and just said, you know, I’ll help. And you don’t see that very often."
--Chandler gave people a place to stay when they did not have any place to live. M. McFry (R12-249).
--Chandler offered work to those in need so they could afford to feed their families, assisting them in ultimately becoming self-sufficient. D. Heath (R12-56)(housekeeping); D. Matthews(R12-123)(framing houses)(R12-126)(lent him carpentry tools so he could go out on his own); K. Kelley (R12-165)(construction work); M. McFry (R12-249-50)(gave husband a job so he could support family); K. Chasteen (R12-270).
--Chandler taught others hunting and fishing skills, always putting them in the best position so that they, rather than he, would succeed. (J. Masters (R12-92) J. McCoy (R12-145).
--Chandler worked on houses without charge for those who could not afford it. S. Kelley (R12-234).
--Chandler would often just stop by the side of the road to pray for people that he felt needed help. K. Chasteen (R12-103-104).
Indeed, the fact that so many members of the community were willing to come forward to give resoundingly positive character-related testimony for Mr. Chandler is, in itself, a powerful factor in mitigation. As in Blake, it is clear that this omitted evidence "might have demonstrated to the jury that the petitioner was not the totally reprehensible person they apparently determined him to be." 758 F.2d at 535.
3. The District Court’s Inaccurate Dismissal of the Case for Life.
The District Court conceded that mitigation witnesses available in trial but not called "described Chandler as a thoughtful, kind, honest, hard-working person who had, on many occasions, helped people in need, including the witnesses themselves" (R7-457-65), but, nevertheless found that although it was a "close question," in its opinion there was no "reasonable probability" that the jury would have rendered a different verdict in this case had this abundant character type evidence been presented to the jury. (R7-457-63). The reasons advanced by the District Court for discounting the value of this mitigation evidence are not supported by the record, ill-founded and unpersuasive.
(a) The Nature of the Defendant’s Crime.
The District Court starts by recounting the guilt/innocence evidence against Chandler and characterizing the murder attributed to Chandler as "particularly egregious." R7-457-63-64. In reaching this conclusion the District Court emphasizes its characterization of the murder as a premeditated and preplanned murder in retaliation for Shuler’s cooperation with law enforcement. (R7-457-64). This conclusion, however, ignores the fact that the jurors in their sentencing finding specifically found that the government had not proven that the Defendant had "committed the murder of Marlin Shuler after substantial planning and premeditation." (OCR-221). The jury therefore concluded that the murder was likely the result of an impulsive offer to Jarrell when Shuler unexpectedly showed up at Jarrell’s house. Moreover, even if the jury had not made such a finding, and conceding that the murder of any human being is atrocious, relative to the facts and circumstances of most other death penalty cases, the District Court’s conclusion that this case involved a "particularly egregious" murder does not stand up.
Moreover, the District Court completely ignored countervailing circumstances in the government’s case, including (1) the possibility that Jarrell killed Shuler for his own reasons which had nothing to do with Chandler, (2) the fact that Jarrell admitted that he had consumed close to a case of beer at the time he killed Shuler, raising serious doubt as to his true motivation, (3) the fact that Shuler was known to be an abusive person making likely that the real motivation for Jarrell’s shooting him had nothing to do with Chandler and (4) the fact that both the government and the Defendant’s trial counsel felt at the time of trial that the case for death was weak.5
In addition, the District Court’s emphasis on the fact that the jury found the presence of "two aggravating factors" is misleading. (R7-457-65). The first "aggravating" factor found by the jury was merely that the Defendant "intentionally engaged in conduct intending that Marlin Shuler be killed and that such conduct resulted in the death of Shuler" (OCR-221), the absolute minimum mens rea required for imposition of the death penalty under Enmund v. Florida, 458 U.S. 782 (1982) and Tison v. Arizona, 481 U.S. 137 (1987). The second "aggravating" circumstance found by the jury, that the Defendant "procured the killing of Marlin Shuler by payment, or promise of payment of money" (OCR-221), merely replicated the government’s proof during the guilt/innocence phase. Indeed, the government in its sentencing argument told the jury that it had no alternative but to find these "aggravating" factors, since they necessarily duplicated what was required to render a guilty verdict. (TT12-53, 54, 65).
Finally, in its analysis of the strength of the government’s case for death, the District Court also ignored the two important mitigating circumstances actually presented by trial counsel. The government stipulated at the time of trial that the Defendant had no prior criminal record, a specific mitigating circumstance recognized by Congress. 21 U.S.C. § 848(m)(6). The government also stipulated at the time of trial that another defendant, Charles Ray Jarrell, "equally culpable in the crime" was not to be punished by death, another compelling mitigating circumstance specifically recognized by Congress. 21 U.S.C. § 848(m)(8). The District Court completely ignored these countervailing factors in its analysis.
In truth, this was not a particularly "egregious" death penalty case where there is no reasonable probability that mitigating evidence, especially the compelling type of mitigating evidence presented here, could have made a difference. There were problems in the government’s case for death. There were significant reasons to question the true motivation for Jarrell’s killing of Shuler. Jarrell had previously tried to kill Shuler for reasons totally unrelated to Chandler. Shuler was admittedly excessively inebriated at the time of the murder. Jarrell could have easily killed Shuler, as he now swears, simply because of his abuse to Jarrell’s sister. The jury found that there was no substantial planning and premeditation involved. Chandler had no prior criminal record. The actual shooter was not receiving the death penalty. The murder did not involve peculiarly heinous circumstances such as torture, rape and physical abuse. In these circumstances the type of mitigating evidence which was available but not presented could have easily tipped the balance away from the death penalty.
(b) Claimed Problems with the Defendant’s Mitigation Case.
The District Court further resolved the claimed "close" prejudice question against the Defendant by minimizing the value of the extraordinary character evidence available to the Defendant, but not presented due to trial counsel’s deficient performance. Again, its arguments are not supported by the record, unpersuasive and contrary to applicable case law.
The District Court first points to the fact that the testimony of some of the character witnesses related to events and circumstances that occurred prior to Chandler’s alleged involvement in marijuana growing and distribution, which the government contended began in 1988 and continued up to the time of his arrest in 1990. (R7-457-65-67). The District Court, however, failed to point out that the overwhelming majority of these mitigation witnesses continued to have close contact with Chandler up until the time of his arrest. (R12-43, 54, 63, 85, 99, 104-105, 111, 132, 144, 154, 163, 179, 181, 186, 198, 210, 233, 241, 248; R13-256, 260, 265, 271, 274). Moreover, the few witnesses who had seen less of Mr. Chandler over the years, mentioned by the District Court in its Order (R7-457-66, n. 23), still maintained contact with Chandler. For example, Jerry Masters, who testified that he and Chandler "grew apart" when "he developed family and I developed family" (R12-93), also testified that he "still knew him real well." (R12-95). Kenneth Chasteen, who the District Court noted had testified that Chandler was attending church less regularly in 1989 and 1990 (R7-457-66 n. 23), also testified that during the same time period he saw Chandler "at least once a week." (R12-105). Therefore, even for those few witnesses who admitted less contact with Chandler over the years, the record does not support the District Court’s conclusion that their testimony should be dismissed as excessively "dated." (R7-457-66).
More important, the District Court failed to explain why the evidence of specific acts of generosity, kindness, thoughtfulness, concern for his neighbors, etc., testified to by the witnesses, which predated Chandler’s alleged marijuana related activities, was irrelevant or unimportant in assessing the "uniquely individual human being" Ronald Chandler. Woodson v. North Carolina, 428 U.S. at 304. (R7-457-66-67). After all, mitigation evidence is often directed at the defendant’s "background", most commonly in an effort to show that the defendant’s criminal acts were the product of a deprived or traumatic childhood. Here, the "background" evidence was offered to prove the kind, peaceable, and charitable nature of Mr. Chandler, including specific acts of remarkable kindness and generosity, an aspect of Ronald Chandler that a jury ought to have known in determining what penalty to impose upon him. People are and should be judged by both their good and their bad, but here the jury knew only the bad and never knew the good that Chandler had done in his lifetime. Moreover, no witness called by the defense, nor any witness called by the government, testified that Chandler ceased to be a charitable, generous, family-loving and thoughtful person when he became involved in criminal activity, as alleged by the government. Indeed, they testified to just the opposite.
The other reason offered by the District Court for discounting the value of the mitigation evidence available to the Defendant which was not presented due to the failure of his counsel is that many of the witnesses answered "no" when asked whether or not their opinion of Chandler would change if certain incidents related to the government’s evidence were true. Incredibly, the District Court found that these responses "largely nullified the persuasive value of the character testimony presented." (R7-457-68-69).
First of all, there is a serious question as to whether this type of cross-examination is even legally permitted, at least to the extent that the questions assumed Chandler’s guilt in connection with events which Chandler never conceded which were directly related to this prosecution. United States v. Candelaria-Gonzalez, 547 F.2d 291, 294-295 (5th Cir. 1977) (Hypothetical cross-examination questions related to the crime charged "have no place in a criminal trial."); United States v. Wilson, 983 F.2d 221, 223-225 (11th Cir. 1993) (Guilt related cross-examination questions to character witnesses allowed because questions dealt only with facts admitted by the defendant); United States v. Oshatz, 912 F.2d 534, 539-540 (2nd Cir. 1990)("[G]uilt-assuming hypothetical questions should not be asked character witnesses."); United States v. Mason, 993 F.2d 406, 408 (4th Cir. 1993) ("We are in harmony with all circuits, except one (the D.C. Circuit), that when called upon to address this issue, condemned the use of guilt-assuming hypothetical questions asked of lay character witnesses, whether testifying about a defendant’s reputation in the community for a character trait or expressing an opinion about a trait.")
Moreover, even if an exception to this rule were allowed, because the witnesses were called at sentencing after guilt had been determined--but guilt only as to the charges in the indictment, not the particular incidents referred to in the government’s questions--the only permitted question is whether the witness knew or had heard of the alleged incident. The next question--which is actually a trick question because there is no good answer--as to whether "if" this incident occurred it would change their opinion is not allowed. United States v. Hewitt, 663 F.2d 1381, 1391 (11th Cir. 1981)("The question serves no legitimate purpose and, at the very least, was irrelevant."); United States v. Siers, 873 F.2d 744, 749 (4th Cir. 1989)("If the witness has not heard of the fact, that is the end of the inquiry, and asking the witness to assume the fact simply has no place in the case."); 2 Wigmore, Evidence '679 (Chadbourn rev. 1979). After all, the probative value of the answer to such a question is "negligible", at best. United States v. Morgan, 554 F.2d 31, 34 (2nd Cir. 1977).
But, perhaps more important to the issue now before this Court, whether or not the questions posed by the government or some portion of them are legally permitted, it is unwarranted to dismiss totally the type of specific good character evidence proffered here because of the struggles of the witnesses in attempting to answer these types of questions. Any experienced trial lawyer knows that these questions are trick questions for which there is no Aright" answer. If the witness testifies forthrightly, as did many of the witnesses here, that all that they could testify to was what they knew about Ronald Chandler, and that the Ronald Chandler they knew was kind, generous, charitable and good-natured, then their testimony is subject to the contention that they somehow did not know the "real" Ronald Chandler. On the other hand, if the witness answered that this information would affect their opinion, then the witness’ testimony is subject to the claim that they had conceded that what they knew about Ronald Chandler was somehow wrong. Every lawyer knows that there is no "correct" answer and the question is nothing more than a foolproof device at least to appear to discredit the witness with whatever answer the witness might give.
When you look at the entire testimony of these character-type witnesses honestly and set aside the lawyers’ gambits for what they are, the following assessment clearly emerges. All of these witnesses were salt of the earth citizens, none of whom was impeached with a criminal record, and many of whom held down substantial positions in the community. The witnesses included long time factory workers (R12-42, 53, 131, 154, 172, 178, 191, 197, 205), small business owners (R12-63, 90, 215), and employees of the Anniston Army Depot and the Marshall Space Flight Center. (R12-121, 241). All of them testified to Ronald Chandler’s value as a human being based upon their close associations with him. They may have not known that he was involved in cultivating and selling marijuana, but the Ronald Chandler that they knew was a good person, loyal and loving to his family and friends, who was remarkable in his willingness to help others when they needed it, even when they did not ask for help, without ever asking for anything in return.
Perhaps it is fair to question in some small respect "opinion" testimony of some of these witnesses about Chandler if there was another side to him about which they did not know. But, there is absolutely no reason to question the authenticity of the testimony of each of the witnesses as to specific instances of kindness, charity, generosity and a loving nature, described in detail above.
One might question "opinions", but no reasonable question could be raised as to whether or not each and every specific incident testified to by the twenty-seven character witnesses the Court allowed the defense to call actually occurred.
Such actual incidents speak much more loudly and persuasively than reputation evidence or personal opinions. This string of specific occasions of kindness, charity, good-humor, patriotism, thoughtfulness and goodwill sworn to by these witnesses is an incredible record that many of us would envy. They cannot be made to go away by the shrewd questions of lawyers, which the District Court unfortunately overemphasized. This was information which the jury needed to know in order to make an "individualized assessment directly related to the personal culpability of the criminal defendant", which treats the defendant "as a uniquely individual human being." Penry v. Lynaugh, 492 U.S. at 319, Woodson v. North Carolina, 428 U.S. at 304.
Here, the jury in determining sentence as to Mr. Chandler heard all of the bad about him, but due to the failures of his counsel, never heard the good. As a result, we can have no confidence in the judgment made by the jury. It was simply "unreliable", because the jury did not have a complete "life picture" of the "relevant facets, character and record of the individual offender or the circumstances of the particular offense", from which "a reasoned moral response to the defendant’s background, character and crime" could be made. Woodson v. North Carolina, 428 U.S. at 304, California v. Brown, 479 U.S. at 545; Jackson v. Herring, 42 F.3d at 1350. Instead, the failure of counsel to present meaningful character evidence was exploited by the prosecution in closing argument, where the government argued that "David Ronald Chandler is a thoroughly dangerous man" (TT12-57) and all that his wife and mother testified to "was just that he is my child, he is my husband and here is his background", but "everyone of you had a mother at one time and hopefully still do" and "Jack the Ripper had a mother" and "Charles Manson had a mother." (T12-73-74). The defense had no evidence upon which to make a response. See, Cave v. Singletary, 971 F.2d at 1519 (The "failure to present character evidence allowed the prosecution to emphasize (defendant’s) lack of redeeming character.").
Accordingly, the District Court was flat wrong when it decided that Chandler had not been prejudiced by the deficient performance of his trial counsel. All one needs to do is read the testimony of the twenty-seven character witnesses which the defense was permitted to call, whose testimony at the post-conviction evidentiary hearing consumes only a little over 200 pages (R12-42-250; R13-251-278) and it is impossible to conclude that a jury could fairly judge the unique humanity of Ronald Chandler without this information. As a result, this verdict cannot be deemed "reliable." It is not one in which we can have "confidence." Accordingly, the District Court’s conclusion denying the Defendant’s ineffectiveness of counsel in the sentencing phase of the Defendant’s trial should be reversed and a new sentencing hearing ordered.
At the time of trial, counsel for the Defendant submitted a proposed Defendant’s Requested Jury Instruction No. A-12, which read in part, "If you do not recommend the death penalty, the Court will impose a sentence of life imprisonment without possibility of release or some other sentence authorized by law." (OCR-220-A-12). The District Court declined to give this instruction and instead told the jury, "In deciding what recommendation to make (as to sentence), you are not to be concerned with the question of what sentence the Defendant might receive in the event you determine not to recommend a death sentence. That is a matter for me to decide in the event you conclude that a sentence of death should not be recommended." (TT12-85). The District Court further instructed the jury, "If you do not make such a recommendation (of death), the Court is required by law to impose a sentence other than death, which sentence is to be determined by the Court alone." (TT12-87). Counsel for the Defendant timely excepted to the failure to give this requested instruction. (TT12-93-94).
The Defendant raised on direct appeal the failure to give the alternative sentence instruction requested by defense counsel. This Court ruled that the Defendant had no right to such an instruction because "[t]he range of possible sentences that Chandler might receive in the event the jury did not recommend death" was not one of the "mitigating factors" which a defendant was entitled for the jury to know in determining his sentence. United States v. Chandler, 996 F.2d at 1086.
While the Defendant’s petition for a writ of certiorari from the Supreme Court was pending, the Supreme Court decided Simmons v. South Carolina, 520 U.S. 154, 114 S.Ct. 2187 (1994). The Simmons decision rejected the conclusion of this Court in Chandler that a capital defendant is never entitled to an instruction regarding the defendant’s sentence should he not be sentenced to death. Seven of the nine justices held that the Due Process Clause requires that at least (1) where the prosecution advances "generalized arguments regarding the defendant’s future dangerousness" in a capital sentencing hearing and (2) the defendant will be sentenced to life without parole if a death sentence is not imposed, then the defendant is entitled to the jury being informed that if they do not sentence the defendant to death, the alternative sentence will be life imprisonment without parole.6 Id. at 2168.
Of course, because the Defendant’s Petition for a Writ of Certiorari was pending on the date Simmons was decided, he enjoys the benefit of this "new rule" of Simmons, if in fact it is a "new rule."7 Griffith v. Kentucky, 479 U.S. 314, 321, n. 6, 328 (1987). Moreover, absolutely no significance can be drawn from the failure of the Supreme Court to exercise its discretionary power to grant a writ of certiorari. Teague v. Lane, 489 U.S. 288, 296 (1989). Therefore, this appeal is the first opportunity for this Court to apply Simmons to this case.
The District Court conceded that the Defendant should enjoy the benefits of the Simmons decision. (R1-457-70-72, 84-85). Moreover, the District Court did not question that the alternate sentence in this case, should the jury not return a death verdict, was life without parole. (R7-457-87). See U.S.S.G. §§ 2A1.1 and 2A1.5 and Application Note 1 to § 2A1.1 ("The Commission has concluded that in the absence of capital punishment life imprisonment is the appropriate punishment for a premeditated killing."). Indeed, the District Court sentenced the defendant to two life without parole sentences in addition to the death sentence. (OCR-254). Instead, the District Court argued that Simmons error did not occur in this case because of its claim that "the government did not place Chandler’s future dangerousness into issue at the sentencing hearing." (R7-457-89-90).
C. THE GOVERNMENT’S FUTURE DANGEROUSNESS ARGUMENTS.
The Supreme Court in Simmons could not have been more specific. The Court noted that the prosecution is constitutionally entitled to argue the future dangerousness of the defendant in the penalty phase of a capital trial, because "a defendant’s future dangerousness bears on all sentencing determinations made in our criminal justice system." 114 S.Ct. at 2193. (emphasis added). Therefore, prosecutors in death penalty cases often "urge the jury to sentence the defendant to death so that he will not be a danger to the public if released from prison." Id. at 2193. However, when a jury is asked to consider future dangerousness in its sentencing determination it is only fair that the jury also know about the defendant’s future eligibility for parole. As the Court in Simmons noted, "there may be no greater assurance of a defendant’s future non-dangerousness to the public than the fact that he never will be released on parole." Id. at 2194.
Therefore, in order to prevent the prosecution from creating a "false dilemma by advancing generalized arguments regarding the defendant’s future dangerousness while, at the same time, preventing the jurors from learning that the defendant will never be released on parole," the Due Process Clause requires in this situation that the defendant be entitled to inform the jury that if they do not impose the death penalty then the defendant will spend the rest of his life in jail. Id. at 2198. (emphasis added).
In analyzing the Simmons decision it is important to recognize the specific arguments that were made by the prosecutor in Simmons’ trial which the Court deemed to place the defendant’s future dangerousness into issue. The Court held that the prosecution made Simmons’ future dangerousness an issue when the prosecutor told the jury in closing argument that the question before them was "what to do with (Simmons) now that he is in our midst" and when he told the jury that a verdict of death would be "a response of society to someone who is a threat. Your verdict will be an act of self-defense." Id. at 2190-2191, 2200, 2203. Justice O’Connor noted that this "self-defense" argument "strongly implied that petitioner would be let out eventually if the jury did not recommend an death sentence." Id. at 2201. (emphasis in original).
This is "all" the prosecution said about future dangerousness in Simmons, something the dissent seized upon, Id. at 2202-2203. The word "dangerousness" was not even used. Therefore, it is difficult to understand how the District Court could distinguish Simmons from this case on the future dangerousness requirement when the future dangerousness arguments here were more pervasive and explicit than in Simmons. Indeed, the "generalized argument regarding the defendant’s future dangerousness", 114 S.Ct. at 2198, made by the prosecution here not only included a "self-defense" argument virtually identical to that given in Simmons. (TT12-75), but was even more graphic in its description of Chandler as "a thoroughly dangerous man." (TT12-57).
First, it should be remembered what the government contended its evidence proved here. The government presented evidence during the guilt/innocence phase of the trial, which was also explicitly made a part of the sentencing case (TT12-28), in an attempt to show that the Defendant was the leader of a large marijuana cultivation and distribution enterprise, that he had engineered the death of Shuler by offering Jarrell money to kill him, that he had solicited others to kill Shuler, that he had caused the death of at least two other individuals who had allegedly crossed him by stealing his marijuana, and that he had threatened the life of the Chief of Police of Piedmont, Alabama.
Based upon this evidence and these contentions (which unfortunately was not rebutted at trial with the evidence now known to the defense), the government passionately contended in closing argument both in the guilt/innocence and in the penalty phase of the trial that Chandler was a "thoroughly dangerous man" (TT12-57), who should be executed as a means of "self-defense."(TT-75). For example, in the guilt/innocence phase, the government concluded its argument by proclaiming, "Ronnie Chandler was building a dark and evil empire where values were lost and life was cheapened and you had to protect the profit and the product and this was the first order of business." (R10-170). The government continued, "Is it also coincidence that Ronnie Chandler wanted Marty Shuler dead and he did it and that Patrick Burrows, Ronnie Chandler said that he was going to be gone and he is and that McFry was going to be next and he is gone, too? The message Ronnie sent was that you cross Ronnie Chandler and you die." (R10-170).
In its opening closing arguments as to sentence, the prosecutors continued their theme. Chandler was described as "cunning and manipulative" and therefore "a far more dangerous individual than a self-confessed town drunk living hand to mouth who allows himself to be manipulated into actually doing this terrible act." (TT12-56-57). They said that Chandler "is by virtue of his intellectual ability a far more dangerous man than Charles Ray Jarrell would ever hope to be." (TT12-57). According to the prosecutors, "David Ronald Chandler is a thoroughly dangerous man." (TT12-57).
This refrain continued in the rebuttal closing argument. The government emphasized that Chandler was not merely responsible for the death of Marty Shuler, but that in fact Chandler was a multiple murderer, willing to kill anyone to protect his so-called "dark and evil empire." (R:12-68-69). The prosecution repeatedly drove home its theme of Mr. Chandler’s alleged future dangerousness, portraying him as an evil and dangerous man who would be unfazed by murder to further his interests. The rhetoric was unabashedly provocative. Chandler was compared to "Jack the Ripper" and "Charles Manson." (R12-74). The government contended that Chandler was not only responsible for the deaths of Shuler, Burroughs and McFry (TT:164-170, 12-69, 96), but it went on to suggest that Chandler even posed a threat to the life of the Chief of Police of Piedmont, Alabama. (TT:10-157, 170; 12-67). The prosecutors exclaimed, "Marty Shuler’s death sentence was formulated by a single, diabolical mind of somebody who was possessed with the idea that marijuana and money was more important than life." (TT12-74).
The government then concluded its argument with its "self-defense" flourish. The prosecutor urged the jury that "although it is against your natural nature to want to kill somebody and its against your natural nature, ladies and gentlemen, I submit to you that none of you want to talk about terminating someone’s life, you don’t want to talk about that except in time of war or in a self-defense-type situation." (TT12-75). The prosecutors finished with this crescendo, "And I submit to you that this is society’s self-defense. This is what has to be done in these situations. Ronnie Chandler put us all in this position. He put you in this position. It is a crime against all of us and the appropriate sentence has to be rendered." (TT12-75).
Every case is different and no two closing arguments in death cases are identical. But unless Simmons is to be deprived of any meaning by limiting it to its peculiar facts, there is no question that the type of case presented by the government here and argued to the jury with such passion was that the death penalty should be imposed at least in part because of Chandler’s alleged future dangerousness. Why else call him a "thoroughly dangerous man", remind the jury repeatedly of the contention that he was responsible for numerous murders, and conclude with an appeal that the death penalty is an act of "self-defense." Clearly, this was at least "generalized argument of future dangerousness", 114 S.Ct. 2191, 2198, which triggers the right to an alternative sentence instructions under Simmons, at least where, as here, the alternative sentence is life without parole.
D. THE DISTRICT COURT’S MISINTERPRETATION OF THE RULE IN SIMMONS.
Despite the obvious future dangerousness component of the prosecution’s case for death, the fact that the alternative sentence in this case was life without parole, and the fact that the defense had requested a Simmons-type instruction at the time of trial, the District Court nevertheless claimed that Simmons did not require a new sentencing hearing here, because (1) the government did not rely on Chandler’s claimed future dangerousness as a "sentencing criterion" (R7-457-89), (2) unlike Simmons, there was no evidence presented "suggesting that Chandler suffered from a mental problem that rendered him powerless to resist the urge to violence," (R7-457-90) and (3) the statements relating to future dangerousness were allegedly made only in the context of rebutting one of the statutory mitigating factors, rather than as an "affirmative argument" of future dangerousness. (R7-457-90). Each of these claimed distinctions with Simmons are simply not in the Simmons holding, not compelled by the reasoning of Simmons, or is plainly refuted by the record below.
First, there is no requirement under Simmons that the government use future dangerousness as a "sentencing criterion," whatever the District Court means by this term. In both Simmons and in this case, the government based its future dangerousness argument upon a pattern of criminal activity, i.e. the murder involved in the case on trial was not the only crime of violence in which the defendant had allegedly participated and he was likely the type of person who would continue to commit such acts of violence unless he was put away for good.8 But more important, Simmons established the right of a defendant to inform the jury of the alternative sentence of life without parole whenever the prosecution "advanc[es] generalized arguments regarding the defendant’s future dangerousness." Simmons, 114 S.Ct. at 2198. (emphasis added). The so-called "sentencing criterion" limitation posed by the District Court is simply not a part of the Simmons holding.
Similarly, while the specific facts of Simmons involved claims of mental illness, the Simmons court, likewise, did not limit the Simmons alternative sentence instruction right only to cases where mental illness was at issue. The plain language of Simmons applies this right to any defendant where the prosecution "rests its case for imposing the death penalty at least in part on the premise that the defendant will be dangerous in the future," whether or not that claimed future dangerousness is the result of a mental illness. Simmons, 114 S.Ct. at 2196.
Finally, Simmons does not make, and it would not make any sense to make, a distinction between a case where the prosecution makes the dangerousness argument affirmatively or in isolation, as opposed to being in the course of "rebutting" a mitigating factor. The bottom line of Simmons is that where the prosecution argues for death in part because the defendant poses a risk of future dangerousness, the Simmons requirement is applicable.
Indeed, it could just as easily be contended that the future dangerousness argument that was made in Simmons was actually a response to the mitigating evidence presented by the defense there related to childhood abuse and a history of mental illness. The prosecution in Simmons attempted to rebut this mitigation evidence, by arguing that Simmons’ mental illness, far from being a mitigating factor, actually justified his execution by rendering him dangerous. The Supreme Court understandably attached no significance to the fact that the prosecution’s future dangerousness argument was a response to the defendant’s mitigation evidence.
In fact, contrary to the District Court’s analysis, the prosecution’s future dangerousness argument here was not simply in response to a mitigating circumstance urged by the defense, i.e. that Jarrell, the actual killer of Shuler, would not receive the death penalty. Instead the future dangerousness theme began during the guilt/innocence phase of the trial and was part of the prosecution’s opening closing argument at sentencing, prior to any argument having been advance by the defense (TT12-57). Nevertheless, even if the government’s future dangerousness contentions had been solely in response to mitigation arguments, the distinction is of no legal moment. As mentioned above, the future dangerousness argument in Simmons was actually a response to the defendant’s mitigation case. Moreover, in all death penalty cases, mitigation and aggravation arguments interrelate and overlap. Indeed, the issue that the jury is asked to decide is whether aggravating factors outweigh mitigating factors. '848(k). The important constitutional right protected in Simmons should not rest on a blurry distinction between whether the dangerousness argument is made in combination with addressing a mitigating factor or whether it is raised in complete isolation. All that Simmons requires is that the prosecution "advanc[e] generalized arguments regarding the defendant’s future dangerousness" as a reason for death and that is amply reflected in the record below.
The holding of the Supreme Court in Simmons applies to this case. This appeal is the first opportunity of this Court to apply Simmons to the circumstances of this case. Under Simmons a capital defendant is entitled upon request to an instruction that the alternate sentence to death is life without parole when (1) in fact such a sentence is the legal consequence of a sentence other than death and (2) the prosecution advances "generalized arguments regarding the defendant’s future dangerousness" in support of the imposition of the death penalty. Here, the alternative sentence was clearly life without parole. Here, the government clearly contended that the defendant’s future dangerousness was at least one reason why the death penalty should be imposed. Here, the defense clearly requested a Simmons-type instruction, which the Court refused to give, to which the defense excepted. A Simmons violation is therefore complete and on this basis alone a new sentencing hearing should be ordered.
At the time the Defendant was convicted and sentenced to death in April of 1991, the statute under which he was convicted and given the death sentence provided for no means to implement that sentence. On January 19, 1993, almost two years after the Defendant’s conviction and sentencing, the Department of Justice attempted to correct this defect by promulgating 28 C.F.R. §§ 26.1-26.5 (the "Regulations"), which provide that the Defendant’s sentence should be implemented by means of lethal injection.
This extraordinary set of circumstances, whereby the Defendant is to be put to death by a means of execution never enacted by Congress and determined only by Regulations authored and enacted by his adverse party in this case, violates the Defendant’s constitutional and statutory rights in several respects. First, the Regulations are an unconstitutional delegation of legislative authority. Congress never explicitly nor implicitly authorized the Department of Justice, an administrative agency, to enact substantive rules regarding the time, place and manner of executions for those sentenced to death under federal law--nor could Congress constitutionally have done so under Article I, Section 1 of the United States Constitution. Here, as opposed to Mistretta v. United States, 488 U.S. 361, 370-380 (1989), involving the Sentencing Guidelines, relied upon by the District Court (R7-457-100), there was no specific authorization or delegation of authority given by Congress to the Justice Department, much less any "intelligible principles" or "minimal standards", upon which to base its conclusions. The Justice Department on its own and without specific legislative authority, in effect "legislated" the means of execution which Congress had neglected to provide when it enacted § 848(e).9 The Constitution just does not allow the Justice Department to remedy by regulation defects in congressional legislation.
Second, the Regulations were promulgated almost two years after Chandler was sentenced and therefore constitute retroactive rulemaking, contrary to the Administrative Procedures Act. See, Georgetown University Hospital v. Bowen, 821 F.2d 750 (D.C. Cir. 1987), aff’d, 488 U.S. 204 (1988). Finally, to execute the Defendant based upon Regulations passed by the Department of Justice not only long after the Defendant’s alleged crime but also long after his conviction and sentence for that crime, violates the constitutional protections of Article I, Section 9 of the United States Constitution prohibiting Bills of Attainder and ex post facto laws.
Evidence discovered only after trial reveals that a substantial injustice has occurred in this case. A jury convicted the Defendant of serious drug offenses and of murder based upon evidence that we now know, based upon newly discovered evidence, is questionable at best. Evidence strongly supporting the Defendant’s innocence and known to the prosecution was not revealed to the defense or the jury and evidence undermining the government’s case in existence at the time of trial was not investigated or presented due to the failure of trial counsel.
Then the jury sentenced the Defendant to death at a sentencing hearing where the case for life was presented in less than twenty minutes and the entire sentencing hearing from start to finish lasted less than three hours. Due to the failure of trial counsel to conduct even the most rudimentary of investigations, the jury sentencing the Defendant to death had not an inkling that the Defendant they had just convicted of serious crimes was also known to be kind, compassionate, generous and loyal and had performed extraordinary acts of charity and kindness throughout his life without being asked or expecting anything in return. They also had no inkling that if they did not sentence the Defendant to death he would be sentenced to the rest of his days in prison. Obviously, their sentencing determination was not individualized and reliable and it is not worthy of confidence.
Therefore, the Court should reverse the District Court and, given the cumulative impact of the newly discovered evidence under Rule 33 and the constitutional violations involved, and the fact that the Shuler murder evidence was admitted into evidence and considered by the jury in reaching its verdicts as to all counts of the Indictment10, a new trial should be ordered as to all counts. At a minimum a new trial should be ordered as to Count III and IV, where the charges were directly related to the Shuler incident, and given that the murder related evidence drove the sentencing on Counts II, IV, V, VI, VII, VIII and IX, a new sentencing ordered on these counts. As to the sentencing violations, if a new trial is not ordered regarding the conviction on Count III, then a new sentencing hearing should be ordered. Finally, if no other relief is granted, the Court should order that, because Congress did not and has not properly prescribed a means of execution of the death sentence in this case, the proposed Order of the District Court setting an execution pursuant to Justice Department Regulations be set aside and that no execution of the death sentence in this case proceed under the current status of the law.
This ____ day of October, 1997.
Respectfully submitted,
John R. Martin
MARTIN BROTHERS, P.C.
500 The
Grant Building
4 Broad Street, N.W.
Atlanta, GA 30303
(404)
522-0400
Natasha Zalkin
204 El Reposo Place
Suite
D
Panama City Beach, Fl 32408
(850) 230-0468
By:________________________
Attorneys for Defendant
David Ronald Chandler
FOOTNOTES
The Original Criminal Record (including all the pleadings and transcripts in the original record on appeal in this case) are listed as an "Exhibit" to the record in this appeal. Citations to the pleadings in this Original Criminal Record will be indicated as "(OCR-pleading number)". Citations to the trial transcript in this Original Criminal Record will be indicated as "(TT-volume number-page number)". Accordingly, the citation here is to pleading 115 (the Indictment) and pleading 219 (the Jury Verdict) in the Original Criminal Record. Citations to the record in this case will follow the usual prescribed format.
Of course, decisions of the former Fifth
Circuit rendered prior to October, 1, 1981 are binding precedent in this
Court. Bonner v. City of Pritchard, 661 F.2d
1206, 1209 (11th Cir. 1981).
Count V was a conviction for
the use of a firearm in connection with a criminal enterprise and was
based solely on the testimony of Charles Ray Jarrell regarding his claimed
use of Chandler’s gun in the Shuler murder, supposedly at Chandler’s
instructions.
See, e.g., District
Court’s conclusion as to Charles Ray Jarrell (R9-493-18-19)("Jarrell has
made numerous prior inconsistent statements that reflect poorly on his
willingness to be truthful"; "Jarrell manipulates his account of events to
suit his then-present motives."); District Court’s conclusion as to Billy
Jo Jarrell (R4-384-9-10, n. 12) ("Because of the numerous material
inconsistencies in Jarrell’s sworn testimony and unsworn statements and
his own characterization of himself as a ‘liar’, it would be virtually
impossible to be sure which of Jarrell’s testimony or statements were
truthful, partially truthful or totally false."); District Court’s
conclusion as to Raymond Pointer ("In essence Chandler’s witnesses proved
too much--that Pointer was not simply a habitual liar, but was also
skilled at lying in a convincing manner"). (R7-457-38-39).
Indeed, trial counsel believed that the
Defendant would not even be convicted of murder, much less receive the
death penalty, after Jarrell admitted that he had previously tried to kill
Shuler due to his abuse of his sister. (R13-360-361).
The Court specifically declined to
decide whether this result was also required
by the Eighth amendment. 114 S.Ct. at 2192, n.3. Justices Stevens and
Souter noted in their concurrence that under the Eighth Amendment they
would require an instruction as to the sentence that would be imposed if a
death sentence verdict is not returned whenever requested by the
defendant. 114 S.Ct. at 2198-2199. The Defendant raises here both a Fifth
Amendment and Eighth Amendment challenge to the refusal of the District
Court to give the requested instruction.
See Ingram v. Zant, 26 F.3d 1047, 1054, n. 5 (11th
Cir. 1994).
Indeed, the pattern of violence
presented by the government here, if believed, is in one respect more
compelling than Simmons, since the other
instances of violence in Simmons did not
involve murders. See State v. Simmons, 427 S.E.2d 175, 177 (S.C.1993).
Indeed, if anyone was delegated this
authority by Congress, it was the Sentencing Commission. See, Mistretta, 488
U.S. at 378, fn. 11.
The Shuler murder, as well as the
Burrows, McFry and Police Chief Doyal threats, were alleged as overt acts
of the Count I conspiracy upon which the Count III CCE was based.
(OCR-115-Overt Acts 19-31).