CAPITAL SENTENCING PHASE ERRORS   (4)

 

 NUMEROUS DEFICIENCIES AND INADEQUATE MITIGATION

 

 U.S. Supreme Court Cases

 

 

*Rompilla v. Beard
125 S. Ct. 2456.

Counsel ineffective in capital sentencing for failing “to make reasonable efforts to obtain and review material that counsel [knew] the prosecution [would] probably rely on as evidence of aggravation at the sentencing phase of the trial,” which would have led to significant mitigation Counsel interviewed the defendant, who provided minimal assistance in mitigation and “was actively obstructive by sending counsel off on false leads,” and a few of the defendant’s family members, and reviewed the reports of court-appointed examiners, who assessed only competence and capacity at the time of the offenses. Finding nothing “particularly helpful” in these sources, counsel did not conduct additional investigation for information “that might have cast light on [the defendant’s] mental condition.” Counsel also did not obtain the file of a prior conviction for rape and assault, even though counsel knew the state intended to rely on the aggravating circumstance of a significant history of felony convictions indicating the use or threat of violence and knew that the state specifically intended to read the testimony of the prior rape victim into evidence in sentencing. In mitigation, the defense presented brief testimony from the defendant’s family members, who “argued in effect for residual doubt, and beseeched the jury for mercy.” In addressing the ineffective assistance claim, the Court noted that, in a capital sentencing, “defense counsel’s job is to counter the State’s evidence of aggravated culpability with evidence in mitigation.” While “reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste,” counsel’s conduct in this case was “deficient in failing to examine the court file” on the prior conviction because counsel knew the state intended to rely on it and “the prior conviction file was a public document, readily available for the asking at the very courthouse where [the defendant] was to be tried.” While counsel opposed admission of the evidence, this was insufficient because “[c]ounsel’s obligation to rebut aggravating evidence extended beyond arguing it ought to be kept out.” Here, despite knowing of the state’s intent to rely on the evidence, counsel did not look at any part of the file, until the day before the sentencing phase began and then looked only at the transcript of the victim’s testimony. The obligation to review the remainder of the file

was particularly pressing here owing to the similarity of the violent prior offense to the crime charged and [the defendant’s] sentencing strategy stressing residual doubt. Without making efforts to learn the details and rebut the relevance of the earlier crime, a convincing argument for residual doubt was certainly beyond any hope.

In reaching this conclusion, the Court emphasized “[t]he ease with which counsel could examine the entire file. . . . Suffice it to say that when the State has warehouses of records available in a particular case, review of counsel’s performance will call for greater subtlety.” The Court also noted that “[t]he notion that defense counsel must obtain information that the State has and will use against the defendant is not simply a matter of common sense.” It is described “in terms no one could misunderstand” in the ABA Standards for Criminal Justice “in circulation” at the time of trial and the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases promulgated in 1989, “shortly after” this trial, and made “even more explicit” in the 2003 revisions. “[I]n any case, [we] cannot think of any situation in which defense counsel should not make some effort to learn the information in the possession of the prosecution and law enforcement authorities.” The state court’s application of Strickland was objectively unreasonable because the court reasoned that “defense counsel’s efforts to find mitigating evidence by other means excused them from looking at the prior conviction file.” The Court rejected this reasoning because “[n]o reasonable lawyer would forgo examination of the file thinking he could do as well by asking the defendant or family relations whether they recalled anything helpful or damaging in the prior victim’s testimony.” Counsel is not required to look

for a needle in a haystack, when a lawyer truly has reason to doubt there is any needle there. But looking at a file the prosecution says it will use is a sure bet: whatever may be in that file is going to tell the defense counsel something about what the prosecution can produce.

The Court cautioned, however, that, although counsel’s conduct was unreasonable in the circumstances of this case, a different result might be obtained in other situations “where a defense lawyer is not charged with knowledge that the prosecutor intends to use a prior conviction in this way.” Because the state court never reached question of prejudice, the Court examined this issue “de novo.” Prejudice was uncontested by the Commonwealth and the Court found prejudice. If counsel had looked in the file, counsel would have discovered “mitigation leads that no other source had opened up,” including information that the defendant grew up in a “slum environment” and had numerous prior incarcerations for offenses “often of assaultive nature and commonly related to over-indulgence in alcoholic beverages.” The file also contained information “pointing to schizophrenia and other disorders, and test scores showing a third grade level of cognition after nine years of schooling.” “The jury never heard even of this and neither did the mental health experts who examined [the defendant] before trial.” If the experts had reviewed these records, they (like “their post-conviction counterparts”) would have “found plenty of ‘red flags’ pointing up to a need to test further.” This testing would have established that (1) the defendant “suffers from organic brain damage, an extreme mental disturbance significantly impairing several of his cognitive functions”; (2) the impairments probably resulted from “fetal alcohol syndrome” and, thus, existed since childhood; and (3) the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was substantially impaired at the time of the offenses. “These finds in turn would probably have prompted a look at school and juvenile records, all of them easy to get,” which showed that (1) the defendant’s mother was often missing from the home for a week or more at a time when the defendant was 16; (2) the defendant’s mother was frequently drunk and “the children have always been poorly kept and on the filthy side which was also the condition of the home at all times”); and (3) the defendant’s “IQ was in the mentally retarded range.” “This evidence adds up to a mitigation case that bears no relation to the few naked pleas for mercy actually put before the jury” and “‘might well have influenced the jury’s apprisal’ of . . . culpability.” (quoting Wiggins v. Smith, 539 U.S. 510, 538 (2003) and Williams v. Taylor, 529 U.S. 362, 398 (2000)).

2003: *Wiggins v. Smith
___ U.S. ___, 123 S. Ct. 2527 (2003).

Counsel ineffective in capital habeas case, decided under the AEDPA, for failing to adequately prepare and present mitigation. Prior to trial, counsel had arranged for a psychologist to test Wiggins and had obtained a presentencing report and his social services records. Prior to sentencing, counsel filed a motion to bifurcate sentencing so they could present evidence in the first phase that Wiggins was not directly responsible for the murder (a finding required by state law for death eligibility) and in the second phase could present mitigation. The court denied the motion. In opening statements, counsel argued both issues and said that Wiggins had a difficult life and no prior convictions. Counsel did not present any life history evidence during mitigation though. Before closing arguments, counsel preserved the bifurcation issue and argued that, if bifurcation had been granted, counsel would have presented psychological reports and expert testimony demonstrating Wiggins’ limited intellectual capacity, the absence of aggressive behavior, and his desire to function in the world. In post-conviction testimony, counsel claimed to have investigated "extensively," but counsel in making their proffer did not even mention sexual abuse. This failure is "explicable only if we assume that counsel had no knowledge of the abuse." Id. at 2541. The Court found that this "may simply reflect a mistaken memory shaped by the passage of time. After all, the state post-conviction proceedings took place over four years after Wiggins’ sentencing." Id. The Court described the issue in this case as "not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable." Id. at 2536 (emphasis in original). In this case, the Court held that "[c]ounsel’s decision not to expand their investigation beyond the PSI and the DSS records fell short of the professional standards that prevailed in Maryland in 1989," because no "social history report" was prepared even though counsel had funds available to retain a "forensic social worker." Id. at 2536. "Counsel’s conduct similarly fell short of the standards for capital defense work articulated by the American Bar Association (ABA) – standards to which we have referred as ‘guides to determining what is reasonable.’" Id. (quoting Strickland, supra, at 688; Williams v. Taylor, supra, at 396). Applying these standards, the Court found that, "[d]espite these well-defined norms, . . . , counsel abandoned their investigation of petitioner’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources." Id. at 2537 (citing the ABA standards again). The Court found that "[t]he scope of their investigation was also unreasonable in light of what counsel actually discovered" in the records available to them. Id. at 2537.

In assessing the reasonableness of an attorney’s investigation, . . . , a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further. Even assuming [counsel] limited the scope of their investigation for strategic reasons, Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing court must consider the reasonableness of the investigation said to support the strategy.

Id. at 2538. In this case, "counsel were not in a position to make a reasonable strategic choice . . . because the investigation supporting their choice was unreasonable." Id. at 2543. Counsel’s conduct was deficient because the trial record revealed that the "failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment." Id. at 2537. The trial record reflected that "[f]ar from focusing exclusively on petitioner’s direct responsibility, . . . , counsel put on a halfhearted mitigation case. . . ." Id. at 2538. The "strategic decision" the court’s had found to be reasonable was rejected because it "resembles more a post-hoc rationalization of counsel’s conduct than an accurate description of their deliberations prior to sentencing." Id. at 2538. Prejudice was found because counsel did not discover "powerful" evidence of severe abuse from "alcoholic, absentee" parents. He also suffered "physical torment, sexual molestation, and repeated rape" in foster homes. He also spent time homeless and had "diminished mental capacities." Id. at 2542. The Court found:

Wiggins’ sentencing jury heard only one significant mitigating factor – that Wiggins had no prior convictions. Had the jury been able to place petitioner’s excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a difference balance.

Id. at 2543. In the final analysis, the Court held:

Given both the nature and the extent of the abuse petitioner suffered, we find there to be a reasonable probability that a competent attorney, aware of this history, would have introduced it at sentencing in an admissible form. While it may well have been strategically defensible upon a reasonably thorough investigation to focus on Wiggins’ direct responsibility for the murder, the two sentencing strategies are not necessarily mutually exclusive. More-over, given the strength of the available evidence, a reasonable attorney may well have chosen to prioritize the mitigation case over the direct responsibility challenge, particularly given that Wiggins’ history contained little of the double edge we have found to justify limited investigations in other cases.

Id. at 2542.

2000: *Williams v. Taylor, 
529 U.S. 362 (2000)

Counsel ineffective in capital sentencing for failure to prepare and present mitigation evidence. Counsel's did not begin to prepare for the sentencing phase until a week before trial. They failed to get extensive records of Williams's childhood because they incorrectly thought that state law barred access to such records. They failed to discover a number of available mitigation witnesses due to lack of investigation and, in one instance, simply because they failed to return the phone call of a CPA, who saw Williams as a prison minister. At trial, counsel presented testimony only from Williams's mother and two neighbors (one of whom was not interviewed before but was asked to testify on the spot when noticed in the audience during the proceedings). These witnesses testified that he was "nice" and not violent. Counsel also presented a tape of a psychiatrist's testimony simply relating that Williams had removed the bullets from a gun during an earlier robbery to avoid hurting anyone. In closing, counsel argued that Williams had turned himself in and the police would not have solved the crimes otherwise, but noted that it was difficult to find a reason why the jury should spare his life. Prejudice was found because an adequate investigation would have revealed that Williams's parents had been imprisoned for criminal neglect of Williams and his siblings, that Williams had been severely and repeatedly beaten by his father, that he had been committed to the custody of social services for two years during his parents' incarceration (including time spent in an abusive foster home), and that he was returned to his parents' custody when they got out of prison. The evidence also would have revealed that Williams was "borderline mentally retarded" and only completed the 6th grade in school, that he had received commendations in prison for helping to crack a prison drug ring and for returning a guard's missing wallet, and that prison officials would have testified it was unlikely that he would be dangerous in prison. If counsel had investigated and prepared for sentencing, even the state's experts who testified to future dangerousness would have testified that Williams would not pose a future danger if kept in a structured environment, such as prison.

 

 

U.S. Court of Appeals Cases

 

2007: *Haliym v. Mitchell,
___ F.3d ___, 2007 WL 2011268 (6th Cir. July 13, 2007).

Under AEDPA, counsel ineffective in capital sentencing for failing to adequately prepare and present mitigation. Counsel presented three witnesses in sentencing along with an unsworn statement from the defendant. A former employer testified that the defendant was a good employee. A psychiatrist, who spent only one and a half hours with the defendant and relied on pretrial court-appointed competence and sanity reports, testified that the defendant was diagnosed with an “adjustment disorder with depressed moods” and “malingering,” but that the defendant does not have a mental disease or defect. Finally, the defendant’s grandmother testified that the defendant lost both his parents and a brother over a two-month period. His father died of a heroin overdose and his brother was shot. Counsel’s conduct was deficient in failing to conduct “even the most basic interviews” with the defendant’s family members concerning the family background, even though counsel knew the defendant’s father died of a heroin overdose. “It is not the usual case where a parent copes with an addiction as serious and controlling as a heroin addiction without repercussions, often serious repercussions, being felt by the remaining family members.” Even basic interviews would have revealed a family history filled with the father’s physical abuse, which is “an important mitigation factor.” Counsel instead presented inconsistent evidence in the defendant’s statement that his parents were wonderful and in a doctor’s report that the defendant denied any physical abuse. Counsel also was aware that the defendant had attempted suicide by shooting himself in the left temple, “which should have strongly suggested the need to investigate whether Petitioner had a mental defect.” Instead, counsel presented evidence that the defendant had no mental disease or defect when “the limited time that [the doctor] spent with Petitioner–a mere hour and a half–sharply hindered his ability to make any independent analysis of Petitioner's mental health.” The court also noted that counsel’s performance fell short of the 2003 ABA Guidelines. Counsel’s failure to investigate “was unlikely the result of a strategic choice. Despite the availability of funding to procure experts chosen by Petitioner at the mitigation phase, . . . Petitioner's attorneys nevertheless relied upon the presentence report” of a court-appointed expert and the inadequate testimony of the expert witness presented.

Had Petitioner's counsel taken an active role in procuring an expert to investigate Petitioner and author a report for mitigation, evidence of Petitioner's social history and brain injury would likely have come before the trial court. We can fathom no strategic reason for Petitioner's counsel's failure in this regard.

Prejudice found because adequate investigation would have revealed significant mitigation, including the defendant’s father’s violence against the defendant and his family, the loss of both parents and a brother when the defendant was only a teenager, which affected the defendant profoundly. Shortly afterwards, he started using heroin, leading to a drug addiction. He also became severely depressed and shot himself causing a serious brain injury and functional brain impairment, which causes problems with impulsivity, judgment, and problem solving. There is a reasonable probability that this evidence would have led to a different result before the three-judge sentencing panel, which would likely have reached a different result with evidence of a mental disease or defect.

*Stevens v. McBride,
489 F.3d 883 (7th Cir. 2007).

Under AEDPA, counsel ineffective in capital sentencing for failing to adequately prepare and present mental health expert and presenting the testimony of an “expert” counsel believed to be a “quack,” which was very prejudicial. The defendant, described in the first sentence of the opinion as “an emotionally disturbed young man who had been abused and raped as a child,” was sentenced to death for “the molestation and brutal murder” of a 10-year-old boy. He also had a prior molestation conviction for which he was on parole at the time. Prior to trial counsel retained “a defense mitigation specialist” and were aware of obvious mental health issues due to the defendant’s physical, mental, and emotional abuse and his rape as a child. Medical records reflected that he had been held in a psychiatric facility following an attempted suicide and that he had been diagnosed with major depression and possible schizophrenia. The defendant also disclosed to the mitigation specialist that, at the time of the murder, he put himself in the victim’s place because he had wished that the man who raped him had also killed him. Based on the mitigation specialist’s recommendation, counsel retained a psychologist, who at the time was director of a child and adolescent psychiatric center. Counsel met with the doctor and asked him to evaluate the defendant but not to prepare a report. The doctor wrote a report anyway which included very prejudicial information such as no mental illness, molestation of 25-30 children, a prior murder (later recanted), lack of acceptance of responsibility, committing this murder for the purpose of avoiding a return to prison, a diagnosis of pedophilia, and future dangerousness. Counsel contacted the doctor, who said basically that he would make a good witness for them despite his report. Counsel also learned that the doctor believed that “mental illness” is a “myth” and used a “therapeutic technique described as “putting 18-year-olds on his lap and sticking a bottle in their mouth.” Counsel then had “well-founded doubts” about the doctor’s “fitness as a defense expert” and believed he was a “quack.” Counsel’s conduct was deficient though because counsel did not seek a different mental health expert and provided the state with this doctor’s report prior to trial (when counsel was only required to disclose reports from expert witnesses who would be called to testify). During trial, rather than pursuing a mental illness defense, counsel argued a voluntary manslaughter theory, but the court refused to even charge on manslaughter. In the penalty phase before the jury, counsel presented testimony from the defendant and some family members and then called the “quack” to testify. His testimony extensively covered the doctor’s beliefs and theories and some testimony about the defendant’s “terrible childhood” and abuse. His testimony did not, however, provide any evaluation of the defendant’s mental health at the time of the offenses. On cross, the state questioned the doctor extensively on his report, which he confirmed. The quack volunteered that the defendant had “antisocial qualities and sociopathic traits.” In response to questions from the state, the doctor also confirmed that the defendant had admitted to him that he was sexually aroused by killing the child and had masturbated on the child’s body. The doctor had not even disclosed this last information to defense counsel. After the jury recommended death, counsel called the doctor to testify yet again in sentencing before the judge. This time he added that the defendant posed “a great risk to society.” The defendant challenged counsel’s ineffectiveness for failing to present a mental health defense during trial and in mitigation. The state argued essentially that counsel was entitled to rely on their “expert” without seeking an additional expert because he was a qualified doctor. The court rejected this because “the general qualifications of an expert witness do not guarantee that the witness will provide proficient assistance in any given instance.” The problem in this case arose due to the “methods” the doctor used, “his idiosyncratic view of mental disorders,” and “the fact that [his] views favored the prosecution.” Thus, “it would not have been reasonable for defense counsel to rely on” this doctor “based only on his credentials.” While the court was “inclined to believe that their performance was ineffective” during the trial and that prejudice was established, the court, constrained by AEDPA review, did not find that the state court’s contrary conclusion was an unreasonable application of Strickland. With respect to sentencing, however, counsel’s conduct was both deficient and prejudicial because counsel presented lay testimony as essentially non-statutory mitigation, but did not present evidence of the statutory mitigating circumstances of extreme emotional disturbance and impaired capacity to appreciate the wrongfulness of his conduct at the time of the murder, which were supported by two competent experts in post-conviction. These experts diagnosed a severe dissociative disorder and found that the defendant was dissociating during the murder and killing the child because he himself wanted to be killed by the man that had raped him as a child.

The strategic reasons that might, at a stretch, have justified this decision [not to present a mental health defense] at the guilt phase, fall apart when we consider that at the sentencing phase [the defendant] had nothing left to lose. The lawyers' decision to forego presenting this kind of mitigation evidence was made without the kind of investigation into [his] mental health that Strickland calls for, after [his] lawyers had concluded that [the doctor] was a "quack." Indeed, it is uncontested that [his] lawyers knew nothing about the content of [the doctor’s] planned testimony. The lawyers confessed at the post-conviction hearing that they were utterly in the dark about what [he] would say when he took the stand. . . . This is a complete failure of the duty to investigate with no professional justification. Where an expert witness's opinion is "crucial to the defense theory[,] defense counsel's failure to have questioned [the expert] ... prior to trial is inexcusable."

Id. (quoting Combs v. Coyle, 205 F.3d 269, 288 (6th Cir.2000)). The court also noted that counsel had the doctor’s report and “we cannot imagine what they hoped to gain” by calling him to testify. In addition, if he had not been called as a witness, counsel was under no obligation to disclose his report to the prosecution. Even though counsel may not have been ineffective for not presenting mental health testimony during the trial, they were during sentencing.

[T]here is an important difference between the statutory mitigating factors . . . for capital sentencing purposes and the requirements for proving an insanity defense at the guilt phase. Furthermore, the burden on the defendant is not as heavy at sentencing as during the guilt phase. . . . As a legal matter, a mental illness mitigation defense to the imposition of a death sentence may be available even if an insanity defense to the murder charge is not.

If counsel had presented “mainstream expert psychological testimony” such as that presented in post-conviction, there is a reasonable probability of a different outcome. “Competent evidence” of “mental illness would have strengthened the general mitigation evidence presented by defense counsel . . . by focusing the jury on the concrete results of years of abuse on [the defendant’s] psyche.” There was also “little downside” in further evidence of the defendant’s “predatory pedophilia” being presented when “evidence of the most damning sort was already before the jury.” Prejudice was especially clear in calling the “quack” to testify and then to do it a second time because he not only provided the only evidence of “necrophilia after the murder, he also gave the prosecution a gift by expressing his belief in . . . future dangerousness–a subject that the prosecution itself is not permitted to argue as an aggravating circumstance under Indiana law.” The trial court’s sentencing order also was “a close reflection of [the doctor’s] written report and testimony.

*Lambright v. Schriro,
___ F.3d ___, 2007 WL 1880985 (9th Cir. July 2, 2007).

Under pre-AEDPA law, counsel ineffective in failing to adequately prepare and present mitigation. Counsel’s conduct was deficient because counsel “failed to do even a minimal investigation of ‘classic mitigation evidence,’ notwithstanding the fact that he knew such evidence potentially existed.” He spent less than five hours preparing for sentencing even though counsel was aware from the pre-sentence investigation report and the court-appointed examiner’s report of the defendant’s long history of mental health problems, his two prior suicide attempts, his prior hospitalization in a psychiatric facility, his traumatic combat experiences in Vietnam, his serious drug problems, and his diagnosis by a court-appointed examiner of antisocial personality disorder. It was not sufficient that counsel prepared a short memorandum for the sentencing court because counsel’s duty “is not discharged merely by conducting a limited investigation of these issues or by providing the sentencing court with a cursory or ‘abbreviated’ presentation of potentially mitigating factors.” Prejudice found because counsel presented a single witness to testify about adaptability to confinement and this evidence covered less than three pages of the transcript. The court rejected the “nexus requirement” applied by the District Court.

If evidence relating to life circumstances with no causal relationship to the crime were to be eliminated, significant aspects of a defendant's disadvantaged background, emotional and mental problems, and adverse history, as well as his positive character traits, would not be considered, even though some of these factors, both positive and negative, might cause a sentencer to determine that a life sentence, rather than death at the hands of the state, is the appropriate punishment for the particular defendant. This is simply unacceptable in any capital sentencing proceeding, given that "treating each defendant in a capital case with that degree of respect due the uniqueness of the individual," and determining whether or not he is deserving of execution only after taking his unique life circumstances, disabilities, and traits into account, is constitutionally required. Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

Prejudice established because counsel failed to even develop or argue the limited and unsubstantiated mitigating evidence that was before the court in the pre-sentence report and the state’s expert report. These documents included information that the defendant’s mother was “very strict” and hypochondriacal. In truth, she physically abused the defendant frequently and stayed in bed much of the time claiming to suffer from illnesses and was profoundly addicted to prescription drugs. She would even force the defendant to take Valium and sleeping pills when he acted up or had too much energy. The information before the court indicated that the defendant’s family moved frequently but did not “convey” the impact on the defendant in terms of his ability to form relationships or that he never attended any school for more than a year. The information before the court indicated that the defendant was raised in a lower-middle class family, when he grew up in extreme poverty. The family moved frequently because of his father’s struggle to maintain employment. The family often lived in homes with no running water or indoor plumbing and once had to live in a rat-infested house in which the walls and ceilings were lined with cardboard to block holes. The court had information about drug use but was not aware that drug and alcohol abuse were rampant in the defendant’s family or that it was his mother who first exposed him to drug abuse by forcing him to take sedatives when he was a child or that he used large quantities of drugs throughout his life and would stay awake for weeks at a time on methamphetamine. The defendant also likely suffered from post-traumatic stress disorder from his combat experience and abusive background, but even the state’s expert in post- conviction agreed that the defendant had a depressive disorder, which resulted in two suicide attempts, and had to be hospitalized at least once due to hallucinations. The state expert also agreed that the defendant has a personality disorder not otherwise specified with antisocial, borderline, and inadequate features, which “if properly developed and explained to the sentencer, would have had a mitigating effect under Arizona law.” Even the diagnosis of antisocial personality disorder given by the court-appointed examiner at trial, “is a mitigating factor under Arizona law.” Even though some mitigating evidence was before the court, prejudice was still clear.

We do not underestimate the importance of the role of counsel in the adversarial process. The sentencing judge cannot be expected to comb the record looking for mitigating factors, particularly where the minimal evidence that exists is buried in reports that are on the whole strongly unfavorable to the defendant.

Prejudice was especially clear since there was only one aggravating factor and Arizona law at the time of sentencing “mandated the death penalty” when one aggravating factor was present and no mitigation evidence was presented.

*Anderson v. Sirmons,
476 F.3d 1131 (10th Cir. 2007).

Under AEDPA analysis, trial counsel ineffective in capital sentencing for failing to adequately investigate and present mitigating evidence. Although the issue was first raised in federal habeas, the court found, under unique facts not relevant here, that exhaustion was excused and the issue was not procedurally barred because the state had not established regular and consistent application of a procedural bar. Because of these rulings and the state court’s failure to address the merits, the court applied de novo review and cited repeatedly to the 1989 and 2003 ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. Counsel’s conduct was deficient because counsel focused “almost exclusively on the guilt phase of his trial.” Id. at 1143. While counsel had a mitigation investigator that investigator spent only 23 hours on the case, all of which was in the month prior to trial, did not interview the petitioner and “did not have access to life-history information, school records, or medical records.” Counsel also did not have the petitioner evaluated by any mental health expert or other expert qualified to ascertain whether the petitioner “suffered from neurological or other deficits that would mitigate his moral culpability.” Id. Although trial counsel did not provide an affidavit, the mitigation investigator’s affidavit along with evidence that trial counsel’s file contained no background records was sufficient to establish that the investigation of mitigation evidence was unreasonable. Prejudice established despite three “callous and brutal” murders, no residual doubt of guilt, three aggravating circumstances, and evidence the petitioner obtained drugs and a weapon and corresponded with his wife about “taking care” of witnesses while in pretrial confinement. Trial counsel had presented evidence only of petitioner’s support of his family, that his mother was a “good woman,” who loved him, and his daughter loved him and he could help her from prison. “Thus, rather than offering the jury a potential explanation for [the petitioner’s] actions relating to the murders he participated in, trial counsel’s case in mitigation was limited to a simple plea for mercy.” Id. at 1144. This evidence “played into the prosecution’s theory that the only explanation for the murders was that [the petitioner] was simply an ‘evil’ man.” Id. at 1147. If counsel had adequately investigated the evidence would have established that the petitioner was raised in an environment of neglect and abuse; his mother and step- father were violent alcoholics, who battled before the children; his mother physically abused the children with anything at hand; his mother had numerous illicit affairs in the home that were known to the children; he suffered from brain damage and an IQ in the 70's, likely as a result of extensive drug and alcohol abuse begun as a child and numerous head injuries. “[T]his is just the kind of mitigation evidence trial counsel is obligated to investigate and develop as part of building an effective case in mitigation during the penalty phase of a trial.” Id. at 1144.

2006: *Correll v. Ryan,
465 F.3d 1006 (9th Cir. 2006).

Under pre-AEDPA law, counsel ineffective in capital sentencing for failing to adequately investigate and present evidence of the petitioner’s mental health and failing to present mitigation evidence. Counsel’s conduct was deficient in numerous respects. Counsel knew the petitioner “came from a dysfunctional family, sustained a serious head injury, was committed to various psychiatric facilities, and that he was addicted to drugs; yet defense counsel did not obtain the records nor did he interview witnesses concerning these matters.” Counsel only met with the petitioner’s father, sister, and brother once and at the same time. He did not obtain school records, police reports on prior convictions, records from the California Youth Authority, medical records, or psychiatric records. “As anemic as the defense counsel's investigation was, his presentation of mitigating evidence at the penalty phase was worse.” Counsel presented no evidence, which mandated the death penalty under Arizona law because the defendant had a qualifying prior conviction and no mitigation. Defense counsel's mitigation argument did not even attempt to rebut three of the five aggravating factors urged by the State. “The entirety of his oral argument at the penalty phase consists of approximately 7 pages of transcript.” “Given his virtual concession of most of the aggravating factors argued by the State, and waiver of the presentation of mitigation evidence, the outcome was obvious: imposition of the death penalty.” Prejudice found because, if counsel had adequately investigated, the evidence would have established the petitioner endured an abusive childhood in which he was neglected by his mother, who spent most of her time at church. The children were physically punished if they did not understand religious doctrine. There was incest in the family. A brick wall collapsed on the petitioner’s head when he was seven causing unconsciousness for some time, but no medical treatment was sought for several days. The petitioner began “self-medicating” experimenting with alcohol and drugs around age ten and was using marijuana, LSD, and amphetamines regularly by age twelve. The petitioner’s parents responded by beating him and threatening to kick him out. After the petitioner was shot at age 14, his parents asked the state to terminate their parental rights and cut off all communication with him. He became a ward of the state and spent his teenage years “in various state institutions described as ‘gladiator schools,’ which were characterized as cruel and inhumane, even by those who worked there.” Within months, he became addicted to heroin. He was committed to psychiatric institutions at least twice during his teen years and was described at age 16 as “severely psychologically impaired.” He was treated with a tranquilizer/anti-psychotic drug while institutionalized, and attempted suicide on two occasions. By the time of the crimes, he was injecting a quarter gram to a gram of methamphetamine in one shot, and injecting three to four shots a day. He would go seven to ten days without sleep, followed by one to two days of continuous sleep. Expert testimony indicated that he was likely having impulse control problems and judgment impairment at the time of the crime, and may have been experiencing drug-induced paranoia. Counsel did not pursue “the classic mitigation evidence,” because “he didn't think of the evidence as favorable evidence. However, it is precisely this type of evidence that the Supreme Court has termed as ‘powerful.’” Id. (quoting Wiggins). While counsel also appeared to be afraid of the particular judge’s reaction to the evidence, “this presumes that the judge would not follow the law-speculation that is not supported by the record” and also ignores the fact that, under state law, the Arizona Supreme Court independently reviews the aggravating and mitigating factors and re-weighs them and conducts a proportionately review.

*Outten v. Kearney
464 F.3d 401 (3rd Cir. 2006).

Counsel ineffective in capital sentencing for failing to adequately investigate and present mitigation evidence. The state presented evidence of the defendant's post criminal history, which was all non-violent offenses. The defense presented six people (four family members, a friend, and an ex-girlfriend, who was the mother of the defendant's children) to testify about general background and good guy evidence in mitigation. Counsel's conduct was deficient because the "investigation was cursory" in that counsel only sent the defendant a letter asking for the names of "potential penalty phase witnesses" and had only limited discussions with the defendant and his mother. Counsel's conduct was not excused by strategy to focus on the defendant being a loving, generous, and non-violent person, who did not commit the crime, and to avoid negative information.

Simply stated, defense counsel's penalty-phase strategy was to argue to the jury-which had convicted Outten of murder unanimously and beyond a reasonable doubt-that he was a good guy and that his life should be spared because he was actually innocent.

The court found, however, that trial counsel did not "carry through this tack" because the trial court prohibited counsel from arguing actual innocence in sentencing. Trial counsel then changed tactics and stated explicitly that the defendant was guilt and had a "horrendous record." Counsel never mentioned the defendant's positive character traits. While counsel did mention the non-violent nature of the defendant's prior convictions, this was undermined by the state's cross of the mitigation witnesses about his assaults on various family members and his ex-girlfriend. Counsel's "effort fell well short of the national prevailing professional standards articulated by the American Bar Association" in the 1989 ABA Guidelines. Counsel's conduct was also unreasonable in light of "what they presumably discovered from the conversations" counsel had with the defendant and his mother. Prejudice found because, if counsel had adequately investigated, the evidence would have established that the defendant's alcoholic father was extremely physically and emotional abusive to his children all of whom ultimately suffered from alcoholism and/or drug addiction. The defendant's mother drank regularly while she was pregnant with him and was beaten by her husband. The defendant also had two serious head injuries that caused loss of consciousness as a child. He was placed in classes for the learning disabled at school. After the defendant ran away from home as a teenager to avoid his father's abuse, he was placed in foster care where he was sexually abused by his foster mother. He was ultimately placed in a facility for troubled children where counselors noted that he was depressed and hopeless. As an adult, the defendant suffered two major losses due to the death of his father from cancer (and the defendant cared for him the last 6 months of his life despite the history of abuse) and the death of his child who lived only 14 days because of the mother's drug use during pregnancy. The defendant also had a substantial history of alcohol and substance abuse beginning at age 10. Although counsel did present "some mitigating evidence" to the jury, "it does not follow that the jury was provided a comprehensive understanding" of the mitigation. "For example, while Outten's mother portrayed her husband as a ‘very, very strict parent,' she did not relate to the jury the disturbing abuse. . . ." The jury also heard nothing of the sexual abuse, possible neurological damage, learning disabilities, or low IQ. Prejudice was also clear due to the jury's close vote in favor of death (7 to 5). Under AEDPA, the state court's holding was an unreasonable application of Strickland on both prongs. With respect to sentencing it was unreasonable, in part, because the court found no prejudice because the background information also "contained some harmful information."

 

*Williams v. Anderson
460 F.3d 789 (6th Cir. 2006).

Counsel ineffective in capital sentencing for failing to adequately prepare and present mitigation evidence. In sentencing, counsel presented no evidence. The petitioner made a brief statement and then counsel gave "a long, rambling closing, in which he arguably presented a case for residual doubt," but then said he would not quibble with the verdict, that the criminal justice system works, that the crime was "horrific," that the death penalty was appropriate, and that listed potential mitigating factors may or may not exist in the case. Counsel's conduct was deficient because counsel completely failed to investigate before deciding not to present mitigating evidence and instead relying on residual doubt. The lack of investigation was clear, even though trial counsel was deceased and had not testified, because the trial record reflected that counsel discussed the possibility of a court-ordered psychiatric evaluation and pre-sentence report with the defendant at the table in court only two days prior to sentencing. In light of this, the court found it "highly unlikely" that counsel had discussed mitigation with the petitioner and "unlikely" that counsel investigated because the "obvious starting point for any investigation into Petitioner's life history would be Petitioner." Id. at 803. Under AEDPA, the state court's decision in finding that counsel's conduct was not deficient "was contrary to Strickland." Id. at 804. Because the state court had not addressed the question of prejudice, the court's review of this issue was de novo. Prejudice established because, if counsel had performed adequately, the evidence would have established that the petitioner's mother was a physically abusive alcoholic, who neglected him. His father was absent and his uncle, who was his primary male role model, was a career criminal. He grew up in an environment of violence. He was dependent on cocaine at the time of the crimes and the cocaine induced paranoid fears that petitioner could not distinguish from reality. He also suffers from Dyssocial Reaction and Mixed Personality Disorder with Anti-social and Narcissistic features. This issue was addressed on the merits even though the state court had addressed the merits on direct appeal and barred review based on the evidence presented in state post-conviction. Appellate counsel's ineffectiveness in asserting the claim of trial counsel's IAC on direct appeal established cause and prejudice allowing the court to consider the evidence presented in the state post-conviction proceedings. In essence, because the claim was raised on direct appeal without evidence outside the trial court record to support the claim, it was barred under state law from being resubmitted in state post-conviction. "Ineffective assistance of counsel claims based on trial counsel's failure to investigate and present mitigation evidence can never be proven based solely on evidence in the record because the record necessarily does not contain evidence of prejudice." Id. at 801. Appellate counsel's conduct was deficient in ignoring "the substantial body of case law" revealing that the petitioner's claim would be barred in state post-conviction if raised without evidence on direct appeal. Prejudice established as addressed above.

 

*Poindexter v. Mitchell
454 F.3d 564 (6th Cir. 2006).

Under pre-AEDPA law, counsel ineffective in failing to adequately prepare and present mitigation. In sentencing, counsel presented the testimony of three family members and a friend. This testimony included the following information: (1) the petitioner was a good student, who was involved in gymnastics in school; (2) the petitioner was peaceful and quiet and kept to himself; and (3) the petitioner read the Bible a lot, worked, and got along with everyone. The petitioner also made an unsworn statement that began with describing his relationship with his former girlfriend, whose new boyfriend was the murder victim in this case and she had also been assaulted. He described an incident when he had slapped her for wearing an "obscene" miniskirt and said her mother had instigated everything because "she disliked dreadlocks." After that point, the petitioner refused to continue reading the prepared statement and a recess was taken. Counsel convinced him to continue reading "his" statement. He read the rest, which basically said he was a good guy and believed in God. At the end, "he yelled, ‘And the main thing, I didn't kill that man,' and slammed the microphone down." Counsel's conduct was deficient.

[C]ounsel failed to conduct virtually any investigation, let alone sufficient investigation to make any strategic choices possible. They did not request medical, educational, or governmental records that would have given insight into [the petitioner's] background. They did not request funds to enlist a psychological or psychiatric expert to evaluate [the petitioner], despite the fact that he exhibited odd behavior. They did not consult with an investigator or mitigation specialist, who could have assisted in reconstructing [the petitioner's] social history. They failed to interview key family members and friends who could have described his upbringing. And they did not even begin to prepare for mitigation until [the petitioner] was convicted, which was only five days before the sentencing phase began. This was despite the fact that prevailing norms at the time of trial required counsel in a death penalty case to seek records, interview family members and friends, and obtain appropriate mental evaluations well in advance of trial.

Id. at ___. Counsel expressed no strategic reason. Prejudice found because, if counsel had adequately investigated, the evidence would have established the following: (1) the petitioner's father beat him, his mother, and his sister; (2) the petitioner's mother was a heavy drinker, who used marijuana almost daily; and (e) the petitioner's mother neglected her children, beat them, and once tried to kill the whole family by shutting them in the house and turning on a gas stove. An expert in forensic psychology described the family as "very dysfunctional" with "four generations of alcoholism and physical abuse and emotional abuse." In addition to his mother's problems, the petitioner was exposed to the alcohol abuse and domestic violence she endured in two of her three significant relationships. She was ultimately hospitalized nad her children placed in foster homes. The petitioner functioned in the borderline range of intelligence and suffers from a paranoid personality disorder. These crimes were caused by "his paranoid personality disorder" and "a pathological jealous reaction accompanied by rage." Because of this evidence "any mitigation strategy to portray [the petitioner] as a peaceful person was unreasonable since that strategy was the product of an incomplete investigation." Id. at ___.

 

*Dickerson v. Bagley
453 F.3d 690 (6th Cir. 2006).

Counsel was ineffective in capital sentencing for failing to adequately investigate and present mitigation. The court quoted extensively from the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in describing counsel's duties. Here, counsel failed to discover significant mitigation that included that the petitioner's biological father denied that petitioner was his son; his mother referred to him as "the moron"; he was raised in an atmosphere of pimps, prostitutes, and drug dealers; several homosexual advances were made upon him; he had a full-scale I.Q. of 77, placing him in the lower seven percent of cognitive ability; and he had a borderline personality disorder. The state court held that counsel had a strategic reason for the failure to investigate, because one of the three-judge panel had suggested to him waiver of the jury, which counsel took to mean that the judges would not impose death. This finding was an unreasonable application of Supreme Court case law because "[i]t is not reasonable to refuse to investigate when the investigator does not know the relevant facts the investigation will uncover."

Had the investigation been conducted, reasonable lawyers surely would not have limited the mitigation proof in this case to simply an effort to show only that [the petitioner] was "provoked" by jealousy [in killing his former girl-friend's new lover] and could not control his impulses, and therefore suffered from "diminished capacity" at the time of the crime.

"Accordingly, the state court unreasonably applied clearly established Supreme Court precedent when it simply assumed that counsel's oversights were motivated by strategy, instead of requiring a complete and thorough mitigation investigation as mandated by Strickland and its progeny." Prejudice found because "[a]n argument based on reduced culpability similar to that given by the Supreme Court in Atkins might well have been persuasive in [this] case too."

 

*Frierson v. Woodford
463 F.3d 982 (9th Cir. 2006).

Under pre-AEDPA law, counsel ineffective in capital sentencing for failing to adequately prepare and present mitigating evidence and for inducing and failing to challenge a defense witness's erroneous invocation of his Fifth Amendment right against self- incrimination. This was the third trial of the case and counsel presented a diminished capacity defense at the special circumstance phase of the trial asserting that he was unable to premeditate due to the influence of PCP and alcohol at the time of the offenses. In sentencing, the state presented evidence that the defendant had been committed to the CYA as a juvenile for murder and had two robbery convictions as an adult. The defense presented some general background information in mitigation that included his parents' testimony that he had a "normal childhood" but he had violent tendencies under the influence of drugs, testimony of a neighbor that he had been a "good boy," and testimony from a corrections officer that he was a model inmate. The court held that the "analysis of IAC claims, particularly for those arising from a death sentence, the reasonableness of counsel's investigatory and prepatory work at the penalty phase should be examined in a different, more exacting, manner than other parts of the trial." Counsel's conduct was deficient because counsel never reviewed the trial transcripts of the second trial. If he had he would have been aware of a report of the defendant's extensive drug history and daily use of PCP. He also would have been aware of a report that indicated a series of psychiatric evaluations of the defendant in CYA, which included information about evidence of symptoms of organic brain dysfunction. Counsel did not speak to any of the prior doctors or seek the services of a neurologist even after he was alerted to the possibility of brain damage because the defendant's parents did not believe the defendant had any lasting effects from his head injuries. "Also like Rompilla, [counsel] failed to adequately investigate readily available school, hospital, prison, and juvenile court records and reports." Prejudice found because, if counsel had adequately investigated, the evidence would have established possible organic brain dysfunction, borderline mental retardation, learning disability, history of chronic substance abuse, and emotional disorder (antisocial personality disorder). While counsel claimed a strategy to avoid the evidence of antisocial personality disorder, this "appear[ed] to be post-hoc rationalizations rather than reasoned strategic choices" because counsel was not even aware of that diagnosis at the time of trial. "Because strategy presupposes investigation, [counsel's] actions cannot be attributed to strategy." Counsel was also ineffective in failing to challenge a defense witness's invocation of his Fifth Amendment rights. The defense sought to prove that the prior murder had been committed by a co-defendant, who had admitted to counsel and his investigator that he was the killer, although he said that he would testify that the defendant did not commit the murder and that it was committed by a third co-defendant. If counsel had reviewed juvenile court records, counsel would also have been able to challenge the witness's invocation of the Fifth Amendment privilege because he had been acquitted of the murder and therefore could not incriminate himself by testifying about it. Because counsel did not know about this, he requested that the court appoint counsel for the witness before he was called to testify. The court did so and the witness invoked the Fifth Amendment rights. Prejudice established on this ground also because the prior homicide was "the central focus of the penalty hearing" and the prosecutor's closing argument. While the defense had several other witnesses that the defendant had not committed that murder, these witnesses lacked credibility as former gang member friends of the defendant. Thus, the strongest evidence was the co- defendant's confession to counsel and his investigator, which the jury never learned about due to counsel's deficient conduct.

 

*Hovey v. Ayers
458 F.3d 892 (9th Cir. 2006).

Under pre-AEDPA law, counsel ineffective in capital sentencing for failing to adequately prepare and present mental health evidence during the trial, where a finding of premeditation was required before the petitioner was eligible for the death penalty, and sentencing. In exchange for the exclusion of other unrelated charges, the petitioner stipulated his guilt with the exception of the intent element. Early in the trial, the court convened a two-day hearing because of the court's concerns about primary counsel's competence. The court found him competent, but no one even informed the petitioner about this hearing. Following his conviction with a finding of premeditation, the defense presented eighteen witnesses, including twelve friends and three family members, who described him as a well-meaning and introspective young man from an unexceptional middle-class family. He attended college and had been living at home and working sporadically at the time of the murder. Witnesses described his behavior in the months leading up to his crimes as increasingly eccentric. The primary defense witness, a psychiatrist, testified (primarily just on his interviews with the petitioner) that the petitioner suffers from schizophrenia, which caused him to lose control and kill the victim. Counsel's conduct was deficient.

A defense attorney in the sentencing phase of a capital trial has "a professional responsibility to investigate and bring to the attention of mental health experts who are examining his client[ ] facts that the experts do not request." Regardless of whether a defense expert requests specific information relevant to a defendant's background, it is defense counsel's "duty to seek out such evidence and bring it to the attention of the experts."

Id. at ___. While the petitioner's mental health was the "heart" of the mitigation case, this evidence came almost exclusively through the testimony of the psychiatrist. Counsel had not provided the psychiatrist with relevant background information, including records from the petitioner's hospitalization a year before these crimes due to what doctors initially believed was an acute "catatonic" schizophrenic episode. These records "would have strengthened" and "confirmed" the psychiatrist's diagnosis and "corroborated [his] testimony and bolstered the credibility of his response to the prosecution, whose primary strategy in attacking [the psychiatrist] was to suggest that [the petitioner] had never suffered from mental illness." Id. at ___. Without these records, the psychiatrist testified in cross-examination that he was not aware of the petitioner receiving any treatment or diagnosis prior to his arrest. The prosecution focused on the lack of support for the doctor's testimony in closing arguments in sentencing. "The prosecutor's closing argument, in combination with [the psychiatrist's] ignorance of [petitioner's] experience [in his prior hospitalization], strongly suggested that the defense had concocted the mitigating mental illness evidence." Id. at ___. Prejudice found because "[t]his evidence, coming as it did from doctors who had no connection to the defense or incentive to invent a diagnosis and thus who were invulnerable to charges of fabrication, could very well have made the difference in a life as opposed to death verdict." Id. at ___. Moreover, even though the prior doctors ultimately concluded that the petitioner suffered from "drug-induced psychosis," this was based on his own statements that were not confirmed by blood tests. Regardless of the diagnosis, he "displayed symptoms consistent with" the defense expert's diagnosis and the initial diagnosis of the prior doctors of an "acute schizophrenic episode." "[A]ll potentially mitigating evidence is relevant at the sentencing phase of a death case, so ... mental problems may help even if they don't rise to a specific, technically-defined level." Id. at ___. Finally, during deliberations, the jury specifically asked that the defense expert's "testimony be re-read, suggesting that the jury placed importance on it." Id. at ___. Counsel also failed to provide the psychiatrist "with important information about the circumstances surrounding" a kidnaping that occurred after these crimes.

This information would have prevented the prosecutor from portraying [the psychiatrist] as ill-prepared and foolish and thereby impugning his medical conclusions. Because [the psychiatrist] was not adequately prepared, the prosecution was able to demonstrate that [he] was completely ignorant of several important facts, including that [the petitioner] was regularly and successfully attending a training school at the time of [this] murder, that [the petitioner] altered his appearance after [this] murder and before the [separate] kidnapping, and that [the petitioner] released [the kidnaping victim] only after being discovered and pursued by two witnesses to his crime.

Id. at ___. The prosecution also focused on the doctor's ignorance of these facts in closing arguments. Prejudice found because "there is a reasonable probability that [the psychiatrist's] ignorance of basic background facts related to the [separate] kidnapping affected the jury's sentencing decision.".

The clear implication of the prosecution's argument was that [the psychiatrist] was uninformed about the subject of his diagnosis and that his conclusions stemmed from a general misunderstanding of the facts. Even if the background information did not change [his] diagnosis, he at least would have been able to testify more knowledgeably about the case and better weather the prosecution's attempts to discredit him. He would have been able to anticipate the prosecution's questions during cross-examination and explain how [the petitioner's] activities around the time of the offense could be consistent with a diagnosis of schizophrenia. Instead, [the psychiatrist] was caught by surprise, in an embarrassed and vulnerable situation. He was entirely discredited by his lack of critical information, information that lay in the hands of [petitioner's] counsel.

Id. at ___. In a footnote, the court addressed additional prejudice due to counsel's failure to provide the psychiatrist with a probation report after he plead guilty to the separate kidnaping and with hospital records from post-arrest hospitalizations. While these documents reflected diagnoses of schizoid personality rather than schizophrenia, they also contained observations by medical professions, "including descriptions of his delusions and grandiose ideas, that are consistent with [the psychiatrist's] observations and diagnosis." In short, whatever the precise diagnosis, medical professionals repeatedly had concluded that [the petitioner] was seriously mentally disturbed."

 

2005: *Marshall v. Cathel
428 F.3d 452 (3rd Cir. 2005) (affirming 313 F. Supp. 2d 423 (D.N.J. 2004)).

Counsel ineffective in capital sentencing for failing to adequately investigate and present mitigation evidence, failing to seek a continuance to do so, failing to adequately consult with the defendant concerning his options and the procedure in the sentencing proceeding, and did not even make a plea for his client’s life. Following conviction for hiring someone to murder his wife, the defendant proceeded immediately to sentencing after being checked at the hospital after fainting following his conviction. Counsel had not prepared at all for the penalty phase and had not investigated at all on this front or retained any experts. Nonetheless, counsel did not request a continuance to prepare. Instead, counsel “agreed” with the prosecutor that both sides would waive opening and would not present evidence in sentencing and would only do a short closing argument. The state also dismissed two of the three aggravating factors charged and stipulated a single mitigating factor–that the defendant did not have a prior criminal record. Analyzing the case under AEDPA, the court found that counsel’s conduct was deficient because “the lack of preparation is striking and inexplicable,” id. at 466, “in light of his knowledge from the inception that the case would be a capital one and that his client faced powerful State’s evidence,” id. at 472. While the defendant was a “difficult client to control” and the community, and perhaps his family, had turned against him, “neither circumstance excuses counsel’s failure to conduct any investigation into possibly mitigating factors or prepare a case for life.” Id. at 467. Counsel also failed to adequately consult with the defendant and did not even explain to him that he “had the right to allocute at the penalty phase.” The defendant’s failure to cooperate way to prepare for and investigate a mitigation case. . . . No matter how difficult, [counsel] had an obligation either to convince [the defendant] to cowith the preparation of mitigation does nothing to relieve counsel “of his constitutional duty as an attorney.”

Even when clients strongly assert their innocence and refuse to discuss the possibility of being found guilty, an attorney must find a operate with him in preparing a case for life, or to find a way to conduct an investigation without [the defendant’s] assistance.

“Widely accepted national guidelines, state specific standards, and [counsel’s] own testimony regarding his previous capital experience–all of which aid in our evaluation of the reasonableness of [counsel’s] preparation–make clear that [counsel] understood but abdicated his responsibility as counsel to a client facing a possible death sentence.” Id. at 467 (citing the ABA Standards for Criminal Justice).

Regardless of counsel’s trial strategy of denying guilt, “[w]ith the outright rejection of [the] defense, which is the only way the guilty verdict can be interpreted, [counsel] knew that the jury also had rejected the character evidence submitted in support of that defense. Indeed, it would only be fair to assume that they had found [the defendant] to be a liar and a despicable person for paying someone to have his wife killed. [Counsel’s] clear duty at that point was to shift his focus away from absolving [the defendant] of involvement in his wife’s murder–certainly, the evidence for the guilt phase had not worked for that purpose–to saving his life. Id. at 469. Counsel’s most glaring omission was failing to interview the defendant’s sons even though he believed they would be hostile to the defendant. “[C]ounsel’s ‘beliefs’ are not a substitute for informed strategy.” Id. at 471. The court also viewed counsel’s “agreement” with the state as an “abdication of his role.” Id. at 472. Counsel “was not merely agreeing to hold back on the production of evidence–he had no evidence to introduce. . . . Far from a strategic, bargained-for exchange, the agreement appears to have been the only option.” Id. While counsel argued that the defendant was a law abiding citizen with no significant history of prior criminal activity, these are “relatively insignificant aspects–essentially applicable to any and every first time offender of a brutal crime–that are anything but ‘humanizing.’” Id. at 473. Counsel’s presentation was only a “bland emotionless argument.” Prejudice was found because the general character testimony presented during the trial was only general, “cursory” information. Counsel’s conduct was not excused by strategy. “Rather, it is a situation where [counsel] inadequately prepared for the penalty phase and put in no mitigating evidence because he had none to present.” Likewise, counsel only gave a “verbal shrug of the shoulders” in arguments and did not even make a plea for mercy. Prejudice was found because an adequate investigation would have revealed numerous family members and friends willing to ask for mercy and to testify about the harmful impact of execution on the defendant’s family, particularly his son. The state court’s finding of no prejudice was an unreasonable application of Strickland.

 

*Summerlin v. Schriro
427 F.3d 623 (9th Cir. 2005).

Counsel ineffective in capital case for failing to prepare and present mitigation evidence. Analyzing the case under pre-AEDPA law, the court held that counsel “utterly failed” to investigate the defendant’s family and social history or to develop a mental health defense. Counsel instead relied “on the limited information developed in [the defendant’s] pre-trial competency examination, which was prepared for an entirely different purpose” than mitigation. Id. at 631. Counsel did so even though he was aware of the “preliminary mental health information” from the defendant’s prior counsel. He even failed to interview the state’s experts even though counsel knew the state intended to call these experts in sentencing. During the month between the trial and sentencing hearing, counsel did not meet with his client. In sentencing, counsel sought only to present testimony of consulting psychiatrist retained by the defendant’s prior counsel. Before this witness was sworn, the defendant interrupted and apparently requested that the witness not be called so the defense presented no testimony.

Even if [the defendant] had instructed counsel not to present a mitigation defense, that fact would have no effect on the deficient conduct prong of Strickland because counsel had already demonstrated ineffectiveness by failing to thoroughly investigate the existence of mitigating factors. Although the allocation of control between attorney and client typically dictate that ‘the client decides the ‘ends’ of the lawsuit while the attorney controls the ‘means,’” it does not relieve an attorney of the duty to investigate potential defenses, consult with the client, and provide advice as to the risks and potential consequences of any fundamental trial decision within the client’s control.

Id. at 638 (citation omitted). The court stated that “[t]his is especially true in capital cases.” Id. (citing the ABA Standards for Criminal Justice and ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases). Prejudice found even in the “context of judge-sentencing.” If counsel had adequately investigated, the evidence would have shown a “tortured family history” in which the defendant’s father deserted him and was later killed in a police shootout and the defendant’s alcoholic mother beat him frequently and punished him by locking him in a room with ammonia fumes. He had electric shock treatments, at his mother’s behest, to control his temper. He had a learning disability that left “him functionally mentally retarded.” He had also been diagnosed as a paranoid schizophrenic and had been treated with anti-psychotic medications. He also had a temporal lobe seizure disorder and there were indications of organic brain syndrome and impaired impulse control. Instead of developing and presenting this evidence, counsel presented no evidence in sentencing and only asked the court to consider a report attached to the presentencing report. Counsel’s argument covered only three pages of transcript. In addition to failing to present mitigation evidence, counsel also failed to present evidence mitigating one of the statutory aggravating circumstances (a prior violent felony conviction). The defendant’s prior aggravated assault conviction was a result of the defendant showing a pocket knife to the driver of a car that veered off the road, jumped the curb, and struck the defendant’s wife causing serious injuries that required hospitalization. The knife was pulled at the scene, but the driver was not physically injured. Counsel knew of this information because he had represented the defendant on this prior assault but still did not present this information. Finally, counsel also failed to object to the presentence report prepared by a probation officer that contained numerous sentencing recommendations from the probation officer, the victim’s family and friends, police officers, and others. All of this material was hearsay and inadmissible and almost all was damaging to the defendant. Instead of objecting, counsel made it worse by requesting that the court review a report attached to it. Counsel’s failure to present mitigation “all but assured the imposition of a death sentence” under state law that mandated death if there was a qualifying prior conviction and no mitigation. The court also found that this “was not by any means a clear-cut death penalty case” because the initial very experienced prosecutor did not believe he could get a death sentence and offered to allow the defendant to plead to second-degree murder for a 21 year sentence that would have allowed the defendant’s release in 14 years. (This offer was withdrawn when the initial prosecutor and defense counsel were replaced.)

 

*Harries v. Bell
417 F.3d 631 (6th Cir. 2005)

Counsel was ineffective in capital sentencing for failing to prepare and present evidence in mitigation in case analyzed under pre-AEDPA standards. Despite the requirements of the ABA Guidelines to investigate “to discover all reasonably available mitigating evidence,” id. 638 (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases § 11.4.1(C), p. 93 (1989), counsel limited their investigation to a few phone calls with family members, sending requests for information to some of the institutions in which the petitioner had been confined, and interviewing the defendant, his co-defendant, and two state witnesses. While the petitioner had requested that counsel not pursue mental illness as a defense and counsel believed that background evidence “would not persuade the jury,” counsel’s conduct was unreasonable because “defendant resistance to disclosure of information does not excuse counsel’s duty to independently investigate.” Id. at 639 (quoting Coleman v. Mitchell, 268 F.3d 417, 449-50 (6th Cir. 2001)). Counsel’s conduct was also deficient because counsel was aware of the defendant’s poor mental health and troubled family background, which left “no ‘room for debate’ that their truncated investigation was deficient. Id. at 639 (quoting Rompilla v. Beard, 125 S. Ct. 2456, ___ (2005)). Prejudice was found because adequate investigation would have revealed a traumatic childhood, involving physical abuse by petitioner’s mother, stepfather, and grandmother. He had been hit on the head with a frying pan and choked so severely, at age 11, that his eyes hemorrhaged. A year later, staff at a detention home noted multiple traumatic scars on his head. He was also exposed to his father and stepfather beating his mother and both his father and stepfather had ultimately been murdered themselves. Since age 11, he spent all of his life, except a combined total of 36 months, combined in institutions, many of which were violent or unsanitary. He had also had numerous heard injuries and had attempted suicide and suffered carbon monoxide poisoning at age 20. He had frontal lobe damage, even according to the state’s experts, which “can result from head injuries and can interfere with a person’s judgment and decrease a person’s ability to control impulses.” Id. at 640. He also suffered from a mental disorder although the exact diagnoses ranged from bipolar mood disorder, trauma-induced anxiety, anxiety disorder, post-traumatic stress disorder, and antisocial personality disorder. “This evidence adds up to a mitigation case that bears no relation to the few naked pleas for mercy actually put before the jury.” Id. (quoting Rompilla, 125 S. Ct. at 2469). While the State argued that admission of this evidence would have opened the door to evidence of numerous prior criminal acts, Tennessee law prohibited this evidence. Even if it was admissible, however, prejudice was still found because the petitioner in Williams v. Taylor, 529 U.S. 362, 396 (2000), “had a criminal history . . . at least as serious” as the petitioner’s and the Court still found prejudice. Id. at 641. Tennessee law also supported a finding of prejudice because counsel’s failure to present mitigation evidence left the jury with no choice but to impose the death penalty.

2004: * Smith v. Mullin
379 F.3d 919 (10th Cir. 2004)

Counsel was ineffective in capital sentencing for failing to adequately prepare and present mitigation. Counsel’s conduct during the trial was "troubling" but the court found no prejudice in light of the overwhelming evidence of guilt and disposed of these claims on that basis. In addressing the right to effective assistance in sentencing–"the most critical phase of a death penalty case," id. at ___–the court declared:

[W]e are particularly vigilant in guarding this right when the defendant faces a sentence of death. Our heightened attention parallels the heightened demands on counsel in a capital case. See ABA Standards for Criminal Justice 4-1.2(c) (3d ed. 1993) ("Since the death penalty differs from other criminal penalties in its finality, defense counsel in a capital case should respond to this difference by making extraordinary efforts on behalf of the accused.").

Id. at ___ (other internal citations omitted). Here, counsel had no experience or training in capital cases and inadequate funding from the defendant’s family. In addition, while counsel presented some mental health evidence during the trial, it was done in an "incoherent and haphazard" way. Id. at ___. Counsel did not present any additional mental health evidence during sentencing because counsel was unaware that he could do so. Counsel presented only on a few witnesses to testify that the defendant was kind and considerate but "made no attempt to explain how this kind and considerate person could commit such a horrendous crime, although mental health evidence providing such an explanation was at his fingertips." Id. at ___. The evidence in mitigation was "pitifully incomplete, and in some respects, bordered on the absurd." Id. at ___. Counsel’s arguments concerning the trial mental health evidence in sentencing also "were at best belittling of the evidence and at worst damning" of the defendant. If counsel had performed adequately, the evidence would have established that the defendant was completely illiterate, mentally retarded or borderline mentally retarded, and had significant brain damage due to a near drowning and lack of oxygen to the brain when the defendant was quite young. The defendant had been taunted, tormented, and then beaten in school to the extent that the defendant’s mother kept him home for an entire year. He also had an unstable home and had been abused by an aunt charged with his care.

The Supreme Court has, time and again, cited "the standards for capital defense work articulated by the American Bar Association (ABA) . . . as ‘guides to determining what is reasonable’" performance. Those standards repeatedly reference mental health evidence, describing it as "of vital importance to the jury’s decision at the punishment phase." See ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 1.1, 4.1, 10.4, 10.7, 10.11. It was patently unreasonable for [counsel] to omit this evidence from his case for mitigation."

Id. at ___ (other internal citations omitted). Prejudice found because the mitigating evidence omitted in this case "is exactly the sort of evidence that garners the most sympathy from jurors," according to "available empirical evidence as to juror attitudes." Id. at ___. This evidence could have provided the "explanation" of how a "kind-hearted person" could commit these crimes because the "organic brain damage caused these outbursts of violence." Id. at ___.

 

2003: *Lewis v. Dretke
355 F.3d. 364 (5^th Cir. 2003).

Counsel was ineffective in capital sentencing for failing to adequately investigate and present evidence of the petitioner’s abusive childhood. Applying pre-AEDPA law, the court gave no deference to the state court’s resolution of the claims because the state court did not make any factual findings. Under Wiggins, "[a] limited investigation into mitigating evidence may be reasonable only if counsel has a basis for believing that further investigation would be counterproductive or fruitless." Id. at 367. Here, counsel’s performance was deficient. While the record was limited by counsel’s hazy memories and the fact that neither counsel had their file from the trial conducted 14 years before, the petitioner’s sisters testified credibly that counsel had never interviewed any of them. Nothing in counsel’s testimony indicated a tactical decision for failure to do so. Although the district court found the sisters’ testimony was not credible, the Fifth Circuit rejected this finding because the testimony of the sisters was remarkably consistent in that each testified that their father beat them all with extension cords, switches, sticks, or anything else within his reach and that he regularly made them undress and whipped them in their genital areas. The court also found that there was corroborating evidence in the records, which revealed that the defendant’s father was a violent drug abuser who shot the defendant’s mother, almost killing her; and that he beat the defendant’s mother on numerous occasions in front of the children. Medical records also establish that the children made numerous trips to the hospital emergency room for treatment of injuries consistent with the described beatings. The defendant had been hospitalized for cuts on his penis and his sister had been hospitalized for severe burns on her back. The defendant’s mother had been hospitalized for a gunshot wound. There was also evidence of numerous domestic disturbance calls to the home. Prejudice was found even though the defendant’s grandmother testified that the defendant had been abused. "[H]er conclusional testimony contained none of the details provided by Lewis’ siblings at the habeas hearing, which could have been truly beneficial. [Her] skeletal testimony concerning the abuse of her grandson was wholly inadequate to present to the jury a true picture of the tortured childhood experienced by Lewis." Id. at 368. "[H]ad this evidence [of Petitioner’s abuse] been presented, it is quite likely that it would have affected the sentencing decision of at least one juror." Id. at 369. The district court found that the testimony would have been inadmissible or given little weight due to the elapsed time between the child abuse and the crimes and the fact that the defendant had intervening criminal convictions, but this finding was erroneous. Mitigating evidence was considered in both Williams v. Taylor and Wiggins despite the elapsed time in both cases and the defendant in Williams had many intervening criminal convictions. "The district court’s conclusion regarding the temporal nexus requirement was therefore erroneous." Id.

*Hamblin v. Mitchell
354 F.3d 482 (6^th Cir. 2003).

Counsel was ineffective in capital sentencing for failing to adequately prepare and present mitigation. Counsel did not attempt to obtain any family history or any facts concerning the defendant’s psychological background and mental illness and counsel did not seek any advice or expert consultation. Despite a large body of mitigating evidence, counsel did nothing to discover what was available or introduce it in evidence. Analyzing the case under pre-AEDPA standards, the court held:

the Wiggins case now stands for the proposition that the ABA standards for counsel in death penalty cases provide the guiding rules and standards to be used in defining the "prevailing professional norms" in ineffective assistance cases. This principle adds clarity, detail, and content to the more generalized and indefinite 20-year-old language of Strickland.

Id. at 486. Even though Hamblin was tried before the 1989 ABA standards were published, the Court held:

The standards merely represent the codification of long-standing, common-sense principles of representation understood by diligent, competent counsel in death penalty cases. The ABA standards are not aspirational in the sense that they represent norms newly discovered after Strickland. They are the same type of longstanding norms referred to in Strickland in 1984 as "prevailing professional norms" as "guided" by "American Bar Association standards and the like."

Id. at 487. The court also held:

New ABA Guidelines adopted in 2003 simply explain in greater detail than the 1989 Guidelines the obligations of counsel to investigate mitigating evidence. The 2003 ABA Guidelines do not depart in principle or concept from Strickland, Wiggins, or our court’s previous cases concerning counsel’s obligation to investigate mitigation circumstances.

Id. While the court recognized that it was required to measure counsel’s performance against the prevailing standards at the time of trial,

We cite the 1989 and 2003 ABA guidelines simply because they are the clearest exposition of counsel’s duties at the penalty phase of a capital case, duties that were recognized by this court as applicable to the 1982 trial of the defendant in Glenn v. Tate. . . .

Id. at 488. The district court held that counsel had a strategic reason for the failure to investigate and to rely instead on a residual doubt theory in sentencing (which has since been rejected by the Ohio Supreme Court as an improper mitigating factor). Counsel’s conduct was deficient because counsel did not prepare in any way until after the guilty verdict. Counsel only interviewed the mother of Hamblin’s daughter. Counsel did not gather any medical information, including psychological information, in part, because counsel believed that the only mental condition relevant was the defendant’s competence to stand trial. In sentencing, the mother of the defendant’s daughter testified only that the defendant had a good relationship with his child. She had nothing else positive to say and did not want to testify. The only other mitigation was a relatively short rambling, almost incoherent, unsworn statement by the defendant explaining his background. Counsel did nothing to prepare the defendant in giving this statement. The only explanation for the failure to prepare was that counsel believed the case would plead out and not go to trial. While the district court found a strategy because counsel would have uncovered harmful evidence and because the defendant expressed that he did not want to present evidence in mitigation; the Sixth Circuit rejected these findings

because counsel does not know what an investigation will reveal is no reason not to conduct the investigation. Counsel was obligated to find out the facts not to guess or assume or suppose some facts may be adverse.

Id. at 492. Likewise, the court observed that

ABA and judicial standards do not permit the court excuse counsel’s failure to investigate or prepare because the defendant so requested. . . . The Guidelines state that "the investigation regarding penalty should be conducted regardless of any statement by the client that evidence bearing upon penalty is not to be collected or presented," because

[c]ounsel cannot responsibly advise a client about the merits of different courses of action, the client cannot make informed decisions, and counsel cannot be sure of the clients competency to make such decisions, unless counsel has first conducted a thorough investigation. . . .

Id. (citing the 2003 ABA guidelines). Prejudice found because, if counsel had adequately investigated and presented mitigation, the evidence would have shown Hamblin’s unstable and deprived childhood in which he grew up in extreme poverty and neglect surrounded by family violence and instability. He had a poor education and likely suffered from a mental disability or disorder. Hamblin’s father was violent and beat his wife regularly. He ran a still and was arrested for public intoxication, manufacture of moonshine, and child neglect. Hamblin’s mother often abandoned her children, leaving them to fend for themselves, and she at times resorted to prostitution. Hamblin tried to provide for himself and his younger sister by stealing food as a very young child. He started getting in trouble with the law as a teenager and left home at 13 the first time and left permanently at 16. He started showing signs of mental disorder when he was a teenager, probably resulting from his poor family situation and possibly from a severe blow to the head at age 8 inflicted by his father with a dog chain. His mother also had a severe infection while pregnant with him as a result of being stabbed by the defendant’s father. In light of the "substantial evidence of a childhood in which abuse, neglect, violence and hunger were common," id. at 493, the court was convinced that had the available evidence been presented "at least one juror would have voted against the death penalty," id.

*Frazier v. Huffman
343 F.3d 780, supplemented on denial of rehearing, 348 F.3d 174 (6^th Cir. 2003)

Counsel was ineffective in capital sentencing for failing to prepare and present mitigation evidence concerning a brain injury and a lack of impulse control that reasonably was a result of that injury. The defendant had been charged with killing his stepdaughter after she filed sexual assault charges against him in state court. During trial, the defense theory was one of innocence and the defense presented no evidence. In sentencing, the state had already proven the aggravating circumstances and state law required the jury to weigh aggravating and mitigating circumstances, but the defense presented no evidence, relying instead only on the defendant’s brief statement to the jury in which he denied guilt, but asked for mercy. The court found that defense counsel was aware from a review of records about the brain injury and that there could be no reasonable trial strategy that would justify failing to investigate and present evidence of the brain impairment and instead rely exclusively on the hope that the jury would spare the defendant’s life due to doubt about guilt. The court also noted that residual doubt is not a mitigating factor under Ohio law. The defendant "had everything to gain and nothing to lose by introducing evidence of his brain injury in the penalty phase of the case. Yet they sat on their hands." In analyzing the case under the AEDPA, the court found that the state court’s determination that counsel had performed in a competent manner was not simply erroneous but unreasonable. The court also found prejudice because evidence of the brain injury could easily have been used by counsel to argue a scenario where the defendant did not intend to kill the victim and did so only due to the impulsively and stress. The state court’s conclusion that counsel was effective was found to be an unreasonable application of clearly established Supreme Court precedent.

*Powell v. Collins
332 F.3d 376 (6^thCir. 2003).

Counsel ineffective in capital sentencing for failing to prepare and present mitigation evidence. Prior to trial, counsel repeatedly sought appointment of a psychiatrist or psychologist to assist the defense during the trial. The court denied the motions and instead ordered an evaluation by a court-appointed, neutral examiner, who found that the defendant suffered from antisocial personality disorder. During the trial the defense called the court-appointed examiner as a defense witness. In addition to the personality disorder information, she testified that the defendant did not enjoy a nurturing environment as a child and had been medicated with anti-psychotic medications for anxiety and behavior problems. She also testified that his IQ scores "fluctuated between the mild and borderline ranges of mental retardation." Id. at 383. Following conviction, counsel again requested expert assistance and the court granted it and ordered the court appointed examiner to address mitigation but refused to allow a continuance. The court-appointed examiner was the only witness called by the defense in sentencing. She repeated her trial testimony and stated that she did not have sufficient time to conduct a sufficient investigation and stated that she was not qualified to conduct the neuropsychological testing the defense wanted, although she believed that the defendant might have organic brain dysfunction. Because the habeas petition was filed in 1994, the court applied the standards applicable prior to the AEDPA. Relying heavily on the ABA Guidelines, the court found counsel’s conduct to be deficient because counsel did not investigate mitigation and, in recalling the court-appointed expert, they presented harmful information that the defendant was not mentally ill and is dangerous. The court rejected a strategic reason for not presenting mitigation because counsel could not have a valid strategic reason when counsel had failed to investigate. Prejudice was found because numerous family members and other individuals that knew the defendant were available and willing to testify. Even though their testimony would have duplicated some of the testimony by the court-appointed expert, prejudice was established because the "jurors would have heard first-hand accounts from those who knew Petitioner best." Id. at 400. This "personal testimony" would have been more powerful than the expert, who had not even interviewed the family and friends. Prejudice was also clear where the prosecutor cited the "mitigation testimony" in support of the state’s closing and the jury almost deadlocked even without any mitigation. In addition to this ineffective assistance of counsel finding, the court also found that relief was required due to the court’s failure to appoint an independent defense expert and the court’s denial of a continuance prior to sentencing.

*Douglas v. Woodford
316 F.3d 1079 (9^th Cir. 2003).

Counsel ineffective in failing to adequately prepare and present mitigation evidence. Petitioner, claiming an alibi, was convicted of killing two teenage girls in the desert, primarily based on the immunized testimony of an accomplice. During sentencing, the state presented testimony concerning similar bad acts involving forcing women to pose nude and engage in sex acts with other women for photographs. He also planned to make movies involving torture and killing of young women and had previously pled nolo contendre to charges arising from this planning. In mitigation, the defense presented only the defendant’s wife and son and a neighbor to testify to good character, nonviolent nature, generosity, and a difficult background as an orphan. In "very general terms," they described a difficult childhood, running away at fifteen to join the Marines, and being very poor and hungry as a child. Prior to trial, counsel retained mental health experts because the defendant was experiencing severe claustrophobia in his cell, which was related to having been locked in closets by abusive parents as a child. Because of the focus on claustrophobia, petitioner was unable to focus on his defense. The experts did brief testing and interviewing and found no mental disorders, but did recommend additional mental health testing. After the defendant was moved to a private cell and the claustrophobia issue addressed, he refused to cooperate with any further mental health testing and insisted on an alibi defense during trial. He was also "less than helpful" in providing background information and reported that "his parents were dead and that his past was a ‘blank.’" Id. at 1087. He also refused to provide names of relatives or friends to provide information on his childhood abuse. Analyzing the case under pre-AEDPA standards, the court found counsel’s conduct deficient for failing to discover and present significant mitigation evidence. Even though petitioner "was not forthcoming with useful information, . . . this does not excuse counsel’s obligation to obtain mitigating evidence from other sources." Id. at 1088. Counsel had enough information to put him "on notice" that petitioner had "a particularly difficult childhood," but did not attempt to contact persons who could provide the details or even to interview and prepare the witnesses that did testify so their testimony "was less than compelling." Id. Counsel did not even present some of the information he was aware of such as the claustrophobia due to being locked in closets as a child. Likewise, counsel had obtained the file pertaining to the defendant’s prior conviction and that filed contained an order for a psychological examination. If counsel had obtained that testing and interviewed that expert, he would have discovered a conclusion of serious and outstanding mental illness and possible organic impairment. That expert noted severe paranoia, chronic alcoholism, constant exposure to toxic solvents in the furniture refinishing business, and a serious head injury in a car accident, which the expert believed led to diminished capacity. If counsel had investigated the social background further, counsel would have discovered significant evidence that the petitioner was abandoned as a child and placed in foster homes, where an abusive alcoholic foster father would lock him in closets for long periods of time. He was extremely poor and often had to scaveng for food in garbage cans and eat just lard or ketchup sandwiches. He ran away at fifteen to join the Marines, but was arrested and put in a Florida jail where he was beaten and gang-raped by other inmates. When he did join the Marines, he received a number of medals and commendations. Counsel’s failure to prepare and present mitigation counsel not be attributed to his client’s lack of cooperation, because counsel had already "disregarded his client’s wishes and did put on what mitigating evidence he had unearthed." Id. at 1089. Moreover, the jury had already convicted the defendant and rejected his alibi evidence, so "‘lingering doubt’ was not a viable option." Id. at 1090. Thus "there was nothing to lose" by presenting social history and mental health evidence. Id. at 1091. Prejudice was found, despite "the gruesome nature" of the offenses, id., because the available "social background and mental health" evidence was "critical for a jury to consider when deciding whether to impose a death sentence," id. at 1090. This evidence could have "invoked sympathy" from at least one juror. Id.

2002:*Karis v. Calderon
283 F.3d 1117 (9^th Cir. 2002).

Counsel ineffective for failing to present and present mitigating evidence of the defendant’s troubled childhood, during which he suffered repeated abuse and watched his mother being regularly and violently abused by men. "[T]he failure to present important mitigating evidence in the penalty phase can be as devastating as a failure to present proof of innocence in the guilt phase." Id. at 1135. Counsel’s conduct was deficient because counsel failed to investigate and offered no reasonable explanation for the failure. Counsel had intended to present this evidence through a mental health expert but then chose not to do so because there was also damaging evidence in the expert’s report. While counsel was not ineffective for not calling the expert, counsel was ineffective for failing to prepare and present the evidence through family members and other witnesses. The duty to investigate is not excused because the family did not readily offer the information because counsel knew the information was there and "should have explained . . . the gravity" of the situation to the family members. Id. at 1136. Prejudice found because counsel presented only 48 minutes of mitigation, which included only that the defendant had artistic and academic talent, that his mother was divorced, and that he had saved his brother from drowning as a child. This evidence allowed the prosecutor to argue that the defendant was "intelligent" and "cunning" and to argue the absence of any mitigation when there was substantial mitigation available. Even with the weak mitigation presented, the sentencing jury took three days to render a verdict.

*Caro v. Woodford
280 F.3d 1247 (9^th Cir. 2002)

Counsel ineffective in capital sentencing for failing to prepare and present evidence of the defendant’s brain damage due to a long history of exposure to toxic pesticides and chemicals, history of severe head injuries, and significant abuse as a child. Counsel’s conduct was deficient because counsel knew of the long history of exposure to toxic pesticides, but did not inform the experts that examined the defendant and did not seek out an expert to assess the damage done to the defendant’s brain. Counsel conceded no strategy explained the failure. The defendant was prejudiced because, as the court said at the very beginning of the opinion, "A little explanation can go a long way. In this case, it might have made the difference between life and death." "Prejudice found because rather than premeditation this evidence revealed the effects of "physiological defects . . . on his behavior, such as causing him to have impulse discontrol and irrational aggressiveness. By explaining that his behavior was physically compelled, not premeditated, or even due to a lack of emotional control, his moral culpability would have been reduced." Id. at 1258. The prejudice was heightened where the state’s evidence of premeditation was not particularly strong and where, "[m]ore than any other singular factor, mental defects have been respected as a reason for leniency in our criminal justice system." Also of significance, the court rejected the state’s arguments that high grades, satisfactory military performance, negative blood results for pesticides, a reasonably high IQ, rationality of actions following the murders, and normal psychiatric and neurological evaluations was inconsistent with the finding of brain damage. As one expert (Jonathan Pincus) explained, damage to a person’s frontal lobes may not affect other brain functions controlled by other parts of the brain.

Silva v. Woodford
279 F.3d 825 (9^th Cir. 2002)

In pre-AEDPA case, counsel ineffective in capital sentencing for failing to prepare and present mitigation. Deficient conduct found despite the assertion that the defendant instructed counsel that he did not want his family called as witnesses. Such an instruction does not alleviate the need to investigate or at least to adequately inform the defendant of the potential consequences of the decision and to assure that the defendant has made an informed and knowing judgment. Moreover, there was significant mitigation evidence available outside of contacting the defendant’s family, including prior psychiatric reports and presentencing report in a pending drug case. Court notes that the ABA guidelines, cited favorably in Williams v. Taylor, "suggest that a lawyer’s duty to investigate is virtually absolute, regardless of a client’s expressed wishes." Id. at 840. "Indeed, if a client forecloses certain avenues of investigation, it arguably becomes even more incumbent upon trial counsel to seek out and find alternative sources of information and evidence, especially in the context of a capital murder trial." Id. at 847. Counsel "could not make a reasoned tactical decision about the trial precisely because counsel did not even know what evidence was available." Id. at 847 (quotation omitted). Prejudice found due to the prosecution’s "emphasis on the utter lack of mitigating evidence, "id. At 847, and "in spite of the undeniably horrific circumstances" of the murders, "this is not a case in which a death sentence was inevitable," id. at 849 (quotation omitted). Indeed, the court noted that a co-defendant was sentenced to life and that defendant’s jury sought an explanation of "life without parole." Id. at 849. "These questions suggest that a death sentence . . . was not a foregone conclusion. . . ." Id. at 849-50. The available and unpresented mitigation included evidence of abuse and neglect by alcoholic parents, the possibility of brain damage from Fetal Alcohol Syndrome, the possibility of Post-Traumatic Stress Disorder, Attention Deficit Disorder that caused failures in school, self-medication through drug use, and amphetamine-induced organic mental disorders and withdrawal symptoms of the time of the offenses.

*Brownlee v. Haley
306 F.3d 1043 (11^th Cir. 2002)

Counsel ineffective in pre-AEDPA case for failing to prepare and present mitigation in capital sentencing. Defendant was convicted of murder and armed robbery in a bar. Nine eyewitnesses testified during the trial, but none was able to identify the defendant. No forensic evidence linked defendant to the crime. A codefendant, who was identified by four eyewitnesses and had plead guilty in exchange for a life sentence, testified that he participated in the crime along with defendant and another codefendant, but even this witness was unable to state whether defendant shot the victim. Several other witnesses provided incriminating testimony about defendant’s actions and statements before and after the crimes, but their testimony contradicted the codefendant in some respects. Following conviction, in the jury phase of sentencing where an Alabama jury renders an advisory verdict, counsel presented no evidence in mitigation and offered only a brief closing argument. The jury deliberated for 38 minutes and recommended a sentence of death by an 11-1 vote. Prior to the second phase of sentencing where the trial court must "consider" the jury’s recommendation and can consider additional evidence in aggravation and mitigation, the trial court suggested that counsel should have the defendant examined by a clinical psychologist. In the hearing before the trial court, counsel presented the psychologist to testify that defendant has a mixed substance abuse disorder, a mixed personality disorder, and borderline intellectual functioning, with an IQ of 70 (in the mildly retarded range) but adaptive skills at a higher level. Two sisters also testified that defendant had been previously taken to a psychiatric hospital after jumping out a second floor window of the family apartment, a history of mood changes, complaints of severe headaches, and seizures for a couple of years, including one incident where he slashed himself across the chest with a knife. After hearing this evidence and considering a presentence report, the trial court found no mitigating factors and sentenced defendant to death. Counsel’s conduct was deficient because counsel conducted no pretrial discovery and conducted virtually no investigation. Counsel spoke only with one sister and that was after the jury’s recommendation of death and just prior to the sentencing hearing before the judge. Counsel did not have the defendant examined by a psychologist until the court suggested it because counsel observed no mental problems and believed the defendant had above average intelligence. Counsel did not pursue evidence of drug problems because they did not believe the jury would be sympathetic. If counsel had adequately investigated the evidence would have shown that the defendant grew up in a high crime area. On separate occasions, he had been stabbed in the chest and shot multiple times, including in the head. The psychologist, based on the additional information, would have testified that the defendant was either mildly mentally retarded or borderline intelligence and suffered from mental disorders, including schizotypal and antisocial personality disorders, multiple drug dependencies, and a seizure disorder (due to seizures for several years following the shot to the head). The psychologist would have testified that the defendant’s capacity at the time of the crimes was possibly diminished due to the combination of mental disorders, limited intelligence, and drugs. The psychologist and a correctional officer that had previously supervised defendant in prison also both testified that the defendant was a model inmate and was unlikely to engage in violent behavior in prison. Prejudice found because presentation of this evidence would have provided compelling evidence supporting two statutory mitigating circumstances ((1) influence of extreme mental or emotional disturbance and (2) substantially impaired capacity at the time of the crimes) and several significant non-statutory mitigating factors, including the defendant’s "severe intellectual limitations." Id. at ___ (citing Atkins v. Virginia, 122 S. Ct. 2242 (2002)). The prejudice was also clear because of the weaknesses in the state’s evidence linking the defendant to the murder. Due to counsel’s failure to present, "anything at all about the defendant . . . . [a]n individualized sentence, as required by law, was . . . impossible." Id. at ___. The court found a reasonable probability that the jury would have recommended a life sentence if counsel had adequately presented the mitigation. The prejudice was not cured by the trial court’s ultimate review because, under state law, the trial court was required to "consider" the jury’s recommendation. "[T]he use of the term ‘shall consider’ indicates that a court is required to reflect actively and carefully on the jury’s recommendation, as consideration clearly involves more than a passing thought." Id. at ___.

2001: *Jermyn v. Horn
266 F.3d 257 (3^rd Cir. 2001)

Counsel ineffective, under AEDPA, in capital sentencing for failing to prepare and present mitigating evidence. During the trial for murder of the defendant’s mother, counsel presented two alternative arguments: either the defendant’s mother accidentally set the fire that killed her and the defendant was innocent or the defendant committed the crimes and was insane at the time. This evidence included testimony from an expert that the defendant was a chronic paranoid schizophrenic. During sentencing, counsel only presented brief testimony that the defendant should not be sentenced to death because he was adaptable to confinement. He also argued that the defendant was mentally ill and argued about the defendant’s deprived childhood, although no evidence about this had been presented. Counsel was only out of law school for "less than two years, this was his first capital case, and the first case he had tried which involved mental health issues." Id. at 275. He also did not hire an investigator and admitted that his time prior to trial was largely consumed with other cases. Counsel’s conduct was deficient because the trial expert had informed him of the physical abuse suffered by the defendant and the significance of this in explaining the defendant’s behavior. Nonetheless, counsel did not present this evidence and offered no strategic reason for the failure to do so. Indeed, counsel did not do anything in preparation for sentencing until after the guilty verdict. Counsel also testified that he did not realize the importance of the childhood until the end of sentencing, which is why he argued – on the basis of no evidence – about the childhood. Prejudice found because, if counsel had adequately investigated, the evidence would have revealed that the defendant’s father was physically abusive, showed no affection, and virtually banished the defendant from his presence. At times, he was even chained to a dog leash and made to eat out of a dog bowl. Eventually, his mother placed him in a residential school for "orphans" or "unwanted children," to get him out of the home. Experts, including the defense expert at trial, observed that the defendant’s childhood experiences were severe and "contributed significantly to his mental illness which they diagnosed as paranoid schizophrenia." Id. at 274. The state court decision was unreasonable, under 28 U.S.C. § 2254(d)(1), because the Pennsylvania Supreme Court unreasonably applied Strickland’s prejudice inquiry in light of the totality of mitigating evidence adduced at trial and in the habeas proceedings.

*Coleman v. Mitchell
268 F.3d 417 (6^th Cir. 2001)

Counsel ineffective in pre-AEDPA capital sentencing for failing to prepare and present mitigating evidence. The mitigation evidence presented at trial was limited to the defendant’s unsworn statement. Counsel’s argument in sentencing was limited to two issues: the circumstantial nature of the murder evidence and the evils of execution by the electric chair. Counsel’s conduct was deficient because counsel failed to investigate and present the mitigation evidence. This conduct was not excused by strategy because residual doubt is not a permissible argument in sentencing in Ohio. Likewise, any decision to make "a generalized, mercy-based critique of the electric chair over a particularized account of Petitioner’s social and mental history," id. at 447, without any investigation, was unreasonable. Moreover, despite the District Court’s finding to the contrary, the record did not support the finding that the defendant had waived the presentation of mitigation evidence. Instead, the defendant had waived his right to a pre-sentence investigation and mental examination under state law, which is distinguishable from any mitigation. Furthermore, even assuming that the defendant had instructed counsel not to present mitigation, because of counsel’s failure to investigate counsel could not adequately advise the defendant of what he was waiving and the record did not support a finding "that Petitioner had any understanding of competing mitigation strategies." Id. The court found in this case "involving a defendant with low intelligence, limited education and an unsettling past, whose strongest demand for self-representation [or controlling the presentation of mitigation evidence] consisted of ‘No, I don’t’ responses when asked if he wanted a pre-sentence investigation and mental evaluation," that a finding that the defendant had knowingly and intelligently waived the presentation of mitigation evidence "hollows the Sixth Amendment." Id. at 449. "Further, defendant resistance to disclosure of information does not excuse counsel’s duty to independently investigate." Id. at 449-50. If counsel had adequately investigated and presented the evidence, they jury would have heard that the defendant’s mother abandoned him as an infant in a garbage can and she spent lengthy periods of time in psychiatric hospitals. His grandmother, who was his primary caretaker, abused him both physically and psychologically, as well as neglecting him while running her home as a brothel and gambling house. She also told him that their home was surrounded by enemies that wanted to poison them and involved him in her voodoo practice by having him kill animals and collect their body parts for use in her magic potions. He was exposed to group sex, sometimes including his mother or grandmother, as well as bestiality and pedophilia. The defendant was also admitted to the hospital on two occasions for head injuries. Petitioner had also been examined previously for competence to stand trial on a federal kidnaping charge. Those examiners, even though only examining competence, had found that the defendant had elevated test results "under the psychopathic--deviant and paranoia categories, as well as a full-scale I.Q. score of 82, falling in the low-normal range, and a verbal I.Q. score of 79, falling at the upper limits of the borderline retarded range." They also found that he "had probable mixed personality disorder with antisocial, narcissistic and obsessive features." An earlier examination had also revealed borderline personality. In addition, experts in the post-conviction proceedings found "borderline personality disorder, a likelihood of organic brain dysfunction, [and] . . . probable manic- depressive psychosis." Id. at 450-52 (footnotes omitted in quotes).

*Mayfield v. Woodford
270 F.3d 915 (9^th Cir. 2001) (en banc)

The majority in a split decision found counsel ineffective in the capital sentencing hearing (in pre-AEDPA case) for failing to prepare and present mitigation evidence. Counsel’s investigation was deficient where counsel billed only 40 hours in preparation for both the trial and the penalty phases of trial and had only one substantive meeting with his client – the morning trial began – and even then did not discuss with him possible witnesses or trial strategies. Counsel also failed to associate co-counsel to assist in the defense, even though state law entitled the defendant to a second attorney. Counsel also spent less than half the defense investigation budget authorized by the county and did not obtain all of the defendant’s medical records or consult with experts in endocrinology or toxicology, even though his investigator’s limited efforts revealed evidence of diabetes and substance abuse. During sentence, counsel waived the opening statement and called only one witness – an expert – that had interviewed the defendant twice and testified "regarding Mayfield’s family and childhood background, his health history including his diabetes, his work history, his psychiatric profile, and his substance abuse." Id. at 928. The expert also related a story that informed the jury that the defendant "could be a kind, generous human being" and informed the jury that the defendant "had indicated considerable remorse for what he had done." Id. Outside of this one witness, counsel presented no evidence and even stipulated – erroneously – that the defendant’s urine tested negative for PCP the day after the crime, "indicating to the jury both that [the defendant] did not have a substance abuse problem and that [he] had lied about it" in his statement to police. Id. Counsel did not call the defendant’s mother and uncle to testify for specific reasons but he did not even attempt to interview or present the testimony of other family members or friends. He also made no effort in his closing argument "to explain to the jury the significance of the mitigating evidence presented" by the one expert witness. "In short, [counsel] did not, as Williams v. Taylor requires, adequately investigate and prepare for the penalty phase or present and explain to the jury the significance of all the available mitigating evidence." Id. Prejudice found even though the state’s aggravation evidence was "strong" and the mitigation evidence presented at trial was "substantial." Id. at 929. The evidence counsel presented included evidence that the defendant was diagnosed with diabetes at age nine and was hospitalized 20 to 30 times because his diabetes was never under very good control. The trial expert also testified that the defendant had low average intelligence and had been diagnosed with a child behavioral disorder caused by depression. He began using PCP two or three times a week in his late teens and by the time of the murder was using it on a daily basis. The expert erroneously informed the jury, however, that the defendant was not under the influence of drugs or alcohol the night of the crimes. The defense expert then testified that the defendant’s score was moderately elevated on a "psychopathic deviance" test and that he was "lacking in emotion," but that he had demonstrated remorse and "had good rapport with the prison guards." Id. at 930. The defense expert also read for the jury the conclusion of a neurologist that the crime "could be explained only on the basis of definite cerebral impairment due to alcohol and drug abuse." Id. On the basis of this evidence, the jury deliberated for a day and a half (and had even sent out a note asking if the jury had to be unanimous in order to sentence the defendant to life without parole) before sentencing the defendant to death. In addition to other evidence, if counsel had adequately prepared and presented the evidence, the jury would have also heard that the defendant suffered abdominal and chest pain, dehydration, fatigue, dizziness, nausea, loss of consciousness, and comas due to his diabetes. He sometimes had to be hospitalized as much as five times a month. Prior to the diabetes, he was essentially a normal child, but the physical and psychological traumas caused drastic changes in him and precipitated his drug use. During the months prior to the crime, he was hospitalized again for high blood sugar levels and using increasing amounts of drugs due to stressors, including his pregnant girlfriend leaving him. In addition, the jury could have heard substantial lay witness testimony that the defendant was a good person, that he was non-violent, and that his family loved him and wanted the jury to spare his life. Prejudice found "[i]n light of the quantity and quality of the mitigating evidence [counsel] failed to present at trial, the duration of the jury’s deliberations, and the jury’s communication to the trial judge." Id. at 932.

*Ainsworth v. Woodford
268 F.3d 868 (9^th Cir. 2001)

Counsel ineffective in pre-AEDPA capital sentencing for failing to prepare and present mitigating evidence. Counsel waived the opening statement in sentencing and then called only four witnesses in mitigation that covered "just under nine transcript pages." These witnesses revealed that the defendant’s father had committed suicide; that the defendant had attended some college and held down a full-time job at which he was a good worker; that he had a three-month old son; and that he was kind, non-violent, and a talented artist. One of these witnesses also testified, however, that the defendant had planned to rob bank before but stopped because there were too many police around. Id. at 872. As the court found, "While it is true that the testimony touched upon general areas of mitigation, counsel’s cursory examination of the witnesses failed to adduce any substantive evidence in mitigation. In fact, counsel’s ill-preparation resulted in the testimony of one defense witness . . . contributing to the evidence in aggravation." Id. at 874-75. Counsel’s conduct was deficient because counsel "sought no assistance from a law clerk, paralegal, or another attorney in his preparation for the penalty phase, nor did he seek advice or aid from investigators or experts. In addition, he did not seek any state funds to prepare for the penalty phase although funding for the use of investigators and experts in capital cases was available" under state law. Id. at 876. He interviewed only one defense witness and that was on the morning she was scheduled to testify. He also failed to obtain "employment records, medical records, prison records, past probation reports, and military records," although he did get school records. Counsel even admitted in a deposition "that he abdicated the investigation of Ainsworth’s psychosocial history to one of Ainsworth’s female relatives." Id. at 874. Counsel’s closing argument did not reference even the evidence counsel did present or refute the aggravation. Instead counsel only argued that the defendant was a "nice person" and argued "against the death penalty in general to a jury that had at voir dire already indicated no opposition to the death penalty." Id. at 875. If counsel had adequately prepared and presented the evidence, the jury would have heard evidence of the defendant’s troubled childhood, his history of substance abuse, and his mental and emotional problems. Both of his parents were volatile alcoholics, who argued daily. His father was physically, verbally, and emotionally abusive and attempted to kill the defendant at least twice. His father ultimately committed suicide after four previous unsuccessful attempts. The defendant blamed himself for this and felt an overwhelming sense of guilt following his father’s death. The defendant began ingesting alcohol at age five. By age 16, the defendant had attempted suicide and was admitted to a psychiatric ward for treatment for alcoholism. He joined the military at age 17, but was discharged because of his addiction to alcohol and morphine. He was then again admitted to a hospital and diagnosed with acute alcoholic intoxication, psychoneurotic disorder, and depressive reaction. Throughout his adult life, the defendant "regularly abused alcohol and drugs, including heroin, amphetamines, LSD, marijuana, and peyote. He resorted to gasoline when he was unable to access other drugs. He attempted suicide six or seven times by slashing his wrists." Id. at 875. Post-conviction experts supplied all of this information and testified that the substance abuse was a form of self-medication. Prejudice found because the jury heard no evidence of the defendant’s "troubled background and his emotional stability and what led to the development of the person who committed the crime." Id. at 878. Defense counsel also failed to present evidence of the defendant’s "favorable prison record which could be important in deciding whether, if given a life sentence without parole, he would be a danger to other prisoners or prison personnel." Id.

*Battenfield v. Gibson, 
236 F.3d 1215 (10^th Cir. 2001)

Counsel ineffective in capital sentencing for failing to adequately investigate and present mitigating evidence, despite the purported waiver of mitigation by the defendant and the limited review necessitated by the AEDPA. Counsel's conduct was deficient because he spent very little time investigating mitigation and planned only to present the defendant's parents to beg for sympathy and mercy. Counsel never interviewed the parents, the defendant, or anyone else, however, concerning the defendant's background. Court cites approvingly "Stephen B. Bright, Advocate in Residence: The Death Penalty As the Answer to Crime: Costly, Counterproductive and Corrupting, 36 Santa Clara L. Rev. 1069, 1085-86 (1996) ('The responsibility of the lawyer is to walk a mile in the shoes of the client, to see who he is, to get to know his family and the people who care about him, and then to present that information to the jury in a way that can be taken into account in deciding whether the client is so beyond redemption that he should be eliminated from the human community.')." 236 F.3d at 1229. No strategy excused counsel's choice to only beg for sympathy and mercy. "[T]here was no stategic decision at all because [counsel] was ignorant of various other mitigation strategies he could have employed." Id. at 1229. Moreover, counsel knew the state planned to rely on evidence of the defendant's prior conviction for assault and battery with a dangerous weapon but never investigated to determine the underlying facts of that conviction. The state court did not address the lack of investigative efforts at all so the federal court exercised its independent judgment on this issue. Alternatively, the court concluded that the state court unreasonably applied Strickland in finding counsel's conduct to be reasonable. The court also found that counsel's failure was not excused by the defendant's waiver of the right to present mitigation because counsel's "failure to investigate clearly affected his ability to competently advise Battenfield regarding the meaning of mitigation evidence and the availability of possible mitigation strategies." Id. Counsel could not have discussed the available mitigation with the defendant because he was unaware of the evidence. Thus, counsel informed the defendant only of the intent to have his parents beg for mercy. The defendant thus waived mitigation because he did not want his parents to testify. The state court found the waiver to be knowing and intelligent, but the federal court rejected this finding as both factually and legally unreasonable because neither counsel nor the state court provided sufficient information for the defendant to make a knowing and intelligent choice. The federal court also rejected the state court's finding that counsel was reasonable for relying on the defendant's waiver because the court failed "to see how [the defendant] can be held responsible for [counsel's] failure to present mitigating evidence unknown to [the defendant]." Id. at 1233. The court found this to be "a patently unreasonable application of Strickland." Prejudice found because the only valid aggravating circumstance found by the jury was a continuing threat based in substantial part on the state's evidence of a prior violent conviction. If counsel had adequately investigated, however, this evidence could have been rebutted with evidence that the prior assault may have been an act of self defense committed while under the influence of alcohol and drugs. If counsel had adequately investigated, the evidence available in mitigation would have also included (a) the defendant's involvement in a serious car accident at age 18, during which he sustained a serious head injury and after which he heavily used alcohol and drugs, (b) a family history of alcoholism and possible drug addiction, (c) evidence from family members and friends indicating that the defendant was known for his compassion, gentleness, and lack of violence, even when provoked, and (d) testimony of prison personnel describing the security and drug and alcohol treatment programs where the defendant would be incarcerated if given a life sentence. The federal court's finding of prejudice was not constrained by the AEDPA standards because the state court never addressed this issue.

2000: *Lockett v. Anderson, 
230 F.3d 695 (5^th Cir. 2000)

Counsel ineffective in murder case for murdering husband and wife for failing to prepare and present adequate mitigation evidence with respect to the wife. Defendant was tried and sentenced separately for these offenses, although they were combined in federal habeas. District Court had already granted new trial on husband's murder case. Counsel ineffective because counsel failed to adequately prepare due to illness of counsel's mother, these two murder cases one month apart, and two other capital trials. Counsel lacked basic "familiarity" with "psychological tests" performed on his client, but he knew client had a history of seizure problems and head injuries. Counsel did not investigate, however, even after defendant's mother retained a psychiatrist who recommended additional testing, including neuropsychological testing. Counsel was aware of recommendations. Counsel was also aware of "black-outs, delusional stories, references to self as another name, family troubles, drug and/or alcohol addiction," which should have "put him on notice that pursuit of the basic leads that were before him may have led to medical evidence that Lockett had mental and psychological abnormalities that seriously affected his ability to control his behavior. Counsel thus may have had a strong predicate from which to argue to the jury that Lockett was rendered less morally culpable for the ruthless, cruel, and senseless murders he had committed." Id. at ___. Strategic decision does not excuse counsel's conduct because counsel did not even follow the recommendation for additional testing recommended by defense psychiatrist. Court also rejected argument of strategic decision to avoid devastating cross-examination because trial defense counsel never considered the strategy. Prejudice found even though crimes were particularly aggravated and some of this evidence could have been aggravating because it could support future dangerousness because additional testing and investigation would have revealed temporal lobe lesion or epilepsy and/or schizophrenia and a troubled childhood with trauma. Without this evidence, counsel just asked jury for mercy and presented no real evidence or argument in mitigation.

*Carter v. Bell, 
218 F.3d 581 (6^th Cir. 2000)

Counsel ineffective in capital sentencing where counsel neither investigated nor introduced any evidence of mitigating factors. The defense only argued residual doubt when the state's evidence consisted of an eyewitness who saw the defendant with the victim and the testimony of a co-defendant who had already plead guilty and defense evidence was one alibi witness. Counsel spoke to only a few family members and they could not say whether they had even discussed mitigation. Counsel did not even obtain a release from client so they could view his personal or prison records and they did not seek any available records on defendant or his family. Counsel had prepared motion for expert but did not pursue it after defendant said he did not want to pursue insanity defense. Available mitigation evidence included evidence of "illegitimacy, extreme childhood poverty and neglect, family violence and instability during childhood, poor education, mental disability and disorder, military history, and positive relationships with step-children, adult family, and friends." Family history included one sibling dying in fire set by mom's boyfriend, two siblings dying of birth defects as infants, and all six remaining siblings having criminal records. Defendant's mother and sister were both hospitalized in mental health institutions and his grandfather, father, mother, step-father, and brother all suffered from alcoholism. Defendant's childhood home was also violent and unstable in that the family never lived in one place more than two years. Mother drank and would often drink up her welfare check and let the children go hungry. At the age of three, defendant and his then five year old sister were abandoned by their mother for more than a week, subsisting on milk stolen from the neighbors' porches. The welfare department placed the two in a children's home for several weeks. They subsequently lived with their aunt until their mother regained custody a year later. The defendant also suffered seriously from childhood rheumatic fever. He was whipped and beaten as an infant for crying from the illness. He also suffered frequent serious breathing problems as a child that led to numerous trips to the emergency room. The records show both childhood and adult head injuries from accidents and fights. He was also diagnosed with diabetes in 1977, when he apparently was brought to the hospital in a coma. Defendant had limited schooling and an IQ of only 79. Just prior to trial, a corrections doctor recommended "psychiatric hospitalization" because defendant's "nerves seemed stretched to the breaking point." Defendant was ultimately diagnosed after trial with schizophrenia and a history of partial seizures. Counsel's deficient conduct was not excused because defendant did not tell them of history. "The sole source of mitigating factors cannot properly be that information which defendant may volunteer; counsel must make some effort at independent investigation in order to make a reasoned, informed decision as to their utility." Id. at 596. Defendant's reluctance to present mental health evidence or testify also does not excuse failure to investigate. Conduct also not excused by argument that state would have rebutted with other crimes and bad character evidence because Tennessee law would permit rebuttal of the mitigating evidence submitted only and not general bad character evidence.

*Jackson v. Calderon, 
211 F.3d 1148 (9th Cir. 2000), cert. denied, 531 U.S. 1031 (2001)

Counsel ineffective for failing to prepare and present mitigation evidence. Defendant was smoking PCP and engaging in bizarre behaviors, such as diving head first into pavement and pulling and slapping his hair. A police officer responding to the call to investigate told the defendant to sit and ultimately hit him in the back of the legs with the baton when the defendant attempted to walk away. They struggled and the defendant was maced in the face a number of times. When officer ran to driver's side of patrol car possibly to call for backup, the defendant reached in passenger side and the two struggled for a shotgun. The defendant got it. Evidence conflicting, but it appeared that both put their weapons on the roof of the car at some point and then defendant grabbed shotgun up and fired. One pellet entered officer's eye and killed him. When other officers arrived, the defendant would not surrender and threatened to kill. A police dog caused the defendant to drop the weapon and the defendant was subdued after a struggle in which he tried to get another weapon. Shortly after the arrest, the defendant's blood pressure dropped drastically and he has hospitalized due to incoherence, shock, and semiconsciousness. Prior to trial, the defense had the defendant examined by two psychiatrists but did not call either because they could not establish affirmative defense and would reveal potentially damaging information. The defense did call one psychiatrist, who had not examined the defendant, to testify generically about the effects of PCP. During sentencing, the defense presented testimony only from the defendant's estranged wife and mother. The wife testified that the defendant was a good provider, good father, and good husband, except for drug use, which was the reason she left him. She related an instance when he thought the house was charged with electricity due to drug use. The mother testified that the defendant's father was a hustler, who was never around, and that the defendant's troubles started at age 14 when he started sniffing glue. Both witnesses were cross-examined about the defendant's prior offenses. Counsel's conduct was deficient because counsel conducted only two hours of investigation related to sentencing weeks before the trial because of the belief that they would not reach sentencing. Thus, counsel, who had no prior capital case experience, only interviewed the wife and mother and reviewed juvenile and military records. If counsel had adequately investigated, the evidence would have revealed that the defendant suffered repeated beatings in childhood, his mother would choke him when she was angry, his childhood was characterized by neglect and instability, and he showed signs of mental illness as a child and had been diagnosed with schizophrenia at one time. In addition, if counsel had presented the testimony of one of the examining psychiatrists during sentencing, the jury would have heard that the defendant was grossly impaired by PCP at the time of the offenses. Finally, counsel also failed to investigate and object to the testimony of an alleged victim of a prior sodomy because it was questionable that the sodomy was committed by force or threat of force, which was a prerequisite for admissibility in sentencing.

1999: *Smith v. Stewart, 
189 F.3d 1004 (9th Cir. 1999), cert. denied, 531 U.S. 952 (2000)

Counsel ineffective in sentencing phase for failing to prepare and present mitigation and failing to challenge the state's aggravation evidence related to prior convictions. Defendant was tried for two different rape-murders. After first conviction by jury, defendant plead guilty to the second one, even though the prosecutor argued that defendant was emotionally unstable and his plea may not be voluntary. During first sentencing under statute that allowed only consideration of statutory mitigating circumstances, counsel presented testimony from two experts, who testified that defendant had internal conflicts bordering on psychosis that caused tensions leading to a compulsion to commit sexually sadistic murders. These experts had minimal information about the defendant's history and had conducted only short interviews, but testified in an effort to establish impaired ability to conform conduct to law. Defendant was granted a new sentencing trial after the statute was held to be unconstitutional. Although counsel could now present non-statutory mitigating evidence, he did no investigation, called no witnesses, and only reargued that the court should consider the testimony of the previous experts as mitigation. Complete failure to investigate, when the prosecutor even questioned the defendant's emotional stability, was deficient. Court found prejudice because, if counsel had adequately investigated and presented mitigation, the evidence would have at least established that the defense investigator and a pastor had observed multiple personalities in the defendant. His girlfriend would have testified that he treated her well but had wild mood swings. He had attempted suicide in prison. He had developed serious psychosexual problems stemming from his childhood with deeply religious parents, one of whom beat him severely and the other emotionally neglected and abandoned him. This evidence, at a minimum, would have supported the testimony of the previous experts which had been rejected by the courts for lack of foundation and credibility. "A lawyer who should have known but does not inform his expert witnesses about essential information going to the heart of the defendant's case for mitigation does not function as 'counsel' under the Sixth Amendment." Id. at ___. Court also found that counsel was ineffective for failing to challenge the state's aggravation evidence of two prior rape convictions as a prior violent offense. Both of the convictions occurred when Arizona law did not include violence as an element of rape. Likewise, when of the convictions was obtained when it appeared that the defendant's counsel had a conflict of interest. The failure to challenge the aggravating circumstances and present mitigation evidence was prejudicial despite the "horrific nature of the crimes" in this case, especially because the Arizona statute requires a death sentence in the absence of mitigating evidence.

*Collier v. Turpin, 
177 F.3d 1184 (11th Cir. 1999)

Counsel ineffective in capital sentencing for failing to adequately prepare and present mitigation evidence. The defendant, who lived in Tennessee, drove to Georgia and committed three armed robberies. During his drive back to Tennessee, he was stopped by several officers. He grabbed one of the officers' weapons and shot both officers killing one. Because of eyewitnesses and a full confession, a conviction was essentially a foregone conclusion. During the sentencing phase, which lasted only an hour and a half, trial counsel presented 10 defense witnesses, including the defendant's wife but essentially elicited only one or two word answers from them that established that the defendant was a good worker, supported his family, and a good reputation for truth and veracity (which was irrelevant since he did not testify). The claim of ineffective assistance was not raised in the first state habeas petition. Ultimately after navigating the procedural quagmire of bouncing back and forth between federal and state habeas petitions, the Court found counsel to be ineffective in this fourth habeas petition. The Court found cause for the default of not raising the issue in the first state and federal habeas petitions because the trial attorneys had represented the defendant in those proceedings. Counsel were ineffective because they failed to develop the mitigation evidence that they were aware of. The witnesses who testified could have presented substantial evidence that the defendant was a good family man and an upstanding public citizen, who had a background of poverty but who had worked hard as a child and as an adult to support his family and close relatives. Instead of the "hollow shell" of mitigation, Id. at ___, trial counsel could have established the defendant had a gentle disposition, his record of helping his family in times of need, specific instances of heroism and compassion, and evidence of his circumstances at the time of the crimes, including his recent loss of his job, his poverty, and his diabetic condition. Counsel was also ineffective for failing to seek and present an expert on diabetes when they were aware of the diabetes and that the defendant's crimes were totally out of character for him. If counsel had performed adequately, the evidence would have established that the defendant had trouble controlling his behavior when he was not properly medicated, which would have mitigated the crime itself. An expert could have testified that the defendant's behavior was possibly caused by an episode of hypoglycemia brought on by the defendant's failure to eat that day in combination with an excessive insulin dose. Prejudice found because a juror who had known of the "stark contrast between [the defendant's] acts on the day of the crimes and his history" may not have voted for death. The Court concludes, "The jury was called upon to determine whether a man whom they did not know would live or die; they were not presented with the particularized circumstances of his past and of his actions on the day of the crime that would have allowed them fairly to balance the seriousness of his transgressions with the conditions of his life. Had they been able to do so, we believe that it is at least reasonably probable that the jury would have returned a sentence other than death." Id. at ___.

*Bean v. Calderon, 
163 F.3d 1073 (9th Cir. 1998), cert. denied, 528 U.S. 922 (1999)

Counsel ineffective in sentencing phase of double murder trial for failing to prepare and present mitigation evidence. First counsel was appointed to represent defendant and investigated competency defense. A second counsel was appointed a month and a half before the penalty hearing. The penalty phase counsel relied solely on the evidence prepared by the guilt-or-innocence phase counsel. The first counsel believed that he was prohibited from participating in the sentencing phase so he did nothing either. Prior to trial, the first counsel had contacted two mental health experts, who strongly recommended neuropsychological testing for brain damage, but this testing was not completed until ten months later during the weekend before the penalty hearing. Counsel were unaware of the results when the penalty phase started. Counsel also failed to furnish other necessary information to the experts who testified during the penalty phase and failed to adequately prepare these experts for their testimony. The only expert who had reviewed any documents did not testify. One expert who did testify had requested social, medical, and educational information, which had not been provided, and met with counsel to prepare for testimony only a day or two before testimony. He could testify only that Bean had an organic personality disorder and was moderately defective in intelligence, but could not definitively state whether Bean had brain damage or whether he was able to appreciate criminality. The other expert to testify also did not have any information other than her last-minute testing. She testified that Bean has brain damage and his ability to appreciate criminality was impaired, but she had not studied the relevant California legal standards. Subsequent review of the evidence by these experts and others resulted in testimony that Bean was functionally mentally retarded, suffered from post-traumatic stress disorder, was brain damaged, was using drugs during the time of the offenses, and was incompetent at the time of trial. The Court stated: "When experts request necessary information and are denied it, when testing requested by expert witnesses is not performed, and when experts are placed on the stand with virtually no preparation or foundation, a capital defendant has not received effective penalty phase assistance of counsel." Id. at 1079. The Court also found prejudice because the two experts who did testify lacked preparation and foundational information for their conclusions which severely undercut their credibility. In addition, counsel presented only an "unfocused snapshot" of Bean's life in sentencing so the jury had no knowledge of the "indisputably sadistic treatment Bean received as a child, including repeated beatings which left a permanent indentation in his head." Id. at 1081. Counsel also failed to discover and present evidence of Bean's developmental delays, including placement in classes for the "educable mentally retarded." Prejudice was found because this was not a case in which the death sentence was inevitable due to the enormity of the aggravating circumstances. In fact, the state presented little aggravating evidence and the jury initially divided over the appropriateness of the death penalty, deadlocking on both murders. Ultimately, the jury returned with one death verdict and life verdict.

*Smith v. Stewart, 
140 F.3d 1263 (9th Cir.), cert. denied, 525 U.S. 929 (1998)

Counsel ineffective in capital sentencing phase for failing to prepare and present mitigation and for failing to make any argument on defendant's behalf. Counsel stated only that defendant still denied his guilt and that he was only 30-years-old. Counsel spoke with defendant and his mother but asked only a few generalized questions was revealed nothing of significance. While the court recognized that counsel's task is difficult without the client's assistance, the court could not "find any reason, tactical or otherwise for the failure of counsel to develop any mitigation at all for the purpose of defending [the defendant] against the death penalty." 140 F.3d at 1269. Likewise, counsel's failure to even request leniency amounted to no representation at all. 140 F.3d at 1270. Available evidence included evidence of antisocial personality disorder, extensive drug history, change in personality after a PCP overdose, and good family relationships, including his love and support of his children. In assessing prejudice, the court stated, "we are not asked to imagine what the effect of certain testimony would have been upon us personally," 140 F.3d at 1271, but what the effect would have been on the sentencer, which under Arizona law is the judge. Prejudice found in this case because facts were "bad" but not "overwhelmingly horrifying" such that is was "highly improbable that mitigating factors of any ordinary stripe would help." 140 F.3d at 1270. Likewise, under the Arizona sentencing scheme, the judge is required to sentence the defendant to death if there are aggravating circumstances and "no mitigating circumstances sufficiently substantial to call for leniency." 140 F.3d at 1270. Counsel's failure to present mitigation or argue for leniency thus amounted to "a virtual admission that the death penalty should be imposed." 140 F.3d at 1270.

*Dobbs v. Turpin, 
142 F.3d 1383 (11th Cir. 1998)

Counsel ineffective in capital sentencing phase because counsel failed to investigate and present any mitigating evidence and made an inadequate closing argument. Counsel spoke to very few potential mitigation witnesses, including the defendant's mother. Available but unpresented mitigation included witnesses to testify that defendant had an unfortunate childhood, his mother often would not let him stay in the house with her, and when she did allow him to stay, she ran a brothel where she exposed him to sexual promiscuity, alcohol, and violence. Counsels' reasons for failure were insufficient. Counsel believed erroneously that evidence of defendant's childhood was inadmissible and that mitigating evidence could only be admitted to mitigate the crime, as opposed to the sentence. The court held, "'[S]trategic decisions based on a misunderstanding of the law are entitled to less deference." 142 F.3d at 1388. Counsel also stated that the defendant did not want him to present mitigation evidence. The court held "that lawyers may not 'blindly follow' such commands. Although the decision whether to use mitigating evidence is for the client, this court has stated, 'the lawyer first must evaluate potential avenues and advise the client of those offering possible merit.'" 142 F.3d at 1388 (quoting Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986), cert. denied, 481 U.S. 1042 (1987)). Counsel's argument in sentencing consisted of reading Justice Brennan's concurring opinion in Furman and arguing that the current death penalty statute would also be found unconstitutional. Counsel's argument was ineffective because it minimized the jury's responsibility for determining the appropriateness of the death penalty and failed to focus on the character and record of the defendant and the circumstances of the offense. In addition, counsel's argument was deficient because he never asked the jury for mercy or for a life sentence. He merely asked the jury to impose a sentence with which the jurors could live. Counsel offered no reason for the inadequate argument.

1997: *Austin v. Bell, 
126 F.3d 843 (6th Cir. 1997), cert. denied, 523 U.S. 1079 (1998)

District court found IAC in both guilt and sentencing, but the court of appeals found only IAC in sentencing. Counsel were ineffective for failing to prepare and present mitigation evidence because they didn't think it would do any good. Relatives, friends, death penalty experts, and a minister were available and willing to testify.

*Hall v. Washington, 
106 F.3d 742 (7th Cir.), cert. denied, 522 U.S. 907 (1997)

Trial counsel ineffective (even under AEDPA standards) in sentencing for failing to adequately advise the defendant of the consequences of waiving a jury in a sentencing, for failing to investigate and discover readily available mitigation evidence which included good character and adaptability testimony from a correctional officer when the victim was also a correctional officer and good character evidence from other witnesses. Investigation is required. "This does not mean that only a scorch-the-earth strategy will suffice, . . . but it does mean that the attorney must look into readily available sources of evidence. Where it is apparent from evidence concerning the crime itself, from conversation with the defendant, or from other readily available sources of information, that the defendant has some mental or other condition that would likely qualify as a mitigating factor, the failure to investigate will be ineffective assistance." Id. at 749-50. Prejudice found even though judge alone trial because if not for IAC might not have been judge alone and even if it had, trial court found no mitigation evidence at the time of sentencing. Trial counsel also ineffective for sentencing phase closing which did not even focus on defendant, but rather focused on life sentence because the death penalty is barbaric.

1996: *Emerson v. Gramley, 
91 F.3d 898 (7th Cir. 1996), cert. denied, 520 U.S. 1122 (1997) (affirming 883 F. Supp. 225 (N.D. Ill. 1995))

Trial counsel ineffective for failing to prepare and present mitigation evidence and making no sentencing argument at all where the state presented aggravation evidence of seven prior convictions of robbery. Available mitigation would have shown that at age 8 the defendant was shot when he was an innocent bystander during robbery, he lacked emotional and educational support from his parents, he lost a young child, and had a diminished IQ.

1995: *Glenn v. Tate, 
71 F.3d 1204 (6th Cir. 1995), cert. denied, 519 U.S. 910 (1996)

Trial counsel ineffective for failing to adequately prepare and present mitigation evidence in case where defendant killed police officer while helping older brother escape from jail. Counsel requested court-appointed examination and examiners reported no organic brain damage (although no testing done.) Available but unpresented evidence included mental retardation (school records), physical abuse, hyperactivity as a child. Neurological examination showed global brain damage probably caused by general anesthesia given mother early in pregnancy. ["while juries tend to distrust claims of insanity, they are more likely to react sympathetically when their attention is drawn to organic brain problems such as mental retardation", Id. at 1211] Probation officer (if interviewed and called) would have testified that defendant was a follower and was particularly susceptible to the influence of his older brother.

*Ford v. Lockhart, 
67 F.3d 162 (8th Cir. 1995) (affirming 861 F. Supp. 1447 (E.D. Ark. 1994)

Trial counsel ineffective for failing to prepare and present mitigation evidence which would have shown that: defendant suffered severe physical and psychological abuse from father, including being hung from the rafters in a cotton sack or by his wrists all day long and being beaten periodically with extension cord; and defendant witnessed father beating mother and siblings. In addition, counsel failed to investigate and present evidence of intoxication at time of the offense despite the fact that hospital records after capture showed that he was "vomiting and drunk."

*Antwine v. Delo, 
54 F.3d 1357 (8th Cir. 1995), cert. denied, 516 U.S. 889 (1996)

Counsel ineffective for failing to investigate and present available evidence of bipolar disorder. Counsel was aware that defendant was acting oddly for months before offense and that a cursory 20 minute exam by state experts found abnormal behavior consistent with PCP intoxication but that defendant denied using PCP at the time of the offense. Counsel failed to follow up on this inconsistency.

*Hendricks v. Calderon, 
70 F.3d 1032 (9th Cir. 1995), cert. denied, 517 U.S.1111 (1996)

Trial counsel ineffective for failing to adequately prepare and present mitigation evidence even though a defense expert was called. [Great language on duty to investigate mental health and that "quantum of prejudice the caselaw seems to require for deficient penalty phase performance is relatively low." See also Hendricks v. Calderon, 864 F. Supp. 929 (N.D. Cal. 1994) and Hendricks v. Calderon, 64 F.3d 1340 (9th Cir. 1995). Trial counsel ineffective for failing to prepare and present mitigation which would have shown that defendant: was blamed by his family for his mother's death giving birth; lived in a two-room house with grandmother and 15 relatives; was beaten with a frying pan and switch by grandmother; had to drink kerosene and sugar as medicine; was sexually abused by prostitutes who worked for father; was raped by a stranger and attempted suicide shortly afterwards; had a son who died from rare skin disease; and had a history of drug and alcohol use and male prostitution. A mental health expert would have testified that defendant is genetically predisposed to serious mental illness which was exacerbated by background. Expert testimony would have also shown that defendant suffered from schizoaffective disorder, PTSD, and polysubstance abuse. Expert would have even testified that defendant was insane at the time of the offenses. All of this evidence would have supported at least three statutory mitigating circumstances that were not presented to the jury. Although the jury was given some lay evidence in mitigation, the jury was given no guidance of how to connect the facts and expert testimony about background to the mitigating factors.

*Clabourne v. Lewis, 
64 F.3d 1373 (9th Cir. 1995)

Counsel ineffective for failing to prepare and present mitigation evidence. Trial counsel did not call any witnesses in sentencing even though a detective would have testified that it was the co-defendant who was responsible for the depraved manner in which the crime was committed and depravity was the only aggravating circumstance found. Trial counsel also did not prepare and present expert testimony. The defense expert who testified at trial had seen the defendant six years earlier and was not provided with any subsequent records, including records concerning offense. If additional information had been provided, defense expert would have diagnosed schizophrenia instead of anti-social personality. Likewise, state experts testified at trial that defendant was sane, but were never provided with information about defendant's history or offenses or asked about mitigation. If defense counsel had provided the information and talked to them, state experts would also have diagnosed schizophrenia and agreed that co-defendant had manipulated defendant.

*Baxter v. Thomas, 
45 F.3d 1501 (11th Cir.), cert. denied, 516 U.S. 946 (1995)

Trial counsel ineffective during penalty phase of capital trial for failing to adequately investigate and present mitigation evidence. Counsel did not request State Hospital records, school records, or social service records, and did not interview defendant's sister, neighbor, or social worker, even though counsel was aware of defendant's odd behavior and even requested a mental health evaluation. Because of these failures, trial counsel did not discover or present evidence that defendant spent approximately three years of his teenage life in a psychiatric hospital and that he was mentally retarded.

*Jackson v. Herring, 
42 F.3d 1350 (11th Cir.), cert. denied, 515 U.S. 1189 (1995) (affirming Jackson v. Thigpen, 752 F. Supp. 1551 (N.D. Ala. 1990))

Trial counsel ineffective during penalty phase of capital trial for failing to adequately investigate and present mitigation evidence. Available but unpresented mitigation evidence included: substantial personal hardships, including having to quit school in 8th grade because defendant was pregnant; brutal and abusive childhood at the hands of an alcoholic mother; devotion to her mother, sister, and daughter; borderline mental retardation; good work history; and abuse by her boyfriend, who was the murder victim, both for a long time preceding his death and immediately prior to his death.

1994: *Hill v. Lockhart, 
28 F.3d 832 (8th Cir. 1994), cert. denied, 513 U.S. 1102 (1995) (affirming 824 F. Supp. 1327 (E.D. Ark. 1993))

Trial counsel ineffective at penalty phase for failing to prepare and present evidence of defendant's mental state at the time of the offenses, and that defendant had a long history of schizophrenia but he was taking antipsychotic medication at the time of offenses.

*Wade v. Calderon, 
29 F.3d 1312 (9th Cir. 1994), cert. denied, 513 U.S. 1120 (1995)

Trial counsel ineffective during penalty phase of capital trial for failing to call defendant's family to corroborate abusive background; calling forth alternate personality that committed crimes (defendant had multiple personality disorder) during defendant's testimony and eliciting damaging statements and essentially a challenge to the jury to execute defendant; and by arguing during closing argument that 1) defendant's life should be spared so doctors could examine him as human "guinea pig"; 2) that jurors had already decided on death; and 3) that executing defendant may "free him from this horror".

1992: *Loyd v. Whitley, 
977 F.2d 149 (5th Cir. 1992), cert. denied, 508 U.S. 911 (1993)

Trial counsel ineffective in sentencing phase for failing to obtain independent mental health evaluation when funds were available and sanity was a critical issue, but counsel assumed funds were not available and did not pursue issue. Proper investigation would have revealed: evidence that defendant was unable at time of offense to distinguish between right and wrong or appreciate the significance or consequences of his acts because of psychotic delusions; child abuse; substance abuse; psychosis (not anti-social as the state contended at trial); and brain damage (frontal lobe dysfunction).

*Mak v. Blodgett, 
970 F.2d 614 (9th Cir. 1992), cert. denied, 507 U.S. 951 (1993) (affirming 754 F. Supp. 1490 (W.D. Wash. 1991)

Trial counsel ineffective for failing to prepare and present mitigating evidence regarding defendant's background, family relationships, and the effects of assimilation problems and cultural conflict on young Chinese immigrants.

*Cave v. Singletary, 
971 F.2d 1513 (11th Cir. 1992)

Petitioner given death sentence for robbery and murder. At trial, counsel emphasized the fact that petitioner admitted he was guilty of robbery. Court found that although this demonstrated that counsel did not understand the felony murder rule, petitioner was not prejudiced because the jury would have made the same decision based on the evidence of guilt of the robbery. Counsel was found ineffective at sentencing phase, however, because she was under the "grandiose, perhaps even delusional belief" that she would win an acquittal for her client and, therefore, failed to prepare and present available character evidence and the fact that defendant had no prior criminal record in mitigation. State argued lack of character evidence in closing argument.

1991: *Kenley v. Armontrout, 
937 F.2d 1298 (8th Cir.), cert. denied, 502 U.S. 964 (1991)

Counsel ineffective for failing to investigate and present mitigation evidence because counsel erroneously believed that the evidence was too old and insubstantial, which was based, in part, on psychiatrist's report which was itself incomplete. Adequate investigation would have revealed a history of "an extreme personality or emotional disorder or disturbance, suicidal tendencies, and alcohol abuse and intoxication.

*Blanco v. Singletary, 
943 F.2d 1477 (11th Cir. 1991), cert. denied, 504 U.S. 946 (1992) (affirming Blanco v. Dugger, 691 F. Supp. 308 (S.D. Fla. 1988)

 At sentencing, counsel failed to present any mitigating evidence. He never spoke to potential witnesses and thus failed to present evidence of childhood poverty, seizures, family history of psychosis, organic brain damage, borderline retardation, epileptic disorders and paranoid and depressive behaviors. Counsel also asked for continuance to procure psychiatric exam and then never had one conducted. Counsel told trial court that no mental health mitigation existed. Counsel revealed damaging information, violating client confidences, to trial judge.

*Horton v. Zant, 
941 F.2d 1449 (11th Cir. 1991), cert. denied, 503 U.S. 952 (1992)

Trial counsel ineffective for failing to prepare or present mitigating evidence because of the "strategic reason" that mitigation was appropriate only in gruesome cases involving torture. Available mitigation would have shown that defendant was a hard worker, a good youth, able to provide for his common law wife and their daughter, and had successfully adjusted to previous stays in prison. Counsel also ineffective for arguing that they were local lawyers, not "bleeding heart, anti-death penalty lawyers" and calling the defendant a "worthless man" that defense counsel hates and conceding that maybe the defendant "ought to die" during closing argument.

1990: *Brewer v. Aiken, 
935 F.2d 850 (7th Cir. 1990)

Defense counsel ineffective in death penalty phase of trial for failing to fully investigate defendant's family and mental history and present evidence in mitigation. An investigation would have revealed shock therapy, brain damage, mental retardation, susceptibility to the influence of others, and disadvantaged family life.

*Cunningham v. Zant, 
928 F.2d 1006 (11th Cir. 1990)

Counsel ineffective during the penalty phase of a capital murder case for failing to present evidence of mental retardation, head injury, socioeconomic background and reputation as good father and worker in mitigation.

1989: *Kubat v. Thieret, 
867 F.2d 351 (7th Cir.), cert. denied, 493 U.S. 874 (1989) (affirming 679 F. Supp. 788 (N.D. Ill. 1988)

Trial counsel ineffective during sentencing for failing to investigate and present available character evidence in mitigation, making a bizarre and prejudicial closing argument which conceded that counsel "was not going to convince" jury and invited the jury to "decide" between the defendant and victim, and failing to object to improper sentencing instructions which misstated the law by calling for unanimous agreement on a decision not to impose the death sentence.

*Deutscher v. Whitley, 
884 F.2d 1152 (9th Cir. 1989) (decision vacated and remanded by Supreme Court several times; last opinion which again finds IAC is Deutscher v. Angelone, 16 F.3d 981 (9th Cir. 1994)

Trial counsel ineffective in penalty phase of capital trial for not investigating and presenting mitigating evidence despite sentencing argument that defendant must have had some mental problems. Adequate investigation would have revealed diagnoses of schizophrenia, pathological intoxication, and organic brain damage; commitments to mental institutions; and a history of good behavior in institutional settings.

*Harris v. Dugger, 
874 F.2d 756 (11th Cir.), cert. denied, 493 U.S. 1011 (1989)

Attorneys rendered IAC in a capital murder case where they failed to prepare or present mitigation evidence because each lawyer believed that the other was responsible for preparing penalty phase of case. Trial counsel did not investigate mitigation, which would have provided evidence that the defendant was a devoted father, husband, and brother, and a "decent, loving man."

1988: *Evans v. Lewis, 
855 F.2d 631 (9th Cir. 1988)

Trial counsel ineffective for failing to investigate and present evidence in mitigation when defendant had a history of mental problems apparent from his records of incarceration in state mental facility for inmates and prior suicide attempts. Evidence would have shown that defendant is schizophrenic and possibly insane at time of offenses. Instead of this evidence which would have supported at least one statutory mitigating circumstance, counsel presented no evidence in mitigation, even though Arizona death penalty statute required death penalty if no mitigating factor is established, & at least one aggravating factor is found (at least one aggravating factor, prior conviction, was obviously present).

*Middleton v. Dugger, 
849 F.2d 491 (11th Cir. 1988)

Counsel ineffective for failure to conduct investigation into petitioner's background, which would have revealed a history of schizophrenia since age 12; childhood neglect, physical, sexual, and drug abuse; and low IQ. In addition, expert testimony would have established that the defendant was under extreme emotional duress at the time of the homicide and had a very little capacity to conform his conduct to the law at the time.

*Stephens v. Kemp, 
846 F.2d 642 (11th Cir.), cert. denied, 488 U.S. 872 (1988)

IAC where trial counsel fails to investigate, present, & argue to jury at sentencing phase of prosecution for murder & aggravated assault any evidence of defendant's mental history and bizarre behaviors. Trial counsel had learned from defendant's sister that defendant had spent a brief time in a mental hospital four to six months before shooting occurred but pursued his investigation no further after psychiatrist filed a written evaluation.

1987: *Lewis v. Lane, 
832 F.2d 1446 (7th Cir. 1987), cert. denied, 488 U.S. 829 (1988)

Trial counsel ineffective in penalty phase of DP case: Failure to explain to jury the instruction on mitigation which had been made questionable by the prosecutor's argument, failure to object to prosecutor's argument about unrelated murder, failure to individualize defendant as a human being before the jury (instead presenting an abstract religious argument), & acquiescence in receipt of erroneous evidence of prior convictions which did not exist.

*Armstrong v. Dugger, 
833 F.2d 1430 (11th Cir. 1987)

Trial counsel ineffective during sentencing phase for failing to prepare and present mitigation evidence. Available evidence would show impoverished childhood, good worker, nonviolent, religious, mental retardation, and organic brain damage.

*Magill v. Dugger, 
824 F.2d 879 (11th Cir. 1987)

Trial counsel ineffective during guilt phase when counsel began representation on the first day of jury selection, met with defendant for 15 minutes prior to defendant's testimony, failed to discuss with defendant the possibility that the state would seek to prove premeditation during his testimony on cross-examination, failed to object when the prosecutor asked the defendant to concede his guilt to capital murder, and did not develop or present to the jury the defense theory that defendant committed the killing without premeditation. No prejudice on findings, but in combination with errors of counsel in sentencing, prejudice found in sentencing phase. Sentencing errors included counsel's failure to argue defendant's emotional problems which would discount defendant's guilt phase testimony admitting that the killing was intentional and premeditated. In addition, counsel failed to prepare and present available mitigating evidence of a history of serious emotional problems. Finally, counsel called a court-appointed psychiatrist, who had never been asked to examine the defendant regarding the applicability of statutory mitigating circumstances, as a defense witness and this witness' testimony virtually precluded finding a statutory mitigating circumstance.

1986: *Jones v. Thigpen, 
788 F.2d 1101 (5th Cir. 1986), cert. denied, 479 U.S. 1087 (1987)

Trial counsel ineffective during sentencing phase for failing to prepare and present evidence in mitigation when evidence was available to prove that defendant is mentally retarded, 17 at the time of the offense, and did not have any intent to kill victim killed by accomplice during robbery.

*Johnson v. Kemp, 
781 F.2d 1482 (11th Cir. 1986) (affirming 615 F. Supp. 355 (D.C. Ga. 1985))

Trial counsel ineffective in sentencing phase for failing to investigate and present available mitigation. Counsel only talked to defendant and defendant's parents and did nothing more. Available mitigation included 19 good character witnesses and no criminal history, neither of which was presented to jury.

1985: *Blake v. Kemp, 
758 F.2d 523 (11th Cir.), cert. denied, 474 U.S. 998 (1985)

Trial counsel ineffective for making no preparations whatsoever for sentencing phase because of his belief that defendant would be found not guilty by reason of insanity. (State psychiatrist found "reactive- depressive" condition, but did not give opinion on sanity question because of insufficient information from defendant.) If trial counsel had adequately investigated he could have presented character evidence that the defendant was "a man who was respectful toward others, who generally got along well with people and who gladly offered to help whenever anyone needed something."

*Tyler v. Kemp, 
755 F.2d 741 (11th Cir.), cert. denied, 474 U.S. 1026 (1985)

Counsel ineffective in sentencing phase for failing to prepare and present mitigating evidence that defendant had no prior criminal record, had a good work record, had an alcoholic abusive husband, and was a good mother.

1984: *King v. Strickland, 
748 F.2d 1462 (11th Cir.), cert. denied, 471 U.S. 1016 (1984)

IAC where defense counsel failed to present available character witnesses in capital sentencing hearing as mitigating evidence and emphasized during closing argument the reprehensible nature of the crime and the fact that he had reluctantly represented defendant.

(4)Also look under numerous deficiencies in guilt phase because some cases found IAC in both.