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, 12