CAPITAL
SENTENCING PHASE ERRORS (4)
NUMEROUS DEFICIENCIES AND
INADEQUATE MITIGATION
U.S. District Court Cases
2007: *Jefferson v. Terry,
490 F. Supp. 2d 1261 (N.D. Ga. 2007).
Counsel ineffective in capital sentencing for failing
to adequately investigate and present evidence of brain damage. Counsel obtained the
assistance of a psychologist to determine competence and capacity at the time of the offenses.
This expert found the defendant competent and sane with a “midrange level of intelligence,”
but, in his written report, recommended neuropsychological testing “to rule out an organic
etiology. Counsel did not, however, seek additional testing because the doctor allegedly
made a written statement to counsel that the defendant was “just a criminal” and that further
testing would be a waste of time. Counsel also believed that mental health evidence would
contradict the defendant’s assertion that he did not commit the crimes. A week prior to trial
counsel interviewed a number of the defendant’s family members in Kentucky. In
sentencing, counsel presented lay testimony that the defendant had adapted to pretrial
confinement, he had a difficult childhood growing up without a father, he had a serious head
injury at age two “when a car ran over the top of his head,” and he was a good person and
good father loved by his family.
In examining this claim, the issue before the Court is not whether
counsel should have presented additional mitigating evidence during
the penalty phase. Rather, the question is whether the investigation
supporting counsel's decision not to investigate further for mitigating
evidence was reasonable.
Counsel’s conduct was deficient in failing to contact the defendant’s family members and
friends “earlier in the case” and failing to pay “attention to obvious information concerning
. . . childhood injury.” Even the pretrial confinement records noted “frequent headaches as
a result of the head injury,” but counsel “apparently failed to pay attention” to this
information. Police records also noted that the defendant had been hit by an automobile
when he was a child, but this information was not followed up on. “Petitioner also had a
visible scar on his forehead. This also was ignored.” If counsel had followed up with the
family, counsel would have learned that the defendant stayed in the hospital for a long time
and had heavy fevers the whole time. He was slower than other children and had problems
with attention and concentration. He had frequent headaches and would get dizzy. He would
even faint at times, which required hospitalization on one occasion. There was also a history
of mental illness in the family. If counsel had pursued the neuropsychological testing and
neurological examination, counsel also would have learned that the defendant suffers from
permanent brain damage, which is most pronounced in the right hemisphere of the brain,
including the frontal lobe. This is also likely the cause of the attention deficit disorder and
learning disability suffered by the defendant. Counsel’s decision not to investigate further
was “unreasonable” because counsel relied on their expert’s oral statements, which
contradicted his recommendation in his written report, “without adequate explanation for the
contradiction.” Counsel also failed to inquire “about and appreciate the potential value of
evidence of brain damage as a mitigating circumstance.” Instead, counsel limited their
mental health inquiry into competence, capacity, and intelligence and the doctor’s
conclusions in this regard, . . . , do not speak to the existence or nonexistence of mitigating
mental health evidence pertinent to the penalty phase of trial.” Counsel was even confused
and equated “explosive personality disorder with neuropsychological testing.”
Simply put, trial counsel in this case had no idea of, and did nothing
to learn, the significance of developing mental-health testimony and
evidence for the penalty phase of a capital trial, even if such
testimony and evidence would not have assisted mental-health based
claims at the guilt-innocence phase of the trial.
Finally, “the decision not to present mental health evidence can hardly be described as
strategic, since trial counsel was not aware of the mental health evidence that might have
been available.” Even though the mental health evidence would had “the risk that such
evidence would imply Petitioner’s guilt and weigh against trial counsel’s credibility,”
counsel chose not to argue residual doubt and to plead for mercy “without reasonably
investigating the alternative. Therefore, “even if trial counsel's decision was ‘strategic,’ the
decision was not an informed decision and therefore was unreasonable.” “Trial counsel's
strategic decision and investigation also were not reasonable in light of the guidelines set
forth by the American Bar Association” in 1989. Prejudice found because the evidence of
neurological damage would have:
(1) explained how an otherwise largely inexplicable crime could have
occurred because of circumstances beyond Petitioner's control; and
(2) substantially impacted any "mercy-based" juror decision-making
on sentencing, since it figures directly into the state of the murderer's
mind.
Even assuming that counsel chose not to contradict their theory of innocence, the state
presented evidence of past behavior and crimes in aggravation and the mental health
evidence “would have provided the jury an explanation” for the past behavior.
2005:*Thomas v. Beard
388 F. Supp. 2d 489 (E.D. Pa. 2005)
Counsel ineffective for failing to adequately prepare and present mitigation and even declining the state’s offer to stipulate to the defendant’s age and that he had a high school diploma because the defendant did not want to present mitigation. Counsel was aware that the defendant’s “actions indicating questionable mental health,” including his post-arrest suicide attempt and statements that he wanted to die. Counsel also knew that the prosecution intended to rely on several aggravating circumstances “and thus of the need to respond in order for there to be any hope of avoiding a death sentence.” Despite this knowledge, counsel did not obtain mental health records pertaining to the defendant’s past offenses and treatment, did not interview anyone concerning the defendant’s background, and did not obtain the services of a mental health expert. Prejudice was found because, if counsel had adequately investigated, the evidence would have revealed–“both documentary and testimonial–of a long history of mental illness, including repeated diagnoses of paranoid schizophrenia and an inability to control aggressive impulses.” “[I]t is reasonably probable that, for a single juror, such evidence could have been powerful enough to affect his or her sentencing decision.”
Because counsel failed to present any evidence in mitigation, [the defendant’s] chance to escape the death penalty became especially contingent upon counsel’s penalty phase closing argument. Sadly, that performance was grossly deficient: counsel’s closing argument was largely incoherent, and portions of it that could be said to have a semblance of coherence served only to underscore the tragic fact of [the victim’s] death . . .
In sum, counsel’s closing was, at best, incoherent and, at worst, in the service of the prosecution’s contention that the jury should select death rather than life imprisonment. Counsel wholly failed in his duty to present a closing argument helpful to [the defendant]. Instead, counsel’s closing, whose importance was heightened in the absence of any mitigating evidence, gravely prejudiced his client.”
Although the defendant said he did not want to present mitigation, “[a] defendant’s desire to not present mitigating evidence . . . cannot by itself terminate counsel’s duty to investigate.” Here, the defendant’s decision “was not an informed one.” Counsel did not adequately explain the nature of the sentencing proceeding so the defendant
could not possibly have had full knowledge of what he was waiving when he instructed counsel that he did not wish to present mitigating evidence. As such, his waiver was not made knowingly, voluntarily, and intelligently, and therefore must be considered invalid. Counsel had a duty to investigate that was independent of any expressed reluctance of [the defendant]. Only after such an investigation would counsel have been in a position to advise [the defendant] of all avenues available to him, explain to him the nature of the proceeding, and then be guided by his client’s informed decision.
The duty to investigate is well established, and it cannot be overcome by the misguided instruction of an uninformed client.
Id.
*King v. Bell
392 F.3d 964 (M.D. Tenn. 2005)
Counsel ineffective in capital sentencing for failing to adequately prepare and present mitigation and failing to object to the prosecutor’s argument
expressing his personal opinion. Counsel’s conduct was deficient under Strickland and the ABA Standards for Criminal Justice. Counsel “focused their
limited sentencing efforts on researching the statutory aggravating and mitigating factors and consulting with each other about the content of closing argument”
after the guilty verdict. Id. at 975. Counsel did not interview family members or otherwise investigate. Counsel also failed to even discuss sentencing
with the defendant or prepare him for his testimony. Even if counsel were not aware of any of the defendant’s history before, counsel knew the basics about
the defendant’s background from his testimony during the trial. Nonetheless, counsel did not seek to delay sentencing to allow more time for investigation and preparation for sentencing. In short, “it appears trial counsel failed to conduct any investigation whatsoever.” Id. at 986. Prejudice found based on the failure to present mitigation and the failure to object to the prosecutor’s improper arguments expressing his personal opinion that the defendant deserved the death penalty without objection. If counsel had adequately investigated the evidence would have established that the defendant’s biological parents separated when he was nine months old. His father moved to New York. His alcoholic mother gave him over to his aunt and uncle to raise. She died when he was 14 for cirrhosis of the liver. The defendant was raised in a good loving home with discipline even though they lived in “the projects.” As a teenager, the defendant started getting into trouble running around with a biological brother raised in a different home nearby. After he was disciplined, he asked to move to New York with his father, which was allowed. His father did not maintain
discipline and the defendant started skipping school and getting into trouble. Thus, the defendant “spent his formative years in New York with little supervision.”
Id. at 979. He became addicted to heroin before returning to Tennessee as a young adult. The turning point in his life though came when his aunt and
uncle were murdered in 1975 by Black Moslems in retaliation for a mentally retarded, schizophrenic shooting one of their own. They were abducted and their bodies
were later found shot in a burned out vehicle. Four other homes, including those of the defendant’s brother and cousin who were raised in the same home with him,
were firebombed. The murders “overwhelmed” him and he began seeing and hearing his “Mama” (the aunt) and using drugs to “an even greater extent than before.”
Id. at 980. He would often call out to her in his sleep and wake up sweating with nightmares. He had “anxiety attacks” and passed out a few times at
work. He was also hospitalized for three gunshot wounds and a heroin overdose. His records showed “episodes of depression, heavy alcohol abuse, and IV drug
abuse” and a referral for psychiatric treatment. Mental health experts could have testified that the defendant had Post Traumatic Stress Disorder and an organic
brain syndrome, along with panic attacks associated with an anxiety disorder. The state court decision was an objectively unreasonable application
of Strickland. The court withheld a final ruling, however, in order to conduct an evidentiary hearing to obtain counsel’s testimony and “to resolve any factual
disputes that may remain.”
2004: *Guy v. Dretke
2004 WL 1462196 (N.D. Tex. June 29, 2004) (many
of the facts are from the previous remand in Guy v. Dretke, 343
F.3d 353 (5th Cir. 2003 ).
Counsel ineffective in capital sentencing for failing to adequately
investigate and present mitigation. The defendant was the lookout man in
a robbery/murder plan and only entered the crime scene after the
shooting stopped to attempt to get money out of the cash register.
Appointed counsel did not seek a second counsel and retained an
investigator with no capital experience to investigate for trial and
sentencing. The investigator also drafted motions, communicated with
opposing counsel, and communicated with the court on counsel’s behalf.
In sentencing, counsel presented only four witnesses, who did not know
the defendant well and "gave vague and confusing testimony." The
defendant was denied the effective assistance of counsel because the
investigator had a conflicting relationship with the victim’s mother and
became the sole beneficiary of her estate only six month’s after trial.
Prejudice found because "[e]ven though [the defendant] was by far the
least culpable of the three defendants, he was the only defendant
sentenced to death." The District Court found that the investigator "is
not credible and is not to be believed." Aside from contradictory
testimony, he inherited an estate worth at least $500,000 from the
victim’s mother. "[D]uring the course of the trial preparation, [he]
transitioned from defense investigator to mercenary." Prejudice found in
sentencing because there were numerous available mitigation witnesses.
Although the court cites Strickland, the bottom line was that the
investigator "had a conflict of interest" due to his relationship with
the victim’s mother.
*Marshall v. Hendricks
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 the AEDPA, the court found that
counsel’s conduct was deficient under the 1986 ABA Standards for
Criminal Justice and the "[a]ctual courtroom practice of capital
defenders in New Jersey" at the time of trial in 1986 bin failing to
conduct a "separate penalty phase investigation." Counsel also failed to
adequately consult with the defendant and did not even explain to him
that "had the right to allocute at the penalty phase." The defendant’s
failure to cooperate with 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
way to prepare for and investigate a mitigation case. . . . No matter
how difficult, [counsel] had an obligation either to convince [the
defendant] to cooperate with him in preparing a case for life, or to
find a way to conduct an investigation without [the defendant’s]
assistance.
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.
2002: *United States ex rel. Madej v. Gilmore
223 F.
Supp. 2d 698 (N.D. Ill. 2002)
Even under AEDPA, counsel ineffective in capital
sentencing for failing to prepare and present mitigation evidence. The
sentencing hearing was held one day after conviction. Defense counsel
had not prepared because he mistakenly believed that he would have time
to do so after conviction. The only mitigation presented was the
defendant’s testimony. Court finds that prejudice should be presumed
under Cronic because "counsel failed to conduct any investigation that
would submit the question of Madej’s eligibility for the death penalty
to ‘meaningful adversarial testing,’" (quoting Cronic, 466 U.S. at 659),
and even conceded eligibility for the death penalty. Court further finds
that, even if Cronic does not apply, prejudice was shown under
Strickland. Available but unpresented evidence included: evidence that
the defendant protected her from physical abuse for years; a plea for
mercy from the victim’s husband; evidence that petitioner was a good
person; evidence of a troubled childhood; and expert testimony about
petitioner’s history of substance abuse and its impact on his
"psychological and neurological health." The Illinois Supreme Court’s
finding of no prejudice was "clear error" because the state court
"looked at each category of mitigating evidence in isolation" rather
than considering whether "there is a reasonable probability the outcome
would have been different based on all of the mitigating evidence."
Court held: "There can be no confidence in the outcome of a capital
sentencing hearing where the defendant was represented by an attorney
who failed to present any evidence to counsel against imposition of the
death penalty." Although not considered individually prejudicial, the
court included in the cumulative prejudice analysis, counsel’s failure
to advise his client that state law required a unanimous jury and only
one juror had to hold out in order to avoid death, which resulted in the
petitioner waiving his right to jury and being sentenced by judge alone.
*Purcell v. Horn
187 F. Supp. 2d 260 (W.D. Pa.
2002)
Counsel ineffective in capital sentencing for failing to prepare and
present mitigation evidence. Although the case was reviewed under AEDPA,
this issue was reviewed de novo because the state court did not
address the merits of the claim. The district court also held that no
evidentiary hearing was required because the state presented no contrary
evidence. Thus, the court expanded the record to include Purcell’s
affidavits and held that the AEDPA was not violated because Purcell was
denied a hearing on this issue in state court. Counsel’s conduct was
deficient because "[t]rial counsel has an ‘obligation to conduct a
thorough investigation of the defendant’s background’ in capital cases."
(quoting Williams v. Taylor, 529 U.S. at 396). Here, counsel had no
basis for failing to investigate, because counsel focused only on
defeating the one aggravating circumstance of torture. Counsel presented
no mitigating evidence and his discussion of it in closing covered only
one page. This decision could not reasonably "foreclose any
investigation into mitigating evidence" though. If counsel had
investigated, he would have discovered that the defendant was the son of
a prostitute, who lived in squalor in his first four years. After he was
abandoned by his mother to another family, he was physically and
sexually abused by an alcoholic father. He began self-medicating with
drugs at an early age and was a drug addict by the time he was a
teenager. These problems caused neurological damage that affected
impulse control and ability to understand right from wrong. Despite all
of this, the defendant was a loving father, caring brother, a dear
friend, and a man to be trusted. Before the jury, the defendant, "the
man was a mere skeleton: a young killer with a prior criminal record and
a girlfriend, nothing more and nothing less. Had [his] lawyer tapped
into the mitigating evidence available to him, however, he would have
added flesh, bones, a mind, and a heart" to the defendant. Ultimately,
the jury "may have believed that his life, though shattered beyond
repair, was still worth saving." The jury also may have found that the
murder was not "preplanned or premeditated," due to the impulse control
problems caused by his brain damage. This would also have impacted the
consideration of the torture aggravator. In short, this jury "did not
have the chance to see [the defendant], the man. It did not have the
opportunity to feel sympathy or pity. . . . While this evidence may not
have swayed every juror, [the defendant] need only show a reasonable
probability that one juror would have found death an inappropriate
punishment." Here, while "[a] jury in a capital case may not be barred
from hearing any mitigation evidence offered by the defendant concerning
his character or background[,] [i]n the present case, the jury was
prevented from hearing such evidence, not because the court precluded
its admission, but merely because [defense] counsel made an objectively
unreasonable decision not to look for it."
2001: *Horn v. Holloway
161 F. Supp. 2d 452 (E.D. Pa. 2001)
Counsel ineffective in capital sentencing, under AEDPA, for failing to request
appointment of a mental health expert to assist the defense. Although
the defendant waived his right to present testimony of family and
friends, he did not waive his right to have a mental health expert
testify on his behalf. "[E]ven when a defendant is uncooperative,
counsel still has a duty to interview friends and relatives and
otherwise investigate to discover whether mitigating evidence exists."
Id. at 567.
Because the post-trial evaluations
show that mental health evidence existed prior to trial, both a
complete failure to investigate and a partial investigation that
failed to uncover such evidence must be considered unreasonable
because counsel probably would have discovered such evidence had his
investigation been reasonable. Likewise, because such evidence probably would
have been discovered, counsel’s decision not to make such an
investigation, if indeed he made such a decision, must be considered
unreasonable. Further, whether or not an investigation was conducted and
whether or not evidence as to mental health issues was uncovered, such
evidence must have existed, and therefore counsel acted unreasonably in
failing to request that a defense mental health expert be appointed.
Trial counsel demonstrated a lack of either preparation or knowledge, or
both, in failing to request that the trial court appoint a defense
expert to assist in the preparation of Petitioner’s mitigation defense
at the penalty phase.
Id. at 567-68 (citations and footnotes omitted).
Prejudice found because, with the assistance of a mental health expert,
the available evidence included cognitive defects; the effects of
emotional, physical and sexual abuse; and the effects of chronic drug
and alcohol abuse. Thus, there is a reasonable probability that a juror
would have weighed the aggravating and mitigating factors differently.
"Counsel’s deficient performance prejudiced Petitioner by depriving him
of any informed presentation of mental infirmities." Id. at 573. There
can be no strategic or tactical reason for counsel’s failure to request
that a mental health expert be appointed to assist the defense when
mental health issues could be a significant factor at either the trial
or penalty phases, because such an expert is necessary to effectively
develop and present such evidence, as well as to assist counsel and his
client in deciding whether such evidence should be presented at trial.
With respect to the state court decision, the court held that the state
court had not adjudicated this claim on the merits even though it was
properly presented. Thus, the court was applying de novo review rather than the standard of
2254(d). The court also held that even if 2254(d) applied, the state
court decision was unreasonable because the state court purported to
deny post-conviction relief because of the denial of relief on direct
appeal when this claim was factually and legally different than the
claim raised on direct appeal. "A decision based on an analysis of one
set of facts and legal theories cannot reasonably be applied to another
set of facts and legal theories only tangentially related to the former
set." Id. at 565 n. 130.
*Pirtle v. Lambert
150 F. Supp. 2d 1078 (E.D. Wash. 2001),
aff’d on other grounds
, 313 F.3d 1160 (9th Cir. 2002)
Trial and
appellate counsel ineffective in capital sentencing for failing to
interview officers prior to trial and failing to object to admission of
statement taken in violation of Miranda. While the defendant was on the
ground, handcuffed, with an officer’s knee in his back, and officers
threatening to "blow his head off" if he was not cooperative, an
officer, without prior Miranda warnings, asked the defendant if he knew
why he was under arrest and the defendant said, "Of course I do, you
might as well shoot me now." The officers did not include this statement
in their reports and the state did not disclose the statement prior to
trial. During the trial, the state offered the statement in evidence
without objection and argued on the basis of the statement in both the
trial and sentencing. With respect to the lack of Miranda warnings, the
court found that "the Washington Supreme Court unreasonably determined
that Deputy Walker was not interrogating [the defendant], but rather was
just asking background booking questions." The district court found this
to be unreasonable because this clearly was not a booking situation or
question. With respect to the state’s failure to disclose the statement
and hold a hearing on voluntariness, the state court held that no
disclosure or hearing was required because the prosecutor did not know
of the statement until the officer’s testimony. The District Court found
this to be an unreasonable application of Supreme Court law since "the
United States Supreme Court has clearly held that knowledge of police
officers is imputed to the prosecution." With respect to the ineffective
assistance claim, the court was "firmly convinced that the Washington
Supreme Court erred and failed to reasonably apply the holding of
Strickland to the facts of this case." The court found no prejudice
during the trial due to "extremely strong" evidence, including the
defendant’s testimony admitting guilt. Prejudice found in sentencing
though, but the court analyzed the "prejudice" in conjunction with the
analysis of whether "‘actual prejudice’ resulted because a
constitutional violation had substantial and injurious effect or
influence in determining the jury’s verdict. Brecht v. Abrahamson, 507
U.S. 619, 623 (1993)."[Note that under the Court’s analysis in Kyles v.
Whitley, 514 U.S. 419 (1995), the Court stated that no additional
harmless error review is necessary after materiality is found. Because
the "materiality" standard of Kyles is the same as the "reasonable
probability" standard of Strickland, United States v. Bagley, 473 U.S.
667, 682, 685 (1985), it was unnecessary for the court to address Brecht
at all with respect to the ineffective assistance of counsel claim.] In
any event, the court could not "find that no juror was influenced or
persuaded by the fact that [the defendant] had acknowledged he should
die for what he had done which then became a part of that juror or
jurors’ s moral judgment analysis."
Counsel
ineffective in capital sentencing phase for failing to adequately
prepare and present mental health mitigation evidence, presenting
damaging character evidence, failing to object to state's improper
arguments in sentencing, and misstating the law in closing argument.
From 1973-79, the defendant, while incarcerated for other crimes
had
been involuntarily committed to a number of mental health institutions
due to mental illness. The medical records established that he
suffered
from paranoid schizophrenia, organic brain syndrome, depression,
personality disorder, psychosis, delusions, and long-term drug and
alcohol addiction. Within months of his release from confinement, the
defendant broke into a business and ran into the night watchman.
The
guard shot the defendant in the wrist, but was apparently unaware that
the wound was superficial and put down his gun and walked away.
The
defendant grabbed the gun and shot the watchman as the watchman rushed
him. He then shot him in the head while the watchman was crouched
on the
floor. During a trial on unrelated charges, the defendant confessed to
this murder. Prior to trial, the defense requested appointment
of a
defense psychiatrist, but the trial court denied the motion and
appointed a court psychiatrist instead. The court psychiatrist testified
during a competence hearing that the defendant was competent and
sane
and suffered only from antisocial personality disorder. The defense did
not cross-examine the psychiatrist concerning diminished capacity
or
mitigation and sought only to introduce the defendant's medical records.
The trial court held that the records would not be admitted without
testimony from persons who prepared them. Counsel presented a diminished
capacity defense and self defense arguments and had the defendant
testify, but did not contact any of the defendant's previous doctors
or present any psychiatric evidence at all. The state, despite the fact
that the prosecutor had previously presided over a number of the
defendant's commitment hearings as a county mental health officer,
argued without objection that the defendant was faking mental illness
and that if any evidence were available it would have been presented.
Counsel also elicited testimony of the defendant's prior incarcerations
and failed to object to state's argument that the defendant just cycled
back and forth between prison, mental health facilities, and the
streets. During sentencing the defense presented only two witnesses-the
defendant's mother and a prosecution witness who had previously been
incarcerated with the defendant. He testified to the defendant's good
character, but also testified that the defendant was not "crazy" and
had told him that he would kill people, especially any witnesses to
a murder
that he might commit. During arguments, the state argued without
objection and contrary to Pennsylvania law, that the defendant posed
a future danger, that the jurors should sentence him to death to avoid
becoming another victim, and even if the jury found one aggravating
circumstance, the sentence must be death. Defense counsel then argued,
contrary to Pennsylvania law, that all 12 jurors had to agree on
whatever the verdict was. The Court held that trial counsels' conduct
was deficient because they failed to "investigate the mountain of
mitigating evidence readily available to them." Slip Op. at *15. Trial
counsels' statements that they were hard pressed to find mitigation
only
proved that they failed to prepare for sentencing. Failure to present
the mental health evidence was not a tactical decision, especially in
light of the state's arguments that the defendant was only faking mental
illness. Counsel simply stated that they did not present psychiatric
evidence because of the court psychiatrist's testimony that the
defendant was sane and competent. Counsel simply failed to comprehend
that this finding did not preclude a finding of mitigating circumstances
as defined under state law. This "failure to comprehend the law of
mitigating circumstances is objectively unreasonable." Slip Op. at
*15-16. Counsel was also unreasonable for failing to object to the
state's arguments on the revolving door and the return of the defendant
to the community, because under state law, the defendant would not have
been eligible for parole. Likewise, counsel failed to object to the
state's argument that if one aggravator was found, state law required
death, when state law actually required that aggravating and mitigating
factors be weighed. Counsel's only offered reason was that they did not
want to appear to be a jack-in-the-box. This reason clearly is
insufficient. Counsel were also ineffective for presenting evidence of
the defendant's good character, because they knew that would open the
door to cross-examination and knew that the witness would state that
the defendant had told him that he would kill any witnesses. Counsel
stated
that they called the witness to impeach his testimony for the state by
showing that he had been incarcerated previously. Counsel could have
done that without presenting him as a character witness and presenting
evidence that the defendant had previously been incarcerated. Finally,
counsel was ineffective for arguing that all jurors had to agree when,
under state law, a less than unanimous agreement for death would result
in a life sentence. Making the legally incorrect argument was
unreasonable. Prejudice was found based solely on the failure to present
the mental health evidence which would have established that the
defendant was not "the totally evil person," Slip Op. at *16, the jury
found him to be, and would have undermined the state's argument that
he was faking. It would have given the jury a reason to be lenient after
weighing the aggs and the mits. As it was, the jury found two aggs (one
of which was set aside on direct appeal) and no mits. Thus, the jury
could not properly fulfill its sentencing function. [In addition to IAC,
the Court also held that reversal of the convictions and sentence was
required under Ake v. Oklahoma, 470 U.S. 68 (1985), due to
the court's refusal to appoint a defense psychiatrist, and that reversal
of the sentence was required due to the state's improper
arguments.]
1989: *Eutzy v.
Dugger,
746 F. Supp. 1492 (N.D. Fla.
1989)
Trial counsel
ineffective for failing to prepare and present mitigation evidence even
where client said he did not want his mother involved. Available
mitigation would have shown: defendant was a non-violent, caring person,
with good character and an outstanding work history; a turbulent family
history marked by poverty, chaotic home, alcoholic mother; defendant
began drinking at age 12 and had a long history of alcoholism and
amphetamine abuse; defendant had been hospitalized twice for psychiatric
reasons; and prior prison records reflected adaptability.
*Mathis v. Zant,
704 F. Supp. 1062 (N.D. Ga. 1989),
appeal dismissed, 903 F.2d 1368 (11th Cir. 1990)
Trial
counsel ineffective in sentencing phase for failing to investigate and
present evidence in mitigation which would have shown: impoverished
childhood marked by emotional and physical abuse of alcoholic father;
borderline mental retardation and low intellectual functioning; history
of alcohol and drug abuse marked by blackouts; and evidence of good
behavior in prison. In addition to the lack of mitigation evidence,
counsel was ineffective for failing to ask for mercy, but rather
essentially apologizing to the jury in sentencing argument for
representing defendant.
1988: *Newlon v.
Armontrout,
693 F. Supp. 799 (W.D. Mo. 1988), aff'd on other
grounds, 885 F.2d 1328 (8th Cir. 1989), cert.
denied, 497 U.S. 1038 (1990)
Trial counsel
ineffective for failing to prepare and present mitigation evidence which
would have shown that defendant had a low IQ, a turbulent family
history, a non-violent history, and a reputation as a follower. In
addition, trial counsel was ineffective for failing to object to
prosecutor's improper closing argument or rebutting in his own argument.
Prosecutor improperly argued his personal belief that death was
appropriate based on his position of authority; compared defendant to
Charles Manson and Son of Sam; personalized decision by asking
jurors to
consider that it had been their own children killed; told jury
(incorrectly) that the trial judge would review their decision; argued
that life sentence was only temporary confinement because parole
laws
could be changed or sentence commuted; argued courage; and argued that
all murders should be punished by death.
1987: *Gaines v.
Thieret,
665 F. Supp. 1342 (N.D. Ill. 1987), rev'd on other
grounds, 846 F.2d 402 (7th Cir. 1988)
Trial counsel
ineffective in sentencing phase for failing to investigate and present
evidence in mitigation which would have shown that defendant: was
repeatedly and severely beaten by father, sometimes while naked and tied
up; had a good work history during six months prior to murder; was kind
to his live-in girlfriend and her son and helped to support them; had a
good character; and was placed in an adult prison when he was 15 and
spent time in isolation ward and psychiatric ward and witnesses would
have testified that this confinement had a seriously disturbing effect
on defendant. In addition to failing to present evidence, counsel's
entire closing argument was simply to ask for a life sentence without
offering any reason why it should be given.
Military Cases
2004:*United States
v. Kreutzer
59 M.J. 773 (Army Crim. App. 2004)
Counsel ineffective in capital sentencing for
failure to adequately investigate and present mitigation. The appellant
was charged with 18 specifications of attempted premeditated murder and
one premeditated murder arising from Appellant opening fire on his unit
formation at Fort Bragg, North Carolina. After his apprehension, he
asked to speak with a social worker that he identified as "his
psychiatrist.@ The social worker was not available, but a
substitute psychiatrist was brought in. Appellant was given three
military defense counsel, none with capital experience, beyond a two day
training seminar. Prior to trial, Appellant privately paid for an
evaluation by a civilian forensic psychiatrist, who advised defense
counsel that an insanity defense was not viable and that their efforts
should focus on mitigation. This doctor=s services
were not continued because Appellant could not afford to continue to pay
for his services. A sanity board (similar to court-appointed examiners)
evaluated Appellant and concluded that he was not suffering from any
severe mental disease or defect at the time of the offenses. Counsel
then requested funding for a mitigation specialist and for counsel to
travel to investigate the case. Although funding for travel was
authorized, counsel did very little travel for investigation. The
mitigation investigator was denied. Instead, a team of psychiatrists at
the Walter Reed Army Medical Center was assigned to evaluate Appellant
as defense experts. Counsel interviewed two members of the Walter Reed
team, who did not reduce their findings to writing. Their reports were
made orally to defense counsel and "were not all favorable" to
Appellant. Appellant entered pleas of guilty to the lesser included
offenses of aggravated assault with a loaded firearm and murder by an
inherently dangerous act, which left the government to prove only
specific intent and premeditation. In the defense opening statement,
counsel asserted that Appellant's state of mind at the time of the
offenses was the focus of the defense case. During the defense
case-in-chief, counsel presented lay testimony about the Appellant=s breakdown in
the Sinai two years before that required counseling. Counsel also
presented testimony from the President of the Sanity Board, who
testified that Appellant had embellished his statements to examiners but
had been diagnosed with an adjustment disorder with mixed anxiety and
depressed mood, dysthymia (a Alowgrade depression"), and a personality
disorder not otherwise specified with a mixture of paranoid and
narcissistic traits. This expert also testified that Appellant=s actions were
Aa coolly
calculated plan of revenge upon his unit,@ which
supported the panel=s findings of premeditation. In sentencing,
the defense presented evidence that Appellant came from a normal family
upbringing and had been an above average student in high school. Counsel
also presented a "good soldier" packet of awards, certificates,
transcripts, and counseling statements about Appellant. On appeal, the
Army Court granted the request for a mitigation expert. A two-judge
majority of the court found that the trial court erred in denying the
defense request for a mitigation specialist and that the trial
court=s
error required that the contested findings and sentence be reversed. The
unanimous court agreed that counsel was ineffective in sentencing.
Counsel=s
conduct was deficient because counsel failed to adequately investigate
and present mitigation. Counsel did not discover and present evidence of
Appellant=s history that included a family history of
alcoholism and depression and Appellant=s depression
since age 12 and multiple suicide attempts, since age 16. Counsel also
did not discover and present the testimony of a social worker, who saw
Appellant twice when Appellant broke down in the Sinai. He concluded
that Appellant had problems with anger and interpersonal relationships,
poor coping skills, and low self-esteem. Counsel also did not listen to
the audiotapes of the interview or interview the psychiatrist that
examined Appellant shortly after his arrest. The psychiatrist opined
that she had never seen anyone in such psychic distress and that
Appellant's mood was severely distraught and that he was irrational and
possibly delusional because of his beliefs that "God wanted him to
commit murder and that he was doing [the] soldiers a favor by killing
them." Counsel failed to interview the expert witnesses not due to a
conscious, tactical decision, but due to incompetence because each
counsel thought the other was responsible for interviewing the
witnesses. Counsel also never interviewed the psychologist that examined
Appellant for suicide risk in pre-trial confinement, even though this
expert faxed his report to counsel. This expert found that Appellant was
Aprofoundly depressed" and that "there were
definite mental health issues in the case." Counsel also failed to
request that their own examiners at Walter Reed consider mitigation and
then failed to adequately interview their own investigation team at
Walter Reed. If counsel had adequately investigated, they would have
discovered that a third member of the Walter Reed team, a reserve
officer, who was also a practicing civilian psychiatrist, signed a
written report stating his opinion that Appellant was Achronically
and seriously mentally ill," that "[t]he crimes which he committed are
causally related to his mental illness," and "[t]he impulse to commit
these crimes could not have been resisted by" Appellant. As a result of
counsels=
failure to adequately investigate and discover all this evidence,
counsel presented the harmful testimony of the President of the Sanity
Board. Prejudice was found because, A[a]s horrific as Appellant's crimes were,
there was but a single death, and a substantial body of information to
suggest Appellant's disordered mental status may have affected his
volitional acts.@ One judge also found that counsel was
ineffective in failing to interview or cross-examine the wife of the
deceased, who provided victim impact testimony. Had she been interviewed
and cross-examined, the panel would have learned that she was a
religious woman, who had forgiven Appellant for killing her husband.
1998: *United States
v. Murphy,
50 M.J. 4 (C.A.A.F.1998)
Court held that
death sentence must be set aside based on the inexperience of trial
counsel, a conflict of interest, failure to investigate and present
evidence of social history, and failure to adequately explore mental
health evidence. With respect to the experience of counsel, the Court
noted that neither trial counsel had ever been involved in a capital
case or received any capital litigation training. The counsel
responsible for voir dire and mitigation evidence had only been a
defense counsel for four months. The Court noted "inexperience-even if
not a flaw per se-might well lead to inadequate
representation. With respect to the conflict, the Court noted that an
inmate testified that he had overheard Murphy making incriminating
statements while in pretrial confinement. The inmate told his attorney,
who was also Murphy's attorney, and the attorney negotiated a pretrial
agreement for the inmate before moving to withdraw as the inmate's
counsel. The same judge who presided at Murphy's trial presided over the
inmate's plea. Nonetheless, neither the judge nor counsel mentioned the
conflict on the record and the inmate was not cross-examined. Counsel
also made no attempt to impeach him even though he had recently been
convicted of several crimes involving dishonesty and deceit. While the
inmate's testimony was mostly cumulative to other evidence, he added one
important fact: the motive for killing his own son was to leave no
witnesses. [Murphy had been convicted of killing his ex-wife, stepson,
his own son.] Because the court could not "say with confidence that [the
inmate's] testimony about why appellant killed his son had no impact on
the members' deliberations on sentence . . . . we are compelled not to
affirm appellant's death sentence without resolving the
conflict-of-interest question." Slip Op. at 11. With respect to
mitigation evidence, trial counsel's investigation consisted only of
correspondence and telephone calls from Germany to family and friends in
North Carolina, which did not result in any mention of abuse or
maltreatment. Defense offered evidence of good character, non-violence,
good soldier, and remorse in mitigation. While the lower court
characterized the sentencing case as a "tactical judgment," this Court
held that "counsels' lack of training and experience contributed to
questionable tactical judgments, leading us to the ultimate conclusion
that there are no tactical decisions to second-guess." Slip. Op. at 13.
The evidence that would have been discovered, according to post-trial
evidence, was that Murphy has indications of neuropsychological
dysfunction, post-traumatic features, and persistent and severe
traumatic childhood abuse. He also may have fetal alcohol syndrome. One
expert even declared that he was insane at the time of the offenses.
Based on all of these factors, the Court held, "we are satisfied that
appellant did not get a full and fair sentencing hearing. There are too
many questions arising out of the conflict of interest issue, the
potential mitigating effect of the posttrial [sic] evidence as to his
mental status, and the lack of training and experience of his trial
defense counsel in the defense of capital cases to allow us to affirm a
death sentence here." Slip Op. at 16-17. The Court was uncertain as to
the impact of the post trial evidence on the convictions, however. Thus,
the Court remanded the case to the Army Court to either decide the issue
or to grant a complete new trial. At a minimum, however, the Court
ordered that the Army Court either commute Murphy's sentence to life or
order a new trial on sentence.
1997: *United States
v. Curtis,
46 M.J. 129 (C.A.A.F. 1997)
On
reconsideration court reversed itself and held without discussion (only
citation to prior dissent) that counsel was ineffective in sentencing.
Details found in prior dissent are that counsel was ineffective for
failing to adequately prepare and present evidence of extreme
intoxication at the time of the offenses, which included witness
statements of how much defendant drank and how he was behaving before
the murders, defendant's own statements, the statements of the arresting
officer who noted hours after the murders that the defendant was
extremely impaired, and the statements of the sanity board (government
examination) which noted that the crimes probably would not have
happened but for the alcohol intoxication at the time of the offenses.
See
United
States v. Curtis, 44 M.J. 106, 171-73 (C.A.A.F. 1996) (Gierke,
J., Dissenting).
State
Cases
2007: *Ross v. State,
954 So. 2d 968 (Miss. 2007).
Counsel ineffective in capital sentencing for failing to adequately investigate and present
mitigation evidence. “[C]ounsel may be deemed ineffective for relying almost exclusively
on material furnished by the State during discovery and conducting no independent
investigation.” Id. at 1005. Likewise, “[i]t is not reasonable to refuse to investigate when
the investigator does not know the relevant facts the investigation will uncover.” Id. at 1006
(quoting Dickerson v. Bagley, 453 F.3d 690, 696097 (6th Cir. 2006)). Counsel’s conduct
was deficient in failing to investigate even though a court-appointed evaluation disclosed a
“a number of potential mitigating factors, including accounts of physical and sexual abuse,
possible alcoholism, accounts of visual and auditory hallucinations, and the deaths of his
ex-wife and four young children in a car accident in 1985 and the brutal murder of his sister
in 1982.” He was also taking anti-psychotic and anti-depressant medications at the time of
the evaluation. Although counsel was aware of this information, they did not pursue mental
health issues simply because the defendant informed counsel that “he wasn’t ‘crazy.’” Id.
at 1006. The failure to investigate was unreasonable “given the serious mitigating issues
evident.” Id. Likewise, while lay witnesses, including the defendant, testified about some
of this background information “defense counsel provided no expert evidence about how
these events had affected [the defendant] psychologically.” Id. Even more problematic,
however, was counsel’s failure to properly investigate the defendant’s record as an inmate
prior to making his adaptability to confinement a central argument in sentencing, which
opened the door to rebuttal evidence that the defendant had been moved from the local jail
to a more secure facility prior to trial because he possessed a hacksaw blade and planned an
escape and that he had been disciplined for making alcoholic beverages during a prior
confinement. “This failure falls below an objective standard of reasonableness and was
undoubtedly highly prejudicial, as it tended to cast Ross as unrepentant, a habitual criminal,
and a danger to society.” Id. The court also found that the defendant was entitled to a new
trial due to “cumulative error,” which included counsel’s failure to object to a tainted venire
panel after a venireperson stated that she had testified against the defendant in federal court
that she had been the victim of a crime when counsel was aware that she was the victim in
the defendant’s prior armed bank robbery. Counsel did not object to her statements, move
to remove her after her initial statements, request a curative instruction, or query the
remaining venire members about the possible prejudice from her statements.
*Glass v. State,
___ S.W.3d ___, 2007 WL 1953413 (Mo. July 6, 2007).
Counsel ineffective in capital sentencing for failing to adequately prepare and present
mitigation. Counsel presented the testimony of family members, friends, and former
employers in sentencing, but did not investigate and present evidence from “school officials
and prior professionals” who were “more ‘disinterested’ witnesses.” Prejudice found
because available witnesses included a doctor that admitted the defendant to the hospital for
bacterial meningitis when the defendant was less than two years old. While an aunt testified
about the meningitis, she could not explain “the long-term effects of meningitis” and the
impact on the defendant’s “impaired mental functioning.” Former teachers were also
available to testify concerning the defendant’s impaired intellectual functioning. Former
probation officers were available to testify that for about 18 months prior to the offenses the
defendant had no probation violations and was cooperative. Counsel argued in closing that
the crimes were “out of character” for the defendant and this testimony would have supported
that argument. Counsel also failed to present the testimony of a neuropsychologist
concerning the defendant’s deficits even though “neuropsychologicial deficits have
‘powerful, inherent mitigating value,’” especially in a case like this where the “jury heard
from no experts.” Counsel also failed to present the testimony of “a speech and language
pathologist” concerning the defendant’s impaired intellectual functioning, which is “valid
mitigating evidence in the penalty phase of capital case, regardless of whether defendant has
established a nexus between his mental capacity and crime.” Finally, counsel failed to
present the testimony of “a toxicologist and pharmacologist” concerning the influence of
alcohol at the time of the offenses, which would have supported two statutory mitigating
circumstances (substantially impaired capacity to appreciate the criminality of his conduct
and conform to the requirements of law and extreme mental and emotional disturbance).
*Marquez-Burrola v. State,
157 P.3d 749 (Okla Crim. App. 2007).
Counsel ineffective in capital sentencing for failing to conduct a meaningful mitigation
investigation. The defendant, a Mexican foreign national, was convicted of killing his wife
of 17 years. Retained counsel had participated in one capital case, but hired an associate
counsel with no capital experience to prepare for sentencing. The first associate left one
month before trial and a second associate who had only been an intern on one capital case
was hired to prepare for sentencing. Well before trial counsel had been provided with
sample funding motions for experts and other services to prepare mitigation by the Mexican
Legal Assistance Program (MCLAP), counsel for Mexico. Counsel did obtain funding for
a psychiatrist and an investigator but these people focused only on a “heat of passion”
defense for the guilt-or-innocence stage of trial. Just days before trial, counsel for Mexico
expressed concern to the trial court about the lack of preparation for sentencing because no
investigation had been conducted other than speaking to a few family members one week
prior to trial about testifying. The trial court told defense counsel it would be
accommodating to additional request for funding but none was made. Counsel, who spoke
no Spanish, also did not obtain the services of an interpreter to communication with the
defendant, who spoke very little English when an interpreter had to be used even during his
interrogation. Counsel used the brother of the victim and the defendant’s 12-year-old
nephew to interpret even during matters of legal significance. Counsel also did not attempt
to overcome the “logistical challenges” involved because almost everyone who could offer
insight into the defendant’s past and his school, medical, and other records were in Mexico.
Counsel’s conduct was deficient because “[d]efense counsel has a duty to take all necessary
steps to ensure that available mitigating evidence is presented, id. at 765, including “seeking
funds from the court and specifying why they were necessary.” Counsel’s conduct was also
not explained by strategy because, even with testimony from all three defense counsel, “the
actual strategy with regard to mitigation remains elusive.” Id. The defendant was prejudiced
because “mitigation evidence can, quite literally, make the difference between life and death
in a capital case.” Id. at 764. “One important purpose of mitigation evidence is to humanize
the defendant in the eyes of the jury and, if possible, to explain what might have driven him
to commit the crime.” Id. at 766. Here, the mitigation consisted of less than fifteen pages
of testimony from the defendant’s father, mother, and sister that the defendant had been a
good man and asking the jury to spare his life. If counsel had adequately investigated, a
number of witnesses, some of whom made “substantial sacrifices” to come from Mexico to
testify, would have “offered unique and moving vignettes about [the defendant’s] good
character.” This evidence could have made the difference because there is a
qualitative difference between having a family member generally ask
the jury to spare the life of the defendant, and having third parties
offer the jury more objective and specific examples of why the
defendant's life should be spared. . . . Jurors may well understand that
a defendant's mother will almost always extol the virtues of her son;
but they may give different treatment, and perhaps greater weight, to
the testimony of less biased witnesses which illuminates the man
whose life is in their hands. . . . [T]he stories of Appellant growing
up and doing good things in his rural Mexican community might well
have resonated with citizens of a rural Oklahoma county.
Id. at 766-67 (emphasis in original). Preparation for sentencing was especially important
because “[t]his case may fairly be called a ‘second stage’ case,” where “[t]he only real
question appeared to be what punishment was appropriate.” Id. at 767. With adequate
investigation, the defense could also have countered the state’s argument that the defendant
was “an abusive monster who was unreasonably jealous and controlling over his wife. Id.
The evidence would have established that his “jealousy in the months leading up to the
homicide might not have been unfounded, and that [his] marital problems may have had a
marked effect on his mental health.” Id. Prejudice was also established because the jury, at
some point during deliberations, which evenly split on whether life or death should be
imposed. This “strongly suggest[s] how outcome-determinative a real mitigation
investigation might have been.” Id. Finally, while there was argument in the case about
whether a “mitigation specialist” is necessary in a capital case, the court held that “the real
issue is whether defense counsel understands what kind of mitigation evidence can make a
difference, what kind of mitigation evidence is available, and whether counsel makes
reasonable efforts to obtain it.” Id. at 768. The court also rejected the “suggestion that it was
the responsibility of [the defendant] and his family to understand the nature of mitigation on
their own, and to bring relevant evidence to defense counsel's doorstep.” Id. Although the
usual remedy would be to grant a new sentencing trial, the court modified the defendant’s
death sentence to life without parole because “[a]ll of the mitigating evidence, viewed
together, clearly outweighed the evidence supporting the aggravating circumstances.” Id.
2006: *Blackwood v. State
946 So. 2d 960 (Fla. 2006).
Counsel ineffective in capital sentencing for murder of former girlfriend for failing to adequately prepare and present mitigation.
During sentencing before the jury, counsel presented eleven witnesses consisting of friends and family, as well as a detention officer who testified
that the defendant demonstrated good behavior while incarcerated and had become an inmate trustee. Counsel’s conduct was deficient because
counsel never even met with the retained defense expert, who had previously found the defendant incompetent, or even attempted to schedule
an evaluation of the defendant for sentencing purposes until two weeks prior to sentencing. That expert notified counsel that he could not testify
concerning statutory mitigating circumstances, but counsel never asked about non-statutory mitigation. Rather than ask for a continuance or contact
the court-appointed doctors, who had also examined competence, counsel did nothing and presented no mental health evidence. Prejudice found
because even one of the court-appointed examiners would have testified that the defendant was depressed and emotionally disturbed at the time
of the offense. She would also have testified that his verbal IQ was 70, placing him in the borderline mentally retarded range of intelligence. Her
testing also indicated some neurological impairment and she would have recommended a neurological evaluation had counsel asked. She also would
have testified that the defendant had no prior criminal history and was a good candidate for rehabilitation. Additional available testimony, if counsel
had adequately prepared and presented the evidence reflected that the defendant suffered from major depression and avoidant personality traits
with masochistic features and was experiencing extreme emotional disturbance at the time of the crime. While the court-appointed examiner testified
before the trial court, the court was required to give great weight to the jury recommendation, which was 9 to 3 in favor of death.
*Ex parte Gonzales
204 S.W.3d 391 (Tex. Crim. App. 2006).
Counsel ineffective in capital sentencing for failing to adequately prepare and present mitigation. Specifically, counsel failed to ask
the defendant, his mother, or his sister whether the defendant had been abused as a child. Counsel’s conduct was deficient because he spoke to the
mother only once before trial and the sister once during the trial but did not ask about the issue of abuse. “[A]n objective standard of reasonable performance
for defense counsel in a capital case would have required counsel to inquire whether the defendant had been abused as a child.” Id. at 397. The only evidence
counsel presented was general background testimony from the defendant’s sister. Prejudice found because, if counsel had performed adequately, the evidence
would have established the defendant's childhood abuse by his father, which included forced oral and anal sex. He was physically abusive if the defendant resisted
and would threaten to kill him and his mother if he told anyone about the abuse. A psychiatrist could also have testified that the defendant suffers from
Post-Traumatic Stress Disorder due to the repeated physical and sexual abuse he suffered. This expert would also have testified that, if treated, the defendant
could perhaps become a productive, law abiding member of society.
*Commonwealth v. Gorby
900 A.2d 346 (Pa. 2006).
Trial counsel ineffective in capital sentencing for failing to adequately investigate and present
mitigation evidence. Trial counsel's conduct was deficient because counsel knew the defendant
behaved irrationally around the time of the offenses, had a history of drug abuse and a "rough
childhood," and had been hospitalized previously for head injuries. Nonetheless, counsel did not
investigate further than discussions with his client, his mother, and his step-father because he did not
believe that any of this was potentially mitigating. In sentencing, counsel called only the step-father
to testify that the defendant sometimes assisted him in work around the home. Prejudice found
because if counsel had adequately investigated and presented the evidence the jury would have been
aware that the defendant was raised in an impoverished, dysfunctional household. He endured
substantial verbal and physical abuse and sexual molestation. He witnessed violent and life-
threatening altercations between his mother and several husbands, in which he attempted to defend
her. He would rock back and forth and bang his head against walls at times. He was also homeless
during a substantial portion of his teenage years after his step-father kicked him out of the home.
Mental health experts would have testified that the defendant suffered from "cognitive disorder
(brain injury affecting thought process), major depression, post-traumatic stress syndrome, borderline
personality disorder, and poly-substance abuse." Prejudice found.
*Commonwealth v. Sneed
899 A.2d 1067 (Pa. 2006).
Counsel ineffective in failing to adequately prepare and present mitigation evidence. Counsel failed
to conduct any investigation or to even interview family members, with the sole exception being one
of the defendant's sisters, even though the defendant informed counsel that he had a "hard
childhood," had abused drugs and alcohol, and had previously been incarcerated. Counsel presented
no mitigation in sentencing. Counsel's conduct was deficient.
"The onus is not upon a criminal defendant to identify what types of evidence may
be relevant and require development and pursuit. Counsel's duty is to discover such
evidence through his own efforts, including pointed questioning of his client."
Therefore, although it is true that appellee never volunteered to counsel all of the
alarming details of his childhood, it was not necessarily his responsibility to do so.
Counsel is charged with the duty of asking probing questions of his client, and with
the duty of discovering and developing mitigation evidence . . . .
Id. at 1083 (quoting Commonwealth v. Malloy, 856 A.2d 767, 788 (Pa. 2004)). Prejudice found
because an adequate investigation would have revealed that the defendant grew up in extreme
poverty with an alcoholic mother, who drank during pregnancy and while breast-feeding the
defendant. He was often abandoned as a child while his mother was on drinking binges. He was
exposed to his mother's prostitution and his alcoholic grandmother's making and selling of illegal
liquor. He was physically abused by his mother and grandparents and malnourished such that he was
often forced to steal in order to have any food.
2005: *Commonwealth v. Zook
877 A.2d 1218 (Pa. 2005).
Counsel ineffective in capital resentencing trial for failing to adequately prepare and present mitigation evidence. Counsel believed that they had no significant evidence in mitigation even though counsel were aware that the defendant had suffered a head injury prior to the murders. Counsel also were provided with the defendant’s prison records, which revealed the opinion of a consulting psychiatrist that the defendant had a change in behavior consistent with post-concussion syndrome and recommending a neuropsychiatric evaluation. Counsel failed to provide these records to their experts. One of these experts was aware of the head injury from hospital records and testified that it was his general practice to recommend additional evaluation by a neurologist. If counsel had adequately investigated, the evidence would have established that the defendant has organic brain damage, which would have exacerbated his underlying antisocial personality disorder. The defendant was unconscious for 45 minutes due to the head injury and developed seizures and post-traumatic amnesia as a result. In addition, the defendant had a “dramatic behavior change” with respect to violent tendencies which “was well-documented” in the prison records. This evidence would have supported two statutory mitigating circumstances: (1) extreme mental and emotional disturbance; and (2) substantially impaired capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law. “Had the jury heard this relevant evidence, there is a reasonable probability that at least one juror would have found an additional mitigating circumstance and struck a different balance in weighing the aggravating and mitigating circumstances.”
*Schofield v. Gulley
614 S.E.2d 740 (Ga. 2005).
Counsel was ineffective in capital sentencing for failing to adequately prepare and present evidence in mitigation that the defendant had saved two lives. Counsel’s conduct was deficient because counsel “were focused almost exclusively on guilt/innocence and did not investigation this information, even though counsel were aware of a newspaper article, which they sought to present in evidence, and other information indicating that the defendant had saved lives. Credible evidence from family members and medical records, following the defendant’s injuries in one of these events, existed to corroborate this information. Prejudice found.
2004: *In re Lucas
94 P.3d 477 (Cal. 2004)
Counsel ineffective in capital sentencing for
failing to adequately investigate and present mitigation. Counsel’s
conduct was deficient under the "norms prevailing in California" and the
ABA standards because counsel waited until just before sentencing and
then conducted only a few brief interviews of family members and did not
follow up on the information they provided to conduct additional
investigation and gather records. Counsel’s stated reason for failing to
follow up on the information concerning the defendant’s childhood abuse
and confinement and other information was that the information was too
remote and trivial and would make the defendant look like a career
criminal. Counsel "did not regard evidence of child abuse or alcoholism
in the family as particularly mitigating–an apparently idiosyncratic
view not commonly shared by contemporary capital defense attorneys."
Counsel intended only to present testimony from the defendant and his
wife, but the wife refused to testify and then the defendant also
refused. Thus, no mitigation evidence was presented. Counsel’s conduct
was not excused by the defendant’s refusal to testify or alleged failure
to provide information about his background because "the accused would
not necessarily understand the significance of the information that
would be uncovered by such an investigation." There was also no evidence
that counsel actually pressed the defendant for the information.
Prejudice established because adequate investigation would have revealed
severe emotional and physical abuse as a young child,
institutionalization from age seven in a home staffed by abusive,
violent adults, and then juvenile confinement in facilities known for
crowding, neglect, and abuse. This evidence would have provided some
"explanation for petitioner’s criminal propensities and some basis for
the exercise of mercy."
*Commonwealth v. Moore
860 A.2d 88 (Pa. 2004)
Appellate counsel was ineffective in failing to assert trial
counsel’s ineffectiveness for failure to prepare and present mitigation
evidence. Counsel presented no mitigation evidence. He asserted that the
defendant declined to testify and he had no other mitigating evidence.
Thus, counsel presented no opening and no evidence and only referred
generically to possible mitigating circumstances in closing. The jury
found two aggravating circumstances and no mitigating circumstances. On
appeal, counsel alleged trial counsel’s ineffectiveness but failed to
specify what mitigating evidence had been available. Thus, the issue of
trial counsel’s ineffectiveness was denied on appeal. Appellate counsel
was ineffective for failing to adequately present the available
mitigating evidence, which included testimony from the defendant’s
mother, sister, and wife of the defendant’s traumatic and abusive
childhood, including witnessing his father slash his mother’s throat.
The mother and sister had not been subpoenaed and had not been advised
of the need for their testimony in sentencing. Although the ex-wife did
not appear under subpoena to testify at trial concerning an alibi, she
would have testified in sentencing if counsel had explained the nature
of the proceeding to her. While these witnesses were "obviously more
cooperative in 2000 than in 1983," id. at 99, and the defendant
was an "uncooperative client," id. at 100, counsel’s conduct was
deficient because counsel was not "relieved of the duty to investigate
potential mitigating evidence, particularly where counsel had no other
penalty phase strategy," id. at 100. Counsel’s conduct was not
excused by any strategic reason. Prejudice was found because without any
mitigating evidence, the defendant’s only chance for a life sentence
would have been if the jury did not find either of the aggravating
circumstances, which was unlikely based on the evidence presented by the
state. New sentencing granted.
*Commonwealth v. Malloy
856 N.E.2d 767 (Pa. 2004)
Counsel was ineffective for failing to
adequately prepare and present mitigation. Counsel’s conduct was
deficient because counsel met with the defendant only twice, did not
apply for co-counsel or an investigator, and conducted no investigation.
No evidence was presented in mitigation. Counsel’s conduct was not
excused by the defendant’s failure to inform counsel of possible
mitigation evidence and witnesses.
The onus is not upon a criminal defendant to
identify what types of evidence may be relevant and require development
and pursuit. Counsel’s duty is to discover such evidence through his own
efforts, including pointed questioning of his client.
Counsel’s conduct was also not excused by the
defendant’s statement in sentencing that he was satisfied with
counsel.
The fact that appellant was satisfied with
counsel at the sentencing hearing colloquy in no way proves that trial
counsel’s investigation and performance satisfied Sixth Amendment
standards. Appellant is not a lawyer, nor was he in a position to know
whether his counsel had performed competently. The measure of
effectiveness is not whether one’s client appeared satisfied at the
time. A client is entitled to trust in the fact that his attorney will
know what investigation to undertake, what leads to pursue, and what
evidence to look for.
Prejudice found because, if counsel had
adequately performed, the evidence would have shown that the defendant
was physically abused as a child, he lived with his grandmother after
his drug-addicted mother abandoned him, and he was institutionalized by
age 12 because his grandmother could not control him. Although this
evidence is not overwhelming, it was a "close case" and the state
presented only one aggravating circumstance. On the other hand, counsel
completely failed to "personalize appellant for the jury."
*Von Dohlen v. State
602 S.E.2d 738 (S.C. 2004)
Counsel was ineffective in capital sentencing
for failing to adequately prepare and present mitigation. Counsel
presented evidence that the petitioner was a good husband, a good
father, and a dependable employee. He grew up in a poor family and had
suffered physical and emotional abuse as a child. He had no prior
criminal record. His brother was murdered just two weeks before the
crimes and petitioner became withdrawn and depressed and began abusing
alcohol and Valium. The "violent murder was completely unexpected and
out of character for a man who had never displayed violent tendencies."
During sentencing, counsel presented testimony from a defense
psychiatrist that petitioner suffered an "adjustment reaction with mixed
features of emotions and conduct," and pathological intoxication of
alcohol and Valium abuse. The psychiatrist testified, however, that
petitioner "did not have a chronic mental illness" and the prosecutor
capitalized on this in closing arguments. Counsel’s conduct was
deficient in failing to provide the defense expert with available
medical records and testing relating both to the petitioner, as well as
his father and brother. Prejudice found because, with the available
records, the defense expert would have testified that the petitioner
"suffered from severe, chronic depression, a major mental illness," with
"psychotic and suicidal tendencies." Counsel’s conduct was also
deficient in failing to object to the prosecutor’s closing argument in
sentencing inviting the jurors to put themselves in the "victim’s
shoes," which was improper under state law and impermissible under Payne v. Tennessee, 501 U.S. 808 (1991).
Prejudice was not, however, established on this issue.
*State v. Chew
844 A.2d
487 (N.J. 2004).
Counsel ineffective in capital sentencing for
failing to adequately prepare and present mitigation. In preparation for
sentencing, counsel retained a psychologist to assess any mitigating
factors. The psychologist diagnosed: (1) personality disorder (NOS),
mixed with dependent, histrionic, and antisocial features; (2) drug
dependency; (3) depressive disorder; and (4) developmental reading
disability. He believed there was support for the statutory mitigating
factor that the "defendant was under the influence of extreme mental or
emotional disturbance." After counsel learned that the defendant had an
incestuous relationship with his sister though, counsel never discussed
this information with the defense expert and did not present the expert
testimony because she feared that this information had been disclosed to
a state examiner, who had examined the defendant=s sister, and
that this harmful information would be revealed to the jury. In
sentencing, counsel presented only the testimony of a social worker who
described the defendant's family background of chaos, violence, sexual
abuse, sexual promiscuity, beatings, excessive drinking, and lack of
love and support. Counsels' conduct was deficient because the decision
not to call the expert was not based on an adequate investigation
because counsel failed to investigate to determine whether the
court-appointed examiner was aware of the defendant=s incestuous
relationship with his sister. They never obtained his report or
interviewed him. Counsel also failed to discuss this information with
the defense expert, whose opinion would have been strengthened by the
incestuous relationship because it demonstrated even greater problems
than he had previously realized. Prejudice was found because
presentation of the expert testimony in support of the extreme mental or
emotional disturbance mitigating factor would have substantially
affected the jury's deliberations at the penalty phase. While the
additional mitigating evidence had a potential downside, the defense
expert=s
opinion would have been supported by the additional evidence of incest,
along with undisclosed evidence of the defendant=s abuse of
animals and sexual abuse of a child.
2003: *State v. Williams
794
N.E.2d 27 (Ohio 2003).
Counsel was ineffective in capital sentencing
case for failing to object to improper prosecutorial argument and an
improper instruction on mitigation. The court found that the trial court
erred in denying counsel’s motion to withdraw from representation after
the defendant assaulted one of his attorneys in front of the jury
following his conviction. After the assault, counsel had very little
communication with the defendant because they were frightened of him and
they were worried that their fear would be revealed to the jury.
This is particularly damaging to a defendant
during the penalty phase of a capital case when counsel must humanize
the defendant for the jury, show his character in the best light
available, and bring his good qualities to the fore.
Id. at 50. In closing arguments in
sentencing the prosecutor argued that the jury should weigh
non-statutory aggravating circumstances that included the final thoughts
of the murder victim, the suffering of the victim’s mother, and the
death of the victim’s unborn child. All of these arguments were improper
under state law. At the conclusion of sentencing the trial court
instructed the jury that mitigating factors are those that are
"extenuating or reducing the degree of the defendant’s blame or
punishment." This instruction was improper because mitigation is not
about blame or culpability, but rather about punishment. Despite the
prosecutor’s improper arguments and the improper instruction, counsel
failed to object. The court found that there was no possibility,
particularly in light of the prior physical assault of one counsel and
the misgivings of both counsel about their ability to continue the
representation of the defendant, that the failure to object was a
conscious tactical decision. Prejudice was found because there was
substantial mitigation in the case and the crime appeared to be a crime
of passion. The defendant’s family testified that he had a strong close
knit family that loved him and was willing to stand beside him.
Prejudice was also found because the jury deliberated for six and a half
hours before announcing a deadlock and when they were required to
continue deliberations they deliberated for an additional eight and half
hours before reaching a unanimous decision for death.
*State v. Coney
845 So.2d 120 (Fla. 2003)
Counsel was ineffective in capital sentencing
for failing to adequately prepare and present mitigation evidence. Coney
was convicted of killing his jailhouse lover who had spurned him by
dousing him with a flammable liquid and setting him on fire when the
lover ended their homosexual relationship. In sentencing, counsel
presented testimony in general terms concerning the defendant’s
childhood and upbringing but did not present any mental health evidence.
Eleven months prior to trial counsel requested a psychological
evaluation, but made no attempt to have the evaluation conducted until
just prior to the sentencing hearing. Following the conviction the
court-appointed examiner apparently did not evaluate the defendant
because of a fee dispute. Counsel did obtain an examination several days
prior to sentencing from both a psychiatrist and a neurologist, but
neither of these experts was provided with any background information
and their testimony and reports made it clear that they were not
familiar with the meaning of statutory mitigating factors. The
neurologist found no evidence of neurologic disease but did recommend
neuropsychological testing, which trial counsel never obtained.
Counsel’s conduct was deficient, because if counsel had obtained
qualified experts and provided them with sufficient background
information in time to adequately evaluate the defendant, counsel could
have presented testimony both from a neurologist and a neuropsychologist
that the defendant suffered from frontal lobe dysfunction and deficits
in his right brain functioning that resulted in impulsive behavior and
revealed that the defendant was suffering from an extreme mental or
emotional impairment at the time of the commission of the offenses.
Prejudice was found because the jury recommended imposition of the death
penalty only by a seven to five vote, and if only one of the seven
jurors had changed his or her vote, the recommendation would have been
for a life sentence. In view of the law requiring the presence of
compelling evidence to override a jury’s recommendation of life, the
court would likely have followed a recommendation for a life sentence.
The court also found prejudice because, even though the state vigorously
challenged the mental health evidence and presented contrary evidence,
the court found "it is peculiarly within the province of the jury to
sift through evidence, assess the credibility of the witnesses, and
determine which evidence is the most persuasive."
*Head v. Thomason
___
S.E.2d ___, 2003 WL 1442083 (Ga. Mar. 24, 2003)
Counsel ineffective in capital case for failing
to call mental health experts he knew could provide mitigating evidence
in sentencing. The defendant "is a burglar who shot and killed the
homeowner who came upon him while he was burglarizing the victim’s
home." Following a bench trial, the defense presented mitigation
evidence that showed only the defendants profession of remorse, his lack
of violent tendencies, that he is easily influenced, and that he had
previously been hospitalized for marijuana use. Counsel was aware of
mental health experts who could have testified but did not present their
testimony. One of the experts, a clinical psychologist, had testified at
the competence hearing that the defendant had an IQ of 77. The expert, a
psychiatrist, had interviewed the defendant during a forensic evaluation
and informed counsel that there were indications of intellectual
impairment, low self esteem, and depression. Counsel possessed the
defendant’s prior school, medical, and institutional records, but never
gave the records to the psychiatrist or presented this evidence in
mitigation because counsel testified they did not know how to do it
without an expert. Counsel did not have the expert to execute an
affidavit stating the need for additional funding, but instead simply
requested an additional $25,000 for mental health expert assistance.
When the trial court rejected the additional funding trial counsel never
contacted the expert again even though the expert testified that he
would have worked with counsel without further funding or for an amount
significantly less then $25,000. "We conclude, given the importance of
mitigating evidence in death penalty cases, that an attorney has not
acted reasonably when he fails to call mental health experts he knows
have mitigating evidence and explains his failure to present lay
mitigating evidence by asserting that he had no experts to call."
2002: *State v. Lewis
838 So.
2d 1102 (Fla. 2002)
Counsel was ineffective in capital sentencing
for failing to adequately prepare for presentation of mitigation
evidence in sentencing, which resulted in the defendant’s waiver of his
right to present mitigation evidence being not a knowing, voluntary, and
intelligent waiver. Trial counsel spent a significant amount of time
preparing for the guilt or innocence phase of trial, but did not make
any attempt to prepare for sentencing until after the conviction.
Counsel then attempted to talk with the defendant’s mother but "this
attempt was hampered because of [the] delay in starting the
investigation." The mother was angry that her son had been convicted and
blamed the trial attorney. The only other witness interviewed by counsel
was the defendant’s father, who was also a convicted felon. Counsel
never attempted to interview any other potential mitigating witness or
obtain any background records, including the defendant’s hospitalization
records, school records, and foster care information. Counsel did
request a mental health expert but did so only two weeks after the
defendant had already been convicted. The expert interviewed the
defendant but told counsel that he needed documented corroboration
before he could render a professional opinion or conclusion. The expert
discussed possible theories with defense counsel but did not receive any
additional information prior to sentencing. On the day sentencing began,
the expert was the only witness willing and able to testify for the
defense and the defendant stated that he did not want the expert to
testify and waived mitigation. If counsel had adequately investigated
the evidence would have revealed that the defendant’s mother was an
alcohol, he was exposed to violence and severe neglect as a child, he
suffered a skull fracture at the age of 2 or 3 that required 2 weeks of
hospitalization, and he observed his fathers violence and domestic abuse
on a daily basis. After his parents separated, the parents tried to
kidnap the children from each other. The defendant was turned over to
foster care and shuffled back and forth between numerous homes. He had
diminished mental capacity and brain damage. He had a recorded history
of serious alcohol and drug abuse and he had consumed a considerable
amount of alcohol on the night of the crimes. The trial expert testified
that, if he had been provided with the background records and
documentation, he would have been able to render a complete diagnoses
and testify to substantial mitigation. The court held, "Although a
defendant may waive mitigation, he can not do so blindly; counsel must
first investigate all avenues and advise the defendant so that the
defendant reasonably understands what is being waived and its
ramifications and hence is able to make an informed, intelligent
decision." Counsel’s conduct was both deficient and prejudicial in
failing to adequately investigate and prepare for the penalty
phase.
*Commonwealth v. Ford
809 A.2d 325 (Pa. 2002)
Counsel ineffective in capital case for failing
to adequately investigate and present mitigation evidence in sentencing.
Appellate counsel was also ineffective for failing to assert trial
counsel’s ineffectiveness. In sentencing, trial counsel presented the
defendant’s sister to testify but not prepare her testimony, which
amounted to only a plea of mercy. Counsel also presented evidence of the
defendant’s low IQ and that his educational achievement was at the 2nd or 3rd
grade level. The jury found two aggravating circumstances and no
mitigating circumstances. Trial counsel was aware of a competency
evaluation that revealed that the defendant had a troubled childhood and
learning problems. Counsel did not investigate to obtain prior
hospitalizations, mental health records, or school records. He also did
not obtain additional information form the defendant’s family or have a
mental health professional evaluate the defendant with respect to
mitigation. Counsel’s conduct was deficient because there was no
reasonable basis for failing to investigate and present this mitigating
evidence. Although counsel did state that he did not present psychiatric
records because the prosecution informed him that they contained reports
that the defendant was "explosive," this decision was based on very
little information and without actually reviewing the supporting
documents. If counsel had adequately investigated, the evidence would
have revealed schizophrenia, brain impairments including mental
retardation, learning disabilities, and post traumatic stress. The
defendant showed signed of dementia early in life and had a long history
of psychiatric treatment for impaired reality, including hearing voices,
and alcohol dependance. The defendant also had an extensive history of
abuse and family dysfunction. The available evidence would have
supported three statutory mitigating circumstances. The Commonwealth
presented rebuttal evidence in post-conviction showing that the
defendant had previously been convicted of sexual assault of a 12 year
old boy, had been a gang member in his youth, and had threatened to kill
his grandparents. The Commonwealth also presented psychiatric evidence
of antisocial personality disorder and a clinical psychologist that
would have testified that the defendant does not suffer from organic
brain damage or learning disabilities. The court still found prejudice
because the jury was given no meaningful evidence of mitigation to
consider in their weighing process. Moreover, even without any
mitigation evidence, the jury was still deadlocked at one point during
the penalty phase deliberations.
2001: *Ragsdale v. State
798
So. 2d 713 (Fla. 2001).
Counsel ineffective in failing to prepare and
present mitigation evidence in sentencing. Counsel was a sole
practitioner with only his wife assisting. Counsel did not conduct any
investigation and relied only on a few calls made by his wife to
Ragsdale’s family members. Counsel did not even know who his wife
contacted or the content of the conversations. Counsel only called one
witness to testify that Ragsdale suffered several head injuries as a
child without any explanation of how or whether this affected him. If
counsel had investigated, the evidence would have established that
defendant grew up in an impoverished home with numerous moves and had an
abusive father. He observed violence towards his mother, was made to
fight with his siblings until they bled, and was sometimes handcuffed to
a pole for hours at a time. In addition, Ragsdale’s father had shot at
him twice with a pistol. It was so bad that Ragsdale began to run away
to an aunt’s by age eight and quit school and moved out permanently at
age 15-16 to live with a cousin. He had extensive alcohol and drug
abuse. He also had numerous head injuries, including having an eye shot
out accidentally with an arrow, being thrown through a car windshield in
an accident, and being hit with a metal pipe. Following these incidents,
he would have severe headaches and behavioral changes, including violent
snaps. A defense expert found that Ragsdale was psychotic at the time of
the offense, and thus the statutory mitigating circumstances of extreme
mental or emotional disturbance and inability to conform to the
requirements of law applied in the instant case. This doctor also
identified a list of nonstatutory mitigating factors including organic
brain damage, physical and emotional child abuse, history of alcohol and
drug abuse, marginal intelligence, depression, and a developmental
learning disability. Prejudice was established because even the state’s
expert, who disagreed with the conclusion that Ragsdale was psychotic
and suffered organic brain damage, expressed no opinion on the statutory
mitigators. He did, however, testify to the existence of mitigating
evidence which was not presented at the penalty phase, including a
severe learning disability and that Ragsdale’s IQ score was in the
borderline retarded range. He also concluded that Ragsdale’s brain was
impaired and that Ragsdale had a personality disorder with paranoid
features. The court, thus, found it be "inescapable" that there was
available evidence from experts which would have supported substantial
mitigation had counsel performed adequately.
2000: *Sanford v.
State,
25 S.W.3d 414 (Ark. 2000)
Counsel
ineffective in capital sentencing for failing to investigate and present
mitigation evidence concerning defendant's school records showing long-
standing mental retardation, age, medical records, family history, and
jail records, reflecting commendations he had received. Counsel conceded
that he did little to prepare for sentencing, even though he had a
social worker available to him, because he was "disappointed" with
guilty verdicts and "tired." Counsel called only the 16-year-old
defendant's parents, who testified generally that defendant was young,
had been a good son, had a mental problem, and his life was worth
saving. Counsel did not recall the defense expert from the trial, but
did argue additionally based on that expert's testimony that defendant
was mentally retarded, which was disputed by state based on one IQ score
of 75. If counsel had investigated he would have discovered that the
school records showed defendant had been in special education, had been
considered mildly mentally retarded during much of his time in school,
and had a good record with only one disciplinary incident. His medical
history reflects he almost suffocated to death as a child when a load of
cotton seed fell on him; and defendant's mother testified he acted a
"bit slower" after the cotton-seed incident. Later he suffered a blow to
the head with a two-by-four wielded by his sister. Proof also available,
but not investigated or presented, showed siblings and other family
members to be either slow or retarded. Although the court did not
specifically discuss prejudice, the court noted that the jury found
three aggravating factors and no mitigating factors and state law
prohibited the death penalty if the jury concluded the defendant was
mentally retarded at the time of the crimes.
*State v.
Riechmann,
777 So. 2d 342 (Fla. 2000)
Counsel
ineffective in capital sentencing for failing to prepare and present
mitigation. Defendant and his girlfriend had moved to Florida from
Germany. Girlfriend was killed. State's theory was that she had been a
prostitute for the defendant and, once she stopped prostituting, he
killed her for insurance proceeds. The defense did not investigate or
contact any witnesses in Germany and presented no mitigation evidence at
all. Available yet unpresented mitigation revealed that defendant had
positive personal qualities and good character and at least 15 witnesses
were available to testify for him. No real discussion of prejudice.
[Court also found error because the prosecutor prepared the trial
court's sentencing order after an ex parte discussion and the defense
was not provided with the draft order, which found no
mitigation.]
*People v. Thompkins,
732 N.E.2d 553 (Ill.
2000)
Counsel
ineffective in capital sentencing for failing to prepare and present
mitigation evidence. Counsel never met with defendant's brothers,
children, aunt, supervisors, coworkers, friends, or writers of letters
on defendant's behalf, nor did he seek records as to defendant's
education, employment, military service or prison incarceration. If
counsel had prepared, evidence could have been presented to show that,
in witnesses' opinions, defendant was a good son, husband, father,
friend, and worker, that he may have helped save the life of a youth
officer who later became a police chief, and that he was kind to, and
protective of, women. Counsel presented only four stipulations
concerning the possible origin of bullets used in the murders. Counsel
also presented brief testimony from defendant's wife concerning his
history. Following the court's sua sponte order for a presentence
report, counsel presented more than 50 letters in defendant's behalf,
including some of the information listed above. Many of the letter
writers acknowledged that they hardly knew the defendant though. The
court acknowledged reading the letters but found no mitigation.
"[B]ecause counsel failed to conduct an investigation and uncover what
the possible mitigation witnesses would have to say, he was in no
position to make a reasoned decision whether their testimony would have
any impact on the judge. . . . In conclusion, counsel's rationale for
failing to investigate mitigating evidence stemmed not from a reasonable
strategy, but from an objectively unreasonable failure to investigate.
As such, counsel's performance was constitutionally deficient." Id. at
571 (citations omitted). Counsel's conduct was not excused by
uncooperativeness of defendant. "The mere fact that a client is
uncooperative will not excuse a failure to investigate in a capital
case." Id. at 572. Counsel's conduct also was not
excused by fear of the aggravating evidence that could be introduced in
response. This was the finding of the lower court, but there was no
evidence to support the finding. Counsel simply failed to investigate
and did not know of the available evidence. Id. at
573.
1999: *People v.
Morgan,
719 N.E.2d 681 (Ill. 1999), cert.
denied, 529 U.S. 1023 (2000)
Counsel
ineffective for failing to prepare and present mitigation evidence.
Defendant convicted of several murders and rape by jury and then
proceeded to sentence before the judge alone. In opening statement,
defense counsel argued statute unconstitutional and made a religious
appeal. He told the judge he would hear from the defendant and his
family and would here evidence of medical problems. State presented
numerous violent convictions and incidents in defendant's past in
aggravation. In 10 pages of mitigation, the defense presented the
defendant's girlfriend and mother to say they loved him. Mother also
testified that the defendant has had seizures since age 8 due to a spot
on brain caused by trauma and that he sometimes blanks out. Counsel also
cited 1978 presentence report that revealed seizures. In closing
prosecutor pointed out that there was no medical testimony as promised
and no showing of how the seizures were relevant as mitigation evidence.
Defense closing was basically just an irrelevant and nonsensical
religious appeal citing "love" as mitigation. In sentencing, the judge
found no "rhyme" or "reason" for the "senseless" crimes and found no
mitigation. Although the judge expressed distaste for the death penalty,
because the statute required a death sentence if no mitigating evidence
found, he sentenced the defendant to death. Post-conviction evidence
revealed that counsel had been retained the day of arrest and told
shortly thereafter by mother of seizure history. Counsel did not talk to
other family members or witnesses. If he had investigated, he would have
discovered lay witnesses who would testify that the defendant suffered
from an illness at age 20 months that likely caused the seizures. He has
suffered severe seizures since that time. He was frequently hospitalized
as a child. He has fainting and black-outs and engages in violent
behavior for no apparent reason. He also has features of paranoia and
drug and alcohol problems. Eyewitnesses, including even the rape victim,
would have established that he was paranoid and using drugs and alcohol
at the time of these offenses. Experts, including neurologist, Dr.
Pincus, would have testified that the defendant has severe frontal lobe
damage and other diffuse damage. The combination of the brain damage,
drugs and alcohol, and paranoia rendered the defendant under extreme
mental or emotional disturbance for these offenses and explains prior
violent episodes because defendant can not control violence. In addition
to this evidence, the evidence would have also established that the
defendant was physically abused by his mother during his childhood.
Deficient conduct found because defense counsel's recollections that he
knew nothing of seizure history and defendant appeared normal to him
were not credible. Counsel was clearly, as is apparent from sentencing
hearing, that the defendant had a history of seizures. Moreover, even if
the defendant appeared normal and neither he or his family mentioned
history, counsel's conduct was still deficient for failing to
investigate. "We have repeatedly held that the duty to make a reasonable
investigation concerning potential mitigation evidence is imposed on
counsel and not upon a defendant. Moreover, we have also held that
defense counsel's duty to investigate is not limited to matters about
which defendant [or his family] has informed defense counsel." *23
(citations omitted). Prejudice found because the available evidence
would have mitigated the aggravation evidence of prior violent episodes
and would have provided the "rhyme" and "reason" for these offenses
found lacking by the sentencing judge.
*Rondon v. State,
711 N.E.2d 506 (Ind.
1999)
Counsel
ineffective in sentencing phase for failing to prepare and present
mitigating evidence. Counsel focused primarily on guilt phase and
deliberately chose not to investigate defendant's past history beyond
moving into the county, which constituted only two to three years prior
to arrest. Counsel presented only three witnesses in sentencing who
testified about good work habits and friendliness, but counsel waived
opening statement and in closing did not even argue that this evidence
should be considered as mitigating evidence. A simple interview of
client would have revealed, as a competence evaluation following the
jury's recommendation of sentence did, that the defendant had a second
grade education, had been treated for psychiatric problems in Cuba where
he was born and raised, had been given shock treatment for psychiatric
problems, and possibly had brain damage from being hit in the head with
a machete.
1998: *In re
Gay,
968 P.2d 476 (Cal. 1998)
Counsel
ineffective in sentencing phase and the cumulative prejudicial effect of
counsels' errors required that death sentence be vacated. Defendant was
charged with killing a police officer and numerous armed robberies. The
defense counsel tricked the defendant into retaining him with the help
of a psychologist/minister and then got himself appointed. Counsel then
advised the defendant to confess to the numerous armed robbery charges,
based on an alleged deal that the defense did not have, even though the
state's evidence was based only on weak circumstantial evidence and
accomplice testimony. The confession allowed the state to convict and to
portray the defendant as a serial robber, which was devastating in light
of the absence of substantial mitigating evidence in sentencing. Counsel
then selected and used the psychologist and a psychiatrist based on a
fee arrangement. The psychologist would help trick people to get the
attorney retained and in turn the attorney would retain these "experts"
who worked together. The psychiatrist was unwilling to take the case if
extensive work was required, but counsel assured him that death was a
foregone conclusion and extensive time was not required. The
psychologist, who was not licensed, did only a Bender Gestalt
(neuropsychological screening test) and a WISC test, which is a
children's intelligence test. The psychiatrist interviewed the defendant
and reviewed a single parole report. He did not request and was not
provided with any additional information. He testified only that the
defendant is sociopathic, but adapts well to structured environments. A
few other defense witnesses that counsel spoke to briefly, if at all,
prior to their testimony, testified that the defendant has good
character. Counsel did virtually no investigation for mitigation and
relied only on interviews of the defendant. If counsel had adequately
investigated, the evidence would have revealed that the defendant was
raised in a deprived, physically and emotionally abusive, and chaotic
home. His alcoholic father suffered from substantial mental impairments
and subjected defendant to extreme physical abuse. His mother was
emotionally neglectful and abusive. The defendant suffered from PTSD and
was dissociating at the time of the offense. He had organic impairments,
including areas of the temporal and parietal lobes, and had temporal
lobe seizures. He had attention deficits, learning disabilities, a mood
disorder, characterized by periods of depression and manic activity, and
substance abuse disorder, as well, and was using drugs prior to the
offenses. His impairments made him susceptible to the aggressive
influence of his codefendant. In addition to being mitigating, much of
this evidence would have lessened the impact of the state's aggravating
evidence by explaining it from a mental health standpoint. Counsel's
failure to investigate was not excused by reliance on the defendant or
by his preoccupation with the guilt-or-innocence phase. His failure to
investigate apparently resulted from his uninformed belief that if the
defendant was found guilty, the death penalty was inevitable. In
addition to all of these problems, during his representation of the
defendant, counsel was being investigated by the same prosecutor for
misappropriation of funds, which presented a potential conflict of
interest that was undisclosed. Reversed based on cumulative
prejudice.
*Turpin v. Lipham,
510 S.E.2d 32 (Ga.
1998)
Counsel
ineffective in sentencing for failing to adequately prepare and present
mitigation evidence. During sentencing for rape, murder, burglary, and
robbery counsel presented 2500 pages of records from the Department of
Family and Children Services and the Anneewakee Treatment Center (a home
for children with behavioral problems), but did not present any
testimony concerning these records other than the brief testimony of the
records custodians. The only other mitigation evidence offered was the
defendant's wife asking for mercy because of their son. Trial counsel
obtained the records but did not have a mental health expert to examine
them. Instead, trial counsel asked a friend, who was a family counselor
to review the records. The friend reported that the records were both
aggravating and mitigating. While they established childhood abuse and
neglect, they also chronicled violent, antisocial behavior from an early
age and that he was not insane or incompetent. One expert also examined
the defendant and found that he was not insane or incompetent. Based on
these findings and the two-edged nature of the records, trial counsel
decided not to hire a mental health expert. The Court stated, "While
trial counsel is afforded tremendous deference over matters of trial
strategy, the strategy that is selected must be |