CAPITAL
SENTENCING PHASE ERRORS (4)
ONE
DEFICIENCY
STATE AGGRAVATION EVIDENCE OR ARGUMENT
U.S. Court of Appeals Cases
1999: *Parker v. Bowersox,
188 F.3d 923 (8th Cir. 1999), cert. denied, 529 U.S. 923
(2000)
Counsel ineffective in sentencing
phase for failing to present evidence to rebut the only two aggravating
circumstances (both involving murder of a potential witness). The
defendant had been arrested for assaulting his girlfriend. He was
charged with assault and with probation violation because he was then on
probation. His attorney notified him two weeks prior to the murder that
she had worked out a plea agreement. He would admit the probation
violation and the assault charge would be dismissed. The murder occurred
the night before the scheduled probation hearing, but because the state
was unaware of the murder, the deal went through. The defendant admitted
the probation violation and got 90 days. The assault charge was
dismissed that day. The only aggravating circumstances presented by the
state was that the victim was killed because she was a witness to the
probation violation and the assault. The prosecutor testified about the
pending charges and the resolution, but defense counsel failed to
present the testimony of the previous defense counsel who would have
testified that the defendant knew two weeks before the murder that the
victim was no longer a witness against him. Deficient conduct easily
found because the previous counsel had called new counsel when she saw
publicity saying that the state was alleging that the murder was
committed because the victim was a potential witness. State's arguments
of no prejudice rejected. No one revealed any damaging information that
would have been revealed due to waiver of attorney- client privilege and
any possible danger was outweighed by the value of the testimony.
Likewise, the testimony would not have been cumulative. While the
prosecutor testified to the ultimate outcome, the defense counsel could
have testified that the defendant was aware that the victim was no
longer a witness against him. Prejudice found because the jury rejected
the aggravator that she was killed because a witness in the probation
violation where the defendant entered a guilty plea. If the jury had
heard defense counsel's testimony that the defendant knew that the
assault charge was going to be dropped and that the victim would not be
a witness against him, the jury may also have rejected that aggravating
circumstance and the defendant would not have been eligible for a death
sentence.
1986: *Summit v. Blackburn,
795 F.2d 1237
(5th Cir. 1986)
Trial counsel ineffective for failing
to object to or argue the lack of corroborating evidence of the sole
aggravating factor (attempted armed robbery) when state law holds that a
defendant cannot be convicted based solely on uncorroborated confession
and the only evidence of aggravating factor was defendant's
confession.
U.S. District Court Cases
2001: *Pirtle v. Lambert,
150 F. Supp. 2d 1078 (E.D.
Wash. 2001)
Wash. June 29, 2001).
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)."
(5) I n 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."
State
Cases
2005: * State v. Fudge
___ S.W.3d ___, 2005 WL 852643 (Ark. Apr. 14, 2005)
In split decisions for varying reasons, the court affirmed the trial court’s ruling finding counsel to be ineffective in capital sentencing for failing to object to evidence of a prior conviction the defendant did not have that was used to support an aggravating circumstance. The aggravating circumstance was that the defendant had been convicted of prior felonies “an element of which was the use of threat or violence to another person or the creation of a substantial risk of death or serious physical injury to another person.” The state submitted three exhibits in support of this factor, which were read but not given to the jury. The exhibits included prior convictions of: (1) battery in the first degree; (2) two counts of terroristic threatening; and (3) an additional two counts of terroristic threatening. The issue involved only the battery in the first degree because the lower court found that the defendant had actually only been convicted of “robbery, a less violent offense.” Three judges found no deficient conduct (based on the defendant’s statements to counsel) and no prejudice (due to the other evidence supporting the aggravating circumstance). Two judges declined to review the issue of deficient conduct because the State had not raised the issue on appeal and affirmed on the prejudice prong on the basis that the lower court’s ruling was not clearly erroneous. A third judge voted to affirm without a separate opinion stating the reason. Yet another judge voted to remand for additional fact-finding because the actual exhibit showed a conviction for battery in the first degree, but the state conceded in briefing that it was only a robbery conviction.
2004: * Hall v. Catoe
360 S.C. 353, 601 S.E.2d 335 (2004)
Counsel was ineffective in
capital sentencing for failing to object to the prosecutor’s closing
argument that asked the jury to compare the defendant’s worth and
the victims’ worth in an emotionally inflammatory fashion unrelated to the
circumstances of the crime and traditional victim impact
evidence.
2001: *Evans v. State,
28 P.3d 498 (Nev.
2001)
Both trial and
appellate counsel were ineffective in capital sentencing for failing to object to (1) the
state's improper rebuttal argument in which the prosecutor challenged the jurors to have
the "intestinal fortitude" to sentence the defendant to death and (2) improper argument that
the jury should consider evidence of the defendant's "other crimes" before deciding death
eligibility. The first argument was improper because the United States Supreme Court has
said it is improper "to exhort the jury to 'do its job'; that kind of pressure . . . has no place in
the administration of criminal justice." United States v. Young, 470 U.S. 1, 18 (1985). The second argument
was improper because, under state law, "other crimes" evidence can only
be considered after finding the defendant death-eligible, i.e., after a
statutory aggravator is found and each juror has found that the
mitigation does not outweigh the aggravation. Prejudice found due to the
tremendous risk that character evidence would mislead the
jury.
1995: *State v. Storey,
901 S.W.2d 886 (Mo. 1995)
Counsel ineffective for failing to
object to state's improper closing argument which argued facts outside
the record (most brutal slaying in history of county); injected personal
opinion (want victim accomplished in life and difficulty of getting out
of abusive relationship); personalized to jury (put yourself in victim's
place); argued death sentence was justified because victim's husband
would have been justified to kill in self-defense); and argued relative
worth of victim and defendant.
*Commonwealth v. Lacava,
666 A.2d 221 (Pa. 1995)
Counsel ineffective for failing to
object to prosecutor's sentencing phase closing argument which
improperly invited the jury to sentence appellant to die because he was
a drug dealer. The focus was shifted from the one aggravating
circumstance of killing a police officer to retribution for society's
victimization by drug dealers.
INSTRUCTIONS
U.S. Court of Appeals Cases
2006: *Lankford v. Arave
468 F.3d 578 (9th Cir. 2006).
Under pre-AEDPA law, counsel ineffective in capital trial for requesting a jury instruction that
eliminated Idaho's requirement that an accomplice's testimony must be corroborated by other evidence in order to convict
a defendant. Petitioner and his brother were arrested based on fingerprints in the victim’s van and other evidence. The petitioner’s
brother testified against him in exchange for a life sentence and the state’s theory that petitioner was the actual killer depended
heavily on his uncorroborated eyewitness testimony about the events. Counsel’s conduct was deficient. He had conducted research
at a law school library and took the instruction from a collection of federal instructions because there were no model instructions for
Idaho at the time. While the instruction was correct under federal law, it was clearly incorrect under Idaho law, which expressly forbids”
conviction on the basis of uncorroborated accomplice testimony. “It was a young lawyer's mistake, akin to failing to check the pocket part,
but it was a mistake, plainly enough,” id. at 585, based on “a misunderstanding of the law,” id. at 584
(quoting United States v. Span,
75 F.3d 1383, 1390 (9th Cir.1996)).
2002: *Carpenter v. Vaughn
296 F.3d 138
(3rd Cir. 2002)
Under pre-AEDPA analysis, counsel was
ineffective in capital sentencing for failure to object to trial court’s
misleading response to jury’s question about availability of parole if
the defendant received a life sentence. The defendant was convicted for
murder and the state presented evidence of only one aggravating
circumstance that defendant had a significant history of felony
convictions involving the use or threat of violence. Under Pennsylvania
law the defendant could be sentenced to death or life imprisonment
without parole. The only mechanism for parole under state law would be
that the sentence was first commuted by the governor to a term of years.
During sentencing deliberations the jury sent out a note asking "can we
recommend life imprisonment with a guarantee of no parole." The court
responded, "the answer is that simply no absolutely not." The court went
on to instruct the jury that its decision would be the sentence and not
a recommendation and that the question of parole was irrelevant.
Counsel’s failure to object or to ask for more clarification was
deficient under state law because the court’s response that the jury
could not give such a sentence was a misstatement of state law since a
person serving a life sentence would not be eligible for parole. The
court also found prejudice because the jury was aware that the defendant
had previously been convicted of murder and assault and had been
released on parole. The jury deliberated for less then nine minutes
after the court’s improper response to its question. The court made it
clear that this decision was not based on Simmons or any federal
constitution right, but was simply a finding of ineffectiveness of
counsel for failing to object based on state law.
1994: *Starr v. Lockhart,
23 F.3d 1280 (8th Cir.), cert. denied, 513 U.S. 995
(1994)
Trial counsel ineffective for failing
to object to "heinous, atrocious, or cruel" aggravating circumstance
because of previous Supreme Court decisions finding this circumstance
unconstitutionally vague.
1986: *Woodard v. Sargent,
806 F.2d 153 (8th Cir. 1986)
Trial counsel ineffective in penalty
phase of capital trial for failing to request a jury instruction on lack of a prior history of
significant criminal activity when record supported such an instruction. (No evidence either
way so its doubtful same conclusion would be reached now in light of Delo v. Lashley.)
State Cases
2005: *Morrisette v. Warden
___ S.E.2d ___, 2005 WL 1313054 (Va. June 3, 2005).
Counsel ineffective in capital sentencing for failing to object to verdict form that did not include express language instructing the jury that it could impose a life sentence even if it concluded that the state had proven an aggravating factor beyond a reasonable doubt. Counsel’s conduct was deficient because the Virginia Supreme Court had held–two months prior to this trial–that the trial court must include this language in the verdict form. Prejudice found because a jury would likely be confused when the sentencing instructions include this language but the verdict form does not.
2004: *Thomas v. State,
83 P.3d 818 (Nev. 2004)
Counsel ineffective in capital sentencing for failing to object to
the trial court=s erroneous
instruction that informed the jury that the Board of Pardons could,
under certain circumstances, modify a life without parole sentence.
While the Nevada Supreme Court had approved this instruction in 1985,
the state statute was amended in 1995. The amendments provide that the
Pardons Board cannot commute a prison term of life without possibility
of parole to a sentence allowing parole. Because the Defendant=s crimes were committed in 1996,
there was no circumstance or condition under which the Pardons Board
could modify a life without parole sentence. Counsel=s conduct was deficient in failing
to object to the erroneous instruction to the jury. Prejudice found
because the jury could have reasonably believed that a death sentence
was necessary to prevent the possibility that the defendant could
eventually receive parole if they returned a sentence of life without
possibility of parole. Prejudice was exacerbated by the prosecutor's
future dangerousness arguments. Trial and appellate counsel=s conduct was also deficient in
failing to object to the prosecutor=s improper arguments in the closing
argument of the penalty phase. First, the prosecutor asserted, "This is
not a rehabilitation hearing. There is no program that we know of that
rehabilitates killers." This argument was based on facts and inferences
not supported by the record. Second, the prosecutor argued: "The
defendant is deserving of the same sympathy and compassion and mercy
that he extended@ to the
victims. This argument was improper because it Aimplored [the] jury to make a death
penalty determination in the cruel and malevolent manner shown@ by the defendant and was
calculated to incite passion rather than a reasoned moral response to
the evidence. While this argument has been approved by the Nevada
Supreme Court when the argument is made in response to defense counsel
raising the issue of mercy, defense counsel in this case did not invoke
"mercy" or "sympathy" or "compassion" in closing argument. While trial
and appellate counsel=s
conduct was deficient in failing to object to these arguments, the court
declined to address prejudice since a new penalty hearing was already
required.
MISCELLANEOUS
U.S. Court of Appeals Cases
2006:*Spisak v. Mitchell
465 F.3d 684 (6th Cir. 2006).
Under AEDPA review, counsel ineffective in capital sentencing for repeatedly stressing the brutality of the crimes and demeaning
the defendant during closing arguments. Despite counsel's claim that he was attempting to portray the defendant as sick and
twisted to mitigate, counsel provided an extremely graphic and overly descriptive recounting of the defendant's crimes,
described the defendant as a “sick twisted mind” associated with the Third Reich and Nazis, told the jury that the defendant was
undeserving of mitigation, and suggested that either outcome, death or life, would be a valid conclusion.
[T]rial counsel abandoned the duty of loyalty owed to Defendant. .
. . [T]rial counsel's hostility toward Defendant aligned counsel
with the prosecution against his own client. Much of Defendant's
counsel's argument during the closing of mitigation could have
been made by the prosecution, and if it had, would likely have been
grounds for a successful prosecutorial misconduct claim.
Id. at 706. Prejudice found.
2005:*Canaan v. McBride
395 F.3d 376 (7th Cir. 2005)
Counsel was ineffective in sentencing for failing to advise the defendant of his right to testify.
The court was not constrained in this case by the AEDPA standards because the state courts failed
to address this issue even though it was “squarely presented” in state court. Thus, the issue was
not “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d), just as the Supreme Court’s
review was “not circumscribed by a state court conclusion with respect to prejudice
[in Wiggins], as neither of the state courts below reached this prong of the
Strickland analysis.” (quoting Wiggins v. Smith, 123 S. Ct. 2527,
2537 (2003)). The court noted, however, that the result would be the same under the AEDPA.
The court declined deference to the state court finding that counsel advised the defendant of his
right to testify in sentencing because this finding was “flatly contradicted” by counsel’s testimony.
In determining whether counsel’s conduct was deficient, the court “look[ed] first to the ABA Standards
for Criminal Justice and the ABA Guidelines for the Appointment and Performance of Defense Counsel
in Death Penalty Cases.” The court noted that the 2003 ABA Guidelines for death penalty cases provide
that “[c]ounsel should consider, and discuss with the client, the possible consequences
of having the client testify . . . .” In failing to advise the defendant of his right to testify, “counsel also
defaulted on their ‘duties to consult with the defendant on important decisions and to keep the defendant
informed of important developments in the course of the prosecution.”
(quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).
Although counsel’s advice “might go either way, . . . [t]he point here is that the final choice must be the
client’s. . .” The defendant was prejudiced because no mitigating evidence was presented. State law
requires that the jury weigh aggravating and mitigating circumstances. “With nothing to put on the
mitigating side of the scale, the jury was almost certain to choose a death sentence.” If counsel had
performed adequately, the defendant’s testimony would have revealed “a deeply troubled history” of
the kind found to be relevant in Wiggins. He suffered physical and emotional abuse and
struggled with drugs and alcohol.
2002:*Roche v. Davis
291 F.3d 473 (7th Cir. 2002)
Counsel
ineffective in capital sentencing for the failure to object to the
petitioner’s shackling and the failure to ensure that the jury could
not see the shackles. The state court decision was unreasonable because
the court only considered counsel’s efforts to reveal the shackles during
his testimony but not when seated at the defense table when the record
revealed the shackles were visible to the jurors. No prejudice during
the trial due to the overwhelming evidence of guilt. Prejudice found in
sentencing – even though the "final determination about the appropriate
sentence" rested with the trial judge – because there was considerable
mitigation available and the jury deliberated for eight hours and was
unable to recommend the death penalty.
Miller v. Dormire
310 F.3d 600 (8th Cir. 2002)
Counsel ineffective in cocaine trafficking case for waiving the
defendant’s right to a jury trial. The defendant was present and silent
during the exchange between the trial court and defense counsel
concerning the waiver and counsel’s request for a bench trial. The trial
court did not address the defendant directly. The state court held that
the defendant had affirmatively waived his right to a jury because he
was present and made no objection. The Eighth Circuit found that the
state courts made an unreasonable determination of the facts under 28
U.S.C. § 2254(d)(2), because the record is devoid of any direct
testimony from the defendant regarding his consent to waive trial by
jury. The evidence revealed that counsel failed to advise the defendant
that the decision to waive trial by jury was his and his alone. Under
circuit precedent the court held that prejudice is presumed because
denial of trial by jury is tantamount to a structural error. Thus, under
28 U.S.C. § 2254(d)(1), the state court’s ruling was also an
unreasonable determination of the federal law as interpreted by the
United States Supreme Court. "When a defendant is deprived of his right
to trial by jury, the error is structural and requires automatic
reversal of the defendant’s conviction." Id. at
604.
2000: *Skaggs v. Parker,
235 F.3d 261 (6th Cir. 2000)
Counsel ineffective in capital
sentencing for calling appointed expert witness after having observed the "expert's"
testimony during the trial. During trial, appointed clinical and forensic psychologist's
testimony in support of insanity defense was "rambling, confusing, and, at times,
incoherent to the point of being comical." Id. at 879. Jury convicted. Counsel did not
call expert in sentencing, but jury hung and mistrial was declared. Four
months later in new sentencing, defense called "expert," who again
testified that defendant was of average intelligence but had insanity
defense at time of crimes based on depressive disorder and a paranoid
personality disorder. Counsel's decision to call expert in sentencing
was deficient because the knew the testimony could be more harmful than
helpful, but they did not ask for a different expert because counsel
simply did not believe the court would grant the motion. On appeal,
defense discovered that court-appointed defense "expert" was not
actually a licensed clinical or forensic psychologist, and had no
academic degrees or training as a psychologist whatsoever. His diagnosis
of the defendant, who was actually mentally retarded, was also
incorrect. Prejudice found, not based on lack of competent expert but on
lack of competent counsel, because counsel's actions denied defendant
his only real mitigation, which was evidence of mental retardation and
abnormal neuropsychological tests indicating brain damage. Counsel also
presented no other real mitigation evidence.
1995:
*Thomas-Bey v. Nuth,
67 F.3d 296 (4th Cir. 1995) (affirming Thomas-Bey v. Smith, 869
F. Supp. 1214 (D. Md. 1994))
Counsel ineffective for consenting to
a post-conviction interview of the defendant by a psychiatrist retained
by the state for sentencing and the psychiatrist testified that
defendant had no mitigating mental impairments and was a serious risk of
future dangerousness to society and prison population.
U.S. District Court Cases
2007: *Magwood v. Culliver,
481 F. Supp. 2d 1262 (M.D. Ala. 2007).
Under AEDPA, counsel ineffective in capital resentencing proceeding for failing to assert
that the retroactive application of state law concerning aggravating factors violated due
process and the defendant could not be sentenced to death under the applicable law. The
defendant was convicted of capital murder for shooting a Sheriff in March 1979. State
statutes at that time provided that if convicted of capital murder, such as killing an officer,
the jury must fix the punishment at death. The trial court was then required to determine the
appropriate sentence after weighing eight aggravating and seven mitigating circumstances
established by statute. In order to impose death the court was required to find one or more
of the statutory aggravating circumstances and to find that the aggravating circumstances
outweighed the mitigating circumstances. In March 1981, the Alabama Supreme Court
issued two decisions essentially changing the state law. The jury’s role was changed to an
advisory role in sentencing requiring the jury to also weigh aggravating and mitigating
circumstances. The Alabama Supreme Court also held that the trial judge was not required
to find one of the specific statutory aggravating circumstances in order to impose a death
sentence. Death could be imposed if the underlying capital murder itself outweighed any
mitigation. The defendant was initially tried and sentenced to death in June 1981 using the
standards of the Alabama Supreme Court. In July 1981, the Alabama legislature enacted a
new death penalty statute codifying much of the state court’s holdings, but rejecting the
court’s rule on aggravating circumstances. Specifically, the new statute made clear that the
court could not impose a death sentence without finding a specific statutory aggravating
circumstance in addition to the capital murder. The defendant’s initial sentence was vacated
due to the state judge’s failure to consider two mitigating circumstances clearly supported
by the record. Resentencing was conducted in 1986 and the defendant was again sentenced
to death applying the Alabama Supreme Court’s version of state law announced in March
1981. In short, the defendant was sentenced to death based only on the capital murder (the
murder of an officer) without a finding of a statutory aggravating circumstance. Counsel’s
conduct was deficient because due process is violated by retroactive application of a new
judicial interpretation of a criminal statute when the new interpretation is "unexpected and
indefensible by reference to the law which had been expressed prior to the conduct in issue."
Id. at 1275 (quoting Bouis v. City of Columbia, 378 U.S. 347, 354 (1964)). Because the
Alabama Supreme Court’s new interpretation was “unexpected and indefensible,” it could
not be applied to the defendant. Thus, the applicable “state law did not allow for” a sentence
of death for the defendant. Nonetheless, counsel did not object and actually affirmatively
stated that the court could sentence the defendant to death without finding a statutory
aggravating circumstance. “That is, counsel did not simply make an error of omission–an
error that would be highly unfortunate but would perhaps survive the strong presumption that
it was a strategic decision; rather, counsel affirmatively argued a position that was
detrimental to his client and a clear misstatement of federal constitutional law.” Id. at 1293.
Prejudice found since “the outcome of the case would surely have been different” if counsel
had appropriately objected. Because the state court’s implied holding was that counsel was
not ineffective because, “essentially the lawyer had no substantive role in the resentencing”
mandated by the federal court due to the failure to consider several statutory mitigating
circumstances, the state’s court’s holding was “unreasonable, whether it is regarded as a legal
issue or factual issue.” Id. at 1294.
State Cases
2006: *Commonwealth v. Mays
898 A.2d 559 (Pa. 2006).
Trial counsel ineffective in failing to assert as error the trial court's ruling in capital
sentencing that the defendant's proffered mitigation evidence was irrelevant and
inadmissible. Specifically, the defendant sought to present evidence, under the "catchall"
mitigator, that his father physically and sexually abused him and forced him to watch the
physical and sexual abuse of his sisters and mother. Prejudice was clear because, with an
aggravating circumstance established and no mitigating circumstances, state law required
the jury to impose a sentence of death.
2005: *Salazar v. State
126 P.3d 625 (Okla. Crim. App. 2005)
Counsel ineffective in jury trial determination of whether the defendant was mentally retarded due to
counsel’s failure to investigate with respect to the testing conducted by the state’s expert. Although
the defendant’s IQ score fell in the mentally retarded range on his testing, the state’s expert testified that,
based on two tests, the defendant was malingering.
[The state’s expert] effectively discredited Petitioner’s experts by claiming they used improper testing procedures,
by using tests not “normed” for a person like Petitioner, and by not properly reporting the results. Had [he] not
done the exact same things, there would be no problem.
Counsel did not cross-examine him, however, with respect to the malingering tests he conducted or other investigate
to determine the nature of that testing. “One test counsel recognized as the TOMM test and the other he did not
recognize but it did not occur to him to inquire into the origins of that test.” Counsel did not cross-examine the state’s
expert concerning the malingering tests for strategy reasons but “it was a strategy based upon counsel’s admitted failure
to recognize the significance of and determine the origins of [the expert’s] testing and raw data.”
We cannot fathom, in a case which boiled down to a battle of experts, why Petitioner’s counsel failed to research
the tests [the state’s expert] performed on Petitioner to confirm the origins of and the scientific validity of those tests
before Petitioner’s mental retardation hearing. The raw data was provided to counsel prior to the mental retardation jury trial.
The evidence was discoverable with due diligence–that is clear from another attorney’s discovery of the information in a
separate and unrelated proceeding.
If counsel had adequately investigated, he would
have discovered that one of the malingering tests given by the state’s
expert was a non-standardized test the expert “made up and . . . it was
not administered pursuant to accepted scientific norms.” “No reasonable
trial strategy would have supported a decision not
to utilize this important impeachment evidence.” Prejudice found because
counsel could have discredited the state’s expert i n the exact same way
that he had discredited Petitioner’s experts. Prejudice was also clear
because “three juror surveys”
revealed that the state’s expert testimony was the most credible to the
jury. Because the court was “bothered that this State’s witness seemingly,
intentionally, misled the trial court and the parties about the reliability
of his own tests to strengthen
the State of Oklahoma’s case,” the court modified the sentence to life
without parole rather than remanding for a new hearing.
2004: *In re Davis
101 P.3d 1 (Wash. 2004).
Counsel was ineffective
in sentencing for failing to object to the shackling of the defendant. Counsel
objected to the shackling on the
first day of jury selection but was overruled. A mistrial was
subsequently granted due to the trial court’s poor health and an order
was entered that continued all prior rulings unless modified by the new
judge. Counsel did not object to the shackling during the second trial,
which resulted in the defendant’s conviction and death sentence. "Assuming
that the failure to object was deficient performance,"
id. at 30, there was prejudice during the trial even though one
juror saw the leg restraints on two occasions because there was
overwhelming evidence of guilt. Prejudice was found during sentencing,
however, because "placing the [D]efendant in restraints indicates to
the jury that the Defendant is viewed as a ‘dangerous’ and ‘unmanageable’
person, in the opinion of the court, who cannot be controlled, even in
the presence of courtroom security." Id. at 32. Thus, even though
no juror saw the shackles in sentencing, the court could not "be assured
that any negative inference as to Petitioner’s character was cured" from
the juror’s viewing of the shackles during trial. Id. In so
finding, the court declined to consider juror testimony of no impact
because of "the remoteness in time of the reference hearing from the
actual verdict." Id. at 24.
2003: *Commonwealth v.
Brooks
839 A.2d 245 (Pa. 2003).
Counsel was ineffective in capital trial for
failing to meet with his client face-to-face prior to trial. Counsel’s
conduct was deficient in that counsel never once met with the defendant
prior to the beginning of jury selection. Counsel spoke only briefly
with the defendant by telephone.
It should go without
saying that no lawyer, no matter how talented and efficient, can
possibly forge a meaningful relationship with his client and obtain
adequate information to defend that client against first-degree murder
charges in a single thirty minute telephone conversation.
The court found that
face-to-face meetings were important, because
Without such a meeting,
there is little to no hope that the client will develop a fundamental
base of communication with his attorney, such that the client will
freely share important information and work comfortably with the lawyer
in developing a defense plan. Moreover, only a face-to-face meeting
allows an attorney to assess the client’s demeanor, credibility, and the
overall impression he might have on a jury. This is of particular
importance in cases in which the client may take the stand in his
defense or at the penalty phase in an attempt to establish the existence
of particular mitigating circumstances.
The court held that there was no reasonable basis for the attorney’s
failure to meet with the defendant and that "failure to do so is ‘simply
an abdication’ of the most basic expectations of defense counsel in a
capital case." Prejudice found because, in this instance, the attorney’s
failure to meet with the client and develop a relationship resulted in
the defendant proceeding pro se with counsel
serving only as standby counsel.
2002: Belcher v. State
93
S.W.3d 593 (Tex. Ct. App. 2002
)
Counsel was ineffective
for failing to alert the trial court of an error in the court’s
calculation of the deadline for ruling on a motion for new trial. The
defendant moved for a new trial alleging among other things that a juror
was improperly seated because the juror had lied during voir dire.
During the motion for new trial hearing the court expressed concern over
the issue and twice referred to its deadline for ruling on the motion
for new trial. The court’s calculation was incorrect but counsel did not
correct the court. Under Texas law, if the trial court does not rule on
the motion for new trial within 75 days after the sentence is imposed
the motion for new trial is denied by operation of law. Here the trial
court entered an order two days late granting the defendants new trail
motion. Counsel’s conduct was deficient in failing to advise the trial
court of the proper deadline. The court presumed prejudice because
defense counsel’s silence was tantamount to the actual or constructive
denial of counsel at a critical stage of the proceedings. The court also
found that the defendant had established prejudice because the trial
court’s entry of the late order clearly indicated that absent counsel’s
error the motion for new trial would have been granted. The court
remanded to the trial court for a new hearing on the motion for a new
trial.
2001: *Warner v. State,
29 P.3d 569 (Okla. Crim. App.
2001)
Counsel ineffective in capital case
for failing to properly request one day continuance with written motion
supported by an affidavit. During sentence on a Friday, defense counsel
orally requested a continuance until Monday because the defendant's
mother was supposed to testify but could not arrive until Monday due to
transportation and health problems. Counsel did not, however, follow the
proper procedures for request. The result was that the defense presented
no mitigation at all. Court blurs this issue with trial court error by
saying that regardless of the defense counsel's failure the court should
have granted the one day continuance, especially since the court had
allowed the jury to consider whether they wanted to delay instructions.
Also not necessary for court to discuss this issue at all since the case
was reversed due to trial court errors in jury selection
anyway.
1997: *Clark v. State,
690 So. 2d 1280 (Fla. 1997)
Counsel ineffective in sentencing
phase because closing argument virtually encouraged giving the death
penalty by telling jury, inter alia, that counsel had no choice, it was
the worst case he had seen, and that the defendant was from the
"underbelly of society."
1993: *Garcia v. State,
622 So. 2d 1325 (Fla. 1993)
Trial Counsel ineffective in
sentencing phase for failing to seek admission of statement made by
co-defendant to cellmate which corroborated defendant's statement that
he was not the triggerman in shootings during robbery.
*People v. Pugh,
623 N.E.2d 255 (Ill. 1993), cert. denied, 513 U.S. 809
(1994)
Counsel ineffective for stipulating to
defendant's eligibility for death penalty based on counsel's mistaken
belief that defendant was eligible solely because of felony murder
conviction. Counsel unaware that to be death eligible defendant must
have intended to kill the victim. Defendant continuously maintained that
shooting was accidental.
1985: *People v. Frierson,
705 P.2d 396 (Cal. 1985)
Counsel ineffective for waiting to
sentencing phase to present diminished capacity defense when the
defendant demanded on the record that it be presented at the special
circumstances phase.
(5) 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.