Attorney-Client Issues - Ineffective Assistance of Counsel -- Death Penalty Cases

Rompilla v. Beard, 125 S.Ct. 2456 (2005):

Death penalty counsel’s failure to investigate the circumstances of the defendant’s prior conviction, (such as the file in the clerk’s office) which was used as an aggravating factor in the penalty phase (and which had loads of mitigating evidence present in the clerk’s file) was ineffective and prejudicial. The file of the prior case contained information about the defendant’s childhood and mental health problems.

Florida v. Nixon, 543 U.S. 175 (2004)

The Supreme Court held that an attorney may concede the defendant’s guilt during the guilt-innocence portion of a death penalty trial even without the express approval of the defendant. This concession of guilt (prompted by a strategy of prevailing during the sentencing phase) is not the functional equivalent of a guilty plea, which would require a full waiver by the defendant.

Bell v. Cone, 535 U.S. 685 (2002)

The standard of Strickland v. Washington, applies in death penalty cases, even where the defense counsel does virtually nothing during the penalty phase. The Sixth Circuit’s decision applying United States v. Cronic – failure to subject the prosecution’s case to meaningful adversarial testing – was erroneous.

Wiggins v. Smith, 123 S.Ct. 2527 (2003)

Counsel was ineffective in the death penalty phase. Inadequate pretrial investigation of the defendant’s horrendous upbringing led to a presentation of mitigating evidence at the penalty phase that was inadequate to satisfy Sixth Amendment requirements. Relying on Williams v. Taylor, 529 U.S. 362 (2000), the Court held that the state habeas courts used the correct legal standard but that the ruling was “an unreasonable application of clearly established Federal law.”

Porter v. McCollum, 130 S. Ct. 447 (2009)

Over the course of several weeks in the fall of 2009, the Supreme Court issued three per curiam opinions in death penalty cases involving ineffective assistance of counsel claims. In this case, the Court reversed the Eleventh Circuit and held that counsel’s failure to introduce evidence of defendant’s experiences in the Korean War – he was in two battles that resulted in the death of countless soldiers around him and left him with extreme emotional scars – was ineffective assistance of counsel that would have changed the outcome of the trial. The unanimous Court held that his heroic service during these horrific battles surely would have had an impact on any jury.

Sears v. Upton, 130 S. Ct. 3259 (2010)

The state death penalty trial counsel was ineffective in failing to investigate available mitigation evidence. The state court applied an incorrect standard in determining whether there was prejudice and the Supreme Court remanded for a new determination of prejudice that considered all the evidence presented in the post-conviction pleadings.

Doe v. Ayers, 782 F.3d 425 (9th Cir. 2015)

The available evidence that could have been presented during the mitigation phase of this death penalty case included abuse as a child, significant brutality and rapes that defendant suffered when imprisoned at a young age and other evidence of a deprived childhood. This lengthy opinion by Judge Reinhart is encyclopedic in its review of the duty of trial counsel to investigate and present mitigating evidence, even when not assisted by the defendant himself, and to pursue all leads that might exist based on the information that is furnished by family members.

Mann v. Ryan, 774 F.3d 1203 (9th Cir. 2014)

Counsel’s performance (which was non-existent) in preparing to present mitigating evidence at defendant’s death pently trial was constitutionally deficient and required granting a writ and setting aside the sentence. Counsel did not interview any witnesses or attempt to obtain any school, prison or medical records prior to investigate the defendant’s background. This was not a matter of a lawyer exercising strategic decision-making. This was complete inattention to any preparation.

Wharton v. Chappell, 765 F.3d 953 (9th Cir 2014)

Trial counsel’s failure to present evidence about the defendant suffering sexual abuse as a child constituted ineffective assistance of counsel during the penalty phase.

DeBruce v. Commissioner, Ala. Dept. of Corrections, 758 F.3d 1263 (11th Cir. 2014)

Trial counsel performed inadequately in preparing for the mitigation phase of this death penalty trial. He had no investigator working on the mitigating evidence and failed to locate and present available mental health evidence.

Stankewitz v. Wong, 698 F.3d 1163 (9th Cir. 2012)

State trial counsel’s failure to investigate present substantial available mitigation evidence about the defendant’s upbringing, mental illness, and drug use was ineffective assistance of counsel that required that the death penalty be set aside in this case.

Cauthern v. Colson, 736 F.3d 465 (6th Cir. 2013)

Trial counsel was ineffective in failing to properly develop and present available mitigating evidence.

Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012)

Counsel’s death penalty presentation was sub-par in numerous respects, including a failure to develop and present family and social history, failure to present available and significant mental-health evidence and failure to rebut the prosecution’s case in aggravation.

Winston v. Pearson, 683 F.3d 489 (4th Cir. 2012)

State trial counsel were ineffective in failing to adequately investigate and prepare a mental retardation defense in this death penalty prosecution.

James v. Ryan, 679 F.3d 780 (9th Cir. 2012)

Trial counsel’s inadequate investigation into the defendant’s mental health problems, as well as his drug abuse and other childhood problems amounted to ineffective assistance of counsel necessiting that the death penalty be vacated. Affirmed on remand from the Supreme Court, 733 F.3d 911 (9th Cir. 2013)

Blystone v. Horn, 664 F.3d 397 (3rd Cir. 2011)

Trial counsel provided ineffective assistance of counsel in this death penalty trial because of his failure to locate and present mitigating evidence.

James v. Schriro, 659 F.3d 855 (9th Cir. 2011)

Ineffective mitigation phase preparation.

Foust v. Houk, 655 F.3d 524 (6th Cir. 2011)

Trial counsel’s failure to obtain records from the Children’s Services Office that documented the incredibly abusive and horror of the defendant’s childhood and to interview family members, as well counsel’s failure to retain a mitigation expert, or to interview the defense-retained psychologist, was ineffective assistance of counsel.

Cooper v. Sec’y Dept. of Corrections, 646 F.3d 1328 (11th Cir. 2011)

Trial counsel was ineffective in failing to locate and present available mitigating evidence in this death penalty case. There was considerable evidence of the abuse defendant suffered as a child and psychological evidence was also available, but never developed by the defense.

Johnson v. Sec’y DOC, 643 F.3d 907 (11th Cir. 2011)

The trial attorney failed to perform adequate investigation into defendant’s abusive childhood. His mother and brother both committed suicide – a fact that the attorney never learned – and his father regularly abused him. The defendant witnessed prior suicide attempts by his mother. “No reasonable attorney who has every expectation that his client will be convicted and will be facing a death sentence would wait until the guilt stage ended before beginning to investigate the existence of non-statutory mitigating circumstances. No reasonable attorney, after being told by his client that he had an abusive upbringing, would fail to interview members of his client’s family who were readily available and could corroborate or refute the allegations of abuse. No reasonable attorney told by his client that he had an alcoholic and abusive father would fail to pursue those non-statutory mitigating circumstances simply because the father denied it.”

Sowell v. Anderson, 663 F.3d 783 (6th Cir. 2011)

Trial counsel’s mitigation evidence investigation was inadequate in failing to locate and present evidence of the horrific childhood the defendant endured.

Ferrell v. Hall, 640 F.3d 1199 (11th Cir. 2011)

Trial counsel was ineffective in investigating and presenting mitigating evidence in this death penalty trial. Trial counsel never discovered the extent of defendant’s extensive disablingmental health problems. Nor did they learn about his suicide attempt at age eleven, as well as his organic brain damage. Nor did they learn about the father’s abusive behavior.

Griffin v. Pierce, 622 F.3d 831 (7th Cir. 2010)

Trial counsel’s failure to engage in any mitigation investigation was ineffective assistance of counsel.

Stanley v. Schriro, 598 F.3d 612 (9th Cir. 2010)

Commenting, that “We simply cannot in good consceience dontinue to send me to their deaths without ensuring that their cases were not prejudiced by inadequate legal representation at any phase of [death penalty] proceedings” the Ninth Circuit sent this case back to the habeas court to consider the allegations that a sufficient pursuit of mitigating evidence was not undertaken by defense counsel.

Robinson v. Schriro, 595 F.3d 1086 (9th Cir. 2010)

Trial counsel was ineffective in failing to investigate possible mitigating evidence and presented no evidence or witnesses during the penalty phase. The failure to present evidence about his abused childhood and psychological impairments was prejudicial and a new sentencing hearing was necessary to affort the defendant the effective assistance of counsel.

Johnson v. Mitchell, 585 F.3d 923 (6th Cir. 2009)

Trial counsel’s sole preparation for the penalty phase was to ask the defendant for anybody who could say something nice about him. The defendant could not think of anybody, so no mitigating evidence was presented at the sentencing phase. The Sixth Circuit granted a writ of habeas corpus as to the sentencing phase.

Hamilton v. Ayers, 583 F.3d 1100 (9th Cir. 2009)

Trial counsel’s failure to property investigate and present mitigating evidence amounted to a denial of the sixth amendment right to effective assistance of counsel. There was abundant evidence available (indeed, some of it in the trial counsel’s file, but he had never reviewed it) dealing with the defendant’s upbringing in various foster homes.

Sechrest v. Ignacio, 549 F.3d 789 (9th Cir. 2008)

Counsel was ineffective in providing to the prosecution a confidential psychiatric report that provided considerable ammunition to the prosecutor during the penalty phase. The defense had decided not to use the expert and there was no other evidence that supported the psychiatric diagnosis that was so damning to the defense. The defense attorney also should not have stipulated to the admissibility of his own expert as a witness for the prosecution.

Johnson v. Bagley, 544 F.3d 592 (6th Cir. 2008)

Trial counsel provided ineffective assistance in investigating potential mitigation evidence. The fact that the defendant was not cooperative is not a basis to foreclose reasonable investigation. The Sixth Circuit cited the ABA Gidelines on death-penalty representation as a good guide in determining what is necessary to fulfill counsel’s duty.

Mason v. Mitchell, 543 F.3d 766 (6th Cir. 2008)

Counsel failed to adequately investigate defendant’s childhood. He interviewed none of the members of defendant’s family and relied exclusively on the records produced by the state. This was ineffective assistance of counsel and required granting a writ on the death sentence.

Williams v. Allen, 542 F.3d 1326 (11th Cir. 2008)

Trial counsel’s preparation of the mitigating phase of this death penalty trial was inadequate and was ineffective assistance of counsel. Testimony offered during the habeas hearing about the abuse that the defendant suffered as a child was available and portrayed a level of abuse that was astounding, including the use of deadly weapons by the defendant’s father against the defendant, his siblings and his mother.

Kindler v. Horn, 542 F.3d 70 (3rd Cir. 2008)

Trial counsel’s failure to investigate available mitigating evidence relating to the defendant’s background and mental health problems amounted to ineffective assistance of counsel. See 642 F.3d 398, opinion on remand from the Supreme Court.

Bond v. Beard, 539 F.3d 256 (3rd Cir. 2008)

Trial counsel was ineffective in failing to adequately present mitigating evidence relating to defendant’s mental health and dysfunctional family.

Jells v. Mitchell, 538 F.3d 478 (6th Cir. 2008)

Trial counsel was ineffective in failing to prepare for the mitigation phase of this death penalty trial and in failing to use a mitigation specialist.

Gray v. Branker, 529 F.3d 220 (4th Cir. 2008)

Trial counsel provided ineffective assistance of counsel in failing to investigate develop the available evidence of the defendant’s severe mental illness.

Duncan v. Ornoski, 528 F.3d 1222 (9th Cir. 2008)

Defense counsel was ineffective in failing to properly investigate certain blood evidence that was found at the scene of the murder that might have implicated another person as the trigger man. Lawyers have considerable discretion to make strategic deicions about what to investigate, but only after those lawyers have gathered sufficient evidence upon which to base their tactical choices. When defense counsel merely believes certain testimony might not be helpful, no reasonable basis exists for deciding not to investigate. It is especially important for counsel to seek the advice of an expert when he ahs not knowledge or expertise about the field. While the evidence would not have altered the defendant’s conviction for felony murder, a reasonable probability existed that this would have altered the jury’s decision to impose the death penalty.

Lawhorn v. Allen, 519 F.3d 1272 (11th Cir. 2008)

Counsel provided ineffective assistance of counsel by waiving closing argument in the penalty phase of a death penalty trial. The attorney made this decision erroneously believing thatthis would bar the prosecutor from giving a closing argument. The attorney was legally wrong: the prosecutor was permitted to give a closing argument despite the defendant’s waiver.

Morales v. Mitchell, 507 F.3d 916 (6th Cir. 2007)

Trial counsel was ineffective during the penalty phase of the death penalty trial. He failed to adequately investigate defendant’s background and failed to interview key witnesses. Nor did he hire a mitigation expert or investigator or contact any of the defendant’s family members, except for his father.

Haliym v. Mitchell, 492 F.3d 680 (6th Cir. 2007)

Trial counsel inadequately investigated defendant’s background and presented a constitutionally ineffective mitigation phase case. Evidence of the defendant’s abusive upbringing and the loss of his family (his father died of a drug overdose) should have been discovered and presented at trial.

Lambright v. Schriro, 490 F.3d 1103 (9th Cir. 2007)

Trial counsel did virtually nothing to prepare for the penalty phase of this death penalty trial. The Ninth Circuit granted a writ. The fact that the mitigating evidence (Vietnam-induced trauma and other psychological issues) did not relate specifically to the offense did not lessen the impact the evidence may have had on the jury when considering what sentence to impose.

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

Defense counsel’s investigation into mitigating evidence was insufficient and, coupled with disastrous penalty phase decisions, necessitated granting a writ of habeas corpus. The defense hired a psychiatrist who turned out to be somewhat of a quack (he did not believe that mental illness existed) and when he wrote a report that was extremely unfavorable, he told the defense lawyers that he wrote the report in order to sandbag the prosecution and that when called to the stand he would be like Christine Helm Vole in Witness for the Prosecution. The defense did not call the psychiatrist at trial, but did call him as a witness in the penalty phase. During his testimony, things went from bad to worse (including a disclosure by the psychiatrist that the defendant masturbated on the victim, a young boy, after killing him). The Seventh Circuit concluded that the sentencing phase presentation amounted to ineffective assistance of counsel.

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

Trial counsel focused almost exclusively on the guilt-innocence phase of the trial and failed to investigate, locate, or present mitigating evidence that was available. Evidence was available about the defendant’s upbringing in circumstances of neglect and abuse. Failing to perform proper investigation was ineffective and prejudicial. A writ of habeas corpus was granted as to the penalty phase.

Joseph v. Coyle, 469 F.3d 441 (6th Cir. 2006)

Trial counsel was ineffective in failing to challenge the indictment and jury instructions in this case, which failed to properly allege and explain the aggravating specification that supported the death sentence.

Correll v. Ryan, 539 F.3d 938 (9th Cir. 2008)

Trial counsel was ineffective in his investigation and presentation of mitigating evidence in this death penalty trial. No effort was made to gather psychiatric records and he made insufficient efforts to obtain “he’s a good person” evidence.

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

Counsel was ineffective in his preparation of the penalty phase of this death penalty trial and was also ineffective in failing to challenge the propriety of a witness’s invocation of the Fifth Amendment. The defendant attempted during the penalty phase to show that another person had committed a prior murder that the state was using as an aggravating circumstance. That person invoked his Fifth Amendment, but he had already been acquitted of the charge in juvenile court, so the invocation was invalid. The Ninth Circuit concluded that the facts of this case were materially indistinguishable from the facts in Rompilla v. Beard, 125 S.Ct. 2456 (2005).

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

The defense attorney delivered an incomprehensible closing argument, that seemed to suggest that the only reason to return a life sentence was residual doubt. The only evidence he offered during the penalty phase was the defendant’s testimony, during which he made a two or three sentence plea for mercy. The defense attorney provided ineffective assistance of counsel.

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

Trial counsel was ineffective in failing to properly prepare his mitigation psychiatric expert, including failing to provide him with all the background psychiatric information from the defendant’s background that was available.

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

State trial counsel was ineffective in investigating possible mitigation evidence. The defendant’s father beat him; his mother attempted to kill him; and he was constantly malnourished and sent to school in filthy clothes.

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

Trial counsel conducted inadequate mitigating evidence investigation. The defendant’s childhood was marked by violence, pimps and prostitutes. He had an IQ of 77. The attorney waived his right to a jury on the belief that a conversation he had with a judge assured him that the death penalty would not be imposed and that no mitigating evidence needed to be presented.

Draughon v. Dretke, 427 F.3d 286 (5th Cir. 2006)

The defendant was sentenced to death based on a conviction for killing a bystander after attempting to rob a store. The defendant admitted trying to rob the store and that when he fled, he was scared of the people who were chasing him and that he fired into the air to get them to stop chasing him. Defense counsel did not hire a firearm’s expert to analyze the path of the bullet. The state argued that the shooting was point-blank from a short distance. At the habeas hearing, the defendant offered evidence that the bullet clearly ricocheted off the pavement into the victim’s body. The Fifth Circuit held that defense counsel’s failure to retain a ballistics expert prior to trial was ineffective assistance of counsel.

Marshall v. Cathel, 428 F.3d 452 (3rd Cir. 2005)

Trial counsel failed to engage in any investigation in preparation for the penalty phase of this death penalty trial. The Third Circuit set aside the death sentence.

Daniels v. Woodford, 428 F.3d 1181 (9th Cir. 2005)

The public defender’s office suffered from a conflict of interest that should have led the trial court to appoint replacement counsel in this death penalty case. The defendant, who had been convicted of a previous crime, had filed a habeas corpus petition against the public defender’s office in connection with the earlier case. Finally, shortly before trial, the court appointed two lawyers to replace the public defenders. For both the new attorneys, this was their first capital case. There was almost complete distrust between the defendant and his newly appointed attorneys (one of whom had recently left the DA’s office). By the time of trial, the attorneys and the defendant were not on speaking terms. Virtually no investigation into possible mitigating evidence was undertaken by the attorneys. The Ninth Circuit concluded that there was a presumption of prejudice caused by the conflict and the writ was granted.

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

Despite the defendant’s request that the attorney present no mitigation evidence, the attorney is professionally obligated to investigate all available mitigation evidence that was available.

Earp v. Stokes, 423 F.3d 1024 (9th Cir. 2005)

The defendant was entitled to an evidentiary hearing on his claim of ineffective assistance of counsel relating to inadequate penalty phase investigation. Amended and superseded at 431 F.3d 1158 (9th Cir. 2005).

Smith v. Dretke, 422 F.3d 269 (5th Cir. 2005)

The petitioner submitted sufficient evidence to support the necessity of a hearing on his claim that his trial counsel inadequately investigated the availability of mitigating evidence in his state death penalty trial.

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

Counsel’s penalty phase investigation was deficient. Counsel failed to adequately investigate the defendant’s mental health background and or to seek the assistance of a mental health expert. Counsel also failed to fully explore issues relating to the defendant’s family upbringing.

Boyde v. Brown, 404 F.3d 1159 (9th Cir. 2005)

Counsel’s failure to present evidence of the defendant’s childhood abuse during the penalty phase was ineffective assistance of counsel. The decision was amended to order a remand to the district court for a hearing on the question of prejudice. The court also ordered that the case be re-assigned to a different district court judge. 421 F.3d 1154

Canaan v. McBride, 395 F.3d 376 (7th Cir. 2005)

Failing to advise a defendant in a death penalty case that he may testify during the penalty phase – even if he did not testify in the guilt-innocence phase – is ineffective assistance of counsel.

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

Trial counsel failed to adequately develop evidence of defendant’s mental illness. At the habeas hearing, in fact, counsel conceded that he did not even know that this would be admissible evidence in the penalty phase. The death sentence was set aside.

Allen v. Woodford, 366 F.3d 823 (9th Cir. 2004)

Trial counsel performed deficiently in waiting until one week prior to trial to prepare for the sentencing phase of this death penalty case – however, there was no showing of prejudice, because the evidence was overwhelming that the defendant was guilty of a triple murder as well as having conspired to murder several other people. Opinion amended at 395 F.3d 979 (9th Cir. 2004).

Stankewitz v. Woodford, 365 F.3d 706 (9th Cir. 2004)

Based on the Supreme Court decisions in Wiggins v. Smith, 123 S.Ct. 2527 (2003) and Williams v. Taylor, 529 U.S. 362 (2000), a remand was required in this case to determine if more effective development of the defendant’s background should have been undertaken by trial counsel.

Roberts v. Dretke, 356 F.3d 632 (5th Cir. 2004)

Trial counsel complied with the defendant’s demands not to pursue certain lines of defense. Complying with these demands, however, arguably amounted to ineffective assistance of counsel, because of the defendant’s mental illness. A Certificate of Appealability should have been granted to evaluate this claim. Specifically, counsel should have consulted more with the court-appointed psychiatrist and should have properly developed the mental health evidence.

Lewis v. Dretke, 355 F.3d 364 (5th Cir. 2004)

Trial counsel’s failure to investigate information relating to defendant’s childhood abuse was ineffective assistance of counsel.

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

Counsel’s deficient performance during the preparation of the penalty phase of this death penalty trial required that the sentence be set aside. He made no effort to find the defendant’s family history or mental health background.

Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003)

The entire penalty phase on the part of the defendant was his unsworn statement declaring his innocence and requesting mercy. The trial attorney failed to introduce evidence of the defendant’s brain injury. He failed to introduce any evidence of his background, history, or character.

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

The two defense attorneys spent a total of one and one-half hours with the defendant prior to trial. They interviewed no witnesses, did not investigation. Spoke to none of his family members and made no effort to compile a psychological profile. They presented no evidence during the penalty phase and their combined closing arguments were contained in five pages of the transcript. Ironically, during the closing argument, one of the lawyers lamented to the jury that the jurors did not know the defendant as a person, like the lawyers did. There was, in fact, considerable mitigating evidence that was available. The writ was granted with regard to the penalty phase.

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

The habeas court found that the defendant suffered brain damage as a result of his personal background (exposure to crop dusters and poisoned drinking water) and exposure to neurotoxicants (pesticides). Trial counsel’s failure to investigate this mitigation evidence and to present it to the jury during the penalty phase of the trial was ineffective assistance of counsel.

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

Trial counsel’s failure to investigate and present mitigation evidence was ineffective. Trial counsel claimed that the defendant absolutely barred him from conducting any investigation into his background. The Ninth Circuit held that a client’s wishes have some weight when it comes to which witnesses to call, but the client’s wishes should not control the attorney’s independent investigation of the defendant’s background.

Sallahdin v. Gibson, 275 F.3d 1211 (10th Cir. 2002)

Trial counsel was arguably ineffective in failing to present evidence of defendant’s steroid use in mitigation during the sentencing phase of his death penalty trial. At the time of defendant’s trial, there was substantial and consistent scientific literature showing that anabolic steroids could cause sever psychiatric effects in some individuals. Introducing this evidence might have altered the jury’s decision regarding the aggravating circumstance of future dangerousness. Moreover, it would have explained how the defendant, who was known to be mild-mannered, suddenly participated in the brutal murder involved in this case. Nevertheless, the case was remanded for the trial court to better assess whether counsel had evaluated each of these factors and whether he was, therefore, ineffective, or simply exercising strategic judgment.

Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998)

The attorney appointed to represent the defendant during the penalty phase of this death penalty trial did nothing to prepare for the penalty phase, relying instead on the guilt-innocence attorney’s potential competency presentation. Significant neuropsychological evidence would have been available had the attorney properly investigated the available mitigating evidence. The court also held, “The family portrait painted at the federal habeas hearing was far different from the unfocused snapshot handed the superior court jury. The jury which committed [petitioner] to death had no knowledge of the indisputably sadistic treatment [he] received as a child, including repeated beatings which left a permanent indentation in his head.”

Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997)

Trial counsel's defense in this death penalty case fell far below the standard required by the Sixth Amendment. The crime, to be sure, was atrocious. Nevertheless, the defense attorney, for all purposes, joined forces with the prosecution in presenting the case. Repeatedly, the attorney elicited testimony about the defendant's violent, aggressive, criminal behavior, and his proclivity to commit violent acts without provocation. He expressly revealed his contempt for the defendant. The trial counsel's conduct, according to the Sixth Circuit opinion, was "appalling."

Caro v. Calderon, 165 F.3d 1223 (9th Cir. 1999)

Counsel’s failure to develop evidence regarding the defendant’s brain damage and poisoning required an evidentiary hearing in the lower court to further evaluate the ineffective assistance of counsel claim.

Smith v. Stewart, 140 F.3d 1263 (9th Cir. 1998)

Trial counsel was ineffective during the penalty phase of this death penalty trial. He presented no mitigating evidence and essentially presumed no argument on defendant's behalf. There was no tactical reason offered for the failure to present mitigating evidence and such evidence did exist, such as his drug addiction, and his family relationships.

Bloom v. Calderon, 132 F.3d 1267 (9th Cir. 1997)

The petitioner was convicted in state court of killing his father, stepmother and stepsister. He was sentenced to death. Trial counsel, however, failed to adequately prepare a psychiatric defense, including waiting until just before trial to hire an expert, and then providing too little information to the expert to aid him in preparing psychiatric report. In the habeas proceeding, it was revealed that the defendant suffered from a long history of severe childhood abuse. He was born into a family plagued by generations of mental illness and domestic abuse. A psychologist testified that the defendant's testing revealed striking, consistent and clear evidence of cognitive sensori-motor deficits, brain dysfunction and brain damage. None of this evidence was uncovered by the trial counsel. Trial counsel's performance was constitutionally deficient and necessitated granting the writ.

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

This was the fourth time this case had been considered by the Eleventh Circuit. In this appeal, the court concluded that the defendant was denied effective assistance of counsel because his attorney made no effort to investigate the defendant’s background; did not make a strategic decision to present no mitigating evidence; and made an ineffective closing argument (including making a prediction that the Supreme Court would once again invalidate the death penalty and that no executions would occur; and failed to make any particularized plea for mercy for the defendant).

Austin v. Bell, 126 F.3d 843 (6th Cir. 1997)

Defense counsel’s failure to conduct any investigation or to present any mitigation during the penalty phase of this death penalty trial amounted to ineffective assistance of counsel.

Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995)

Trial counsel was ineffective in failing to adequately investigate and prepare the mitigation portion of this death penalty trial. The defendant had organic brain damage, yet, no effort was made to develop psychiatric evidence, or evidence of his troubled childhood and mental retardation. Counsel also failed to request expert assistance, relying, instead, on court-appointed doctors whose reports were not favorable to the defense.

Hall v. Washington, 106 F.3d 742 (7th Cir. 1996)

Trial counsel was ineffective in failing to develop and present mitigating evidence. Among the witnesses who were available was a prison guard who would have testified that the defendant was a good prisoner. He had also saved someone’s life during a robbery in the past.

Emerson v. Gramley, 91 F.3d 898 (7th Cir. 1996)

Trial counsel was ineffective in preparing and presenting the penalty phase evidence at this death penalty trial. He offered no evidence.

Brewer v. Aiken, 935 F.2d 850 (7th Cir. 1991)

Counsel’s performance during the penalty phase was ineffective in light of his failure to introduce any evidence of the defendant’s mental and family history, as well as his inadequate presentation and argument of mitigating evidence.

Antwine v. Delo, 54 F.3d 1357 (8th Cir. 1995)

Defense counsel’s failure to investigate the defendant’s psychological background was ineffective. A proper investigation would have revealed that the defendant suffered from bipolar disorder. This likely would have affected the sentencing proceeding and spared the defendant a death sentence.

Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994)

The defense attorneys provided ineffective assistance of counsel during the penalty phase, because of their failure to adequately discover and present evidence of the defendant’s psychiatric problems.

Starr v. Lockhart, 23 F.3d 1280 (8th Cir. 1994)

Trial counsel was ineffective in failing to object to jury instructions during the penalty phase of this death penalty trial relating to “pecuniary gain” and “heinous, atrocious, or cruel” aggravating circumstances. Both of these aggravating circumstances had been found unconstitutional at the time of the defendant’s trial. Though the “pecuniary gain” circumstance was later found to be constitutional (and thus there was no prejudice from failing to object to this instruction), the “heinous, atrocious, or cruel” circumstance was unconstitutionally vague and did not adequately limit the death-eligible defendants. See Godfrey v. Georgia, 446 U.S. 420 (1980); and Maynard v. Cartwright, 486 U.S. 356 (1988). Though one aggravating circumstance was still valid, in a “weighing” state, such as Arkansas (the jury weighs the aggravating circumstances against the mitigating circumstances), if there is one invalid aggravating circumstance, the death sentence must be set aside.

Kenley v. Armontrout, 937 F.2d 1298 (8th Cir. 1991)

Counsel’s failure to present available mitigating evidence, including both lay and expert testimony relating to his troubled childhood and abusive father, his prior psychological history and his alcohol problem, amounted to ineffective assistance of counsel.

Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995)

The defense attorney provided ineffective assistance of counsel at the sentencing phase of this death penalty trial. In short, the attorney developed no mitigating evidence. This was not a matter of strategy, but a matter of neglect. The defendant’s “strategy” was, “Let’s put on whatever we have and beg for mercy.” The attorney was on notice that the defendant suffered from some mental impairment.

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

The defense attorney rendered ineffective assistance during the sentencing phase of this death penalty trial. He called no witnesses, introduced no evidence of the defendant’s mental illness and did not argue any mitigating circumstances, other than the defendant’s mental condition at the time of the offense. The attorney did not introduce sufficient evidence at trial to make up for this deficiency.

Wade v. Calderon, 29 F.3d 1312 (9th Cir. 1994)

Trial counsel was ineffective in failing to adequately present mitigating evidence during the penalty phase of this death penalty prosecution. Among other things, the attorney called the defendant, who had multiple personality disorder, to the stand and elicited testimony from the defendant’s “other personality” who was profane and insulting and requested the death penalty for the defendant. No evidence of the defendant’s abused childhood was introduced. Finally, the defense attorney in closing argument suggested the death penalty might be the appropriate thing to do to spare the defendant the misery he had endured his whole life.

Hendricks v. Vasquez, 974 F.2d 1099 (9th Cir. 1992)

Counsel’s failure to contact any of the death penalty defendant’s family members. Counsel presented the testimony of a psychologist to testify about the effects of the defendant’s traumatic childhood. However, there was no proof that the defendant suffered a traumatic childhood. The prosecutor’s cross-examination of the psychologist, therefore, was most effective and the defense counsel’s failure to prove the facts upon which the expert rendered her opinion might have been ineffective. A remand was necessary to more fully develop this claim.

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

During the sentencing phase of a death penalty trial, the defense attorney failed to offer any evidence regarding his client’s mental instability. The failure to investigate was not a trial tactic in light of the attorney’s failure to produce any evidence in mitigation. This constitutes ineffective assistance of counsel requiring a new penalty phase trial.

Osborn v. Shillinger, 861 F.2d 612 (10th Cir. 1988)

At the defendant’s death penalty trial, his attorney failed to adequately prepare the defense he chose and failed to investigate other plausible lines of defense. He also failed to uncover or investigate any mitigating evidence including the medical history of the defendant. The defense attorney failed to fulfill his duty of loyalty to his client and failed to object to the prosecutor’s engaging in ex parte communications with the trial judge. This all constitutes ineffective assistance of counsel.

Baxter v. Thomas, 45 F.3d 1501 (11th Cir. 1995)

Defendant’s trial counsel in this death penalty case failed to adequately investigate the defendant’s long history of mental illness. This was ineffective assistance of counsel at thesentencing phase and required that the sentence be set aside. Among other things, the attorneys failed to discover that the defendant had been committed to Central State Hospital because of his mental illness.

Jackson v. Herring, 42 F.3d 1350 (11th Cir. 1995)

Trial counsel’s failure to introduce any evidence in mitigation, or to prepare for the sentencing phase of this death penalty trial rendered him ineffective and required setting aside the death sentence. There was substantial evidence that the defendant was abused as a child, was an alcoholic and that a prior killing (she killed her former boyfriend) was the result of being abused. The decision not to introduce any mitigating evidence was not the result of any strategic planning. There simply was no planning.

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

Counsel’s failure to prepare for the sentencing portion of defendant’s death penalty trial prejudiced him and necessitated a new sentencing trial. No mitigation witnesses were presented despite the availability of the defendant’s mother and other relatives.

Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991)

Counsel’s failure to undertake a reasonable search for mitigating evidence for presentation during the sentencing phase of this death penalty trial was ineffective assistance of counsel. This ineffectiveness was compounded by the attorney’s statement to the trial judge (who, in Florida ultimately sentences the defendant) that no mitigating evidence existed.

Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991)

Defendant’s trial counsel was ineffective in the sentencing phase of this death penalty trial. The attorney offered no evidence and made no opening. His closing argument focused on the history of the death penalty in Georgia. During the closing, the attorney distanced himself from his client, acknowledging that perhaps it was best for the defendant to die – that perhaps the defendant was a worthless person. This was ineffective and prejudicial.

Cunningham v. Zant, 928 F.2d 1006 (11th Cir. 1991)

The defendant was denied effective assistance of counsel at the penalty phase of this death penalty prosecution. Despite the availability of such evidence, the defense failed to introduce evidence of the defendant’s mental retardation, head injury, the death of his father when the defendant was a child, his socioeconomic background, the lack of any schooling beyond elementary school, and his reputation as a good father.

Harris v. Dugger, 874 F.2d 756 (11th Cir. 1989)

Two attorneys representing the defendant in this death penalty trial believed that the other was investigating mitigating evidence in preparation for the sentencing phase. This does not constitute a strategic decision but mere neglect and requires the granting of habeas corpus relief.

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

Trial counsel’s failure to conduct a reasonable background investigation and thus unearth overwhelming amounts of documentary and mitigating evidence was ineffective assistance of counsel. The psychiatric evidence in the existing documents had the potential to totally change the picture of the defendant and his homicidal behavior.

Stephens v. Kemp, 846 F.2d 642 (11th Cir. 1988)

Despite having learned from the defendant’s sister that the defendant had spent time in a mental hospital prior to the shooting, counsel failed to investigate, present any evidence or argueto the jury the issue of the defendant’s mental history. The Eleventh Circuit holds that this is ineffective assistance of counsel.

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

The defense counsel failed to investigate and present available mitigating evidence at the defendant’s death penalty trial. The writ was granted.

Agan v. Dugger, 828 F.2d 1496 (11th Cir. 1987)

The defense counsel spent fifteen hours in preparation for this death penalty case. The Eleventh Circuit holds that an evidentiary hearing on the ineffective assistance of counsel claim was necessary.

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

Both the guilt phase and the penalty phase of the defendant’s conviction are reversed on the basis of ineffective assistance of counsel. The attorney replaced the public defender during the first day of jury selection to the surprise of both the public defender and the defendant. He met with the defendant only 15 minutes prior to the defendant’s testimony in his case-in-chief.