Two ineffective assistance of counsel cases lead off this week. InSmith v. Mullina panel of the Tenth Circuit grants relief on the failure of counsel to adequately investigate. Smith is especially notable as the panel notes the apparently strong case the prosecutor makes for death. Trial counsel's stark admission about his shortcomings appears to have tipped the scales (counsel during the trial stated that he was in over his head & "admitted at the evidentiary hearing that he was unaware Mr. Smith's 'mental state or mental illness could be introduced as mitigation in the second stage'.").

Likewise, inIn re Lucas, the California Supreme Court unanimously reversed on ineffective assistance of counsel where pro bono counsel had been recruited to handle post-conviction (Cooley Godward, includingPaul Renne,Steven FriedlanderandChuck Schaible). The Lucas Court's opinion is quoted below at some length & demonstrates a step by step checklist of what trial counsel & post-conviction counsel must do. As noted in that opinion: "[b]etween the ages of three and seven years, he was beaten regularly, given inadequate food, dressed in rags during Ohio winters, forced to sleep under the bed, disciplined by being burned with a cigarette and by the administration of chili peppers to his genitals, and excoriated because of the circumstances of his birth. His sister was not subject to abuse; petitioner often was fed solely on her leftovers."

Elsewhere, the Supreme Court by 5-4 in a vote, despite a split in circuit courts on the issue, denied certiorari & a stay to the Eleventh Circuit's holding in Hubbard v. Campbell; theHubbardpanel in the court below held that circuit precedent requires abuse of the writ analysis for all competency to be executed claims. In a technical habeas opinion a Fourth Circuit panel inReid v. Johnsonremands to the district court to determine applicability of Nelson v. Campbell. In a similiar techinical opinion a Sixth Circuit panel inKing v. Bellremands on the question of the applicability of equittable tolling.

Over the course of the next few weeks I will be trying to catch up & as always thanks for reading. - k

This edition archived athttp://capitaldefenseweekly.com/archives/040809.htm

EXECUTION INFORMATION

Since the last edition the following executions in the United States:

August

5 James Hubbard Alabama

Pending execution dates believed to be serious include:

August

12Terry Dennis Nevada----volunteer

18 James Hudson Virginia

25 Jasen Busby Texas

26 James Allridge III Texas

26 Windel Workman Oklahoma

September

21 Andrew Flores Texas

22 Philip Workman Tennessee

28 Ricky Dale Newman Arkansas----volunteer

SUPREME COURT

See above.

CAPITAL CASES (Favorable Disposition)

Smith v. Mullin, 2004 U.S. App. LEXIS 15635 (10th Cir 7/29/2004) Despite a strong case by the state -- that resulted in the finding of four aggravating circumstances -- relief granted as to death sentence due to ineffective assistance of counsel.

In re Lucas, 2004 Cal. LEXIS 6772 (Cal 7/26/2004) Counsel held ineffective for a shoddy penalty phase investigation.

Reid v. Johnson, 2004 U.S. App. LEXIS 15855 (4th Cir 8/2/2004) (unpublished) Remand & stay ordered in light of Nelson v. Campbell, 158 L. Ed. 2d 924, 124 S. Ct. 2117 (2004).

King v. Bell, 2004 U.S. App. LEXIS 15902 (6th Cir 8/3/2004) Equittable tolling applicable here as the government sought a delay in producing transcripts relating to voir dire.

CAPITAL CASES (Unfavorable Disposition)

Dennis, by Butko, v. Budge, et al, 2004 U.S. App. LEXIS 15892 (9th Cir 7/30/2004) Next-friend petition denied as "Butko lacks standing, we also lack jurisdiction to stay the execution."

Matheney v. Anderson, 2004 U.S. App. LEXIS 15591 (7th Cir 7/29/2004)(dissent) Relief denied on return from remand for an evidentiary hearing, on issues relating to: "(1) whether Matheney was competent to stand trial in 1990; (2) whether Matheney's attorneys at his trial were ineffective because they did not demand a competency hearing prior to the trial; and (3) whether the state trial court was obligated to hold a competency hearing sua sponte."

Longworth v. Ozmint, 2004 U.S. App. LEXIS 15540 (4th Cir 7/28/2004) Relief denied on claims including: (1) that the State presented "knowingly false" testimony of a deputy sheriff, (2) that one of Longworth's attorneys had an actual conflict of interest, (3) that the State failed to disclose to Longworth exculpatory evidence of a deputy sheriff who believed that before trial Longworth had expressed remorse, (4) that Longworth was, for numerous reasons, deprived of the effective assistance of counsel.

United States v. Davis, 2004 U.S. App. LEXIS 16075 (5th Cir 8/4/2004) Finding error for not charging in the way of indictment all the FDPA aggravating factors, but holding, on the facts of the instant case, such error harmless.

Hubbard v. Campbell, 2004 U.S. App. LEXIS 16008 (11th Cir 8/4/2004) (dissent) Stay denied as the district court lacked jurisdiction to entertain a stay under a putatively amended habeas petition under sec. 2244(b)(3) on issues relating to competency to be executed; Nelson v. Campbell held inapposite.

HOT LIST

Smith v. Mullin, 2004 U.S. App. LEXIS 15635 (10th Cir 7/29/2004) Despite a strong case by the state (that resulted in the finding of four aggravating circumstances) relief granted as to death sentence due to ineffective assistance of counsel. Trial counsel admitted at trial he was in over his head & "admitted at the evidentiary hearing that he was unaware Mr. Smith's 'mental state or mental illness could be introduced as mitigation in the second stage' of trial." Kudos to trial counsel Ken Watson for his dogged fight for his client at trial (despite his being driven nearly bankrupt by the case) & for his candor on his own short-comings at the evidentiary hearing.

Finally, and most significantly, Mr. Smith challenges Mr. Watson's assistance to him at sentencing. While the same constitutional principles that guided our examination of Mr. Watson's guilt stage performance apply to his performance at sentencing, we are particularly vigilant in guarding this right [*49] when the defendant faces a sentence of death. See Williamson v. Ward, 110 F.3d 1508, 1514 (10th Cir. 1997) ("In assessing counsel's conduct, we are mindful of the Supreme Court's observation that 'our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.'") (quoting Burger v. Kemp, 483 U.S. 776, 785, 97 L. Ed. 2d 638, 107 S. Ct. 3114 (1987)). Our heightened attention parallels the heightened demands on counsel in a capital case. See ABA Standards for Criminal Justice 4-1.2(c) (3d ed. 1993) ("Since the death penalty differs from other criminal penalties in its finality, defense counsel in a capital case should respond to this difference by making extraordinary efforts on behalf of the accused.").

"The sentencing stage is the most critical phase of a death penalty case. Any competent counsel knows the importance of thoroughly investigating and presenting mitigating evidence." Romano, 239 F.3d at 1180. Mr. Smith contends Mr. Watson proved woefully incompetent in this regard. According to Mr. Smith, Mr. Watson failed to understand that Mr. Smith's "borderline mental retardation, mental illness, [*50] and organic brain impairment" constituted mitigating evidence to be presented at the penalty stage of Mr. Smith's capital trial. We are cognizant of "the overwhelming importance of the role mitigation evidence plays in the just imposition of the death penalty." Mayes, 210 F.3d at 1288. The district court concluded Mr. Watson's meager presentation of mitigating evidence fell below the constitutional minimum, Smith, No. CIV-98-601-R, at 20, and we agree.

While Mr. Watson was an experienced criminal lawyer, he had never represented a client facing the death penalty prior to his defense of Mr. Smith, had never been involved in death penalty litigation, had never attended any seminars or continuing legal education courses dedicated to capital defense, and had never even handled a case in which psychiatric issues were presented. E.H., vol. VIII, at 10. While Mr. Watson brought in co-counsel "in the days just prior to trial," this case was co-counsel's first capital case as well. Id. at 93. Mr. Watson also enlisted the assistance of the state public defender's office. Id. at 119. The trial judge approved use of these services after Mr. Watson confessed he "didn't [*51] feel competent," that "there was no money" and that the case "deserved more than [he] could give it with [his] limited resources." Id. He suggested to the court: "either take me off this case and give it to the public defender's office or give me some other ideas." Id. The reason for this suggestion is clear. At the evidentiary hearing in federal district court, Mr. Watson testified: "I mean, I had a caseload that I had to work with. I wasn't getting any money . . . out of this case. . . . I was over my head at that point. . . . [It was] something that I had never dealt with before." Id. at 41. After more than a year on the case -- one which generated ten volumes of triial testimony alone -- Mr. Smith's mother had paid Mr. Watson "somewhere in the neighborhood of $ 1,500 to $ 2,000." Id. at 12.

This lack of resources and expertise plus the press of Mr. Watson's other caseload worked to Mr. Smith's detriment. Astoundingly, Mr. Watson admitted at the evidentiary hearing that he was unaware Mr. Smith's "mental state or mental illness could be introduced as mitigation in the second stage" of trial. Id. at 48. The record of the sentencing proceeding fully supports [*52] this assertion. At sentencing, Mr. Watson called Mr. Smith's family and friends to testify that they loved Mr. Smith and that he was a kind and considerate person. See Tr., vol. X, at 33-64. But this testimony encompasses a mere thirty pages out of hundreds in the trial transcript. Mr. Watson made no attempt to explain how this kind and considerate person could commit such a horrendous crime, although mental health evidence providing such an explanation was at his fingertips.

In mitigation, Mr. Watson offered six considerations: (1) "Defendant surrendered himself to the Oklahoma City Police Department," (2) "Defendant informed the Police Detectives of the killings and their details," (3) "Defendant exhibited remorse," (4) "Neither of the female children suffered stab wounds," (5) "The Defendant did not attempt to flee the jurisdiction of the State," and (6) "The life of Roderick Smith has value to his friends and family." O.R., vol. III, at 479. But he then minimized the value of these circumstances:

We set out these six mitigating circumstances for your consideration. We drew on what little we had to draw on, what little has come, what favorable items have come out of [*53] this case that favor Roderick. And we picked six. We picked his family and his friends who can come to you and say, spare his life . . . . Do for him as he would not do for Jennifer. . . . That's all we're asking. And it seems awful small to ask when you've got five victims, but that's the only thing we've got left. . . .

What we're saying is that you have to look at these mitigating factors, however slight they may be. . . .

Most of you said that the death penalty was not apropos across the board, there are certain cases. And this is probably one of those cases.Tr., vol. X, at 92-93 (emphasis added).

The State makes much of the fact that the court incorporated all guilt stage evidence into the penalty phase of Mr. Smith's trial and that Mr. Watson referenced Mr. Smith's mental illness in the second stage. The State's own characterization of the first stage mental health evidence calls into question its worth in the second stage of trial. At the evidentiary hearing, the State asked Mr. Watson:And you didn't understand, necessarily, all the things [the doctors] said. I read them and I'm not sure I understand them. But they seemed to be saying there's [*54] mental issues here, mental problems, and throw a lot of words to the jury? . . . And so they accomplished the purpose. They looked and smelled and tasted like they were experts because they had all the words, and if you asked them a question, they could give you a long answer with lots of long words and the bottom line was they say he's not competent?E.H., vol. VIII, at 107-08. Mr. Watson agreed with this assertion.

Mr. Watson's penalty phase references to mental health evidence were at best belittling of the evidence and at worst damning of Mr. Smith. "I tried to point out with the testimony of the psychiatrist and the psychologist a real defense to this case," Mr. Watson told the jury. "Well, you took that credibility away." Tr., vol. X., at 93. At times, counsel's references to Mr. Smith's mental condition read like an argument for the State:

I submit to you, whether you believe Dr. Murphy, Dr. King who didn't testify or whoever, there is no question that this man has acted bad in the past and there's no doubt in my mind if he's out in society he's going to continue to act bad. But if he's confined behind the bars for the rest of his life they might have doctors there, [*55] and I don't know whether they do or don't, but there's a chance, who will be able to get him to come out.

. . .

I'll also submit to you that, be it right or be it wrong, this person has some type of an abnormality. It's not normal for human beings, male human beings, to go out and want to stab on female human beings. That's not normal behavior. I also submit to you it's not normal behavior to stab people, kill five people and then wanting to go to sleep. That's not normal behavior. . . .

No logical person, no person acting in their right mind . . . would commit this type of act without some driving force.Tr., vol. X, at 85-86, 88, 91. What that "driving force" might have been, however, Mr. Smith's counsel never sought to define. It was left to the prosecution to fill in the blank: Mr. Smith was a "cold-blooded, vicious killer[]." See, e.g., id. at 96, 97, 101, 103, 105, 106, 107.

The mitigation evidence available for presentation was significant. Mr. Smith is completely illiterate. E.H., vol. X, at 388. Even the State's experts and prison doctors determined Mr. Smith's IQ to be in the mentally retarded or borderline mentally retarded range. E.H., vol. XI, [*56] at 675, 694; E.H., vol. XII, at 740. "His understanding and his emotional development and his ability to relate all seem to be fairly similar to what we would perceive to be a 12-year-old child." E.H., vol. X, at 403. When he was quite young, Mr. Smith nearly drowned and the resulting lack of oxygen caused brain damage, or hypoxia. E.H., vol. XI, at 565-66; E.H., vol. X, at 374. At the evidentiary hearing, Dr. Hopewell explained the consequences of this injury:

Brain damage generally affects three different components. One is the component we call intellectual thinking or cognitive. Another component of our development is our motor behavior, motor control. . . . And the third area is . . . emotional control and emotional regulation. The other two areas also affect that.

The brain injury, in general, will cause damage to the centers of the brain and an injury like an hypoxic injury is known to cause damage to the particular and specific centers of the brain that are involved in emotional regulation. These are generally called the limbic areas of the brain and that's what helps to regulate and modulate our emotions.

Injury of those areas can cause all sorts of problems. Primarily, [*57] . . . when a person is stressed or put in a stressful situation, their control over their emotions may break down even further.

In addition to that would be intellectual and cognitive problems of brain injury. . . . For example, intellectually they don't understand what's going on because of the intellectual component of the brain injury, then their emotional regulation is also disrupted, and so their behavior becomes erratic or out of control or aggressive, and any number of emotional problems can result that are usually not consistent with whatever is going on in the environment around them, and that represents the direct cause of the brain injury, as well as an inability to cope or interact with stress or what's going on in the environment in a way that most of us would see to be reasonable or prudent or understandable.E.H., vol. X, at 375-76.

Eva Cates, Mr. Smith's mother, corroborated Dr. Hopewell's conclusion that the near-drowning incident caused Mr. Smith's mental impairments. She testified at the evidentiary hearing that when he returned from the hospital, he was "slower, . . . he didn't act like he understood whatever I said to him." E.H., vol. XI, at 566. These [*58] changes led to taunting from other children, the taunting grew into tormenting, and eventually Mrs. Cates discovered her son was being beaten by his classmates. Id. at 571. As a result, Mrs. Cates kept Mr. Smith out of school for an entire year. Id. He eventually finished high school in a special education program. Id. at 572. He never received a driver's license, Tr., vol. V, at 99, and he lived with his mother until he moved in with his wife and her four children, E.H., vol. XI, at 572. Mrs. Cates understood that Mr. Smith had mental impairments, but was unable to afford any treatment. Id. at 567. In addition to testimony about Mr. Smith's mental condition, Mrs. Cates' evidentiary hearing testimony, unlike that at the penalty phase of his trial, described the unstable home in which Mr. Smith was raised and abuse at the hands of an aunt charged with his care. Id. at 559-65.

Clearly, evidence of Mr. Smith's mental retardation, brain damage, and troubled background constituted mitigating evidence. The Supreme Court has, time and again, cited "the standards for capital defense work articulated by the American Bar Association (ABA) . . . as 'guides to determining [*59] what is reasonable'" performance. Wiggins, 123 S. Ct. at 2536-37 (quoting Strickland, 466 U.S. at 688; Williams v. Taylor, 529 U.S. 362, 396, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000)). Those standards repeatedly reference mental health evidence, describing it as "of vital importance to the jury's decision at the punishment phase." See ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 1.1, 4.1, 10.4, 10.7, 10.11. It was patently unreasonable for Mr. Watson to omit this evidence from his case for mitigation. Mr. Smith has thus cleared Strickland's first hurdle.

The district court concluded Mr. Smith failed to demonstrate prejudice from Mr. Watson's ineffective assistance at the penalty stage. We disagree. In considering Strickland's prejudice prong, "we evaluate the totality of the evidence -- both that adduced at trial, and the evidence adduced in habeas proceedings." Wiggins, 123 S. Ct. at 2543 (italics, quotations, and citations omitted). In order to grant relief, we must discern a reasonable probability that the jury would have concluded the "balance of aggravating and mitigating [*60] circumstances did not warrant death." Mayes, 210 F.3d at 1290. A "reasonable probability" is less than a preponderance of the evidence, but "sufficient to undermine confidence in the outcome." Fisher v. Gibson, 282 F.3d 1283 at 1307 (quoting Strickland, 466 U.S. at 694).

We first note that the mitigating evidence omitted in Mr. Smith's trial is exactly the sort of evidence that garners the most sympathy from jurors. Death penalty litigation expert Dr. Craig Haney testified at the evidentiary hearing that "juries respond to and find mitigating [this type of evidence,] and [they] are more likely to vote for life rather than death sentences in cases where there is . . . clear and clearly presented evidence that the defendant has suffered from some form of mental illness . . . ." E.H., vol. X, at 479-80. The available empirical evidence as to juror attitudes supports Dr. Haney's conclusions. See Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 COLUM. L. REV. 1538, 1559 (1998) (finding evidence of mental retardation and mental illness to be the most persuasive mitigation evidence and to [*61] have practically no aggravating effect); Samuel P. Gross, Update: American Public Opinion on the Death Penalty -- It's Getting Personal, 83 CORNELL L. REV. 1448, 1468-69 (1998) (finding mental retardation to be "much more" mitigating than other potential factors). See also Glenn v. Tate, 71 F.3d 1204, 1211 (6th Cir. 1996) (citing empirical evidence of juror sympathy to claims of "organic brain problems"); Brewer v. Aiken, 935 F.2d 850, 862 (7th Cir. 1991) (Easterbrook, J., concurring) (same).

The district court dismissed much of the mitigation evidence Mr. Smith presented because it "tends to portray [Mr. Smith] as an unstable individual with very little control over either his impulses or his 'alter' personalities" and would have "negated much of the mitigation evidence actually presented to the jury of [Mr. Smith's] good work history and friend's and relatives perception of [Mr. Smith] as a kind hearted person." See Smith, No. CIV-98-601-R, at 23-24. These statements reveal a fundamental misunderstanding of the purpose for which such mitigation evidence would have been presented. The jury already had evidence of Mr. Smith's [*62] impulsiveness and lack of emotional control. n11 What the jury wholly lacked was an explanation of how Mr. Smith's organic brain damage caused these outbursts of violence and caused this "kind hearted" person to commit such a shocking crime.

We have previously emphasized that mitigation evidence "affords an opportunity to humanize and explain." Romano, 239 F.3d at 1180 (quoting Mayes, 210 F.3d at 1288) (emphasis added). In granting relief from a death sentence under circumstances quite similar to those before us, the Supreme Court noted that evidence of borderline mental retardation and childhood privation and abuse is "consistent with the view that [the petitioner's] behavior was a compulsive reaction rather than the product of cold-blooded premeditation." Williams, 529 U.S. at 398; see also Simmons v. Luebbers, 299 F.3d 929, 936 (8th Cir. 2002) (granting relief from a death sentence and noting: "The jury was already aware of Simmons's anger towards women. [A psychiatrist's] report would have introduced the possibility that Simmons's inability to control his violent behavior was caused by childhood trauma and abuse. This information could have been used in his favor at the penalty stage. Instead, the jury was allowed to conclude that Simmons's violent behavior was simply the result of his wicked and aggressive nature.")

The jury in Mr. Smith's [*64] case never received an explanation for his behavior. As described by the State, at the guilt phase Mr. Watson threw medical testimony at the jury and hoped something would stick. E.H., vol. VIII, at 107-08. In the penalty phase, he negated whatever value this mental health evidence had, essentially telling the jury not to consider it. He then presented the sort of "halfhearted mitigation case" derided by the Supreme Court in Wiggins. See Wiggins, 123 S. Ct. at 2538.

The State's case in favor of the death penalty was strong. The jury found four aggravating circumstances as to Mrs. Smith's death and five as to the deaths of each child. O.R., vol. III, at 542-51. But the aggravating evidence in Williams, where the Supreme Court reversed a death sentence for ineffective assistance of counsel, was also strong. As Justice Rehnquist pointed out in dissent over the Court's finding of prejudice:

The murder of Mr. Stone was just one act in a crime spree that lasted most of Williams's life. Indeed, the jury heard evidence that, in the months following the murder of Mr. Stone, Williams savagely beat an elderly woman, stole two cars, set fire to a home, stabbed a man [*65] during a robbery, set fire to a city jail, and confessed to having strong urges to choke other inmates and to break a fellow prisoner's jaw.Williams, 529 U.S. at 418 (quotations omitted). As we noted above, the mitigation case presented by Mr. Watson was pitifully incomplete, and in some respects, bordered on the absurd. n12 We conclude, much as the Supreme Court did in Wiggins, that "had the jury been able to place" Mr. Smith's background, brain damage, and mental retardation -- this compelling explanation for his behavior -- "on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance." n13 Wiggins, 123 S. Ct. at 2543; see also Williams, 529 U.S. at 398 ("The graphic description of Williams' childhood, filled with abuse and privation, or the reality that he was 'borderline mentally retarded,' might well have influenced the jury's appraisal of his moral culpability.").

In sum, Mr. Smith presented evidence sufficient to undermine our confidence in his death sentence. Mr. Smith's counsel failed to afford him a constitutionally adequate representative in the sentencing phase of his trial, and he therefore is entitled to relief under Strickland, 466 U.S. at 694.

In re Lucas, 2004 Cal. LEXIS 6772 (Cal 7/26/2004) Counsel held ineffective for a shoddy penalty phase investigation.

According to the referee, "Mr. LaPan [cocounsel] undertook no investigation of potential evidence in mitigation." Further, "Mr. Lupori, petitioner's investigator, undertook no investigation of potential evidence in mitigation."

At the reference hearing, Patterson explained his strategy. His hope was to give "a human face" to petitioner, to show his redeeming qualities, and to recount his descent into drug abuse. Patterson intended to call petitioner as a witness to testify concerning his remorse and his intoxication at the time of the crimes. When petitioner's wife refused to testify, petitioner also refused, leaving Patterson with only the witnesses named at the Armstrong hearing. These witnesses, Patterson explained at the reference hearing as he had at the Armstrong hearing, could present evidence of only minimal value, and he believed it would be worse to offer these witnesses than to present no evidence at all. Patterson did not pursue further inquiry into evidence provided by petitioner's sister, Gwendolyn, the probation report, or Dr. Vicary. Patterson did not secure Montgomery County juvenile records or otherwise seek to follow up the lead [*35] provided by evidence of petitioner's dependency record; he felt it sufficed that he had questioned petitioner on the matter. In any event, his plan was to have petitioner testify at the penalty phase regarding these matters. Patterson explained that the heart of his strategy for the penalty phase was to reveal petitioner's problems with drugs and show petitioner's remorse and humanity through the testimony of petitioner and his wife; in comparison, Patterson considered the question whether petitioner was born out of wedlock to be "trivial." Although Patterson did not pursue documentary evidence or other leads regarding petitioner's childhood, he intended for petitioner to testify at the penalty phase regarding his childhood. Still, Patterson believed it was a "long stretch" to believe that such things as being punished by a grandmother who kept him under the bed for three days for bedwetting would lead petitioner to murder his neighbors, and Patterson considered this circumstance trivial compared with the facts of the crimes. He did not pursue Dr. Vicary's report, because he believed that LaPan was handling the contact with Dr. Vicary. At the same time, Patterson did not agree that [*36] all the evidence listed by Dr. Vicary actually was mitigating; rather, he believed the thrust of Dr. Vicary's report was devastating both at the guilt and the penalty phases, because it related that petitioner knew what he was doing and committed the crimes in order to obtain money for drugs. In addition, Patterson did not consider particularly mitigating the evidence that petitioner's stepfather and maternal grandfather were alcoholics. He believed that evidence that petitioner's mother placed petitioner with other persons during his childhood was too remote in time to pursue, and he also observed that petitioner's mother told him she had placed him with other families because she could not control him.

The referee outlined inadequacies in the investigation. He determined that "[t]rial counsel relied solely on petitioner's anticipated testimony at the penalty phase. Trial counsel made no effort to obtain records pertinent to petitioner's birth [citation], childhood institutionalization in Ohio and Pennsylvania [citation] or adolescent institutionalization in California [citation]. Counsel made no effort to confirm or otherwise follow up on information in their possession [*37] indicating that petitioner was physically and emotionally abused as a child. [Citation.]"

The referee also found that "[t]rial counsel did not adequately follow up on his interview with Gwendolyn Sue Burgess, petitioner's sister," or with petitioner's brother or sister-in-law. Referring to expert testimony in addition to the evidence noted above, the referee believed that "[t]rial counsel's investigation was not conducted in a manner to be expected of reasonably competent attorneys acting as diligent advocates." Petitioner's expert, Michael Burt, a supervising attorney for the death penalty unit in the San Francisco Public Defender's Office, outlined standards in effect for defense of capital defendants at the time of trial, including a general duty to perform a thorough social history of the accused from various sources well in advance of the penalty phase of trial. The prosecution expert, Judge Robert Parkin, a retired judge and former criminalist and prosecutor, agreed with this characterization of the general standard at the time of trial, although he expressed some ambivalence concerning the ultimate question whether Patterson had performed adequately.

With respect to [*38] the findings concerning Patterson's investigation and the information it produced, respondent objects that the referee omitted evidence and reached faulty conclusions.

Respondent objects that the referee did not list Dennis and Sara Lucas (petitioner's brother and sister-in-law) as persons counsel had spoken to in connection with counsel's investigation of the case in mitigation. Dennis and Sara Lucas denied that Patterson had spoken to them except to brush them off when they offered information. In addition, Patterson did not list them at the Anderson hearing as persons he had contacted. The referee acknowledged that Patterson had had some contact with Dennis and Sara Lucas, but concluded he had not followed up on that contact. We accept the referee's conclusion.

Respondent also objects that the referee did not note that on the eve of the penalty phase of trial, Patterson subpoenaed or attempted to serve a subpoena on Darlene Lucas, Margaret Lucas, Sara Lucas, Dennis Lucas, Verl Lindley, Dan Perez, and Mollie Santistevan. Petitioner essentially concedes the point, although he stresses the tardiness of this action by Patterson.

As the evidence at the reference hearing demonstrated, various readily available official public records confirmed that petitioner was born on November 20, 1949 in Glendale, Ohio; that he was born out of wedlock; that at birth he was surrendered by his mother, Margaret, for adoption; that in August 1950 she requested his return to her care but failed to appear to claim him or to respond to the county welfare board's communications; that he had been in five foster homes in his first two and a half years; that after county authorities sought permanent custody of petitioner, Margaret's new husband, Edward Lucas, objected and in July 1952 petitioner was released to Margaret and Edward's home in Dayton, Ohio; and that Dayton school officials complained many times to local juvenile welfare officials that, when petitioner was in first grade in 1955, he appeared at school beaten black and blue, with welts on his body. School authorities expelled him from first grade in November 1955 because he was disruptive and ran away.

These records reflect that, through the auspices of the Montgomery County, Ohio juvenile dependency court, petitioner received counseling [*50] services in 1956 from the Dayton Child Guidance Center, whose counselors believed he should be removed from his abusive home. Public records indicate that a citizen complaint regarding the abuse suffered by petitioner was sent to juvenile welfare authorities in April 1957.

These records also disclose that in June 1957, when petitioner was seven years of age, his mother brought him to the Montgomery County Children's Services Agency, requesting that it take custody of petitioner and reporting that she could not control him. A report prepared for the purpose of the ensuing dependency proceeding indicates that he had been beaten severely by his parents. Dayton Guidance Center psychiatrists and child welfare workers recommended that petitioner be removed from his home for his own protection. Temporary custody of petitioner as a dependent child was granted to the Montgomery County Child Welfare Board on September 13, 1957, and he was placed in Shawen Acres, a home for abused and neglected children, where his family rarely visited him. His behavior and the recommendation of his psychiatrist caused him to be transferred (still under the court's dependency jurisdiction) to St. Michael's School [*51] for Boys in Pennsylvania in June 1959, but he was asked to leave that institution in 1961 because of poor behavior. He was returned to his family but frequently ran away. He was detained in the Juvenile Detention Center in Dayton as a runaway and "incorrigible." He returned to his family but was detained again for theft. In 1962, at the age of 12 years, he was adjudged a delinquent child and was committed to the Ohio Boys Industrial School, a high security juvenile facility housing the most serious juvenile offenders. At the age of 14 years he was sent to California to join his family and shortly thereafter was made a ward of the court and placed on probation in California for curfew violations. Probation was revoked because he ran away from home, and he was placed in a juvenile correctional camp. After running away from the camp, he was placed in a California Youth Authority (CYA) facility. Upon his release, he suffered revocation of parole for auto theft and running away from home. Petitioner was incarcerated at CYA facilities from February to July, 1965, from November 1965 to July 1966, and from December 1966 to December 1967 and from December 1967 to March 1969.

The nature of [*52] the abuse referred to in these readily accessible records was explained by witnesses who lived with or near petitioner when he was between the ages of four and eight years, and who easily could have been located by defense counsel. For the most part, these witnesses were members of petitioner's family or were related by marriage. In summary, they testified that Edward and Margaret drank to excess and became physically and verbally abusive to one another and to petitioner when he was a child. Petitioner was treated as an outcast within the family because he had been born out of wedlock. He frequently was beaten by his parents. His mother sent him and his younger sister Gwendolyn to live with Edward's mother, Bernice Lucas, for long periods. Bernice treated Gwendolyn well but beat petitioner regularly, taunted him because of the circumstances of his birth, subjected him to cruel discipline, and failed to feed and clothe him adequately.

For example, in testimony confirmed in great circumstantial detail by other contemporaneous witnesses, Helen Garcia testified that as a young adult she spent a great deal of time with the Lucas family when petitioner was between the ages of four and eight [*53] years, because she was then married to petitioner's cousin and resided near petitioner's grandmother Bernice. Garcia testified that Margaret and Edward's marriage was tempestuous and violent and that they engaged in physical violence in the presence of their children, that Edward was a mean, violent alcoholic, and that petitioner was taunted and ill-treated because of the circumstances of his birth. During this period, petitioner lived mostly with Bernice. Garcia frequently observed petitioner being subjected to beatings by Margaret, Bernice, and occasionally other relatives. For example, she observed Margaret beating petitioner with a belt for taking cookies.

Garcia testified that Bernice hated petitioner, beat him, and starved him. Every time Garcia saw Bernice and petitioner together, Bernice was beating him, yelling at him, and abusing him as a "bastard." Sometimes Bernice beat him with a belt or slipper, and sometimes she kicked him. Bernice required petitioner to sleep on the floor behind a stove, under a bed, or on bare springs out on the porch as punishment for bedwetting. Bernice refused to permit him to eat with the rest of the family and required him to eat his sister's [*54] leftovers. Bernice dressed petitioner in tattered clothing in both summer and winter.

Garcia observed that petitioner avoided and seemed afraid of both Margaret and Bernice. Garcia observed burns on petitioner's arm, stripes and bruises on his back from beatings, and sores on his feet that matched the holes in his shoes; she also had heard that Bernice had rubbed chili on petitioner's genitals in response to a bedwetting incident.

Garcia sometimes provided babysitting for petitioner and observed that he appeared starved, hoarded food, and expected her to beat him when she found he had hidden a supply of food. Garcia testified that in contrast to the treatment given petitioner, his younger half sister Gwendolyn, who also resided with Bernice, was well treated. In one incident that Garcia recalled from December of 1956, petitioner, then age seven years, appearing at the window of Garcia's home early in the morning in thin, ripped clothing, stated that his grandmother had thrown him out of the house for wetting his bed. He was shivering and his feet were cracked and bleeding. After fruitless appeals to Margaret, to Garcia's husband, and even to Bernice, Garcia telephoned the local child [*55] protective services agency to report petitioner's situation. She called the agency again a few months later, in 1957, when she observed a burn on petitioner's arm. Garcia was aware that soon thereafter, petitioner was removed from the home and placed in a home for abused and neglected children, Shawen Acres. He remained in various institutions, and thereafter Garcia learned that petitioner's parents and siblings had left Ohio without him. She saw petitioner again in 1983 at a family wedding. Ms. Garcia declared: "I recall the treatment of [petitioner] when he was young. What that kid went through! Larry's childhood was unbelievable. I think an animal might have been treated better than he was. If there was ever a case of how you treat kids when they are little affecting how they are as adults, it is [petitioner's] case." Garcia's sister, Sylvia Robertson, confirmed many of the same instances of abuse and neglect reported by Garcia. Robertson considered petitioner's situation pathetic at the time and observed him eating like a starving animal when he visited Garcia. Robertson stated that defendant had nothing good in his life as a young child, and no one to protect him.

Gwendolyn [*56] Burgess, petitioner's younger sister, added that their mother Margaret shunned petitioner when he was a child, that he began running away at the age of six years, that Gwendolyn believed petitioner had witnessed his mother signing him over to juvenile welfare authorities, and that petitioner thereafter lived in juvenile facilities for much of his childhood. Gwendolyn confirmed that Bernice kept petitioner under a bed for three days as punishment for bedwetting, and that petitioner always was blamed in the family when anything went wrong, while she, Gwendolyn, was favored and treated well. Her father and her maternal grandfather were alcoholics. Petitioner had a drinking problem before he began to consume drugs. Gwendolyn confirmed petitioner's physical and emotional abuse at the hands of Edward, Margaret, and Bernice. Gwendolyn recalled that when she and petitioner resided with Bernice as children, Gwendolyn used to bring him food when he was confined under his bed for bedwetting. Gwendolyn added that Edward and Margaret engaged in screaming matches and violent altercations in the presence of the children. When Edward caught petitioner smoking, he forced petitioner to eat a pack of [*57] cigarettes. Edward told her that petitioner's natural father had been incarcerated and subsequently was executed.

Accounts of petitioner's abuse also were confirmed by the deposition testimony and declaration of his cousins. Richard Welch, a cousin who is two years older than petitioner and also lived with Bernice during the period referred to by Garcia, specified that petitioner suffered frequent beatings at the hands of Bernice, Margaret, and Edward, especially when Edward was intoxicated. Richard observed Margaret punish petitioner by burning him with a cigarette. According to Richard, petitioner exhibited fear of his parents as a child. Jacqueline Lamb, petitioner's older cousin who lived with petitioner at Bernice's house when petitioner was a young child, also confirmed in her declaration that petitioner was treated cruelly as a young child, forced to sleep on the floor behind the stove, and beaten. She said that Bernice treated petitioner "like a dog" and that, unlike the other children who resided with her, petitioner had no protector. When Edward visited he brought treats for Gwendolyn or took her out to eat, but he only abused petitioner. During her less frequent visits, [*58] Margaret pushed petitioner away from her and cursed him. Jacqueline recounted seeing Bernice rubbing chili powder on petitioner's buttocks and genitals to punish him for bedwetting. Jacqueline saw petitioner later when he was 11 or 12 years of age, when he was living with his parents, and she observed that he was "thin as a rail" and covered with bedsores. She stole food to give to him. Another of petitioner's cousins, Larry Lambert, who was born in 1936 and resided near petitioner's family, stated that he recalled hearing petitioner's mother Margaret telling petitioner, when he was a young child, that she wished he were dead and that she had never wanted him. Margaret punished petitioner's bedwetting by making him lie all day in a wet bed and by withholding food. Petitioner had bedsores as a consequence. Margaret beat petitioner frequently when he was between four and six years of age. Petitioner was sent to school dressed in filthy clothing and shoes with holes in them, although the family had enough money for basic purchases. Similarly, an aunt, Mildred Welch, who was acquainted with petitioner's mother Margaret before petitioner was born, testified that Margaret did not want petitioner. [*59] The aunt observed Bernice's cruelty to petitioner on account of the circumstances of his birth, saw Bernice whip him regularly, and saw her direct that petitioner sleep on the floor behind a coal stove. Mildred observed Bernice rub chili pepper on petitioner's buttocks and genitals as a punishment for urinating on himself. When petitioner was a young child and residing with his parents, Mildred saw that petitioner had a long, deep, and infected wound on the back of his head. Mildred confronted Edward about the injury, and he responded, "By God I beat the piss out of him! He wouldn't mind me." Petitioner always seemed very thin, looked as if he did not get enough to eat, and begged for food when he visited her after she moved into her own home.

Connie Cruea, who had been a student teacher in petitioner's elementary school in 1956, stated in her declaration that she recalled that at that time, petitioner was thin and unkempt and came to school bearing bruises.

Dennis Lucas, petitioner's younger brother, stated in his deposition that both Margaret's father and Edward were alcoholics, that petitioner was a protective, loving older brother (10 years Dennis's senior), that petitioner's [*60] wife pressured him into experimenting with cocaine, that drugs changed petitioner significantly, and that his drug use spiraled very suddenly and his condition worsened quickly in the month or several weeks before he was arrested for the murders.

At the evidentiary hearing, petitioner proffered videotaped (and transcribed) deposition testimony of various witnesses, including psychiatrists and psychologists who had treated or observed petitioner in various juvenile facilities and persons who were aware of the abuse that was endemic in the institutions in which petitioner had been placed as a child.

Dr. Howard Fink, who served as chief psychologist at the Dayton Child Guidance Center when petitioner was treated there in 1957, testified in his deposition that records dating from the 1950's indicated that petitioner's history was one of early rejection, abandonment, neglect, and abuse by his family. He believed that the abuse petitioner had received constituted "the kind of care that fosters pathology later on." He confirmed that petitioner had been removed from the family home because of mistreatment and neglect. Dr. Fink believed that petitioner was so damaged by abuse by the time [*61] he was removed from his home at the age of seven years that it was already too late to help him.

Dr. Daniel Waldstein, a psychologist who treated petitioner at the Dayton Child Guidance Center when petitioner was nine years of age, testified in his deposition that children of grossly abusive and neglectful parents were removed from their homes and sent to Shawen Acres. Petitioner's mother was extremely unreliable about visiting petitioner at Shawen Acres.

Dr. Earl Mayo, a Dayton psychologist who worked for the juvenile court, evaluated petitioner in 1962 and at that time reported evidence of gross neglect and early maternal rejection and mistreatment. He referred to petitioner's "life long pattern of deprivation" and "grossly deprived background" and stated that, because of this experience, petitioner's behavior vacillated between extreme dependency and episodes of paroxysmal aggression and hostility. In 1962, Dr. Mayo diagnosed petitioner as having a severe "adjustment reaction of childhood" arising from parental mistreatment and institutional failure.

Dr. Martha Ebrecht, a Dayton psychiatrist who worked for the Dayton Guidance Center, evaluated petitioner in 1962 and concluded [*62] that petitioner had been beaten and rejected by his parents.

Petitioner's probation counselor at the Juvenile Detention Center in Dayton, Darold Askeland, recalled the unusual degree of psychological damage inflicted on petitioner at a young age. He also recalled seeing petitioner eating like a "starved animal," a circumstance Askeland interpreted as an indication of earlier abuse and neglect. Petitioner's mother never visited him at the detention center. Askeland determined that petitioner needed psychiatric treatment in a residential treatment facility, but he was not admitted to such a center. He presented severe behavior problems such as running away and stealing, without being mentally ill. It was this behavior that secured his transfer to the Boys' Industrial School, a placement for which Askeland considered petitioner to be too young. Askeland reported that petitioner was focused on gratifying his own needs, did not know or care about the difference between right and wrong, was impulsive, and could not tolerate frustration.

Concerning conditions at the institutions in which petitioner had been confined, a 13-year resident at Shawen Acres, Oran Fisher, who was an older resident [*63] while petitioner was residing there, testified that the place was "mean," that the supervisors abused the residents, including Fisher, with grotesque punishment for trivial offenses or for no offense at all, and that some residents were subject to sexual abuse. He recounted an appalling tale of extreme cruelty and abuse on the part of adults who resided with and supervised the children, and testified that abuse was commonplace, as was sexual abuse of children by older children. He recalled petitioner as a problem child who would not "go along with the program" but just wanted to "do what he wanted to do." Petitioner's cousin, Larry Lambert, also stated in his declaration that he had been housed at Shawen Acres after his mother died, and that it was an unpleasant place where sexual abuse of children occurred. A former inmate at one of the CYA facilities in which petitioner had been confined spoke of the abysmal conditions there and of physical and sexual abuse that was commonplace at that institution during the period of petitioner's confinement.

In addition, Dr. Christ George, a former director of education at the Boys' Industrial School from 1966-1972, testified in his deposition [*64] that the facility's goal was punishment, not rehabilitation, and that it was a grossly overcrowded warehouse of children without adequate educational or vocational programs. A statement by Dr. Clemens Bartollas, who had studied conditions at the Boys' Industrial School during the 1960's, indicated that the treatment of inmates was "repressive," "brutal," and "sadistic," that young "status offenders" were housed with serious criminals, that he knew of instances of sexual abuse, torture, flogging, and terrorizing of inmates by guards who operated in "goon squads," and that there was racially motivated violence against inmates. As a person who was aware of the conditions at the time petitioner resided at that facility and who had spent his career beginning in 1969 in the Ohio juvenile justice system, Dr. Bartollas's opinion was that an inmate who was 12 or 13 years of age when he arrived would have a "horrible time" with other inmates and would be terrorized by staff and inmates alike. There also was evidence that when the Ohio Youth Services Advisory Board examined conditions at the Boys' Industrial School in 1964, it reported to the Ohio Governor that conditions there were "deplorable, [*65] " calling it an "overcrowded, human warehouse" without resources for any effort at rehabilitation.

In addition, various mental health experts testified, on the basis of their review of the documentary record and their recent evaluations of petitioner, that the severe abuse and abandonment suffered by petitioner at the hands of his family caused various forms of psychological damage that affected him in childhood and adulthood, including exaggerated dependency needs, poor impulse control, alienation, feelings of worthlessness, and vulnerability to drug and alcohol abuse. These experts also identified signs of mild brain damage or organic brain dysfunction and attention deficit disorder.

As to the subject of favorable aspects of petitioner's character, petitioner's employer would have testified that petitioner's behavior changed radically as he increasingly came under the influence of drugs, and that he was highly intoxicated on the evening of the murders. Friends and members of petitioner's family would have testified that petitioner had been a good friend, a reliable and kindly brother and father, a Good Samaritan, and a reliable worker until approximately six months before the commission [*66] of the crimes, when he began to abuse cocaine and amphetamines and entered a downward spiral of mental and physical disintegration and personality change.

Having reviewed the above evidence, the referee found that credible evidence in mitigation was "independently available from multiple sources." Regarding petitioner's childhood, the referee declared: "Adequate investigation would have disclosed the existence of evidence that petitioner was physically and emotionally abused as a child and spent much of his life in institutions in which he suffered abuse and neglect. As a result, he developed mental and emotional disabilities that affected his behavior at the time of the offenses of which he was convicted."

The referee found specifically that reasonably adequate investigation would have disclosed that as a child, petitioner lived in poverty in unsanitary conditions, that his parents engaged in physical and emotional abuse, and that his stepfather, Edward Lucas, was a violent alcoholic. The referee concluded that petitioner was beaten by Edward, Darlene, and Bernice Lucas, that Bernice hated him, that she forced petitioner "to sleep either on the floor behind the stove or on an outdoor [*67] porch on uncovered bedsprings. [Citation.] As punishment for bedwetting, [Bernice] rubbed chili peppers on his genitals." The referee also referred to evidence reflecting that as a child, "petitioner had whip marks and blisters on his back from the beatings he received [citation], burns on his body consistent with having been pushed into a stove [citation], and multiple cigarette burns on his arms and hands." The referee also determined that a reasonably competent investigation would have disclosed that as a child, petitioner was afraid of Darlene and Bernice, and that he was not given enough food. Furthermore, the referee found, reasonable investigation would have produced evidence establishing that petitioner suffered abandonment, severe trauma, and extreme neglect as a child. As for the effect of this abuse on petitioner, the referee found that reasonable investigation would have produced evidence demonstrating that "[t]here was a direct connection between the trauma suffered by petitioner as a child and his development and conduct as an adult."

Regarding petitioner's institutionalization, the referee found that he was housed in Shawen Acres, a home for abused and neglected [*68] children. The referee added that: "Petitioner was physically, sexually, and emotionally abused by his Shawen Acres cottage parents." Further, "in 1957 petitioner was a patient at the Child Guidance Center." The referee also found that "Petitioner was committed to the permanent custody of the State of Ohio on June 1962 and placed in the Boys' Industrial School, a juvenile corrections facility in Lancaster, Ohio." The referee added that petitioner was released from the Boys' Industrial School in 1964 and was incarcerated in various CYA facilities from 1965 to 1969. In addition, "[t]he atmosphere at the various institutions in which petitioner was incarcerated is characterized by intimidation, violence, and sexual and physical abuse. [Citation.] While housed at [the Youth Authority facility at] Preston, petitioner attempted suicide. [Citation.]"

The referee found that "a number of witnesses described petitioner as kind and thoughtful and a good family person whose behavior deteriorated" due to drug abuse.

Defense counsel informed the trial court what evidence in mitigation they would have presented had the court agreed to bifurcation. Counsel "explained that they would have introduced psychological reports and expert testimony demonstrating Wiggins' limited intellectual [*83] capacities and childlike emotional state on the one hand, and the absence of aggressive patterns in his behavior, his capacity for empathy, and his desire to function in the world on the other. [Citation.] At no point did [counsel] proffer any evidence of petitioner's life history or family background." (Wiggins, supra, 539 U.S. at p. 516 [123 S. Ct. at p. 2532].)

The defendant challenged the conviction on the ground that he had received ineffective assistance of counsel. The high court explained that its focus was not on whether counsel should have presented a case in mitigation, but on "whether the investigation supporting counsel's decision not to introduce mitigating evidence of [the defendant's] background was itself reasonable." (Wiggins, supra, 539 U.S. at p. 523 [123 S. Ct. at p. 2536], italics omitted.)

In reviewing the adequacy of defense counsel's legal representation at the penalty phase, the high court explained that defense counsel had turned to three sources for investigation. First, a psychologist tested the defendant and identified some cognitive difficulties and evidence of personality disorder. The psychologist's [*84] report did not reveal anything about the defendant's life history. Second, counsel possessed a presentence investigation report prepared by the division of probation and parole. This report contained a "one-page account of [the defendant's] 'personal history' noting his 'misery as a youth,' quoting his description of his own background as ' "disgusting," ' and observing that he spent most of his life in foster care." (Wiggins, supra, 539 U.S. at p. 523 [123 S. Ct. at p. 2536].) Third, defense counsel also secured Baltimore City Social Services Department records of the defendant's various foster care placements.

The United States Supreme Court determined that counsel's decision not to expand the investigation into the defendant's life history beyond what had been discovered in the probation report and the social services report "fell short of the professional standards that prevailed in Maryland in 1989." (Wiggins, supra, 539 U.S. at p. 524 [123 S. Ct. at p. 2536].) "[S]tandard practice in Maryland in capital cases at the time of Wiggins' trial included the preparation of a social history report." (Ibid.) "Counsel's conduct similarly [*85] fell short of the standards for capital defense work articulated by the American Bar Association (ABA)--standards to which we long have referred as 'guides to determining what is reasonable.' [Citations.] The ABA Guidelines provide that investigation into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence ... .' [Citation.] Despite these well-defined norms, however, counsel abandoned their investigation of petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources. Cf. [ABA Guidelines] 11.8.6, p. 133 (noting that among the topics counsel should consider presenting are medical history, educational history, ... family and social history, [and] prior ... juvenile correctional experience ... .)" (Wiggins, supra, 539 U.S. at pp. 524-525 [123 S. Ct. at pp. 2536-2537].)

In Wiggins, supra, 539 U.S. at page 524 [123 S. Ct. at page 2537], the limited investigation into potential evidence in mitigation not only was unreasonable under then-current general standards for investigation, it "was also unreasonable [*86] in light of what counsel actually discovered" in the defendant's background. The department of social services report revealed that the defendant's mother was an alcoholic, that defendant "was shuttled from foster home to foster home and displayed some emotional difficulties while there; he had frequent, lengthy absences from school; and, on at least one occasion, his mother left him and his siblings alone for days without food." (Ibid.) The United States Supreme Court determined that "any reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice among possible defenses ... ." (Ibid.)

The high court also pointed to the efforts counsel did undertake at the penalty phase proceedings. The record disclosed that counsel's "failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment. Counsel sought, until the day before sentencing, to have the proceedings bifurcated into a retrial of guilt and a mitigation stage. ... In other words, prior to sentencing, counsel never actually abandoned the possibility that they would present a mitigation defense. Until the court denied their motion [*87] [for bifurcation], then, they had every reason to develop the most powerful mitigation case possible." (Wiggins, supra, 539 U.S. at pp. 525-526 [123 S. Ct. at pp. 2537-2538].)

The high court also rejected the idea propounded by the Maryland Court of Appeals that "because counsel had some information with respect to petitioner's background--the information in the PSI [probation report] and the DSS records [social service agency records]--they were in a position to make a tactical choice not to present a mitigation defense. [Citation.] In assessing the reasonableness of an attorney's investigation, however, a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further. Even assuming [counsel] limited the scope of their investigation for strategic reasons, Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing court must consider the reasonableness of the investigation said to support that strategy." (Wiggins, supra, 539 U. S. at p. 526 [123 S.Ct. at p. 2538].)

The United States Supreme Court declared that, in light of what was revealed in the probation and social services agency reports, "counsel chose to abandon their investigation at an unreasonable juncture, making a fully informed decision with respect to sentencing strategy impossible." (Wiggins, supra, 539 U.S. at p. 526 [123 S. Ct. at p. 2538].) The court concluded: "Counsel's investigation into Wiggins' background did not reflect reasonable professional judgment. Their decision to end their investigation when they did was neither consistent with the professional standards that prevailed in 1989, nor reasonable in light of the evidence counsel uncovered in the social services records--evidence that would have led a reasonably competent attorney to investigate further. Counsel's pursuit of bifurcation until the eve of sentencing and their partial presentation of a mitigation case suggest that their incomplete investigation was the result of inattention, not reasoned strategic judgment. In deferring to counsel's decision not to pursue a mitigation case despite their unreasonable investigation, the Maryland [*89] Court of Appeals unreasonably applied Strickland." (Id. at pp. 2541-2542 [123 S. Ct. at pp. 2541-2542].)

As in the Wiggins case, our primary focus is not on evaluating whether, in light of the evidence in their possession, counsel properly decided not to present evidence in mitigation. "Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of [petitioner's] background was itself reasonable." (Wiggins, supra, 539 U.S. at p. 523 [123 S. Ct. at p. 2536].) After careful scrutiny of the record, we conclude counsel's representation fell below an objective standard of reasonableness.

Lead counsel's failure to investigate petitioner's early social history was not consistent with established norms prevailing in California at the time of trial, norms that directed counsel in death penalty cases to conduct a reasonably thorough independent investigation of the defendant's social history--as agreed by respondent's own expert and as reflected in the ABA standards relied upon by the court in the Wiggins case. Patterson also fell short of professional norms in his failure to proceed [*90] in a timely fashion with his investigation; this failure left him without recourse when his penalty phase strategy was upset by the refusal of petitioner and his wife to testify. Furthermore, defense counsel acted unreasonably in failing to conduct a thorough investigation of facts relating to petitioner's social history, considering the suggestive evidence in their possession, including a probation report and the statements of petitioner's sister, both of which should have alerted counsel to the need for further investigation. In addition, counsel's failure to pursue suggestive information in Dr. Vicary's report regarding petitioner's history also appears inconsistent with then-existing standards, which emphasized the importance of uncovering evidence of childhood trauma.

We also examine the reasonableness of the investigation in light of defense counsel's actual strategy, as the Wiggins case directs us to do. As in Wiggins, it does not appear that counsel's failure to investigate was the result of a "reasoned strategic judgment." (Wiggins, supra, 539 U.S. at p. 526 [123 S. Ct. at p. 2537].) Patterson's strategy for the penalty phase appears to have [*91] been confused. The prime focus of the intended defense seems to have been petitioner's potential testimony regarding his difficulties with drug abuse, but that evidence already had been presented to the jury during the guilt phase. Counsel apparently lacked any evidence to explain the genesis of petitioner's problems with drugs. Patterson testified at the reference hearing that he intended to demonstrate petitioner's humanity and problems with substance abuse to the jury, relying primarily upon the testimony of petitioner and his wife, but on the other hand it also appears that petitioner's wife made it clear from the beginning of the case that she did not want to testify on petitioner's behalf and that she also had rather damning things to say to counsel about petitioner.

Patterson's assertion that he intended to have petitioner inform the jury of his troubled childhood is surprising, because counsel seemed to have had little notion of the nature of the events that had occurred in petitioner's childhood and had not conducted an investigation sufficient to determine whether such testimony would invite damning rebuttal evidence. Patterson's testimony indicates that he had not [*92] rejected social history as an element of the case in mitigation, a circumstance rendering even more inexplicable his failure to thoroughly investigate petitioner's social history. At the same time, Patterson's testimony indicates he 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. Finally, Patterson's investigation took place at a very late stage of the proceedings, and as noted above its combined tardiness and superficiality rendered Patterson unable to respond to the apparently unexpected failure of his penalty phase strategy.

Patterson sought to explain his lack of investigation, stating his view that evidence concerning the abuse suffered by petitioner as a child would not make any difference or would not be helpful, because it would lead to the admission of evidence that petitioner had begun his criminal career as a small child--that he was a "career criminal." Counsel asserted that he made a tactical decision not to pursue this line of inquiry, but a tactical decision may be unreasonable if based upon inadequate investigation. ( [*93] In re Jones, supra, 13 Cal.4th at pp. 564-565.) Counsel have an obligation to "pursue diligently those leads indicating the existence of evidence favorable to the defense." (In re Neely (1993) 6 Cal.4th 901, 919 [26 Cal. Rptr. 2d 203, 864 P.2d 474].)

Although "[i]n some cases, counsel may reasonably decide not to put on mitigating evidence, ... to make that decision counsel must understand what mitigating evidence is available and what aggravating evidence, if any, might be admissible in rebuttal." (In re Marquez, supra, 1 Cal.4th at p. 606.) As we stated in the Marquez case, in which we found counsel's cursory investigation of the defendant's background and family in Mexico to be constitutionally inadequate, a thorough investigation is the foundation for a sound trial strategy. In that case we agreed with the referee, who rejected counsel's claim that he had curtailed investigation because "ominous signs" caused him to fear that further information could harm the defendant's case; we also agreed that "reasonably competent counsel would not have stopped at the first sign that an investigation might produce harmful evidence. [Reasonably competent] [c]ounsel would continue until [*94] counsel learned the nature and strength of that evidence and could weigh it against the mitigating evidence counsel had discovered." (Id. at pp. 605-606.) The evidence received at the reference hearing in the present case indicates that counsel did not have a clear or reasonably complete understanding of what mitigating evidence was available or what evidence might be admitted to rebut such mitigating evidence, and that counsel curtailed their investigation out of a vague fear that it might disclose damaging evidence. In so proceeding, counsel failed to perform in a reasonably competent manner.

OTHER NOTABLE CASES

Returning next week.

FOCUS

Returning next week.

FROM AROUND THE WEB

The Death Penalty Information Center(Deathpenaltyinfo.org) notes:

RYAN MATTHEWS IS 115th DEATH ROW INMATE FREED

Jefferson Parish prosecutors today dismissed all charges against former Louisiana death row inmate Ryan Matthews. He became the nation’s 115th death row inmate to be freed according to the Death Penalty Information Center (DPIC). Matthews was sentenced to die in 1999 and spent nearly five years on death row before DNA evidence helped clear him of a murder that occurred just two weeks after his 17th birthday. (The U.S. Supreme Court will consider whether death sentences for 16- or 17-year-olds are constitutional in October.)

“The growing number of innocence cases provides overwhelming evidence that the death penalty is far too risky,” said Richard Dieter, Executive Director of DPIC. “Thank goodness for DNA testing – otherwise Ryan could be dead. One has to wonder about the many cases without such evidence.”

In June 2004, Matthews was released to his family on bond after prosecutors received results from seven DNA profiles completed on the mask, shirt, and glove worn by the gunman in the crime for which Matthews was wrongly convicted. Prosecutors released Matthews and began to reexamine the case after each of the genetic profiles found no trace of Matthews’ DNA on evidence recovered from the murder scene. The DNA tests did link the evidence to another man who is in prison in Louisiana for an unrelated killing that occurred just a few blocks from the murder in Matthews’ case.

Matthews is the third death row inmate to be freed in 2004, and the seventh to be exonerated in Louisiana since 1981. The other 2004 exonerees were Alan Gell of North Carolina (February) and Gordan “Randy” Steidl of Illinois (May). In 2003, 10 persons were freed from death row in the United States, equaling the most exonerations in a single year since the death penalty was reinstated.

For more information about this case, contact Matthews’ attorneys, William Sothern at (504) 251-8346 or (504) 529-5955 and Clive A. Stafford Smith at (504) 338-9867. Those seeking additional information on the DNA tests in this case may contact Barry Scheck or Nina Morrison at The Innocence Project in New York City at (212) 364-5357. Please also contact DPIC for further information.

(DPIC Press Release, August 9, 2004) See Innocence.

ABC's "In the Jury Room" Debuts With Death Penalty Case

ABC-TV begins a new six-part documentary series "In the Jury Room" on Tuesday, August 10 (10 PM Eastern time), with a first-hand look at a death penalty deliberation. Narrated by senior legal correspondent Cynthia McFadden (pictured), the debut captures the deliberations of twelve jurors selected to decide the capital murder case against Ohio defendant Mark Ducic. The program allows the audience to see jurors struggling through the clashes that often accompany death penalty deliberations. "It's fascinating stuff, particularly when the focus latches onto a lone juror holdout and the pressure exerted by others," said a program review in the Hollywood Reporter. Following its Tuesday-Wednesday debut this week, ABC will air the remaining episodes of the series regularly on Tuesday evenings at 10 p.m. (The Hollywood Reporter, August 7, 2004.)

POSSIBLE INNOCENCE: Federal Judge Throws Out Texas Capital Conviction

A federal judge has thrown out Ernest Ray Willis' capital conviction after finding "strong reason to be concerned that Willis may be actually innocent" and that West Texas authorities needlessly drugged him and concealed evidence at his trial. The decision casts doubt on Willis' 1987 conviction for the arson-murder of two women in Pecos County, a crime that another death row inmate, David Long, later confessed he had committed. In his ruling, U.S. District Judge Royal Furgeson said that anti-psychotic medication used incorrectly by prison guards to treat Willis' chronic back pain hampered his ability to defend himself, and that his defense attorneys did not adequately represent him during the proceedings. Furgeson also noted that during Willis' trial, prosecutors suppressed a psychologist's report revealing that Willis was not dangerous, a key issue in death penalty cases. Furgeson stated that Texas' highest criminal court erred when it dismissed these serious concerns and then he reiterated concerns raised by a state trial judge who four years ago ruled that Willis never received a fair trial. Willis remains on death row in Texas while state prosecutors decide whether to appeal the ruling, seek a new trial, or set him free. Officials have until November 18th to make their decision about how to proceed with the case. (San Antonio Express-News, July 27, 2004) See Innocence. See also Representation.

North Carolina Governor Signs Open Discovery Bill Into Law

North Carolina Governor Mike Easley signed a bill into law that requires prosecutors to share their files in all felony cases. The bill was approved in the wake of allegations that prosecutors withheld evidence in the capital murder trial of Alan Gell, who was later exonerated and freed from death row. The new open discovery statute requires district attorneys to open their investigative files in felony cases to defense lawyers who request such access prior to trial. The law requires DAs to provide such things as police investigator notes, defendant and witness statements, test results and a list of probable witnesses for the trial. In return, defense attorneys will have to provide the state with witness lists and details about the grounds on which they plan to defend their client. Dick Taylor of the North Carolina Academy of Trial Lawyers said the law should "result in less surprise, less ambush and more fair trials." He went on to note, "I think it's one of the most significant developments in our criminal procedure for a number of years." Although, when Easley was the state's attorney general, his staff fought attempts by defense attorneys in capital cases to gain access to prosecutors' files, his spokeswoman stated that Easley has long been in favor of open discovery. (Associated Press, August 4, 2004) See Recent Legislative Activity.

Experts on Adolescence Call for End to Juvenile Death Penalty

An op-ed appearing in the Arizona Republic and authored by Dr. Mark Wellek, past president of the American Society for Adolescent Psychiatry, and Carol Kamin, current president of the Arizona Chapter of the Children's Action Alliance, echoed growing national concerns about the culpability of juvenile offenders who face capital charges despite scientific evidence that they may be less culpable than adult offenders. Wellek and Kamin noted:

"American society has many gray areas. Our many cultures, systems and ideologies overlap in small ways and larger ones. However, there is one area that is completely distinct, and that is the law as it applies to children.

"Laws prohibit those under 18 from serving in military combat and on juries, voting, entering into contracts, and buying alcohol or cigarettes, precisely because kids are different - they are physically, emotionally and mentally immature.

"Groundbreaking new science reveals specific evidence of how these differences determine adolescent behavior. Their development is delayed, their minds operate differently, their emotions are more volatile and their brains are anatomically immature.

"There is a confluence of evidence showing that the regions of the brain that adults use to control and influence behavior are still underdeveloped in adolescents.

"For example, the pre-frontal cortex, which is one of the last areas to develop and mature in adolescents, is involved in the control of aggression and other impulses, the process of planning for long-range goals, organization of sequential behavior, consideration of alternatives and consequences, the process of abstraction and mental flexibility, and aspects of memory including 'working memory.'

"3 states, Texas, Virginia and Oklahoma, have executed the majority of juvenile offenders, which account for 80 % of all juvenile executions. In fact, Texas alone was responsible for 60 % of juvenile executions. Obviously, the juvenile death penalty is not widely practiced or even popular. Nationwide polls consistently show that 70 % of Americans are opposed to juvenile executions.

. . .

"In a criminal justice system dependent upon determinations of culpability, scientific findings suggesting juveniles as a class are indeed less culpable call for serious consideration. The U.S. Supreme Court recognized the consequence of adolescent development in its 1988 decision to prohibit capital punishment for minors under age 16.

"31 states, the federal government, the U.S. military and the District of Columbia prohibit the execution of juvenile offenders. Just this year South Dakota and Wyoming signed bills into law banning the practice, and similar legislation has passed in the New Hampshire Senate and House, and the Florida Senate.

"This month, we joined the nation's leading American medical, religious and legal institutions, child- and victim-advocate groups and nearly 50 countries, along with prominent individuals including Nobel laureates and former U.S. diplomats, in submitting briefs to the U.S. Supreme Court, which is scheduled to hear arguments this fall in the case to end the juvenile death penalty.

"The American Medical Association, American Psychiatric Association, American Society for Adolescent Psychiatry and several additional medical associations filed amicus curiae briefs in support of ending capital punishment for minors, and a cross section of more than 420 prominent pediatricians, child and adolescent psychiatrists and neurologists, including such notable physicians as former Surgeon Generals C. Everett Koop and Julius Richmond, and Doctors T. Berry Brazelton and Alvin Poussaint, along with nine physicians from Arizona, submitted the Health Professionals' Call to Abolish the Juvenile Death Penalty to the Court.

"Many prominent child welfare groups, including the Children's Defense Fund, Child Welfare League of America, Voices for America's Children and the Children's Action Alliance of Arizona, submitted a brief as well.

"In their briefs the groups say that the juvenile death penalty violates evolving standards of decency, that it serves no legitimate purpose and is excessive in light of emerging evidence showing the limited capabilities of juveniles, and that the practice is almost universally rejected by the international community.

"The rest of the world, along with most of the country, has recognized the senselessness of the juvenile death penalty. It is our hope that the rest of our country will join these voices."

(Arizona Republic, August 1, 2004)

The U.S. Supreme Court will consider the constitutionality of the juvenile death penalty this fall when it hears arguments in the case of Roper v. Simmons. See DPIC's Roper v. Simmons Web page. See also, Juvenile Death Penalty.

Prosecutor Forgoes Costly Death Penalty Trial

In Alameda County, California, prosecutors announced that they will not seek the death penalty against Richard Dean Wilson because it is unlikely that a jury would return a death sentence. State authories say the decision to seek a life sentence for Wilson avoids a costly death penalty case and saves taxpayer dollars from financing a lengthy trial with an uncertain outcome. Wilson pleaded no contest to the murder of Angela Marie Bledsoe. Prosecutor Jim Anderson noted, "This was the best penalty phase mitigation I have ever seen. We thought...the likelihood of getting a death vote on this guy was small. The best we would have ever gotten was hung jury after hung jury." (Tri-Valley Herald, July 30, 2004) See Costs and Life Without Parole.

Judge Accused of Assisting Prosecution in Capital Cases

The California Supreme Court is asking the state's attorney general's office to explain why Fred Freeman's death sentence should not be reversed on allegations that a now-deceased Superior Court Judge colluded with prosecutors to ensure a capital conviction by eliminating potential Jewish jurors. The Supreme Court issued the show cause order after Freeman's attorneys filed a claim stating that Freeman was denied a fair trial because Judge Stanley Golde allegedly told prosecutors to keep Jews off the jury because they would never vote to send someone to the gas chamber. Prosecutor John Quatman took Golde's advice and later acknowledged in a declaration that it was also "standard practice" at the time of Freeman's trial to exclude black women from death penalty juries. At the time of his death in 1998, Golde was believed to have handed down more death sentences that any other judge in his county and possibly the state. (New York Lawyer, July 30, 2004). See Race.

NEW VOICES: Texas DA Sees "Beginning of the End of the Death Penalty"

In Texas, Jefferson County District Attorney Tom Maness recently noted that the time-consuming and costly nature of capital punishment may lead to its demise. "I think this is the beginning of the end of the death penalty," said Maness after a Criminal District Court Judge recommended that the Court of Criminal Appeals commute the death sentence of Walter Bell to life in prison. On three occassions, Jefferson County spent countless hours of work and hundreds of thousands of dollars to prosecute Bell, who is mentally retarded, a diagnosis that makes him ineligible for the death penalty according the U.S. Supreme Court's 2002 decision in Atkins v. Virginia. Maness added that if Texas juries had the option to sentence those convicted of murder to life in prison without the possibility of parole and the state were to abolish capital punishment, protest from the state's prosecutors would be little more than a grumble. "It's so difficult. It gets more difficult all of the time," said Maness of the time-consuming and stressful work associated with seeking death sentences. Texas is one of two states that has the death penalty and does not offer the alternative sentence of life without parole. (The Beaumont Enterprise, July 24, 2004) See New Voices. See also, Life Without Parole.

NEW RESOURCE: Study Identifies Flaws in Recent Deterrence Research

A new study conducted by Professor Richard Berk of the UCLA Department of Statistics has identified significant statistical problems with the data analysis used to support recent studies claiming to show that executions deter crime in the United States. In "New Claims about Executions and General Deterrence: Deja Vu All Over Again?," Professor Berk addresses the problem of "influence," which occurs when a very small and atypical fraction of the available data dominates the statistical results of a study. He found that this statistical problem is found in a number of recent studies claiming to show that capital punishment deters violent crime. The UCLA study conducted by Berk found that in many instances the number of executions by state and year is the key explanatory variable used by researchers, despite the fact that many states in most years execute no one and few states in particular years execute more than five individuals. These values represent about 1% of the available observations that could have been used by researchers to draw conclusions for earlier studies claiming to find that capital punishment is a deterrent. In Professor Berk's study, a re-analysis of the existing data shows that claims of deterrence are a statistical artifact of this anomalous 1%. (Published on UCLA's Web site, July 19, 2004). Read the study. See Deterrence and Resources.

New York Legislators Put Off Attempts to fix State's Death Penalty Law

Despite efforts by some state leaders to quickly "fix" the state's death penalty statue, opposition from many legislators halted attempts to pass a bill before the summer recess at the end of July. At a legislative conference on the issue, Assemblyman Jeffrion Aubry noted that "a lot of people who spoke were against it." These sentiments prompted Majority Leader Paul Tokasz to announce that legislators were "going to take some time with it" before deciding how to address concerns raised by the court. The Court of Appeals struck down the law in June, saying its sentencing provisions were coercive. Legislators will reconvene in August. (Rochester Democrat and Chronicle, July 22, 2004) Read DPIC's summary of the New York ruling.

DPIC Presents 2004 Thurgood Marshall Journalism Awards

The Death Penalty Information Center honored journalists and producers from the Chicago Tribune, The New York Times Magazine, Frontline, Sound Portraits Productions, and investigative journalist Alan Berlow during its 8th Annual Thurgood Marshall Journalism Awards at the National Press Club on Monday, July 26. The awards honor those journalists who have made an exceptional contribution to the understanding of problems associated with capital punishment. Award-winning human rights attorney Bryan Stevenson, Executive Director of the Equal Justice Initiative in Alabama, gave the program’s keynote address at the awards luncheon. Stevenson is one of the nation’s top public interest lawyers, and in 1995 he was awarded the prestigious MacArthur Fellowship Award. Read the press release. See also, Thurgood Marshall Journalism Awards.

As Alabama Prepares to Execute Elderly, Ill Inmate, Officials Block Clemency Petition

A clemency letter-writing campaign organized by Alabama death row prisoners on behalf of James Barney Hubbard, an ailing 74-year-old man who is scheduled to be executed on August 5th, was recently halted by Department of Correction authorities at Donaldson Prison. Just two months before Hubbard's scheduled execution, Willie Dorrell Minor wrote a clemency petition to Alabama Governor Robert Riley. He planned to have the petition asking Riley to spare Hubbard's life signed by other individuals on the state's death row before submitting it to the Governor. The letter read, in part, "Mr. Hubbard has been ill for several years suffering from prostate cancer, colon cancer and ulcers to name some of his health problems. Given the condition of this elderly and sick man I respectfully submit that the pending execution of Mr. Hubbard is offensive to every civilized Alabamian.This is not an issue of the death penalty per se, but rather of justice, mercy, and morality. I urge you to grant clemency to Mr. Hubbard...Governor Riley, thank you for your mercy and consideration concerning this very important matter." In order to obtain enough copies of his letter to circulate it to other people on the state's death row, Minor had copies made through a death penaltyh group that were then mailed back through the prison mail system so that each death row inmate could receive a copy to sign and send to the Governor. It was during this final step that Department of Correction officials confiscated the package of photocopied letters. To date, the governor has not received a clemency petition on behalf of Hubbard. (Letter from George Jones, July 14, 2004). See Upcoming Executions.

NEW RESOURCE: Tennesee Study Finds Death Penalty Costly, Ineffective

A new report released by the Tennessee Comptroller of the Treasury recommended changes to the state’s costly death penalty and called into question its effectiveness in preventing crime. The Office of Research noted that it lacked sufficient data to accurately account for the total cost of capital trials, stating that “because cost and time records were not maintained, the Office of Research was unable to determine the total, comprehensive cost of the death penalty in Tennessee.” Although noting that, “no reliable data exists concerning the cost of prosecution or defense of first-degree murder cases in Tennessee,” the report concluded that capital murder trials are longer and more expensive at every step compared to other murder trials. In fact, the available data indicated that in capital trials, taxpayers pay half again as much as murder cases in which prosecutors seek prison terms rather than the death penalty. Findings in the report include the following:

• Death penalty trials cost an average of 48% more than the average cost of trials in which prosecutors seek life imprisonment.
• Tennessee District Attorneys General are not consistent in their pursuit of the death penalty.
• Surveys and interviews of district attorneys indicate that some prosecutors “use the death penalty as a ‘bargaining chip’ to secure plea bargains for lesser sentences.”
• Previous research provides no clear indication whether the death penalty acts as a method of crime prevention.
• The Tennessee Court of Criminal Appeals reversed 29 percent of capital cases on direct appeal.
• Although any traumatic trial may cause stress and pain for jurors, the victims’ family, and the defendant’s family, the pressure may be at its peak during death penalty trials.

Read the The Tennessee Comptroller of the Treasury Office of Research’s Report, “Tennessee’s Death Penalty: Costs and Consequences.” See Costs.

National, International Leaders Urge Supreme Court to Ban Execution of Juvenile Offenders

Former U.S. President Jimmy Carter, former Soviet Union President Mikhail Gorbachev, medical experts, and 48 nations are among those who filed friend-of-the-court briefs on Monday (July 19) urging the U.S. Supreme Court to end the juvenile death penalty. The Court is scheduled to hear arguments this fall in Roper v. Simmons, a case that will determine the constitutionality of executing juvenile offenders. The U.S. is one of only a handful of nations around the world that continues to permit the execution of juvenile offenders, and one of only five nations (Congo, China, Iran, Pakistan, and the U.S.) to carry out such executions during the past four years, according to the brief filed by Nobel Peace Prize winners, including Carter and Gorbachev. The Court also received briefs from the 25-nation European Union, Mexico, Canada, and other nations that argued that executions of juvenile offenders "violates widely accepted human rights norms and the minimum standards of human rights set forth by the United Nations." Similar briefs were filed by former U.S. diplomats, the American Medical Association, the American Psychiatric Association, and the U.S. Conference of Catholic Bishops. (Associated Press, July 19, 2004) View the Amicus Briefs. See DPIC's Roper v. Simmons page.

NEW VOICES: League Of Women Voters Cautions Against "Quick Fix" for NY's Death Penalty

The New York League of Women Voters has urged state lawmakers not to attempt a "quick fix" solution to the state's flawed death penalty law. "We now have a unique opportunity to re-examine the use of the death penalty in New York," said Marcia Merrins, president of the League of Women Voters. In June 2004, the New York Court of Appeals declared the state's death penalty unconstitutional. The League of Women's Voter's, which plans to host a series of capital punishment forums throughout New York in the coming months, believes that the ruling offers lawmakers an opportunity to look beyond the immediate concern of the unconstitutional provision and examine other issues that will inevitably emerge despite the passage of patch work legislation. (New York Law Journal, July 15, 2004) See DPIC's Summary of the New York ruling. See New Voices.

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