This holiday edition brings tidings of good news. Three of the capital cases covered this week bring relief in one form or another. InBean v. Calderonthe Ninth Circuit grants relief in the punishment phase of the proceedings and invalidates for improper joinder one of two capital murder convictions. InHynes v. Tomeithe New York Court of Appeals strikes down portions of that states death penalty statute. And rounding out the trifecta of wins, the California Supreme Court grants relief in In re Gay over issues in the sentencing phase of the proceedings. Happy Kwanzaa and a festive New Year to all.

In Focus

Bean v. Calderon Ninth Circuit grants relief on ineffective assistance of counsel in the penalty phase and impermissible joinder of two separate murders. (case was decided 12/15/98 but only web posted in the last few days & I apologize in advance for the length, but the language was to useful to cut).

Bean's penalty-phase defense was disorganized and cursory.

[4] In addition to delaying for over ten months in following the explicit recommendations of two mental health experts, Bean's counsel failed to furnish other necessary information to the experts who testified during the penalty phase, and failed to prepare these experts adequately for their testimony. Dr. Axelrad, the only mental health expert who had reviewed any documents regarding Bean's life history, did not testify. Dr. Weissman, who had earlier requested information about Bean's offenses and his social, medical, and educational history, received no case-related material from Bean's counsel, apart from a written report of the neuropsychological tests Dr. Blunt had performed. Bean's counsel did not contact Dr. Weissman to prepare him for the penalty phase until a day or two before his testimony, when he expended only one or two hours in readying his testimony. At the penalty phase, Dr. Weissman could not definitively opine whether Bean had suffered brain damage and whether Bean was able to appreciate the criminality of his conduct, but could merely testify that Bean suffered from an organic personalty disorder and was moderately defective in intelligence. Similarly, Dr. Blunt, who also appeared at the penalty phase, did not review the facts of Bean's case before testifying on the basis of her last- minute testing that Bean had moderate brain damage. In addition, while voicing her belief that Bean was definitely impaired in his ability to appreciate the criminality of his con- duct, she admitted that she had not studied the relevant California legal standards. In sum, the penalty phase defense was at best woefully ineffective; at worst, deleterious.

[5] In contrast, at Bean's 1996 district court evidentiary hearing, Bean's counsel presented abundant new mental health evidence showing that Bean was functionally mentally retarded; that he suffered from post-traumatic stress disorder, `based upon his childhood experiences; that he was braindamaged; that his drug usage precluded him from forming the intent to kill, rob, or burglarize; and that he was incompetent to stand trial. Drs. Axelrad, Weissman, and Blunt also gave newly definitive and expansive opinions on Bean's mental impairments, based on the information about Bean's social history and other recent testing that was newly available to them. Dr. Axelrad concluded that Bean was unable to function normally and that his probable drug use would have prevented him from forming the intent to kill or rob on the dates of the murders. Rejecting his pre-trial conclusion that Bean was competent, Dr. Weissman opined that Bean had been suffering from serious mental deficiencies at the time of the crimes. Finally, Dr. Blunt reaffirmed her previous finding of brain damage and asserted that Bean had not been competent to stand trial in 1981.

[6] None of the conclusions reached by the experts testifying at the federal habeas hearing were unavailable to trial counsel. Indeed, as Dr. Weissman stated in his affidavit:

Had I been provided the kind of material I now have and that I requested in 1980 following my initial evaluation of Mr. Bean and given an opportunity to review it, I would have testified that Mr. Bean exhihited substantial physical, mental, and emotional impairments that were relevant to each of the above sentencing factors in mitigation.

[7] Failure to present mitigating evidence at the penalty phase of a capital case constitutes ineffective assistance of counsel. See, e.g., Smith v. Stewart, 140 F.3d 1263, 1268 (9th Cir.) ("It is undisputed that trial counsel presented no mitigat- ing evidence at the presentencing hearing . . . ."), cert. denied, 119 S. Ct. 336 (1998); Correll v. Stewart, 137 F.3d 1404, 1412 (9th Cir.) ("[T]he transcript of the pre-sentencing hearing reveals that Correll's attorney failed to call witnesses or present any evidence at the pre-sentencing hearing, although he stated on the record that he knew of people who were will- ing to testify on Correll's behalf."), cert. denied, _______ S. Ct. _______, 1998 WL 635677 (Nov. 9, 1998); Clabourne v. Lewis, 64 F.3d 1373, 1384 (9th Cir. 1995) ("[The defendant's counsel] did not call any witnesses, introduce any evidence of [the defendant's] history of mental illness, or argue any mitigating circumstance besides [the defendant's] mental condition at the time of the offense.").

[8] Although some mitigating evidence was presented, the representation in this case "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. When experts request necessary information and are denied it, when testing requested by expert witnesses is not performed, and when experts are placed on the stand with virtually no preparation or foundation, a capital defendant has not received effective penalty phase assistance of counsel. These failings were not the product of a reasoned, tactical evaluation. To the contrary, the only explanation offered was one of role confusion. Thus, the collective failure to develop a penalty phase presentation can only be characterized as a deficiency in trial preparation, not a strategic decision. See Kenley v. Armontrout, 937 F.2d 1298, 1304 (8th Cir. 1991) ("Failing to interview witnesses or discover mitigating evidence relates to trial preparation and not trial strategy."). Hence, their presentation of their mental health experts' testimony did not arise from the requisite "informed judgment," and constituted ineffective assistance of counsel. See Harris v. Dugger, 874 F.2d 756, 763 (11th Cir. 1989).

[9] Moreover, we have previously recognized an attorney's duty to investigate and present mitigating evidence of mental impairment in the context of a 1979 capital sentencing hear ing, see Evans v. Lewis, 855 F.2d 631, 636-37 (9th Cir. 1988). To be sure, ineffective assistance must be evaluated "from counsel's perspective at the time." Strickland, 466 U.S. at 689. However, the ineffectiveness at issue in this case did not arise from failure to employ novel or neoteric tactics. Rather, it resulted from inadequacies in rudimentary trial preparation and presentation: providing experts with requested information, performing recommended testing, conducting an adequate investigation, and preparing witnesses for trial testimony. These were not alien concepts in 1981, but were an integral thread in the fabric of constitutionally effective representation.

[on a second issue granting relief]

In concluding that Bean suffered a violation of his constitutional rights, we are mindful that prejudice generally does not arise from joinder when the evidence of each crime is simple and distinct, even in the absence of cross-admissibility. See, e.g., Lewis, 820 F.2d at 1071 ("[I]n light of the relative simplicity of the issues and the straightforward manner of presentation, we conclude that the district court did not abuse its discretion in denying the defendant's motion to sever the offenses."); Drew v. United States, 331 F.2d 85, 91 (D.C. Cir. 1964) ("The federal courts, including our own, have, however, found no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials . . . ."). This determination hinges on the assumption that, if properly instructed, a jury can compartmentalize the evidence, rather than considering it cumulatively, see Lewis, 820 F.2d at 1071; Drew, 331 F.2d at 9, an assumption that cannot apply here, where the jury was not properly charged.

[20] This is not a case where acquittal on one joined charge establishes that the jury successfully compartmentalized the evidence. See Featherstone, 948 F.2d at 1503-04 ("[I]t is apparent from the jury's discerning verdict that it followed the court's instructions to regard each count as separate and distinct."); see also Herring, 11 F.3d at 378 ("[T]he jury's acquittal on the . . . conspiracy itself goes far toward answering any claim that corroboration on that count improperly motivated the jury's verdict as to the other charges."); Robinson v. Wyrick, 735 F.2d 1091, 1094 (8th Cir. 1984) ("In the present case, there has been no showing that[the defendant] was prejudiced; the jury could not find him guilty of . . . murder, so it appears that the jurors were able to distinguish the two charges."). In the instant case, no such acquittal offered affirmative evidence of the jury's ability to assess the Schatz and Fox evidence separately.

Capital Cases

Hynes v. Tomei New York's Court of Appeals (state's court of last resort) strikes down portions of that state's death penalty law that made those who plead to murder ineligible for the death penalty but upholds the state's death penalty statute overall due to the severability clause of that statute.

In sum, respondents' attempts to distinguish New York's death penalty statute from the death penalty invalidated by the Supreme Court in Jacksonfail. We recognize that New York's death penalty statute carries a strong presumption of constitutionality, as do all statutes ( see, People v Davis, 43 NY2d 17, 30, cert denied 435 US 998, rearg dismissed61 NY2d 670). However, the New York provisions are unconstitutional for the same reason as the Federal Kidnaping Act: by statutorymandate, the death penalty hangs over only those who exercise their constitutional rights to maintain innocence and demand a jury trial. Thus, Jacksoncompels us to invalidate these provisions, just as it has compelled other State high courts to invalidate their capital plea provisions with the same constitutional infirmity ( see, e.g., State v Johnson, 134 NH 570, 595 A2d 498 [1991]; Commonwealth v Colon–Cruz, 393 Mass 150, 470 NE2d 116 [1984]; State v Frampton, 95 Wash 2d 469, 627 P2d 922 [1981]; State v Funicello, 60 NJ 60, 286 A2d 55 [1972], cert denied sub nom. New Jersey v Presha, 408 US 942; see also, Spillers v Nevada, 84 Nev 23, 436 P2d 18 [1968] [decided prior to the Supreme Court's decision in Jackson]).

By contrast, the death penalty statutes of States that have rejected a Jacksonchallenge, with one exception, provide for the possibility of a death sentence upon a guilty plea ( see, e.g., Tennessee v Mann, 1996 Tenn. Crim. App. LEXIS 508, affd959 SW2d 503, cert denied__ US __, 118 SCt 2376; Conger v Warden, 89 Nev 263, 510 P2d 1359). The exception, Arkansas, avoided a Jacksonproblem because the trial Judge, not the jury, made the final determination of whether the death penalty would be imposed, and because guilty pleas were permitted only after the prosecutor waived the death penalty ( see, e.g., Ruiz & Denton v State, 275 Ark 410, 630 SW2d 44, cert denied 459 US 882).

In re Gay (Chose PDF (S030514.PDF) or text ( S030514.DOC) -- sorry HTML version not available as of yet) California Supreme Court grants habeas relief on claims that counsel during the penalty phase of this trial was ineffective. In so concluding that court held:

This is not a case in which there was a total breakdown of the adversarial process at the penalty phase in which prejudice may be presumed. (United States v. Cronic, supra, 466 U.S. 648, 666.) Petitioner must therefore show that Shinn’s errors were so serious that they deprived petitioner of a fair penalty trial that is “a trial whose result is reliable.” (Strickland v. Washington, supra, 466 U.S. at p. 687.)

To put the possible impact of Shinn’s failings in perspective, we reiterate the summation of aggravating factors which led us to reject petitioner’s incompetent counsel claim on appeal: “The circumstances of the murder, a cold-blooded, premeditated execution of a police officer for the purpose of avoiding arrest and return to custody, was undoubtedly the most influential aggravating factor. The murder and the circumstances of its commission, considered with the evidence of Gay’s assault on his former girlfriend, his commission of arson which seriously injured another former girlfriend, and his attempt to burn another jail inmate,[] reflected the culmination of a continuing and escalating pattern of life-threatening violent conduct by Gay.” (People v. Cummings, supra, 4 Cal.4th at p. 1343.) .

The aggravating evidence included the series of armed robberies of which petitioner had been convicted and evidence of another presented at the penalty phase, the evidence of injury to several of the robbery victims who were pistol-whipped, and evidence of a threat to a jailer and the family of the jailer made by petitioner while being held in the Los Angeles County jail.

Shinn’s incompetence in persuading petitioner to make the statement to the investigating officers led directly to petitioner’s conviction on all of the robbery counts except the repair shop, Designer Florist, and Artistic Bath counts, and to the jury’s consideration of those offenses as aggravating factors. It may have contributed to his conviction on the Designer Florist count and Artistic Bath counts. It would be difficult to conclude that the jury’s consideration of this number of robberies committed shortly before the murder did not weigh heavily in the penalty decision. This is particularly so because the prosecution argued that Officer Verna was killed to prevent the arrest and return of Cummings and Gay to prison, and the prosecutor reviewed the robberies and the violence connected therewith during his penalty phase argument. Had petitioner not been convicted of those robberies, that motivation argument would not have been as strong as applied to petitioner and the injuries suffered by some of the robbery victims could not have been considered as aggravating factors.

In this proceeding petitioner has also established that Shinn failed to investigate, discover, and present evidence that might have given the jury an understanding of the circumstances in his background and the triggering events that preceded the assault and the arson that the People offered as aggravating factors. Had this evidence been offered, these aggravating factors might have carried less weight with the jury, particularly when considered with the evidence that he performed well and was not a threat when in a structured setting.

Here, as in Marquez, petitioner has established that potentially mitigating evidence of which counsel should have been aware was available, but was neither investigated nor offered. That evidence consisted of both petitioner’s background, including the abuse to which he was subjected as a child and the problems arising out of his racial heritage, and expert testimony regarding the impact these factors had on petitioner’s personality and mental health.

Petitioner has demonstrated that counsel’s attempt to obtain potentially mitigating evidence regarding petitioner’s mental state and its possible impact on his conduct at the time of the murder was doomed to failure from the start. When Shinn fraudulently and unethically maneuvered his own appointment to defend petitioner, petitioner lost any possibility of a fully developed penalty phase defense. (See Bus. & Prof. Code, § 6068, subd. (d).) He was saddled with an attorney who abandoned hope before any attempt to craft a penalty defense was undertaken. The apparent capping relationship between Shinn, McBroom, and Weaver led to Shinn’s retention of a mental health expert who accepted only with the understanding that the case would not be complicated and would not place demands on his time. By his own admission, Dr. Weaver made no attempt to do a thorough assessment of petitioner’s mental status and was uninterested in meeting then current standards of forensic psychiatry. His failure to do a thorough assessment of petitioner’s mental health is as much attributable to the instructions given him by Shinn as to his own belief, which coincided with that of Shinn, that the penalty decision was a foregone conclusion because petitioner, a Black man, had killed a White police officer.

Additionally, at the time Shinn represented petitioner, Shinn labored under a second and undisclosed potential conflict of interest - he was being investigated for misappropriation of client funds by the office of the same district attorney who was his adversary in the prosecution of petitioner. Whether Shinn’s failure to aggressively defend petitioner at the penalty phase of the trial is solely attributable to the conflict precipitated by the capping relationship or was influenced by the distraction of the fund misappropriation investigation cannot be determined on this record. The per se rule of prejudice arising from an actual conflict of interest does not apply therefore. (Strickland v. Washington, supra, 466 U.S. at p. 692.) Nonetheless these conflicts contribute to our lack of confidence in the verdict when considered with Shinn’s other failings.

Petitioner has established that Shinn did not personally interview potential witnesses and spoke to those he did put on the stand only briefly in the hallway outside the courtroom. Little effort was made to identify and marshal potentially mitigating penalty phase evidence.

Petitioner has also demonstrated that some of the People’s aggravating evidence, the evidence that he committed several robberies, finds its source in Shinn’s failure to preserve petitioner’s privilege against self-incrimination in the interview with police investigators at which he persuaded petitioner to admit the commission of the robberies. While petitioner had been convicted of a heinous murder, we cannot join the assumption of his attorney and psychiatrist that imposition of the death penalty was a foregone conclusion. A substantial quantity of potentially mitigating evidence was available which the jury did not hear as a result of Shinn’s incompetence.

We recognize that Weaver’s penalty phase testimony did tell the jury of his conclusion that petitioner had a difficult childhood because of his mixed race, did not identify with either race, and had to fight both. He also testified that petitioner’s father had abused him. His testimony did not bring out the full extent of the problems petitioner had experienced or the severity of the physical abuse to which he had been subjected. Dr. Weaver’s brief description of petitioner’s background was not offered as a sympathetic factor or to explain his conduct at the time of the murder, but in the context of an opinion that petitioner reacted positively in a structured environment but had a sociopathic personality and should not be back on the street. Thus, to the extent that Shinn offered Dr. Weaver as part of the strategy of bringing out positive things about petitioner, he did so only to say that petitioner did not cause trouble in jail and would do well in a structured environment. Any mitigating impact of that opinion was tempered, however, by his testimony that petitioner had a sociopathic personality.

In the opinion of the trial judge who heard the witnesses, “little or no” mitigation appeared in the penalty phase evidence offered by Shinn. We agree.

We are unable to put confidence in a verdict of death rendered by a jury that reaches a death penalty verdict for a defendant represented by an attorney who has defrauded the court in seeking appointment, and whose unethical conduct led directly to the retention of a mental health expert whom the attorney agreed would not be called upon to do a thorough assessment of the defendant and who testified that the defendant had a sociopathic personality. Confidence in the verdict is further undermined by counsel’s incompetent conduct contributing to the penalty phase jury’s consideration of evidence that the defendant is a serial robber with a sociopathic personality, and by recognition that the jury did not have the opportunity to consider a substantial amount of mitigating evidence that competent counsel would have presented. We conclude there is a reasonable probability that absent counsel’s numerous failings and the conflicts of interest with which he was burdened, a different penalty verdict would have been reached. We do not, therefore, have confidence in the penalty verdict reached in this case.

Sexton v. French Fourth Circuit denies relief on claims arising out of counsel's failure to have his client participate in his defense. These claims arise out of the right not to testify at trial, right to have counsel challenge the admissibility of key evidence, the right to participate with counsel in voir dire, to decide mitigation strategy, as well as a general attack on the North Carolina sentencing statute.

Sexton's most salient argument on appeal is that his trial counsel were constitutionally ineffective because they forced him to testify at trial. According to Sexton, he was never apprised of his right to waive his right to testify and, given the choice, he would not have testified at trial.

Because the burden of ensuring that a criminal defendant is informed of the nature and existence of the right to testify rests upon trial counsel, the burden shouldered by trial counsel is a component of effective assistance of counsel.SeeBrown, 124 F.2d at 79. Consequently, a criminal defendant's claim that his trial counsel was constitutionally ineffective because trial counsel failed to inform him of his right to testify or because trial counsel forced him to testify must satisfy the two-prong test established inStrickland v. Washington, 466 U.S. 668(1984).SeeBrown, 124 F.2d at 79.

In order to succeed on a claim of ineffective assistance of counsel, a defendant must show: (1) that his counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's deficient performance was prejudicial.Seeid.at 687-88. Under the first prong ofStrickland, a defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness under "prevailing professional norms."Id.at 688. In evaluating counsel's performance, we must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."Id.at 689. Further, we must not engage in hindsight; rather, we must evaluate the reasonableness of counsel's performance within the context of the circumstances at the time of the alleged errors.Id.at 690. To satisfy the second prong ofStrickland, a defendant must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Id.at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome."Id.However, we cannot grant relief solely because the outcome would have been different absent counsel's deficient performance.SeeLockhart v. Fretwell, 506 U.S. 364, 369-70(1993). Instead, we can only grant relief under the second prong ofStricklandif the "result of the proceeding was fundamentally unfair or unreliable."Id.at 369.

While Sexton's claim that he was forced to testify has a hollow ring in light of the state habeas court's findings that he did not express any reluctance or resistance to testifying and that his trial counsel explained, and he understood, that he needed to testify if his account of the encounter was going to be accepted by the jury, his allegation that he was never apprised of his right to waive his right to testify or that the decision to testify ultimately rested with him has some support. The state court record does not indicate that Sexton was apprised of his right to waive his right to testify or that the decision to testify was his. However, we need not decide whether Sexton's allegations that his trial counsel never advised him of his right to waive his right to testify and that the decision to testify was his satisfyStrickland's performance prong because, even assuming they do, Sexton cannot establish prejudice underStrickland.

To satisfyStrickland's prejudice prong, Sexton has to show that the result of his trial was "fundamentally unfair or unreliable."Lockhart, 506 U.S. at 369. Sexton cannot meet this burden because his testimony at trial only helped his case, as it was consistent with his confession that was previously admitted into evidence. Sexton claims that the result of his trial is unreliable because his trial strategy differed substantially from trial counsels' strategy. According to Sexton, he would have successfully moved to suppress his confession and would have decided not to testify, leaving the state to depend on the strength of its remaining case. However, even if Sexton's confession and trial testimony were not admitted, the result of the proceeding is not fundamentally unfair or unreliable.

In summary, the admission of Sexton's confession and testimony at trial in no way rendered the result of Sexton's trial unreliable.Cf.Cooper v. Taylor, 103 F.3d 366, 370 (4th Cir. 1996) (en banc) (holding that admission of a defendant's lengthy, detailed, and tape-recorded confession, which was recognized as determinative of the verdict by the trial court and provided most of the basis of the prosecutor's closing argument, did not have a substantial and injurious effect or influence in determining the jury's verdict in light of two short and poorly recollected prior confessions and certain circumstantial evidence),cert. denied, 118 S. Ct. 83 (1997). In fact, in our view, the admission of Sexton's confession and testimony at trial served to help his case. The only plausible defense for Sexton, in view of the overwhelming evidence that Sexton kidnapped, raped, murdered, and robbed Crews was a defense based on consent. The consent defense was fully developed at trial, but the jury simply rejected it. Without such a defense, Sexton's fate was a foregone conclusion. In short, Sexton has failed to demonstrate that the result of his trial was fundamentally unfair or unreliable and, therefore, has failed to prove that the state court's application ofStricklandwas unreasonable.

Non-Capital Habeas Cases

Creel v. JohnsonFifth Circuit denies relief in this capitally charged, but life sentenced case, on the issues "(1) that a lesser-included-offense instruction was not warranted; (2) that undisclosed perjury of a witness was not material to his case; (3) that the state did not violate his Sixth Amendment right to counsel; (4) that an evidentiary hearing should not be held on his claim of actual innocence; and (5) that his trial counsel did not render ineffective assistance."

Paige v. USEighth Circuit holds that prison system's untimely delay in transferring mail from petitioner's jailhouse lawyer to the petitioner was not a sufficient reason to allow tolling of the one-year statute of limitation under the AEDPA.

Carmichael v. WhiteEighth Circuit holds district court erred in holding in abeyance petitioner's habeas action so that he could exhaust an issue in state court and that an abeyance order is an appealable order

Alexander v. JohnsonFifth Circuit holds that petitioner whose parole was revoked for violation of an unconstitutional state law failed to exhaust his state law remedies but will not abuse the writ if he goes back to state court with the issue for exhaustion purposes and then return to the federal courts for habeas review.

Ludwig v. USASixth Circuit remands petitioner's case to the district court for the determination of whether he had asked trial counsel to perfect an appeal

In re Gray Sixth Circuit denies relief holding that the right to file a successive habeas petition can not be had where the petitioner relies on a mere circuit court precedent that has not been held to have retroactive implications.

Prisoner's Rights and Governmental Misconduct Cases

Wendell v. AsherFifth Circuit holds that despite this terminal AIDS patient/prisoner being denied medical care and being beaten for seeking medical aid, his claims must be denied as he failed to exhaust his administrative remedies only after filing his case (but before response from the state).

Craig v. EberlyTenth Circuit holds that the PLRA/ 28 USC § 1997e(e)'s language of "no civil action may be brought" indicates a prospective application and that on the facts of the given case summary judgment was inappropriate due to conflicting factual allegations.

Requests

The request this week concerns getting some background investigation work done in the Chicago area on two individuals, both members of Chicago street gangs, who were used as witnesses against a subscriber's client at the punishment phase of his trial. One is now an inmate in the Illinois State penitentiary for an armed robbery committed in a manner very similar to the way he testified that the client did things. The other is a former New Orleans streetwalker and child prostitute, now back in Chicago. If you can help feel free to contact me here or at voice (617) 247-0219 so that I can put you in touch with the interested parties.