The impact of the certiorari grant in Ring v. Arizona. again impacts heavily in this edition. Three additional pending executions have been stayed pending the outcome of Ring. In the first of the cases, Bottoson v. Florida, [cert petition] the United States Supreme Court granted a stay this past Tuesday. In Oken v. Maryland the Maryland Court of Appeals granted a stay of Oken's March execution date in what appears to be concern, at least in part, on the potential applicability of Ring. In the third instance Governor Bush of Florida has called off the scheduled execution of Trease who had dropped his appeals. Additionally there are unconfirmed reports of at least one other lower court holding cases in abeyance or granting stays pending the outcome of Ring v. Arizona that have not been sourced at the time of relase of this edition. The Maryland Court of Appeals stay is important as it suggests a potentially greater impact from Ring/King than merely those on death row in Alabama, Arizona, Colorado, Delaware, Florida, Idaho, Montana, and Nebraska rather it suggests every state in which a judge has more than a mere ministerial role (those states in which a jury's role is merely a recommendation). Finally, as the Supreme Court has granted stays in cases other than Ring and as a stay takes five votes to grant instead of the four needed for certiorari, the chances of success for Mr. Ring appears very favorable. As materials relating to Ring and the related Apprendi cases are gathered, they will be posted at http://capitaldefenseweekly.com/apprendiissues.html.

Hot listed this week are two death sentence reversals. In Silva v. Woodford, the Ninth Circuit explores counsel's obligations even where a client puts limits on what he wants presented & even invstigated in terms of mitigation. In North Carolina v. Jonesa a reversal is had on a litany of improper prosecutorial statements in closing.

Continuing on the theme of mitigation and mental health, "Damned if you do, damned if you don't: The use of mitigation experts in death penalty litigation" by Jonathan P. Tomes, University of Texas Law Review, Winter 1997, is again examined this week examining how to find and pay for mitigation experts, as well as basic suggestions for their utilization. Tomes' provides an excellent measuring tool for what constitutes an effective penalty phase presentation.

Since the last edition there have been the following domestic executions:

Executions slated and considered likely for February & March 2002:

This week's edition is at http://www.capitaldefenseweekly.com/archives/020204.htm

HOT LIST CASES

North Carolina v. Jones, 2002 N.C. LEXIS 12 (NC 2/1/2002) Death sentence vacated due to the inflammatory closing by the prosecution.

We now must apply the above standard of review to the case at bar. In this assignment of error, defendant ultimately contends that, over his objection, the prosecutor, in his closing argument, improperly and prejudicially referred to the "Columbine [school] shootings" and the "Oklahoma City [federal building] bombing[]" as examples of national tragedies. [*29] n2 In our view, such remarks cannot be construed as anything but a thinly veiled attempt to appeal to the jury's emotions by comparing defendant's crime with two of the most heinous violent criminal acts of the recent past. Thus, the argument was improper for at least three reasons: (1) it referred to events and circumstances outside the record; (2) by implication, it urged jurors to compare defendant's acts with the infamous acts of others; and (3) it attempted to lead jurors away from the evidence by appealing instead to their sense of passion and prejudice.

The impact of the statements in question, which conjure up images of disaster and tragedy of epic proportion, is too grave to be easily removed from the jury's consciousness, even if the trial court had attempted to do so with instructions. Moreover, the offensive nature of the remarks exceeds that of other language that has been tied to prejudicial error in the past. See, e.g., State v. Wyatt, 254 N.C. 220, 222, 118 S.E.2d 420, 421 (1961) (holding that a prosecutor who described defendants as "two of the slickest confidence men" committed reversible error); State v. Tucker, 190 N.C. 708, 709, 130 S.E. 720, 720 (1925) (holding that it was prejudicial error for a prosecutor to say that the defendants "looked like. . . (professional) bootleggers"); State v. Davis, 45 N.C. App. 113, 114-15, 262 S.E.2d 329, 329-30 (1980) (holding that it was prejudicial for a prosecutor to call the defendant a "mean S.O.B."). As a result, we hold that the trial court abused its discretion when it allowed, over defendant's objection, the prosecutor's closing argument linking the tragedies of Columbine and Oklahoma City with the tragedy of the victim's [*31] death in this case.

Defendant also contends that he was prejudiced by the trial court's failure to intervene and stop the prosecutor from infecting closing arguments with improper name-calling and/or personal insults. Again, we must agree.

The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu. State v. Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80, 120 S. Ct. 95 (1999). In other words, the reviewing court must determine whether the argument in question strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord and: (1) precluded other similar remarks from the offending attorney; and/or (2) instructed the jury to disregard the improper comments already made.

In applying the aforementioned standard to the facts of the case at bar, we initially note [*32] the following: an examination of the transcript reveals that the prosecutor engaged in name- calling during his closing argument; for example, he said to the jury, "You got this quitter, this loser, this worthless piece of -- who's mean. . . . He's as mean as they come. He's lower than the dirt on a snake's belly." As previously noted, in order to constitute reversible error, the prosecutor's remarks must be both improper and prejudicial. Improper remarks are those calculated to lead the jury astray. Such comments include references to matters outside the record and statements of personal opinion. See part I, supra. Improper remarks may be prejudicial either because of their individual stigma or because of the general tenor of the argument as a whole. Here, the prosecutor's characterizations exceed the boundaries of proper argument by incorporating personal conclusions that ultimately amounted to little more than name-calling. What the prosecutor did not do here was argue the evidence and proper inferences and conclusions that addressed the specific issues submitted as to aggravating and mitigating circumstances. Such tactics risk prejudicing a defendant -- and do so here -- [*33] by improperly leading the jury to base its decision not on the evidence relating to the issues submitted, but on misleading characterizations, crafted by counsel, that are intended to undermine reason in favor of visceral appeal.

Moreover, we note that the prosecutor's comment deriding defendant as "lower than the dirt on a snake's belly" is substantively similar to the prosecutor's comments in Smith, 279 N.C. at 165, 181 S.E.2d at 459 (prosecutor, amid numerous improper characterizations in closing argument, referred to the defendant as one who was "lower than the bone belly of a cur dog"). The Court in Smith ultimately concluded that the prosecutor's comments were prejudicial error and ordered a new trial. Id. at 167, 181 S.E.2d at 460-61. Similarly, in the case at bar, we hold that the prosecutor's repeated degradations of defendant: (1) shifted the focus from the jury's opinion of defendant's character and acts to the prosecutor's opinion, offered as fact in the form of conclusory name-calling, of defendant's character and acts; and (2) were purposely intended to deflect the jury away from its proper role as a fact-finder by appealing to its [*34] members' passions and/or prejudices. As a consequence, we deem the disparaging remarks grossly improper and prejudicial.

Silva v. Woodford, 2002 U.S. App. LEXIS 1563 (9th Cir 2/1/2001) Counsel's failure to conduct an investigation into defendant's familial history and psychiatric background even where the client sought not to have such evidence admitted at trial was a violation of the Sixth Amendment.

Our holding is amply supported by both Supreme Court and circuit precedent. As mentioned earlier, in Williams, the Court recently held that a habeas petitioner was denied his right to effective assistance of counsel when his attorneys failed to investigate and present substantial mitigating evidence during the penalty [*43] phase of his capital murder trial. The Court reached this conclusion in spite of the respondent's claim that trial counsel reasonably chose to emphasize the fact that the petitioner had voluntarily confessed to the murder in question, instead of presenting other mitigating evidence.

Williams involved a Virginia man who was incarcerated on an unrelated charge and then spontaneously confessed to an unsolved murder. He was convicted of robbery and capital murder by a jury, and his trial counsel offered little meaningful mitigating evidence in his behalf during the ensuing sentencing phase of the trial. n13 See 529 U.S. 368-69. Although the prosecution presented evidence of Williams' long criminal history and other aggravating factors, Williams' trial counsel chose to rest on the fact Williams had turned himself in voluntarily for crimes that the police would otherwise not have solved. Id. at 373. The jury subsequently returned a sentence of death.

Applying the Strickland framework, the Court concluded that such performance was constitutionally deficient. Noting that counsel did not begin to prepare for the sentencing phase until one week before the trial, the Court faulted counsel for failing "to conduct an investigation that would have uncovered extensive records graphically describing Williams' nightmarish childhood, not because of any strategic calculation but because they incorrectly thought that state law barred access to such records." Id. at 395. Included in such records was evidence that Williams' parents had been imprisoned for the criminal neglect of Williams and his siblings; that Williams had been severely and repeatedly beaten by his father; and that he had endured a stint in an abusive foster home while in the custody of the social services bureau during his parents' prison term. Id. Counsel also failed to introduce available evidence that Williams suffered from borderline mental retardation (resulting in a failure to advance beyond the sixth grade in school), and had exhibited exemplary behavior while in prison. Id. at 396. Taken together, these omissions amounted to [*45] constitutionally deficient performance in that" the failure to introduce the comparatively voluminous amount of evidence that did speak in Williams' favor was not justified by a tactical decision to focus on Williams' voluntary confession." Id. In sum, such omissions "clearly demonstrate that trial counsel did not fulfill their obligation to conduct a thorough investigation of the defendant's background." Id. at 396 (citing ABA Standards for Criminal Justice 4-4.1).

It is equally clear from our circuit precedent that an attorney's failure to investigate, during either the guilt phase or the sentencing phase of a capital trial, can amount to constitutionally deficient performance. We recently held, in Ainsworth v. Woodford, 268 F.3d 868 (2001), that defense counsel's penalty phase performance was constitutionally deficient where counsel "failed to adequately investigate, develop, and present mitigating evidence to the jury even though the issue before the jury was whether [the defendant] would live or die." Id. at 874. The district court granted Ainsworth's habeas petition regarding claims of ineffective assistance during the [*46] penalty phase of his capital trial for the murder, rape, and robbery of Seng Huynh. This court affirmed the district court's ruling. Ainsworth's counsel admitted in deposition testimony that he had "abdicated the investigation of Ainsworth's psychosocial history" to one of the defendant's relatives. Id. Counsel also failed to obtain documents containing crucial mitigating evidence as well as the police reports produced by the prosecution to make its case at sentencing. Id. Mitigating evidence available through the ignored documents and unadduced witness testimony included evidence of Ainsworth's "troubled childhood, his history of substance abuse, and his mental and emotional problems. " Id. at 875. In affirming the ruling of the district court, we held that defense counsel's deficient performance prevented the jury from having knowledge of the "development of the person who committed the crime" and deprived Ainsworth of "the individualized sentence required by the Constitution." Id. at 878.

In Bloom v. Calderon, 132 F.3d 1267 (9th Cir. 1997), a case with several important parallels to this one, we also found that a trial attorney's [*47] failure to obtain and prepare a psychiatric witness was constitutionally deficient. Bloom involved "yet another case of severe childhood abuse ending in tragedy," id. at 1269, in which a son killed his father, stepmother, and stepsister. Bloom's defense was based in part on the theory that he lacked the necessary mental capacity for premeditation, malice, and the intent to kill. Id. at 1270. He also attempted suicide while awaiting trial. Id. at 1271. Nonetheless, his trial counsel did nothing to procure the services of a psychiatric expert until a few days before trial, and then failed to provide him with necessary and available data which would have assisted the expert in his subsequent evaluation and trial testimony --including an outline of the theory of defense. Id. at 1270. As a result, the psychiatrist, who constituted the sole defense expert witness, produced a severely damaging psychiatric report which the prosecution used effectively in cross-examination and in closing argument. Id. at 1271.

We found that such performance was constitutionally deficient, in that counsel had failed to [*48] furnish the expert with easily available information such as a social history, a prior psychiatric report, and jail medical records. Id. at 1277. Although we acknowledged that under Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995), "counsel does not have a duty 'to acquire sufficient background material on which an expert can base reliable psychiatric conclusions independent of any request for information from an expert,' "we concluded that the record did not support the district court's finding that the expert had not requested such information. n14 Bloom, 132 F.3d at 1277 (quoting Hendricks, 70 F.3d at 1038). Indeed, we noted that Bloom's trial counsel never claimed that the expert failed to request such information, and looked with skepticism on counsel's repeated averrals that he could not recall details of his representation during the evidentiary hearing. n15 Id. As a result, we found counsel's performance to be deficient.

Similarly, in Hendricks, we found trial counsel ineffective in failing to investigate and present mental health evidence in mitigation during the penalty phase. Although we did not find Hendricks' trial counsel's performance deficient in the guilt phase --given that he conducted adequate investigation, hired two mental health experts to look into mental defenses, and reasonably concluded that none were available, see 70 F.3d at 1036 --we faulted counsel for failing to conduct an investigation directed at developing mitigating evidence in the penalty phase, and concluded that there was no evidence that counsel "made a strategic choice that obviated the need to investigate," id. at 1043. Instead, counsel decided to plead for mercy, not because presenting mitigating evidence would open the door to damaging rebuttal evidence, but because pleading for mercy [*50] was the strategy employed in the only other penalty hearing in which counsel had participated. Id. To be sure, "begging for mercy is not incompetence per se .... However, where counsel is on notice that his client may be mentally impaired, counsel's failure to investigate his client's mental condition as a mitigating factor in a penalty phase hearing, without a supporting strategic reason, constitutes deficient performance." Id.

Our holdings in Ainsworth, Bloom, and Hendricks are illustrative but not exhaustive of the breadth of a criminal defendant's constitutional protection against his attorney's failure to investigate mitigating evidence when defending his client against a capital sentence. See also, e.g., Jackson v. Calderon, 211 F.3d 1148, 1162 (9th Cir. 2000) (holding that by" failing to prepare and investigate for a penalty defense, counsel clearly fell below the requisite standard of competence") (citation omitted); Bean, 163 F.3d at 1078-89 (finding trial counsel ineffective for, among other things, failing to investigate penalty-phase issues and furnish mental health experts with necessary information to prepare for [*51] their testimony); Deutscher v. Whitley, 884 F.2d 1152, 1159-62 (9th Cir. 1989) (holding that trial counsel's failure to investigate and present mitigating evidence relating to Deutscher's past psychiatric treatment or family background constituted ineffective assistance at the penalty phase), aff'd sub nom. Deutscher v. Angelone, 16 F.3d 981 (9th Cir. 1994); Evans v. Lewis, 855 F.2d 631, 636 (9th Cir. 1988) (finding ineffective assistance where in spite of documents plainly indicating that Evans had a history of mental problems, including the defendant's California conviction records and a presentencing report, "counsel conducted no investigation to ascertain the extent of any possible mental impairment" and subsequently presented no mitigating evidence during the penalty phase); cf. Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (holding that trial counsel was deficient during the guilt phase for "failing to conduct even the minimal investigation that would have enabled him to come to an informed decision about what defense to offer," and that "describing [counsel]'s conduct as 'strategic' strips that [*52] term of all substance").

The state cites a number of cases in support of its position that Buckwalter's performance was not deficient under the circumstances. See Burger v. Kemp, 483 U.S. 776, 97 L. Ed. 2d 638, 107 S. Ct. 3114 (1987); Darden v. Wainwright, 477 U.S. 168, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (1986); Babbitt v. Calderon, 151 F.3d 1170 (9th Cir. 1998); Coleman v. Calderon, 150 F.3d 1105 (9th Cir. 1998); Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir. 1987). In all of these cases, the court declined to find ineffective assistance in the context of an attorney's failure to present guilt-or penalty-phase evidence. Critically, however, in each of these cases, trial counsel had already investigated and prepared such evidence beforehand so as to make an informed decision about trial strategy, and had reasonable grounds for electing not to present such evidence at trial.

In Burger, for example, the Supreme Court held that a reasonable basis existed for counsel's decision not to develop and present, at either of two sentencing hearings, evidence of his client's troubled family background. Burger [*53] was convicted of robbing and murdering a cab driver while stationed in the army in Georgia. Burger's trial counsel decided for a variety of reasons that it would be unwise to present evidence of his client's unfortunate childhood in mitigation, since potential witnesses such as family members or friends could also testify to damaging facts about his client. 483 U.S. at 790-91. Counsel believed that it would also be unwise to put the defendant himself on the witness stand, since psychological reports indicated that he never expressed any remorse about his crime and might even appear to a jury to enjoy discussing or even bragging about the murder. Id. at 791.

Significantly, however, in contrast to Silva's case, Burger's counsel had conducted some basic investigation prior to reaching the decision not to look into his client's family history any further. Based on psychologists' reports and interviews with family members and friends, Burger's attorney "made the reasonable decision that his client's interest would not be served by presenting this type of evidence. " Id. at 790-91. Although the Court acknowledged that "the record at the [*54] habeas corpus hearing does suggest that [counsel ]could well have made a more thorough investigation than he did, " id. at 794, "counsel's decision not to mount an all-out investigation into petitioner's background in search of mitigating circumstances was supported by reasonable professional judgment," id. (emphasis added). In sum, "we have decided that 'strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on the investigation.' "Id. (quoting Strickland, 466 U.S. at 690-91) (emphasis added). Here, no such judgment was --or could have been --made.

In Darden, meanwhile, the Court held that trial counsel's decision to forego the presentation of mitigating evidence in the penalty phase and rely instead on a simple plea of mercy was not constitutionally deficient, in that it rested on a reasonable determination that to try and present mitigating evidence would open the petitioner up to damaging rebuttal testimony. Darden, 477 U.S. at 186-87. Citing the Strickland adage that "judicial scrutiny of counsel's [*55] performance must be highly deferential," Strickland, 466 U.S. at 689, the Court elaborated at length on the reasons why Darden's attorney plausibly elected not to present a variety of potential mitigating evidence. Darden, 477 U.S. at 184-87. Furthermore, in contrast to Silva's case, the Court noted that Darden's claim that his attorney had failed adequately to investigate and prepare for mitigation was "without merit," in that Darden's trial counsel "engaged in extensive preparation prior to trial, in a manner that included preparation for sentencing." Id. at 184; cf. Coleman, 150 F.3d at 1113-14 (holding that Coleman's trial counsel did not fail to properly investigate physical evidence implicating his client during the guilt phase).

Within this circuit, Babbitt represents another instance where a court upheld the competence of trial counsel against charges that they failed to unearth and present relevant evidence during both the guilt and penalty phases of a capital trial. Babbitt involved a habeas petitioner's claim that trial counsel had failed to minimally investigate and present evidence pertinent to [*56] a Post Traumatic Stress Disorder ("PTSD") defense, as well as related evidence about Babbitt's life and family history. 151 F.3d at 1174. We refused to grant habeas relief on the grounds that counsel's performance was neither deficient nor prejudicial. Id. Once again, however, in contrast to the present case, we emphasized that "counsel did far more than a mere cursory investigation." Id. at 1176. Quoting from Matthews v. Evatt, 105 F.3d 907, 920 (4th Cir. 1997), we stated that "'counsel is not deficient for failing to find mitigating evidence if, after a reasonable investigation, nothing has put the counsel on notice of the existence of that evidence.' " Babbitt, 151 F.3d at 1174 (emphasis added). No such investigation occurred here.

The case that on the surface appears most helpful to the state is Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir. 1987). Campbell involved the habeas appeal of an inmate convicted of three counts of aggravated murder and sentenced to death. During the pre-trial investigation, Campbell "specifically requested his attorneys not to contact members of his family." [*57] Id. at 1463. Drawing from Strickland's admonition that "the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions," 466 U.S. at 691, we held that given this demand, Campbell's trial counsel was not deficient in abiding by Campbell's wishes. Campbell, 829 F.2d at 1463. Thus, Campbell seems at first glance to justify Buckwalter's actions in abandoning his investigation of Silva's background.

However, Campbell did not pronounce a per se rule that a client's wishes require or even justify the abridgment of trial counsel's investigation; rather, "the client's wishes are not to be ignored entirely." Id. (emphasis added). This hardly constitutes a bright-line command that clients' wishes are to be paramount in this area. Moreover, critically, we again found that "the record indicates ...that Campbell's attorneys conducted a reasonable investigation" prior to acquiescing in their client's wishes. Id. In contrast to Buckwalter, Campbell's trial counsel was therefore aware of the potential mitigating factors which could have been introduced during sentencing, [*58] such as the fact that Campbell's father was an alcoholic; that Campbell had been the victim of child abuse; that he had a history of medical and substance abuse problems; and that he may have attempted suicide on one occasion. Id.

Indeed, in his habeas appeal, "Campbell [did ] not suggest any potential mitigating evidence that could have been uncovered through a more thorough investigation." Id. Instead, Campbell's refusal to grant his attorneys access to interview his family and friends "was ...consistent with the professional judgment of his attorneys that such interviews were unnecessary and would not have made any difference in the context of the case." Id. For under the prevailing laws of Washington state, if the defense chose not to put on any mitigating evidence, the prosecution was constrained to producing only such aggravating evidence as was related to Campbell's prior criminal record. Given the strong possibility that the introduction of certain types of mitigating evidence by the defense could lead to damaging rebuttal evidence of Campbell's violent past and sordid criminal record, his counsel exercised reasonable judgment in refraining from introducing any [*59] evidence whatsoever during the penalty phase. Id. at 1463-64.

Such facts are noticeably absent here. Buckwalter conducted no investigation whatsoever into Silva's past and also failed to even minimally assist in the preparation of possible mental defenses related to psychiatric disorders or substance abuse. His trial "strategy" was based entirely on an overbroad acquiescence in his client's demand that he refrain from calling his parents as witnesses.

As in Williams, where trial counsel attempted to characterize his failure to investigate as a tactical decision to focus on the defendant's voluntary confession, Buckwalter's decision to altogether abandon the investigation cannot be justified as a legitimate trial strategy. As we noted in United States v. Span, 75 F.3d 1383, 1389 (9th Cir. 1996), an attorney's performance is not immunized from Sixth Amendment challenges simply by attaching to it the label of "trial strategy." Rather, "certain defense strategies may be so ill-chosen that they may render counsel's overall representation constitutionally defective." United States v. Tucker, 716 F.2d 576, 586 (9th Cir. 1983). While [*60] it is true that, according to Strickland, "the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions," and that "what investigation decisions are reasonable depends critically on such information," Buckwalter's blanket decision to forego all investigation was patently deficient for the reasons elaborated above. n16

Ultimately, then, we conclude that Buckwalter's abandonment of the investigation into Silva's background--including his family, criminal, substance abuse, and mental health history --was unreasonable in that it did not meet professional norms prevailing at the time of Silva's trial, and that it therefore amounted to constitutionally deficient performance under the totality of the circumstances. "Counsel must, at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client," and "[a] lawyer has a duty to investigate what information ...potential eye-witnesses possess[], even if he later decides not to put them on the stand." Sanders, 21 F.3d at 1456-57 (internal quotation marks and citations omitted). Buckwalter could not make a reasoned tactical decision about the trial precisely because "counsel did not even know what evidence was available." Deutscher, 884 F.2d at 1160. As we stated in Sanders, "ineffectiveness is generally clear in the context of complete failure to investigate because counsel can hardly be said to have made a strategic choice when s/he [sic] has not [*62] yet obtained the facts on which such a decision could be made." Sanders, 21 F.3d at 1457 (quoting United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)).

Put another way, even if he could not call Silva's parents as witnesses, Buckwalter still had a duty to determine what evidence was out there in mitigation in order to make an informed decision as to how to best represent his client. Indeed, if a client forecloses certain avenues of investigation, it arguably becomes even more incumbent upon trial counsel to seek out and find alternative sources of information and evidence, especially in the context of a capital murder trial. In addition, Buckwalter had a concomitant duty to try to educate or dissuade Silva about the consequences of his actions --neither of which he attempted to do.

2. Prejudice

Having found Buckwalter's performance deficient, we now analyze it for prejudice. As we stated in Deutscher: "Although we do not presume prejudice in a case such as this, we must be especially cautious in protecting a defendant's right to effective counsel at a capital sentencing hearing." 884 F.2d at 1161; see also Coleman, 210 F.3d at 1050 [*63] ("Because a death sentence is qualitatively different from other forms of punishment, there is a greater need for reliability in determining whether it is appropriate in a particular case.") (citations omitted).

As discussed above, because of Buckwalter's complete abandonment of the investigation, he failed to present substantial and potentially compelling mitigating evidence during the penalty phase of the trial relating to Silva's childhood, mental illnesses, organic brain disorders, and substance abuse. n17 We find that especially given the prosecution's emphasis on the utter lack of mitigating evidence during the penalty phase, n18 as well as the jury's consideration of three improper special circumstances, Buckwalter's failure to investigate was profoundly prejudicial.

In the Williams case, the Court found that Williams was prejudiced by trial counsel's failure to investigate, in that

when added to the voluntary nature of his confessions, the unpresented evidence regarding Williams' childhood" might well have influenced the jury's appraisal of his moral culpability." 529 U.S. at 398. Faulting the Virginia Supreme Court for failing to reweigh the totality of the available mitigation evidence that had been adduced at trial and in the state habeas proceeding against the evidence in aggravation, the Court found that counsel's deficiencies "raised 'a reasonable probability that the result of the sentencing proceeding would have been different' if competent counsel had presented and explained the significance of all the available evidence." Id. at 399.

Our recent decision in Jackson v. Calderon, 211 F.3d 1148 (9th Cir. 2000), offers useful parallels with respect to evaluating the prejudice that may have [*65] resulted from Buckwalter's failure to investigate and prepare family history, psychiatric and drug-use evidence for the penalty phase. Jackson was convicted in California of first-degree murder and sentenced to death for killing a police officer while under the influence of PCP. Jackson's trial counsel invested only two hours of investigation for the penalty phase before the trial began, and did not ask for a continuance because he purportedly never expected the trial to reach the penalty phase. Id. at 1161-62. Notably, as a result of such deficient representation, the defense was unable to present any medical testimony during the penalty phase, nor prepare evidence regarding Jackson's addiction to PCP and the consequences of such addiction. Id. at 1161-63. We held that the lack of such testimony was highly prejudicial, since one of the primary factors to be considered in mitigation was Jackson's clouded mental condition brought on by drug use. Id. at 1163. In addition, we found that counsel's failure to investigate and present substantial mitigating evidence from the petitioner's social history was prejudicial; a report presented [*66] by Dr. Jay Jackman n19 during Jackson's post-conviction proceedings --which documented Jackson's history of child abuse, neglect, family instability, and mental illness --"presented a very different picture of Jackson than any the jury was allowed to consider. "Id.

Similarly, in Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998), we held that the petitioner was prejudiced by his trial counsel's deficient performance during the penalty phase. Bean involved a death row inmate's contention that, among other things, his trial counsel was incompetent in failing to prepare and furnish necessary information (such as the defendant's social, medical, and educational history, and materials relating to the prosecution's case against Bean) to two mental health experts that counsel had retained before trial. Id. at 1078-79. As a result, the experts were unable to definitively opine as to whether [*67] Bean suffered from brain damage and other mental disorders. We found that such omissions were sufficiently prejudicial to warrant vacating Bean's sentence. Although the defense did end up putting on the two expert witnesses, "the experts' lack of preparation and the limited informational foundation for their conclusions severely undercut their utility to Bean's penalty-phase defense. " Id. at 1080-81. Indeed, "the family portrait painted at the federal habeas hearing was far different" from that depicted at trial, as "the jury which committed Bean to death had no knowledge of the indisputably sadistic treatment Bean received as a child, including repeated beatings which left a permanent indentation in his head." Id. at 1081. For these reasons, we held that trial counsel's deficiencies undermined confidence in the death sentence. See also Clabourne v. Lewis, 64 F.3d 1373, 1385-87 (9th Cir. 1995) (finding trial counsel failed to provide expert witnesses with materials they needed to provide an accurate profile of the defendant's mental health, and that such "deficient performance was decidedly prejudicial").

As in Bean, here it is [*68] important to emphasize that in spite of the undeniably horrific circumstances surrounding the deaths of Thorpe and Craig, "this is not a case in which a death sentence was inevitable because of the enormity of the aggravating circumstances." Bean, 163 F.3d at 1081. Although the jury found true four special circumstances, three of these were subsequently invalidated by the California Supreme Court. Furthermore, although comparisons are inherently problematic between trials of accomplices, Joseph Shelton received a sentence of life without parole at his trial (which was later reduced to life imprisonment on direct appeal), even though he was convicted of both murders. Cf. Mak, 970 F.2d at 621 ("Nothing in Strickland suggests that a proportionality review is inappropriate when considering prejudicial effect ...."). For all these reasons, we conclude that the above-mentioned deficiencies in Buckwalter's performance were sufficiently prejudicial to "undermine confidence in the outcome" of the penalty phase of Silva's trial. In other words, we find that it is reasonably likely that the jury "would have concluded that the balance of aggravating and [*69] mitigating circumstances did not warrant death." Strickland, 466 U.S. at 694, 695.

Our conclusion as to prejudice is bolstered by the fact that during their deliberations in the penalty phase, the jurors sought an explanation from the trial judge as to the meaning of "life without parole." As noted earlier, they sent two questions to the judge: (1) Does anyone have the authority to override the penalty decided by this jury?; and (2) Does life in prison without possibility of parole mean just that, or is parole possible at some future date? The judge referred them back to the jury instructions, explaining that he was unable under the law to answer either question. n20 These questions suggest that a death sentence for Silva was not a foregone conclusion, especially given that the jurors' only task at that point was to decide between a sentence of life without parole and death. n21 Indeed, one of the juror declarations in the record indicates that it took several ballots before a verdict in favor of the death penalty was reached, and that "to the best of my recollection" at least some of the jurors were initially leaning towards a verdict of life without parole.

In sum, we find that in addition to being constitutionally deficient, as elaborated above, Buckwalter's performance during the penalty phase was highly prejudicial. Even [*71] in light of Silva's directive that his parents not be called as witnesses, Buckwalter's failure to investigate Silva's background and to prepare evidence relating to his family history, mental health, and substance abuse problems resulted in an egregious failure to uncover and present a raft of potentially compelling mitigating evidence. Such performance violated norms of reasonableness prevailing at the time of Silva's trial and substantially undermines our confidence in the results of the penalty phase. n22

SUPREME COURT CASES & NEWS

See discussion of Apprendi/Ring/King above

POSITIVE CAPITAL CASE RESULTS

Oken v. Maryland, --- Md --- (2/6/2002) Stay of execution granted to permit filing of certiorari petition on Ring issue.

Mississippi v. Hicks, 2002 Miss. LEXIS 22 (1/31/2002) No authority exists for the state to take an interlocutory appeal.

As this Court observed in State v. Insley, 606 So. 2d 600, 602 (Miss. 1992), the United States Supreme Court held in 1892 that the government could not take an appeal in a criminal case without express statutory authority. United States v. Sanges, 144 U.S. 310, 12 S. Ct. 609, 36 L. Ed. 445 (1892). In discussing the "tradition of requiring that a prosecutorial appeal be [*9] affirmatively sanctioned by the same sovereign that sponsors the prosecution," the Supreme Court in Arizona v. Manypenny, 451 U.S. 232, 249, 101 S. Ct. 1657, 68 L. Ed. 2d 58 (1981), observed:

Both prudential and constitutional interests contributed to this tradition. The need to restrict appeals by the prosecutor reflected a prudential concern that individuals should be free from the harassment and vexation of unbounded litigation by the sovereign. This concern also underlies the constitutional ban against double jeopardy, which bars an appeal by the prosecutor following a jury verdict of acquittal. In general, both concerns translate into the presumption that the prosecution lacks appellate authority absent express legislative authorization to the contrary. This presumption was first announced as a rule of federal law in United States v. Sanges, 144 U.S. 310, 12 S. Ct. 609, 36 L. Ed. 445 (1892). There, the Court held that no appellate right by the Federal Government exists in the absence of express enabling legislation from Congress.

451 U.S. at 249 (citations omitted).

Though subsequent enabling legislation [*10] has granted the government severely limited appellate rights, the Sanges rule remains in effect. Insley, 606 So. 2d at 602. Even states which have statutorily allowed interlocutory appeals on pre-trial evidentiary rulings, have in most instances restricted such appeals to orders suppressing evidence for alleged violation of the constitutional rights of the accused under the Fourth, Fifth or Sixth Amendments to the Constitution of the United States. See People v. Lindsey, 660 P.2d 502 (Colo. 1983); McPhadder v. State, 475 So. 2d 1215 (Fla. 1985). The instant appeal would not be allowed in those states because it involves a ruling regarding relevance, and more particularly the question whether probative value outweighed prejudicial effect, not the suppression of evidence based upon the violation of any constitutional right of the accused tainting that evidence. Id.

A close reading of § 99-35-103 reveals a clear statutory prohibition, with only limited exceptions, against the State taking an appeal in criminal cases. This prohibition is a clear legislative pronouncement of the [*11] policy of this State regarding the conduct of criminal proceedings. As criminal proceedings are brought by the State, that expression of policy is not subject to modification by this Court except as may be necessary to protect the constitutional rights of the accused. Moreover, this Court would be ill advised to become involved in interlocutory review of routine pre-trial evidentiary rulings in limine as involved here.

This result is dictated by the principles of strict construction of the statutes and by judicial prudence. Pre-trial evidentiary rulings in limine are inherently subject to change depending upon what actually transpires at trial. For an appellate court to make a ruling regarding relevance and probative value relative to prejudice prior to trial suggests a binding ruling inconsistent with the nature of an ordinary trial court pre-trial ruling and with traditional trial practice.)

North Carolina v. Anderson, 2002 N.C. LEXIS 14 (NC 2/1/2002) Remand ordered to hear claims relating to mental retardation, which, if true, would require vacating death sentence in light of changes in state law.

CAPITAL CASES - RELIEF DENIED

Bottoson v. Florida, 2002 Fla. LEXIS 135 (FL 1/31/2002) Successive petition denied, most notably, on alleged Apprendi/Ring/King error & that defendant is mentally retarded. Supreme Court stay granted [cert petition]

Arizona v. Spreitz, 2002 Ariz. LEXIS 16 (AZ 1/30/2002) Ineffective assistance of counsel claimed decided on merits instead of procedural issues. Arizona Supreme Court adopts new rule holding that no IAC claims will be entertained on direct appeal, and if an IAC claim is raised on direct appeal it will not rule on the claim.

Relief denied on ineffective assistance of counsel claims. Raising a singular claim of IAC on direct appeal does not bar review of ineffectiveness claims on collateral review.We endeavor today to clarify this issue for trial courts and practitioners. Accordingly, we reiterate that ineffective assistance of counsel claims are to be brought in Rule 32 proceedings. Any such claims improvidently raised in a direct appeal, henceforth, will not be addressed by appellate courts regardless of merit. There will be no preclusive effect under Rule 32 by the mere raising [*7] of such issues. The appellate court simply will not address them. This ensures criminal defendants a timely and orderly opportunity to litigate ineffectiveness claims and, we believe, promotes judicial economy by disallowing piecemeal litigation.

Arizona v. Lehr, 2002 Ariz. LEXIS 15 (AZ 1/30/2002) Multiple count prosecution of alleged serial rapist who purportedly killed three victims. Partial reversal. Trial court erred in limiting the cross-examination of the prosecution's witnesses relating to police protocol which "would have provided information with which the jury could weigh testimony concerning the DNA results. Because the restrictions in this case crossed the line from reasonable to excessive, they breached the defendant's right to confront adverse witnesses." As the DNA evidence some but not all of the verdicts, including one of the capital murder convictions that carried a death sentence, the condemnation to death stands. Ring error alleged.

Johnson v. Texas, 2002 Tex. Crim. App. LEXIS 17 (Tex. Crim. App. 1/30/2002) Relief denied on batson claim, introduction in the guilt phase of extraneous offenses, search & seizure issues, prosecution's comments that parole laws can change and defense counsel's failure to object

Dennis v. Florida, 2002 Fla. LEXIS 134 (FL 1/31/2002) (dissent) Relief denied on claims on admission of hearsay statements made by the defendant's girlfriend, the that the trial court committed fundamental error in failing to provide the jury with a cautionary instruction on accomplices, the application of the CCP & HAC aggravators, and the weight given EED mitigating factor.

I concur in the majority opinion in all respects, with the exception, however, of its harmless error analysis concerning the erroneous admission and use of evidence that the defendant's girlfriend had her car burned and destroyed after it was returned to her by the police. The facts of this case are, of course, horrendous, and, because this appears to be an otherwise error-free trial, this case simply represents another instance where hard cases sometimes make bad law. The State had a strong case, but simply reached too far in attempting to prove the defendant's guilt of murder by his girlfriend's act of arson.

As noted in the majority opinion, the State contended at trial that the burning of the car and the girlfriend's hearsay statement that the car was used in the murders, "is the main crux of this case." Simple logic should tell us that improper evidence that the State relies upon as "the main crux of the case" could hardly be characterized as harmless. The majority opinion itself makes this clear when it correctly concludes that "the potential of unfair prejudice from the jury inferring that the car was burned to destroy evidence greatly outweighed any probative value the evidence possessed" [*70] as potential impeachment of the girlfriend's collateral testimony about the keys to the car.

Tellingly, the majority opinion wholly omits any discussion of our landmark opinion on harmless error in State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), wherein we held that the State has the burden of demonstrating beyond a reasonable doubt that there is no reasonable possibility that the jury relied on the improper evidence in its deliberations and verdict. To be sure, it would be patently unreasonable to conclude that the jury would not consider evidence "that is the crux of the case" in its deliberations. Indeed, it appears that the State viewed the burning car as the proverbial "smoking gun" to clinch the case. It would be naive to think that the jury would not similarly rely on this devastating evidence of the girlfriend's belief that her boyfriend was guilty of this heinous offense and that her car was used in the crime.

North Carolina v. Gainey, 2002 N.C. LEXIS 21 (NC 2/1/2002) Relief denied on a grab bag of claims including, trial court's denial of his motion to suppress statements to investigators, trial court's sustaining the State's objections to three questions posed during defendant's rehabilitation of a prospective juror, admission of ballistics evidence relating to weapon's identification as expert testimony , sufficiency of the evidence presented in support of his robbery with a dangerous weapon and first-degree murder charges and denial of effective assistance of counsel because his counsel failed to properly preserve the record for appellate review.

People v. Hughes, 2002 Cal. LEXIS 276 (01/28/2002) In an appeal from a first degree murder conviction by a defendant who claimed to be extremely drunk at the time of the crime, a jury was properly informed that unconsciousness does not require that a person be incapable of movement, for purposes of CALJIC No. 8.47 and the one possible significant error occurring at the penalty phase concerning misinstruction on aggravating evidence was waived.

Marks v. Superior Court of Alameda County, No. S085224 (01/28/2002) The Habeas Corpus Resource Center (HCRC) may not participate in record correction proceedings formally, however it may proffer suggestions for corrections.

Sweet v. Florida, 2002 Fla. LEXIS 138 (FL 1/31/2002) Relief denied on claims relating to: "(1) Sweet was denied access to public records; (2) the one-year time limitation for filing a rule 3.851 motion for postconviction relief violates Sweet's due process and equal protection rights; (3) the "felony murder" statutory aggravating circumstance constitutes an unconstitutional "automatic statutory aggravating circumstance"; (4) the "avoid arrest" statutory aggravator was inapplicable in this case and the jury was erroneously instructed regarding this aggravator because the trial court improperly failed to further instruct the jury that the aggravator can only be found where it is the "dominant or only" motive for the defendant's commission of the murder; (5) the trial court's jury instruction on the "cold, calculated, and premeditated" aggravator was erroneous because it failed to instruct the jury that this aggravator required "heightened premeditation" and the evidence failed to establish the necessary heightened premeditation necessary to support this aggravator; (6) the Jacksonville Sheriff's Office destroyed all of the evidence in this case, depriving Sweet of his right to conduct an independent analysis of this evidence using his own experts; (7) ineffective assistance during the guilt phase by: (a) failing to conduct an adequate pretrial investigation and preparation of Sweet's case; (b) failing to investigate other possible sources who would have had a motive to kill Marcine Cofer; and (c) failing to properly cross-examine Marcine Cofer and Solomon Hansbury; (8) ineffective assistance by failing to investigate and prepare available mitigation evidence regarding Sweet's background; (9) Sweet was denied his right to a fair trial as a result of his jury being subjected to improper influences; (10) the jury was given inadequate instructions on the "prior violent felony," "great risk," "avoiding arrest," and "cold, calculated, and premeditated" aggravators; (11) Rule Regulating the Florida Bar 4-3.5(d)(4), which prohibits attorneys from interviewing jurors, caused his postconviction counsel to render ineffective assistance of counsel; (12) Sweet is innocent of first-degree murder and innocent of the death penalty; (13) the record fails to show his presence or his counsel's presence at five sidebar conferences and counsel rendered ineffective assistance by failing to object; (14) improper prosecutorial comments during the penalty phase in arguing that the jury should not be sympathetic towards Sweet and ineffective assistance in failing to object to this comment and in failing to request a "mercy instruction"; (15) alleged omissions in the record on appeal deprived him of meaningful appellate and postconviction review and trial counsel rendered ineffective assistance in failing to ensure a complete record; (16) the trial court's failure to ensure that Sweet had a complete record on appeal deprived him of a proper direct appeal; (17) Sweet received a fundamentally unfair trial due to the sheer number and types of errors committed; (18) the penalty phase jury instructions improperly shifted the burden to Sweet to show that death was not the appropriate sentence for the jury to recommend; (19) the State's misleading evidence and improper argument deprived Sweet of a fair trial; (20) Sweet's contemporaneous felonies were improperly used to support the prior violent felony aggravator; (21) the State failed to prove that Sweet "knowingly"created a great risk of causing the death of other persons given that his mental state at the time of the murder prevented him from knowing this fact; (22) the trial court improperly used a prior possession of a firearm by a convicted felon conviction as a statutory aggravator because the conviction was unconstitutionally obtained; (23) Florida's death penalty statute is unconstitutional on its face and as applied; (24) the trial court erred in failing to consider nonstatutory mitigating circumstances; (25) the State's introduction of and argument regarding nonstatutory aggravators deprived Sweet of a fair sentencing recommendation; (26) the State's closing argument and the jury instructions during the penalty phase improperly diminished the jury's sense of responsibility in the sentencing process; (27) trial counsel failed to provide the two court-appointed mental health examiners with sufficient background information to allow them to adequately evaluate Sweet's competency to stand trial; and (28) the mental health officials that examined Sweet failed to render adequate mental health assistance."

DELAYED PUBLICATION, AMENDED & DEPUBLISHED OPINIONS

No cases noted.

OTHER NOTABLE CASES

Cox v. McBride, No. 01-1413 (7th Cir. 01/29/2002) Challenges to prison discipline in habeas corpus are guided by the equitable principle of laches, codified in Rule 9(a) of the Rules Governing Section 2254, and not the one-year limitation period set forth in 28 U.S.C. sec. 2244(d)(1), governing federal habeas corpus petitions.

McNair v. Coffey, No. 00-1139 (7th Cir 01/29/2002) The Fourth amendment is not violated merely by the presence of an excessive number of squad cars and drawn guns, triggered by a police officer's call for backup.

Lewis v. Sullivan, No. 01-2251, 01-2252 (7th Cir 02/01/2002) The PLRA's 28 U.S.C. sec. 1915(g) "three strikes" rule does not violate the Constitution.

Proffitt v. Ridgway, No. 00-3229 (7th Cir 02/01/2002) Summary Judgment affirmed relating to allegations of the excessive use of deadly force

Sexton v. Kemna, No. 00-2764 (8th Cir 01/29/2002) In light of the petitioner's history of prior sexual assault, including his wife's daughter, the denial of the presumption of vindictiveness when a sentencing judge reimposes the same total sentence in a multi-count case, under North Carolina v. Pearce, 395 U.S. 711 (1969), is not unreasonable.

Robinson v. Crist, No. 01-2199 (8th Cir 01/30/2002) The prosecution did not impermissibly comment on the defendant's failure to testify, by making inferences to the defendant's and weapon's whereabouts on the night of the crime

Johnson v. Breeden, 2002 U.S. App. LEXIS 1115 (11th Cir 01/28/2002) The district court abused its discretion when it failed to restrict awards of attorney's fees and expenses not directly and reasonably incurred in successfully proving appellant's Eighth Amendment excessive force claim against two officers, under 42 U.S.C. 1997e(d)(1)(A).

FOCUS

Continuing on the theme of mitigation and mental health, "Damned if you do, damned if you don't: The use of mitigation experts in death penalty litigation" by Jonathan P. Tomes, University of Texas Law Review, Winter 1997, is again examined this week examining how to find and pay for mitigation experts, as well as basic suggestions for their utilization. Tomes' provides an excellent measuring tool for what constitutes an effective penalty phase presentation.

How to Find and Hire Mitigation Experts

Finding mitigation experts is not difficult. Paying for them often can be. Almost any clinical psychologist or clinical sociologist could function as a mitigation expert, although counsel would certainly prefer one with experience in death penalty cases. Except for the case in which the defendant or the defendant's family has substantial funds, getting the state to pay for such an expert, or pay enough to ensure a good job, is problematical.

A. How to Find Mitigation Experts

Public defender offices in states with death penalties should be able to refer private defense counsel to experienced mitigation experts. In addition, an expert witness referral service, such as the Technical Advisory Service for Attorneys (TASA), should be able to refer counsel to local experts. If counsel cannot locate an actual mitigation expert, local yellow pages should have listings for psychologists, clinical social workers, and the like that counsel could interview to see whether these professionals could do the necessary investigation and present the findings effectively in court.

B. Will the State Pay for a Mitigation Expert?

As for getting the state to pay in the case of an indigent defendant, some state statutes provide for the court to order funds for mitigation experts. For example, as discussed above, Virginia Code Annotated 19.2-264.3:1 provides for the appointment of a mental health expert to determine, inter alia, "whether there are any other factors in mitigation relating to the history or character of the defendant or the defendant's mental condition at the time of the offense."43 Also, Ohio Revised Code

2929.024 requires the court to provide an indigent defendant charged with aggravated murder expert assistance whenever, in the court's sound discretion, the services are reasonably necessary for proper representation.44 The factors the court must consider are (1) the value of the expert assistance to the defendant's proper representation at either the guilt or the sentencing phase of the trial, and (2) the availability of alternative devices that would fulfill the same functions as the expert assistance sought.45 The defendant bears the burden of establishing the reasonable necessity of the expert assistance and may not rely on mere assertions that such assistance would be useful to the defense.4

Even in states that do not provide a statutory basis for state-provided funding for an indigent defendant, authority exists for the proposition that the court may nonetheless order such relief. The basis for the provision of expert assistance for an indigent's defense is the United States Supreme Court case of Ake v. Oklahoma.47 In Ake, the court found that the assistance of a psychological expert was a "basic tool" for the defendant's case that the state should provide at public expense.' Further, in Caldwell v. Mississippi,49 the court provided some guidance as to what type of showing the defendant must make in order to be entitled to statefunded assistance.50 In this case, the court refused to require the state to provide a ballistics expert when the defendant had offered little more than "undeveloped assertions that the requested evidence would be beneficial. ,51

A number of state court opinions have examined whether it was error to refuse to provide state-paid mitigation assistance. In Commonwealth v. Reid,52 the Supreme Court of Pennsylvania found that the trial court's refusal to approve county funds to obtain a particular psychologist as a mitigation expert did not violate Ake where it offered the defendant an opportunity to be examined by a neutral court-appointed psychiatrist.53

In a similar vein, the Alabama Court of Criminal Appeals citing to Ake, found that it was not error for the trial court to deny the defendant's request for funds to hire an expert social worker as a mitigation expert when he stated at trial that he did not wish to present any mitigating evidence during the penalty phase, and he made no showing at trial that the assistance of an expert social worker was necessary for an adequate defense or that he had a particularized need for such assistance.54 The Court of Appeals of Ohio reached a similar result in State v. Lott,55 in which the court found that mere assertions that the assistance of an expert would be useful to the defense were an insufficient basis upon which to grant relief.56

Similarly, the Supreme Court of Oregon failed to find error in the trial court's denial of a mitigation investigator in a case in which the affidavit did not explain why one of the investigators assigned to the defendant could not search out and present mitigating evidence or why the particular expertise of the requested investigator was necessary to the preparation of the defendant's case.5'

Another way in which courts analyze requests for expert assistance is to decide whether denial of such assistance makes counsel ineffective. In People v. Whitehead,58 for example, the Supreme Court of Illinois found that the trial court's denial of a request for expert assistance to investigate and prepare mitigation factors did not result in the denial of the effective assistance of counsel-even though the lawyer had never tried a capital case.59 The appellate court focused on two facts: the trial court had assigned an investigator to the case who could conduct any necessary investigation of mitigation evidence, and the defendant had adduced evidence that his mother and father had physically abused him and offered evidence of an organic brain syndrome that resulted in his experiencing impulse control problems.60

The same result was obtained in People v. Redd,61 in which the court found that the pro se defendant's lack of funds for a mitigation expert did not result in an unfair sentencing proceeding where the mitigation evidence the defendant suggested was purely speculative and the record contained no evidence of what mitigating evidence the defendant might have introduced.62

In two earlier cases, that same court had found that the denial of a request for the county to pay for a mitigation expert was not error. In a 1995 case, it held that, unlike the psychiatric expert sought in Ake, a mitigation expert is not crucial to the defendant's ability to marshal evidence in mitigation because the defense counsel can obtain and present such evidence.63 The court also relied on the fact that the trial court had provided the defendant the services of an investigator and a psychologist.64 In another case, the court found no error in failure to provide a mitigation expert where the appointed co-counsel could assist in whatever investigation was necessary and where the information desired was of a nature that required no special knowledge or expertise on the part of the person doing the investigation.65

Not all cases, however, find that the trial court acted properly in denying funding for mitigation experts. For example, the Supreme Court of Indiana recently found the trial court's limitation of a mitigation expert to twenty-five hours of investigation to be arbitrary and an abuse of discretion but nonetheless affirmed the conviction finding the error to be nonprejudicial because the defendant otherwise effectively presented mitigation evidence.66

Perhaps the most helpful case for a practitioner requesting expert assistance is Bright v. State,6' in which the Supreme Court of Georgia noted that an expert would have been helpful to the defendant in preparing evidence in mitigation and reversed the death sentence.

[A]lthough at sentencing Bright did rely on his own testimony from the guilt-innocence phase of the trial regarding his intoxicated condition on the evening of the murders, and although he possibly could have offered other non-expert evidence regarding his history of drug abuse, his intoxication on the evening of the crimes, his emotional troubles, and his troubled youth, Bright's testimony, as would have any other non-expert evidence he could have offered, only inartfully covered the issues in question and did not provide Bright with the meaningful scientific and psychiatric evidence that a defendant with money could have offered in his defense.

For the foregoing reasons, we hold that the trial court erred by failing either to grant Bright funds to hire the experts he had contacted or to appoint equivalent experts of the court's own choosing.bg

A number of states provide for an ex parte hearing on whether to provide such expert assistance to an indigent defendant.69 The theory for allowing ex parte applications is that having adversarial hearings would potentially expose defendant's defense to prosecutorial review when a monied defendant's defense would remain inviolate. Clearly, the pretrial revelation of the names, number, and expected testimony of a defendant's witnesses might be of significant tactical advantage to the prosecution. First, . . . it is simply a reflection of the truth known by every litigator: the more known of the opposing side's case, the better. Second, such disclosure could lead the prosecution to emphasize certain evidence in anticipation of damaging impeachment evidence to be presented by the defendant. Third, it could lead the prosecution to deemphasize, or to omit, certain evidence in anticipation of damaging impeachment evidence to be presented by defendant. Moreover, it could help the prosecution during voir dire and in structuring its opening statement. Indeed, if the theory of the defendant's defense is revealed prior to trial, it seems likely that the prosecution could fashion its strategy as to best discredit and undermine that revealed defense. When such an advantage is to be reaped by the prosecution only when the defendant is poor and therefore cannot afford to pay the service-ofprocess and witness fees of his witnesses, it seems undeniable to us that such a defendant is not the recipient of equal justice under law.70

As a result of these decisions, it appears that in order to make a case for government funding for a mitigation expert, as opposed to an investigator in general, counsel should demonstrate the following elements:

need for mitigation evidence in the case;

need for the particular expert sought, in other words, why the defense

needs the expert's particular specialized knowledge or expertise;

need for the particular evidence the expert is to look for and some indication that it exists so that the evidence sought is not purely speculative;

why counsel or a "generic" investigator cannot gather the particular evidence sought;

why an expert is necessary to present the information or an opinion based on the information to the jury; and" any other information specified in any relevant statutes or court decisions in the particular jurisdiction.

V. Use of Mitigation Experts in Preparation For and During the Trial

Part V discusses three areas of concern for counsel using mitigation experts. First, counsel should plan for how to use the mitigation expert to investigate; second, he must consider whether the information the expert gathers is discoverable by the state; and third, he should plan for how to use the information at trial.

A. Counsel Should Plan for the Mitigation Expert's Investigation

After defense counsel employs a mitigation expert, he or she must direct the investigative efforts to ensure that the expert seeks out evidence that is consistent with the theory of the defense and of mitigation, keeping in mind that the information the expert finds may necessitate changes in the defense strategy. In one noncapital case I tried, for example, the mitigation expert, a clinical sociologist, unearthed a personality disorder that, in his opinion and that of a clinical psychologist I hired to confirm that opinion, prevented the defendant from forming the specific intent necessary for conviction of the crime. Thus, what started out as mitigation evidence became evidence during the guilt phase of the trial. To the extent that the mitigation evidence is consistent with that developed during the guilt phase, the mitigation evidence would seem to be an easier sell to the jury than trying to convince them to lessen the defendant's sentence for a reason that is inconsistent with what they heard during the guilt phase. Mitigation evidence may also resound to the client's benefit on sentencing if the decision whether the defendant was guilty, was a close one and the jury is not entirely comfortable with its finding.

After explaining both what the defendant is charged with and any theories of defense or mitigation you have, defense counsel should give the mitigation expert access to all materials obtained from the prosecution to help the mitigation expert formulate leads for investigation. Counsel may also want the mitigation expert to investigate the facts and circumstances of the crime and its effect on the victim's family to rebut the state's factors in aggravation and victim impact testimony. In addition, counsel may want the expert to investigate factors in mitigation. The defense lawyer should also give the expert executed authorizations for the release of medical, mental health,n educational, occupational, military, and other records. Counsel should periodically consult with the mitigation expert to learn what mitigation evidence he is developing so as to guide the expert's further efforts. The expert should focus on productive areas of inquiry and limit unproductive ones, especially if the funds to pay for the expert's services are limited.

B. Must You Disclose the Mitigation Expert's Findings to the Prosecution ?

If the defense intends to use the mitigation evidence, counsel will run into the problem of the necessity to disclose it to the prosecution. Even in a jurisdiction that initially protects the work done by an expert and any report he produces, once the defense counsel makes the decision to use that evidence, he must provide discovery of that evidence to the state. For example, Virginia Code 19.2-264.3:1 provides for expert assistance when the defendant's mental state is relevant to sentencing.73 It specifies that the expert shall send his or her report "solely to the attorney for the defendant" and that the attorney-client privilege protects the report.74 Once, however, the defense attorney gives notice of an intent to present psychiatric or psychological evidence in mitigation, he must give the commonwealth the report and the results of any other evaluation of the defendant's mental condition and copies of psychiatric, psychological, medical, or other records obtained during the course of such evaluation.75 The statute also requires twenty-one days notice to the commonwealth before calling an expert witness to present mitigation relating to the defendant's history, character, or mental condition.76

Even if the state does not provide assistance in securing the services of a mitigation expert, disclosure of such evidence is typically required by criminal procedure rules. In Arizona, for example, the defense counsel must provide the prosecutor (1) a list of all mitigating circumstances counsel intends to prove, (2) the names and addresses of all persons, other than the defendant, whom the defense intends to call as witnesses during the aggravation/mitigation hearing, together with all written or recorded statements of the witnesses, (3) the names and addresses of any experts whom the defendant intends to call during such hearing, together with any reports prepared, excluding the defendant's statements, and (4) a list of any and all papers, documents, photographs, or tangible objects that the defendant intends to use during the hearing.7'

C. Use of Mitigation Experts at Trial

As to presenting the testimony of a mitigation expert at trial, defense counsel should not, as a general proposition, have much difficulty qualifying a licensed psychiatrist, psychologist, or clinical sociologist as a mitigation expert considering the standards for expert testimony in general and the "relaxed" standards for the receipt of mitigation evidence.

Under Federal Rule of Evidence 702, which many states have adopted as their own rule, courts have discretion to admit the testimony of experts who are qualified by "knowledge, skill, experience, training or education" to testify if such "scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue."'8 States that do not follow the federal rules have similar formulations for the use of experts. In Illinois, for example, the testimony of an expert is permitted when: (1) the expert's opinion is particularly related to a science, a profession, a business, or an occupation outside the common knowledge or experience of the average juror; (2) the opinion will aid the jury in the search for truth because of the skill of the expert; and (3) the state of the art or scientific knowledge allows the expert to assert a reasonable opinion.79 The trial judge has the discretion to determine whether the witness is qualified by special knowledge, skill, or experience to express an opinion.80 Courts use a four-part test to determine whether they should admit expert testimony: (1) the expert must assist the jury; (2) the expert's opinion must be based on reliable premises; (3) the testimony must be relevant to a factual determination; and (4) the testimony must not be unduly prejudicial."

The latitude courts must give defendants facing the death penalty in the presentation of mitigation evidence should help meet the already relatively low burden of qualifying as a mitigation expert. Ohio Revised Code 2929.03, for example, notes that "the defendant shall be given great latitude in the presentation of evidence of the mitigation factors set forth [in the relevant statute82 and of any other factors in mitigation of the imposition of the sentence of death."83 Illinois notes that evidence of mitigating factors may be presented "regardless of its admissibility under the rules governing the admission of evidence at criminal trials. "I Court decisions have also specified that trial judges should grant wide latitude to both parties in introducing evidence in aggravation and mitigation at a capital sentencing hearing. Further, the testimony presented need not satisfy the more restrictive rules of evidence that govern the guilt phase of the trial.'

The paucity of cases in which the appellate court discussed whether refusing to qualify a mitigation expert was error suggests that getting a mitigation expert qualified is not difficult considering the relaxed rules for evidence of mitigation. Perhaps the most helpful discussion is in Bright v. State, discussed above,' in which the Supreme Court of Georgia reversed a death sentence for failure to grant the defendant funds to obtain mitigation experts or appoint equivalent experts of the court's own choosing:

Moreover, we conclude that an expert would have been of assistance to Bright in preparing evidence in mitigation. It has been stated that "[i]f [a] witness has special knowledge in any area so that his opinion could aid the jury, he should be qualified as an expert," . . . and that the proper "subjects of expert testimony are too numerous to mention . . . ." In this case, the issue is whether the experts Bright sought could have aided Bright by assisting lay jurors in making an educated determination of Bright's capacity to control and understand his actions at the time he committed the crimes. We conclude that the toxicologist and the psychiatrist could have provided valuable assistance to Bright. A toxicologist could have scientifically evaluated the effects of a history of cocaine abuse, as well as the severe abuse of drugs and alcohol on the night of the murders, on Bright's mental condition. Similarly, a psychiatrist could have evaluated, in terms beyond the ability of the average juror, Bright's ability to control and fully appreciate his actions in the context of the events that arose on the night of the murders, given his severe intoxication, his history of substance abuse, his troubled youth, and his emotional instability.87

In People v. Erickson,88 the Supreme Court of Illinois found that it was not error for the trial court to refuse to qualify a psychotherapist as an expert and to bar his testimony and report regarding whether the defendant was under the influence of extreme mental or emotional disturbance when he murdered his victim.89 The refusal to qualify him as an expert, however, was based on a statute that specified the qualifications for a clinical psychologist, which qualifications the witness apparently lacked.90 The Illinois Supreme Court noted that the trial court did allow the witness to testify as to his opinion on any mental illness or emotional disturbance that the defendant had and admitted his written evaluation of the defendant.9' Thus, it was not an abuse of discretion for the trial court to refuse to qualify him as an expert because the court expressly indicated that it would consider the witness' testimony and report.92 Thus, rather than supporting the position that a court may refuse to qualify a mitigation expert, the opinion actually supports the proposition that a court will almost always let one testify, whether he or she meets a technical qualification as a particular type of expert or not.

The chances of counsel being ineffective will be greatly diminished if counsel plans for the use of a mitigation expert during the investigative phase, considers what findings of that investigation the defense must disclose to the prosecution and plans for the effective use of the expert at trial.

VI. Does Using or Failing to Use a Mitigation Expert Constitute Ineffective Assistance of Counsel? Here is the damned if you do, damned if you don't part. A defendant could probably challenge defense counsel's assistance as being ineffective either way-either for using or for failing to use a mitigation expert-and the defendant could be right either way. Although one can hardly blame a defendant facing the death penalty or his appellate counsel for alleging ineffective assistance of counsel, the court will likely not find that either using a mitigation expert or failing to use one was ineffective if a good tactical reason existed for that decision. Attorneys representing those facing the death penalty should understand what constitutes effective assistance of counsel in the mitigation area, as in all areas of representation, for two reasons: to provide better representation and to better defend against the almost inevitable claim of ineffective assistance after a defendant has been sentenced to death. After a brief overview of the law regarding ineffective assistance of counsel, this part will summarize cases finding ineffective assistance of counsel and not finding such, both for using and for failing to use a mitigation expert, and conclude with a checklist to help avoid being ineffective when using mitigation experts.

A. What Constitutes Ineffective Assistance of Counsel in Death Penalty Cases?

The standard of effective assistance of counsel applicable to an attorney defending a death penalty case is, perhaps inexplicably, the same standard applicable to any criminal case:93 to prevail on an ineffective assistance of counsel claim, the defendant must meet the Strickland standard.94 The defendant must show both that the counsel's performance was deficient under prevailing standards and that the defendant suffered prejudice as a result of that deficiency.95 More specifically, to prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate that his defense attorney's performance was deficient based on a standard of "reasonableness" considered under the "facts of the particular case, viewed as of the time of counsel's conduct."96 In a two-part test, the court must assess, "in light of all the circumstances, [whether] the identified acts or omissions were outside the wide range of professionally competent assistance" and whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. "9' In applying this already deferential standard, the U.S. Supreme Court has emphasized the "highly deferential" posture federal courts must use in evaluating ineffective assistance of counsel claims.98

This standard of competence is a very low one and, consequently, is a very high burden for a criminal defendant to overcome. The so-called "performance prong," coupled with the deferential standard of review, results in an appellate court's upholding counsel's performance when it can "attribute any conceivable strategy to the performance, even if there is no evidence that the attorney pursued that strategy."99 As to the other part of the test, the so-called "prejudice" prong, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the results . . . would have been different."'98 Many commentators have criticized the Strickland standard for tolerating "abysmal lawyering," including that performed in capital cases.'O Two commentators, for example, have noted:

Partly as a result of this deferential standard, representation in capital trials remains notoriously poor, especially for indigent defendants. Many states . . . rely on court appointments rather than a specialized defense organization to provide representation to indigent defendants. Attorneys appointed under such schemes are frequently underfunded, inexperienced, unsympathetic to their clients, and thoroughly incapable of mounting an effective defense during either the guilt or punishment phases of the capital trial. Adhering to the Supreme Court's admonition that "the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation," state courts and lower federal courts have shown extraordinary reluctance to grant relief on the basis of ineffective counsel, even in compelling cases. 102

With this background, this part will turn to whether defense counsel's performance was deficient under prevailing standards and whether the defendant suffered prejudice as a result of that deficiency in cases involving the use of or failure to use mitigation experts. As expected, the cases finding ineffective assistance of counsel are few and far between. Consistent with the damned if you do, damned if you don't theory, those appealing death sentences allege ineffective assistance of counsel both for using and for failing to use mitigation experts. However, cases involving use of mitigation experts are far fewer, perhaps because using mitigation experts often results in defendants not receiving the death penalty.'o3

B. Summary of Death Penalty Cases Discussing Use/Failure to Use Mitigation Experts

Defendants have not fared very well when they claimed ineffective assistance for using mitigation experts. In two cases, the defendant alleged ineffective assistance of counsel in the act of calling a mitigation expert as a witness'4; in another, the defendant alleged ineffective assistance for bringing out damaging testimony from the mitigation expert.'0

Both courts deciding whether the mere calling of a mitigation expert was ineffective assistance of counsel did so very summarily. In State v. Slagle,'0 the Court of Appeals of Ohio found that the defendant had failed to meet his burden of proving ineffective assistance of counsel for the calling of a mitigation expert to testify where he failed to show that there was a reasonable probability that, but for this alleged error, the result would have been different.107 Rather, the court noted that trial counsel's conduct that can only be viewed as a matter of trial tactics will not be second guessed on appeal.Ols On further appeal, the Supreme Court of Ohio disagreed that calling one Dr. Hall as a mitigation expert was ineffective assistance of counsel because doing so was within the range of professional competence.'0 The court noted that his testimony actually supported the defendant and that "[r]epresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. 110

A claim that defense counsel was ineffective for bringing out damaging information from a mitigation expert was also made short work of in another Ohio case. State v. Carter"' noted that, although many of the statements did not "cast Carter in a positive light, the testimony, when considered in its entirety, demonstrated that Carter had lived, at times, a painful and tragic life.112 The court went on to observe that the defense counsel "obviously hoped" that this information would convince the jury that the defendant's actions stemmed from the social and mental problems he had experienced and concluded that the defense counsel had acted competently. "3

Many more cases involve failing to request the assistance of mitigation experts or failure to call them as witnesses, although such cases usually fare no better in getting relief for the defendant. One notable exception is People v. Perez,"4 in which the Supreme Court of Illinois vacated a death sentence because the defendant did not receive the individual sentencing determination required under Eddings v. Oklahoma"5 because the defendant's counsel had failed to investigate mitigation evidence about the defendant's family and had failed to introduce evidence he possessed."6

In Perez, the defendant had been convicted of killing a fellow inmate in the Illinois correctional system. While Mr. Perez was awaiting trial, his attorney looked through his master file at the Stateville prison and asked him about his family background. The defendant initially refused to reveal any background information and told his lawyer that he had no friends, relatives, or visitors and, in fact, had no communication with anyone outside the prison. The lawyer did not have his court-appointed investigator search Mr. Perez's background for any mitigating evidence. After the defendant's conviction, during a continuance to prepare for sentencing, the defendant gave his lawyer some information about his background that he wanted admitted at the sentencing hearing but stated that he did not want to testify. His counsel prepared an affidavit in which the defendant said that he had two brothers and one sister and was the oldest in his family. The affidavit went on to say that, when he was a teenager, his parents got into a fight, and the next day everyone moved away. A priest got him into a halfway house. The defendant later found his father and lived with him for a while before going to prison. While the defendant was in prison, no one except one brother contacted him.

Soon thereafter, the defendant gave his lawyer some more information about a shelter in which he had lived, a community clinic, and a priest that he wanted the lawyer to look into. The counsel called the phone numbers the defendant had given him for these places and the priest but, upon obtaining no useful information, did not follow up. Neither the lawyer nor his investigator ever went to the Chicago area to attempt to find any of these persons or places.

Mr. Perez's lawyer had obtained the defendant's school records, which contained two scholastic aptitude reports compiled by qualified school psychologists, as well as defendant's address and telephone number. One report noted that his father displayed "little concern for his family . . . and [his mother] never heard from him.""7

One of these reports contained intelligence test results showing that the defendant had an I.Q. of sixty-two, which classified him on the Wechsler Intelligence Scale as "mentally deficient.""8 His teachers had reported that he was a constant troublemaker, and the psychologist had concluded that his disruptive classroom behavior resulted from his inability to do the classwork, recommending placement in a program for mentally handicapped children."9 The other report also had home addresses and phone numbers and noted that the family lived on funds from the Department of Public Aid, that the defendant willingly helped with household chores, and that the defendant had no friends his own age. A second I.Q. test revealed a scale of seventy-seven, a category known as "borderline" between "mentally deficient" and "low average (dull)."'2 This time there was no indication that he was disruptive in the classroom, and the psychologist concluded that the defendant had benefited from the program for mentally handicapped children. He concluded, "[a]lthough [defendant] appeared to concentrate to the best of his ability, he was slow to respond and at times required some encouragement. This boy appears to have considerable difficulty with tasks involving conceptualization."121

Mr. Perez's counsel did not introduce these records during the penalty phase.122 When asked, during a post-conviction hearing, why he had not sought to admit the records, the lawyer testified he could not recall, but speculated that he might have thought that the characterization as a troublemaker outweighed the mitigating information that the report provided.'23 He also stated that he didn't understand the test results revealing the defendant to be mentally deficient and did not present the test results to anyone to interpret for him.'24

Counsel did introduce a psychological report written shortly after defendant's incarceration for an armed robbery conviction, which noted that the defendant was emotionally disturbed and alcohol dependent resulting from rejection by his family, which had disintegrated and left him with no support or knowledge of their whereabouts.121 The report, however, also contained much that was damaging to the defendant, such as his being aggressive and criminally-oriented, having a likelihood of recidivism, and being unlikely to adjust to incarceration because of gang activities. 126

A protective services investigator for the Illinois Department of Children and Family Services, who had been retained by the defendant's post-conviction counsel, testified that he contacted the defendant's mother and siblings, reviewed prison and school records, and learned that the defendant's father was selling cocaine or heroin, free based in the house, dealt in drugs, was an alcoholic, was abusive, and would hit the children with electrical cords and throw things at them. 127 When taken away from his father, defendant improved, got a job in a grocery store, contributed maintenance towards the family, and gained confidence and self-esteem. After losing his job, however, because he could not read the labels on grocery items, and after the shooting death of a close friend, the defendant could not find another job and ended up in a street gang. At this point, his mother had abandoned him, and he ended up in the halfway house and later moved in with his father. His father then threw him out, and upon running into a friend, the defendant joined the friend in an armed robbery. He was incarcerated at that point, at age nineteen, and had been incarcerated ever since.'28

At a post-trial hearing to determine whether the defendant had been denied the effective assistance of counsel, Andrea Lyon, an expert in death penalty litigation testified" that an attorney defending a capital case should examine all available records, interview all persons mentioned in the records, and employ experts as necessary to put all the information into a psychological or sociological picture of the defendant.130 She testified that an attorney had a legal and moral duty to adduce mitigating evidence notwithstanding the client's instructions to the contrary.'3'

The circuit court, when ruling on whether these omissions constituted ineffective assistance of counsel, conceded that there was very little mitigation evidence put before the jury but attributed this lack of evidence to the defendant's recalcitrance rather than to the fault of his counsel.'32 The Supreme Court of Illinois disagreed, finding two errors that required vacating the defendant's sentence: the failure to investigate and present evidence of the defendant's mental history to the jury and the failure to make even a minimal search into the defendant's background with the evidence he had.'33 The court explained: Failure to present mitigating evidence at a capital sentencing hearing does not in itself prove that a defense attorney was ineffective. In certain cases, mitigating evidence may be so flawed or potentially damaging to the defendant that competent counsel would make a strategic choice not to present it. In such cases, "we must presume that it was these drawbacks, and not merely lack of diligence, which was behind counsel's decision." In this case, however, we find that it was Doyle's lack of diligence, rather than any drawback or strategy, which prevented him from introducing important mitigating evidence.

Doyle had in his possession at the time of the sentencing hearing defendant's school records, which revealed that defendant was mentally deficient and was placed in special classes for the educably mentally handicapped. Yet, Doyle failed to present this important mitigating evidence to the sentencing jury. We find no reasonable explanation for Doyle's actions, and conclude that his failure to present the evidence to the sentencing jury was not the product of a thorough investigation, but rather of ignorance of the information, and thus not a strategic decision. 134 The court was unimpressed with the defense counsel's explanation that he had not used the reports because it showed that the defendant was a troublemaker in school because the prison psychological report showed much worse behavior, including gang activities, and a high likelihood of recidivism.'35 The court was also troubled by his failure to seek expert testing of the defendant when he should have been aware of defendant's mental deficiency. This failure to seek expert assistance is especially troubling in light of the fact that Doyle was having communication problems with defendant. As the expert in death penalty litigation testified, experts may be needed in cases of recalcitrant defendants to determine why they will not cooperate with their attorney. The attorney took no steps to understand this problem.'36

As to his failure to investigate the defendant's background, the court was similarly unimpressed by his explanation that the defendant refused to give him any information.'37 The court pointed out, however, that he had the defendant's school records, which contained family information, as well as an incarceration record, which contained family information, yet he failed to investigate any of this information or have his investigator do so.'38 In concluding that this failure was ineffective, the court examined the defendant's recalcitrance and found it not to be a good reason for not investigating:

In concluding this, we acknowledge that Doyle was in a difficult situation, due to defendant's recalcitrance. However, as [the death penalty litigation expert] testified, a recalcitrant defendant is a very common problem in capital cases, and there are ways to solve this problem. In such a situation, an attorney could search for as much information about a defendant as he can and confront the defendant with it . . . or have an expert examine the defendant and attempt to understand his recalcitrance. [Defense counsel] did none of this, despite defendant's history of mental deficiency and Becraft's report indicating defendant's family had abandoned him, which should have alerted [defense counsel] to possible reasons behind defendant's unwillingness to provide information.139

The court had no difficulty finding the second prong of Strickland, that the deficient performance so prejudiced the defense as to deny the defendant a fair sentencing hearing."4 It disagreed with the prosecution's contention that the evidence the defense counsel might have introduced was as much aggravating as extenuating, finding that the defendant's poor school performance was explained by his mental handicap and his prior drug use by living with his abusive father who bought, sold, and used drugs at home.'4' Because the defendant's family abandoning him was a result of his mental handicap, his drug use, and his family's fear of his abusive father, a jury "would have concluded that the balance of aggravating and mitigating circumstances did not warrant death."142

The Supreme Court of Pennsylvania recently vacated a death sentence for ineffective assistance of counsel for failing to pursue an investigation into the defendant's mental state in light of the jury's specific finding that his mental state was a mitigating factor.'43 Although a witness had told the defense counsel that the defendant had mental problems, the lawyer did not contact his client's parents about this issue or otherwise pursue the matter.' The defense counsel testified at an ineffectiveness hearing that he had not done so to minimize damaging questioning by the commonwealth on cross-examination.'45 This reasoning did not impress the court because it felt that had counsel found admissible evidence of the defendant's mental state, he might have concluded that the potential damage was outweighed by the potential benefit. 4 The court held that "where counsel is informed that his client has suffered some mental problems that may provide evidence in mitigation in the penalty phase, counsel is ineffective if he fails to pursue such evidence."'4' The court could not say that this failure did not prejudice the defendant.

In a more extreme case of ineffectiveness, the United States Court of Appeals used similar reasoning to uphold the trial court's determination of ineffectiveness of counsel during the sentencing phase."ns The defendant was a mentally retarded seventeen-year-old when he was convicted of felony murder. He did not kill nor intend to kill the victim. His defense counsel put on no mitigation evidence whatsoever. At a habeas hearing in the federal district court, a clinical psychologist testified that the defendant had an I.Q. that was less than forty-one, was severely limited in his capacity to think, and did not know what was happening around him. The court found counsel's actions in either neglecting or ignoring this mitigation to be professionally unreasonable and prejudicial.'49

The vast majority of cases deciding whether failure to use a mitigation expert constituted ineffective assistance of counsel found that, for one reason or another, the failure did not warrant relief. Some reasons that failure to hire or use a mitigation expert are: use of an expert wouldn't have mattered anyway because the particular crime was so aggravated, 150 counsel's conduct was not ineffective,'5' and counsel had a valid tactical reason for the decision."2 Other cases, finding a procedural error, barred consideration of the ineffectiveness claim.'53 Often the court decides whether failure to hire a mitigation expert or failure to use one at trial constitutes ineffective assistance of counsel by focusing on the second prong of Strickland, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."'4 Sometimes, the court does not even discuss whether counsel's performance was actually defective. For example, in Bonin v. Vasquez, 55 the United States District Court for the Central District of California found that the defense counsel's failure to employ an investigator in the state in which the defendant had grown up and for failure to hire a childhood mitigation expert to demonstrate how abuse and neglect had affected his development was not ineffective assistance of counsel because any evidence found in such an investigation could not mitigate against the atrocities the defendant had committed.156 The defendant had killed four young men by ligature strangulation.157 The court did not consider whether the failure to investigate all aspects of the defendant's childhood was ineffective because the defendant had not satisfied the second prong of Strickland. '58

Similarly, in State v. Whitehead,'59 the Supreme Court of Illinois found that failure to provide additional evidence in several cases that the defendant suffered from episodic dyscontrol associated with a partial complex seizure disorder and pedophilia, which diminished his capacity for self-control and his ability to distinguish right from wrong, that his mother and several siblings were alcoholics, that the defendant was an alcoholic and suffered blackouts, that his parents were abusive, and that there was a pattern of incest, was not ineffective assistance of counsel.'6 The court found this evidence to be cumulative and, when balanced against considerable aggravating evidence, no reasonable probability existed that the additional evidence would have spared the defendant the death penalty. 61 The defendant had kidnapped, sexually assaulted, and murdered a five-year-old girl. There are several other cases which have held that the failure to adduce mitigation evidence was not ineffective assistance of counsel because it would not have resulted in a more favorable outcome.'62

As to the first prong of Strickland, courts sometimes tersely state that counsel's performance is not ineffective"63 and sometimes explain that the performance complained of was a reasonable tactical decision. Defense counsel in death penalty cases often have good tactical reasons for not adducing mitigation evidence. For example, in State v. Bedford, 164 the defense counsel did not subpoena the defendant's ex-wife to testify of his long history of alcoholism or ask for a separate mitigation evaluation, including the use of a mitigation expert. 65 When challenged as to whether he had been ineffective, the defense counsel submitted an affidavit that said:

In my professional experience, jurors in this area generally view all psychiatric or pychological [sic.] testimony with suspicion. The more a mental health expert says trying to tie a mental illness or personality disorder to a particular crime, the more dangerous the person appears. This lessens or eliminates, in the juror's minds, any mitigating value the mental health expert testimony may have. In my professional judgment, the presentation of the fact that defendant was very "treatable" was the most valuable part of Dr. Schmidt-goessling's testimony. The more this would be explained, either by a mental evaluation . . . or a lengthy direct examination, the greater the likelihood that cross-examination of Dr. Schmidt-goessling would reveal some fact concerning defendant's mental condition which would reduce the mitigating value of her testimony.l66

The court found that this was a reasonable tactical decision.'6' Similarly, in another case the Supreme Court of Pennsylvania found that counsel's failure to explore certain avenues of mitigation was reasonable and not ineffective where counsel testified that he believed exculpatory statements concerning specific instances of his client's conduct made by potential character witnesses may have revealed negative evidence about his client's reputation and prior criminal history.'68

In a military case, trial defense counsel's failure to present expert mitigation was found to be a reasonable tactical choice.'69 Although a forensic psychiatrist could have testified so as to draw a nexus between the accused's170 past problems and his criminal behavior, the psychiatrist would have had to testify on cross-examination that the accused had a classic sociopathic personality and could very easily commit similar crimes in the future.'7' The United States Court of Appeals for the Armed Forces found the failure to present such evidence to be a reasonable tactical decision. 72

The Court of Appeals of Ohio considered another type of tactical decision and found that failure to adduce mitigation evidence was reasonable based on a theory of "residual doubt."'73 The defendant, charged with aggravated murder and armed robbery, claimed innocence throughout the trial.''4 His counsel felt that it would be inconsistent to have his family and friends testify to his tragic childhood during the penalty phase because a traumatic family life would explain to the jury why he might be inclined to a life of crime."5 Further, a psychiatric report would have been damaging by linking his childhood experiences to his poor judgment as an adult in committing crimes."6 Finally, his unsworn statement, which did not go into his past, was supposed to provide further support for the theory of residual doubt without exposing himself to crossexamination as to his criminal history."

In finding this decision to be reasonable, the court cited an Ohio Supreme Court case that acknowledged the validity of using the residual doubt theory in mitigation:

Here, appellant chose not to introduce any of the mitigating factors listed in [the sentencing statute]. Rather, he presented further evidence in an attempt to instill in the jury a reasonable doubt of guilt, with the apparent aim of persuading the jury that the death penalty should not be imposed where some doubt as to guilt remained. The proclamation of innocence is a factor relevant to the issue of whether the sentence should be imposed. 178

In a last category of cases, the courts have denied relief for procedural reasons, such as that the claim of ineffective assistance is barred by the doctrine of res judicata, l79 or by waiver,'8 or that the defendant's assertion of ineffective assistance was insufficient to warrant relief.181 For example, in Commonwealth v. Wilson,182 the Pennsylvania Supreme Court found the defendant's assertion that his counsel was ineffective for failing to present evidence that the defendant was acting under extreme mental or emotional disturbance did not warrant relief.

In arguing his claim of ineffectiveness, Appellant has not identified what evidence of mitigation defense counsel should have presented, nor has he alleged that any such evidence was available. . . . [T]his Court expressly reaffirmed its refusal to consider abstract claims of ineffectiveness such as where a defendant fails to suggest an offer of proof of any mitigating factor which could have been presented. Because Appellant has done nothing more than make an abstract allegation in the instant case, this claim of ineffectiveness must fail.83

The United States Court of Appeals for the Fifth Circuit used similar reasoning in Smith v. Black,'84 stating that it is not enough to allege a general failure to produce sufficient mitigation.'85 Rather, the defendant must specify one of two things: what other mitigating evidence was available or how that evidence could have affected the jury's decision.186

Whether a court casts its grounds for failing to find a constitutional violation of the right to counsel for failure to hire or use a mitigation expert in terms of the defendant's failure to meet either or both of the Strickland prongs, as a reasonable tactical decision, or as a procedural matter, the result is the same-affirmance of the death penalty in all but the very few cases in which counsel's performance is so deficient that the defendant can satisfy the high hurdle of Strickland and its progeny.

C. Checklist for Effective Use of Mitigation Experts

To avoid being identified as ineffective in failing to hire or use a mitigation expert in that rare case that meets both prongs of Strickland, counsel should:

Associate co-counsel on the case. Only a rare lawyer can handle both the guilt and penalty phases of a capital case in an effective manner without the assistance of another lawyer.' Some states require the appointment of two counsel in death penalty cases.'88

Use the discovery process to obtain all exculpatory or mitigating evidence in the possession of the prosecution. If the defendant will not cooperate or states he does not want counsel to contact any family members and so forth, consider hiring a professional to determine why the defendant is acting in this manner and how and whether to overcome it.

Obtain the defendant's health, mental health, employment, school, military, criminal, and other records as early as possible. Obtain relevant records of close family members, particularly health records. Have the client sign the proper, appropriate records release authorizations the first time you meet with the client. Factor into any court schedule that healthcare providers routinely require sixty days to provide records. Also be prepared to encounter delays or obstacles in obtaining records of mental health treatment, AIDS, other sexually transmitted diseases, alcohol and drug abuse treatment, and other particularly sensitive information.

Begin the process of identifying potential mitigation experts as soon as possible.

Hire investigators and/or mitigation experts as soon as possible. If the defendant is indigent, it may be necessary to use the investigator to develop enough mitigation information to be able to prove the need for appointment of a mitigation expert to a judge, as discussed above. 189

Obtain a medical and a psychiatric/psychological evaluation of the defendant as soon as possible.

Ensure that you, your investigator, or your mitigation expert interview all leads obtained by review of the records you have obtained. Investigate the prosecution's aggravation evidence and victim impact evidence to determine whether you can neutralize or weaken it.

Begin strategizing early on how to integrate a theory of mitigation for the penalty phase with the theory of the defense in the guilt phase. Document all attempts to gather evidence in mitigation. Paranoia may be the only way to go when the world is out to get you, but if an allegation of ineffective assistance of counsel does later surface, regardless of how brilliant the defense was, a large file folder or, better yet, a big box, filled with documentation of all your efforts to gather mitigation evidence can be a great help when "defending" yourself against such a claim.

If possible, test the effectiveness of the mitigation evidence on people uninvolved with the case with the same background as the potential jurors.

Provide discovery as required to the prosecution so as to be able to adduce the mitigation evidence you have compiled. Plan for the introduction of mitigation materials into evidence. Make the mitigation evidence as effective as possible by, to the extent consistent with your overall tactics for the case, integrating it into voir dire, challenges, opening statement, the case in chief, and arguments.

One commentator summed up this duty as follows:Counsel's obligation to discover and appropriately present all potentially beneficial mitigating evidence at the penalty phase should influence everything the attorney does before and during trial: it should shape the relationship with the client, prosecutor, court personnel, and jurors; it should determine how voir dire proceeds, how potential jurors are questioned, which potential jurors are challenged for cause and which peremptorily; and it should directly affect the nature of the case presented during the guilt trial and the affirmative mitigating case put on at the penalty trial.190Regardless of whether the standard for ineffective assistance of counsel is too low and regardless of whether only a few cases have found counsel to be ineffective for either investigating or failing to investigate mitigation evidence or calling or failing to call a mitigation expert to testify, use of this checklist can help counsel avoid being identified as actually being ineffective while, more importantly, helping counsel do a better job for the defendant.

ERRATA

The Death Penalty Information Centerreports:Florida Executions Stayed by U.S. Supreme Court and Governor Bush

The execution of Linroy Bottoson, scheduled for February 5, was stayed by the U.S. Supreme Court. Florida employs judge sentencing in death cases, an issue under consideration by the High Court (see below). Two hours after the Bottoson's stay, Governor Bush announced that he would issue an executive order halting the execution of Robert Trease, who was scheduled for execution on February 7. Citing the Supreme Court's decisions to stay Bottoson and Amos King's (see below) cases, Bush stayed Trease's execution "until further action is taken by the [C]ourt." (Associated Press, 2/6/02).

NEW RESOURCES: The Death Penlaty and "Lingering Doubt"

A recent article by Prof. Margery Koosed urges states to adopt the Model Penal Code's exclusion of the death penalty when the evidence does not foreclose all doubt of a defendant's guilt. Koosed argues that such a standard would help prevent wrongful executions and lessen burdens on the justice system. The article also considers the effects that the Supreme Court's decision in Apprendi v. New Jersey will have on capital judge-sentencing schemes (see below). ("Averting Mistaken Executions by Adopting the Model Penal Code's Exclusion of Death in the Presence of Lingering Doubt," 21 Northern Illinois University Law Review 41 (2001)) See also, Law Review Articles.

NEW VOICES: Virginia State Legislator Voices Support for Moratorium on Executions

In a recent op-ed, Virginia Delegate Vincent F. Callahan Jr., (R-McLean) stated his support for a halt to executions in Virginia:

In the past, I have been a strong advocate of the death penalty. I voted in favor of the resumption of capital punishment in 1977, and I have supported additional provisions expanding the categories of criminal actions for which the death penalty may be imposed.

However, I have now become one of those who believe that we must take another look at the death penalty. . . .

In fact, I'm now proposing a 2-year moratorium on executions.

. . .

I believe it is time for a new dialogue on the death penalty. New scientific evidence, such as DNA testing, has revolutionized all areas of crime detection, criminal prosecution and criminal defense.

. . .

A moratorium on the death penalty will give elected officials and the general public the chance to take a hard look at the evidence to see whether the death penalty is serving its purpose.

(The Roanoke Times, 1/31/02) Read the entire op-ed. See also, New Voices.

Legislative Updates:

A bill to end the death penalty for juvenile offenders is advancing in Indiana.

A bill to exempt defendants with mental retardation is moving ahead in Virginia.

Iowa recently turned back a bill to re-instate the death penalty.

Alabama is considering abandoning the electric chair.

For information about other legislative initiatives, see the Justice Project's Web site. See also, Changes in the Death Penalty Laws Around the U.S.

NEW VOICES: California Gubernatorial Candidate Open to Moratorium

Richard Riordan, a Republican currently campaigning for Governor of California, recently stated that he supports the death penalty but would be open to halting executions in the state if it were shown that they were being unfairly imposed. "Are we applying the death penalty fairly, honestly?" asked Riordan, the former mayor of Los Angeles. "You can't be afraid to look at things like that." (San Jose Mercury News, 1/24/02) California currently has the largest death row population in the nation, with more than 600 inmates. See also, New Voices.

New North Carolina Law Secures Convictions and Saves Money

A new law in North Carolina allows prosecutors to seek a first-degree murder conviction with a sentence of life in prison without parole instead of the death penalty. "I think that was an excellent change in the law," said District Attorney David Flaherty Jr. "I think we'll have more first-degree convictions. It will cut down on our backlog." Previously, prosecutors were required to seek the death penalty if one or more aggravating factors were present in a murder case. The new law allows prosecutors to secure a conviction, sometimes through a plea bargain, sparing the defendant a possible death sentence, and keeping the victims' families from the pain of a trial and subsequent appeals. It will also save the state considerable amounts of money. According to a 1993 Duke University study, seeking the death penalty adds more than $300,000 to the cost of a non-capital case, more than the $166,000 savings in prison costs. (Charlotte Observer, 1/23/02) See also, Costs of the death penalty.

NEW VOICES: Ann Landers Opposed to the Death Penalty

In her nationally syndicated column, Ann Landers stated that she was "strictly opposed to the death penalty, no matter how heinous the crime." Landers, who was responding to a letter from the Constitution Project, noted her support for the Project's proposed legislative reforms of the death penalty, calling them "compassionate and sensible." (Washington Post, 1/27/02)

The Constitution Project's Death Penalty Initiative, a bipartisan committee of death penalty supporters and opponents concerned about the risks of wrongful executions, recommended 18 reforms for the federal and state death penalty systems. For more information, visit the Constitution Project's Web site.

California Inmate Executed Despite Trial Lawyer's Record of Ineffectiveness

California executed Stephen Wayne Anderson on January 29, despite evidence that his trial attorney was unprepared. Anderson's case was one of the first three capital cases defended by Sherman Ames. In Anderson's case, Ames did not meet with him until the morning of the trial and called few mitigating witnesses during the sentencing phase. In the other two cases, both defendants had their sentences overturned due to Ames' ineffectiveness. In one case, Ames declared himself ready for trial after working 12.5 hours on the case, and argued to the jury that executing the defendant would be a favorable outcome for him.

Although the federal appeals court has recently decided to allow Anderson's execution to go forward, six of the court's judges believe Anderson' s case deserves closer scrutiny in light of Ames' prior ineffectiveness. "Having twice determined that Ames was constitutionally ineffective in representing capital clients. . . we should not now permit an execution to proceed in the case of still another capital defendant whose life the state has placed in Ames' hands, at least not without reviewing the case en banc," wrote Judge Stephen Reinhardt in his dissent. (The Recorder, 1/22/02) For more information on the case, visit Death Penalty Focus' s Web site.

If you spot an error or questionable use in any "analysis" please do not hesitate to contact the weekly at oops@karlkeys.com so that a correction may issue.

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OTHE RESOURCES You might want to check out the following internet resources other than this newsletter. Findaw.com's new service provides e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com, including both a free weekly criminal law and state court decisions. Similarly, www.lidb.com (Louisiana's public defender), probono.net (ABA) & www.capdefnet.org (federal defender) have many prepackaged motions and law guides dealing with death penalty issue. Finally, there are a few legal professional only discussion groups that can help you with any questions you might have (please drop an email to find out more)

NOTICES, DISCLAIMERS & CREDITS

DISCLAIMER: Karl Keys, Esq* is a Massachusetts and prepares this Weekly for educational & information purposes. Pursuant to the applicable rules governing attorney conduct this weekly & related website may be construed as legal advertising. No claim as to legal specialization within the meaning of that term is made. Use does not constitute creation of an attorney-client relationship. If you have a legal question contact a lawyer authorized to practice in your state. Complete disclaimer located at http://capitaldefenseweekly.com/disclaimer.html.