Capital Defense Weekly, July 10, 2006

By Capital Defense Newsletter

Jul 9, 2006

Five favorable decisions are noted this week.

Trial counsel inFrederick Dickerson v. Bagleymade a classic mistake, failing to adequately investigate mitigation evidence. "It seems that counsel, as a result of an ex parte conversation with one of the judges, before waiving a jury, thought that the judges would not impose the death penalty . . . He was wrong. But based on this conclusion, he not only waived the jury but also waived conducting the normal, necessary investigation required by ABA Guidelines referred to by the Supreme Court and our Court. Without conducting a complete mitigation investigation, counsel did not know what an investigation would reveal and had no basis for making a “strategic decision” based on the ex parte conversation that the judges would not impose the death penalty based on 'diminished capacity'.” The opinion is quoted from at length below due to the importance of the discussion on the objective standards for determining IAC, here (at least in part) the 2003 ABA Guidelines.

The Ninth Circuit grants relief inArave v. Mawell Hoffman. Counsel received an offer to plead for life. The state of the law on a key issue in the case, however, was in flux and counsel thought he might win the issue -- winning that issue would only result in a life sentence anyway. Here the panel holds there was no upside to the defense's legal theory and only the down side of death if he was wrong.

InAndre Stevens v. Hornthe Third Circuit, in an unpublished opinion, grants relief. The trial court dismissed a juror who simply stated she opposed the death penalty. The trial court didn't follow-up but just said words to the effect of "thank you" and excused the juror instead of inquiring in to whether she could set aside her views. "The trial judge did not have enough information before him to conclude that she 'would be unable to faithfully and impartially apply the law'."

The Sixth Circuit upholds a stay and a rarely examined issued, exhaustion and next-friend standing inLina Martiniano (next friend for Paul Reid) v. Bell,. Paul Reid volunteered, Martiniano filed a next friend petition. A stay was issued, and the the stay was affirmed (this short opinion followed after the scheduled execution date). The panel ultimately splits, however, on the underlying question of does a "next friend" have to exhaust all issues.

The New Jersey Supreme Court inState v. Anthony DiFriscocorrects an error it probably should have fixed several years ago. The majority holds that the Court's prior rulings in this case should have resulted in DiFrisco being taken off of death row.New Jersey, like most states, has a proportionality review for death sentences. Until 1999 the proportionality review and sentence review on direct appeal occurred in two separate proceedings. In 1994, the New Jersey Supreme Court upheld DiFrisco's death sentence by a vote of 4-3, a year later 5-2 on proportionality review. During the second vote as to proportionality, one of the justices who had originally voted to uphold DiFrisco'’s death sentence dissented. In all, four justices of the seven justices voted to reverse his the two separate proceedings. On postconviction review theDiFrisco Court holds 4-3 in his favor that he should be taken off of death row.

Bobby Wilcher's execution in Mississippi was stayed, 6-3 (Roberts, Scalia, Alito dissenting), by the SCOTUS Tuesday night. The petition raisesthree questions. The first contends, the SCOTUSBlog notes, that the "Circuit Court violated the Supreme Court's 1996 decision inLonchar v. Thomas, barring federal courts from dismissing a first habeas petition for reasons other than those spelled out in habeas law. The petition argues that Wilcher was denied relief because of the lateness of the filing of his attempt to resume his challenge. The second question claims a right to appeal over a due process violation in the District Court proceeding, and the final question claims a right to appeal over his competency to abandon his challenge."

In a matter that the order and/or opinion has not been located, the "Texas Court of Criminal Appeals has ordered a Waco state district court to determine within 90 days if there is evidence to support death row inmate Ramiro Rubi Ibarra’s claim that he is mentally retarded." Ibarra's other substantial claim relating to the Vienna Convention was apparently not granted a hearing. TheWaco TribuneSaturday notes has a story on ithere.

New scholarship is noted. What follows has been provided by Tarlton Law Library and usually represents articles that will be available in the coming weeks (if not already available) on Westlaw, Lexis and HeinOnline.In a much discussed and anticipated article, Eric Freedman'sGiarratanoIs a Scarecrow: The Right to Counsel in State Capital Postconviction Proceedings,91 Cornell Law Review 1079 (2006), examines the right to counsel in post-conviction proceedings and how that issue is still very much in play, "that Giarratano is a lifeless husk and calling upon the Supreme Court to inter it." Sheri Lynn Johnson appears to illustrate raw intellectual courage in herWishing Petitioners to Death: Factual Misrepresentations in Fourth Circuit Capital Cases,91 Cornell Law Review 1105 (2006), which argues that "when convenient, the Fourth Circuit plays fast and loose with the facts in capital cases, and that its misrepresentations of facts permit functionally unreviewable legal conclusions that lead to executions."AprilTrimble analyzes at length current IAC law inRecent Decisions, Defense Counsel Rendered Ineffective Assistance at the Sentencing Phase of a Capital Trial by Failing to Find Mitigating Evidence Contained in the Defendant's Prior Conviction Record: Rompilla v. Beard,44 Duquesne Law Review 363 (2006). Kristopher Haines argues it is "time to strike down the use of lethal injection in the killing of our condemned" inComments, Lethally Injected: Devolving Standards of Decency in American Society, 34 Capital University Law Review 459 (2005). The links, unfortunately, are from Tarlton and link only to the first page of the article.

In the news this week theCleveland Plain Dealerhas been running articles on Ohio's death row, as well as the actions of ex-Cuyahoga County Prosecutor Carmen Marino in securing death sentences, including stories entitled:Execution postponed, prosecution questioned;Justice served, or justice derailed: Courts blast ex-prosecutor's actions; three may be wrongly on death row;Defense didn't get all the facts in murder case;Does it matter who pulled the trigger? As in other 1980s cases, questions remain but execution looms; andTwo lives in the balance in cases clouded by misconduct. DPICreports on arecent studyof Colorado's death penaltythat concluded "that the death penalty was most likely to be sought for homicides with white female victims" and the rate of seeking death was " 4.2 times higher for those who kill whites than for those who kill black" victims. Prof. Michael Meltsner hasthis Boston Globe editorialmarking the 30th anniversary of the return of the death penalty in the USA.The Innocence Bloghasthis updateon developments from crime labs around the nation.

Looking ahead to next week, the Fourth Circuit has granted an evidentiary hearing on a claim of actual juror bias inConaway v. Polk. One of the jurors was a "double first cousin" of Conaway's co-defendant. The relationship is enough, the panel holds, to imply bias, especially, as here, the issue at bar was whether the first cousin or Conaway was the killer. A remand for further evidence, therefore, is necessary.

Full edition is available athttp://www.capitaldefenseweekly.com/archives/060710.htm.

Recent Executions

July

11 Derrick O'Brien (Texas)

12 Rocky Barton (Ohio--vol)

Scheduled Executions

July

14 William Downs (South Carolina--vol)

19 Maurice Brown (Texas)

20 Robert Anderson (Texas)

20 Brandon Hedrick (Virginia)

25 Allen Bridgers (Texas)

27 Michael Lenz (Virginia)

More Execution information

In Favor of Life or Liberty

Andre Stevens v. Horn, 2006 U.S. App. LEXIS 17043 (3rd Cir 7/6/2006) (unpublished) The simple statement by a juror that they oppose the death penalty is not enough to excuse the juror, a trial court must determine that the juror can't set aside that belief before excusing them under Witherspoon.

Lina Martiniano (next friend for Paul Reid) v. Bell, 2006 U.S. App. LEXIS 16912 (6th Cir. 7/7/2006) Stay upheld as to next friend standing, however, panel splits on the issue of whether a next friend petition needs to exhaust all claims and whether the issues here are indeed exhausted.

Frederick Dickerson v. Bagley, 2006 U.S. App. LEXIS 16956 (6th Cir. 7/7/2006) Trial counsel was ineffective for failing to develop mitigating evidence about Dickerson’s family background and mental limitations.

Arave v. Mawell Hoffman, 2006 U.S. App. LEXIS 16770 (9th Cir 7/5/2006) Relief granted on trial counsel's performance during plea negotiations.

State v. Anthony DiFrisco, 2006 N.J. LEXIS 1070 (NJ 7/5/2006) The majority holds that the Court's prior rulings in this case should have resulted in DiFrisco being taken off of death row.New Jersey, like most states, has a proportionality review for death sentences. Until 1999 the proportionality review and sentence review on direct appeal occurred in two separate proceedings. In 1994, the New Jersey Supreme Court upheld DiFrisco'’s death sentence by a vote of 4-3, a year later 5-2 on proportionality review. During the second vote as to proportionality, one of the justices who had originally voted to uphold DiFrisco'’s death sentence dissented. In all four justices voted to reverse his the two separate proceedings DiFrisco however remained under sentence of death.The DiFrisco Court ruled 4-3 in his favor that he should be taken off of death row.

Favoring Death

Warren Gregory v. Polk, 2006 U.S. App. LEXIS 17060 (4th Cir 7/7/2006) (unpublished) Relief denied; "the district court did not err in denying Gregory’s habeas petition based on an alleged Brady violation."

United States v. Orlando Hall, 2006 U.S. App. LEXIS 16826 (5th Cir 7/5/2006) COA & relief denied on five substantive claims: ineffective assistance of counsel claim (failure to investigate mitigation evidence); extraneous influence on the jury claim; an incomplete indictment claim; a prosecutorial misconduct claim, and a selective prosecution claim. Relief denied on procedural claims that "the district court erred by limiting the June 7, 2004, evidentiary hearing solely to his extraneous influence upon the jury claims;" "whether the district court erred in denying all discovery' and "the district court erred in denying him reasonable additional funds to develop further evidence."

Carlos Granados v. Quarterman, 2006 U.S. App. LEXIS 16828 (5th Cir 7/5/2006) Relief denied on claims that " his lawyer injected race into the deliberations of the jury by sponsoring testimony and arguing to the jury in the sentencing phase that Hispanics and African Americans are more likely to be a future danger to society because of their race" and the applicability of Ring v. Arizona and Apprendi v. New Jersey to the Texas mitigation special issue.

John Middleton v. Roper, 2006 U.S. App. LEXIS 16834 (8th Cir 7/6/2006) Relief denied on claims relating to Middleton's absence at three pretrial motions hearings; a claimed agreement between the prosecutor and two witnesses; hearsay testimony that was admitted under the state law doctrine of curative admissibility; Crawford; and prosecutor's closing arguments violated Caldwell v. Mississippi.

Anthony Farina v. State, 2006 Fla. LEXIS 1482 (FL 7/6/2006) (dissent) Split 4-3 on an issue (detailed more below) on the utter randomness of how Farina got death while another who was more culpable did not and insertion of religious law into these secular proceedings.

Comm. v. Michael Rainey, 2006 Pa. LEXIS 1144 (PA 7/7/2006) Appellant's motion for recusal of Justice Castille refused by Justice Castille, even though he was the district attorney in the charge at the time of this capital prosecution and purportedly fostered an atmosphere of racial intolerance in the selection of jury pools.

State v. James Were, 2006 Ohio 3511 (Ohio 1st App 7/7/2006) Relief denied on remand from the state supreme court for expansion of the record, reexamination of the claims relating to the expanded record and, again, statutory review for proportionality.

Selected Excerptsfrom, & Commentary on, this Edition's Cases

Andre Stevens v. Horn, 2006 U.S. App. LEXIS 17043 (3rd Cir 7/6/2006)) The trial court dismissed a juror who stated opposition to the death penalty instead of inquiring in to whether she could set aside her views. "The trial judge did not have enough information before him to conclude that she 'would be unable to faithfully and impartially apply the law.'Witt, 469 U.S. at 426. The state courts' finding of bias was not supported by anything more than speculation and, accordingly, Stevens met his burden of showing the constitutional violation by the requisite clear and convincing evidence."

During voir dire prior to the sentencing phase, the following colloquy occurred between potential juror Nancy Hartling and the judge:

Judge: Do you have an opinion about the death penalty which would prevent you from following the Court's instructions as to what penalty should be imposed?

Nancy Hartling: I don't believe in the death penalty.

Judge: Very well.

Prosecutor: Challenge for cause, Your Honor.

Judge [*20] : Very well. You are excused, thank you.

Stevens's attorney did not object to the exclusion or seek in any way to rehabilitate Hartling. Stevens argued in his habeas petition that the removal of Hartling violated Witherspoon.

In Witherspoon, the Supreme Court held that a member of a jury panel may not be excused for cause simply for "voic[ing] general objections to the death penalty or express[ing] conscientious or religious scruples against its infliction." 391 U.S. at 522. Otherwise, a defendant's right to a fair and impartial jury would be violated. See Szuchon v. Lehman, 273 F.3d 299, 327 (3d Cir. 2001). In Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985) (internal quotation and citation omitted), the Court clarified that the proper standard for determining a Witherspoon violation "is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." This standard does not require, as footnotes in Witherspoon itself intimated, that a juror's bias against the death penalty be shown with "unmistakable [*21] clarity." Id. This is so because "many veniremen simply cannot be asked enough questions to reach the point where their bias has been made 'unmistakably clear.'" Id. at 424-25. It is enough to justify an excusal that the trial judge be "left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law." Id. at 426. A trial judge's finding under this standard is a factual determination, and it is therefore entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). Martini v. Hendricks, 348 F.3d 360, 363 (3d Cir. 2003), cert. denied, 543 U.S. 1025, 125 S. Ct. 662, 160 L. Ed. 2d 503 (2004). n10 This recognizes that a trial judge is in the best position to judge the credibility and demeanor of potential jurors during voir dire. Witt, 469 U.S. at 428; Szuchon, 273 F.3d at 328.

As detailed above, the trial judge--acting on the prosecutor's objection--excused Hartling for cause after she simply expressed her personal opposition to the death penalty. No follow-up questioning ensued to determine whether Hartling could, despite her qualms about the death penalty, set aside her views and follow the trial court's instructions and the law. As the Commonwealth appears to recognize, if we were conducting de novo review, we would have to find a Witherspoon violation. Indeed, in Szuchon, conducting de novo review, we found a Witherspoon violation in an interchange that was, if anything, slightly more expansive than the colloquy here.See Szuchon, 273 F.3d at 329.

Szuchon was governed by a less deferential standard of review. Under the present, more deferential regime, the state courts' finding that Hartling was biased against the death penalty is presumed to be correct, and Stevens bears "the burden of rebutting the presumption . . . by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). n12 We agree with the District Court that Stevens met that burden here. As noted, and as in Szuchon [*24] , the prospective juror--here, Hartling--indicated no more than that she opposed the death penalty. Because the trial judge did not follow up Hartling's single statement with any follow-up questioning, there is simply no tangible evidence in the record to support the finding of the state courts. In the absence of any evidence in the record to support the state courts' finding, it must be true that Stevens has established, by the requisite clear and convincing evidence, that Hartling was removed for cause on a "broader basis than inability to follow the law or abide by [her] oath [as a juror]." Adams v. Tex., 448 U.S. 38, 48, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980); see also Gray v. Miss., 481 U.S. 648, 652 n.3, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987) ("[a] motion to excuse a venire member for cause of course must be supported by specified causes or reasons that demonstrate, as a matter of law, the venire member is not qualified to serve"). Indeed, the record supports but a single conclusion--that Hartling was removed merely because she expressed opposition to the death penalty. This violated Stevens's right to a fair and impartial jury. Witherspoon, 391 U.S. at 522. [*25]

In rejecting Stevens's Witherspoon claim, the state courts relied on the trial judge's statement that, although he could not remember the interchange with Hartling, he must have been relying on something emphatic in her demeanor. Stevens, 739 A.2d at 521. A trial judge is certainly entitled to rely on a potential juror's demeanor. See, e.g., Witt, 469 U.S. at 434. However, the dispositive question under Witherspoon and its progeny [*26] is "not whether a reviewing court might disagree with the trial court's findings, but whether those findings are fairly supported by the record." Id. As we indicated in Szuchon, the trial judge--when questioning a potential juror--has an obligation "to make a record of [any] bias" shown by the juror. 273 F.3d at 328 (citing Gray). By relying on supposition that there must have been something "emphatic" about Hartling's demeanor, the state courts failed to heed the Supreme Court's rule that findings of bias must be "fairly supported by the record." Witt, 469 U.S. at 434.

For that matter, even if we accepted the trial judge's supposition that he relied on something emphatic in Hartling's demeanor, the result would be no different. Even if Hartling emphatically stated that she did not "believe in" the death penalty, all that could reasonably be inferred is that her moral opposition to capital punishment was strongly felt. Supreme Court precedent makes clear, however, that the true question was whether Hartling would have been able to set aside her "conscientious or religious scruples against" the death penalty, Witherspoon, 391 U.S. at 522, [*27] and "faithfully and impartially apply the law." Witt, 469 U.S. at 426. That Hartling's "conscientious or religious scruples" were strongly felt says remarkably little about whether she could follow the trial court's instructions. See Lockhart v. McCree, 476 U.S. 162, 176, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986) ("[i]t is important to remember that not all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law"); see also Szuchon, 273 F.3d at 331 (holding that the fact that a potential juror did not "believe" in the death penalty was "by no means the equivalent of being unwilling to impose it"). The state courts had no basis for concluding that Hartling's "views would [have] prevent[ed] or substantially impair[ed] the performance of [her] duties as a juror in accordance with [her] instructions and [her] oath." Witt, 469 U.S. at 424.

At the hearing before the district court in this case, the petitioner presented testimony of an expert, Dr. George W. Woods, Jr., and presented the affidavits of other mental health experts, indicating that Reid is incompetent. The State asked for an opportunity to evaluate Reid and could not complete the evaluation prior to the scheduled execution. The State raised the question that the petitioner is not entitled to a stay because she was intentionally dilatory by filing her case on the eve of execution. On the other hand, the petitioner suggests that the State knew after the Kirkpatrick decision that the question of Reid's competency would be an issue eventually, and the State should have taken measures to evaluate Reid at some time between 2003 and the execution date.

The district court found that there was sufficient evidence to raise a reasonable doubt about Reid's competence under [*3] Kirkpatrick and that the parties are entitled to a full evidentiary hearing on the question of his competence. We instruct the district court that, before proceeding further, it should determine whether there is a state post-conviction case currently ongoing that would suggest that Reid has not exhausted his state remedies before filing the petition in the case. See 28 U.S.C. § 2254(b)(1). n1 In the event the district court determines that the petitioner has met the requirements of § 2254(b)(1), the court should set a full evidentiary hearing on the competency of Reid, which is relevant to whether Martiniano may proceed on behalf of Reid in this case. See Rees v. Peyton, 384 U.S. 312, 314, 86 S. Ct. 1505, 16 L. Ed. 2d 583 (1966). It also may have a bearing on whether Reid is competent to be executed under the criteria of Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986), which was cited in the petition for a writ of habeas corpus filed in this case. If the district court finds Reid to be incompetent, then it should allow Linda Martiniano or some other suitable person to proceed as his next friend in appropriate post-conviction [*4] proceedings. If he is found competent to waive his further appeals or to proceed on his own behalf, then the next friend proceedings should be terminated.

To establish deficiency, the first element of the Strickland test, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Carrying forward the "effective assistance of counsel" principles first established in capital cases in Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), and Strickland, the Supreme Court, in the last three years, in two different death penalty ineffective assistance of counsel cases, has made it clear and come down hard on the point that a thorough and complete mitigation investigation is absolutely necessary in capital cases. The Court has relied on 1989 and 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, for the required norms and duties of counsel. Wiggins v. Smith, 539 U.S. 510, 524, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (incorporating [*8] the 1989 Guidelines as stating the required professional obligation to conduct a complete mitigation investigation); Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 2466 n.7, 162 L. Ed. 2d 360 (2005) (relying on 2003 ABA Guidelines as "later, and current, ABA Guidelines relating to death penalty defense"). Our Court has also made it clear that this means that counsel for defendants in capital cases must fully comply with these professional norms, Hamblin v. Mitchell, 354 F.3d 482, 485-88 (6th Cir. 2003) (briefly outlining the historical development of the requirement of effective assistance of counsel in capital cases). In Hamblin we said that in order to satisfy the requirements of the effective assistance of counsel requirement of the Sixth Amendment, ABA Guidelines establish the relevant criteria:

New ABA Guidelines adopted in 2003 simply explain in greater detail than the 1989 Guidelines the obligations of counsel to investigate mitigating evidence. The 2003 ABA Guidelines do not depart in principle or concept from Strickland, Wiggins or our court's previous cases concerning counsel's obligation to investigate mitigation circumstances [*9] . . . .Id. at 487. We then quoted the ABA Guidelines that create the required standards of performance for counsel in capital cases regarding the investigation of mitigating circumstances, norms that Dickerson's counsel fell far short of meeting:Counsel's duty to investigate and present mitigating evidence is now well established. The duty to investigate exists regardless of the expressed desires of a client. Nor may counsel sit idly by, thinking that investigation would be futile.

Counsel cannot responsibly advise a client about the merits of different courses of action, the client cannot make informed decisions, and counsel cannot be sure of the client's competency to make such decisions unless counsel has first conducted a thorough investigation with respect to both phases of the case.

Because the sentences in a capital case must consider in mitigation, anything in the life of the defendant which might militate against the appropriateness of the death penalty for the defendant, penalty phase preparation requires extensive and generally unparalleled investigation into personal and family history. In the case of the client, [*10] this begins with the moment of conception [i.e., undertaking representation of the capital defendant]. Counsel needs to explore:

(1)Medical history, (including hospitalizations, mental and physical illness or injury, alcohol and drug use, pre-natal and birth trauma, malnutrition, developmental delays, and neurological damage).

(2)Family and social history, (including physical, sexual or emotional abuse; family history of mental illness, cognitive impairments, substance abuse, or domestic violence; poverty, familial instability, neighborhood environment and peer influence); other traumatic events such as exposure to criminal violence, the loss of a loved one or a natural disaster; experiences of racism or other social or ethnic bias; cultural or religious influences; failures of government or social intervention (e.g., failure to intervene or provide necessary services, placement in poor quality foster care or juvenile detention facilities)

(3)

Educational history (including achievement, performance, behavior, and activities), special educational needs (including cognitive limitations and learning disabilities) and opportunity or lack thereof, and activities

(5)

Employment and training history (including skills and performance, and barriers to employability);

The mitigation investigation should begin as quickly as possible, because it may affect the investigation of first phase defense (e.g., by suggesting additional areas for questioning police officers or other witnesses), decisions about the need for expert evaluation (including competency, mental retardation, or insanity), motion practice, and plea negotiations.

It is necessary to locate and interview the client's family members (who may suffer from some of the same impairments as the client), and virtually everyone else who knew the client and his family, including neighbors, teachers, clergy, case workers, doctors, correctional, probation or parole officers, and others. Records -- from courts, government agencies, the military, employers, etc. -- can contain a wealth of mitigating evidence, documenting or providing clues to childhood abuse, retardation, brain damage, and/or mental illness, and corroborating witnesses' recollections. Records should be requested concerning not only the client, but also his parents, grandparents, siblings, [*12] and children. A multi-generational investigation frequently discloses significant patterns of family dysfunction and may help establish or strengthen a diagnosis or underscore the hereditary nature of a particular impairment. The collection of corroborating information from multiple sources -- a time-consuming task -- is important wherever possible to ensure the reliability and thus the persuasiveness of the evidence.

ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases P 10.7 (2003) at pp. 80-83

Our Court's precedents also make clear that conducting a partial, but ultimately incomplete, mitigation investigation does not satisfy Strickland's requirements. In Harries v. Bell, 417 F.3d 631, 638 (6th Cir. 2005), a case applying the pre-AEDPA standard of review, this Court found counsel's performance at sentencing deficient based on counsel's failure to investigate, even though counsel had conducted various interviews of the petitioner's family and acquaintances and had sought other information, including two competency evaluations. The Court held that counsel's performance was deficient because they failed [*13] to conduct a thorough investigation of the petitioner's mental health and family background, despite indications of his mental illness and troubled childhood. Id

The district court, in its opinion below, faithfully outlined Dickerson's ineffective assistance of counsel claim in the following language

Dickerson claims that counsel were ineffective for failing to obtain mitigation evidence and present it during trial. Had counsel done so, Dickerson claims, counsel could have collected a host of mitigating evidence regarding his family background, including:

father who denied his biological relationship with him;
The fact that Dickerson's siblings may all have different fathers;
Dickerson experienced early problems with bed wetting and stuttering;
Dickerson's mother referred to him as "the moron";
Dickerson had an ideation attachment to his mother that resulted in his failure to develop a meaningful relationship with another woman;
Dickerson was continually teased at school and became quiet and withdrawn;
Dickerson was raised in an atmosphere of pimps, prostitutes, and drug dealers. The younger children generally had to fight their [*14] way home from school. Several homosexual advances were made upon Dickerson.
Dickerson's relationships with women were unsuccessful. He fathered children with several women;
Dickerson's relationship with Denise Howard centered around prostitution and drugs. He believed that he had contracted a venereal disease from her.
Dickerson had a full-scale I.Q. of 77, placing him in the lower seven percent of cognitive ability;
Psychological testing would have explained his primitive thinking, how it developed and the effect the combination of the above had on his ability to make appropriate choices. It would have revealed that he had a borderline personality disorder. This disorder and its nexus to the offense would have been available to the panel.

Petition, at 15. Respondent does not allege that this claim is procedurally defaulted. Thus, the Court will address the claim on the merits

Dickerson v. Mitchell, 336 F. Supp. 2d 770, 809 (N.D. Ohio 2004)

The basis for these eleven factual propositions is a series of affidavits, including those of relatives, family friends and acquaintances, and a psychologist. ( See generally App. 2686-2714, 2723-30, 2825-28.) [*15] The district court, like the state appellate court in this case, did not reject the ineffective assistance claim on any factual ground. Like the Ohio courts, it accepted Dickerson's eleven-point factual statement of counsel's failures. It accepted these facts as well-established in the record. Neither the district court, nor the state court, asserts that defense counsel performed a full mitigation investigation, or discovered or offered at the trial any proof regarding this list of eleven propositions of fact asserted by Dickerson. The reasoning of both courts rejects the claim only because of so-called "strategic decisions" of counsel not to conduct such a comprehensive investigation. The district court simply accepted the reasoning of the Ohio state court by adopting its language, as follows

[T]he Sixth District Court of Appeals did not unreasonably apply United States Supreme Court precedent in its post-conviction appeal opinion denying this claim. It stated:

The record in this case and the affidavits provided by the appellant clearly indicate that the appellant's trial counsel made strategic decisions concerning the presentation of witnesses and [*16] testimony during the mitigation phase of trial. Thus, the trial court correctly held that the appellant's trial counsel did prepare and present mitigation evidence and that the type of mitigation evidence presented at the mitigation phase of the trial was the result of tactical decisions made by the appellant's trial counsel. Strategy and tactical decisions exercised by defense counsel well within the range of professional reasonable judgment need not be analyzed by a reviewing court. Strickland, supra.

State v. Dickerson, 2000 Ohio App. LEXIS 83, No. L-98-1100, 2000 WL 28320, at *5 (Ohio Ct. App. Jan. 14, 2000). Although in summary form, the Sixth District's opinion is not an unreasonable application of Strickland and its progeny

Dickerson, 336 F. Supp. 2d at 812-13 (emphasis added). These statements form the sole basis of the ruling of both courts on this issue. Neither court further explains what the "strategic" reasons of counsel were for not conducting any mitigation investigation of facts concerning Dickerson's "medical history," "family and social history," "educational history," or any of the other factors listed in the ABA [*17] Guidelines

2. "Strategic Decisions" Must Be Based on Full Informatio

It seems obvious that the decisions of the district court and the state court unreasonably apply Strickland, Wiggins, and Rompilla and do not comply with the requirements of Hamblin and Harries or our Court's opinion in Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003). These cases say that strategic choices made after less than complete investigation will not pass muster as an excuse when a full investigation would have revealed a large body of mitigating evidence. It is not reasonable to refuse to investigate when the investigator does not know the relevant facts the investigation will uncover. As the Supreme Court has made clear, an incomplete mitigation investigation resulting from "inattention, not reasoned strategic judgment" is unreasonable, as is abandoning "investigation at an unreasonable juncture, making a fully informed decision with respect to sentencing strategy impossible." Wiggins, 539 U.S. at 527-28, 534. Had the investigation been conducted, reasonable lawyers surely would not have limited the mitigation proof in this case to simply [*18] an effort to show only that Dickerson was "provoked" by jealousy and could not control his impulses, and therefore suffered from "diminished capacity" at the time of the crime. They would have put on proof that his low IQ brought him close to the line of retardation and that his family background and educational and social history showed extreme deprivation that affected his moral culpability. The only significant mitigation proof was the testimony of two mental health experts who had interviewed Dickerson for an hour and a half to determine if he was sane. They simply testified that he was fully sane but in emotional turmoil

conversation that the judges would not impose the death penalty based on "diminished capacity." It was not reasonable to limit his investigation to the crime itself and the immediate mental state of the defendant when the crime was committed. There was abundant mitigating evidence, much stronger evidence than the mental health testimony that Dickerson was sane when he committed the crime. Accordingly, the state court unreasonably applied clearly established Supreme Court precedent when it simply assumed that counsel's oversights were motivated by strategy, instead of requiring a complete and thorough mitigation investigation as mandated by It seems that counsel, as a result of an ex parte conversation with one of the judges, before waiving a jury, thought that the judges would not impose the death penalty. Based on that one brief conversation in which the judge only suggested that Dickerson give consideration to a waiver of jury trial in favor of an Ohio three-judge panel, counsel drew the conclusion that the judges would not invoke the death penalty. He thought that the ex parte judge would not have suggested a jury waiver but then vote to execute. He was wrong. But based on [*19] this conclusion, he not only waived the jury but also waived conducting the normal, necessary investigation required by ABA Guidelines referred to by the Supreme Court and our Court. Without conducting a complete mitigation investigation, counsel did not know what an investigation would reveal and had no basis for making a "strategic decision" based on the ex parteStrickland and its progeny

Arave v. Mawell Hoffman, 2006 U.S. App. LEXIS 16770 (9th Cir 7/5/2006) Relief granted on trial counsel's performance during plea negotiations.

On February 6, 1989, the Owyhee County prosecutor proposed that Hoffman plead guilty to first-degree murder in exchange for an agreement by the State not to pursue the death penalty against Hoffman during sentencing. The offer was set to expire on February 16, 1989. Wellman advised Hoffman to reject the plea agreement.

(1989). Based on Wellman based his advice on our en banc decision in Adamson v. Ricketts, 865 F.2d at 1029-39, filed on December 22, 1988, about six weeks before the plea offer was tendered. In Adamson, we held that Arizona's death penalty scheme was unconstitutional because it permitted sentencing facts to be found by the judge, and not the jury. See id. at 1023. Wellman noted the similarities between the Arizona statute found unconstitutional in Adamson and the Idaho death penalty statute. See Idaho Code § 19-2515Adamson, he advised Hoffman that he was unlikely to receive the death penalty because it was only a matter of time before Idaho's death penalty scheme would also be, in his view, found unconstitutional.

On January 9, 1989, before the prosecutor [*35] tendered the plea offer to Hoffman on February 6, 1989, the State of Arizona had already signaled its unhappiness with our ruling in Adamson by petitioning for rehearing. On February 1, 1989, this court stayed the mandate in Adamson pending the Supreme Court's disposition of the State's anticipated petition for certiorari to the Supreme Court. When Hoffman let the prosecutor's offer lapse on February 16, 1989, the State had not yet filed a petition for certiorari in Adamson, but it was a virtual guarantee that the State would do so.

On February 2, 1989, four days before the prosecutor tendered the plea offer, the Supreme Court of Arizona filed its decision in State v. Walton, 159 Ariz. 571, 769 P.2d 1017 (Ariz. 1989), overruled in part by Ring v. Arizona, 536 U.S. 584, 603, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), in which it reaffirmed its earlier view that jury sentencing was not constitutionally required in death penalty cases, directly contrary to our decision in Adamson. See Walton, 769 P.2d at 1030. Thus, on February 16, 1989, when Hoffman let the prosecutor's offer lapse, there was a clear and direct conflict between the Arizona [*36] Supreme Court's decision in Walton and our decision in Adamson. The State of Arizona had already clearly signaled its intention to appeal our decision in Adamson, and it was not hard to guess that the defendant in Walton would do the same.

Indeed, certiorari was sought in both cases. In October 1989, the Supreme Court granted certiorari in Walton, holding in abeyance the petition in Adamson. See Walton v. Arizona, 493 U.S. 808, 110 S. Ct. 49, 107 L. Ed. 2d 18 (1989). On June 27, 1990, the Supreme Court affirmed the Arizona Supreme Court's decision in Walton, thereby directly upholding the constitutionality of Arizona's judge-sentencing scheme in capital cases, and implicitly upholding the comparable Idaho scheme. See Walton v. Arizona, 497 U.S. 639, 647-49, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990). n7 Then, on June 28, 1990, the Supreme Court denied the petition for writ of certiorari in Adamson. See Lewis v. Adamson, 497 U.S. 1031, 110 S. Ct. 3287, 111 L. Ed. 2d 795 (1990).

We do not fault Wellman for failing to predict the outcome of these divergent opinions. We do not expect counsel to be prescient about the direction the law will take. See Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (holding that a lawyer is not ineffective for failing to anticipate a decision in a later case); Cooks v. United States, 461 F.2d 530, 532 (5th Cir. 1972) ("Clairvoyance is not a required attribute of effective representation.").

Nor was it unreasonable for Wellman to draw a connection from the Arizona death penalty scheme to the Idaho scheme. The same fault that the Ninth Circuit identified in Arizona death penalty law was present in Idaho's law: both permitted the sentencing judge to sentence a defendant to death based on the judge's own factual findings. In short, then, Idaho's statute and Arizona's statute were materially indistinguishable. See Charboneau, 774 P.2d at 316-17 (declining to adopt Adamson even though the court found no material difference between Idaho's scheme and Arizona's scheme). Indeed, several of Wellman's colleagues in the Idaho state bar argued in Idaho state courts that Idaho's statute [*38] was unconstitutional under Adamson. See, e.g., id.; State v. Lankford, 116 Idaho 860, 781 P.2d 197, 206-07 (Idaho 1989). Thus, Wellman was not unreasonable in drawing a connection between our decision in Adamson and Hoffman's case.

We nonetheless find that Wellman's representation of Hoffman during the plea bargaining stage was deficient for two reasons: first, Wellman based his advice on incomplete research, and second, Wellman recommended that his client risk much in exchange for very little.

The first problem is that Wellman based his advice solely on a reading of Adamson and not on an understanding of the general landscape in which that case arose. Wellman testified that he had read Idaho Supreme Court capital cases, and therefore he must have known that the Idaho state courts had considered and consistently rejected claims similar to Adamson. See State v. Fetterly, 109 Idaho 766, 710 P.2d 1202, 1208 (Idaho 1985); State v. Creech, 105 Idaho 362, 670 P.2d 463, 473-74 (Idaho 1983), rev'd in part, Arave v. Creech, 507 U.S. 463, 113 S. Ct. 1534, 123 L. Ed. 2d 188 (1993); State v. Sivak, 105 Idaho 900, 674 P.2d 396, 398-99 (Idaho 1983). [*39] With minimal research, he would have discovered that a pair of cases was well on its way to the Idaho Supreme Court that would challenge the continuing viability of these Idaho Supreme Court cases in light of our holding in Adamson. See State v. Fain, 116 Idaho 82, 774 P.2d 252 (Idaho 1989); Charboneau, 774 P.2d at 315-17 (reaffirming Creech, decided April 4, 1989, less than two months after Hoffman rejected the plea agreement).

Had Wellman researched Arizona law, he would have discovered that on February 2, 1989, after Adamson, but before Hoffman rejected the plea offer, the Arizona Supreme Court reaffirmed the constitutionality of Arizona's death penalty scheme. See Walton, 769 P.2d at 1030-31. A judge who concurred in Walton recognized that the decision might set up a conflict between Arizona law and Supreme Court precedent and cited the Ninth Circuit's decision in Adamson. See id. at 1039 (Feldman, V.C.J., concurring). With the state of the law in turmoil both in Arizona and in Idaho, and with conflicts between this court and the state supreme courts of both states, a reasonable attorney would have recognized the [*40] substantial risk of advising a client to reject a plea agreement. Because Wellman possessed a deficient understanding of the law, he led Hoffman to believe that his sentence would be the same whether he accepted the plea bargain or was convicted at trial. Such advice was constitutionally deficient. See Cullen v. United States, 194 F.3d 401, 403-04 (2d Cir. 1999); Meyers v. Gillis, 142 F.3d 664, 666-68 (3d Cir. 1988).

more disastrous. Under the plea agreement, Hoffman would have given up his right to challenge the first-degree murder charge based on aider and abetter liability. But Wellman admitted that his central strategy at trial -- that Hoffman was less culpable than other participants in the murder, especially Wages -- could also support a first-degree murder [*41] charge. Thus, Wellman advised his client to go to trial and risk the death penalty even though there was a good possibility that the guilt phase of trial would result in a first-degree murder charge, the same outcome as the plea agreement. This was a huge risk in light of the potential downside, that is, that the court could impose the death penalty. In contrast, under the plea agreement, Wellman could have argued his client's lesser culpability at sentencing while ensuring that Hoffman would not receive a death sentence. n8 Considering the magnitude of the gamble that Wellman was advocating, Wellman's failure to fully research the landscape surrounding If there was a high probability that Hoffman was not going to receive the death penalty, Wellman might have been reasonable in considering our decision in Adamson as an additional reason to reject the plea agreement. But Hoffman's chance of receiving the death penalty was not minimal, a fact that counsel vastly underestimated and that made counsel's failure to investigate AdamsonAdamson constituted deficient performance.

We certainly do not mean to imply that counsel is ineffective in relying on our precedent or in arguing for a reasonable extension of this court's decisions. In this case, however, counsel advised Hoffman to give up the certainty of avoiding the death penalty so that he could go to trial, a risky proposition with a substantial downside. More importantly, he offered this flawed advice without conducting reasonable research into the legal landscape. We therefore conclude that Wellman's legal representation of Hoffman during the plea bargaining stage was not objectively reasonable.

In reProportionality[*38] In the years following Gregg, we struggled to develop a proper mechanism for conducting [*37] proportionality reviews. Because the general terms of the enabling statute provided no guidance, the Court had to decide, among other matters, how many capital cases to compare; which cases to compare; and what factors to consider in conducting the comparison. See generally In re Proportionality Review Project, supra, 161 N.J. 71, 735 A.2d 528(reviewing special master's findings for implementation in proportionality review). In Ramseur, we also determined that, because of our difficulty in developing the proportionality-review procedure, as well as concerns over conserving judicial resources, proportionality reviews would be conducted only if defendants were unsuccessful on all other legal arguments for overturning their convictions and death sentences. Id. at 96, 735 A.2d 528. Further, not only was proportionality review reached last, but we created a bifurcated process so that the review was conducted in an entirely different proceeding. Ibid.The two proceedings eventually were called our direct appeal review (which included both conviction review and penalty review) and our proportionality review. Id. at 96-97, 735 A.2d 528. However, in ReviewProject, we determined that the justifications for bifurcated proceedings were no longer persuasive and consolidated the reviews, id. at 97, 735 A.2d 528, although the Court has retained the practice of conducting a proportionality review only after we have affirmed a defendant's conviction and rejected all other arguments for reversing the death sentence.

The unique situation in this appeal -- in which three Justices voted to reverse defendant's death sentence in the penalty review and one additional Justice voted to reverse in the proportionality review -- requires us to evaluate the relationshiip between direct appeal penalty reviews and proportionality reviews. We now conclude that, because both penalty review and proportionality review determine whether a death sentence has been properly imposed, the two reviews are not distinct but rather different aspects of the same consideration -- whether there was error in the imposition of the death penalty. In other words, the determination that a death sentence is proportionate to other death sentences is a necessary part of a Justice's decision to affirm a death sentence in our overall penalty review scheme.

As stated, [*39] when we review capital cases on direct appeal, this Court determines both whether a defendant was properly convicted of capital murder (conviction review) and whether the defendant's death sentence was properly imposed (penalty review). In our penalty review, we determine whether there was legal error in imposing the death sentence, such as prosecutorial misconduct, and whether that sentence was imposed in an arbitrary and capricious manner. The determination that a defendant's death sentence is proportionate to other death sentences is part of the determination that the death sentence is not arbitrary and capricious. We recognized that principle in Ramseur, supra, when we stated that "proportionality review . . . is an important procedural mechanism to safeguard against the arbitrary and capricious imposition of the death penalty." 106 N.J. at 330, 524 A.2d 188(emphasis added).

Treating the two reviews as distinct would also lead to absurd results. For example, a death sentence could be affirmed even if three Justices voted in the penalty-review phase to reverse a death sentence and three other Justices voted to reverse in the proportionality-review phase. [*40] Under that hypothetical, the death sentence would stand although six members of this Court believed that it was improperly imposed. Moreover, the fact that we will not conduct a proportionality review if a defendant's conviction or death sentence has been reversed on other grounds does not change our conclusion. This Court routinely does not reach issues when its disposition on other arguments has resolved the matter. See, e.g., State v. Feaster, 184 N.J. 235, 262 n.11, 877 A.2d 229 (2005)(declining to consider defendant's Fifth Amendmentargument after finding in favor of defendant on other grounds). But, once reached, there is no reason to treat proportionality review as different from any other legal argument raised to challenge a death penalty sentence. Further, the proportionality review enabling statute, N.J.S.A. 2C:11-3e, does not suggest that the two reviews should be treated as distinct. Rather, the statute simply requires the Court to conduct a proportionality review upon request of a capital defendant. Ibid.

Soto v. Commonwealth, 139 S.W.3d 827, 876 (Ky. 2004)(same); Our conclusion that proportionality review is properly part of penalty review is reinforced by decisions from other state courts that [*41] conduct proportionality reviews of death sentences. Research does not disclose any case in which a court has considered proportionality review to be a distinct phase separate and apart from a court's penalty review. See, e.g., State v. White, 168 Ariz. 500, 815 P.2d 869, 884 (Ariz. 1991)(conducting proportionality review as part of direct appeal in context of penalty review); Douglas v. State, 878 So. 2d 1246, 1262, 878 So. 2d 1272 (Fla. 2004)(same); Gissendaner v. State, 272 Ga. 704, 717, 532 S.E.2d 677 (Ga. 2000)(same); State v. Pratt, 125 Idaho 546, 873 P.2d 800, 823 (Idaho 1993)(same); State v. Williams, 192 Ill. 2d 548, 736 N.E.2d 1001, 1017, 249 Ill. Dec. 563 (Ill. 2000)(same); State v. Weiland, 505 So. 2d 702, 707 (La. 1987)(same); Russell v. State, 670 So. 2d 816, 839 (Miss. 1995)(same); State v. Garcia, 358 N.C. 382, 597 S.E.2d 724, 753-54 (N.C. 2004)(same); State v. Van Tran, 864 S.W.2d 465, 482 (Tenn. 1993)(same); State v. Elmore, 139 Wn.2d 250, 985 P.2d 289, 322 (Wash. 1999).[*42] Those courts routinely consider proportionality reviews in the context of other arguments challenging a defendant's death sentence.

Our prior practice of conducting our capital review in bifurcated proceedings was an artificial construct intended to benefit this Court and parties by the avoidance of the lengthy and difficult process of proportionality review when doing so would be unnecessary to the ultimate disposition of a case. That construct does not change the fact that penalty review and proportionality review are part of the same legal inquiry -- whether a death sentence was properly imposed. That is, proportionality review provides an additional protection against the arbitrary and capricious imposition of the death penalty. For those reasons, we reject the dissents' contention that proportionality review is distinct from penalty review, postat (slip op. at 2) (LaVecchia, J., dissenting); postat (slip op. at 10) (Rivera-Soto, J., dissenting) (same), and conclude that the determination that a death sentence is proportionate to other death sentences is part of a Justice's decision to affirm a death sentence in our penalty review. [*43]

In view of our conclusion that proportionality review and penalty review are not distinct, we hold that in the present matter defendant's death sentence must be vacated and a life sentence imposed. A review of the votes in the two appeals leads to the conclusion that our construct of conducting bifurcated proceedings prevented the Court from determining that defendant's death sentence was improperly imposed. In other words, defendant's death sentence was upheld only because our penalty review was separated into two proceedings, not because a majority of the Court believed that imposition of the death sentence was proper.

Randomness

The first issue is involves the continuing randomness of capital sentencing. Both Jeff and Anthony Farina committed an armed robbery of a Taco Bell. Jeff during that robbery killed Mitchell Van Ness and Derek Mason. All four were teenagers.

A court initially sentenced Jeff to death. Subsequently, however, Jeff's sentence was commuted.

Anthony's jury voted for death 7-5.

The question on which relief is denied here is whether a new jury should be permitted to hear that the actual killer got life before deciding whether or not to recommend death for Anthony. A majority says no need to make the jury completely informed of the moral disparity of the State's request for a death sentence.

Insertion of Biblical argument

More interesting, at least to me, is a pet issue of mine, use of religious law to argue for death.

As the dissent amply points out the use by the State here of religious allusion, discussion and imagery is extensive. The cross-examination of a defense witness, for example, continues on for pages about the nature of submission to the power of the State. Voir dire included at least one exchange on the nature of Christian submission to the State in the arena of capital punishment. In closing the State summed up with a thinly veiled reference to Biblical judgment.

Despite a closely divided jury, one vote from death, and recognizing the large body of precedent contrary to its position, the majority finds no error relying, at least in part, on the odd procedural posture of the issue in this appeal. The majority seemingly concedes, however, that if the error was structural, as suggested by precedent not cited by the majority it may be, they would have to grant relief. Unfortunately, the standard of review on appeal (fundamental/structural error, harmless error, etc,) is far from clear and the SCOTUS has repeatedly dodged the issue only leading to more confusion.

The question, as it is in every capital case, will the Court decide the issue before or after this Defendant is dead.

THE SMALL PRINT

SUBSCRIBING & ARCHIVES: Capital Defense Weekly is normally written by Karl Keys. CDW is published forty (40) times (or so) a year. Archives accessible at http://capitaldefenseweekly.com/index.html.