Capital Defense Weekly, July 26, 1999

By Capital Defense Newsletter
Jul 25, 1999

Three capital cases are reported this week, one of which is a victory.Wallace v. Stewart (9th Cir) represents a victory in this case revolving around the adequacy of trial counsel at a resentencing penalty phase hearing. Two Fifth Circuit petitioners were not as lucky,Felder v. Johnson andMcGinnis v. Johnson, with relief being denied chiefly on isssues relating to Texas procedrual rules and the removal of all African-Americans in a jury pool, respectively.

The Fifth Circuit's holding in McGinnis was not their only examination of race which evoked, at least in this jaded Yankee's mind, images of a less just time. InWilliams v. Bramer, et al., that circuit held the use of racial slurs and choke hold in a police investigation and search did not violate the constitutional protections of a citizen sitting in his car waiting to take friends to a store.

Finally, NACDL's publication, the Champion, has gone online this month with three articles on the underfunding of the right to counsel. Hyperlinks and descriptions of the articles are provided in the "In Depth" Section below.

Capital Cases

Wallace v. Stewart(9th Cir) Holding that Petitioner was able to make a prima facie showing that counsel's minimal time spent on preparing for resentencing resulted in ineffective assistance of counsel, case remanded for an evidentiary hearing.

Because Wallace admitted committing the murders and pleaded guilty, the only question left for trial was Wallace's sentencing. Exploring the defendant's mental state and other potential mitigating factors was clearly a central task for his counsel. Yet Wallace's lawyers devoted remarkably little time to this task.4 Of the 45.9 hours Couser spent on Wal- lace's case, he spent 36 minutes conferring with Dr. Bendheim, and only 1.4 additional hours talking to other prospective witnesses for the sentencing hearing. He did not provide Bendheim with the MMPI results and he did not investigate what Drs. Little and Morenz referred to as Wallace's "very chaotic childhood." This information was easily within his reach: Wallace's three sisters have since signed affidavits saying they would have willingly provided information about Wallace's childhood and testified on his behalf, yet Couser never contacted them.
Curtis spent 45.25 hours preparing for Wallace's resentencing, including only about an hour interviewing witnesses. In his own words, he "conducted no factual investigation concerning . . . potential mitigation [ ] or the appropriateness of the death penalty." Curtis Aff. P 4.
Had they only looked, Couser and Curtis would have discovered a great deal about Wallace's family history, which Dr. Bendheim now describes as "one of the most dysfunctional family environments I have ever encountered. " Wallace's mother was in and out of mental hospitals, diagnosed as psychotic, alcoholic and anorexic, among other things. On one occasion, she stabbed her husband in the head with a butcher knife. On multiple occasions, she tried to kill herself. She would disappear for weeks, and her children eventually would find her hidden naked somewhere in the house. On one particularly bizarre occasion, she resurfaced underneath Wallace's bed, naked and kicking so hard the bed bounced up and down. Wallace woke up the household with his screams. Wallace's father, a severe alcoholic, once "cold-cocked" his wife in front of Wallace and "stomped" repeatedly on her neck. Wallace himself sniffed glue and gasoline daily between the ages of ten and twelve, and experienced a "clinically significant series of head traumas" while growing up. Dr. David Lisak, who examined Wallace in 1993, concluded that"[t]he family and home in which Jim Wallace was raised was marred by an almost unimaginable level of chaos, neglect, bizarre and insane behavior, and by extreme violence between the parents."
The sentencing judge saw only glimmers of this history, and received no evidence about its significance vis-a-vis miti-gating circumstances. Wallace has presented affidavits from three psychiatrists explaining that psychosis and alcoholism are genetically passed from parents to children, and both of Wallace's parents displayed signs of major mental health disorders. Furthermore, children raised in profoundly dysfunctional environments like the Wallace household are prone to develop severe psychiatric disturbances. Indeed, the evidence now shows that Wallace suffers from a "major depressive disorder" and, most probably, organic brain damage.
The doctors who testified both for and against Wallace now agree that their diagnoses were at least incomplete. Dr. Bend- heim believes the information about Wallace's family back- ground "would . . . have been of vital importance" to his diagnosis, and the "extreme[ly] importan[t]" MMPI results could have had a "substantial[ ] impact[ ]." Dr. Gurland based his testimony primarily on Bendheim's original, admittedly incomplete, analysis. Even the government's experts agree. Dr. Hinton characterizes Wallace's background as "extremely important" information, and now says he "would have, at the very least, recommended that a full competency examination of Mr. Wallace be conducted." Dr. Morenz now believes that Wallace suffers from multiple mental disorders, and that at the time of the murders, "Wallace's capacity to conform his conduct to the requirements of the law was significantly impaired." In sum, had these experts known the details of Wallace's family background, the substance and tone of the sentencing hearings would have been significantly different. Which brings us to the heart of the issue here: Does an attorney have a professional responsibility to investigate and bring to the attention of mental health experts who are examining his client, facts that the experts do not request? The answer, at least at the sentencing phase of a capital case, is yes.
The facts here are similar to those in a recent case where we remanded for an evidentiary hearing on the ques-tion of ineffective assistance of counsel at the penalty phase. In Caro v. Calderon, 165 F.3d 1223 (9th Cir. 1999), we stated that "[i]t is imperative that all relevant mitigating information be unearthed for consideration at the capital sentencing phase." Id. at 1227. There, defense counsel knew that the defendant had been abused as a child and exposed to neurotoxic chemicals throughout his life. However, the lawyer did not seek out neurochemical experts or even provide the examining doctors with the information he had about the defen- dant's background. Upon learning the full extent of Caro's background, one examining doctor declared that had he known it earlier, he would have testified that the defendant had diminished mental capacity. See id. at 1226. Although the lawyer's failure to develop and relay medical evidence did not constitute ineffective assistance at the guilt phase, we concluded that sentencing--where mitigation evidence may well be the key to avoiding the death penalty--is different. See id. at 1227. We explained that,
[c]ounsel have an obligation to conduct an investigation which will allow a determination of what sort of experts to consult. Once that determination has been made, counsel must present those experts with information relevant to the conclusion of the expert .
A lawyer who knows of but does not inform his expert witnesses about . . . essential pieces of information going to the heart of the case for mitigation does not function as `counsel' under the Sixth Amendment.
Id. at 1226, 1228.
Wallace's situation also bears some similarity to two recent cases where we affirmed findings of ineffective counsel at the penalty phase. At the sentencing hearing in Clabourne v. Lewis, 64 F.3d 1373 (9th Cir. 1995), Clabourne's lawyer relied on the trial testimony of one psychologist, and inadequately cross-examined the State's psychologists. See id. at 1384. However, he had barely prepared his own psychologist for his trial testimony, and had provided him with scant information about the defendant and his background. See id. Nor had the lawyer provided the State's psychologists with state- ments and records that would have helped them profile the defendant's mental health accurately. See id. at 1385. Cla-bourne's lawyer was also Lamar Couser. See id. at 1376.
In Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995), we concluded that the defense lawyer had reasonably relied on psychologists' findings in not pursuing a mental defense at trial. See id. at 1037-39. Even though the psychologists lacked important information about Hendricks's drug problems and hard childhood, we held that counsel's failure to investigate and relay this information was not deficient because the psy-chologists had not asked for it. See id. at 1038. At the penalty phase, however, this same lack of diligence did constitute ineffective assistance.5 Recognizing that "[e]vidence of mental problems may be offered to show mitigating factors in the penalty phase, even though it is insufficient to establish a legal defense . . . in the guilt phase," we said that "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. at 1043.
To descend to the level of ineffective assistance of counsel, a lawyer's performance must be poor indeed. Yet, Caro, Hendricks and Clabourne establish that, at the penalty phase of a capital case, a failure to investigate or to adequately prepare expert witnesses may sink to that level. Based on the affidavits he presented, Wallace has made out a primafacie case that Couser and possibly Curtis were less than com- petent at sentencing.6 It's true that the experts who examined Wallace didn't ask Couser or Curtis to investigate his back- ground further.7 However, Hendricks holds that this does not relieve the attorneys of their duty to seek out such evidence and bring it to the attention of the experts.
Because there was no hearing, the State did not have an opportunity to cross-examine Wallace's affiants, or to present evidence of its own. Nor, of course, did the district court make any findings. However, were the district court to accept all of Wallace's evidence, it could find that Wallace's lawyers were ineffective, and conclude that "there is a reasonable probability that the death sentence would not have been imposed" had they been effective. Hendricks , 70 F.3d at 1044. We therefore remand for an evidentiary hearing and findings as to whether Couser and Curtis were ineffective and, if so, whether Wallace was prejudiced as a consequence.

McGinnis v. Johnson(5th Cir) Striking the only black jurors in a jury pool held not to violate due process or equal protection.

McGinnis argues that the state trial court's decision to excuse three African-Americans from the venire was unconstitutional. According to McGinnis, these excusals violated the "fair cross-section" requirement of the Sixth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Due Process Clause of the Fourteenth Amendment.
Of the 102 individuals who reported for jury duty in McGinnis's case, three were African-American. Texas law provides that after the venire has been sworn, the trial court shall "hear and determine excuses offered for not serving as a juror, and if the court deems the excuse sufficient, the court shall discharge the juror or postpone the juror's service." Tex. Crim. P. Code, art. 35.03. Over thirty venirepersons asked to be excused pursuant to Article 35.03, including the three African-Americans. The first African-American juror sought an excuse because she had scheduled an out-of-town vacation. The second African-American juror sought an excuse because she had high blood pressure and vision problems, and because she worked to support herself. The third African-American juror sought an excuse because she suffered seizures and was on medication. The trial court accepted these excuses, over McGinnis's objections. In total, the court excused twenty-two potential jurors, including the three African-Americans. As a result, the pool of jurors presented to the attorneys for peremptory challenges contained no African-Americans.
McGinnis first argues that the state court's excusal of all three African-American venirepersons violated the Sixth Amendment.(1) The Sixth Amendment requires that juries in criminal trials must be "drawn from a fair cross section of the community." Taylor v. Louisiana, 419 U.S. 522, 527, 95 S. Ct. 692, 696, 42 L. Ed. 2d 690 (1975). Accordingly, "venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." Duren v. Missouri, 439 U.S. 357, 363-64, 99 S. Ct. 664, 668, 58 L. Ed. 2d 579 (1979). To establish a prima facie Sixth Amendment violation, McGinnis must show,
(1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.
Id. at 364, 99 S. Ct. at 668.(2)
As to the first requirement of the prima facie case, African-Americans are unquestionably a "distinctive group in the community" for Sixth Amendment purposes. See United States v. Royal, 174 F.3d 1, 6 (1st Cir. 1999); United States v. Rioux, 97 F.3d 648, 654 (2d Cir. 1996). As to the second requirement, McGinnis presents statistics on the proportion of African-Americans on jury venires relative to the whole community.(3) However, we need not decide whether these statistics are sufficient to satisfy the second requirement, because McGinnis's evidence plainly fails to satisfy the third requirement. McGinnis fails to show that the state court's excusal of the three African-Americans from his jury venire resulted from the "systematic exclusion" of African-Americans. McGinnis argues that the excusal of the three African-American venirepersons was systematic "because it resulted from the operation of Texas procedures by which juries are qualified, excused, or exempted from service" and because "article 35.03 creates a systematic danger of the underrepresentation of distinctive groups on criminal jury venires." These contentions fail to satisfy the third requirement of the prima facie case.
According to the Supreme Court, a process systematically excludes a group if the underrepresentation of that group is "inherent in the particular jury-selection process utilized." Duren, 439 U.S. at 366, 99 S. Ct. at 669; Timmel v. Phillips, 799 F.2d 1083, 1086-87 (5th Cir. 1986). McGinnis presents insufficient evidence that underrepresentation of African-Americans is "inherent" in the excusal process under article 35.03. The only evidence McGinnis presents concerning the effect of article 35.03 involves his own venire.(4) McGinnis asserts that the state court excused only sixteen out of the thirty non-African-American venirepersons who sought excusal under article 35.03, whereas the court excused all three African-American venirepersons.(5) Based on these figures, he contends that the trial court excused 100% of the African-American venirepersons seeking excusal, but excused only 53.3% of the non-African-American venirepersons seeking excusal.
These statistics alone are insufficient to raise a genuine issue that the Texas excusal provision inherently causes African-Americans to be underrepresented. We have held that "[o]ne incidence of a jury venire being disproportionate is not evidence of a 'systematic' exclusion." Timmel, 799 F.2d at 1087. Therefore, "a one-time example of underrepresentation of a distinctive group wholly fails to meet the systematic exclusion element in Duren." Id.; see also Untied States v. Defries, 129 F.3d 1293, 1301 (D.C. Cir. 1997); Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir. 1989).(6) McGinnis fails to present evidence sufficient to demonstrate that the excusal of three African-American venirepersons violated clearly established Sixth Amendment law. Accordingly, the district court did not err in granting summary judgment on McGinnis's Sixth Amendment claim.
McGinnis also contends that the excusal of three African-American venirepersons violated the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause protects a criminal defendant against "purposeful racial discrimination" in the selection of his venire. Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717, 90 L. Ed. 2d 69 (1986). "As in any equal protection case, the burden is, of course, on the [criminal] defendant who alleges discriminatory selection . . . to prove the existence of purposeful discrimination." Id. at 93, 106 S. Ct. at 1721 (quotation marks omitted).
Although we have found no precedent involving an Equal Protection challenge to an excusal provision such as the one at issue in this case, we are guided by Supreme Court precedent in other areas of jury and venire selection. See id. at 96-97, 106 S. Ct. at 1723 (peremptory challenges); Castaneda v. Partida, 430 U.S. 482, 495, 97 S. Ct. 1272, 1280, 51 L. Ed. 2d 498 (1977) (grand jury selection). To make out a prima facie case of purposeful discrimination, the criminal defendant must show that the group excluded from jury participation is a "a cognizable racial group," and that the "relevant circumstances raise an inference" of purposeful discrimination. Batson, 476 U.S. at 96, 106 S. Ct. at 1723. "In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances." Id. at 96-97, 106 S. Ct. 1723. A criminal defendant may make out a prima facie case of discriminatory purpose by showing "substantial underrepresentation" of a cognizable group. Castaneda, 430 U.S. at 495, 97 S. Ct. at 1280. In addition, "a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing." Id. at 494, 97 S. Ct. at 1280.
McGinnis has failed to raise an inference that the trial judge excused the three African-American venirepersons because of purposeful racial discrimination. As discussed above, the statistical evidence presented by McGinnis is insufficient to demonstrate that the judge disproportionately excluded African-Americans. Furthermore, the excusal provision is facially neutral as to race, and McGinnis presents no evidence that the judge treated the African-American venirepersons differently from the non-African-American venirepersons. For example, McGinnis cites no evidence that the judge accepted weaker excuses from African-Americans than he did from non-African-Americans. In short, nothing in the record suggests that racial bias motivated the excusal of the three venirepersons.
Furthermore, the state habeas court found that the state trial court excused the three African-American venirepersons based on race-neutral criteria. Such factual findings by a state court "shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). A petitioner contesting such a finding "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. McGinnis's evidence of purposeful racial discrimination is not clear and convincing. Accordingly, McGinnis fails to raise a genuine issue of fact that the trial court's actions violated clearly established Equal Protection law. The district court did not err in granting summary judgment as to that claim.
McGinnis also argues that the trial court's excusal of three African-Americans from the venire violated the Due Process Clause of the Fourteenth Amendment. He cites Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972), in which the Supreme Court reversed the denial of a writ of habeas corpus, because the petitioner alleged that the jury-selection procedures systematically excluded African-Americans. Three justices reasoned that such systematic exclusion violated the Due Process Clause. See id. at 501, 92 S. Ct. at 2168 (opinion of Marshall, J.); see also United States v. Cronn, 717 F.2d 164, 167 (5th Cir. 1983) (reading Justice Marshall's opinion as resting on due process grounds).
In Peters, Justice Marshall addressed solely "whether a State may subject a defendant to indictment and trial by grand and petit juries that are plainly illegal in their composition." Peters, 407 U.S. at 501, 92 S. Ct. at 2168. To Justice Marshall, it was clear that the systematic exclusion of African-Americans alleged in Peters violated the Equal Protection Clause and the Sixth Amendment. See id. at 498-500, 92 S. Ct. at 2166-67. The only issue was whether the criminal defendant, who was white, had standing to challenge the exclusion of African-Americans from the grand and petit juries. See id. at 500 n.10, 92 S. Ct. at 2167 n.10. Justice Marshall concluded:
[W]e hold that, whatever his race, a criminal defendant has standing to challenge the system used to select his grand or petit jury, on the ground that it arbitrarily excludes from service the members of any race, and thereby denies him due process of law. This certainly is true in this case, where the claim is that [African-Americans] were systematically excluded from jury service.
Id. at 504, 92 S. Ct. at 2169.
Thus Justice Marshall's Peters opinion allows a criminal defendant to challenge the racial composition of his grand or petit jury under the Due Process Clause, only when the arbitrary or systematic exclusion of a particular racial group renders the jury "plainly illegal in [its] composition." Id. at 501, 92 S. Ct. at 2168. In Peters, Justice Marshall accepted as given that the facts alleged by the petitioner violated the Equal Protection Clause and the Sixth Amendment. In the present case, however, McGinnis cannot show that the excusal of the three African-American jurors rendered the jury that convicted him "plainly illegal." As discussed above, McGinnis has not demonstrated the systematic exclusion of a distinctive group, as is required for a Sixth Amendment violation, nor has he demonstrated purposeful racial discrimination, as is required for an Equal Protection violation. Accordingly, McGinnis fails to provide a basis for his Due Process claim. The district court did not err in granting summary judgment as to this claim.

Felder v. Johnson(5th Cir) Relief denied as Teague rule held to bar review of Texas precedent relating to wavier of guilt phase trial errors where a petitioner pleads guilty, Brady claims relating to impeachment, and ineffective assistance of counsel.

IV. Brady Claim for Impeachment Evidence

Felder argues that the prosecution violated Brady v. Maryland, 373 U.S. 85, 83 S. Ct. 1194 (1963), by not disclosing that its chief witness, Edith Cobb, had been arrested for forgery in 1982. On appeal, this Brady claim is directed toward only the sentence of death, even though Cobb testified during both the guilt and punishment phases.
The state habeas court concluded that evidence of an arrest without conviction was not Brady material because it would not have been admissible to impeach Cobb. In addition, it found that any suppression did not undermine confidence in the trial and cited cases to show that the "mere possibility" that an item "might have helped defendant" is insufficient to make it Brady material. The federal district court found that the evidence was inadmissible, and that, even if admitted, the evidence would not have changed the outcome of the trial.
This court reviews the district court's Brady determinations de novo. See East v. Johnson, 123 F.3d 235, 237 (5th Cir. 1997).
Brady's requirement that the prosecution disclose exculpatory evidence does extend to information that could be used to impeach government witnesses. See United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985). The suppressed information, however, must still be "evidence" that is "material either to guilt or to punishment." Brady, 373 U.S. at 87, 83 S. Ct. at 1197. Evidence is material "only where there exists a 'reasonable probability' that had the evidence been disclosed the result at trial would have been different." Wood v. Bartholomew, 516 U.S. 1, 5, 116 S. Ct. 7, 10 (1995).
The Fifth Circuit has not clearly specified how to deal with Brady claims about inadmissible evidence -- a matter of some confusion in federal courts(7) -- except to reaffirm that "inadmissible evidence may be material under Brady." Spence v. Johnson, 80 F.3d 989, 1005 n.14 (5th Cir. 1996) (citing Sellers v. Estelle, 651 F.2d 1074, 1077 n.6 (5th Cir. Unit A July 1981)). Thus, we ask only the general question whether the disclosure of the evidence would have created a reasonable probability that the result of the proceeding would have been different. SeeEast, 123 F.3d at 237. In this case, the question is whether the disclosure of the inadmissible evidence of Cobb's arrest would have created a reasonable probability that Felder would not have been sentenced to death.
Felder argues that if the evidence of Cobb's arrest had been disclosed, attempts to follow up on the arrest would have led his attorneys to admissible impeachment evidence about Cobb's reputation for dishonesty in Denver.(8) In the habeas proceeding, Felder produced an affidavit from a Denver police officer saying in part: "During 1988 and 1989 (and perhaps before), Edith Cobb was known by the members of this community to be a dishonest person."
Two aspects of Cobb's testimony were relevant to the jury's punishment-phase decisions. First, Cobb testified during the punishment phase that Felder had told her of other crimes he had committed after the murder. She recounted his description of his armed robbery of a barbershop in Denver. She also recounted his explanation that he was able to afford staying at a hotel in downtown Denver by burglarizing "the projects" to steal stereos and televisions, and that he carried a gun with him during these burglaries in case any of his victims woke up. These other crimes were relevant to the jury's punishment-phase determination that there was a probability Felder would "commit criminal acts of violence that would constitute a continuing threat to society." Second, some of Cobb's guilt-phase testimony was relevant to the jury's punishment-phase determination that Felder's conduct in causing Hanks's death was "committed deliberately." Cobb had supplied chilling details of the killing itself as described to her by Felder and also of his laughing as he described the killing.
This court finds that the shadow cast upon Cobb's testimony by potentially-discoverable evidence of her dishonesty does not "put the whole case in such a different light as to undermine confidence in the verdict." Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 1566 (1995); see also Strickler v. Greene, 119 S. Ct. 1936, 1953 (1999) (not material if there is only "a reasonable possibility that either a total, or just a substantial, discount of [a witness's] testimony might have produced a different result" (emphasis in original)). Other factors demonstrate that the introduction of evidence casting doubt on Cobb's honesty would not have created a reasonable probability of a different sentence for Felder. First, there was physical evidence to corroborate Cobb's second-hand description of the murder's deliberateness: chiefly the number of wounds, their severity, and their concentration in Hanks's neck and head. Second, Felder had a prior criminal record of burglaries, and he had a gun when he was arrested, both demonstrating his threat to society. Third, Cobb's testimony about the additional crimes did not go unquestioned. In fact, Felder's defense counsel highlighted the lack of any corroboration for Cobb's descriptions of the additional crimes. He noted that the prosecution brought a police officer from Idaho to testify about the pistol Felder had when he was arrested, but brought nobody from Denver besides Cobb to testify about these other crimes. Defense counsel also openly wondered at how Cobb had "miraculously remembered something else" and stressed that Cobb had not testified about these other crimes at either of Felder's two previous trials. Cf. United States v. Amiel, 95 F.3d 135, 145 (2d Cir. 1996) ("Suppressed evidence is not material when it merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable." (internal quotation omitted)).
This case is also distinguishable from East, on which Felder relies and in which this court found a Brady violation based on the suppression of a prosecution witness's criminal history. The witness in East testified at the punishment phase of East's murder trial that East had raped her at gunpoint, threatened to murder her, and told her he had murdered several other women. See 123 F.3d at 237-38. Revelation of that witness's criminal history, however, would have led defense counsel to a report describing her mental illness: she "experienced bizarre sexual hallucinations and believed that unidentified individuals were attempting to kill her." Id. at 238. Thus, in East, the potential impeachment evidence related directly to the subject-matter of the witness's testimony, and her testimony about future dangerousness was more extreme than Cobb's because it accused East of "several" other murders.
The prosecution did not violate Brady because disclosure of Cobb's forgery arrest would not have created a reasonable probability that Felder would not have been sentenced to death.
V. Ineffective Assistance of Counsel
Felder next asserts that his trial attorneys provided unconstitutionally deficient representation because they (1) failed to investigate and impeach the key prosecution witness, Edith Cobb; and (2) failed to investigate and present mitigating testimony from Felder's family. In addition to these two grounds, Felder argues that his representation was rendered deficient by the prosecution's surprise tactic of introducing unadjudicated offenses during the punishment phase.
The test for defective representation is two-fold: whether counsel's representation was so objectively unreasonable and incompetent as to be constitutionally deficient; and whether counsel's errors actually prejudiced the defendant by depriving him of a fundamentally fair trial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The state court's findings of fact are binding so long as they are "fairly supported by the record," 28 U.S.C. § 2254(d)(8) (1994) (amended 1996), but the ultimate question of effective assistance is itself a mixed question of law and fact, reviewed de novo. See Bryant v. Scott, 28 F.3d 1411, 1414 (5th Cir. 1994). Relief may be denied if the defendant fails to establish either prong of the Strickland test. See id. at 1415.
Reviewing the claims of deficient representation, the federal district court found that the state court findings were supported by the record, and we agree.
On counsel's failure to investigate Cobb and impeach her testimony with evidence of her lack of credibility, it is sufficient to note that the standard for prejudice under Strickland is "identical to" the standard for materiality under Brady. Johnson v. Scott, 68 F.3d 106, 109-10 (5th Cir. 1995). Because the impeachment evidence was not material under Brady -- as discussed above, in part IV -- failure to present it was not prejudicial under Strickland.
As for the mitigating evidence available from family members,(9) there is no reasonable probability that trial counsel's deficient performance -- if any(10) -- yielded a different result or an unfair trial. The addition of testimony from family members to buttress the mitigating character evidence already introduced would not have created a reasonable probability of a different result in the punishment phase. This claim does not meet Strickland's prejudice requirement.
Felder's final claim of ineffective assistance of counsel is odd because it focuses on the prosecution's conduct. Felder argues that Cobb's testimony about unadjudicated offenses was such a surprise that it made effective cross-examination impossible and thus deprived him of effective assistance of counsel. To the extent that this is a substantive claim that the introduction of unadjudicated offenses was unfair, Felder is procedurally barred from asserting it by his failure to object at trial on these grounds.(11) To the extent that Felder identifies ineffective counsel as "cause" for the failure to object, our discussion above makes clear that there was no Strickland prejudice from introduction of the unadjudicated offenses, meaning the procedural bar cannot be overcome.(12)
The district court did not err in finding that Felder had not met his burden of demonstrating ineffective assistance of counsel under both prongs of Strickland.

Habeas Cases

Vieux v. Pepe (1st Cir.) Relief denied as state appellate court's holding was not contrary to the United States Supreme Court's holding on the "normal course of business" relating to electronic eavesdropping.

Brady v. Dill (1st Cir.) Police do not violate a suspect's rights when they have probable cause for arrest but later believe him innocent and fail to release him.

Soto v. USA (2nd Cir) A sentencing court's failure to inform a defendant of his right to appeal is subject to harmless error analysis.

Prisoner's Rights/Governmental Misconduct Cases

Williams v. Bramer, et al. (5th Cir) This suit appears to arise from the crime of being black in public. Williams claims to have been waiting for friends in his car, was never charged with a crime and has a clean record. The police approached Mr. Williams' car, suspecting him of dealing drugs without any direct evidence, searched the car and williams for drugs and weapons. The police putatively administered a choke on the throat of Williams to force his mouth open. When Williams protested, the police called allegedly called him "nigger" and "boy." The panel holds no constitutional deprivation of rights occurred. A later second use of a choke with apparent malice was, however, held potentially actionable.

983674P.pdf Reyes-Lechuga v. Reno (8th Cir.) Habeas jurisdiction survived enactment of Immigration Reform and Immigrant Responsibility Act of 1996.

Ellliot v. Brooks (10th Cir.) Holding there is no constitutional right to watch TV, suit claiming that equal protection was violated when "white" television programs were switched for "black" ones dismissed.. Being called a snitch is not cognizable.

Ingram, et. al. v. City of Columbus, et. al. (6th Cir.) Holding hot pursuit does not allow a for a "no knock" entry into a premises eventhough it otherwise permits an exigent entry, district court erred in granting summary judgment for the defendants. (URL link currently unavailable)

Painter v. Robertson (6th Cir) Qualified immunity denied where defendant should have known plaintiff was legally carrying a concealed weapon. (URL link currently unavailable)

In Focus

This month's Champion from NACDL offers three compelling articles. Here is a brief overview. ("")

President's Column: Life, Liberty and Low-Bid Lawyers: The Defiling of Gideon The Supreme Court left to the states the flexibility to create adequate methods for protecting an indigent's right to the effective assistance of counsel. I doubt the Court could have foreseen the poor choice of some county commissioners in one of our largest states. But you decide.more

Death In Texas By Stephen B. Bright By denying competent lawyers and suspending due process, the Texas Court of Criminal Appeals runs the fastest assembly line to the death chamber in the country. The state's highest criminal court, the Texas Court of Criminal Appeals, is not only ignoring constitutional violations (as so many elected judges must do in order to stay in office), but is affirmatively engaged in denying rights to people.more

The Lone Star State Is Not Alone In Denying Due Process To Those Who Face Execution By Elisabeth Semel The Death Penalty Representation Project seeks many volunteers to assist the indigents who are condemned to die. The problems are by no means exclusive to Texas. Virginia is a close second in the number of people it executes. Georgia and Wyoming have no provisions for the appointment of post-conviction lawyers. more

The email address here has slightly changed, however, the service will remain the same. If you happen to see a case not listed here that should be, as well as to subscribe, unsubscribe or change subscription information, please drop me a line at

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