Three cases guide the way this week including two notable relief denials from the Fifth Circuit.

Leading of the Fifth Circuit denials isNeal v. Puckett,. Sitting en banc the Neal Court holds that Mississippi did in fact deprive Neal an adequate penalty phase proceeding due to counsel ineffectiveness failure to investigate and present additional mitigation information. The court nonetheless denies relief for Neal, who has an IQ of 54, is not entitled to relief as the Mississippi's Supreme Court's determination in the matter was not "objectively unreasonable," the AEDPA's standard for habeas relief.

In another Fifth Circuit decision,United States v. Davis, the Fifth Circuit has cleared the way on this interlocutory appeal, for the defendant to, in effect, plead to death. The panel has held, in a split decision, that the federal district court must permit a defendant to represent himself in the penalty phase of a trial without assistance if he so chooses. If upheld, this would appear to represent the first instance since the statutory right to counsel under the Judiciary Act of 1789, & later the Sixth Amendment, that a federal trial court would not have the input of learned counsel as to why the accused's life should be spared. Davis will represent himself and argue only residual doubt as the reason to spare his life.

Finally, in a glimmer of hope, the Florida Supreme Court has ordered the trial court to reconsider its death sentence inCrook v. State. The Florida Supreme Court, in a fiercely split decision held that the trial court erred its weighing of mitigating and aggravating circumstances by failing to give too little weight to the mitigation evidence.

In this week's Focus section is a brief review of the case law surrounding what is a required of trial counsel in preparing and presenting mitigation evidence for trial. The sample used is also a "teaser" of the incalculable value resources of the Habeas Assistance Training Group & Federal Defense Resource Counsel. http://www.capdefnet.org/hat/contents/constitutional_issues/case.htm.

The Pentagon, in a matter with clear capital implication, has issued the rules for themilitary tribunalsset to "try" those accused of terrorist acts. The high lights of the tribunals include a limited right to counsel & appeal, relaxed evidence rules, and the death penalty only upon a unanimous finding by a seven person finder of fact.

The Supreme Court granted certiorari in Sattazahn v. Pennsylvania, 01-7574. The issue of the cert. grant appears to be double jeopardy, however, only press accounts are currently available.

On a personal note, the docket & schedule for the next month are quite busy. I am hoping an edition will issue each week between now and May 1, but if a week is missed, please understand & hopefully things should to return to normalcy well before then.

Since the last edition there have been no execution. The Texas governor has given a one-time 30 day reprieve to the only scheduled execution, Rodolfo Hernandez. The stay is reported to have been given to permit law enforcement an opportunity to interview Hernandez about crimes in San Antonio. At the time of writing, the reason for this stay is not known.

March

21 Rodolfo Hernandez Texas (30 day reprieve)

April

2 Daniel Zirkle Virginia--volunteer

5 Gary Brown Alabama

10 Paul Kreutzer Missouri

10 Jose Santellan Sr. Texas

10 Abu-Ali Abdur'Rahman Tennessee

11 William Burns Texas

17 Robert Henry Texas

18 Gerald Casey Texas

19 Lynda Lyon Block Alabama

26 Alton Coleman Ohio

This week's edition is athttp://www.capitaldefenseweekly.com/archives/020318.htm.

HOT LIST CASES

Neal v. Puckett, 2002 U.S. App. LEXIS 4236 (5th Cir 3/15/2002) (en banc) Holding that counsel was ineffective the Fifth Circuit sitting en banc still denies relief as the Mississippi Supreme Court's holding to the contrary was while incorrect, was not unreasonable.

Neal contends that his trial counsel was ineffective for failing to investigate and gather, and consequently failing to present, mitigating evidence during the sentencing phase of the trial. The Sixth Amendment requires defense counsel to conduct a reasonably thorough pretrial inquiry into the defenses that might be offered in mitigation of punishment. Baldwin v. Maggio, 704 F.2d 1325, 1332-33 (5th Cir. 1983). Neal argues that his lawyers failed to do so and, as a result, called only two witnesses during sentencing--Neal's mother and a psychologist.

Neal argues that his lawyer should have interviewed members of the staff at the two institutions where Neal spent time as a youth, Ellisville and Whitfield. n2 He also contends that his lawyer should have obtained the records from the prison in Oklahoma where Neal was incarcerated as a young man or at least consulted officials or medical personnel from that prison regarding his mental capabilities and character. Finally, he contends that he should have been evaluated by a neurologist to explain further his mental state. None of this occurred, so any possible mitigating evidence from these sources was [*7] unavailable to the jurors deciding his sentence. Neal further argues that he was prejudiced by his counsel's performance because there is a reasonable probability that if this evidence had been before the jury, he would have received a life sentence instead of death.

****

In a later section of this opinion, we will address the question whether presentation of this additional testimony would have changed the outcome of the sentencing hearing. For now, we emphasize only the volume and easy availability of this additional mitigating evidence.

Perhaps the most troubling aspect of these affidavits is that they indicate that counsel never contacted any of the other people (with the exception of Neal's mother) who have provided the additional testimony we now have before us, and which would have added to and developed the skeletal evidence before the jury. For example, Neal's sister, Maryann McNeese, states that she contacted defense counsel to ask about the case, and would have been willing to testify on her brother's behalf, but that they never asked her to do so. And having examined the mother's testimony at sentencing, it is not even clear how much information defense counsel collected from her before putting her on the stand. Dr. Alexander's testimony, too, was surely limited by the fact that she had met with Neal just one time, three days before testifying, and that trial counsel failed to tell her [*22] about what specific crime Neal had been charged with or any facts about his personal history. The only materials that defense counsel appears to have had, other than the assistance of Neal's mother, are the records from Neal's time at Ellisville and Whitfield. n4 And while they had some indication of his difficult life in the institutions and in prison, Neal's attorneys chose not to pursue these sources of evidence. In his affidavit, one of Neal's attorneys at trial tried to explain that they did not contact these potential witnesses due to lack of funds and experience.

We did not have the time or money to properly investigate [Neal's] case. We had no money to interview witnesses or travel. . . . I did not get Howard's records or interview people who had dealt with him in Oklahoma. I did not interview any of his relatives other than his mother. . . . We did not have a complete psychological examination of Howard which would have included a thorough investigation of his past medical and psychological history and a neurological examination. Had we had the time and money we would have done the above investigations for use at both trial and sentencing.

This explanation [*23] does not fully address, however, the fact that most of the mitigating evidence was readily available and would have cost no more than several long distance telephone calls or postage stamps.

Because of the extent to which these available materials could reasonably have been expected to augment Neal's case, we conclude that his trial counsel [*24] was deficient in failing to investigate, gather, and consider it for purposes of presentation at Neal's sentencing hearing. n5

(2)

(a)

Having concluded that counsel's performance during sentencing was deficient, we now turn to the second prong of Strickland and determine whether the deficient performance prejudiced Neal's defense during sentencing. To establish prejudice, Neal must show that there is at least "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; see also United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989) [*25] ("A defendant who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial.") By reasonable probability, the Court means a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. 1279

In determining prejudice, we are thus required to compare the evidence actually presented at sentencing with all the mitigating evidence contained in the postconviction record. Stated to the point: Is this additional mitigating evidence so compelling that there is a reasonable probability at least one juror n6 could reasonably have determined that, because of Neal's reduced moral culpability, death was not an appropriate sentence?

***

Our conclusion that the state court's prejudice determination is incorrect, however, is not enough to afford federal habeas relief to Neal because, under AEDPA, we owe considerable deference to the Mississippi Supreme Court. The statute plainly [*36] states that we may not grant habeas relief unless the state court's decision unreasonably applies federal law. See 28 U.S.C. § 2254(d)(1); H.R. Conf. Rep. 104-518, 104th Cong., 2d Sess. 111 (1996) (Section 2254(d) generally "requires deference to the determinations of state courts"). Thus, Neal must go further yet and demonstrate that the prejudice determination of the Mississippi Supreme Court "involved an unreasonable application" of Strickland. We now turn to try to give meaning to the term "unreasonable application," especially as it applies to this case.

(1)

The Supreme Court in Williams explained that "a federal court making the 'unreasonable application' inquiry should ask whether the state court's application of law was objectively unreasonable." Williams, 120 S. Ct. at 1521. But even after Williams, it is not immediately clear to us whether a federal habeas court looks exclusively to the objective reasonableness of the state court's ultimate conclusion or must also consider the method by which the state court arrives at its conclusion. This question takes on some significance in a case such as Neal's, where the state [*37] court's holding (that Neal suffered no prejudice under Strickland) may be objectively reasonable, but in reaching that holding, the court did not adequately evaluate and weigh the substantial evidence-the implicit suggestion being that the state court may have reached a different, but still "reasonable," conclusion if a more thorough method of reasoning had been applied. n10 [Footnote 10 in full below]

The Seventh Circuit, sitting en banc, appears to have concluded that federal courts must scrutinize a state court's method of reasoning. "By posing the question whether the state court's treatment was 'unreasonable,' § 2254(d)(1) requires federal courts to take into account the care with which the state court considered the subject." Lindh v. Murphy, 96 F.3d 856, 871 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997). The reasonableness of a court's application of federal law must be measured, at least in part, by determining whether a state court provided "a responsible, thoughtful answer reached after a full opportunity to litigate."Lindh, 96 F.3d 1279 n11

Certain passages in the Williams decision could be read to support this view. Writing for the Court, Justice Stevens explained that the Virginia Supreme Court's "prejudice determination was unreasonable insofar as it failed to evaluate the totality of the available mitigation evidence--both that adduced at trial, and the evidence adduced in the habeas proceeding--in reweighing it against the evidence in aggravation." Williams, 120 S. Ct. at 1515. There is, therefore, at least some basis for the view that Section 2254(d)'s "unreasonable application" standard refers to the quality of the state court's analysis.

On the other hand, this process-oriented view has been rejected by other circuits n12 and challenged by Chief Judge Posner of the Seventh Circuit. In his view, scrutinizing state courts' methods of reasoning "would place the federal court in just the kind of tutelary relation to the state courts that the [AEDPA was] designed to end." Hennon, 109 F.3d at 334-35. Similarly, we do not interpret AEDPA in such a way that would require a federal habeas court to order a new sentencing hearing solely because it finds the state court's written [*40] opinion unsatisfactory. n13 It seems clear to us that a federal habeas court is authorized by Section 2254(d) to review only a state court's "decision," and not the written opinion explaining that decision.

In the absence of clear guidance from the Supreme Court, we conclude that our focus on the "unreasonable application" test under Section 2254(d) should be on the ultimate legal conclusion that the state court reached and not on whether the state court considered and discussed every angle of the evidence. The latter approach appears unduly formalistic considering that the federal habeas court has the full [*41] record before it and is competent to determine whether Strickland has been unreasonably applied to the case before it. Even though a thorough and well-reasoned state court opinion may be more likely to be correct and to withstand judicial review, it simply does not follow that "the criterion of a reasonable determination is whether it is well reasoned." Id. at 334-35. Instead, the only question for a federal habeas court is whether the state court's determination is objectively unreasonable. FN14 [See footnote in full below]

(2)

Thus, in making our unreasonable application determination, we look only to the substance of the Mississippi Supreme Court's decision. The state court concluded that presentation of the additional mitigating evidence would probably not have changed the outcome of the case. The precise question, then, is whether the court's ultimate conclusion--that there was no prejudice and, consequently, no ineffective assistance of counsel under the Strickland test--is objectively unreasonable.

As we have iterated throughout this opinion, the facts of this case are as horrible as one can imagine. The jury was reminded repeatedly that Neal killed his own brother in an argument that began when Neal fondled his young niece; that Neal, after killing his brother, kidnaped his niece and her friend and then brutally raped and killed both girls; that he shot his niece and left her to suffer for perhaps thirty minutes before she died. If any murder qualifies as "heinous, atrocious, or cruel," the murder of Amanda Joy Neal does. We acknowledge that it was surely not unreasonable for the Mississippi Supreme Court to suggest (implicitly) that the evidence mitigating his moral culpability would have [*43] to be overwhelming.

The jury in mitigation heard Neal's pitiful life story from his mother and a psychiatrist. The jury thus had before it evidence that Neal had an IQ of 54 and the mental ability of an eight year old; that he had been neglected by his family and spent much of his youth in state institutions for the retarded and mentally ill; that he had sexual identity problems; and that because of his mental deficiencies, he was less able to control his impulses. The evidence actually presented at the sentencing hearing did not persuade the jury to mitigate Neal's sentence.

Neal's supplemental mitigation evidence also relies almost exclusively on testimony that he was mentally retarded and had been badly mistreated by numerous people throughout his life. Much of this evidence had already been presented, even if in an outline form. The only new evidence was that some of the people whom he had encountered felt sorry for Neal and that their sympathy for his plight caused them to reach out to him. Moreover, the testimony about Neal's life at Whitfield and the Oklahoma prison would have proved to have been double-edged in the sense that it would have reminded the jurors that Neal was [*44] a bully and had a criminal conviction. Although the additional mitigating evidence was of a significantly better quality than that actually presented, much of it was similar in nature to the original evidence. With those considerations in mind, the Mississippi Supreme Court concluded that the additional evidence was not substantial enough to outweigh the overwhelming aggravating circumstances.

Under the deferential standard of Section 2254(d), and given the circumstances of this case, we cannot conclude that the Mississippi Supreme Court unreasonably applied Strickland to the facts of Neal's case. It was not unreasonable, in other words, to conclude that the outcome would have been the same because the additional evidence did not serve to reduce further his moral culpability for such a heinous and unforgivable crime beyond the evidence already presented. We thus hold that the state court's prejudice determination was not objectively unreasonable, viewed in the context of the extreme cruelty of the murder as an aggravating circumstance and that much of the mitigating evidence had already been presented to the jury, albeit in an abbreviated form.

Selected Footnotes:

FN10 The Mississippi Supreme Court's prejudice determination is fairly brief. After summarizing Neal's argument, the court stated that the additional evidence was

substantially redundant or cumulative when compared with the evidence Neal offered at trial. Specifically, Neal now wants to present evidence of his lack of mental capacity, a fact said to go to the voluntariness of his confession and to be in mitigation of sentence. But he went into these same matters at trial. He called Dr. Dana Alexander, a clinical psychologist. He showed that he had been in Ellisville State School for retarded youths and that he was later in the retardation unit at Mississippi State Hospital at Whitfield. He further proved that his IQ was 54. Because it is cumulative [sic], what Neal alleges and purports to show now that counsel should have developed and proved simply does not amount to a substantial showing of denial of a state or federal right. Miss. Code Ann. § 99-39-27(5).

The same is true of Neal's allegations that competent counsel should have done a better job at sentencing phase of proving the details of Neal's troubled life. In addition to the testimony described above regarding his prior institutionalization, Neal called his mother as a witness who told his life story. Perhaps the details could have been fleshed out more fully through additional witnesses. This may often be said after an unsuccessful trial experience.

Neal, 525 So. 2d at 1282-83. Cf. Williams, 120 S. Ct. at 1502.

FN 14 A number of our sister circuits have attempted to supplement the Williams Court's "objectively unreasonable" standard. See, e.g., Kibbe v. Dubois, 269 F.3d 26, 36 (1st Cir. 2001) (interpreting "objectively unreasonable" to mean "outside the universe of plausible, credible outcomes"); Van Tran v. Lindsey, 212 F.3d 1143, 1151 (9th Cir. 2000) (interpreting the "objectively unreasonable" standard to establish a "clear error" test). After due consideration, we conclude that further elaboration on the "objectively unreasonable" standard by this court is unnecessary and inadvisable. See Williams, 120 S. Ct. at 1522 (noting that the term "unreasonable" is "a common term in the legal world and, accordingly, federal judges are familiar with its meaning"); see also Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 891 (3d Cir. 1999) ("Notions of reasonableness abound in the law and are not ordinarily considered problematic, despite their imprecision."). Imposing a surrogate "unreasonableness" standard at this time would be a risky proposition, as our redefinition might prove unfaithful to the Supreme Court's intended meaning. Undoubtedly, the term "objectively unreasonable" will acquire some definition (as distinguished from a definition) through the course of its application by federal habeas courts in individual cases. To the extent that a nuanced, contextual interpretation of "objectively unreasonable" emerges from this process over time, this elaboration will be more useful and meaningful that any definition we might choose to impose ab initio.

United States v. Davis, 2002 U.S. App. LEXIS 3731 (5th Cir. 03/11/2002) (dissent) Federal district court must permit a defendant to represent himself in the penalty phase of a trial without assistance if he so chooses.

In its Order and Reasons, the district court decided that the appointment of an independent counsel does not conflict with Davis's right to represent himself because Davis would still be allowed to present any evidence he desires. The district court stated that it would allow "Davis full rein in his penalty phase. He may voir dire jurors, make opening statements, question witnesses, call witnesses, introduce evidence, make objections and present a closing argument, all he desires to do or not do, within the appropriate procedural and evidentiary rules." However, the court found that allowing Davis "full rein" did not mean that he could silence "other potential voices in the courtroom" from presenting evidence they deemed to be helpful to the jury.

The district court justified its determination that Davis's Faretta rights are not undermined by the appointment of an independent counsel by opining that both the government and the trial judge play a role in the penalty trial that is similar to the role an independent counsel could play. The district court noted that (1) the government has an obligation to produce mitigating as well as exculpatory evidence to the fact finder if that serves the ends of justice; and (2) the trial judge may interpose questions to witnesses to elicit evidence that might otherwise not be presented. The district court reasoned that:

An independent counsel, clearly identified as not associated with Davis, could likewise present evidence and question witnesses, providing relevant information helpful to the jury's decision. Just as the government's obligation to disclose mitigation evidence and the Court's prerogative to question witnesses do not interfere with Davis's Faretta right, neither would the participation of this independent counsel.

B. The Sixth Amendment Violation

We find that the district court's decision to appoint an independent counsel violates Davis's Sixth Amendment right to self-representation. An individual's constitutional right to represent himself is one of great weight and considerable importance in our criminal justice system. This right certainly outweighs an individual judge's limited discretion to appoint amicus counsel when that appointment will yield a presentation to the jury that directly contradicts the approach undertaken by the defendant.*fn1

1. Proper Role of the Trial Court

At the outset, we note that the district court has misconstrued its proper role in conducting the penalty trial by overstating the parameters within which a judge can question witnesses. Rule 614(b) of the Federal Rules of Evidence permits judges to question witnesses. A trial judge's questioning of witnesses is permissible if aimed at clarifying the evidence or managing the trial. United States v. Williams, 809 F.2d 1072, 1087 (5th Cir. 1987).

A judge's questioning, however, should never evince or appear to evince partiality to one side over the other. See U.S. v. Reyes, 227 F.3d 263, 265 (5th Cir. 2000) ("[t]he primary limitation on this judicial investigatory power is that it must be undertaken for the purposes of benefitting the jury in its understanding of the evidence, and the court may not appear to be partial"); U.S. v. Martin, 189 F.3d 547, 553 (7th Cir. 1999)("a judge's discretion to question witnesses is not unfettered. A judge cannot assume the role of an advocate for either side."); United States v. Tilghman, 134 F.3d 414, 416 (D.C. Cir. 1998)(noting that trial judges must strive to preserve an appearance of impartiality and must err on the side of abstention from intervention). For example, a judge should not ask questions which indicate his belief or disbelief of witnesses. United States v. Wyatt, 442 F.2d 858, 859-61 (D.C. Cir. 1971).

In our July 17, 2001 opinion, we noted that the district court may interpose questions to witnesses during the penalty trial. The district court construed this statement as an invitation "to elicit evidence that might otherwise not be presented." The district court further implied that it has the right to elicit evidence from witnesses in a manner similar to that of an independent counsel.

We disagree with the district court's understanding of our previous statement. The district court shall not interpose questions to witnesses during the penalty trial which demonstrate partiality to one side or one position. The district court's role in the penalty trial shall be one of judge, not advocate.

2. Absence of Statutory Authority or Case Law Authority

The district court provides no federal statutory authority for appointing an independent counsel to present mitigation evidence in the penalty phase of a capital case. Instead, the district court relied upon civil cases in which federal courts permitted amicus curiae to assist in the proceedings. We closely scrutinized the "amicus curiae" cases. None are remotely analogous to the situation in the instant case. Therefore, we deem these cases to be of limited precedential value.

In the reverse but analogous scenario, the federal courts have also addressed whether district judges have the power to appoint special prosecutors when the government elects not to prosecute. In Nathan v. Smith, 737 F.2d 1069 (D.C. Cir. 1984), the D.C. Circuit considered whether a district court had the authority to order the Attorney General of the United States to conduct a preliminary investigation pursuant to 28 U.S.C. § 592 of the Ethics in Government Act. The only purpose of the preliminary investigation was to enable a report to be made to the court concerning the need or lack thereof for the appointment of an independent counsel. The D.C. Circuit reversed the district court order which started the special prosecutor appointment process. Id.

In the Matter of An Application for Appointment of Independent Counsel, 596 F. Supp. 1465 (E.D. N.Y. 1984), the district court determined that it had no authority to appoint independent counsel to prosecute a government informer for giving false evidence and false statements. In Application, the Department of Justice had declined to indict the government informer. The applicants, however, argued that the court had the inherent power to appoint a special prosecutor. Judge Glasser rejected this contention for several reasons.

First, Judge Glasser noted that the judges in the Watergate cases of O'Brien v. The Finance Committee to Re-Elect the President, et al., Civ. No. 1233-72 (D.D.C. Sept. 25, 1972) and United States v. Liddy, Crim. No. 1827-72 (D.D.C. November 21, 1972) found no basis for the judicial appointment of special prosecutors. Id. at 1469. Second, he determined that no federal statute provided for judicial appointment of a special prosecutor or independent counsel under the circumstances of the case. Id. at 1470. Third, he expounded upon the separation of powers problems that would arise from judicial appointment of special prosecutors.*fn2 Id. at 1470-71.

In this Circuit, we have not specifically addressed the judiciary's alleged inherent power to appoint special prosecutors.*fn3 However, in United States v. Cox, 342 F.2d 167, 172 (5th Cir. 1965), cert. denied, 381 U.S. 935 (1965) (per curiam), we held that a district court lacked the power to require the United States Attorney to sign indictments, and thereby dispelled the notion that the district court had the power to compel the executive branch to initiate prosecution.*fn4

We grounded the Cox holding on separation of powers concerns. Id. at 171 ("It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions."). In our view, allowing federal judges to appoint special prosecutors when the government elects not to prosecute would contravene the Cox holding. Therefore, we find it highly unlikely that this Circuit would allow such appointments.

As we have previously stated, the special prosecutor cases are not directly analogous to the instant case, but they remain instructive. In both instances, the district court judge based the decision to appoint a special prosecutor or independent counsel on an alleged inherent judicial power, not statutory authority. There is little distinction between special prosecutors and special (independent) counsel appointed to present evidence calculated to aid the defense. Therefore, the exacting appellate scrutiny applied to judicial appointment of special prosecutors must also be applied to the instant case.

The judiciary's alleged "inherent power" to appoint special prosecutors clashes with Article II, section 3 of the United States Constitution.*fn5 Similarly, the district court's alleged inherent authority to appoint independent counsel clashes with the petitioner's Sixth Amendment Faretta rights. In both situations, the Constitution prevails over any "inherent judicial power" argument.

3. The Strength and Nature of the Self-Representation Right

The district court's analysis also misses the mark because it fails to take into consideration the strength and nature of the right of self-representation. In Faretta, the Supreme Court expounded upon the history at the time of the passage of the Sixth Amendment which underpinned its decision to imply from the text the right of self-representation. The Supreme Court explained that all historical evidence led to the conclusion that the right of self-representation was at the very heart of the Sixth Amendment. Faretta, 422 U.S. at 832. Indeed, the Framers "always conceived of the right to counsel as an 'assistance' for the accused, to be used at his option, in defending himself." Id.

The district judge appointed the independent counsel because she wants the jury to have a complete picture of all possible traditional mitigating factors. In her view, society's interest in a full and fair capital sentencing proceeding can only be served if all possible aggravating and mitigating factors are presented to the jury. While this notion is certainly noble, it cannot be squared with Davis's self-representation right. Faretta teaches us that the right to self-representation is a personal right. It cannot be impinged upon merely because society, or a judge, may have a difference of opinion with the accused as to what type of evidence, if any, should be presented in a penalty trial.

The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the lifeblood of the law.'" Id. at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350-51 (1970)

(Brennan, J., concurring)).

Davis has indicated that he intends to employ an admittedly risky strategy during the penalty phase. Instead of presenting traditional mitigating evidence, he intends to attack the strength of the government's case as to his guilt.*fn6 This is a specific tactical decision.*fn7 Davis has made it quite clear that he does not want any traditional mitigating evidence to be presented on his behalf. Nevertheless, the district court has appointed the independent counsel specifically for the purpose of presenting a full penalty phase defense which will utilize traditional mitigating factors. As such, Davis's strategy is in direct conflict with the independent counsel's approach. Because Davis's right to self-representation encompasses the right to direct trial strategy, the district court's decision to impose an independent counsel into these proceedings is overturned.*fn8

Crook v. State, No. SC94782 (Fla. 03/07/2002) (dissent) Trial court erred its weighing of mitigating and aggravating circumstances by failing to give too little weight to the mitigation evidence.

MITIGATING CIRCUMSTANCES

This Court has adopted the definition of a mitigating circumstance from the United States Supreme Court, as "any aspect of a defendant's character or record and any of the circumstances of the offense" that reasonably may serve as a basis for imposing a sentence less than death. Campbell v. State, 571 So. 2d 415, 419 n.4 (Fla. 1990) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)), receded from in part by Trease v. State, 768 So. 2d 1050 (Fla. 2000). "Whenever a reasonable quantum of competent, uncontroverted evidence of mitigation has been presented, the trial court must find that the mitigating circumstance has been proved." Spencer v. State, 645 So. 2d 377, 385 (Fla. 1994) (citing Nibert v. State, 574 So. 2d 1059, 1062 (Fla. 1990)). All "believable and uncontroverted" mitigating evidence contained in the record must be considered and weighed in the sentencing process. Robinson v. State, 684 So. 2d 175, 177 (Fla. 1996). A trial court, however, may reject proffered mitigation if the record provides competent substantial evidence to support the trial court's decision. See Mahn v. State, 714 So. 2d 391, 401 (Fla. 1998); Spencer, 645 So. 2d at 385; Nibert, 574 So. 2d at 1062.

BRAIN DAMAGE

Given these standards, we first address Crook's claim that the trial court erred in failing to find and weigh mitigating evidence that Crook suffered from organic brain damage. Clearly, the existence of brain damage is a significant mitigating factor that trial courts should consider in deciding whether a death sentence is appropriate in a particular case. Cf. Robinson v. State, 761 So. 2d 269, 277 (Fla. 1999). Thus, we must determine whether the trial court's rejection of mitigating evidence that Crook suffered from brain damage is supported by competent substantial evidence.

In the present case, although the trial court found three statutory mitigators, including two statutory mental mitigators, it is significant that in evaluating and weighing the mitigating evidence the trial court did not find these statutory mental mitigators based upon Crook's uncontroverted organic frontal lobe brain damage. Rather, the trial court found the extreme mental or emotional disturbance and impaired capacity statutory mitigating circumstances based primarily upon Crook's use of alcohol and controlled substances on the date of the homicide, which the court found was entirely voluntary on his part and within his exclusive control.

The trial court apparently rejected the uncontroverted evidence of brain damage in assessing the statutory mitigator because "there was no actual proof of any brain damage." Yet, all three medical experts testified to their objective testing that substantiated the existence of brain damage, specifically to the frontal lobe, which significantly impaired Crook's ability to control his impulses. The experts also explained that Crook's brain damage was exacerbated by the use of both alcohol and drugs at the time of the crime. Not only was their testimony uncontroverted, but it was entirely consistent with the report of Dr. Kremper that predated this murder and found Crook to have "severely limited frustration tolerance" and concluded that due to Crook's "severe cognitive, emotional, and behavioral deficits," with "minor frustration [Crook] was likely to become physically aggressive."

Relying on Robinson, 761 So. 2d at 276-77, the State contends that the record shows that the trial court thoroughly assessed all the evidence and reasonably rejected the evidence of brain damage. We find the State's reliance on Robinson to be misplaced. In Robinson, the trial court rejected the equivocal evidence of brain damage because one of the two defense experts testified that the defendant "could have mild brain damage or he could be normal" and that, even if there was brain damage, he was uncertain as to "how or if it would have affected [the defendant's] behavior." Id. at 277. Moreover, despite this testimony, the trial court in Robinson found as a non-statutory mitigating circumstance that the defendant "had suffered brain damage to his frontal lobe," but gave the mitigator "little weight" because of the insufficient evidence that the brain damage caused the defendant to commit the crime. Id. at 273.

In contrast to Robinson, the trial court in the present case did not find and weigh Crook's brain damage as a valid mitigating circumstance, and rejected its connection to this crime, even though three defense experts, two of whom specialized in brain injuries, presented uncontroverted testimony that Crook suffered from frontal lobe brain damage that established a statutory mental mitigator. Perhaps most significantly, unlike the experts in Robinson, the expert testimony in this case also explained the causes and origins of Crook's frontal lobe brain damage and established that there was a causal link between Crook's brain damage and the homicide.

Accordingly, we hold that the trial court erred in rejecting the uncontroverted evidence of Crook's brain damage. We conclude that based upon the expert testimony, there was "a reasonable quantum of competent, uncontroverted evidence" establishing its existence and its connection to the crime in question. Spencer, 645 So. 2d at 385. Certainly, this is not a case where there was little or no evidence presented to support a finding of brain damage, see Shellito v. State, 701 So. 2d 837, 844 (Fla. 1997), or where the expert testimony pertaining to a mitigating circumstance was equivocal. See Robinson, 761 So. 2d at 276-77; see also Franqui v. State, 699 So. 2d 1312, 1326 (Fla. 1997). As in Spencer, 645 So. 2d at 385, where the Court held that the trial judge erred in not finding and weighing uncontroverted mental mitigating circumstances, the expert testimony in this case pertaining to Crook's brain damage was uncontroverted, and the experts reached this conclusion after performing a series of neuropsychological and personality tests, conducting clinical evaluations of Crook, interviewing his mother, reviewing Crook's school and medical records, and examining the evidence in the case. Thus, given the unrefuted expert testimony in this case, we conclude that the trial court erred in failing to find and weigh the evidence of Crook's brain damage in its assessment of statutory mental mitigation.

BORDERLINE MENTAL RETARDATION

Having concluded that the trial court erred in failing to consider and weigh the unrefuted evidence that Crook suffered from brain damage, we next turn to Crook's claim that the trial court failed to consider and weigh evidence that Crook was diagnosed as being borderline mentally retarded.

In considering mental retardation *fn5 as a mitigating factor for imposing the death penalty, we have explained:

This Court has not established a minimum IQ score below which an execution would violate the Florida Constitution. We have, however, elected to follow the approach suggested by the United States Supreme Court and treat low intelligence as a significant mitigating factor with the lower scores indicating the greater mitigating influence. In the instant case, the trial judge gave "considerable weight" to Thompson's retardation. It is apparent that the jury also gave this evidence considerable weight in view of its 7-5 vote to recommend the death penalty. Thompson v. State, 648 So. 2d 692, 697 (Fla. 1994).

As in Thompson, the jury's vote to recommend the death penalty in this case was only seven to five. Unlike Thompson, the trial court in this case gave Crook's low intellectual functioning only "slight weight."

In Jones v. State, 705 So. 2d 1364, 1366 (Fla. 1998), the trial court rejected mitigating evidence that the defendant had organic brain damage and was borderline mentally retarded and imposed a sentence of death. This Court, on appeal, reversed the defendant's death sentence and remanded for the imposition of a life sentence, stating "our review of the record reveals copious unrebutted mitigation," including evidence that the defendant was "borderline" mentally retarded based upon the defendant's IQ of 76, and the fact that the defendant was placed in special education classes, had first-grade reading ability, and had learning disabilities. *fn6

In the present case, all of Crook's prior IQ tests from childhood reveal his full-scale IQ to be "as low as 62 or 69 and as high as the low 70s." Significantly, Dr. Kremper, who performed a disability evaluation two years prior to the murder, determined Crook's full scale IQ to be 66 and diagnosed Crook as borderline mentally retarded. This diagnosis was consistent with the findings of Dr. McCraney, who opined that Crook was mildly mentally retarded, and Dr. McClain, who testified that Crook's intellectual abilities were in the borderline mentally retarded range.

Thus, Crook did not simply have a low IQ, as the trial court apparently concluded. As in Jones, Crook had frontal lobe brain damage, Crook's reading ability was on the first-grade level, and Crook had an IQ that fell squarely within the borderline mentally retarded range. In addition, Crook's mental retardation was substantiated before the crime in question. A social security disability evaluation performed two years before the murder not only found Crook to be mentally retarded, but also found Crook disabled and incapable "of maintaining employment within a competitive work setting due to his severe cognitive, emotional and behavioral deficits."

Accordingly, given the uncontroverted expert testimony that Crook was borderline mentally retarded and given the significance that borderline mental retardation may have in considering whether the death sentence is appropriate in a given case, we hold that the trial court erred in rejecting the uncontroverted evidence that Crook was borderline mentally retarded.

Although we do not discount the statutory aggravators, this case highlights the importance of properly evaluating the statutory mental mitigators in light of the uncontroverted evidence of brain damage, mental retardation, and the age of the defendant. We are not certain whether, if the trial court had properly considered the brain damage and borderline mental retardation and the effect of these mental mitigators on the crime in question, the trial court would have found that the aggravation outweighed the mitigation, especially in light of the abundance of non-statutory mitigation. See Spencer, 645 So. 2d at 385; Santos, 591 So. 2d at 164.

SUPREME COURT CASES & NEWS

The Supreme Court granted certiorari this week in a capital case, Sattazahn v. Pennsylvania, 01-7574 (Cert granted 3/18/2002). The issue of the cert. grant appears to be double jeopardy, however, only press accounts are currently available.

POSITIVE CAPITAL CASE RESULTS

See above

CAPITAL CASES - RELIEF DENIED

Revilla v. Gibson, 2002 U.S. App. LEXIS 4134 (10th Cir 03/13/2002) Relief denied on Enmund/Tison claim, admission of expert testimony, duplication between heinous, atrocious, or cruel aggravator and elements of child abuse murder and ineffectiveness relating, chiefly, to failure to request an expert.

Carter v. Lee, 2002 U.S. App. LEXIS 3739 (4th Cir. 03/11/2002) Relief denied. "Carter makes two separate contentions in support of his claim that his lawyers' advice was constitutionally defective. First, he maintains that his court-appointed lawyers failed to apprise him of the disadvantages of testifying in his own defense. Second, Carter maintains that his lawyers offered erroneous advice that forced him to testify in contravention of his right against self-incrimination."

Floyd v. State, 2002 Nev. LEXIS 21; 118 Nev. Adv. Op. No. 17 (Nev. 03/13/2002) Nevada Supreme Court rebuffs the defendant's claims relating to: severance of charges, change of venue, probable cause of aggravating circumstances, use by the government's expert of materials prepared by nontestifying defense expert, certain remarks by the prosecution, vicitm-impact & proportionality.

House v. Bell, 2002 U.S. App. LEXIS 3714 (6th Cir. 03/11/2002) (dissent) Sixth Circuit panel holds that the manner in which the Tennessee courts applied the doctrine of waiver during petitioner's post-conviction proceedings constitutes an adequate and independent state procedural bar to foreclose federal review of the petitioner's claims. The petitioner, likewise does not meet the actual innocence exception to the rule. The dissent notes: "I have a serious question about whether House is guilty of the crime for which he was convicted... . . I believe the new evidence of the semen, the confessions, and the enzymatic degradation make it more likely than not that a reasonable doubt would be raised in the mind of any reasonable juror."

Raheem v. State, No. S02P0112 (Ga. 03/11/2002) Georgia Supreme Court turns aside claims relating to: failure to grant a demurrer on allegation relating to felony murder relating to the underlying felony being a felon in possession; racial prejudice by the state in its use of peremptory challenges in violation of Batson; prosecutorial comment on failure to testify; search without warrant of the apartment cohabited by the defendant and his girlfriend; admission of a juvenile adjudication; judge's remark to not unduly labor on the testimony of the defense expert in the penalty phase & proportionality review.

Todd v. Schomig, 2002 U.S. App. LEXIS 4164 (7th Circuit 03/14/2002) No error on claims relating to: [1] suppression of impeachment evidence; [2] trial court's inquiry into the waiver of a sentencing jury; [3] trial counsel was ineffective for [a] trial counsel failing to adequately investigate, obtain, and present hair transfer evidence; [b] not filing Todd's request to withdraw his jury waiver; [c] investigating and presenting additional mitigation evidence; & [c] pressuring him to waive his right to a jury trial; [4] failure of the state to prove beyond a reasonable doubt each and every element of his two statutory eligibility factors (robbery & agg sex assault); as well as [5] failure of the sentencing court to consider and give effect to all the mitigating factors he presented. Court holds defaulted several additional claim and notes that habeas counsel failed to offer a rationale to excuse default

OTHER NOTABLE CASES

United States v. Kolb(7th Cir 3/11/2002) A prisoner is not allowed to resort to means of self-protection, such as knives, to protect himself from attack even where a reasonable person may be placed in fear of attack, rather the fear of attack must be of an imminent attack and no alternative means, such as filing a formal grievance and requesting protective custody, exists.

For completeness' sake, we comment that legal terms, like "imminence," can and do have different meanings in different contexts. In the context of the defense of necessity to a criminal charge of possession of a weapon in a prison, imminence means that a prisoner must demonstrate that the threat was immediate and that there was no reasonable alternative to violating the law. We observe that, in the context of the Prison Litigation Reform Act, see 28 U.S.C. § 1915(g), which makes an exception to the three-strikes provisions for prisoners who face an "imminent danger of serious physical injury," "imminent" may not be so narrowly defined as we have defined it in this case. By no means do we mean to suggest that the definition of imminence in the context of a justification defense is the same as the definition of imminence in the context of the PLRA.

People v. Coleman, No. 1-99-2714 (Ill 1st App 03/11/2002) (unpublished) (noncapital) Apprendi violation found in natural life sentence for a triple murder.

Brown v. Artuz, No. 00-2516 (2nd Cir 03/13/2002) The state may close a courtroom to protect the identity of an an undercover "buy and bust" officer where the officer continued to work on occasion in the defendant's neighborhood.

Robinson v. Johnson, 2002 U.S. App. LEXIS 3723 (3rd Cir 03/11/2002) AEDPA time limits are subject to equitable tolling & other non-jurisdictional equitable considerations including waiver.

Newell v. Hanks, No. 00-1558 (7th Cir 03/12/2002) The statute of limitations under the AEDPA is subject to Federal Rule of Civil Procedure Rule 6(a) & thereforeany habeas corpus petition filed within one year of its enactment is timely.

Fraise v. Terhune, No. 00-5062 (3rd Cir 03/15/2002) Plaintiff inmates' free exercise rights; equal protection and due process challenges were properly denied under Turner v. Safley, 482 U.S. 78 (1987), for assessing prison regulations that restrict inmates' constitutional rights.

Proctor v. Cockrell, 2002 U.S. App. LEXIS 3775 (5th Cir 03/12/2002) No error when the Texas Court of Criminal Appeals' shifted the burden of proof to the defendant on the issue of the timeliness of the prosecution as the definition of the crime of aggravated battery remained unchanged.

Coleman v. DeWitt, No. 00-3688 (6th Cir. 03/12/2002) The Supreme Court's holding in Roe v. Wade & progeny do not bar prosecution for a battery that results in death of a fetus.

Killian v. Poole, 2002 U.S. App. LEXIS 3887 (9th Cir 03/13/2002) Habeas granted where the government failed to disclose impeachment evidence, the state's witness committed perjury, and the prosecutor's comments on privileged conduct.

Coleman v. DeWitt, No. 00-3688 (6th Cir. 03/12/2002) The Supreme Court's holding in Roe v. Wade & progeny do not bar prosecution for a battery that results in death of a fetus.

LATE PUBLICATION, AMENDED & DEPUBLISHED OPINIONS

United States v. Sanchez-Cervantes, No. 98-35897 (9th Cir 03/15/2002) (amended) Apprendi is a new rule for purposes of the AEDPA that does not apply retroactively.

United States v. Martin, No. 00-10443, 00-10607 (9th Cir 03/13/2002) (amended) Corporate counsel's tip as to alleged wrong doings by his client held admissible under the crime-fraud exception to the attorney-client privilege.

United States v. Lynch, No. 00-30247 (9th Cir 03/12/2002) (amended) The de minimis effect on interstate commerce requirement is stricter where the victim is an individual rather than a business under the Hobbs Act, 18 U.S.C. section 1951(a)-(b).

FOCUS

Having spent several weeks discussing mitigation, this week covers ineffective assistance of counsel relating to the issue of mitigation. The case law review below is but one of the samplings offered by the good people at the Habeas Assistance Training Group & Federal Defense Resource Counsel. http://www.capdefnet.org/hat/contents/constitutional_issues/case.htm.

U.S. Supreme Court Cases

2000: *Williams v. Taylor, 529 U.S. 362 (2000) Counsel ineffective in capital sentencing for failure to prepare and present mitigation evidence. Counsel's did not begin to prepare for the sentencing phase until a week before trial. They failed to get extensive records of Williams's childhood because they incorrectly thought that state law barred access to such records. They failed to discover a number of available mitigation witnesses due to lack of investigation and, in one instance, simply because they failed to return the phone call of a CPA, who saw Williams as a prison minister. At trial, counsel presented testimony only from Williams's mother and two neighbors (one of whom was not interviewed before but was asked to testify on the spot when noticed in the audience during the proceedings). These witnesses testified that he was "nice" and not violent. Counsel also presented a tape of a psychiatrist's testimony simply relating that Williams had removed the bullets from a gun during an earlier robbery to avoid hurting anyone. In closing, counsel argued that Williams had turned himself in and the police would not have solved the crimes otherwise, but noted that it was difficult to find a reason why the jury should spare his life. Prejudice was found because an adequate investigation would have revealed that Williams's parents had been imprisoned for criminal neglect of Williams and his siblings, that Williams had been severely and repeatedly beaten by his father, that he had been committed to the custody of social services for two years during his parents' incarceration (including time spent in an abusive foster home), and that he was returned to his parents' custody when they got out of prison. The evidence also would have revealed that Williams was "borderline mentally retarded" and only completed the 6th grade in school, that he had received commendations in prison for helping to crack a prison drug ring and for returning a guard's missing wallet, and that prison officials would have testified it was unlikely that he would be dangerous in prison. If counsel had investigated and prepared for sentencing, even the state's experts who testified to future dangerousness would have testified that Williams would not pose a future danger if kept in a structured environment, such as prison.

U.S. Court of Appeals Cases

2001: *Cone v. Bell, 243 F.3d 691 (6th Cir. 2001) Counsel ineffective in capital sentencing for offering no evidence in mitigation and waiving sentencing argument. Counsel in no way "even ask[ed] the jury to spare his client's life." Counsel raised a number of alleged "strategic" reasons, including preventing the prosecutor from making an alleged devastating closing argument. "[T]he noun 'strategy' is not an accused lawyer's talisman that necessarily defeats a charge of constitutional ineffectiveness. The strategy . . . must be reasonable." "Here, the goal, the only conceivable goal, was to persuade the jurors not to sentence cone to death. How counsel's refusal even to ask the jurors to do that could be called a reasonable stategy to achieve the goal, eludes us." Counsel's conduct deficient because no competent attorney would determine that presenting no mitigation or argument was reasonable. Prejudice found because counsel's silence could only be read as "acquiescing to the prosecutor's plea that Cone be sentenced to death." Indeed, the court found that the petitioner "may well have fared better if his counsel had left the courtroom entirely for the sentencing phase of the trial," because then the jury would not have drawn an adverse inference. "When a man faces the gallows and his attorney sitting next to him declines to even ask the jurors to spare his life in the name of simple mercy, the attorney ought to have a most compelling reason for failing to speak . . . ." Prejudice presumed under Cronic because counsel's action deprived defendant of meaningful adversarial testing. Upon finding that petitioner met Cronic standard, court found unreasonable application of federal law without any further discussion of 28 U.S.C. § 2254(d) standard.

*Battenfield v. Gibson, 236 F.3d 1215 (10th Cir. 2001) Counsel ineffective in capital sentencing for failing to adequately investigate and present mitigating evidence, despite the purported waiver of mitigation by the defendant and the limited review necessitated by the AEDPA. Counsel's conduct was deficient because he spent very little time investigating mitigation and planned only to present the defendant's parents to beg for sympathy and mercy. Counsel never interviewed the parents, the defendant, or anyone else, however, concerning the defendant's background. Court cites approvingly "Stephen B. Bright, Advocate in Residence: The Death Penalty As the Answer to Crime: Costly, Counterproductive and Corrupting, 36 Santa Clara L. Rev. 1069, 1085-86 (1996) ('The responsibility of the lawyer is to walk a mile in the shoes of the client, to see who he is, to get to know his family and the people who care about him, and then to present that information to the jury in a way that can be taken into account in deciding whether the client is so beyond redemption that he should be eliminated from the human community.')." 236 F.3d at 1229. No strategy excused counsel's choice to only beg for sympathy and mercy. "[T]here was no stategic decision at all because [counsel] was ignorant of various other mitigation strategies he could have employed." Id. at 1229. Moreover, counsel knew the state planned to rely on evidence of the defendant's prior conviction for assault and battery with a dangerous weapon but never investigated to determine the underlying facts of that conviction. The state court did not address the lack of investigative efforts at all so the federal court exercised its independent judgment on this issue. Alternatively, the court concluded that the state court unreasonably applied Strickland in finding counsel's conduct to be reasonable. The court also found that counsel's failure was not excused by the defendant's waiver of the right to present mitigation because counsel's "failure to investigate clearly affected his ability to competently advise Battenfield regarding the meaning of mitigation evidence and the availability of possible mitigation strategies." Id. Counsel could not have discussed the available mitigation with the defendant because he was unaware of the evidence. Thus, counsel informed the defendant only of the intent to have his parents beg for mercy. The defendant thus waived mitigation because he did not want his parents to testify. The state court found the waiver to be knowing and intelligent, but the federal court rejected this finding as both factually and legally unreasonable because neither counsel nor the state court provided sufficient information for the defendant to make a knowing and intelligent choice. The federal court also rejected the state court's finding that counsel was reasonable for relying on the defendant's waiver because the court failed "to see how [the defendant] can be held responsible for [counsel's] failure to present mitigating evidence unknown to [the defendant]." Id. at 1233. The court found this to be "a patently unreasonable application of Strickland." Prejudice found because the only valid aggravating circumstance found by the jury was a continuing threat based in substantial part on the state's evidence of a prior violent conviction. If counsel had adequately investigated, however, this evidence could have been rebutted with evidence that the prior assault may have been an act of self defense committed while under the influence of alcohol and drugs. If counsel had adequately investigated, the evidence available in mitigation would have also included (a) the defendant's involvement in a serious car accident at age 18, during which he sustained a serious head injury and after which he heavily used alcohol and drugs, (b) a family history of alcoholism and possible drug addiction, (c) evidence from family members and friends indicating that the defendant was known for his compassion, gentleness, and lack of violence, even when provoked, and (d) testimony of prison personnel describing the security and drug and alcohol treatment programs where the defendant would be incarcerated if given a life sentence. The federal court's finding of prejudice was not constrained by the AEDPA standards because the state court never addressed this issue.

2000: *Lockett v. Anderson, 230 F.3d 695 (5th Cir. 2000) Counsel ineffective in murder case for murdering husband and wife for failing to prepare and present adequate mitigation evidence with respect to the wife. Defendant was tried and sentenced separately for these offenses, although they were combined in federal habeas. District Court had already granted new trial on husband's murder case. Counsel ineffective because counsel failed to adequately prepare due to illness of counsel's mother, these two murder cases one month apart, and two other capital trials. Counsel lacked basic "familiarity" with "psychological tests" performed on his client, but he knew client had a history of seizure problems and head injuries. Counsel did not investigate, however, even after defendant's mother retained a psychiatrist who recommended additional testing, including neuropsychological testing. Counsel was aware of recommendations. Counsel was also aware of "black-outs, delusional stories, references to self as another name, family troubles, drug and/or alcohol addiction," which should have "put him on notice that pursuit of the basic leads that were before him may have led to medical evidence that Lockett had mental and psychological abnormalities that seriously affected his ability to control his behavior. Counsel thus may have had a strong predicate from which to argue to the jury that Lockett was rendered less morally culpable for the ruthless, cruel, and senseless murders he had committed." Id. at ___. Strategic decision does not excuse counsel's conduct because counsel did not even follow the recommendation for additional testing recommended by defense psychiatrist. Court also rejected argument of strategic decision to avoid devastating cross-examination because trial defense counsel never considered the strategy. Prejudice found even though crimes were particularly aggravated and some of this evidence could have been aggravating because it could support future dangerousness because additional testing and investigation would have revealed temporal lobe lesion or epilepsy and/or schizophrenia and a troubled childhood with trauma. Without this evidence, counsel just asked jury for mercy and presented no real evidence or argument in mitigation.

*Carter v. Bell, 218 F.3d 581 (6th Cir. 2000) Counsel ineffective in capital sentencing where counsel neither investigated nor introduced any evidence of mitigating factors. The defense only argued residual doubt when the state's evidence consisted of an eyewitness who saw the defendant with the victim and the testimony of a co-defendant who had already plead guilty and defense evidence was one alibi witness. Counsel spoke to only a few family members and they could not say whether they had even discussed mitigation. Counsel did not even obtain a release from client so they could view his personal or prison records and they did not seek any available records on defendant or his family. Counsel had prepared motion for expert but did not pursue it after defendant said he did not want to pursue insanity defense. Available mitigation evidence included evidence of "illegitimacy, extreme childhood poverty and neglect, family violence and instability during childhood, poor education, mental disability and disorder, military history, and positive relationships with step-children, adult family, and friends." Family history included one sibling dying in fire set by mom's boyfriend, two siblings dying of birth defects as infants, and all six remaining siblings having criminal records. Defendant's mother and sister were both hospitalized in mental health institutions and his grandfather, father, mother, step-father, and brother all suffered from alcoholism. Defendant's childhood home was also violent and unstable in that the family never lived in one place more than two years. Mother drank and would often drink up her welfare check and let the children go hungry. At the age of three, defendant and his then five year old sister were abandoned by their mother for more than a week, subsisting on milk stolen from the neighbors' porches. The welfare department placed the two in a children's home for several weeks. They subsequently lived with their aunt until their mother regained custody a year later. The defendant also suffered seriously from childhood rheumatic fever. He was whipped and beaten as an infant for crying from the illness. He also suffered frequent serious breathing problems as a child that led to numerous trips to the emergency room. The records show both childhood and adult head injuries from accidents and fights. He was also diagnosed with diabetes in 1977, when he apparently was brought to the hospital in a coma. Defendant had limited schooling and an IQ of only 79. Just prior to trial, a corrections doctor recommended "psychiatric hospitalization" because defendant's "nerves seemed stretched to the breaking point." Defendant was ultimately diagnosed after trial with schizophrenia and a history of partial seizures. Counsel's deficient conduct was not excused because defendant did not tell them of history. "The sole source of mitigating factors cannot properly be that information which defendant may volunteer; counsel must make some effort at independent investigation in order to make a reasoned, informed decision as to their utility." Id. at 596. Defendant's reluctance to present mental health evidence or testify also does not excuse failure to investigate. Conduct also not excused by argument that state would have rebutted with other crimes and bad character evidence because Tennessee law would permit rebuttal of the mitigating evidence submitted only and not general bad character evidence.

*Jackson v. Calderon, 211 F.3d 1148 (9th Cir. 2000), cert. denied, ___ U.S. ___, 121 S. Ct. 764 (2001) Counsel ineffective for failing to prepare and present mitigation evidence. Defendant was smoking PCP and engaging in bizarre behaviors, such as diving head first into pavement and pulling and slapping his hair. A police officer responding to the call to investigate told the defendant to sit and ultimately hit him in the back of the legs with the baton when the defendant attempted to walk away. They struggled and the defendant was maced in the face a number of times. When officer ran to driver's side of patrol car possibly to call for backup, the defendant reached in passenger side and the two struggled for a shotgun. The defendant got it. Evidence conflicting, but it appeared that both put their weapons on the roof of the car at some point and then defendant grabbed shotgun up and fired. One pellet entered officer's eye and killed him. When other officers arrived, the defendant would not surrender and threatened to kill. A police dog caused the defendant to drop the weapon and the defendant was subdued after a struggle in which he tried to get another weapon. Shortly after the arrest, the defendant's blood pressure dropped drastically and he has hospitalized due to incoherence, shock, and semiconsciousness. Prior to trial, the defense had the defendant examined by two psychiatrists but did not call either because they could not establish affirmative defense and would reveal potentially damaging information. The defense did call one psychiatrist, who had not examined the defendant, to testify generically about the effects of PCP. During sentencing, the defense presented testimony only from the defendant's estranged wife and mother. The wife testified that the defendant was a good provider, good father, and good husband, except for drug use, which was the reason she left him. She related an instance when he thought the house was charged with electricity due to drug use. The mother testified that the defendant's father was a hustler, who was never around, and that the defendant's troubles started at age 14 when he started sniffing glue. Both witnesses were cross-examined about the defendant's prior offenses. Counsel's conduct was deficient because counsel conducted only two hours of investigation related to sentencing weeks before the trial because of the belief that they would not reach sentencing. Thus, counsel, who had no prior capital case experience, only interviewed the wife and mother and reviewed juvenile and military records. If counsel had adequately investigated, the evidence would have revealed that the defendant suffered repeated beatings in childhood, his mother would choke him when she was angry, his childhood was characterized by neglect and instability, and he showed signs of mental illness as a child and had been diagnosed with schizophrenia at one time. In addition, if counsel had presented the testimony of one of the examining psychiatrists during sentencing, the jury would have heard that the defendant was grossly impaired by PCP at the time of the offenses. Finally, counsel also failed to investigate and object to the testimony of an alleged victim of a prior sodomy because it was questionable that the sodomy was committed by force or threat of force, which was a prerequisite for admissibility in sentencing.

1999: *Smith v. Stewart, 189 F.3d 1004 (9th Cir. 1999), cert. denied, ___ U.S. ___, 121 S. Ct. 358 (2000) Counsel ineffective in sentencing phase for failing to prepare and present mitigation and failing to challenge the state's aggravation evidence related to prior convictions. Defendant was tried for two different rape-murders. After first conviction by jury, defendant plead guilty to the second one, even though the prosecutor argued that defendant was emotionally unstable and his plea may not be voluntary. During first sentencing under statute that allowed only consideration of statutory mitigating circumstances, counsel presented testimony from two experts, who testified that defendant had internal conflicts bordering on psychosis that caused tensions leading to a compulsion to commit sexually sadistic murders. These experts had minimal information about the defendant's history and had conducted only short interviews, but testified in an effort to establish impaired ability to conform conduct to law. Defendant was granted a new sentencing trial after the statute was held to be unconstitutional. Although counsel could now present non-statutory mitigating evidence, he did no investigation, called no witnesses, and only reargued that the court should consider the testimony of the previous experts as mitigation. Complete failure to investigate, when the prosecutor even questioned the defendant's emotional stability, was deficient. Court found prejudice because, if counsel had adequately investigated and presented mitigation, the evidence would have at least established that the defense investigator and a pastor had observed multiple personalities in the defendant. His girlfriend would have testified that he treated her well but had wild mood swings. He had attempted suicide in prison. He had developed serious psychosexual problems stemming from his childhood with deeply religious parents, one of whom beat him severely and the other emotionally neglected and abandoned him. This evidence, at a minimum, would have supported the testimony of the previous experts which had been rejected by the courts for lack of foundation and credibility. "A lawyer who should have known but does not inform his expert witnesses about essential information going to the heart of the defendant's case for mitigation does not function as 'counsel' under the Sixth Amendment." Id. at ___. Court also found that counsel was ineffective for failing to challenge the state's aggravation evidence of two prior rape convictions as a prior violent offense. Both of the convictions occurred when Arizona law did not include violence as an element of rape. Likewise, when of the convictions was obtained when it appeared that the defendant's counsel had a conflict of interest. The failure to challenge the aggravating circumstances and present mitigation evidence was prejudicial despite the "horrific nature of the crimes" in this case, especially because the Arizona statute requires a death sentence in the absence of mitigating evidence.

*Collier v. Turpin, 177 F.3d 1184 (11th Cir. 1999) Counsel ineffective in capital sentencing for failing to adequately prepare and present mitigation evidence. The defendant, who lived in Tennessee, drove to Georgia and committed three armed robberies. During his drive back to Tennessee, he was stopped by several officers. He grabbed one of the officers' weapons and shot both officers killing one. Because of eyewitnesses and a full confession, a conviction was essentially a foregone conclusion. During the sentencing phase, which lasted only an hour and a half, trial counsel presented 10 defense witnesses, including the defendant's wife but essentially elicited only one or two word answers from them that established that the defendant was a good worker, supported his family, and a good reputation for truth and veracity (which was irrelevant since he did not testify). The claim of ineffective assistance was not raised in the first state habeas petition. Ultimately after navigating the procedural quagmire of bouncing back and forth between federal and state habeas petitions, the Court found counsel to be ineffective in this fourth habeas petition. The Court found cause for the default of not raising the issue in the first state and federal habeas petitions because the trial attorneys had represented the defendant in those proceedings. Counsel were ineffective because they failed to develop the mitigation evidence that they were aware of. The witnesses who testified could have presented substantial evidence that the defendant was a good family man and an upstanding public citizen, who had a background of poverty but who had worked hard as a child and as an adult to support his family and close relatives. Instead of the "hollow shell" of mitigation, Id. at ___, trial counsel could have established the defendant had a gentle disposition, his record of helping his family in times of need, specific instances of heroism and compassion, and evidence of his circumstances at the time of the crimes, including his recent loss of his job, his poverty, and his diabetic condition. Counsel was also ineffective for failing to seek and present an expert on diabetes when they were aware of the diabetes and that the defendant's crimes were totally out of character for him. If counsel had performed adequately, the evidence would have established that the defendant had trouble controlling his behavior when he was not properly medicated, which would have mitigated the crime itself. An expert could have testified that the defendant's behavior was possibly caused by an episode of hypoglycemia brought on by the defendant's failure to eat that day in combination with an excessive insulin dose. Prejudice found because a juror who had known of the "stark contrast between [the defendant's] acts on the day of the crimes and his history" may not have voted for death. The Court concludes, "The jury was called upon to determine whether a man whom they did not know would live or die; they were not presented with the particularized circumstances of his past and of his actions on the day of the crime that would have allowed them fairly to balance the seriousness of his transgressions with the conditions of his life. Had they been able to do so, we believe that it is at least reasonably probable that the jury would have returned a sentence other than death." Id. at ___.

*Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998), cert. denied, 528 U.S. 922 (1999) Counsel ineffective in sentencing phase of double murder trial for failing to prepare and present mitigation evidence. First counsel was appointed to represent defendant and investigated competency defense. A second counsel was appointed a month and a half before the penalty hearing. The penalty phase counsel relied solely on the evidence prepared by the guilt-or-innocence phase counsel. The first counsel believed that he was prohibited from participating in the sentencing phase so he did nothing either. Prior to trial, the first counsel had contacted two mental health experts, who strongly recommended neuropsychological testing for brain damage, but this testing was not completed until ten months later during the weekend before the penalty hearing. Counsel were unaware of the results when the penalty phase started. Counsel also failed to furnish other necessary information to the experts who testified during the penalty phase and failed to adequately prepare these experts for their testimony. The only expert who had reviewed any documents did not testify. One expert who did testify had requested social, medical, and educational information, which had not been provided, and met with counsel to prepare for testimony only a day or two before testimony. He could testify only that Bean had an organic personality disorder and was moderately defective in intelligence, but could not definitively state whether Bean had brain damage or whether he was able to appreciate criminality. The other expert to testify also did not have any information other than her last-minute testing. She testified that Bean has brain damage and his ability to appreciate criminality was impaired, but she had not studied the relevant California legal standards. Subsequent review of the evidence by these experts and others resulted in testimony that Bean was functionally mentally retarded, suffered from post-traumatic stress disorder, was brain damaged, was using drugs during the time of the offenses, and was incompetent at the time of trial. The Court stated: "When experts request necessary information and are denied it, when testing requested by expert witnesses is not performed, and when experts are placed on the stand with virtually no preparation or foundation, a capital defendant has not received effective penalty phase assistance of counsel." Id. at 1079. The Court also found prejudice because the two experts who did testify lacked preparation and foundational information for their conclusions which severely undercut their credibility. In addition, counsel presented only an "unfocused snapshot" of Bean's life in sentencing so the jury had no knowledge of the "indisputably sadistic treatment Bean received as a child, including repeated beatings which left a permanent indentation in his head." Id. at 1081. Counsel also failed to discover and present evidence of Bean's developmental delays, including placement in classes for the "educable mentally retarded." Prejudice was found because this was not a case in which the death sentence was inevitable due to the enormity of the aggravating circumstances. In fact, the state presented little aggravating evidence and the jury initially divided over the appropriateness of the death penalty, deadlocking on both murders. Ultimately, the jury returned with one death verdict and life verdict.

*Smith v. Stewart, 140 F.3d 1263 (9th Cir.), cert. denied, 525 U.S. 929 (1998) Counsel ineffective in capital sentencing phase for failing to prepare and present mitigation and for failing to make any argument on defendant's behalf. Counsel stated only that defendant still denied his guilt and that he was only 30-years-old. Counsel spoke with defendant and his mother but asked only a few generalized questions was revealed nothing of significance. While the court recognized that counsel's task is difficult without the client's assistance, the court could not "find any reason, tactical or otherwise for the failure of counsel to develop any mitigation at all for the purpose of defending [the defendant] against the death penalty." 140 F.3d at 1269. Likewise, counsel's failure to even request leniency amounted to no representation at all. 140 F.3d at 1270. Available evidence included evidence of antisocial personality disorder, extensive drug history, change in personality after a PCP overdose, and good family relationships, including his love and support of his children. In assessing prejudice, the court stated, "we are not asked to imagine what the effect of certain testimony would have been upon us personally," 140 F.3d at 1271, but what the effect would have been on the sentencer, which under Arizona law is the judge. Prejudice found in this case because facts were "bad" but not "overwhelmingly horrifying" such that is was "highly improbable that mitigating factors of any ordinary stripe would help." 140 F.3d at 1270. Likewise, under the Arizona sentencing scheme, the judge is required to sentence the defendant to death if there are aggravating circumstances and "no mitigating circumstances sufficiently substantial to call for leniency." 140 F.3d at 1270. Counsel's failure to present mitigation or argue for leniency thus amounted to "a virtual admission that the death penalty should be imposed." 140 F.3d at 1270.

*Dobbs v. Turpin, 142 F.3d 1383 (11th Cir. 1998) Counsel ineffective in capital sentencing phase because counsel failed to investigate and present any mitigating evidence and made an inadequate closing argument. Counsel spoke to very few potential mitigation witnesses, including the defendant's mother. Available but unpresented mitigation included witnesses to testify that defendant had an unfortunate childhood, his mother often would not let him stay in the house with her, and when she did allow him to stay, she ran a brothel where she exposed him to sexual promiscuity, alcohol, and violence. Counsels' reasons for failure were insufficient. Counsel believed erroneously that evidence of defendant's childhood was inadmissible and that mitigating evidence could only be admitted to mitigate the crime, as opposed to the sentence. The court held, "'[S]trategic decisions based on a misunderstanding of the law are entitled to less deference." 142 F.3d at 1388. Counsel also stated that the defendant did not want him to present mitigation evidence. The court held "that lawyers may not 'blindly follow' such commands. Although the decision whether to use mitigating evidence is for the client, this court has stated, 'the lawyer first must evaluate potential avenues and advise the client of those offering possible merit.'" 142 F.3d at 1388 (quoting Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986), cert. denied, 481 U.S. 1042 (1987)). Counsel's argument in sentencing consisted of reading Justice Brennan's concurring opinion in Furman and arguing that the current death penalty statute would also be found unconstitutional. Counsel's argument was ineffective because it minimized the jury's responsibility for determining the appropriateness of the death penalty and failed to focus on the character and record of the defendant and the circumstances of the offense. In addition, counsel's argument was deficient because he never asked the jury for mercy or for a life sentence. He merely asked the jury to impose a sentence with which the jurors could live. Counsel offered no reason for the inadequate argument.

1997: *Austin v. Bell, 126 F.3d 843 (6th Cir. 1997), cert. denied, 523 U.S. 1079 (1998) District court found IAC in both guilt and sentencing, but the court of appeals found only IAC in sentencing. Counsel were ineffective for failing to prepare and present mitigation evidence because they didn't think it would do any good. Relatives, friends, death penalty experts, and a minister were available and willing to testify.

*Hall v. Washington, 106 F.3d 742 (7th Cir.), cert. denied, 522 U.S. 907 (1997) Trial counsel ineffective (even under AEDPA standards) in sentencing for failing to adequately advise the defendant of the consequences of waiving a jury in a sentencing, for failing to investigate and discover readily available mitigation evidence which included good character and adaptability testimony from a correctional officer when the victim was also a correctional officer and good character evidence from other witnesses. Investigation is required. "This does not mean that only a scorch-the-earth strategy will suffice, . . . but it does mean that the attorney must look into readily available sources of evidence. Where it is apparent from evidence concerning the crime itself, from conversation with the defendant, or from other readily available sources of information, that the defendant has some mental or other condition that would likely qualify as a mitigating factor, the failure to investigate will be ineffective assistance." Id. at 749-50. Prejudice found even though judge alone trial because if not for IAC might not have been judge alone and even if it had, trial court found no mitigation evidence at the time of sentencing. Trial counsel also ineffective for sentencing phase closing which did not even focus on defendant, but rather focused on life sentence because the death penalty is barbaric.

1996: *Emerson v. Gramley, 91 F.3d 898 (7th Cir. 1996), cert. denied, 520 U.S. 1122 (1997) (affirming 883 F. Supp. 225 (N.D. Ill. 1995)) Trial counsel ineffective for failing to prepare and present mitigation evidence and making no sentencing argument at all where the state presented aggravation evidence of seven prior convictions of robbery. Available mitigation would have shown that at age 8 the defendant was shot when he was an innocent bystander during robbery, he lacked emotional and educational support from his parents, he lost a young child, and had a diminished IQ.

1995: *Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995), cert. denied, 519 U.S. 910 (1996) Trial counsel ineffective for failing to adequately prepare and present mitigation evidence in case where defendant killed police officer while helping older brother escape from jail. Counsel requested court-appointed examination and examiners reported no organic brain damage (although no testing done.) Available but unpresented evidence included mental retardation (school records), physical abuse, hyperactivity as a child. Neurological examination showed global brain damage probably caused by general anesthesia given mother early in pregnancy. ["while juries tend to distrust claims of insanity, they are more likely to react sympathetically when their attention is drawn to organic brain problems such as mental retardation", Id. at 1211] Probation officer (if interviewed and called) would have testified that defendant was a follower and was particularly susceptible to the influence of his older brother.

*Ford v. Lockhart, 67 F.3d 162 (8th Cir. 1995) (affirming 861 F. Supp. 1447 (E.D. Ark. 1994) Trial counsel ineffective for failing to prepare and present mitigation evidence which would have shown that: defendant suffered severe physical and psychological abuse from father, including being hung from the rafters in a cotton sack or by his wrists all day long and being beaten periodically with extension cord; and defendant witnessed father beating mother and siblings. In addition, counsel failed to investigate and present evidence of intoxication at time of the offense despite the fact that hospital records after capture showed that he was "vomiting and drunk."

*Antwine v. Delo, 54 F.3d 1357 (8th Cir. 1995), cert. denied, 516 U.S. 889 (1996) Counsel ineffective for failing to investigate and present available evidence of bipolar disorder. Counsel was aware that defendant was acting oddly for months before offense and that a cursory 20 minute exam by state experts found abnormal behavior consistent with PCP intoxication but that defendant denied using PCP at the time of the offense. Counsel failed to follow up on this inconsistency.

*Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995), cert. denied, 517 U.S.1111 (1996) Trial counsel ineffective for failing to adequately prepare and present mitigation evidence even though a defense expert was called. [Great language on duty to investigate mental health and that "quantum of prejudice the caselaw seems to require for deficient penalty phase performance is relatively low." See also Hendricks v. Calderon, 864 F. Supp. 929 (N.D. Cal. 1994) and Hendricks v. Calderon, 64 F.3d 1340 (9th Cir. 1995). Trial counsel ineffective for failing to prepare and present mitigation which would have shown that defendant: was blamed by his family for his mother's death giving birth; lived in a two-room house with grandmother and 15 relatives; was beaten with a frying pan and switch by grandmother; had to drink kerosene and sugar as medicine; was sexually abused by prostitutes who worked for father; was raped by a stranger and attempted suicide shortly afterwards; had a son who died from rare skin disease; and had a history of drug and alcohol use and male prostitution. A mental health expert would have testified that defendant is genetically predisposed to serious mental illness which was exacerbated by background. Expert testimony would have also shown that defendant suffered from schizoaffective disorder, PTSD, and polysubstance abuse. Expert would have even testified that defendant was insane at the time of the offenses. All of this evidence would have supported at least three statutory mitigating circumstances that were not presented to the jury. Although the jury was given some lay evidence in mitigation, the jury was given no guidance of how to connect the facts and expert testimony about background to the mitigating factors.

*Clabourne v. Lewis, 64 F.3d 1373 (9th Cir. 1995) Counsel ineffective for failing to prepare and present mitigation evidence. Trial counsel did not call any witnesses in sentencing even though a detective would have testified that it was the co-defendant who was responsible for the depraved manner in which the crime was committed and depravity was the only aggravating circumstance found. Trial counsel also did not prepare and present expert testimony. The defense expert who testified at trial had seen the defendant six years earlier and was not provided with any subsequent records, including records concerning offense. If additional information had been provided, defense expert would have diagnosed schizophrenia instead of anti-social personality. Likewise, state experts testified at trial that defendant was sane, but were never provided with information about defendant's history or offenses or asked about mitigation. If defense counsel had provided the information and talked to them, state experts would also have diagnosed schizophrenia and agreed that co-defendant had manipulated defendant.

*Baxter v. Thomas, 45 F.3d 1501 (11th Cir.), cert. denied, 516 U.S. 946 (1995) Trial counsel ineffective during penalty phase of capital trial for failing to adequately investigate and present mitigation evidence. Counsel did not request State Hospital records, school records, or social service records, and did not interview defendant's sister, neighbor, or social worker, even though counsel was aware of defendant's odd behavior and even requested a mental health evaluation. Because of these failures, trial counsel did not discover or present evidence that defendant spent approximately three years of his teenage life in a psychiatric hospital and that he was mentally retarded.

*Jackson v. Herring, 42 F.3d 1350 (11th Cir.), cert. denied, 515 U.S. 1189 (1995) (affirming Jackson v. Thigpen, 752 F. Supp. 1551 (N.D. Ala. 1990)) Trial counsel ineffective during penalty phase of capital trial for failing to adequately investigate and present mitigation evidence. Available but unpresented mitigation evidence included: substantial personal hardships, including having to quit school in 8th grade because defendant was pregnant; brutal and abusive childhood at the hands of an alcoholic mother; devotion to her mother, sister, and daughter; borderline mental retardation; good work history; and abuse by her boyfriend, who was the murder victim, both for a long time preceding his death and immediately prior to his death.

1994: *Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994), cert. denied, 513 U.S. 1102 (1995) (affirming 824 F. Supp. 1327 (E.D. Ark. 1993)) Trial counsel ineffective at penalty phase for failing to prepare and present evidence of defendant's mental state at the time of the offenses, and that defendant had a long history of schizophrenia but he was taking antipsychotic medication at the time of offenses.

*Wade v. Calderon, 29 F.3d 1312 (9th Cir. 1994), cert. denied, 513 U.S. 1120 (1995) Trial counsel ineffective during penalty phase of capital trial for failing to call defendant's family to corroborate abusive background; calling forth alternate personality that committed crimes (defendant had multiple personality disorder) during defendant's testimony and eliciting damaging statements and essentially a challenge to the jury to execute defendant; and by arguing during closing argument that 1) defendant's life should be spared so doctors could examine him as human "guinea pig"; 2) that jurors had already decided on death; and 3) that executing defendant may "free him from this horror".

1992: *Loyd v. Whitley, 977 F.2d 149 (5th Cir. 1992), cert. denied, 508 U.S. 911 (1993) Trial counsel ineffective in sentencing phase for failing to obtain independent mental health evaluation when funds were available and sanity was a critical issue, but counsel assumed funds were not available and did not pursue issue. Proper investigation would have revealed: evidence that defendant was unable at time of offense to distinguish between right and wrong or appreciate the significance or consequences of his acts because of psychotic delusions; child abuse; substance abuse; psychosis (not anti-social as the state contended at trial); and brain damage (frontal lobe dysfunction).

*Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992), cert. denied, 507 U.S. 951 (1993) (affirming 754 F. Supp. 1490 (W.D. Wash. 1991) Trial counsel ineffective for failing to prepare and present mitigating evidence regarding defendant's background, family relationships, and the effects of assimilation problems and cultural conflict on young Chinese immigrants.

*Cave v. Singletary, 971 F.2d 1513 (11th Cir. 1992) Petitioner given death sentence for robbery and murder. At trial, counsel emphasized the fact that petitioner admitted he was guilty of robbery. Court found that although this demonstrated that counsel did not understand the felony murder rule, petitioner was not prejudiced because the jury would have made the same decision based on the evidence of guilt of the robbery. Counsel was found ineffective at sentencing phase, however, because she was under the "grandiose, perhaps even delusional belief" that she would win an acquittal for her client and, therefore, failed to prepare and present available character evidence and the fact that defendant had no prior criminal record in mitigation. State argued lack of character evidence in closing argument.

1991: *Kenley v. Armontrout, 937 F.2d 1298 (8th Cir.), cert. denied, 502 U.S. 964 (1991) Counsel ineffective for failing to investigate and present mitigation evidence because counsel erroneously believed that the evidence was too old and insubstantial, which was based, in part, on psychiatrist's report which was itself incomplete. Adequate investigation would have revealed a history of "an extreme personality or emotional disorder or disturbance, suicidal tendencies, and alcohol abuse and intoxication.

*Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991), cert. denied, 504 U.S. 946 (1992) (affirming Blanco v. Dugger, 691 F. Supp. 308 (S.D. Fla. 1988) At sentencing, counsel failed to present any mitigating evidence. He never spoke to potential witnesses and thus failed to present evidence of childhood poverty, seizures, family history of psychosis, organic brain damage, borderline retardation, epileptic disorders and paranoid and depressive behaviors. Counsel also asked for continuance to procure psychiatric exam and then never had one conducted. Counsel told trial court that no mental health mitigation existed. Counsel revealed damaging information, violating client confidences, to trial judge.

*Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991), cert. denied, 503 U.S. 952 (1992) Trial counsel ineffective for failing to prepare or present mitigating evidence because of the "strategic reason" that mitigation was appropriate only in gruesome cases involving torture. Available mitigation would have shown that defendant was a hard worker, a good youth, able to provide for his common law wife and their daughter, and had successfully adjusted to previous stays in prison. Counsel also ineffective for arguing that they were local lawyers, not "bleeding heart, anti-death penalty lawyers" and calling the defendant a "worthless man" that defense counsel hates and conceding that maybe the defendant "ought to die" during closing argument.

1990: *Brewer v. Aiken, 935 F.2d 850 (7th Cir. 1990) Defense counsel ineffective in death penalty phase of trial for failing to fully investigate defendant's family and mental history and present evidence in mitigation. An investigation would have revealed shock therapy, brain damage, mental retardation, susceptibility to the influence of others, and disadvantaged family life.

*Cunningham v. Zant, 928 F.2d 1006 (11th Cir. 1990) Counsel ineffective during the penalty phase of a capital murder case for failing to present evidence of mental retardation, head injury, socioeconomic background and reputation as good father and worker in mitigation.

1989: *Kubat v. Thieret, 867 F.2d 351 (7th Cir.), cert. denied, 493 U.S. 874 (1989) (affirming 679 F. Supp. 788 (N.D. Ill. 1988) Trial counsel ineffective during sentencing for failing to investigate and present available character evidence in mitigation, making a bizarre and prejudicial closing argument which conceded that counsel "was not going to convince" jury and invited the jury to "decide" between the defendant and victim, and failing to object to improper sentencing instructions which misstated the law by calling for unanimous agreement on a decision not to impose the death sentence.

*Deutscher v. Whitley, 884 F.2d 1152 (9th Cir. 1989) (decision vacated and remanded by Supreme Court several times; last opinion which again finds IAC is Deutscher v. Angelone, 16 F.3d 981 (9th Cir. 1994)

Trial counsel ineffective in penalty phase of capital trial for not investigating and presenting mitigating evidence despite sentencing argument that defendant must have had some mental problems. Adequate investigation would have revealed diagnoses of schizophrenia, pathological intoxication, and organic brain damage; commitments to mental institutions; and a history of good behavior in institutional settings.

*Harris v. Dugger, 874 F.2d 756 (11th Cir.), cert. denied, 493 U.S. 1011 (1989) Attorneys rendered IAC in a capital murder case where they failed to prepare or present mitigation evidence because each lawyer believed that the other was responsible for preparing penalty phase of case. Trial counsel did not investigate mitigation, which would have provided evidence that the defendant was a devoted father, husband, and brother, and a "decent, loving man."

1988: *Evans v. Lewis, 855 F.2d 631 (9th Cir. 1988) Trial counsel ineffective for failing to investigate and present evidence in mitigation when defendant had a history of mental problems apparent from his records of incarceration in state mental facility for inmates and prior suicide attempts. Evidence would have shown that defendant is schizophrenic and possibly insane at time of offenses. Instead of this evidence which would have supported at least one statutory mitigating circumstance, counsel presented no evidence in mitigation, even though Arizona death penalty statute required death penalty if no mitigating factor is established, & at least one aggravating factor is found (at least one aggravating factor, prior conviction, was obviously present).

*Middleton v. Dugger, 849 F.2d 491 (11th Cir. 1988) Counsel ineffective for failure to conduct investigation into petitioner's background, which would have revealed a history of schizophrenia since age 12; childhood neglect, physical, sexual, and drug abuse; and low IQ. In addition, expert testimony would have established that the defendant was under extreme emotional duress at the time of the homicide and had a very little capacity to conform his conduct to the law at the time.

*Stephens v. Kemp, 846 F.2d 642 (11th Cir.), cert. denied, 488 U.S. 872 (1988) IAC where trial counsel fails to investigate, present, & argue to jury at sentencing phase of prosecution for murder & aggravated assault any evidence of defendant's mental history and bizarre behaviors. Trial counsel had learned from defendant's sister that defendant had spent a brief time in a mental hospital four to six months before shooting occurred but pursued his investigation no further after psychiatrist filed a written evaluation.

1987: *Lewis v. Lane, 832 F.2d 1446 (7th Cir. 1987), cert. denied, 488 U.S. 829 (1988) Trial counsel ineffective in penalty phase of DP case: Failure to explain to jury the instruction on mitigation which had been made questionable by the prosecutor's argument, failure to object to prosecutor's argument about unrelated murder, failure to individualize defendant as a human being before the jury (instead presenting an abstract religious argument), & acquiescence in receipt of erroneous evidence of prior convictions which did not exist.

*Armstrong v. Dugger, 833 F.2d 1430 (11th Cir. 1987) Trial counsel ineffective during sentencing phase for failing to prepare and present mitigation evidence. Available evidence would show impoverished childhood, good worker, nonviolent, religious, mental retardation, and organic brain damage.

*Magill v. Dugger, 824 F.2d 879 (11th Cir. 1987) Trial counsel ineffective during guilt phase when counsel began representation on the first day of jury selection, met with defendant for 15 minutes prior to defendant's testimony, failed to discuss with defendant the possibility that the state would seek to prove premeditation during his testimony on cross-examination, failed to object when the prosecutor asked the defendant to concede his guilt to capital murder, and did not develop or present to the jury the defense theory that defendant committed the killing without premeditation. No prejudice on findings, but in combination with errors of counsel in sentencing, prejudice found in sentencing phase. Sentencing errors included counsel's failure to argue defendant's emotional problems which would discount defendant's guilt phase testimony admitting that the killing was intentional and premeditated. In addition, counsel failed to prepare and present available mitigating evidence of a history of serious emotional problems. Finally, counsel called a court-appointed psychiatrist, who had never been asked to examine the defendant regarding the applicability of statutory mitigating circumstances, as a defense witness and this witness' testimony virtually precluded finding a statutory mitigating circumstance.

1986: *Jones v. Thigpen, 788 F.2d 1101 (5th Cir. 1986), cert. denied, 479 U.S. 1087 (1987) Trial counsel ineffective during sentencing phase for failing to prepare and present evidence in mitigation when evidence was available to prove that defendant is mentally retarded, 17 at the time of the offense, and did not have any intent to kill victim killed by accomplice during robbery.

*Johnson v. Kemp, 781 F.2d 1482 (11th Cir. 1986) (affirming 615 F. Supp. 355 (D.C. Ga. 1985)) Trial counsel ineffective in sentencing phase for failing to investigate and present available mitigation. Counsel only talked to defendant and defendant's parents and did nothing more. Available mitigation included 19 good character witnesses and no criminal history, neither of which was presented to jury.

1985: *Blake v. Kemp, 758 F.2d 523 (11th Cir.), cert. denied, 474 U.S. 998 (1985) Trial counsel ineffective for making no preparations whatsoever for sentencing phase because of his belief that defendant would be found not guilty by reason of insanity. (State psychiatrist found "reactive- depressive" condition, but did not give opinion on sanity question because of insufficient information from defendant.) If trial counsel had adequately investigated he could have presented character evidence that the defendant was "a man who was respectful toward others, who generally got along well with people and who gladly offered to help whenever anyone needed something."

*Tyler v. Kemp, 755 F.2d 741 (11th Cir.), cert. denied, 474 U.S. 1026 (1985) Counsel ineffective in sentencing phase for failing to prepare and present mitigating evidence that defendant had no prior criminal record, had a good work record, had an alcoholic abusive husband, and was a good mother.

1984: *King v. Strickland, 748 F.2d 1462 (11th Cir.), cert. denied, 471 U.S. 1016 (1984) IAC where defense counsel failed to present available character witnesses in capital sentencing hearing as mitigating evidence and emphasized during closing argument the reprehensible nature of the crime and the fact that he had reluctantly represented defendant.

ERRATA

TheDeath Penalty Information Centerreports:

Poll Finds Support for the Death Penalty Nearly Unchanged Since Last Year

Despite the events of September 11, Americans' support for the death penalty is "virtually unchanged" from a year ago, and down considerably from five years ago. In polls conducted by the Pew Research Center, 67% favored the death penalty in March 2002 for those convicted of murder, 66% in March 2001, and 78% in June 1996. A higher percentage did support the death penalty for those convicted of terrorism. (Pew Forum on Religion and Public Life, Press Release, 3/20/02) See also, Public Opinion.

NEW VOICES/RESOURCES: Former Texas Death Row Minister Now Opposed To Capital Punishment

Carroll Pickett, who spent 15 years as chaplain of Texas's death row, is now speaking out about the death penalty. "The more I worked for the Texas prison system, the more I began to see there is not total justice in punishment," said Pickett. "At one point, I did support capital punishment. I was wrong." Pickett, who appeared on National Public Radio's "Witness to an Execution," has co-written the soon to be released book, "Within These Walls: Memoirs of a Death House Chaplain," with Carlton Stowers. The book will be issued in May. (Houston Chronicle, 3/18/02) See also, New Voices.

First Federal Death Sentence in Non-Death Penalty State

On March 16, 2002, Marvin Gabrion was sentenced to death for a 1997 murder in Michigan's Manistee National Forest. Although Michigan does not have the death penalty, Gabrion was sentenced under the federal system because the victim was killed on federal property. (Associated Press, 3/16/02) Gabrion's case marks the first federal death sentence imposed on a defendant in a state that does not have the death penalty since the federal death penalty was reinstated. See also, federal death penalty.

Texas High Court Overturns Death Row Inmate's Conviction Because Prosecutors Withheld Information

In a unanimous decision, the Texas Court of Criminal Appeals overturned death row inmate Damon Richardson's 1987 murder conviction. The court ruled that prosecutors failed to disclose evidence that would have "severely undermined" the credibility of the prosecution's main witness, Anita Hanson. At trial, prosecutors relied heavily on the testimony of Hanson, who was given immunity. In its opinion, the court noted that Hanson gave seven different accounts of the killings in her testimony. In addition, prosecutors failed to turn over to the defense the diary of a Lubbock policewoman who guarded Hanson. The diary also undermined Hanson's credibility. "Applicant's trial counsel did impeach Ms. Hanson's testimony in other ways, but nothing that applicant's attorney presented at trial could compare with a parade of six law enforcement officers testifying that, in their opinion, Ms. Hanson was not a credible witness and not worthy of belief under oath," said the court. (Lubbock Avalanche-Journal, 3/14/02) See also, DPIC report Killing Justice.

Mandatory Death Penalty in Caribbean Countries Found Unconstitutional

On March 11, 2002, the Privy Council's Judicial Committee unanimously ruled that mandatory death penalty laws are unconstitutional. The Committee, which is the court of final appeal for many of the United Kingdom's overseas territories, found that the laws violate Belize's Constitutional prohibition against "inhuman and degrading punishment or treatment." The ruling is not limited to prisoners in Belize, but extends to include hundreds of prisoners in the Eastern Caribbean countries of St. Christopher and Nevis, Antigua and Barbuda, St. Lucia, St. Vincent, Grenada, and Dominica. (Daily Telegraph, 3/12/02 and Amnesty International, AI Index AMR 05/004/2002) See also, International death penalty.

Appeals Court Overturns Death Penalty Conviction Because Defense Attorney "Sabotaged" Case

A Federal Appeals court overturned the conviction of Oklahoma death row inmate James T. Fisher after finding that his defense attorney was "grossly inept." The judges stated that Fisher's trial attorney, former state Senator E. Melvin Porter, "sabotaged his client's defense." The court's opinion stated that Porter did not prepare for Fisher's trial, did not challenge discrepancies in the prosecution's case, and failed to "act as his client's advocate and the state's adversary." The prosecution's main witness was the man originally charged with the murder in the case. However, as the court stated, Porter failed to present a defense theory and was "incompetent" in investigating Fisher's alibi. In addition, Porter failed to present a closing argument at the trial, and during the sentencing phase, he spoke only nine words, including "we waive" when asked to give a closing argument. "I believe my personal feelings toward James Fisher affected my representation of him," Porter stated. "At that time, I thought homosexuals were among the worst people in the world, and I did not like that aspect of this case." (The Oklahoman, 3/13/02). See also, DPIC's report, With Justice for Few: The Growing Crisis in Death Penalty Representation.

Investigation Finds Subpar Representation Continuing in Illinois

Last year, the Illinois Supreme Court ruled that death penalty cases had to be tried by attorneys admitted into the Capital Litigation Trial Bar, a select group of lawyers who were supposed to have met rigorous standards for admittance. An investigation by the Chicago Tribune found, however, that the new list of attorneys eligible to try capital cases includes lawyers with criminal and disciplinary records, as well as those whose misconduct or ineptitude has been condemned in previous capital cases. For example, three attorneys admitted to this group were suspended or censured between 1988 and 1994 by the state agency that regulates lawyers. Two of those attorneys were sanctioned because of felony tax-fraud convictions. "The function of having a capital trial bar was precisely to screen out people like this," said Northwestern University law professor Lawrence Marshall. "And if the process that's in place is incapable of doing that, then the reform of the capital trial bar is no reform at all." (Chicago Tribune, 3/10/02) See additional investigative series by the Chicago Tribune at articles on the death penalty.