Two wins are noted this week as are two Supreme Court criminal law opinions.

The Ninth Circuit grants relief in Clark v. Brown on two separate grounds. First, the trial court failed to instruct the the jury as to the relevant law governing California's then applicable felony-murder special circumstance as it related to arson. The California Supreme Court on appeal held the error harmless in light of a new interpretation of the felony murder statute that, in effect, was an "unforeseeable judicial enlargement of a criminal statute, applied retroactively" and that therefore "violates the federal due process right to fair warning of what constitutes criminal conduct."

The other case being called a win this week is the Ninth Circuit's holding in Sanders v. Brown. Counsel pretermitted the investigation into mitigation after Sanders indicated that he didn't want mitigatory evidence presented in the penalty phase. The Court holds that counsel must investigate mitigation evidence regardless of what the client wants and that the discussion of the presentation of evidence should only be done after the mitigation investigation is complete. Remand had for an evidentiary hearing.

The Supreme Court this week refined its Fourth Amendment analysis in Georgia v. Randolp (objecting co-inhabitant can, in some circumstances, prevent consent to search by timely objecting) andUnited States v. Grubbs (anticipatory warrants are constitutional, within limits). Neither opinion. Of the two opinions, only Randolph is of any real importance as it, as one observer notes, "expands upon and explains the concept of societal expectations of privacy and relations between people with joint access to property and the government seeking entry."

In the news of the week, the Supreme Court on Friday ordered a rehearing in Kansas v. Marsh, 04-1170, possibly due to a 4-4 split on the Court. The New England Journal of Medicine this week includes an editorial piece by Atul Gawande entitled When Law and Ethics Collide: Why Physicians Participate in Executionsin which Gawande interviewed several U.S. medical professionals who assisted in executions. SSRN has posted the Cognitive Psychology of Circumstantial Evidence by Kevin Jon Heller, which will appear in the Michigan Law Review, Vol. 105, 2006, which is a good guide to case evaluation in civil and criminal matters at trial.

From around the internet, the Boalt Hall Death Penalty Clinic has posted a collection of pleadings from the various lethal injection cases around the country, including sample FOIA & state open records requests.Ian Best has convinced his law school profs to give him credit for surfing the net and in the process has managed to track down over 680 law blogs, the list of which is available here. Don Berman has a great piece on the power to pardon and reviews an article from the most recent issue of the ABA's Litigation magazine an article entitled "Reviving the Benign Prerogative of Pardoning."

Looking ahead to the next edition, the Texas Court of Criminal Appeals on Friday stayed the execution of Raymond Leon Martinez, who, according to press accounts, received a stay on whether the instructions given the jury relating to mitigation and the special questions propounded to the jury violated SCOTUS holdings in cases such as Penry II, Smith v. Texas, and Tennard v. Dretke. The Fourth Circuit granted relief in United States v. Stitt as Stitt's retained attorney at trial had an actual conflict of interest based on his failure to request the court to appoint an expert to assess Stitt's propensity for future dangerousness as such a request would have required an examination by the district court of the fee arrangement between Stitt and his attorney [the Fourth Circuit blog has more]. Not waiting for the Fifth Circuit to hear and decide Nelson v. Dretke on an identical issue, a Fifth Circuit panel denies relief on whether the Texas special issues limited the ability of Billy Wayne Coble to present mitigating evidence in Coble v. Dretke. In Lave v. Dretke a split panel of the Fifth Circuit denies relief on the question of the retroactivity of Crawford v. Washington.

As always thanks for reading. - k

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More Execution information

SCOTUS

Georgia v. Randolph, No. 04–1067 (3/22/2006) The warrantless search over the express refusal to consent by a physically present resident is invalid even if another member of the household consents, save certain extraordinary circumstances.

United States v. Grubbs, No. 04–1414 (3/21/2006) Anticipatory warrants are permissible within carefully drawn limits.

In Favor of Life & Liberty

Clark v. Brown, 2006 U.S. App. LEXIS 6611 (9th Cir 3/17/2006) Failure to give a the felony-murder special circumstance jury instruction violated Clark’s due process right to present a complete defense and the "retroactive application of a new interpretation" of "the felony-murder special circumstance on direct review, violated Clark’s due process right to fair warning that his conduct made him death-eligible."

Sanders v. Brown, 2006 U.S. App. LEXIS 6672 (9th Cir 3/16/2006) Counsel has a duty to investigate no matter her client's wishes may be.

Favoring Death

Billings v. Polk, 2006 U.S. App. LEXIS 6119 (4th Cir 3/14/2006) Relief denied on issues including "three relating to allegations of juror misconduct, one relating to improper arguments made by the prosecutor during sentencing proceedings, and one relating to the trial court's submission of a mitigating circumstance to the jury over Billings'’ objection."

In re: Salazar, 2006 U.S. App. LEXIS 6740 (5th Cir 3/17/2006) Salazar's motion for authorization to file a successive habeas application based on Atkins denied. Motion for a stay of execution is also denied.

Johnson v. Dretke, 2006 U.S. App. LEXIS 6109 (5th Cir 3/13/2006) Relief denied even though the trial prosecutor failed to correct testimony it new was perjured. Relief denied even though the State failed to turn over evidence that someone else committed the crime. Relief denied even though the State failed to disclose to the defense until AFTER the completion of the all the normal courses for appeals and post-conviction remedies evidence that someone else confessed to the shooting. Put another way, the Fifth Circuit rewards the state for successfully hiding evidence damaging its case until it was too late to be used.

Hughes v. Johnson, 2006 U.S. App. LEXIS 6305 (5th Cir 3/14/2006) (unpublished) Lethal injection challenge denied.

Foster v. Dretke, 2006 U.S. App. LEXIS 6090 (5th Cir 3/13/2006) District court granted habeas relief. Cross-appeal by the state of that grant of relief to be determined at a later date. COA denied "on two jury-charge claims: (1) the jury should not have been instructed on conspiracy because he was not indicted for that crime; and (2) the trial court erred in refusing a lesser-included-offense instruction."

Lundgren v. Mitchell, 2006 U.S. App. LEXIS 6045 (6th Cir. 3/13/2006) Split panel decision on the 'God told me to kill them' defense. Specifically the issue was whether counsel was ineffective in not sufficiently exploring a claim of "not guilty by reason of insanity." Judge Merritt in dissent offers a good analysis of the "deific decree" defense, including why, if it may not have resulted in a not guilty by reason of insanity verdict it may have saved Lundgren's life.

Broom v. Mitchell, 2006 U.S. App. LEXIS 6604 (6th Cir 3/17/2006) Relief denied on claims relating to: " Brady violation, admission of other acts testimony, ineffective assistance of counsel at the mitigation phase, prosecutorial misconduct, denial of a continuance, and denial of the suppression of a "show-up" identification. Broom's Brady claim is based upon the fact that certain police reports were not made available to Broom's counsel prior to the trial but were later obtained as a result of Ohio Public Records Act requests and as a part of federal habeas discovery."

Unite States v. Brown, 2006 U.S. App. LEXIS 6052 (11th Cir 3/13/2006) Relief denied. On appeal Brown argued "that the district court erred by: 1) refusing to suppress statements allegedly obtained without Miranda warnings; 2) refusing to conduct an evidentiary hearing on Brown's motion to suppress improper and suggestive identification evidence; 3) finding that the government did not improperly withhold Brady material; 4) quashing Brown's subpoena for the production of state records; 5) denying Brown's motion to prohibit the death-qualification of jurors; 6) denying Brown's motion for bifurcated voir dire; 7) asking certain questions in the process of death qualifying the jury; 8) excusing juror Fahey; 9) telling a juror that Brown had entered a guilty plea; 10) allowing hearsay testimony at both the guilt-innocence and penalty stages of the trial; 11) allowing the introduction of certain crime scene photos; 12) finding the Federal Death Penalty Act constitutional; 13) denying certain funds for expert assistance at the penalty stage; 14) denying Brown's motion for a directed verdict as to the pecuniary gain aggravating factor and in instructing the jury regarding that aggravating factor; and 15) denying Brown the right to be present and to cross-examine witnesses after this Court remanded the case for construction of the record." [ More here]

State v. Hugueley, 2006 Tenn. LEXIS 185 (Tenn 3/15/2006) Relief denied. "We now hold as follows: (1) the trial court did not commit reversible error in concluding that Defendant failed to establish purposeful discrimination by the prosecution in its exercise of peremptory challenges in violation of Batson v. Kentucky and J.E.B. v. Alabama ex rel. T.B. ; (2) the trial court did not commit reversible error in refusing to dismiss prospective juror Watkins for cause; and (3) the death sentence is valid under this Court's mandatory review pursuant to Tennessee Code Annotated section 39-13-206(c)(1) (2003)."

State v. Rollins, 2006 Tenn. LEXIS 191 (Tenn 3/16/2006) Relief denied most notably on "(1) whether the interrogation of the defendant by the sheriff's officers after his arrest violated the defendant's state and federal constitutional rights to counsel such that the trial court erred by refusing to suppress the defendant's statements; (2) whether the trial court erred in refusing to allow the defendant to call his co-defendant, Greg Fleenor, to the witness stand to invoke his privilege against self-incrimination in the jury's presence; and (3) whether the mandatory review provisions of Tennessee Code Annotated section 39-13-206(c)(1) require reversal of the defendant's death sentence."

Jones v. State, 2006 OK CR 10 (Okla. Crim. App. 3/14/2006) Petition to recall denied.

State v. Tenace, 2006 Ohio 1226 (Ohio 6th App 3/17/2006) Relief denied on claims including: the trial court erred by "dismissing appellant's petition when he submitted sufficient operative facts and supporting evidence outside the record to merit at least further discovery and an evidentiary hearing;" "Ohio's postconviction relief procedures do not provide for an adequate corrective process and do not comply with the due process and equal protection guarantees under the Fourteenth Amendment;" and "the trial court erred by dismissing his petition when the cumulative effect of the errors in this case warrant a reversal or at least a remand of the case for adequate consideration of the postconviction relief petition."

Selected excerpts from this Edition's Cases

Clark v. Brown, 2006 U.S. App. LEXIS 6611 (9th Cir 3/17/2006) Failure to give a the felony-murder special circumstance jury instruction violated Clark’s due process right to present a complete defense and the "retroactive application of a new interpretation" of "the felony-murder special circumstance on direct review, violated Clark’s due process right to fair warning that his conduct made him death-eligible."

An unforeseeable judicial enlargement of a criminal statute, applied retroactively, violates the federal due process right to fair warning of what constitutes criminal conduct. See Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964); [*30] see also Rogers v. Tennessee, 532 U.S. 451, 459, 121 S. Ct. 1693, 149 L. Ed. 2d 697 (2001) (Bouie articulated a "basic and general principle of fair warning"); LaGrand v. Stewart, 133 F.3d 1253, 1260 (9th Cir. 1998) ("The Due Process Clause . . . protects criminal defendants against novel developments in judicial doctrine."). A judicial construction of a statute may violate due process if the defendant was "unfairly surprised in a way that affected his legal defense." Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir. 1987). The "crucial test" is "whether the construction actually given the statute was foreseeable." McSherry v. Block, 880 F.2d 1049, 1053 (9th Cir. 1989) (citation omitted); see also Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989) ("An unforeseeable, albeit legitimate, construction of a state law by the courts may not be retroactively applied to a defendant."). A new judicial interpretation of a special circumstance provision can be challenged under Bouie because "special circumstances that make a criminal defendant eligible for the death penalty operate as 'the functional equivalent [*31] of an element of a greater offense.'" Webster v. Woodford, 369 F.3d 1062, 1068 (9th Cir. 2004) (as amended) (quoting Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002)).

Based on our decision in McSherry v. Block, the State argues that Bouie is inapplicable because Clark had fair warning that his conduct was criminal. In McSherry, we distinguished Bouie on the ground that "there was no danger that a person pursuing what would otherwise be purely innocent behavior could be ensnared by the statute with no warning whatsoever." 880 F.2d at 1056. We wrote, "It simply cannot be said that appellant had no fair warning that the particular conduct in which he was engaged was punishable." Id.; see also Darnell, 823 F.2d at 301 (holding that there was no Bouie violation where defendant "clearly had fair warning that his contemplated conduct -- attempting to possess stolen property -- was criminal"). We disagree with the State's argument, for applying McSherry's rationale to the retroactive application of an unforeseeable modification of a special circumstance statute would be both unworkable [*32] and contrary to Bouie.

Because a felony-murder special circumstance necessarily involves conduct that is criminal, acceptance of the State's argument would mean that no judicial expansion of a death-qualifying special circumstance could ever be challenged under Bouie on retroactivity grounds. But Bouie itself states that a prohibited ex post facto law either "makes an action done before the passing of the law, and which was innocent when done, criminal" or "aggravates a crime, or makes it greater than it was, when committed." 378 U.S. at 353 (emphasis added) (citation omitted). "If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction." Id. at 353-54. In Webster, we implicitly -- but clearly -- rejected the State's suggested applicatioon of McSherry to special circumstance statutes. Without once suggesting that Bouie was inapplicable because the behavior in question was inherently criminal, we conducted a thorough Bouie analysis of a death-qualifying [*33] special circumstance statute to determine whether it had been improperly expanded and retroactively applied. 369 F.3d at 1073-75.

"The beginning point for a Bouie analysis is the statutory language at issue, its legislative history, and judicial constructions of the statute." Id. at 1069. The statute under which Clark was sentenced provided simply that the murder must be committed "while the defendant was engaged in or . . . in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit" arson. Cal. Penal Code § 190.2(a)(17)(viii) (amended 1995). Broad statutory language generally precludes a Bouie challenge. See McSherry, 880 F.2d at 1052 ("The very ambiguity that exists in this statute is, in part, what saves appellant's conviction."). If the California Supreme Court's decision in Clark interpreting the felony-murder special circumstance statute had been written on a clean slate, it would not constitute a due process violation, or indeed anything close to it. In that event, there could have been no federal constitutional objection to the Court's interpretation [*34] of the statute, for the California Supreme Court is the final arbiter of the meaning of its state's statutes. But the Court was not writing on a clean slate, for it had previously narrowed the felony-murder special circumstance statute in Green.

An established part of our foreseeability inquiry under Bouie is whether prior judicial interpretations have "narrowed the clear terms of the statute[] to [a defendant's] benefit" before the commission of the crime. LaGrand, 133 F.3d at 1260. In examining judicial interpretations of California's special circumstance statute, we give "primacy to controlling decisions of the California Supreme Court, but must also consider intermediate appellate court rulings to the extent they offer predictive value in determining whether a particular construction was unexpected or unforeseen." Webster, 369 F.3d at 1070 ("lying in wait" special circumstance is a "specific California statute[], with a long history of California judicial construction"). Because the Bouie analysis focuses on notice to the defendant, we look only to cases decided before the crime was committed. See LaGrand, 133 F.3d at 1261 n.2. [*35]

The decisions of the California appellate courts indicate that, at the time Clark committed his crimes, Green's interpretation of the felony-murder special circumstance statute was well-established, and that the California Supreme Court's new interpretation of that statute in Clark was unforeseeable. None of the three relevant, or possibly relevant, cases decided between the date of the Court's decision in Green (April 24, 1980) and the date of Clark's crime (January 6, 1982) undermined Green's holding. Two were felony-murder special circumstance cases that clearly followed Green. The third, upon which the State relies, was a simple felony-murder case that had no bearing on a special circumstance case.

In People v. Thompson, 27 Cal.3d 303, 325, 165 Cal. Rptr. 289, 611 P.2d 883 (1980), the California Supreme Court held that there was insufficient evidence to support robbery and burglary special circumstances. The defendant in Thompson had broken into a house and had held a male and a female occupant at gunpoint. He purported to be seeking money and valuables, but when they were offered he did not take them. After forcing the two occupants to the living room, [*36] he stated, "You know why I'm here and you know who sent me." He then fired three shots into each of them, killing the man and wounding the woman. He left the house with the keys to the man's car. Id. at 310-11. He took no other property. Id. at 323.

The Court spent three paragraphs describing its then-recent decision in Green. Id. at 321-22. It held that there was insufficient evidence to support a conviction for theft, or intended theft, of anything but the car keys. See id. at 323-24. The Court held that the theft of the keys was not an independent felony within the meaning of Green because it was most reasonably seen as a means of facilitating the defendant's escape. Noting that the defendant had arrived at the house on foot, the Court wrote, "He had a motive to take a car simply to effect his getaway from the shootings he intended; and the fact that his first demand for the car was made just prior to the shootings suggests that this was indeed his reason for demanding the car keys." Id. at 324. The Court therefore concluded that the evidence was "insufficient to establish that the crime [*37] . . . was 'in fact a murder in the commission of a robbery [rather than] the exact opposite, a robbery in the commission of a murder.'" Id. at 325 (quoting Green, 27 Cal.3d at 60) (bracketed language in original) (footnote omitted). There was no discussion in Thompson of concurrent purposes.

In Ario v. Superior Court, 124 Cal. App. 3d 285, 287, 177 Cal. Rptr. 265 (1981), a California Court of Appeal granted a writ preventing the trial court from proceeding on allegations of a kidnaping-murder special circumstance. The defendant had transported the victims from their home to another site in order to murder them. See id. at 289. The court held that a felony-murder special circumstance could not be sought where the kidnaping was "for the purpose of accomplishing the murders" and hence "incidental" to the murders. Id. at 289-90. As in Thompson, the crucial question was whether the defendant had a "separate purpose" for committing the felony "other than merely to facilitate the primary crime of murder." Id. at 289. There was no discussion in Ario of concurrent purposes. [*38]

Finally, the state relies on the California Supreme Court's decision in People v. Murtishaw, 29 Cal.3d 733, 175 Cal. Rptr. 738, 631 P.2d 446 (1981). Murtishaw involved the felony-murder rule rather than the felony-murder special circumstance statute. The difference between the two is significant. The felony-murder rule broadens criminal liability, imposing a kind of vicarious liability for murders that occur during the commission of a felony. A defendant may be convicted of murder under the felony-murder rule if he is involved in the commission of a felony during which a murder occurs, even if he does not do the killing. The Court in Murtishaw invoked this definition of felony murder when it wrote: "The prosecution may seek to prove [the charge of felony murder] by showing that the homicide occurred during the commission of an enumerated felony." Id. at 751. The felony-murder special circumstance statute, by contrast, narrows criminal liability, allowing capital punishment only for a certain restricted class of murders. Under the felony-murder special circumstance statute, as defined in Green, a defendant is not death-eligible for ordinary felony [*39] murder. Rather, he is death-eligible only if the murder advances an independent felonious purpose, such as the murder of a witness to a felony in order to avoid identification.

In Murtishaw, the Court held that there was sufficient evidence to support a felony-murder conviction because the jury could have concluded that the defendant acted with the "concurrent goals of killing the victims and taking their car." Id. at 752. In a footnote, the Court in Murtishaw distinguished Green by explaining that "the theft here was not ancillary to the murder, but if [the witness's] testimony is believed, a concurrent objective." Id. at 752 n.13. The Court had been careful to state that the issue in Murtishaw was first-degree felony murder, not felony-murder special circumstance. Id. at 750-51. Footnote 13, just quoted, insured that the reader understood that the two were different.

Felony murder, without more, does not make a defendant eligible for the death penalty. California's felony-murder rule is significantly broader than its felony-murder special circumstance statute. Because the death penalty is not at stake in a simple [*40] felony-murder case, the requirements of Furman and Gregg (which were responsible for the California Supreme Court's narrowing of the felony-murder special circumstance statute in Green, see 27 Cal.3d at 61-62) are not in play. The Court's holding in Murtishaw that the defendant's concurrent objectives to murder the victims and steal their car was sufficient to support a verdict of felony murder thus has no bearing on Green.

Footnote 13 in Murtishaw was not a fair warning that the California Supreme Court would expand Green's definition of felony-murder special circumstance in deciding Clark's case. Not only was Murtishaw a non-capital felony-murder case in which the Court was careful to distinguish Green, as just noted. In addition, the Court did not cite Murtishaw in People v. Robertson, 33 Cal.3d 21, 188 Cal. Rptr. 77, 655 P.2d 279 (1982), a case decided a year after Murtishaw, in which it applied Green. Nor did the Court cite Murtishaw in Clark itself.

The only case cited by the California Supreme Court in Clark in support of its new interpretation was the Robertson case, just mentioned. Clark [*41] committed his crime in January of 1982. Robertson was decided in December of that year. The Court's very citation of Robertson in Clark helps show that Clark was an unforeseeable departure from Green. The Court in Clark wrote:

We explained in People v. Robertson (1982) 33 Cal.3d 21, 188 Cal. Rptr. 77, 655 P.2d 279, however, that when the defendant has an independent purpose for the commission of the felony, and it is not simply incidental to the intended murder, Green is inapplicable.

50 Cal.3d at 608.

Robertson was a capital case in which the defendant raped and killed two women, and stole their underwear for his "collection." 33 Cal.3d at 33. When the defendant was arrested, the underwear of several women (not limited to that of the two victims) was found concealed under his bed. Id. at 32. The Court wrote:

The jury could reasonably have concluded . . . that from the outset of both incidents defendant harbored the intent to steal some of the victims' underwear or other personal property as well as the intent to assault them sexually. Unlike in Green, such an intent to steal [*42] was entirely independent of the murders and was not planned simply as a means of concealing the killings. Because the jury could . . . reasonably have found that defendant killed both victims when he became afraid that they would report his intended crimes, this case appears to fall within the class of cases as to which -- under Green's analysis -- the "felony-murder" special circumstance of the 1977 statute may properly apply.

33 Cal.3d at 52. That is, in accordance with the standard Green analysis, the jury could have concluded in Robertson that the defendant killed his victims in order to further his independent felonious purpose of stealing their underwear or other personal belongings. Thus, far from giving fair warning of a substantial modification of Green, Robertson cited Green and applied it in an entirely predictable way.

andTo evaluate foreseeability, we may also look to the CALJIC instruction in place at the time of trial. In Webster, we held that the fact that the challenged jury instruction in that case tracked the standard CALJIC instruction was "one of the strongest indications" of foreseeability. 369 F.3d at 1075. [*43] We wrote, "Given the existence and wide publication of this standard instruction, it was foreseeable that it would be applied." Id. As described above, paragraph 2 of CALJIC 8.81.17 had specifically incorporated Green's holding. CALJIC 8.81.17 has since been amended to include a comment stating that "concurrent intent to kill and commit an independent felony will support a felony-murder special circumstance." But the two cases cited in support of this comment are Clark People v. Raley, 2 Cal. 4th 870, 903, 8 Cal. Rptr. 2d 678, 830 P.2d 712 (1992), a case relying on Clark. No pre-Clark case is cited. There is thus no indication whatsoever in CALJIC 8.81.17, as it existed at the time of Clark's trial, that the concept of "concurrent" purposes in the context of special circumstance pre-dated the California Supreme Court's decision in Clark. And there is a strong indication from the later-adopted version of CALJIC 8.81.17, as evidenced by its citation to Clark and Raley in the accompanying comment, that the concept of "concurrent" purposes did not exist prior to Clark.

That the California Supreme Court's new interpretation of the arson-murder special circumstance [*44] statute was unforeseeable is demonstrated by the deeply ironic result it produced. Clark's trial strategy had been to prove precisely what the Court now held was a special circumstance making him eligible for the death penalty. The prosecutor had tried to show that Clark had tried to kill the entire family, including David Gawronski, in the house by means of the fires. By contrast, Clark's experienced and skilled trial counsel, Charles English, had tried to show that Clark set the fires in order to drive the family out of the house. Now, under the Court's new interpretation of Green, what Clark had been at pains to show at trial was precisely what defeated his appeal.

We conclude from the foregoing that the California Supreme Court's new interpretation of the felony-murder special circumstance in Clark's case was a substantial change from its prior interpretation of that statute in Green. This new interpretation and its retroactive application were "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." Rogers, 532 U.S. at 461 (quoting Bouie, 378 U.S. at 354). We therefore hold that the [*45] California Supreme Court's retroactive application of its new interpretation of the felony-murder special circumstance statute in Clark's case violated due process.

Sanders v. Brown, 2006 U.S. App. LEXIS 6672 (9th Cir 3/16/2006) Sanders told counsel that he did not want to present mitigating evidence in the penalty phase of the trial. Counsel, thereafter, didn't investigate mitigation evidence. Due to the nature and amount of the available potentially mitigating evidence, remand had for an evidentiary hearing.

To determine whether the investigation was reasonable, the court "must conduct an objective review of [counsel's] performance, measured for reasonableness under prevailing professional norms, which includes a context-dependent consideration of the challenged conduct as seen from counsel's perspective at the time." Wiggins, 539 U.S. at 523 (internal citation and quotation marks omitted). In this investigation, "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. "Counsel is not [*10] deficient for failing to find mitigating evidence if, after a reasonable investigation, nothing has put the counsel on notice of the existence of that evidence." Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998).

Here, the question is whether Hoover's decision not to conduct a reasonable investigation could have constituted ineffective assistance, i.e., whether Sanders' insistence -- the rationality of which Hoover at times questioned -- that he did not want to present a penalty defense excused Hoover from fulfilling his duty to conduct a thorough investigation.

"A defendant's insistence that counsel not call witnesses at the penalty phase does not eliminate counsel's duty to investigate mitigating evidence or to advise the defendant of the potential consequences of failing to introduce mitigating evidence, thereby assuring that the defendant's decision regarding such evidence is informed and knowing." Williams v. Woodford, 384 F.3d 567, 622 (9th Cir. 2004). At the same time, "the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions," Strickland, 466 U.S. at 691. Nevertheless, we have held that:

in most circumstances a lawyer may rely on his client's decision against presenting mitigating evidence only after completing an appropriate investigation and only where the client's decision is "informed and knowing." Williams v. Woodford, 306 F.3d 665, 720 (9th Cir. 2002) ("A defendant's insistence that counsel not call witnesses at the penalty phase does not eliminate counsel's duty to investigate mitigating evidence or to advise the defendant of the potential consequences of failing to introduce mitigating evidence, [*12] thereby assuring that the defendant's decision regarding such evidence is informed and knowing."). See Williams v. Taylor, 529 U.S. 362, 396, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) ("Trial counsel did not fulfill their obligation to conduct a thorough investigation of the defendant's background." (citing 1 ABA Standards for Criminal Justice 4-4.1 cmt. at 4-55 (2d ed. 1980))); Silva, 279 F.3d at 840 ("While not directly addressing a situation where a client purportedly seeks to prohibit an attorney from investigating his background, these guidelines suggest that a lawyer's duty to investigate is virtually absolute, regardless of a client's expressed wishes." (citing 1 ABA Standards for Criminal Justice 4-4.1 cmt. at 4-55 (2d ed. 1980))).

Stankewitz, 365 F.3d at 722.

Thus, despite the need to look at particular facts and circumstances, our cases establish that counsel has a duty to investigate mitigating circumstances in a capital case even when his client has indicated that he does not want to present such evidence to a jury.

Counsel's duty to investigate mitigating evidence is neither entirely removed nor substantially alleviated by his client's direction [*13] not to call particular witnesses to the stand. . . . [A] lawyer who abandons investigation into mitigating evidence in a capital case at the direction of his client must at least have adequately informed his client of the potential consequences of that decision and must be assured that his client has made informed and knowing judgment.

Silva, 279 F.3d at 838; see also Summerlin v. Schriro, 427 F.3d 623, 637-39 (9th Cir. 2005) (spontaneous objection to presentation of one witness does not excuse failure to present penalty-phase defense); Stankewitz, 365 F.3d at 721-22 (opposition to calling family members or experts as witnesses does not excuse attorney from interviewing experts and family members to obtain mitigating evidence).

The 1980 ABA Guidelines, which were in effect at the time of the penalty phase both in Silva and in Sanders' trial, "suggest that a lawyer's duty to investigate is virtually absolute, regardless of a client's expressed witness." Id. at 840 (citing 1 ABA Standards for Criminal Justice 4-4.1 cmt. at 4-55 (2d. ed 1980)). Although these standards are "only guides" and "the proper measure of attorney [*14] performance remains simply reasonableness under prevailing professional norms," Strickland, 466 U.S. at 688, both Silva and the Supreme Court have relied on the ABA Guidelines to find ineffectiveness for failure to investigate. See Silva, 279 F.3d at 840; Rompilla, 125 S. Ct. at 2466; Williams v. Taylor, 529 U.S. 362, 396, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2002). See also Stankewitz, 365 F.3d at 722.

The cases relied on by the State, Hayes v. Woodford, 301 F.3d 1054, 1067 (9th Cir. 2002), and Landrigan v. Stewart, 272 F.3d 1221 (9th Cir. 2001), have since been vacated and reversed by the en banc court. See Hayes v. Woodford, 382 F.3d 920 (9th Cir. 2004); Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) (en banc); Landrigan v. Stewart, 397 F.3d 1235 (9th Cir. 2005); Landrigan v. Schriro, F.3d , 2006 U.S. App. LEXIS 5775 (9th Cir. Mar. 8, 2006) (en banc). Moreover, the en banc court's decision in Landrigan, which controls this case, establishes that Sanders has presented a colorable claim that Hoover's performance [*15] was deficient. Like Landrigan's counsel, see Landrigan, 2006 U.S. App. LEXIS 5775, at * 8, Hoover had a general duty to investigate, which was not eliminated by Sanders' opposition to presenting evidence during the penalty phase. The record does not show that Sanders instructed Hoover not to conduct an investigation. To the contrary, Hoover made some superficial attempts at a preliminary investigation, and his decision not to investigate further appears to have been entirely his own. Additionally, and significantly, Hoover did not know any additional facts about Sanders' background or his family that could have helped him to inform Sanders fully about the possibility and modes of presenting mitigating evidence. Finally, a thorough investigation into Sanders' background would have better prepared Hoover to persuade Sanders that a penalty-phase defense was necessary. Accepted as true, Sanders' non-conclusory allegations could prove that Hoover had a general duty to investigate, even in the face of Sanders' desire not to present mitigating evidence to the jury; that Hoover did not discharge this duty; and that Sanders was not adequately informed about the consequences [*16] of forgoing penalty-phase evidence before making his decision.

In order to be entitled to an evidentiary hearing, however, Sanders must also present facts that, if proved, could establish that he was prejudiced by Hoover's failure to investigate. Siripongs, 35 F.3d at 1323. "To establish prejudice, [Sanders] must demonstrate a reasonable probability that [Hoover's] deficiencies undermine confidence in the outcome of the proceeding." Landrigan, 2006 U.S. App. LEXIS 5775, *22-23. Sanders argues that if Hoover had performed an investigation, there is a reasonable probability that he would have changed his mind and allowed mitigating evidence to be presented, evidence that could reasonably have changed the jury's decision to impose the death penalty.

The facts of Sanders' opposition to presenting mitigating evidence are not entirely clear on this record -- hence the need for an evidentiary hearing -- and there is considerable uncertainty as to when and how Sanders expressed his decision not to proceed. Only one week passed between the moment the trial court was made aware of Sanders' decision not to present mitigating evidence and the beginning of [*17] the penalty phase. The trial court refused to grant Hoover's request for a continuance when Hoover asked for a "reasonable time" to persuade Sanders to change his mind. At the beginning of the penalty phase, a second attorney, appointed by the court to discuss matters with Sanders, stated that there "may be some ambivalence" in Sanders' position. Sanders himself expressed a desire to speak with a psychiatrist and a lawyer about his decision, and, according to Hoover, had suffered from the pressure of the verdict, which made it possible that Sanders was not "himself." Although a psychiatrist discussed Sanders' decision with him, there is no record of what the psychiatrist told Sanders or Hoover or of the nature of the interaction between Hoover and the psychiatrist. Thus, we have little evidence as to how adamant Sanders' refusal was and little evidence that a background investigation by Hoover would have failed to change Sanders' mind. Sanders' "purported objection to mitigating evidence appears not to have been 'informed and knowing' because there is no evidence that [his counsel] conducted an adequate investigation." Stankewitz, 365 F.3d at 722.

Moreover, when [*18] we weigh the mitigating evidence Sanders could have presented against the prosecution's reliance on aggravating circumstances arising from Sanders' participation in robberies in 1970, we conclude that Hoover's deficient performance undermines our confidence in the outcome of the proceedings. See Landrigan, 2006 U.S. App. LEXIS 5775, *23. "If true, [Sanders]' allegations are the very sort of mitigating evidence that might well have influenced the [jury's] appraisal of [Sanders'] moral culpability. Evidence regarding social background and mental health is significant, as there is a belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background or to emotional or mental problems, may be less culpable than defendants who have no such excuse." 2006 U.S. App. LEXIS 5775 at *25-26 (internal citations and quotation marks omitted). "Even in cases involving particularly heinous murders, or substantial criminal histories, a defendant can be prejudiced by an attorney's failure to investigate and present mitigating evidence that could influence the [jury's] appraisal of moral culpability." 2006 U.S. App. LEXIS 5775 at *27-28 (citing Williams v. Taylor, 529 U.S. 362, 398, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000); [*19] Stankewitz, 365 F.3d at 724).

"Having reviewed the affidavits and the record as a whole, and guided by . . . recent United States Supreme Court cases emphasizing counsel's duty to investigate and present mitigating evidence, we conclude that [petitioner] has raised a colorable claim of ineffective assistance of counsel during the penalty phase of the trial." Stankewitz, 365 F.3d at 708; see Silva, 279 F.3d at 843 (citing numerous cases finding ineffective assistance for failure to investigate).

Lundgren v. Mitchell, 2006 U.S. App. LEXIS 6045 (6th Cir. 3/13/2006) Split panel decision on the 'God told me to kill them' defense. Specifically the issue was whether counsel was ineffective in not sufficiently exploring a claim of "not guilty by reason of insanity." Judge Merritt in dissent offers a good analysis of the "deific decree" defense, including why, if it may not have resulted in a not guilty by reason of insanity verdict it may have saved Lundgren's life.

A further reason to find prejudice is the potential mitigating effect a proper presentation of Lundgren’s mental condition could have had in the sentencing phase. “Under federal law, one juror may prevent the death penalty by finding that mitigating factors outweigh aggravating factors.” Hamblin v. Mitchell, 354 F.3d 482, 493 (6th Cir. 2003). The prejudice prong is satisfied if “there is a reasonable probability that at least one juror would have struck a different balance.” Wiggins v. Smith, 539 U.S. 510, 537 (2003). Had Lundgren’s trial counsel effectively investigated his mental condition and presented an insanity defense to the jury, such a presentation would have given any juror a legal justification for declining to impose the death penalty. Cf. Delaney, supra, at 65-66 (account of jury deliberations in deific decree case resulting in verdict of not guilty by reason of insanity).

Judge Merritt also raises the query of failure to do legal & academic research by counsel:

The problem with my colleagues’ response in footnote 6 to my view is that it assumes that defense counsel had no obligation to do the legal research necessary to find the many similar cases that rely on the insanity defense in “deific decree” cases and to formulate a defense strategy with some chance of success. My colleagues also assume that defense counsel had no obligation to look into the psychiatric literature themselves in order to understand the theory of insanity that defense counsel used in all the other similar cases – in some of which the defense was successful.

This is an interesting and unusual case, both legally and psychologically; and one would think that defense counsel would feel the professional responsibility, as well as have enough natural curiosity to inquire themselves into the relevant legal and psychological literature. They obviously did not do any of this research or develop any legal theory that might have some prospect of avoiding the death chamber for their client. In my view that constitutes ineffective assistance of counsel, no matter how odious the crime or barbaric the murder.

Although my colleagues may be correct in pointing out that, in deific decree cases, the insanity defense is unsuccessful more often than it is successful, our Court downplays those instances of success by stating that “the defense has only been successful four times.” My dissent, however, recounts seven instances of verdicts of not guilty by reason of insanity in such cases, most of which occurred in the last two decades. The number may well be much higher because “deific decree cases have also been resolved at the trial level . . . with insanity verdicts that were not appealable due to double jeopardy concerns.” See Morris & Haroun, supra, at 1011-12. Moreover, in light of Ohio’s definition of insanity that was then “more liberal to those accused of crime” than the traditional M’Naghten rule, State v. Staten, 247 N.E.2d 293, 295 (Ohio 1969), counsels’ oversight was all the more egregious.