This edition covers November 13 to November 20, 2006. Two district court wins are noted,United States v. Lawrence, andDouglas Mickey v. Ayers.

InUnited States v. Lawrencea jury sentenced Lawrence to death for murder with malice, and to life imprisonment for murder during an armed robbery.On motion for new trial the district court upholds the substantive convictionsbut vacates his death sentence because of "arbitrary, inconsistent" jury findings leading to simultaneous sentences of life in prison and death.

InDouglas Mickey v. Ayersrelief is granted on ineffective assistance of counsel in the penalty phase, (1) counsels' failure to marshal and present evidence of Mickey's dysfunctional family of origin, and (2) counsels' failure to effectively utilize the expertise of their mental health experts. There is an interesting "backstory" here.Doug MickeykilledCatherine Blount. Then something truly amazing happen,Catherine's mother,Aba Gayle,forgavehim. Not only did she forgive him but reached out to him and eventually befriended him and worked hard to get both his sentence vacated and, more generally, against the death penalty itself.

In recent literature,Mary Dudziak has aninteresting pieceat SSRN on "'the case of "Death for a Dollar Ninety-Five' began one July night in Marion, Alabama, in 1957, and soon captured the attention of the world. It involved an African American man, a white woman, and the robbery of a small amount of change late in the evening." Dudziak, Mary L., "The Case of 'Death for a Dollar Ninety-Five': Finding America in American Injustice" (October 2006). USC Law Legal Studies Paper No. 06-22 Available at SSRN:http://ssrn.com/abstract=946228

In the news, Texas this year had just14 new death sentences(down 60%+ in recent years).Marlon Pendletonwas cleared after a decade behind bars by DNA tests in a noncapital case even though the original lab analyst refused to conduct DNA testing. TheArmy Times reportsthat the death sentence of Sgt. Hasan Akbar was approved late last week at Fort Bragg, N.C., by Lt. Gen. John R. Vines, commander if XXVIII Airborne Corps; heis one of eight currently under a death sentence in the military.TheKentucky Supreme Courthas upheld that state's lethal injection scheme.Pennsylvania last week adopted aSenate Resolution (SR 381) to create an Innocence Commission as an advisory commission under the joint state government committee. The Supreme Court of Zambia, in the cases ofBenjamin Banda and Cephas Kufa Miti,has rejected the most recent appeal aimed at abolishing the death penalty there.

TheCapital Defense Networkcrowd (no affiliation) now provides limited updates of federal capital cases, both inpost-convictionand at thetrial level(although the latter seems to be lagging somewhat). Their scope of coverage is not as broad as it is here, but their depth of coverage on cases they chose to write about is far deeper.

Finally, as noted byDPIC, the last execution scheduled for 2006 involves a Florida inmate,Angel Nieves-Diaz. Diaz defended himself pro seat trial yet he did not speak English. Diaz, a native of Puerto Rico, was convicted and sentenced to death in 1986 for a murder in connection with a robbery of a bar in Miami in 1979. The case sat idle for 5 years until an accomplice, who was already serving a life sentence, came forward implicating Diaz. The accomplice received another life sentence.

Full edition is available athttp://www.capitaldefenseweekly.com/archives/061120.htm.

Scheduled Executions

December

1 Guy LeGrande (North Carolina)

5 Jerome Henderson (Ohio)

8 Percy Walton (Virginia)

13 Angel Diaz (Florida)

More Execution information

In Favor of Life or Liberty

United States v. Lawrence, 2006 U.S. Dist. LEXIS 83396 (S.D. Ohio 11/16/2006)On motion for new trial, convictionupheld, but death sentence because of "arbitrary, inconsistent" jury findings leading to simultaneous sentences of life in prison and death. (The jury sentenced him to death for murder with malice, and to life imprisonment for murder during an armed robbery.)

Douglas Mickey v. Ayers, 5:93-cv-00243-RMW (N.D. Ca 11/17/2006) Relief granted on ineffective assistance of counsel in the penalty phase. "Two aspects of defense counsels' performance, however, 'fell below an objective standard of reasonableness": (1) counsels' failure to marshal and present evidence that Mickey grew up in a dysfunctional family where he was abused and surrounded by individuals with alcohol and mental health problems and that Mickey himself was a psychiatrically disturbed individual who suffered delusions before he began abusing drugs; and (2) counsels' failure to effectively utilize the expertise of their mental health experts, Dr. Burstein and Dr. Smith, in both the preparation and presentation of petitioner's mitigation case and in rebutting the People's case."

Favoring Death

Lionell Rodriguez v. Quarterman, 2006 U.S. App. LEXIS 28253 (5th Cir 11/15/2006) Relief denied on all claims, including the sole issue which a COA was granted "whether Rodriguez's death sentence violated his constitutional rights because he received ineffective assistance of counsel ("IAC") in the punishment phase of his trial."

Gregory Wright v. Quarterman, 2006 U.S. App. LEXIS 28509 (5th Cir 11/17/2006) Relief denied / COA denied on "whether: 1) his Confrontation Clause claim is procedurally barred; 2) he received ineffective assistance of counsel at trial; and 3) the state suppressed evidence in violation of the Fourteenth Amendment and Brady v. Maryland"

Ex Parte Jose Medellin, 2006 Tex. Crim. App. LEXIS 2236 (Tex Crim App 11/15/2006) Relief denied on international law claims.

Jesus Delgado v. State, 2006 Fla. LEXIS 2687 (FL 11/16/2006) Direct appeal denied on "(1) whether retrying him for first-degree premeditated murder violated his right to be free from double jeopardy based on this Court’s holding in Delgado I; (2) whether the trial court erred in denying a mistrial based on the prosecutor’s comments to the jury and at sidebar during closing argument; (3) whether the trial court abused its discretion in allowing the pen register tape to be admitted into evidence without a foundation laid by a technical expert and the officer who employed the pen register device; (4) whether the trial court committed reversible error when it repeated the jury instructions concerning the definition and elements of first-degree murder; (5) whether the trial court committed reversible error by instructing the jury panels during voir dire that they “will” rather than “may” hear mitigation evidence if they returned a guilty verdict even though there was no contemporaneous objection; (6) whether Florida’s capital sentencing scheme violates Delgado’s Sixth Amendment right under Apprendi v. New Jersey and Ring v. Arizona by authorizing imposition of the death sentence without a unanimous jury verdict; (7) whether the trial court committed reversible error when it sustained the State’s objection to defense counsel’s comments during closing argument regarding the State’s failure to present DNA evidence; and (8) whether there is a reasonable probability that the cumulative errors at trial contributed to the jury’s verdict regardless of whether evidence of guilt was otherwise substantial."

Gary Simmons v. State, 2006 Miss. LEXIS 652 (Miss 11/16/2006) Relief denied holding that "the successive petition bar in Miss. Code Ann. § 99-39-27(9) prevents Simmons from raising this motion for post-conviction relief."

Xavier Brown v. State, 2006 Miss. LEXIS 635 (Miss 11/9/2006) Post-conviction relief denied on nine claims, including: (1) failure to adequately prepare and present a defense, including penalty phase issues; (2) right to effective post-conviction counsel; (3) "denied adequate notice of the specific offenses of which he was to defend;" (4) “death row phenomenon;” (5) execssive / disproportionate sentence; (6) factual innocence; (7) use of perjured testimony; (8) failure to preserve evidence; and (9) cumulative error.

John Bejarano v. State, 2006 Nev. LEXIS 122 (Nev 11/16/2006) The Nevada Supreme Court's so-calledMcConnell rule("that it is unconstitutional to base an aggravating circumstance on the same felony upon which a felony murder is predicated") is retroactively applicable to all cases. Here, however, other aggravating factors remain applicable and upon reweighing the death sentence remains intact.

Michael Rippo v State, 2006 Nev. LEXIS 123 (Nev 11/16/2006) The Nevada Supreme Court's so-calledMcConnell rule("that it is unconstitutional to base an aggravating circumstance on the same felony upon which a felony murder is predicated.") is subject to harmless-error analysis. Here the errors were harmless beyond a reasonable doubt.

Bigler Stouffer v. State, 2006 Okla. Crim. App. LEXIS 49 (Okla Crim App 11/14/2006) Relief denied on direct appeals over claims where error were found (but held harmless), including: (A) trial court’s permitting the prosecution was allowed to present evidence that Stouffer attacked a third party; (B) the prosecutor’s remarks during closing argument contained inappropriately emotional & irrelevant (however the error was unpreserved); C) introduction of an inflammatory photograph of the victim’s scarred abdomen; and (D) victim impact evidence. The DNA in this matter didn’t match the Defendant. The Innocence Project appears to have offered assistance, however, trial counsel was informed if they accepted the Innocence Project’s assistance OIDS would be statutory required to withdraw from the case & OIDS refused to pay for the services of a DNA expert. Even assuming the DNA was another person’s, the Court holds, if it had been presented it would not have resulted in a different verdict. [Note: The DNA / funding issue & conflict between OIDS & the Innocence Project is a fairly technical issue that turns on state law, my apologies as I don't practice in Oklahoma & public defender funding statutes are notoriously nuanced.]

State v. Thomas Keenan,2006 Ohio App. LEXIS 5982 (Ohio 8th App 11/16/2006) Claims of factual innocence held not to overcome procedural default.

Noncapital of Note

Jerome Brown v. Papa, 2006 U.S. App. LEXIS 28148 (9th Cir 11/13/2006) (noncapital) (unpublished) Successful Batson claim.

Looking Ahead

Us

Jeffrey Voss v. State, 2006 Ind. LEXIS 1029 (Ind 11/22/2006) "We find both that the State's motion for change of judge was insufficient and that it was error to appoint a special judge to decide the motion."

Holly Wood v. Allen, 2:04cv509-WHA (M.D. Ala. 11/20/2006). Trial counsel was ineffective at the sentencing phase of the trial in failing to investigate and present evidence of Wood´s impaired intellectual functioning.

Them

Alfred Albrect v. Horn, 2006 U.S. App. LEXIS 28854 (3rd Cir 11/21/2006) Vacateur of death sentence based on Mills v. Maryland reversed as Mills is not retroactively applicable.

Ralph Baze v. Rees, 2005-SC-0543-MR (Ky 11/22/2006) Kentucky's lethal injection scheme upheld.

Selected Excerpts from, & Commentary on, this Edition's Cases

Ex Parte Jose Medellin, 2006 Tex. Crim. App. LEXIS 2236 (Tex Crim App 11/15/2006) Relief denied on international law claims. From the CDN folks:

On November 15, 2006, the Texas Court of Criminal Appeals ruled on Jose Medellin´s subsequent habeas petition which raised a claim under the Vienna Convention on Consular Relations. In re Medellin. The claim had been raised in Medellin´s initial habeas petition and been denied both as procedurally defaulted and on the merits. While Medellin was pursuing federal habeas relief, the International Court of Justice (ICJ) held that the Vienna Convention confers individual rights, contrary to the Texas Court of Criminal Appeals´ finding, and that it had been violated in a number of cases including Medellin´s case. The ICJ ordered the United States to reconsider the convictions and sentences of the cases at issue irrespective of any alleged procedural default. After the Fifth Circuit denied Medellin a certificate of appealability on his Vienna Convention claim, the Supreme Court granted Medellin´s certiorari petition. Prior to oral argument, President Bush issued a memorandum directing state courts to give effect to the ICJ decision. Medellin responded by filing a subsequent habeas petition in state court. The Supreme Court then dismissed the certiorari petition as improvidently granted, noting the possibility that Medellin could receive the review he sought in the state forum. The Texas Court of Criminal Appeals, however, ruled that the ICJ decision is not binding federal law that preempts the state procedural rules. It reached this conclusion by looking to the Supreme Court´s recent decision in Sanchez-Llamas v. Oregon. There, the Supreme Court refused to reconsider its prior ruling that Vienna Convention claims can be procedurally defaulted by state courts irrespective of the ICJ´s views on the matter. The Texas Court of Criminal Appeals also held that President Bush lacked the power to order state court compliance with the ICJ decision. Finally, the ICJ decision and President Bush´s memorandum did not, in the state court´s view, constitute previously unavailable factual or legal bases for the claim.

John Bejarano v. State, 2006 Nev. LEXIS 122 (Nev 11/16/2006) The Nevada Supreme Court's so-calledMcConnell rule("that it is unconstitutional to base an aggravating circumstance on the same felony upon which a felony murder is predicated") is retroactively applicable to all cases. Here, however, other aggravating factors remain applicable and upon reweighing the death sentence remains intact.

A. Did McConnell set forth a new rule?

Our first inquiry is whether McConnell set forth a new rule. Though no bright-line rule exists for determining whether a decision set forth a new rule of law, we have guidelines to follow.[25] For example, a rule is not new when it has merely interpreted and clarified an existing rule or applied an established constitutional principle to govern a case which is closely analogous to those considered in prior case law.[26] On the other hand, a rule is new when it overrules precedent, disapproves a practice sanctioned by prior cases, or overturns a longstanding practice uniformly approved by lower courts.[27]

It is clear that McConnell announced a new rule. We recognize that the overarching legal principle employed by this court in McConnell was certainly not new, i.e., that a State's death penalty scheme must genuinely narrow the class of persons eligible for a death sentence.[28] This principle has been a touchstone of death penalty jurisprudence since 1976.[29] Our decision in McConnell also relied heavily upon the 1988 United States Supreme Court opinion Lowenfield v. Phelps[30] for guidance. However, our analysis and holding in McConnell were new. We addressed Lowenfield for the first time in light of the death-eligibility narrowing constitutionally required of all state death penalty schemes, and we specifically considered the degree of narrowing produced by a felony-murder conviction, pursuant to NRS 200.030(1)(b), in combination with felony aggravators, pursuant to NRS 200.033(4).[31] We concluded that the narrowing in such a case was inadequate and, as a result, deemed "it impermissible under the United States and Nevada Constitutions to base an aggravating circumstance in a capital prosecution on the felony upon which a felony murder is predicated."[32] In reaching this conclusion, McConnell acknowledged this court's own contrary precedent, specifically citing two prior decisions that approved the use of the predicate felony as an aggravating circumstance in cases of felony murder.[33] McConnell effectively overruled this precedent.[34] Thus, although predicated upon existing legal principles, McConnell set forth a new rule of death penalty law in Nevada.[35]

B. Does the new rule apply retroactively?

Our remaining inquiry is whether either exception to the usual nonretroactivity of new rules pertains here. We conclude that the McConnell rule is substantive in nature and therefore retroactive.

Substantive rules

As stated above, one instance in which a new rule applies retroactively is when it "establishes that it is unconstitutional to proscribe certain conduct as criminal or to impose a type of punishment on certain defendants because of their status or offense."[36] This instance has been described as an exception to the nonretroactivity of procedural rules.[37] But as we recognized in Colwell, a rule forbidding the criminalization of certain conduct or the imposition of a particular punishment on certain defendants "is actually substantive, not procedural."[38] Because nonretroactivity is the general requirement only for new rules of criminal procedure, a new substantive rule is more properly viewed not as an exception to that requirement, but as a rule that will generally apply retroactively.[39] Regardless of how we characterize this point, we must determine whether McConnell established a procedural or a substantive rule. The United States Supreme Court has provided guidance for making this determination in Schriro v. Summerlin.[40] Substantive rules include "decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish."[41] In other words, "[a] rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes."[42] Substantive rules warrant retroactive application because they "'carry a significant risk that a defendant stands convicted of an act that the law does not make criminal' or faces a punishment that the law cannot impose."[43] Rules of procedure, on the other hand, regulate "the manner of determining the defendant's culpability."[44] "They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise."[45]

An example of a new procedural rule is provided by the Supreme Court's 2002 decision in Ring v. Arizona.[46] In Ring, the Supreme Court held that it was unconstitutional for a judge, instead of a jury, to make findings of fact to support a death sentence.[47] We later concluded that Ring set forth a procedural rule, reasoning that it "did not forbid either the criminalization of any conduct or the punishment in any way of any class of defendants."[48] The Supreme Court confirmed this conclusion, holding that Ring propounded a procedural rule that was not retroactive: Ring merely altered the method of determining punishment in accordance with constitutional principles, but not the range of punishment or those persons actually subject to it.[49]

Another example is found in our 2002 decision in Palmer v. State.[50] In Palmer, we held that lifetime supervision is a direct consequence of a guilty plea of which a defendant must be made aware.[51] Although Palmer set forth a new rule, we later concluded that it was procedural and required no retroactive application.[52] We recently reached a similar conclusion in regard to the Supreme Court's 2004 decision in Crawford v. Washington.[53] In Crawford, the Supreme Court held that to admit testimonial hearsay, the Constitution requires unavailability of the witness and a prior opportunity for cross-examination.[54] Although the Supreme Court has yet to decide the issue, we have concluded that Crawford set forth a new rule of procedure that does not warrant retroactive application.[55]

Our decision in McConnell is not like the procedural rules announced by the Supreme Court in Ring and Crawford or by us in Palmer, concerning the fact-finding process by which a sentence is determined, the admission of hearsay evidence, or the canvassing of defendants who plead guilty. Rather, McConnell concerned the reach of Nevada's death penalty law, determining under what circumstances and to whom it could be constitutionally applied. Applying constitutional strictures, McConnell proscribed the punishment of death based on a felony that is used to establish both first-degree felony murder and aggravated capital murder. Absent retroactive application of this rule, there would be "a significant risk that a defendant . . . faces a punishment that the law cannot impose."[56] Thus, we conclude that McConnell announced a substantive rule of law that must be applied retroactively.

United States v. Lawrence, 2006 U.S. Dist. LEXIS 83396 (S.D. Ohio 11/16/2006)On motion for new trial, convictionupheld, but his death sentence because of "arbitrary, inconsistent" jury findings leading to simultaneous sentences of life in prison and death. (The jury sentenced him to death for murder with malice, and to life imprisonment for murder during an armed robbery.)

In his motion for a new trial, Defendant argues that the Court must set aside the death sentence imposed in relation to Count Eight because the jury made inconsistent findings and issued inconsistent verdicts on Counts Seven and Eight. The former count resulted in a sentence of life imprisonment without the possibility of release, while the latter count resulted in a jury recommendation and consequent sentence of death. Defendant's argument is correct, and the Court has no choice but to set aside the sentence of death and order a new sentencing [*3] hearing on Count Eight.

In reaching this conclusion, the Court recognizes the sensitive nature of today's decision. The jury found Defendant's conduct in Count Eight punishable by death, and this Court has no doubt that many if not all of the victim's family members and friends want that sentence carried out. But today's decision, which does not foreclose a death sentence but instead sets aside the flawed death sentence for re-sentencing before a new jury, does not lessen the seriousness of Defendant's crime or the sentence the original jury recommended. The Court is also not ignorant of the suffering that additional proceedings in this case will no doubt cause.

The law is the law, however, and even the least deserving member of society is entitled to the full protections of the legal system. Thus, this Court must always be dispassionate in its application of the law, regardless of sympathy for the family and friends of the victim, not because the Court is sympathetic to any defendant, but because it is the Court's duty and privilege to strictly enforce the letter of the law without regard to the outcome in any particular case. Justice demands fairness and the principled application [*4] of the law, not decisions fueled by passion or predilection. The fundamental principles on which the criminal justice system is based would mean nothing if the Court did not protect the constitutional rights of every defendant in every case, even where any specific result might be contemptible. To conclude otherwise-to selectively enforce and protect any individual's constitutional rights--would be to diminish those rights and to diminish the very system of law to which the victim in this case so dedicated his life's work.

Guided by the foregoing principles, this Court is constrained to conclude that Defendant is entitled to a new sentencing on Count Eight. Under Federal Rule of Criminal Procedure 33, a district court in its discretion "may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a); see also United States v. Hill, 157 Fed. Appx. 830, 833 (6th Cir. 2005) (citing United States v. Seago, 930 F.2d 482 (6th Cir. 1991)). Defendant asserts that his circumstances meet the interest-of-justice standard in [*5] regard to Count Eight because the jury's death verdict is inconsistent with the jury's life imprisonment verdict for Count Seven. (Doc. # 234, at 11.) Although the verdicts are inconsistent, inconsistency alone is not sufficient to set side the death verdict on Count Eight. What is sufficient is that the inconsistency was a product of irrationality that requires the Court to set aside the verdict on Count Eight.

The United States Supreme Court has held that "consistency in the verdict is not necessary." Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932). Thus, the general rule is that "inconsistent findings in a jury verdict do not invalidate the verdict." United States v. Johnson, 223 F.3d 665, 675 (7th Cir. 2000) (citing e.g., United States v. Powell, 469 U.S. 57, 64-69, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984)). This means that rational inconsistent verdicts on separate charges against a single defendant do not necessarily mandate correction. Getsy, 456 F.3d at 590-91 (citing Powell, 469 U.S. at 59-63). A defendant convicted by a jury on one count cannot therefore attack that conviction if it was rationally and logically inconsistent [*6] with the verdict on another count. See Powell, 469 U.S. at 57; Dunn, 284 U.S. at 393; Getsy v. Mitchell, 456 F.3d 575, 590-91 (6th Cir. 2006).

But the Sixth Circuit has held that under certain instances inconsistent verdicts may be both "scandalous and inequitable" and "constitute evidence of arbitrariness that would undermine the confidence in the quality of the [jury's] conclusion." Getsy, 456 F.3d at 587. Thus, if the inconsistencies were such to indicate that the verdict was a product of irrationality, it would have to be set aside. See Getsy, 456 F.3d at 587; United States v. Johnson, 223 F.3d 665, 675-76 (7th Cir. 2000).

One factual situation where inconsistent verdicts are arbitrary is in cases involving inconsistent jury verdicts between two co-defendants charged with conspiracy or participation in similar criminal contract. Getsy, 456 F.3d at 590-91. In this situation, the Supreme Court has applied the rule of consistency to set aside irreconcilable jury verdicts. Hartzel v. United States, 322 U.S. 680, 64 S. Ct. 1233, 88 L. Ed. 1534 (1944) (reversing a conspiracy conviction [*7] on the basis of inconsistency); Morrison v. California, 291 U.S. 82, 93, 54 S. Ct. 281, 78 L. Ed. 664 (1934) (holding reversal of the conspiracy conviction of the defendant's sole alleged co-conspirator on constitutional grounds required reversal of the defendant's state conspiracy conviction). The Sixth Circuit requires the reversal of irreconcilable verdicts where one defendant is acquitted and the other convicted of a crime that necessarily requires two people to participate. Getsy, 456 F.3d at 590-92. Accordingly, the Sixth Circuit has reversed a defendant's murder-for-hire conviction and the resulting death sentence because another defendant was acquitted of the exact same charge. Id.

Defendant is therefore correct to the extent that the principles articulated in Morrison and Hartzel and subsequently followed by Getsy still apply today. However, courts only invalidate inconsistent findings in situations, such as in Getsy and as in the present case, where the inconsistency is a product of irrationality.

Here, there is no valid explanation for the jury's inconsistent findings in the present case other than complete arbitrariness. The Government unpersuasively [*8] argues that the sentence of death was not imposed under the influence of arbitrary factors and that any inconsistency in the jury's findings was deliberate and rational in light of an additional element that the jury had to consider when reaching the verdict for Count Eight. (Doc. # 9.)

The premise of the Government's argument is that the jury should have blatantly departed from this Court's jury instructions. The Government emphasizes the crucial difference between Count Seven and Eight, which is that in order to find Defendant guilty under Count Eight, the jury had to find that Defendant killed the victim with malice aforethought. It argues, in face of contrary jury instructions, that the jury may have logically considered the additional element and concluded that "the additional element, along with the aggravating factors were enough to sufficiently outweigh the mitigation causing the difference in the penalty verdicts." (Doc. # 253, at 8.)

Two considerations refute this argument. First, the jury instructions walked the jury through a sequential process. This Court instructed the jury at the trial phase to consider whether Defendant committed the elements of each crime, one [*9] of which was malice aforethought in Count Eight. The jury found Defendant guilty beyond a reasonable doubt of Counts Seven and Eight. At the eligibility phase, this Court then instructed the jury to determine whether eligibility factors existed, including age, intent, and at least one of two statutory aggravating factors. The jury found the existence of the age factor, the intent factor, and both statutory aggravating factors beyond a reasonable doubt. Subsequently, at the sentencing phase, the instructions set forth the aggravating and mitigating factors. The Court specifically instructed the jury to weigh only the aggravating factors and the mitigating factors outlined in the instructions with no mention of malice aforethought or any other element of the crime, and the jury is presumed to have followed the Court's instructions. The Government's explanation of the inconsistent verdicts implicitly posits that the jury disobeyed this Court's jury instructions by improperly considering the elements of the crime at the sentencing phase. The Court therefore rejects the Government's attempt to rationalize the inconsistent verdicts.

The second consideration that refutes the Government's [*10] contention of no error is that the inconsistent verdicts can only be regarded as products of irrational findings by the jury. The jury in this case returned special findings plagued by numerous inconsistencies. For example, five jurors found that the fact that "Daryl Lawrence was raised by neither his biological mother nor father" was a mitigating factor in connection with Count Seven, while six jurors found that same fact to be a mitigating factor in connection with Count Eight. Such discrepancies existed in thirty of the mitigating factors at issue.

These discrepancies point to irrational, arbitrary juror conduct. The Seventh Circuit addressed a similar factual scenario in United States v. Johnson, 223 F.3d 665 (7th Cir. 2000). There, the Seventh Circuit addressed death verdicts for two murders in which the jury also found some facts mitigating as relating to one of the murders but not to the other. Id. at 675-76. The appellate court explained that "if the inconsistencies were such as to indicate that the verdict was a product of irrationality, it would have to be set aside." Id. at 676. The court ultimately concluded that the [*11] inconsistencies did not indicate that the verdict was the result of irrationality. In reaching this conclusion, the appellate court emphasized that "[w]hat is important here is that every juror who found more mitigating factors present with respect to one of the murders than with respect to the other nevertheless voted that the aggravating factors taken as a whole outweighed the mitigating factors as a whole with regard to each murder." Id. The court's reasoning thus relied on the fact that in every juror's mind the "bottom line" was the same: the defendant should be sentenced to death, and therefore the inconsistencies did not indicate that the verdict was a product of irrationality that would warrant it being set aside. See id. As the Seventh Circuit explained, "if a juror couldn't make up his mind whether the defendant had proved 2 mitigating factors or 10 mitigating factors, but was clear in his mind that even in the latter event the aggravating factors outweighed them, there would be no basis for thinking he voted irrationally." Id.

In the instant case, however, not every juror who found more mitigating factors present with respect to one of the murder counts [*12] than with respect to the other murder count nevertheless voted that the aggravating factors taken as a whole outweighed the mitigating factors as a whole with regard to both murder counts. In fact, the jurors reached discordant binding recommendations on the separate counts. This Courts finds that Johnson supports the proposition that a verdict is not irrational if a jury concludes that a factor is mitigating with respect to one charge and not the other as long as the end result is the same. See Johnson, 223 F.3d at 675-76. But as Johnson implicitly suggests, inconsistent mitigating factor findings in conjunction with two different verdicts inescapably means that the verdict is a product of irrationality that a court is required to set aside. Id.

The Eight Circuit also supports the inference this Court draws from Johnson. See Wainwright v. Lockhart, 80 F.3d 1226, 1231-32 (8th Cir. 1996). In Wainwright, a defendant argued that his death sentence violated the Eighth and Fourteenth Amendments because of the jury's "inconsistent findings" about the mitigating circumstance that he did not resist when arrested for the murder. Id. at 1231. [*13] On one special verdict form, the jury indicated it had unanimously found that the lack-of-resistance circumstance and one other mitigating circumstance existed. Id. On another form, the jury indicated that it had unanimously found that the lack-of-resistance circumstance did not exist. Id. But as in Johnson, the Eight Circuit's holding relied on the fact that in every juror's mind the "bottom line" was the same. Wainwright, 80 F.3d at 1231-32; Johnson 223 F.3d at 675-76. The Wainwright court stated that:

Whether or not the jury found Wainwright did not resist arrest, the jury clearly considered the circumstance one way or the other. The jury then specifically found the three 'aggravating circumstances outweigh[ed] beyond a reasonable doubt all mitigating circumstances' whether the jury found one or two mitigating circumstances. Because this is not arbitrary or capricious, there is no Constitutional violation.

Wainwright, 80 F.3d at 1231-32. The reasoning in Wainwright also suggests that if the jury had reached two different verdicts after finding different mitigating factors, such as in the present [*14] case, its decision would have been arbitrary and therefore set aside. Wainwright, 80 F.3d at 1231-32; Johnson 223 F.3d at 675-76. Here, the jury's arbitrariness lies in the fact that at times the same jurors made different factual findings as to the same mitigating factors and then reached different results. But regardless of the counts considered, the facts Defendant proved as mitigating existed-either Defendant grew up in poverty or he did not--and regardless of the count at issue, either Defendant proved these facts to be mitigating factors or he did not. It is irrational to conclude that Defendant proved a mitigating factor in regard to one count by a preponderance of the evidence, but that he did not meet this burden of proof in regard to another count. The inconsistent findings taint the balancing equation and point to the unavoidable conclusion that irrational, even arbitrary, jury conduct existed. Thus, the end result is that the jury arbitrarily used two different balancing equations to conclude that the aggravating factors sufficiently outweighed the mitigating factors on Count Eight, but not on Count Seven.

There is no explanation for the [*15] jury's inconsistent findings in the present case other than arbitrariness. Johnson 223 F.3d at 675-76; Wainwright, 80 F.3d at 1231-32. See also Getsy, 456 F.3d at 587. Recognizing that rational inconsistent verdicts do not invalidate findings, but that irrational inconsistent verdicts that are result of arbitrary inconsistencies require the death verdict to be set aside, this Court is constrained to conclude that the interest of justice requires that the portion of the judgment sentencing Lawrence to death must be set aside. This Court GRANTS Defendant's request to set aside the death verdict on Count Eight and ORDERS that a new sentencing hearing pursuant to 18 U.S.C. § 3593(b)(2)(D) is necessary.

This procedure is in accordance with the federal death penalty scheme and all constitutional considerations. The statutory scheme provides that a "[sentencing] hearing shall be conducted . . . before a jury impaneled for the purpose of the hearing if . . . after initial imposition of a sentence . . . reconsideration of the sentence . . . is necessary." 18 U.S.C. § 3593(b)(2)(D) [*16] . Here, the Court has imposed sentence, Defendant has timely presented the Court with a motion for reconsideration of that sentence via setting aside that portion of the judgment and ordering a new trial, and the Court has reconsidered the sentence imposed on Count Eight. Because the law mandates correction of the error, the statutory scheme directs additional proceedings in regard to Count Eight. See United States v. Causey, 185 F.3d 407, 423 (5th Cir. 1999) (remanding in capital case for § 3593(b)(2)(D) sentencing hearing after vacating death sentences); cf. 18 U.S.C. § 3595(c)(2) (permitting appellate court remand for § 3593 reconsideration hearing). Such re-sentencing proceedings do not run afoul of double-jeopardy protections, given that the jury did not "acquit" Defendant of death on Count Eight, but in fact found that the aggravating factors existed and outweighed the mitigating factors. See Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S. Ct. 732, 154 L. Ed. 2d 588 (2003) (predicating attachment of double jeopardy on whether there has been a determination based on findings sufficient to establish legal entitlement to a life sentence).

Douglas Mickey v. Ayers, 5:93-cv-00243-RMW (N.D. Ca 11/17/2006) Relief granted on ineffective assistance of counsel in the penalty phase. "Two aspects of defense counsels' performance, however, 'fell below an objective standard of reasonableness": (1) counsels' failure to marshal and present evidence that Mickey grew up in a dysfunctional family where he was abused and surrounded by individuals with alcohol and mental health problems and that Mickey himself was a psychiatrically disturbed individual who suffered delusions before he began abusing drugs; and (2) counsels' failure to effectively utilize the expertise of their mental health experts, Dr. Burstein and Dr. Smith, in both the preparation and presentation of petitioner's mitigation case and in rebutting the People's case."

Petitioner asserts a multitude of complaints about his counsels' penalty phase preparation. He contends that the investigation for the mitigation case was a last-minute, inadequate one which was in large part delegated to non-lawyers. Petitioner maintains that relevant, available mitigating evidence was not obtained and the experts worked with incomplete information. Petitioner argues that trial counsel were therefore unable to explain the significance of his background and make a compelling mitigation presentation.

Many of petitioner's complaints constitute second-guessing defense counsels' performance in light of the fact that the verdict was a death sentence. "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689. As aptly put in Smith v. Mitchell, the court's role on habeas review "is not to nitpick gratuitously counsel's performance. After all, the constitutional right at issue here is ultimately the right to a fair trial, not to perfect representation." 348 F.3d 177, 206 (6th Cir. 2003).

Two aspects of defense counsels' performance, however, "fell below an objective standard of reasonableness": (1) counsels' failure to marshal and present evidence that Mickey grew up in a dysfunctional family where he was abused and surrounded by individuals with alcohol and mental health problems and that Mickey himself was a psychiatrically disturbed individual who suffered delusions before he began abusing drugs; and (2) counsels' failure to effectively utilize the expertise of their mental health experts, Dr. Burstein and Dr. Smith, in both the preparation and presentation of petitioner's mitigation case and in rebutting the People's case.

Although Mickey's defense counsel's representation fell below an objective standard of reasonableness, Mickey's constitutional rights were not violated unless such performance prejudiced him. There must be a probability sufficient to undermine confidence in the appropriateness of a death sentence. See Strickland, 466 U.S. at 693. The Ninth Circuit has observed that "[e]vidence 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 and mental problems, may be less culpable than defendants who have no such excuse.'" Allen v. Woodford, 395 F. 3d 979,1005 (9th Cir. 2005) (quoting Douglas v. Woodford, 316 F. 1079, 1090 (quoting Boyde, 494 U.S. at 382, cert. denied, 540 U.S. 810 (2003)). In Allen, the failure of trial counsel to prepare for the sentencing phase until a week before that phase began, and his resulting failure to thoroughly investigate and present Allen's mitigation case, was constitutionally deficient. However, while counsel erred in failing to investigate and present the potential mitigation testimony of many family members, friends, and associates of Allen's that Allen could be pleasant, the court found no prejudice. There was not a reasonable probability that had trial counsel presented the potential mitigation evidence, the jury would have weighed the evidence in favor of a life sentence for Allen whom it had just convicted of murdering three people and conspiring to murder four others while he was serving a life sentence for yet another murder. In contrast here, the potential mitigating evidence would have shown that Mickey's crimes could be attributable to a disadvantaged background and to emotional and mental problems.

Mickey's jury may not have been persuaded by the potential mitigating evidence that Mickey should have received a life sentence. The People offered significant evidence of premeditation and the potential mitigating evidence leaves little explanation for Blount's murder. Nevertheless, as pointed out by the Supreme Court in Strickland, "[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." 466 U.S. at 694.

Trial counsels' representation of Mickey in the penalty phase fell below an objective standard of reasonableness and that representation prejudiced Mickey.