Capital Defense Weekly, October 30, 2006

By Capital Defense Newsletter
Oct 29, 2006

This edition, noting decisions from October 16 to October 27, has a large number of favorable and / or notable opinions.

Two "checklist" cases of what to do and not to do are noted,Ex parte Gabriel Gonzales, from the Texas Court of Criminal Appeals, andSpisak v. Mitchell, Sixth Circuit. Both cases include great "tips" of what to do and not to do in the penalty phase. InGonzalesa check list is provided in concurrence of how to investigate a penalty phase case in Texas. InSpisakthe panel notes what not to say in closing, including that your client deserves no pity.

The Florida Supreme Court inWilliam Coday v. Stategrants relief on failure of the trial court to find the presence of a mitigating factor despite expert evidence introduced at trial. The Coday Court holds that the trial court erred in not finding the mitigating factor of "inability to conform his conduct to the requirements of the law" as it "was reasonably established by the greater weight of the evidence and should have been considered by the trial judge as having been established."

Rounding out the list of notables is a concurrence from the Ohio Supreme Court inState v. Donald Ketterer. Although relief is denied the concurrence notes "[d]eterrence is of little value as a rationale for executing offenders with severe mental illness when they have diminished impulse control and planning abilities. I urge our General Assembly to consider legislation setting the criteria for determining when a person with a severe mental illness should be excluded from the penalty of death. Unlike mental retardation, which can be determined by a number on an IQ test and other basic criteria, mental illnesses vary widely in severity. "

I am sadden to note thatFrank Dunham, a man of exceptional talent, compassion and dedication to public service, has gone on to argue before a higher court. Mr. Dunham represented innumerable clients in federal court in Virginia, including more than his share of capital and "terrorism" defendants.

In other news,China has changes its capital sentencing schemeto require that the nation's highest court must approve all death sentences, a move that state media called the country's biggest change to capital punishment in more than 20 years.In its online editionNewsweekexamines whether or not victims get "healing" following executions. TheAustin American-Statesmanrecently a major two-day series on problems with Texas habeas review.According to anew reportfrom the FBI, the number of police officers killed in the line of duty declined in 2005 compared with 2004, and was 22% less than the number killed in 2001.

In developments from academia, the entire of the latestGolden Gate Law Reviewis devoted to papers from "The Faces of Wrongful Conviction" Symposium. The articles includedetailed examinations of how snitches, fingerprints and custodial confessions can play in to wrongful conviction. One of the articles noted is Craig Haney'sExoneration and Wrongful Condemnations: Expanding the Zone of Perceived Injustice in Death Penalty Cases, 37 Golden Gate University Law Review 131 (2006), available on the major commercial databases. Haney's article attempts to broach the gap between David Dow's much hyped position that innocence is a distraction and the position taken by the "innocent first" abolition crowd. Specifically, Haney looks at what the problems of the wrongly convicted means in the broader context of criminal & capital defense for both the innocent and guilty.

Looking ahead to the next edition several cases of note are had. Perhaps most notable is the denial of rehearing en banc, 7-7, by the Sixth Circuit inJames Slaughter v. Parkeron an unusually strong failure to investigate / ineffective assistance of counsel claim (a strong cert candidate). A split Eighth Circuit panel inHerbert Smulls v. Ropergrants relief on what seems to be a fairly routine Batson challenge. The Tennessee Court of Criminal Appeals reverses in State v. Franklin Fitch on how, in light of Shepard v. United States, the (i)(2) statutory aggravating circumstance (prior violent felony) was introduced in to evidence in that case.

We are recommending, along with both Keith Olberman & Tucker Carlson,Josh Jennings for Congress. If you live in a contested media market, you will understand why and get a good laugh.

Finally, timing of late has been tough betweentrialsand other commitments. Fortunately, that period is coming to an end and there should be relative stability as to the timing of the coming editions (save the next edition).

Full edition is available at

24 Jeffrey Lundgren (Ohio)
25 Gregory Summers (Texas)
25 Danny Rolling (Florida)
26 Larry Hutcherson (Alabama)
1 Donnell Jackson (Texas)
Scheduled Executions
8 Willie Shannon (Texas)
9 John Schmitt (Virginia)
16 Charles Nealy (Texas)
1 Guy LeGrande (North Carolina)
5 Jerome Henderson (Ohio)
More Execution information

In Favor of Life or Liberty

Decisions from October 16 thru October 20

Ex parte Gabriel Gonzales, 2006 Tex. Crim. App. LEXIS 2039 (Tex. Crim App. 10/18/2006) (dissent) Relief granted on penalty phase investigation.

Anthony Apanovitch v. Houk, 2006 U.S. App. LEXIS 25880 (6th Cir 10/19/2006) "Denial of a 1991 habeas petition in a death penalty case is reversed in part and remanded, pursuant to a Brady claim, in light of the state's apparent failure to provide potentially exculpatory materials to defendant prior to the filing of his petition, and of the untested nature of certain DNA evidence. The remainder of the district court's order is affirmed over remaining Brady claims, a claim of insufficient evidence, and challenges to the admission of certain witnesses." [Note that this case could also be construed as a lost due to some very fact specific issues, including potentials for cross-contamination.][viaTravis Williams, P.A.]

Frank Spisak v. Mitchell, 2006 U.S. App. LEXIS 26001 (6th Cir 10/20/2006) Relief granted on penalty phase closings and unanimity instruction as to mitigation.

Donnie Johnson v. Bell, 05-6925 (6th Cir., Oct. 19, 2006) Sixth Circuit grants a stay in what appears to be a simple unpublished order.

Decisions from October 23 thru October 27

Michael Pierce v. District Attorney, 2006 U.S. App. LEXIS 26302 (3rd cir 10/24/2006) Appeal by the state dismissed.

William Coday v. State,2006 Fla. LEXIS 2533 (FL 10/26/2006) Trial court erred in not finding the mitigating factor of "inability to conform his conduct to the requirements of the law" as it "was reasonably established by the greater weight of the evidence and should have been considered by the trial judge as having been established."

Favoring Death

Decisions from October 16 thru October 20

Kevin Keith v. Mitchell, 2006 U.S. App. LEXIS 25881 (6th Cir 10/19/2006) (dissent) Rehearing denied over passionate dissent on counsel's failure to present mitigation evidence.

Curtis Osborne v. Terry, 2006 U.S. App. LEXIS 25666 (11th Cir 10/16/2006) Relief denied on claims including: "(1) Whether Osborne's trial counsel rendered ineffective assistance of counsel by failing to conduct a full independent investigation of the circumstances underlying the guilt and penalty phases of Osborne's trial; (2) Whether Osborne's trial counsel rendered ineffective assistance of counsel by operating under such a conflict of interest as a result of his substantial caseload that prejudice to Osborne may be presumed under United States v. Cronic; and (3) Whether Osborne's trial counsel acted with a racially discriminatory purpose at trial and sentencing, thus contributing to the imposition of the death penalty in violation of Osborne's rights under the Eighth Amendment to the U.S. Constitution." [more here]

Martin Grossman v. McDonough, 2006 U.S. App. LEXIS 25668 (11th Cir 10/16/2006) "Grossman argues . . . his inability to cross-examine [a key government witness] constituted harmful error under the Supreme Court's recent decision in Crawford." "Grossman's next habeas claim is that the state prosecutor erroneously failed to disclose exculpatory material concerning witnesses Brewer, Hancock, and Allan.""Finally, Grossman maintains that he received ineffective assistance of counsel because his attorneys did not effectively prepare for the penalty phase of the trial, failed to object to the state's presentation of non-statutory aggravating factors, failed to object to the state's use of a "Golden Rule" argument, and did not present an effective closing argument." [more here]

John Troy v. State, 2006 Fla. LEXIS 2419 (FL 10/19/2006) Relief denied on claims including: "(1) Section 775.051, Florida Statutes (2001), excluding voluntary intoxication as a defense, is unconstitutional; (2) the evidence is legally insufficient to prove attempted sexual battery; (3) the trial court erred in denying Troy's right of allocution before the jury, and in allowing the State to introduce Troy's suppressed confession at the Spencer hearing; (4) the trial court erred in excluding Michael Galemore's testimony; (5) the trial court erred in failing to instruct the jury on the age mitigator; (6) the trial court erred in instructing the jury that the law requires the death penalty in this case; and (7) Florida's death penalty scheme is unconstitutional. Finally, although not raised by Troy, we have reviewed the record and conclude that, in light of the totality of the circumstances, the evidence to sustain a conviction of first-degree murder is sufficient and Troy's death sentence is proportionate when compared to the facts of other death penalty cases."

Danny Rolling v. State, 2006 Fla. LEXIS 2376 (FL 10/18/2006) An order denying, without an evidentiary hearing, a successive motion for postconviction relief is affirmed over claims that the trial court erred in denying claims that: 1) Florida's method of execution by lethal injection violates his right to be free of cruel and unusual punishment under the Eighth and Fourteenth Amendments, and his First Amendment right to free speech; 2) the circuit court erred in denying an evidentiary hearing on his claims arising from his public records requests; and 3) that an ABA report constituted newly discovered evidence against the imposition of the death penalty.

Joseph Alan Edwards v. State, 2006 Ga. LEXIS 834 (GA 10/16/2006) "Edwards filed a pre-trial motion challenging the composition of both the grand and traverse jury lists of Hall County." "The trial court found that, while the jury commission had used the proper number of Hispaniccitizensin its calculations, it had failed to make other adjustments based on citizenship data, including adjusting the total population ofallpersons based on citizenship." Appeal denied.

Stephen Powers v. State, 2006 Miss. LEXIS 585 (Miss 10/19/2006) Relief denied on post-conviction review relating to: "two primary issues - (1) whether the evidence of the underlying felony of attempted rape was sufficient to support the capital murder charge; and, (2) whether his trial counsel rendered ineffective assistance. In the latter issue, Powers asserted that he received ineffective assistance from his trial counsel as to (a) the hearing on the motion to suppress Powers's confession; (b) the jury selection process; (c) the presentation of a coherent defense; (d) the failure to have the capital murder charge reduced to that of non-capital (simple) murder or manslaughter; (e); the failure to submit lesser-included offense or lesser-offense jury instructions; and, (f) the sentencing phase, due to (I) the failure to investigate and develop mitigation evidence, (ii) an inadequate closing argument to the jury, and, (iii) the failure to object to the State's two aggravating circumstances submitted via jury instructions."

State v. John Drummond, 2006 Ohio 5084 (Ohio 10/18/2006) (dissent) Relief denied, most notably, on the closure of courtroom.

Decisions from October 23 thru October 27

Isaac Stroud v. Polk, 2006 U.S. App. LEXIS 26216 (4th Cir. 10/23/2006) Relief denied on "one issue, involving his challenge to the state court's rejection of his claim that North Carolina's "short-form" murder indictment provided inadequate notice that he could be convicted of first degree murder on a theory of torture."

Gregory Summers v. Edison, 2006 U.S. App. LEXIS 26844 (5th Cir 10/26/2006) Appeal denied of "dismissal of his 42 U.S.C. § 1983 complaint seeking 'a declaratory judgment that Defendants must disclose the Brady evidence they currently refuse to release and to compel release of that evidence' or, in the alternative, 'an injunction from this Court preventing Defendants from depriving Summers of his life without due process of law'."

Gregory Summers v. Livingston, (5th Cir 10/25/2006) Relief denied on lethal injection challenge.

Lonnie Johnson v. Quarterman, 2006 U.S. App. LEXIS 26783 (5th Cir 10/26/2006) (unpublished) "Johnson challenges only his death sentence. He raises the following issues: (1) the prosecution suppressed material exculpatory evidence during the sentencing phase in violation of due process; (2) due process and equal protection required that his jury be instructed regarding parole laws; and (3) the Texas capital sentencing scheme's failure to require the prosecution to prove beyond a reasonable doubt future dangerousness and the absence of mitigation evidence violates due process and is in conflict with Supreme Court precedent."

William Sweet v. Secretary, 2006 U.S. App. LEXIS 26218 (FL 10/23/2006) Relief denied on applicability of Ring to Florida sentencing scheme, including, on grounds that it was untimely raised.

Larry Hutcherson v. Riley,2006 U.S. App. LEXIS 26307 (11th Cir 10/24/2006) "Hutcherson is not entitled to the equitable remedy of a stay of execution" on the basis of a lethal injection challenge.

In re Larry Hutcherson, 2006 U.S. App. LEXIS 26308 (11th Cir 10/24/2006) "Hutcherson raises two claims in his Application for Leave to file a Successive Habeas Petition. First, Hutcherson contends that the Alabama Death Penalty Act is unconstitutional and does not comport with the Supreme Court's dictates set forth in Wiggins v. Smith.. . . Hutcherson's second claim for relief, ineffective assistance of counsel, is based on the Supreme Court's decision in Rompilla v. Beard. Hutcherson claims that the Court announced a "new rule" in Rompilla with respect to claims of ineffective assistance of counsel. Hutcherson is incorrect. The Court's decision in Rompilla was another interpretation of the Court's long-standing principles set forth in Strickland v. Washington. It did not set forth a 'new rule of law'."

Theodore Rodgers v. State, 2006 Fla. LEXIS 2542 (FL 10/26/2006) Relief denied on claims "that the trial court erred (A) by excusing a potential juror for cause; (B) by admitting hearsay testimony during the penalty phase; (C) by admitting Rodgers’s old IQ scores from Department of Corrections records; (D) in determining that Rodgers is not mentally retarded; (E) in finding the mitigating circumstances, weighing the aggravating and mitigating circumstances, and determining proportionality; (F) in denying Rogers’s motion for disqualification; and (G) in failing to find Florida’s death penalty statute unconstitutional under Ring v. Arizona." Dissent focuses on the admissibility of aggravating circumstance, especially in light of the mere 8-4 vote for death, proportionality and Crawford.

Jan Brawner v. State, 2006 Miss. LEXIS 625 (Miss 10/26/2006) Relief denied on postconviction "eight assignment of errors: three alleging ineffective assistance of counsel for failing to: (1) request a change of venue, (2) prepare a full transcription of the trial, and (3) present mitigating evidence; (4) allowing the underlying felony to be used as a separate aggravating factor during sentencing; (5) unconstitutionality of the avoiding arrest aggravating factor; (6) unconstitutionality of the felonious abuse of a child aggravating factor; (7) failure to include the aggravating factors elevating the charge to capital murder in the indictment and (8) illegal sentence."

State v. Porfirio Jimenez, 2006 N.J. LEXIS 1520 ( NJ 10/24/2006) Defendant bears burden of proof on mental retardation.

State v. Donald Ketterer, 2006 Ohio 5283 (Ohio 10/25/2006) Direct appeal denied including on whether mental illness creates a categorical bar to execution.


Roger Smith v. Baldwin, 2006 U.S. App. LEXIS 26344 (9th Cir 10/24/2006) (dissent) A favorable examination of the doctrines relating to factual innocence and federal habeas corpus.

Morbassa Boyd v. Newland, 2006 U.S. App. LEXIS 26667 (9th Cir 10/26/2006) Relief granted as to access to a transcript of voir dire at state taxpayer expense holding "the California appellate courts violated clearly established federal law by denying Petitioner's habeas petition because, without an entire voir dire transcript, those courts could not evaluate the relevant circumstances surrounding the contested strike, asBatsonrequires."

Looking Ahead


Herbert Smulls v. Roper, 2006 U.S. App. LEXIS 27051 (8th Cir 11/1/2006) Relief granted on Batson challenge

State v. Franklin Fitch, 2006 Tenn. Crim. App. LEXIS 862 (Tenn. Crim. App. 11/2/2006) "[T]he evidence does not support application of the (i)(2) statutory aggravating circumstance. As we are unable to conclude that this error is harmless, this matter is remanded for a new sentencing hearing."


Newton Anderson v. Quarterman, 2006 U.S. App. LEXIS 27135 (5th Cir 11/1/2006) (unpublished) Habeas denied.

James Slaughter v. Parker, 2006 U.S. App. LEXIS 27050 (6th Cir. 11/1/2006) 7-7 split upholding death on a very unusual fact pattern and a tough dispute on how much prejudice a petitioner must show under Strickland v. Washington.

Jack Alderman v. Terry, 2006 U.S. App. LEXIS 26968 (11th Cir 10/30/2006) "We granted his application for a certificate of appealability as to one issue: whether Alderman's trial attorneys denied him the effective assistance of counsel in the penalty phase of his sentencing proceedings by failing to investigate and present to the jury his social-history background." Relief denied.

Meryl McDonald v. Florida, 2006 Fla. LEXIS 2589 (FL 11/2/2006) Relief denied.

Daniel Burns v. Florida, 2006 Fla. LEXIS 2593 (FL 11/2/2006) Relief denied.

Shelton Jackson v. State, 2006 Okla. Crim. App. LEXIS 48 (Okla Crim App 11/2/2006) Direct appeal denial.

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

Ex parte Gabriel Gonzales, 2006 Tex. Crim. App. LEXIS 2039 (Tex. Crim App. 10/18/2006) Relief granted on penalty phase investigation. From the majority opinion:

The applicant alleges, and the convicting court found as a matter of fact, that his father physically and sexually abused him severely and frequently when he was a small child. As a result, he suffers from a post-traumatic stress disorder. n11 None of these facts were put in evidence at his trial. n12

The applicant's father also abused the applicant's older sister, who eventually reported it to her mother. The applicant's mother had thought that her husband was sexually abnormal, and that he used excessive force with the children. When her daughter reported being sexually abused, she immediately notified the police and obtained a divorce. n13

The defense attorney talked to the mother once before trial, and to the sister once during trial. n14 He did not ask them or the applicant about any specific topics such as abuse in the applicant's past. n15 His interviews with the mother and sister started "globally in nature," but he "never even dreamed" of the issue of abuse, and he "certainly didn't really inquire about it." n16 He did ask the applicant about how he grew up. "I just start from the beginning, you know, tell me all about you. Where were you born and so forth, leading them up to -- to this time." n17 The applicant did not volunteer any information about abuse. n18 The sister testified at the habeas hearing that she did not volunteer information about the abuse because she is ashamed of having been abused and it is not very easy to talk about. n19

The applicant's counsel had tried "quite a few capital cases," and his experience was that evidence of a young defendant's background would have been very helpful in trying to get a life sentence instead of a death sentence. In retrospect, he said, "I really should have pursued this or at least inquired into it, but I did not." n20 His failure to do so was not a strategic or tactical decision, and he believes it was a mistake on his part. n21

The sister did testify at the punishment stage of the trial that the applicant was bullied in school, that he had trouble learning, and that he had been diagnosed as being "borderline retarded" and suffering from epilepsy (as did his father) and attention-deficit disorder. n22 The applicant's mother was not called to testify. n23

After the trial and before the habeas hearing, a board-certified psychiatrist interviewed the applicant and examined his school records and jail records. His diagnoses were that the applicant suffers from chronic post-traumatic stress disorder, attention-deficit disorder with hyperactivity, mixed personality disorder with explosive and antisocial traits, hereditary epilepsy, dyslexia and other learning disorders. n24 The psychiatrist's version of the applicant's history says:

"From that point [of his parents' divorce] on, Gabriel had extreme homophobic reactions, especially any insinuation that he was "Gay" or if he was called "Gay," he reacted in a very agitated manner. It was this trigger that caused him to exhibit run-a-way [sic] behavior and exhibit "macho" behavior and run the streets. He lived twenty-four hours a day in terror that he would be labeled "gay." n25

The psychiatrist's "psychodynamic formulation" included his opinion that:

This is an individual who at an early age had [neurological and learning disorders]. He also had stigmata of Post Traumatic Stress Disorder as a result of extensive sexual abuse and molestation by his genetic father. He apparently was threatened with homicidal intention, by the perpetrator, if he revealed to his mother that this behavior was going on.

This individual also has a Borderline Normal Intelligence Quotient which would lead to poor processing of information and probably lower level of control of behaviors which included antisocial behaviors and impulsive behaviors at an early age. There was extensive drug abuse at an early age which extended into adult age with participation in buying and selling drugs.

This is an individual who has received many educational services, marginal psychiatric services as a child, and evolved into a very impulsive, angry adult whose trust was destroyed because of sexual molestation as a child. He, therefore, was not able to evolve deep interpersonal relationships that are so important for someone to learn to control and monitor his own behavior so that he was able [*10] to function in a job as a normal productive citizen.

This individual would require extensive psychiatric treatment for Post Traumatic Stress Disorder and Chemical Dependence in order to be rehabilitated in to [sic] a law-abiding, productive member of society." n26

Because trial counsel was not aware, at the time of trial, that the applicant suffered an abusive childhood, the issue is not whether he was ineffective for failing to present evidence of abuse, but rather whether he failed to conduct a reasonable investigation to uncover mitigating evidence. n27 Or, more directly, was the applicant's trial counsel ineffective for failing to ask the applicant -- or his mother or sister -- if he was abused as a child?

The trial court accepted as true the applicant's account of the abuse, that the applicant's mother and sister were aware of the abuse, and that trial counsel did not ask specific questions about it.

The trial court noted that trial counsel was of the opinion that he made a mistake, and not a strategic choice, in failing to ask the applicant and his family about abuse. The trial court was not persuaded, however, that defense counsel conducted an unreasonable investigation because "this information was all known to Applicant, who was legally competent to stand trial, and he made no mention of it to his trial counsel." n28

Defense counsel's failure to investigate the basis of his client's mitigation defense can amount to ineffective assistance of counsel. n29 In determining whether counsel conducted a reasonable investigation, an appellate court's initial inquiry is whether a reasonable investigation should have uncovered the mitigating evidence. n30

The Supreme Court held in 1989 that the application of Texas' capital sentencing statute was in violation of the Cruel and Unusual Punishments Clause because "the jury was not provided with a vehicle for expressing its reasoned moral response to . . . evidence [of a capital defendant's mental retardation] in rendering its sentencing decision." n31 Thereafter, many defendants who had been sentenced to death without such a "vehicle" raised such claims. Many of the claims failed because the mitigating evidence could have been given effect under the statute, or because there was no evidence of a nexus between the evidence and the commission of the offense. n32

In other cases, we found a violation of the Eighth Amendment. These included a case in which a defendant presented evidence of sociopathic personality brought on by childhood abuse, n33 and a case in which there was evidence of a defendant's low IQ, poverty and parental mistreatment. n34

In 1991, the statute was amended to comprise a much broader range of mitigating evidence, namely, "all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant." n35

These developments in constitutional and statutory law have made it necessary to consider mitigating evidence in preparation for the trial of a capital case. Such evidence could include the circumstances of the defendant's childhood and his physical and mental health. We think that, at the time of the applicant's trial, an objective standard of reasonable performance for defense counsel in a capital case would have required counsel to inquire whether the defendant had been abused as a child. Counsel's performance fell below this standard.

From Cochran, J.,'s concurrence

I join the Court's opinion. I write separately only to address a matter raised by Presiding Judge Keller in her dissenting opinion. Judge Keller states that, in Summerlin v. Schriro, n1 "the Ninth Circuit may have suggested the [*22] same rule the Court announces in the present case." n2 If one inverts that sentence to read, "this Court may be suggesting the same rule the Ninth Circuit announced in Summerlin v. Schriro," I agree with her assessment. Although the majority in this case does not speak with the breadth of the Ninth Circuit, I think that any capital-murder defense counsel in Texas should read Summerlin before beginning his pretrial investigation.
The underlying message of Summerlin is that defense counsel must fully investigate any and all potential mitigating circumstances in his client's background which might conceivably persuade a jury not to impose the death penalty. The failure to investigate will not be excused simply because the defendant failed to mention such evidence himself. Indeed, under Rompilla v. Beard, n3 defense counsel may be required [*23] to investigate potential mitigating facts even when the defendant is "uninterested in helping" or is "even actively obstructive" in developing a mitigation defense. n4
Under both current Supreme Court standards and Texas statutes, defense counsel has a constitutional duty to seek out all of the "circumstances of the offense, the defendant's character and background, and [any evidence that lessens] the personal moral culpability of the defendant[.]" n5 At a minimum, defense counsel must privately quiz his client about any and all positive and negative facts about the defendant's upbringing, personality, social interactions, thoughts and feelings. It is not sufficient to inquire generally and leave it up to the defendant [*24] to raise topics or respond to open-ended questions. Like a doctor, defense counsel must be armed with a comprehensive check-list of possibilities, and forcefully inquire about each topic. Such topics might include:

  • Trips to the emergency room;
  • Serious illnesses at any time;
  • Physical abuse to the defendant or any other member of the family;
  • Any sexual abuse to the defendant or any other member of the family;
  • Size of the immediate family, and a history of the physical, educational, and emotional background of each member;
  • The defendant's relationship with and attitudes toward every member of the family;
  • Drug or alcohol use or abuse by himself and any or all members of the family;
  • Any mental health treatment of any member of the family, including the defendant;
  • The cohesiveness of the family;
  • The family's standard of living and living conditions;
  • Any and all available school records;
  • Any record of learning disabilities;
  • Childhood and adult social relationships with members of the same and opposite sex;
  • Any marriage, divorce, children, step-children, or surrogate family relationships, [*25] and their positive or negative influence upon the defendant;
  • Any and all awards, honors, or special accomplishments, as well as any and all convictions, arrests, expulsions or suspensions from school, job firings, etc.;
  • Any and all traumatic experiences;
  • Any and all especially proud moments;
  • Membership in religious, social, educational, charitable organizations;
  • The client's five best and worst memories.

Only after a lengthy and thorough interview with his client will defense counsel be in a position [*26] to decide which are the most promising mitigation areas to pursue. Because of finite resources and time, capital counsel's strategic and tactical decisions regarding the further investigation, development, and use of potential mitigating evidence should be given great deference. But deference is not due to counsel who fails to interview his client at sufficient length and depth to discover, as accurately as possible, the unvarnished truth about his client. A particular defendant may be such an accomplished dissembler that he successfully hides important information from his own attorney; in that instance, of course, the defendant bears full responsibility for affirmatively hiding the truth. But capital counsel bears the responsibility for at least making every reasonable attempt to uncover possible mitigation facts from his client.
To that extent, at least, I think that the majority would agree with the reasoning of Summerlin, as do I.

Anthony Apanovitch v. Houk, 2006 U.S. App. LEXIS 25880 (6th Cir 10/19/2006) "Denial of a 1991 habeas petition in a death penalty case is reversed in part and remanded, pursuant to a Brady claim, in light of the state's apparent failure to provide potentially exculpatory materials to defendant prior to the filing of his petition, and of the untested nature of certain DNA evidence. The remainder of the district court's order is affirmed over remaining Brady claims, a claim of insufficient evidence, and challenges to the admission of certain witnesses." [viaTravis Williams, P.A.]

Finally, the state has repeatedly asked the federal courts to authorize it to conduct a comparison of Apanovitch’s DNA to that found in the oral and vaginal swabs that were discovered in a drawer in the coroner’s office in 1992. The state at first declared that it had lost or accidentally destroyed the physical evidence that could have been used to conduct a DNA test. Apanovitch then demanded a DNA test of the supposedly-destroyed swabs, and claimed in his habeas petition’s ninth ground for relief that the state had violated his constitutional rights by not preserving the evidence. After the state rediscovered the swabs – after the habeas petition was filed but before the district court ruled on the petition – it conducted a DNA test of the material, and then asked the district court to authorize a test of Apanovitch’s DNA and a comparison of his DNA to that found on the swabs. Apanovitch then decided that he did not wish to access the DNA evidence or have it placed before the district court, and so he objected to that request. The district court subsequently denied Apanovitch’s habeas petition in its entirety, and in so doing it additionally denied the state’s motion as moot. Apanovitch continues to raise objections to the state’s request, arguing first that the test would be inaccurate and unreliable, and second, that the chain of custody is questionable. It is unclear to us whether any of the DNA material survived the testing, and the exact nature of the test results of the DNA evidence, as well as the chain of custody, remains murky. We suspect that the DNA evidence, should it be introduced and subjected to appropriate evidentiary challenges in court, might help resolve lingering questions of whether Apanovitch suffered actual prejudice when the state withheld the serological evidence, and whether Apanovitch’s innocence claim can be verified.10 We note that Apanovitch could well benefit from any ambiguity or error in the results that might lessen the exact accuracy of any hypothetical match with his own DNA. But these are issues better suited to the district court. Therefore, we reverse the district court with respect to Apanovitch’s ninth ground for habeas relief and the state’s DNA request, and we remand for that court’s further adjudication. In so doing, we note that the district court retains the inherent authority to conduct an evidentiary hearing with respect to the DNA evidence should it deem that course of action to be appropriate.

Frank Spisak v. Mitchell, 2006 U.S. App. LEXIS 26001 (6th Cir 10/20/2006) Relief granted on penalty phase closings and unanimity instruction as to mitigation.

II. Ineffective Assistance of Counsel During Mitigation Phase
The Supreme Court first articulated the now familiar two-part test for determining whether counsel is ineffective in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, a defendant seeking to establish that his counsel's assistance was ineffective must show: (1) that his counsel's performance was deficient, in other words, that it "fell below an objective standard of reasonableness;" and (2) that the defense was prejudiced by the attorney's deficient performance. Strickland, 466 U.S. at 687-88. Although trial counsel's performance here is subject to de novo [*51] review, the reviewing Court's scrutiny of counsel's performance is highly deferential, and counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996) (overruled on other grounds). The reviewing Court must "evaluate the reasonableness of counsel's performance within the context of the circumstances at the time of the alleged errors." Id. (citations omitted). "Trial counsel's tactical decisions are particularly difficult to attack, and a defendant's challenge to such decisions must overcome a presumption that the challenged action might be considered sound trial strategy." Id. (internal citations and quotations omitted).
In order to establish deficiency under Strickland, Defendant must show that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed [Defendant] by the Sixth Amendment." Strickland, 466 U.S. at 687. To satisfy the prejudice prong of the Strickland, "[t]he defendant must show that there is a reasonable probability that, but for counsel's [*52] unprofessional errors, the result of the proceeding would have been different." Id. at 694. The inquiry, when a defendant challenges a conviction, is whether "there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695; see also Wiggins v. Smith, 539 U.S. 510, 537, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (Defendant demonstrates prejudice if he can show that there is a reasonable probability that "at least one juror would have struck a different balance").
The Strickland Court explained that while strategic choices made after a thorough investigation are virtually unchallengeable . . . strategic choices made after a less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigation or to make a reasonable decision that a particular investigation is unnecessary.
Id. at 690-91. Thus it follows that any decision to forego mitigation evidence [*53] is unreasonable if not made after a reasonable decision to cease further investigation. See id.
A. Hostile Remarks During The Closing Argument Of The Mitigation Phase
Defendant first argues that his counsel rendered ineffective assistance during his closing argument at sentencing by repeatedly stressing the brutality of the crimes and demeaning Defendant. We agree. The transcript reveals that in the early part of the closing, trial counsel did focus rather heavily on what he called the aggravating circumstances and the heinousness of the crimes. Defendant's trial counsel addressed the jury, telling them that "so little really needs to be said about the degree of aggravating factors, clearly horrendous," and pointed out that no one involved in the trial was ever going to forget it or Defendant. (J.A. at 3061.) Trial counsel went on to make the following disturbing remarks:
[E]veryone of us who went through this trial, we know we can feel that cold day . . . or see that cold marble, and will forever . . . see Horace Rickerson dead on the cold floor. Aggravating circumstances, indeed it is . . . the reality of what happened there . . . you can smell almost [*54] the blood. You can smell, if you will, the urine. You are in a bathroom, and it is death, and you can smell the death . . . and you can feel, the loneliness of that railroad platform . . . And we can all appreciate, and you can understand, and we can all know the terror that John Hardaway felt when he turned and looked into those thick glasses and looked into the muzzle of a gun that kept spitting out bullets . . . And we can see a relatively young man cut down with so many years to live, and we could remember his widow, and we certainly can remember looking at his children . . . you and I and everyone one of us, we were sitting in that bus shelter, and you can see the kid, the kid that was asleep, the kid that never [sic] what hit him, and we can feel that bullet hitting, and that's an aggravating circumstance . . . There are too many family albums. There are too many family portraits dated 1982 that have too many empty spaces. And there is too much terror left in the hearts of those that we call lucky.
(Id. at 3062-65.) The district court concluded that this extremely graphic and overly descriptive recounting of Defendant's crimes were an appropriate part of trial counsel's [*55] strategy to confront the heinousness of the murders before the prosecution had the opportunity to do so. The district court reasoned that once counsel identified with their emotions towards Defendant, he could then explain to them that their feelings were misplaced because Defendant was mentally ill. Had Defendant's trial counsel actually done the latter, and spent a substantial amount of the time humanizing and rehabilitating Defendant in the eyes of the jury by arguing that Defendant was misguided or mentally ill and deserved to have his life spared, then the district court might be correct that this was permissible trial strategy. The record reveals, however, that trial counsel did very little to offset the negative feelings that his own hostility and disgust for Defendant may have evoked in the jury. Instead, as Defendant argues, trial counsel further denigrated Defendant and even went so far as to tell the jury that Defendant was undeserving of mitigation.
Trial counsel's efforts at presenting mitigating evidence consisted of telling the jury about what he described as Defendant's "sick twisted mind" and his association with the Third Reich and the Nazis, and what counsel perceived [*56] it was like to be inside Defendant's mind, based on Defendant's testimony about the murders. While trial counsel did then try to stress that Defendant was mentally ill, even if not legally insane, trial counsel proceeded to undermine this limited effort by making the following inexplicable remarks:
Sympathy, of course, is not part of your consideration. And even if it was, certainly, don't look to him for sympathy, because he demands none. And, ladies and gentlemen, when you turn and look at Frank Spisak, don't look for good deeds, because he has done none. Don't look for good thoughts, because he has none. He is sick, he is twisted. He is demented, and he is never going to be any different.
(J.A. at 3069.) Trial counsel's performance did not improve after this, but rather counsel continued to do further harm to Defendant by rambling incoherently towards the end of the closing statement about integrity in the legal system. Trial counsel's final moments were not devoted to a discussion of the reasons why Defendant's mental illness made him deserving of mitigation, but rather to discussing all the other participants in the trial. Namely, trial counsel discussed the jurors, [*57] lawyers, the judge, policemen, and the victims' families, and focused on the importance of the jury's decision to all of these various individuals, instead of arguing how and why the mitigating factors outweighed the aggravating factors. Most shocking of all, however, trial counsel suggested to the jury that either outcome, death or life, would be a valid conclusion, by stating to the jury that "whatever you do, we are going to be proud of you." (J.A. 3101.)
We find persuasive Defendant's argument that in pursuing this course, trial counsel abandoned the duty of loyalty owed to Defendant, as was the case in Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997). In Rickman, counsel pursued a similar strategy of attempting to portray his client as a "sick" and "twisted" individual which should mitigate the death sentence. Trial counsel's strategy in Rickman involved repeated attacks on his client's character, eliciting damaging character evidence about his client, making disparaging comments to any witness who spoke favorably about his client, and apologizing to the prosecutors for his client's crime. Id. at 1157. This court concluded that [*58] counsel's performance was "outrageous" because his attacks on Rickman equaled or exceeded those of the prosecution. Id. The court found that the defendant was effectively deprived of assistance of counsel in light of the severity of counsel's conduct. Id. at 1160.
We believe that trial counsel's actions discussed above are so egregious that they are equivalent to those in Rickman, and similarly deprived Defendant of effective assistance of counsel, in violation of the Sixth Amendment. Here, as in Rickman, trial counsel's hostility toward Defendant aligned counsel with the prosecution against his own client. Much of Defendant's counsel's argument during the closing of mitigation could have been made by the prosecution, and if it had, would likely have been grounds for a successful prosecutorial misconduct claim. As was the case in Rickman, "[th]e effect [counsel] created was not one of pity for a pathetic [Defendant], but one of hostility toward the hated and violent freak." Id . at 1160. In light of all the circumstances of this case, and even conceding that counsel faced some unique challenges, we still find that Defendant has [*59] rebutted the "strong presumption" that counsel's actions constituted "sound trial strategy." Strickland, 466 U.S. at 689. Defendant is correct that "there cannot be any objectively reasonable tactical reason to argue to the jury in a mitigation phase that one's client has no redeeming qualities, will never be rehabilitated, has never done a good deed, is not deserving of no (sic) sympathy, and is entitled to no mitigation." (Def.'s Br. at 64.) Absent trial counsel's behavior during the closing argument of the mitigation phase of the trial, we find that a reasonable probability exists that at least one juror would have reached a different conclusion about the appropriateness of death, and may have voted for life instead. Therefore, we reverse the district court's denial of habeas on this claim.
III. Acquittal First Jury Instruction
Defendant next claims that the trial court unconstitutionally instructed the jury that its sentencing decision had to be unanimous and gave an improper "acquittal-first" jury instruction. The district court concluded, and we agree, that Defendant's argument has merit under this Court's prior holding in [*66] Davis v. Mitchell, 318 F.3d 682 (6th Cir. 2003). In Davis, this Court granted habeas relief to a death sentenced defendant because it determined that the acquittal-first jury instruction, combined with a verdict form that required the signature of all twelve jurors, likely led the jurors to conclude that mitigation factors also had to be found by all twelve jurors, thereby precluding an individual juror from giving effect to mitigation evidence not found by the others. Id. at 689.
While a trial court's sentencing phase instructions may require juror unanimity as to the results of the process of weighing aggravating circumstances and mitigating factors, the instructions cannot require unanimity as to the presence of a mitigating factor. Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988); see also Roe v. Baker, 316 F.3d 557, 563-64 (6th Cir. 2002); Williams v. Coyle, 260 F.3d 684, 702 (6th Cir. 2001); Coe v. Bell, 161 F.3d 320, 337-39 (6th Cir. 1998). Further, an "acquittal-first" instruction, which requires the jury to unanimously reject a death sentence before considering [*67] other sentencing alternatives, is unconstitutional. Mapes v. Coyle, 171 F.3d 408, 416-17 (6th Cir. 1999). In McKoy v. North Carolina, 494 U.S. 433, 435, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), the Supreme Court ruled unconstitutional any requirement that "prevents the jury from considering, in deciding whether to impose the death penalty, any mitigating factor that the jury does not unanimously find." Under McKoy, each juror must be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death. Id. at 443; Mills, 486 U.S. at 374-75. Aggravating factors must be found unanimously because they are the elements of the murder offense that make the defendant death eligible. Davis, 318 F.3d at 687. "Mitigating factors, on the other hand, are not viewed as elements of the crime but rather as evidence relevant to a defendant's character or record or other circumstances of the offense that might lead a sentencer to decline to impose the death sentence." Id. at 688. Therefore, a state may not require unanimity in finding mitigating [*68] factors because such a requirement "impermissibly limits jurors' consideration of mitigating evidence." Id. (citing McKoy, 494 U.S. at 444). "In fact, as Mills and McKoy hold, any requirement that mitigating factors must be found unanimously is incoherent." Id. In other words, "in order for Eighth Amendment law on mitigating factors to be coherent and capable of judicial administration without serious confusion, a capital jury must understand that . . . a finding with respect to a mitigating factor may be made by one or more members of the jury." Id . (internal citations and quotations omitted).
In light of the case law discussed above, this Court's inquiry in the present case is, "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." Id. (quoting Jones v. United States, 527 U.S. 373, 390, 119 S. Ct. 2090, 144 L. Ed. 2d 370 (1999); Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990)). We think that the answer is "yes." During the mitigation phase, the trial court read the following instructions to the jury:
[T]he [*69] procedure which you must follow in arriving at your verdict in this sentencing hearing is set forth in Section 2929.03 of the Revised Code of the State of Ohio . . . you must determine whether, beyond a reasonable doubt, the aggravating circumstances, which the defendant, Frank G. Spisak, Jr., has been found guilty of committing in the separate counts are sufficient to outweigh the mitigating factors present in this case. If all twelve members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances in each separate count outweighs the mitigating factors, then you must return that finding to the Court. I instruct you, as a matter of law, that if you make such a finding, then you must recommend to the Court that a sentence of death be imposed upon the defendant, Frank G. Spisak, Jr.
A jury recommendation to the Court that the death penalty be imposed is just that, a recommendation. The final decision is placed by law upon the Court.
On the other hand, if after considering all of the relevant evidence raised at trial, the evidence and the testimony received at this hearing and the arguments of counsel, you find that the State failed to prove [*70] beyond a reasonable doubt that the aggravating circumstances which the defendant, Frank G. Spisak, Jr., has been found guilty of committing in the separate counts outweigh the mitigating factors, you will then proceed to determine which of two possible life imprisonment sentences to recommend to the Court .
(J.A. at 3146-47.) These instructions are virtually identical to those given in Davis, which this Court determined are "acquittal-first" jury instructions that failed to instruct the jury "that it need not be unanimous in rejecting the death penalty." Davis, 318 F.3d at 689. The Davis Court found that not only did these instructions reflect a unanimity requirement, but the verdict form itself also reflected one, in that it had a spot for all twelve signatures under a statement professing that the jury found beyond a reasonable doubt that the aggravating factors did not outweigh the mitigating factors. Davis, 318 F.3d at 689.
Similarly, in the present case, the verdict form also reflected a unanimity requirement for a finding that the mitigating factors outweighed the aggravating factors. The trial court told the jury that [*71] in order to impose a sentence of death, all twelve had to sign under the statement on the verdict form stating that "we the jury, in this case, being duly impaneled and sworn, do find beyond a reasonable doubt that the aggravating circumstance . . . was sufficient to outweigh the mitigating factors . . . we the jury recommend that the sentence of death be imposed . . . ." (J.A. at 3149.) The trial court further explained the method for using the verdict forms in the following manner:
There are four separate jury forms for counts five, six and . . . eight. Now, there is also a set of verdict forms, same count numbers, read [sic] as follows:
'We the jury, being duly impaneled and sworn, do find that the aggravating circumstances which the defendant, Frank G. Spisak, Jr., was found guilty of committing are not sufficient to outweigh the mitigating factors present in this case.
We the jury recommend that the defendant Frank G. Spisak be sentenced to life imprisonment with parol eligibility after serving' there is an asterisk for a spot on the verdict form for you to fill in either 20 or 30 years of imprisonment. And again, all twelve of you must sign whatever [*72] verdict it is you arrive at [sic] must be signed in ink.(J.A. at 3149.) The instructions as to how to acquit for death and impose a life sentence did not differ at all from the instructions as to how to impose death. In explaining the forms, the trial court indicated that all twelve signatures were required to impose a sentence of death, and to acquit for death and impose a life sentence. As we stated in Davis, this instruction,combined with the jury verdict form, not only 'could' but by its plain language 'would' lead a reasonable juror to conclude that the only way to get a life verdict is if the jury unanimously finds that the aggravating circumstances do not outweigh the mitigating circumstances, an entirely different instruction from one that clearly informs the jurors that a life verdict can be rendered by a jury that has not first unanimously rejected the death penalty. Further adding to the confusion, the jury was never told, either expressly or impliedly, that individual jurors may consider mitigating factors in the weighing process regardless of the lack of agreement with other jurors as to the presence of that factor.
Davis, 318 F.3d at 689-90. [*73]
In conclusion, we find that the silence on the lack of unanimity required to find mitigating circumstances, the improper "acquittal-first" jury instruction, and the misleading verdict form and instruction as to how to use the verdict form, would have led a jury to apply an unconstitutional unanimity standard at all stages of the deliberative process. See id at 690.

William Coday v. State,2006 Fla. LEXIS 2533 (FL 10/26/2006) Trial court erred in not finding the mitigating factor of "inability to conform his conduct to the requirements of the law" as it "was reasonably established by the greater weight of the evidence and should have been considered by the trial judge as having been established."

Coday argues the trial court erred in failing to find and give any weight to the mitigating factor of lack of ability to conform his conduct to the requirements of the law at the time of the homicide. We begin our discussion of this issue with a review of the basic principles that have evolved over the years on the proper analysis that must be accorded evidence that is offered in mitigation of a possible death sentence. Generally, "the weight assigned to a mitigating circumstance is within the trial court's discretion and subject to the abuse of discretion standard." Blanco v. State, 706 So. 2d 7, 10 (Fla. 1997). However, while the trial court can determine the weight to be given to a particular mitigator, the trial court must find as a mitigating circumstance any proposed factor that is both reasonably established by the greater weight of the evidence and mitigating in nature. See Campbell v. State, 571 So. 2d 415, 419 (Fla. 1990). More particularly, in Campbell we said:
The court must find as a mitigating circumstance each proposed factor that is mitigating in nature and has been reasonably established by the greater [*29] weight of the evidence: "A mitigating circumstance need not be proved beyond a reasonable doubt by the defendant. If you are reasonably convinced that a mitigating circumstance exists, you may consider it as established." Fla. Std. Jury Instr. (Crim.) [7.11 Penalty Proceedings-Capital Cases]. The court must next weigh the aggravating circumstances against the mitigating and, in order to facilitate appellate review, must expressly consider in its written order each established mitigating circumstance. Although the relative weight given each mitigating factor is within the province of the sentencing court, a mitigating factor once found cannot be dismissed as having no weight.
Id. at 419-20 (footnotes omitted). Over the years that followed Campbell, we further defined the parameters of the trial court's discretion in considering mitigating factors. For example, in Nibert v. State, 574 So. 2d 1059, 1062 (Fla. 1990), after citing Campbell with approval, we explained:
Thus, when a reasonable quantum of competent, uncontroverted evidence of a mitigating circumstance is presented, [*30] the trial court must find that the mitigating circumstance has been proved. A trial court may reject a defendant's claim that a mitigating circumstance has been proved, however, provided that the record contains "competent substantial evidence to support the trial court's rejection of these mitigating circumstances." Kight v. State, 512 So. 2d 922, 933 (Fla. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1100, 99 L. Ed. 2d 262 (1988); Cook v. State, 542 So. 2d 964, 971 (Fla. 1989) .
In Nibert this Court found the trial court improperly rejected statutory and nonstatutory mitigating circumstances, including the factor of physical and psychological abuse for many years during the defendant's youth. The trial court rejected the factor because the defendant was twenty-seven years old at the time of the murder and had not lived with his mother since the age of eighteen. This Court said that the fact that the abuse had come to an end did not diminish the fact that the defendant had suffered more than a decade of abuse. We opined that to hold otherwise would mean that a defendant's history of child abuse would never be accepted [*31] as a mitigating factor. Therefore, we concluded that because Nibert had presented a large quantum of uncontroverted mitigating evidence and that there was no competent, substantial evidence in the record refuting the mitigating evidence, the trial court erred in failing to find and weigh a substantial number of statutory and nonstatutory mitigating circumstances. See also Mansfield v. State, 758 So. 2d 636 (Fla. 2000) (citing with approval Campbell and Nibert); Mahn v. State, 714 So. 2d 391, 400-401 (Fla. 1998) (citing with approval Nibert and Kight). Thus, a trial court can only reject uncontroverted mitigating evidence as being unproven if there is competent, substantial evidence to support that rejection.
We have also addressed the trial court's discretion when dealing with expert opinion testimony. In Foster v. State, 679 So. 2d 747, 755 (Fla. 1996), we said that even uncontroverted expert opinion testimony may be rejected if that testimony cannot be squared with the other evidence in the case. Accord Morton v. State, 789 So. 2d 324, 330 (Fla. 2001). Recently, we applied these principles in a situation, [*32] similar to the one that is now before this Court, where the defendant contended that the trial court erred in failing to find and weigh evidence that he suffered from organic brain damage. See Crook v. State, 813 So. 2d 68 (Fla. 2002). During the penalty phase in Crook, evidence was presented by three medical experts that Crooks suffered from brain damage which impaired his ability to control his impulses. The experts also stated that Crook's brain damage was exacerbated by his use of alcohol and drugs at the time of the murder. This brain damage was substantiated by objective testing done by the experts. In reversing the trial court's rejection of this mitigating evidence, we said:
In contrast to Robinson, n3 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 [*33] 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 [v. State], 645 So. 2d [377, 385 (Fla. 1994)]. 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). . . . 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.
Id. at 75-76.Not only have we addressed the issue of when trial courts should consider and find certain mitigating evidence to be established, but we have also addressed the trial court's discretion in the weighing process. While adhering to the basic premise that the weight to be given a mitigating circumstance is addressed to the sound discretion of the trial court, we refined that proposition in Trease v. State, 768 So. 2d 1050 (Fla. 2000), by holding that in some instances a trial court could give no weight to a mitigating circumstance. In Trease, a case involving the question of whether a trial court could give little or no weight to a nonstatutory mitigating circumstance, we receded from Campbell to the extent that Campbell would not have allowed a trial court to give no weight to a mitigating circumstance once that circumstance was established. We further explained that a mitigating circumstance may be given no weight based on the unique facts of a particular case, such as when a defendant demonstrates he was a drug addict twenty years prior to the murder and the prior drug addiction has no real bearing on the present crime. Id. at 1055.
In [*35] summary, we have established a number of broad principles for the trial courts to use in evaluating the mitigating evidence offered by defendants. A trial court must find as a mitigating circumstance each proposed factor that has been established by the greater weight of the evidence and that is truly mitigating in nature. However, a trial court may reject a proposed mitigator if the mitigator is not proven or if there is competent, substantial evidence to support its rejection. Even expert opinion evidence may be rejected if that evidence cannot be reconciled with the other evidence in the case. Finally, even where a mitigating circumstance is found a trial court may give it no weight when that circumstance is not mitigating based on the unique facts of the case.
In the case now before us, the trial court stated that the statutory mitigating circumstance of Coday's inability to conform his conduct to the requirements of the law had not been established. Initially, it appears that the trial court confused the standard for insanity with the mental mitigation in question. The trial court stated that the "testimony of the mental health experts does not convince the Court that the Defendant [*36] is relieved of accountability for his conduct, or otherwise, was not aware of the consequences of his actions upon Gloria Gomez." n4 The trial judge relied on evidence that Coday had conducted himself without incident since his return from Germany and stated that because Coday could conform his conduct for so many years, he must have had the capacity to follow and abide by the law at the time of the homicide.
However, six defense mental health experts testified that Coday was unable to conform his conduct to the requirements of the law at the time of Gomez's murder. The Stated presented no expert testimony in rebuttal. Dr. Allan Goldstein, a clinical and forensic psychologist; Dr. David Shapiro, a professor of psychology and forensic psychologist; Dr. William Vicary, a psychiatrist; Dr. M. Ross Seligson, a licensed psychologist; Dr. Lenore Walker, a clinical and forensic psychologist; and Dr. Martha Jacobson, a clinical and forensic psychologist, testified at the penalty phase or at the Spencer hearing that Coday satisfied this statutory mitigating circumstance. All the doctors testified concerning their visits with Coday and the various psychological tests that were administered. All found Coday to be suffering from some form of severe depression with psychotic features or borderline personality disorder or both.
Dr. Goldstein essentially stated that Coday loses control when he is faced with extreme stress in his personal relationships. His psychosis is triggered when he feels rejected, and Coday felt rejected when the victim in this case told him that she did not love him. At that [*38] point Coday's emotions of resentment and rage overpowered his ability to reason. Dr. Goldstein stated that Coday was either not engaged in thinking or that thoughts were not registering. Dr. Goldstein opined that Coday went into a dissociative state, described as an out-of-body state, where the defendant was aware of what he was doing but could not control it. The doctor further opined that Coday's suicide attempt while in jail also occurred during a psychotic episode brought on when he received divorce papers from his wife.
Dr. Shapiro also stated that Coday viewed the victim's statement that she did not love him as rejection, which brought on active psychosis. Dr. Shapiro opined that Coday was actively psychotic after receiving the divorce papers. In keeping with the other doctors' testimonies, Dr. Vicary stated that Coday gets into intense emotional situations and when they do not work out he has feelings of abandonment. Dr. Seligson testified that Coday's relationships are based on fantasy and when the relationships unravel Coday likewise unravels and deteriorates into a dissociative state. Dr. Seligson further stated that when Coday's relationship with the victim unraveled, his [*39] condition deteriorated on the day of the murder.
Despite finding that Coday was highly intelligent, Dr. Walker found the defendant to be mentally ill. She stated that Coday lived a very contained, constrictive life, and when emotions got too high, he could not control them and deteriorated into a psychotic state. Dr. Walker opined that Coday felt rejected by the victim, and that he equated laughing at him with an incident from his childhood where other children laughed at him and locked him in an unused freezer. Because of the situation with the victim, Coday was unable to contain himself and an explosion was unleashed, with no cognitive ability to contain it. Dr. Walker believed that this was the same situation that occurred when Coday was served with divorce papers. Coday's attempted suicide was the same type of violent reaction, but it was released on himself. Lastly, Dr. Jacobson opined that Coday had a fantasy view of his relationship with the victim. When she said she did not love him, it brought on feelings of abandonment that triggered Coday's disintegration into depression and then psychosis.
As noted above, the State did not offer any expert witnesses to refute this testimony. [*40] The evidence relied upon by the State to rebut the testimony of the defense experts was the testimony of lay witnesses who had interacted with Coday prior to Gomez's murder. The lay witnesses who personally knew Coday testified that from September 12, 1978, when Coday was arrested for the murder of Lisa Hullinger in Germany, until the murder of Gloria Gomez on July 11, 1997, Coday led a lawful existence. These witnesses indicated that Coday had numerous romantic relationships during this time frame and was married twice. The witnesses also said that Coday was well liked and had numerous friends. One of Coday's coworkers testified that he was meticulously punctual, reliable as an employee, and had attended the University of Michigan where he obtained a degree in order to become a librarian. By all accounts of these lay witnesses, Coday was able to conform his conduct to the requirements of the law.
We conclude, under these circumstances, that it was error for the trial court to find that this statutory mitigator had not been established. As we said in Campbell, "The court must find as a mitigating circumstance each proposed factor that is mitigating in nature and has been reasonably [*41] established by the greater weight of the evidence." 571 So. 2d at 419. Six mental health experts testified that Coday was not able to conform his conduct to the requirements of the law at the time of the offense. Their testimony not only indicated that the mitigating circumstance existed but tied that circumstance to the defendant's mental illness and the facts of this case. They essentially said that, while the defendant could normally conform his conduct, he goes into a dissociative state where he is unable to conform his conduct when he is faced with rejection in a personal relationship. The evidence offered by the State to counter this mitigation evidence can be squared with the expert testimonies. The lay witnesses believed Coday could conform his conduct because he had lived for a number of years without incident. They related that Coday had several romantic relationships during this twenty-year period, including two marriages. However, none of these witnesses recited any stressful relationship-based incidents where the defendant was able to cope. The mental health experts clearly related Coday's inability to conform his conduct to situations that occur when he is, [*42] or feels that he is, being rejected in relationships involving women.
The expert testimony from the defense could be rejected only if it did not square with other evidence in the case. While we have given trial judges broad discretion in considering unrebutted expert testimony, we have always required that rejection to have a rational basis. For example, the expert testimony could be rejected because of conflict with other evidence, credibility or impeachment of the witness, or other reasons. However, none of those reasons are present here. Instead, the State relies on evidence we find not in conflict with the defense evidence. Under these circumstances, the mitigating factor of inability to conform his conduct to the requirements of the law was reasonably established by the greater weight of the evidence and should have been considered by the trial judge as having been established.
Because we conclude the trial court erred in finding that this mitigating circumstance had not been established, we vacate the death penalty imposed in this case and remand to the trial judge for reevaluation of the mitigation and the sentence. n5

State v. Donald Ketterer, 2006 Ohio 5283 (Ohio 10/25/2006) Direct appeal denied including on whether mental illness creates a categeorical bar to execution. From the concurrence:

Ketterer is not a sympathetic defendant. He brutally murdered a family friend because he felt that his friend had been disrespectful to him when Ketterer asked to borrow some money. After the [*79] ruthless murder, Ketterer stole whatever he could find and traded the ill-gotten goods for cocaine.
However, there are other facts also vital to understanding this apparently senseless murder. Ketterer is a person with a serious mental illness. His family also has had a long history of mental illness and suicide attempts. Ketterer himself was hospitalized repeatedly and attempted suicide several times. His mental illness was fueled by drug and alcohol abuse. Two psychologists testified that Ketterer had a serious mental illness, known as bipolar disorder, which makes it difficult for him to control impulses normally. Not even the state disputed that he was seriously mentally ill. But the state argued that Ketterer could have controlled his behavior. The three-judge panel accepted the state's position. Ketterer has now been sentenced to death.Ketterer did not meet the standard for being found not guilty by reason of insanity. Under our current law, the evidence supported a finding of guilt. However, we can never truly know whether Ketterer would have committed this senseless crime against a long-time friend had he not been seriously mentally ill. The undisputed [*80] testimony regarding Ketterer's serious mental illness places him in a very different category from persons without a mental illness. One expert clearly testified that Ketterer was not able to control his impulses. The facts of the crime seem to show that Ketterer had the ability to plan and act. But how can we truly judge the effect of this terrible illness?
I believe that the time has come to reexamine whether we, as a society, should administer the death penalty to a person with a serious mental illness.
Although the majority opinion deals mostly with guilt-phase issues, the court does acknowledge that Ketterer suffers from an undisputedly serious mental illness. However, a deeper exploration of the facts yields greater insight on this issue.
The defense presented solid, unrefuted evidence at trial that Ketterer had been afflicted by lifelong mental illness. Dr. Bobbie Hopes, a clinical psychologist testifying for the defense, completed a forensic evaluation of Ketterer's competency. At trial, she testified, "As a child, [Ketterer] was severely physically abused by his father. His two older brothers and his mother were also physically [*81] abused. His father died when Ketterer was 13 years old, and despite years of physical abuse, Ketterer found this death very traumatic. And he started hearing voices, his father's voice, within about a year after his father died, so around age 15 he started hearing his father's voice. Primarily what he would hear would be his father threatening to beat him or telling him to assume the position for a beating."
In preparing for her evaluation, Dr. Hopes reviewed psychiatric records from at least 13 different cities and hospitals where Ketterer had been admitted. He had had at least one hospitalization in each in these facilities and some private hospitalizations. According to Dr. Hopes, Ketterer's history of mental illness dates to 1979, with treatment and hospitalizations in Veterans Administration ("VA") hospitals in at least five states. In addition, his treatment included at least three in-house drug-treatment programs.
Dr. Hopes testified that Ketterer has had different diagnoses throughout his life. For many years, the primary diagnosis was major depressive disorder. More recently, from about 1997 on, the more common diagnosis has been bipolar disorder. [*82] In addition, various reports refer to personality-disorder, antisocial, and borderline-personality traits.
Dr. Hopes testified that Ketterer also has a long history of chemical abuse. His voluminous hospital records refer to a long history of drug and alcohol dependency and "multi-drug abuse," including abuse of marijuana, amphetamines, cocaine, and narcotics. Narcotics abuse followed his 1996 spinal injury.
According to Dr. Hopes, in the months preceding the crimes, Ketterer had deteriorated so much that he attempted suicide after his landlord would not fix the windows immediately. He drank half a bottle of whiskey and took his entire month's supply of Klonopin, an antianxiety drug, and Elavil, an antidepressant. In the opinion of Dr. Hopes, Ketterer was so embarrassed by his relapse that he did not tell his psychiatrist at the VA hospital about his relapse, so he went for a month without his medicine, deteriorated further, began another drinking binge, started using cocaine, and was again mixing Klonopin with alcohol.
In Dr. Hopes's opinion, Ketterer suffers from bipolar disorder, a severe mental disease or defect, with symptoms of both manic [*83] and depressive disorders and features of personality disorders. Dr. Hopes opined that Ketterer's mental illness includes psychotic features, including auditory hallucinations and paranoia.
Dr. Hopes testified that when she interviewed Ketterer, he was experiencing five symptoms of depression: crying, lack of appetite, insomnia, fatigue, and diminished ability to concentrate. He was distracted by his own thoughts and could not concentrate on any one topic. Dr. Hopes testified that it normally takes her two hours to do a competency evaluation, but in Ketterer's case, it took her three hours, and she obtained less information from him than she obtains in two hours during the usual evaluation.
Dr. Hopes noted that the primary characteristics of mania are poor impulse control and impaired judgment. "People with this disorder tend to do things that are inappropriate, unethical and illegal, and things that they wouldn't normally do if they weren't in a manic phase." Moreover, Ketterer's use of alcohol and illicit drugs seriously intensified his mental illness and accelerated his poor judgment and lack of impulse control.
Dr. Hopes also noted that [*84] Ketterer fell into the category of about 20 to 30 percent of people with bipolar disorder who have residual symptoms that never go away. Dr. Hopes testified that there is a genetic component to mental illness and that many of Ketterer's family members suffer from depression and bipolar disorder. Ketterer's brother was diagnosed with and treated for major depressive disorder for many years, and more recently, he has been treated for bipolar disorder. Another brother was hospitalized at a state mental hospital, and a cousin was treated for depression. A cousin and an uncle both committed suicide.
Dr. Jeffrey Smalldon, a respected board-certified forensic psychologist, also interviewed Donald Ketterer and testified for the defense. In addition to his clinical evaluation, Dr. Smalldon administered IQ tests. Ketterer's verbal IQ estimate was 76, his performance IQ estimate was 73, and his full-scale IQ estimate was 72. According to Dr. Smalldon, 72 falls within "the borderline range of IQ. And what that means is that typically IQs 70 and below are associated with diagnosis of mental retardation. * * * So [Ketterer] falls toward the bottom of that borderline range that comes [*85] between mild and mental retardation and low average." Although Dr. Hopes estimated a verbal IQ of 84, Dr. Smalldon noted that Dr. Hopes failed to administer the "vocabulary subtest, which was one of the verbal subtests on which Ketterer obtained his lowest score. Had she administered that subtest, that would have significantly lowered his verbal IQ estimate from 84 to somewhere within the 70s."
Dr. Smalldon counted 13 different psychiatric hospitalizations between 1995 and 2002. Dr. Smalldon testified that Ketterer suffers from a major mental illness: "Certainly in my diagnostic impression, the most severe, the most significant mental illness is bipolar disorder mixed meaning at various times manifesting periods of major depression and other times manifesting in a manic episode or highly elevated, energy and extreme problems in self-regulation and impulse control. Certainly the bipolar mixed with at least fluctuating psychotic symptoms over time is the most significant mental health problem that I have diagnosed him as having."
As for Ketterer's substance-abuse problems, Dr. Smalldon testified that Ketterer's mother told Ketterer that his alcoholic father [*86] had put alcohol in his baby bottle to make him sleep. Ketterer began drinking by choice at around age 14, shortly after his father's death. He continued to drink throughout his adolescence. When he entered the Army at age 19, he began drinking more heavily and using speed more heavily. For over 30 years, he was chronically alcohol dependent and abused a wide variety of substances, such as marijuana, speed, barbiturates, and cocaine.
Dr. Smalldon testified that because of Ketterer's bipolar disorder, Ketterer "lacked substantial capacity at the time or around the time this offense was committed to conform his conduct to the requirements of the law."
The defense testimony regarding Ketterer's severe mental illness was unrefuted. Even the majority acknowledges that no evidence contradicted these findings, and it gave his mental illness weight in mitigation. See R.C. 2929.04(B)(3). However, the majority relied on Dr. Smalldon's description of bipolar disorder as "one of the most treatable of the major mental illnesses," despite Dr. Hopes's conclusion that Ketterer was in the category of persons with bipolar disorder whose recurrent [*87] symptoms never go away.
The issue here is not Ketterer's guilt. The three-judge panel had sufficient evidence for its finding. In light of the evidence presented, the panel could choose to discount the expert's testimony regarding Ketterer's lack of substantial capacity to conform his conduct to the law, even though no professional refuted that testimony. And under our current law, the court's sentence of death is also supported. It is, however, the current law, I believe, that we as a society should reexamine.
Our law requires "a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual." Eddings v. Oklahoma (1982), 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1. In Atkins v. Virginia (2002), 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335, the United States Supreme Court concluded that executing mentally retarded offenders constituted cruel and unusual punishment forbidden by the Eighth Amendment to the United States Constitution. The court determined that "evolving standards of decency" dictated that conclusion. Id., quoting Ford v. Wainwright (1986), 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335. [*88] Atkins identified "'retribution and deterrence of capital crimes by prospective offenders'" as the social purposes served by the death penalty. Id. at 319, 122 S.Ct. 2242, 153 L.Ed.2d 335, quoting Gregg v. Georgia (1976), 428 U.S. 153, 183, 96 S.Ct. 2909, 49 L.Ed.2d 859. Atkins noted that there was a serious question as to whether either justification applied to mentally retarded offenders. Id. at 321, 122 S.Ct. 2242, 153 L.Ed.2d 335. I too question whether either justification applies to severely mentally ill offenders.
Deterrence is of little value as a rationale for executing offenders with severe mental illness when they have diminished impulse control and planning abilities. As for retribution, capital punishment still enjoys wide public support among Americans, but a Gallup Poll conducted in October 2003 found that while almost two thirds of Americans surveyed support the death penalty, 75 percent of those surveyed in 2002 opposed executing the mentally ill. Kevin Drew, Arkansas Prepares to Execute Mentally Ill Inmate,, Jan. 5, 2004, at
[*89] Society's discomfort with executing the severely mentally ill among us is further evidenced by the American Bar Association's formation of a task force in 2003 to consider mental disability and the death penalty. After studying the issue, the task force made recommendations that were adopted by the ABA House of Delegates in August 2006:
"RESOLVED, That the American Bar Association, without taking a position supporting or opposing the death penalty, urges each jurisdiction that imposes capital punishment to implement the following policies and procedures:
  1. Defendants should not be executed or sentenced to death if, at the time of the offense, they had significant limitations in both their intellectual functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia, or a traumatic brain injury.
  2. Defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences, or wrongfulness of their conduct; (b) to exercise [*90] rational judgment in relation to conduct; or (c) to conform their conduct to the requirements of the law." See ABA Report with Recommendation No. 122A, Adopted August 2006, at See, also, Symposium: The Death Penalty and Mental Illness, Recommendations of the American Bar Association Section of Individual Rights & Responsibilities Task Force on Mental Disability and the Death Penalty (2005), 54 Cath.U.L.Rev. 1115.

The National Alliance on Mental Illness ("NAMI") adopted both of these recommendations as part of its public policy platform. Public Policy Platform of NAMI (7th Ed.Rev.) Sections and The American Psychological Association adopted both recommendations, and the American Psychiatric Association adopted the second recommendation. Tabak, Overview of Task Force Proposal on Mental Disability and the Death Penalty (2005), 54 Cath.U.L.Rev. 1123, 1125-1126, fn. 11 and 12. n1
Over the past 30 years, the number of people on death row with mental illness and other disabilities has steadily increased. Although precise statistics are not available, it is estimated that five to ten percent of people on death row have a serious mental illness. National Mental Health Association, Death Penalty & People with Mental Illnesses (2006),
Moreover, Ketterer suffers from co-occurring disorders: a serious mental illness and substance-abuse issues. Research has shown that co-occurring disorders are very common. The NAMI website cites reports published in the Journal of the American Medical Association, finding, "Roughly 50 percent of individuals with severe mental disorders are affected by substance abuse."
Further, NAMI cites two surveys as the best data available on the prevalence of co-occurring disorders: the Epidemiologic Catchment Area ("ECA") Survey, administered between 1980 and 1984, and the National Comorbidity Survey ("NCS"), administered between [*92] 1990 and 1992. Id. "Results of the NCS and the ECA Survey indicate high prevalence rates for co-occurring substance abuse disorders and mental disorders, as well as the increased risk for people with either a substance abuse disorder or mental disorder for developing a co-occurring disorder. For example, the NCS found that:
". 42.7 percent of individuals with a 12-month addictive disorder had at least one 12-month mental disorder.
". 14.7 percent of individuals with a 12-month mental disorder had at least one 12-month addictive disorder." Id.
In addition, "[t]he ECA Survey found that individuals with severe mental disorders were at significant risk for developing a substance use disorder during their lifetime. Specifically:
". 47 percent of individuals with schizophrenia also had a substance abuse disorder (more than four times as likely as the general population).
". 61 percent of individuals with bipolar disorder also had a substance abuse disorder (more than five times as likely as the general population)." (Emphasis added.) Id.
Justice John Paul Stevens, writing for the Supreme Court majority [*93] in Atkins, concluded, "Mentally retarded persons* * * have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan* * *. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability." Atkins, 536 U.S. at 318, 122 S.Ct. 2242, 153 L.Ed.2d 335. There seems to be little distinction between executing offenders with mental retardation and offenders with severe mental illness, as they share many of the same characteristics.
However, mental illness is not as easily quantified as mental retardation. Mental retardation is a fixed condition with more objective symptoms. Mental illness is a much broader category, with wide ranges of diagnoses and periods of decompensation and remission. Treatment options vary widely, including counseling, behavior [*94] modifications, group therapy, and medication. Some treatments and medications are controversial as to effectiveness and side effects. Mental illness as a defense is a difficult issue to quantify in a court of law.
However, we have made enormous medical and scientific advances in both diagnosis and treatment that are now supported by solid research. Therefore, while I personally believe that the time has come for our society to add persons with severe mental illness to the category of those excluded from application of the death penalty, I believe that the line should be drawn by the General Assembly, not by a court. Some would argue that Atkins was the product of an activist court in basing its decision on "evolving standards of decency." Trop v. Dulles (1958), 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630. However, nothing prevents the legislature from examining and using those same evolving standards. In fact, it is the legislature's role to do so. Therefore, I urge our General Assembly to consider legislation setting the criteria for determining when a person with a severe mental illness should be excluded from the penalty of death. Unlike mental [*95] retardation, which can be determined by a number on an IQ test and other basic criteria, mental illnesses vary widely in severity. The General Assembly would be the proper body to examine these variations, take public testimony, hear from experts in the field, and fashion criteria for the judicial system to apply.
"'[L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.'" Furman v. Georgia (1972), 408 U.S. 238, 409, 92 S.Ct. 2726, 33 L.Ed.2d 346, fn. 7, quoting Letter to Samuel Kercheval, July 12, 1816, 15 The Writings of Thomas Jefferson 40-42 (Memorial Ed.1904).
The time has come for our society to reexamine the execution of persons with severe mental illness. Until the General Assembly does so, under our current law, they will continue to be executed. As I am bound to follow the law as it stands today, I reluctantly concur in the affirmance of Ketterer's sentence of death.