BOYETTE (MAURICE) ON H.C.Petitioner’s Petition for Writ of Habeas CorpusCal.October 19, 2000SUPREME COURT FILED ae, COPY Frederick K. Ohlrich Clerk DEPUTY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA INRE MAURICE BOYETTE NateG e a e s ) ) Petitioner, ) ) Related Appeal: $032736 ) (Alameda County Superior ) Court No. 114009B bey Hon. Richard Haugner, Judge) ON HABEAS CORPUS PETITION FOR WRIT OF HABEAS CORPUS LYNNE S. COFFIN State Bar No. 121389 “STATE PUBLIC DEFENDER AUDREY CHAVEZ State Bar No. 168236 Deputy State Public Defender GAIL JOHNSON State Bar No. 200975 Deputy State Public Defender 221 Main St., 10" Floor San Francisco, CA 94105 Telephone (415) 904-5600 Attorneys for Petitioner IN THE SUPREME COURTOF THE STATE OF CALIFORNIA IN RE MAURICE BOYETTE Petitioner, ) ) ) ) ON HABEAS CORPUS ) ) ) No. Related Appeal: S032736 (Alameda County Superior Court No. 114009B Hon. Richard Haugner, Judge) PETITION FOR WRIT OF HABEAS CORPUS LYNNES. COFFIN State Bar No. 121389 STATE PUBLIC DEFENDER AUDREY CHAVEZ State Bar No. 168236 Deputy State Public Defender GAIL JOHNSON State Bar No. 200975 Deputy State Public Defender 221 Main St., 10Floor San Francisco, CA 94105 Telephone (415) 904-5600 Attorneys for Petitioner U If IV VI Vil Vill TABLE OF CONTENTS Page INTRODUCTION 1.00... ccc cece cece cece eseeceeeeseees 1 UNLAWFUL RESTRAINT 2.00... ccc ccc cceeceeeeeeeeeeees 9 STATEMENT OF THE CASE... 00... cece cece cee eeeeeees 10 STATEMENT OF FACTS «0.2.20. 0 00000 ce cece e cece 13 A. GUILT PHASE - PROSECUTION CASE-IN- CHIEF occ. cece cece cece cee ceeeeeeeeveueeenes 13 B. GUILT PHASE - DEFENSE CASE-IN-CHIEF ........: 25 C. GUILT PHASE- PROSECUTION REBUTTAL ........ 33 D. PENALTY PHASE - PROSECUTION CASE- IN-CHIEF 02.00... cc cc cceccceeceeceueeueeuveeees 34 E. PENALTY PHASE - DEFENSE CASE-IN- CHIEF 0.0... cece cece eee cece ceeeeeeeseeneess 38 JURISDICTION «2000... cece cece eee eee e eens Levee eeeees 43 INCORPORATION 0.0.00 ccc cece ceeeceeccecueeeeseeenes 43 ALLEGATIONS APPLICABLE TO EACH AND EVERY CLAIM oo... cece cece cece eeeebees44 PETITIONERIS ENTITLED TO DISCOVERY ...........-. AT IX CLAIMS FOR RELIEF A. TABLE OF CONTENTS (CONT’D) PETITIONER MUST RECEIVE A NEW TRIAL BECAUSE JUROR BIAS AND MISCONDUCT FATALLY INFECTED PETITIONER’S CONVICTIONS AND DEATH SENTENCE .......... 00.0000 ee eee PETITIONER’S TRIAL COUNSEL HAD AN ACTUAL CONFLICT OF INTEREST AND PETITIONER WAS PREJUDICED ............ TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE GUILT AND SPECIAL CIRCUMSTANCE PHASES OF PETITIONER’S TRIAL .................0.-. PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE PENALTY PHASEOFHIS CAPITAL TRIAL ... 2... eeeee THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT AT THE PENALTY PHASE.............. 000.00 00005 PETITIONER’S STATEMENT TO THE POLICE WAS INVOLUNTARY AND ITS ADMISSION VIOLATEDHIS CONSTITUTIONAL RIGHTS................ il Lene 58 Lene 58 Lees 112 bees 143 Levee 173 Leas 408 bees 459 TABLE OF CONTENTS (CONT’D) PETITIONER’S DEATH SENTENCE AND CONFINEMENT ARE UNLAWFUL BECAUSE PENALTY PHASE INSTRUCTIONS ARE UNCONSTITUTIONALLY VAGUE AND INCAPABLE OF BEING UNDERSTOOD BY JURORS 2...eeeeee EXECUTION OF PETITIONER WOULD VIOLATE HIS RIGHT TO DUE PROCESS AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT BECAUSEHIS SENTENCE WAS BASED ON INACCURATE AND UNRELIABLE EVIDENCE AND IS A DISPROPORTIONATE PUNISHMENT.......... PETITIONER’S CONVICTIONS AND DEATH SENTENCE MUST BE VACATED BECAUSE OF THE CUMULATIVE EFFECT OF ALL THE ERRORS AND CONSTITUTIONAL VIOLATIONS SHOWN IN THIS PETITION AND THE AUTOMATIC APPEAL 2...eeeae EXECUTION FOLLOWING LENGTHY CONFINEMENT UNDER SENTENCE OF DEATH WOULD CONSTITUTE CRUEL AND UNUSUAL PUNISHMENTIN VIOLATION OF PETITIONER’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS AND INTERNATIONAL LAW ........ ili .... 480 ... 490 .. 2. 495 .... 900 TABLE OF CONTENTS (CONT’D) Page K. PETITIONER CANNOT BE LAWFULLY EXECUTED BECAUSE THE METHOD OF EXECUTIONIN CALIFORNIA IS FORBIDDEN BY STATE, FEDERAL, AND INTERNATIONAL LAW ................02-000 0 ee 507 L. PETITIONER CANNOT LAWFULLY BE EXECUTED BECAUSE HIS DEATH SENTENCE VIOLATES INTERNATIONAL LAW 2.eeeeee cece ee eee eee nee 521 PRAYER FOR RELIEF ..... 0.0ee530 VERIFICATION 2.0...eeeeeee 533 iv S A I D M E W N T 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25, 26. 27. 28. 29. Maurice Boyette: Maurice Boyette: Maurice Boyette: Maurice Boyette: Maurice Boyette: Maurice Boyette: Maurice Boyette: Maurice Boyette: Maurice Boyette: Maurice Boyette: Maurice Boyette: Maurice Boyette: Maurice Boyette: Maurice Boyette: Maurice Boyette: Maurice Boyette: Maurice Boyette: Maurice Boyette: Table of Exhibits Volume 1 Birth Certificate California Youth Authority Certificate ofNo Records East Campus School Records Emiliano Zapata Street Academy School Records E. Shands Adult School Records Alta Bates Hospital Medical Records Children’s Hospital Medical Records Highland Hospital Medical Records Prison Health Service Medical Records IAS Records, Social Services Social Security Check Patient File from Dr. William Spivey Volume2 Highland Hospital Psychiatric Evaluation George Barrett Psychiatric Report, 4011.6 evaluation Alameda County Probation Conditional Release of Minor Alameda County Criminal Case # 106150 3/25/91 and 4/8/91 RT’s re: Alameda County Criminal Case # 106150 Santa Rita Jail Records Volume 3 Will C. “Dicky” Boyette: Vital Records Will C. “Dicky” Boyette: School Records Will C. “Dicky” Boyette: Alameda County Superior Court Criminal Case #65361 Will C. “Dicky” Boyette: Alameda County Superior Court Civil Case # 524374-9 Will C. “Dicky” Boyette: Alameda County Superior Court Civil Case # 600222-6 Will C. “Dicky” Boyette: Army Personnel Records Will C. Will C. Will C. “Dicky” Boyette: “Dicky” Boyette: “Dicky” Boyette: Navy Personnel Records Highland Hospital Medical Records Kaiser Hospital Medical Records Volume 4 Marcia Surrell: Vital Records Marcia Surrell: School Records 30. Marcia Surrell: 5150 Evaluation at Highland Hospital 31. Marcia Surrell: Social Security Income Records 32. Marcia Surrell: Hayward Municipal Court Case # 258371 33. Marcia Surrell: Alameda Municipal Court Case # 57233 34. Marcia Surrell: Oakland Municipal Court Arrests/Violations 35. Marcia Surrell: Alta Bates Hospital Medical Records 36. Marcia Surrell: Fairmont Hospital Medical Records Volume I Volume 5 36 (continued). Marcia Surrell: Fairmont Hospital Medical Records Volume I Volume 6 37. Marcia Surrell: Fairmont Hospital Medical Records VolumeII Volume 7 38. Marcia Surrell: Fairmont Hospital Medical Records VolumeIII Volume 8 39. Marcia Surrell: Fairmont Hospital Medical Records Volume IV Volume9 AQ. Marcia Surrell: Highland Hospital Medical Records Volume 10 Exhibit 40 (continued). Marcia Surrell: Highland Hospital Medical Records Volume 11 Exhibit 40 (continued). Marcia Surrell: Highland Hospital Medical Records Volume 12 Exhibit 40 (continued). Marcia Surrell: Highland Hospital Medical Records Volume 13 Exhibit 40 (continued). Marcia Surrell: Highland Hospital Medical Records vi Exhibit 40 (continued). Volume 14 Marcia Surrell: Highland Hospital Medical Records Volume 15 Marcia Surrell: Highland Hospital Medical Records Volume 16 Vital Records Richmond Union High School Records Social Security Administration Earnings Records Alameda County Social Service Records Dr. Spivey Medical Records Alameda County Civil Case # 524659-9 Alta Bates Hospital Medical Records Kaiser Hospital Medical Records Volume 17 Merritt Hospital Medical Records Dr. Wade Sherwood Medical Records Volume 18 Fairmont Hospital Medical Records Volume19 Declaration of George Barrett, M.S. Exhibit 40 (continued). 4]. Irma Surrell Boyette: 42. IrmaSurrell Boyette: 43. IrmaSurrell Boyette: 44. Irma Surrell Boyette: 45. Irma Surrell Boyette: 46. Irma Surrell Boyette: 47. Irma Surrell Boyette: 48. Irma Surrell Boyette: 49. Irma Surrell Boyette: 50. Irma Surrell Boyette: 51. Irma Surrell Boyette: 52. Declaration of Ronald Adams 53. Declaration of Pervies Lee Ary 54, Declaration of Bill Ashley 55. 56. Declaration of Monica Boyette 57. Declaration of Cynthia Byrd 58. Declaration of Glen Campbell 59. Declaration of Walter Cannady 60. Declaration of Vivian Coit 61. Declaration of Vivian Copes 62. Declaration of John Costain 63. Declaration of Marilyn Davis 64. Declaration of Anita Dennis Vii 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79, 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99 100. 101. 102. 103. 104. 105. 106. 107. Declaration of August Dennis Declaration of Eva Mae Dennis Declaration of Jeanette Deran Declaration of Yvonne Boyette Flournoy Declaration of Shirley Frazier Declaration of Julie R. Graff (now McLaren) Declaration of Craig Haney, Ph.D. Declaration of Beverly Harris Declaration of Imelda Harris Declaration of Jason Harris Declaration of Robert Harris Declaration of Tamika Harris Declaration of Bettye Jackson Declaration of Geneva Jacobs Declaration of Vivian Jefferson, Ed. D. Declaration of Antoine Johnson Declaration of Edward Johnson Declaration of Gail Johnson Declaration of Philip T. Karantzalis, 6-1-99 Declaration of Philip T. Karantzalis, 10-9-00 Declaration of Richard Leo Declaration of Cynthia Lewis Declaration of Becky R. Mann Declaration of Cela Maxwell Declaration of Gregory McClain Declaration of Beverly M. Miller Declaration of Susan Mitgang Declaration of Chuck Morton, M.Crim. Declaration of Larry Murphy Declaration of Samuel Murphy Declaration of Marland Orgain Declaration of Eloyce Packer Declaration of Thelma Parker Declaration of Mei-Ling Pastor Declaration of Roderick Pettis, M.D. Declaration of Stephen Pittel, Ph.D. Declaration of Ernest Posey Declaration of Christine Rennie Declaration of Gary Rivlin Declaration of Eldora Robinson Declaration of Fred Rosenthal, M.D. Declaration of Karen Salcedo Declaration of Susan Sawyer Vill 108. 109. 110. 111. 112. 113. 114. 115. 116, 117. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. Declaration of Max Schireson Declaration of Wade Sherwood, M.D. Declaration of Marva Smith Declaration of William Spivey, Ph.D. Declaration of Alvon Surrell Declaration of Celeste Surrell Declaration of Eugene Surrell Declaration of Marlon Surrell Declaration of Michell Surrell Declaration of Regina Smith Surrell Declaration of Jake Sussman Declaration of John Tallman Declaration of Diane Talsky Declaration of Helen Thomas Declaration of Dale Watson, PH.D. Declaration of James Webb Empty Declaration of Doron Weinberg Declaration of Johnnie Wright, Jr. Declaration of Daphne Yeldell Volume 20 Charles “Sonny” Hill: Alameda County Criminal Case # 66986 Charles “Sonny” Hill: Alameda County Criminal Case # 65796 Charles “Sonny” Hill: Alameda County Criminal Case # 78608 Charles “Sonny” Hill: Alameda County Criminal Case # 76019 Charles “Sonny” Hill: Alameda County Criminal Case # 82336 Charles “Sonny” Hill: Alameda County Criminal Case # 98044 Charles “Sonny” Hill: Alameda County Criminal Case # 111479 EugeneA.Surrell: Eugene A.Surrell: Eugene A. Surrell: Eugene A.Surrell: Eugene A. Surrell: EugeneA. Surrell: Eugene A.Surrell: Eugene A. Surrell: Eugene A. Surrell: Eugene A.Surrell: Eugene A.Surrell: Vital Records Children’s Birth Certificates Social Security Records Alameda County Criminal Case # 28876 Alameda County Criminal Case # 73298 Alameda County Criminal Case # 70152 Alameda County Civil Case # 524659-9 Alameda County Civil Case # 524238-4 Alameda County Civil Case # 706517 U.S. Bankruptcy Court, Northern District CA Case # 9247296 Contra Costa County Civil Case # F97-03638 ix 146. 147. 148, 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161. 162. 163. 164. 165. 166. 167. 168. 169. 170. 171. 172. 173. 174. 175. 176. 177. Eugene A.Surrell: Eugene A.Surrell: Eugene A.Surrell: Eugene A. Surrell: Eugene A.Surrell: Eugene A. Surrell: Eugene A.Surrell: Celeste E. Surrell: Celeste E. Surrell: Celeste E. Surrell: Celeste E. Surrell: Celeste E. Surrell: Celeste E. Surrell: Celeste E. Surrell: Volume 21 Kaiser Oakland Hospital Medical Records Highland Hospital Medical Records Summit-Merritt-Providence Hospital Medical Records Contra Costa County Detention Medical Records V.A. Medical Records California Department of Corrections Records U.S. Military Personnel Records Vital Records Alameda County Criminal Case # 67106 Alameda County Criminal Case # 63825 Alameda County Criminal Case # 62026A Kaiser Permanente Medical Records Richmond Health Center Medical Records Oakland Unified School District Records Volume 22 Michael E. Surrell: Birth Certificate Michael E. Surrell: Alameda County Criminal Case # 103329 Michael E. Surrell: Alameda County Criminal Case # 112630 Michael E. Surrell: Alameda County Civil Case # 440158 Michael E. Surrell: Alameda County Civil Case # 505700-1 Michael E. Surrell: Alameda County Civil Case # 760216 MichaelE. Surrell: Highland Hospital Medical Records Michael E. Surrell: V.A. Medical Records Michael E. Surrell: Alta Bates Hospital Medical Records Volume 23 Michael E. Surrell: Alameda County Jail Medical Records Michael E. Surrell: U.S. Military Personnel Records Michael E. Surrell: California Department of Corrections Records Michael E. Surrell: Alameda County Jail Records Michael E. Surrell: Peralta Community College Records Michael E. Surrell: Oakland Unified School District Records Volume 24 Van Otis Surrell: Alameda County Criminal Case # 33373 Van Otis Surrell: Alameda County Criminal Case # 34847 Van Otis Surrell: Alameda County Criminal Case # 106846 178. 179. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 190. 19]. 192. 193. 194. 195. 196. 197. 198. 199. 200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 210. Van Otis Surrell: Alameda County Criminal Case # 127753 Van Otis Surrell: Alameda County Civil Case # 640014-9 Van Otis Surrell: Alameda County Civil Case # 654594-3 Van Otis Surrell: Alameda County Civil Case # 661877-5 Van Otis Surrell: Alameda County Civil Case # 788296-2 Van Otis Surrell: California Department of Corrections Records Marlon Surrell: Vital Records Marlon Surrell: Alameda County Criminal Case # 103258 Marlon Surrell: Hayward Municipal Court Case # 277756 Marlon Surrell: Richmond Health Center Medical Records Marlon Surrell: Alameda County Jail Medical Records Marlon Surrell: Alameda County Jail Records Alvon S. Surrell: Birth Certificate AlvonS. Surrell: Alameda County Criminal Case # 107131 AlvonS. Surrell: Alameda County Criminal Case # 107547 AlvonS.Surrell: Alameda County Criminal Case # H18342 AlvonS. Surrell: Alameda County Civil Case # 678137-6 Alton E. Surrell: Birth Certificate Alton E. Surrell: Alameda County Criminal Case # 104393 Volume 25 Alton E. Surrell: California Department of Corrections Records Alton E. Surrell: Alameda County Civil Case # 694067-2 CharmaineE.Surrell: Vital Records Charmaine E. Surrell: Oakland Unified School District Records CharmaineE. Surrell: Highland Hospital Medical Records Marvin “Chicago” Trice: Alameda County Criminal Case # 104585 Alameda County Recorder’s Office: 1130 East 28" St., Oakland & Irma’s Liquor Store Records Iola Boyette: Death Certificate Iola Boyette: Alameda County Civil Case # 191673 Volume 26 Will C. Boyette (I): Vital Records Will C. Boyette (I): U.S. Military Records Will C. Boyette (I): V.A. Medical Records Will C. Boyette (I): Alta Bates Hospital Medical Records Volume 27 Vivian (Boyette) Ellis: Death Record xi 211. 212. 213. 214. 215. 216. 217. 218. 219. 220. 221. 222. 223. 224. 225. 226. 227. 228. 229. 230. 231. 232. 233. 234. 235. 236. 237, 238, 239. 240. 241. 242. 243. 244. 245. 246. 247. 248. 249. 250. Zephyr (Boyette) Murphy: Vital Records Yvonne Boyette: Vital Records Nathan L. Boyette: Death Certificate Nathan L. Boyette, Sr.: Alameda County Civil Case # 786610-6 Betty L. (Haley) Hardin: Death Certificate Betty L. (Haley) Hardin: Alameda County Criminal Case # 118683 Betty L. (Haley) Hardin: Alameda County Criminal Case # 79146 Betty L. (Haley) Hardin: Alameda County Criminal Case # 118315 Betty L. (Haley) Hardin: Alameda County Civil Case # 585343-0 Clark Jacobs: Death Certificate Geneva Jacobs: Family Tree Information Geneva Jacobs: Supplemental Security Income Records Antoine L. Surrell: Santa Clara County Criminal Case # 186732 David E. Surrell: Alameda County Criminal Case # 380871 David E. Surrell: Alameda County Criminal Case # H-16952 David Surrell: Alameda County Criminal Case # 118525 David Surrell: Alameda County Criminal Case # 108834 EugeneA.Surrell, Jr.: Birth Certificate Eugene A.Surrell, Jr.: Alameda County Civil Case # 661887-2 Brie (Boyette) Richardson: Birth Certificate NyashaBoyette: Birth Certificate Paris Robinson: Death Certificate Gary L. Carter: CDC Information Gary L. Carter: Alameda County Superior Court Criminal Case #94547 Gary L. Carter: Alameda County Superior Court Criminal Case #76182 Gary L. Carter: Alameda County Superior Court Criminal Case # 100489 Gary L. Carter: Alameda County Superior Court Criminal Case # 89340 Volume 28 1993 Alameda County Jury Summons Pervies L. Ary, Sr.: Contra Costa County Criminal Case # 64-8809 Pervies L. Ary, Sr.: Los Angeles County Criminal Case # A 280433 Pervies L. Ary, Sr.: Pomona Judicial District Criminal Case #M107477 Pervies L. Ary: Merced County Criminal Case # MM88219 Pervies Ary, Jr.: Contra Costa County Criminal Case # 86-31857 Pervies L. Ary, Jr.: Contra Costa County Criminal Case # 86-32871 Pervies L. Ary, Jr.: Contra Costa County Criminal Case # 87-34552 Pervies L. Ary, Jr.: Contra Costa County Criminal Case # 89-014752 Pervies L. Ary, Jr.: Contra Costa County Criminal Case # 90-002221 Pervies L. Ary, Jr.: Contra Costa County Case # D 92-05348 Pervies L. Ary, Il: Alameda County Juvenile Case # 155701 Pervies L. Ary, II: Los Angeles County Criminal Case # 93-M01949 Xil 251. 252. 253. 254. 255. 256. 257. 258. 259. 260. 261. 262. 263. 264. 265. 266. 267. 268. 269. 270. 271. 272. 273. Reviews of “American Me” Richard E. Hove: Calendar of His Absences from Maurice Boyette’s Trial Richard E. Hove: U.S. Northern District Court Criminal Case # CR 92-0234 Richard E. Hove: Financial Affidavit Richard E. Hove: California State Bar Records Oakland Tribune Article re: Richard E. Hove Richard E. Hove: California State Bar Professional Address History C. Don Clay: California State Bar Professional Address History William H. Dubois: California State Bar Professional Address History Alameda County Auditor’s Office 987.9 File 2/18/93 Request for Funds Pursuant to Section 987 Walter J. Cannady: Trial Counsel Correspondence Volume 29 Drive-By by Gary Rivlin Maurice Boyette: Statements to Oakland Police Alameda County Coroner’s Bureau Autopsy Reports Oakland Tribune Articles re: People v. Maurice Boyette Antoine Johnson: Parole Consideration Hearing California Execution Procedures: Lethal Injection Executive Order No. 13107, “Implementation of Human Rights Treaties” Declaration of Kim Marie Thorburn, M.D., F.A.C.P. Declaration of John Davis Palmer, M.D., PH.D. Affidavit of Michael L. Radelet Volume 30 “American Me” Xl TABLE OF AUTHORITIES FEDERAL CASES Ake v. Oklahoma, 470 U.S. 68 (1985) testesseecaceseceteeeetseeeaeerenteas 492 Alcorta v. Texas, 355 U.S. 28 (1950) wo. ecccceessccsssseeeessseeesssees 433-434 Amirsault v. Fair, 968 F.2d 1404 (1st Cir. 1992) occceeseseeeseeeeeees 105 Arizona v. Fulminante, 499 U.S. 279 (1991) v..cccecssccccessssesseeceeeeessees 102, 477 Arizona v. Youngblood, 488 U.S. 51 (1988) o..ceeceeceeceeeeteeeeeeeeeeeseeneeseees 479 Barclay v. Florida, 463 U.S. 969 (1983) .oocccccesssccssseeesseessseessseeeseeeesees 499 Batson v. Kentucky, 476 U.S. 79 (1986) w..cccccsccccssccsseessssesseeeeeneecseeeneees 164 Beck v. Alabama, 447 U.S. 625 (1980) oo. ceeceeeenteeteseneeneeteeeeenteees 431, 484 Berger v. United States, 295 U.S. 78 (1935) voeceeescecssssecnecteeeeeteeseeeeeeeens 410 Blackburn v. Alabama, 361 U.S. 199 (1960) ......cccecccccssseseeceeeesesneeeterenes 473 ~ Bowsherv. Synar, 478 U.S. 714 (1986) ccccecsssscsessscessseseteneeeeeeeteees 525, 529 Bracy v. Gramley, 520 U.S. 399 (1997) ieeececceecscceceeeseeeeteeaeeseeeeseeteaeens 110 Brady v. Maryland, 373 U.S. 83 (1963) woeceeeeeeeesteeteeeeee 410, 434, 458, 478 Brown v. Vasquez, 952 F.2d 1164 (9th Cir. 1992) oo. cceeeeeeeeeeeseeeeeeeees 54 Calderon v. United States District Court (Nicolaus) 98 F.3d 1102 (Oth Cir, 1996) . oeccecceeesccsresnreeesereeseeseeseeeeeaesseeeseeesseseeseseneseneesneeeseees 54, 57 Caldwell v. Mississippi, 472 U.S. 320 (1985) ....cececeeeseesteeeteeteees 443, 493 California First Amendment Coalition v. Calderon, 138 F.3d 1298 (Oth Cir, 1998) occ cecceccceeecsceseceeneeeaceseeeseseaeeseeceeeeseseseeeceeeaeseneesereseeeeenes 519 California v. Trombetta, 467 U.S. 479 (1984) oo. ceeeccecceeeeteeetseeerteeeneatennes 479 XIV Cannon v. Lockhart, 850 F.2d 437 (8th Cir, 1988) .....cccccccceeeseereeeteees 105 Caro v. Calderon, 165 F.3d 1223 (9th Cir. 1999) oooecceeeteeseeettees 144 Chambers v. Florida, 309 U.S. 227 (1940) w...ccccccscccesscceseesseeessseesseeeenes 473 Chessmany. Teets, 354 U.S. 156 (1957) usssstettetnestteneee beeeeaees 501 Clark v. United States, 289 U.S. 11933) ciccececesscsseesseceeteceeestens 100, 110 Clinton v. City ofNew York, 524 U.S. 417 (1998)... 525, 528, 529 Cole v. Arkansas, 333 U.S. 196 (1948) woceccccccccsscccssscceeessnseeesteesseeeees 433 Colorado v. Connelly, 479 U.S. 157 (1986) .oeeccccccscceeceeesseeessterseeeeeees 473 Cuyler v. Sullivan, 446 U.S. 348 (1980) cee cccccseceeseeseeeeenreeesetersetenees 112 Darden v. Wainwright, 477 U.S. 168 (1986) oo. cecccessesesseceserseeteeeees passim Derrick v. Peterson, 924 F.2d 813 (9th Cir. 1990) oo.eeeeeeeees 474-475 Donnelly v. DeChristophoro, 416 U.S. 637 (1974) eee 431, 433, 447 Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) oeeeeeeeeeeee passim Eddings v. Oklahoma, 455 U.S. 104 (1982) oceeececeeessseeeeeeenereeeentees 492 Fierro v. Gomez, 865 F.Supp. 1387 (N.D. Cal. 1994) ooo.eeeeteeees 514 Furman v. Georgia, 408 U.S. 238 (1972) ooeeeeeeseereenereeneeeeeeseeneteneees 486 Gardnerv. Florida, 430 U.S. 349 (1977) wo. cccccccccccssssccceecceessteseeses 491, 493 Godinez v. Moran, 509 U.S. 389 (1993) ceececcccssscseesetsesecseceseesessssenenens 474 Gregg v. Georgia, 428 U.S. 153 (1976) cee eceeseeeeteeseeteeeeeseeseeeeeesnees 512 Griffin v. California, 380 U.S. 609 (1965) ooo ceeceeseeeeeeeereeeteseeeeesees 448 Harris v. Wood, 64 F.3d 1432 (9th Cir. 1995) ooo. ecceeeeceeeeeeeeeeereteeetes 497 XV Hendricks v. Vasquez, 864 F.Supp. 929 (N.D. Cal. 1994) woes 145 Hicks v. Oklahoma, 447 U.S. 343 (1980) v.ccccccescccsesssccsssecceeeesseesseeees passim Hughes v. Borg, 898 F.2d 695 (9th Cir. 1990) oo..ccccceccceccseesseesseeeneeeeees 109 Hutto v. Ross, 429 U.S. 28 (1976) wiccccccccccccccccssccsssccesssssccccsseeeessseesseaeeens 473 INS v. Chadha, 462 U.S. 919 (1983) wo.ccceccecccsecsccsecsseeesescseeeteeeees 525, 529 Imbler v. Pachtman, 424 U.S. 409 (1976) ....cccccccccscccsseccessteeesceeesseesserees 479 Irvin v. Dowd, 366 U.S. 717 (1961) wo..ceececcsscccessccessccesssssdecessseseesaes 102, 109 JE.B. y. Alabama ex rel. T.B., 511 U.S. 127 (1994) cecesees 164 Jackson v. Denno, 378 U.S. 368 (1964) ciccccccesesessessscccssesesseeseseresseseeeees 474 Johnson v. Mississippi, 486 U.S. 578 (1988) oo. 431, 446, 451, 493 Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992) wovececceccsssesssceeeeeeeeneeeens 53, 57 Kenley v. Armontrout, 937 F.2d 1298 (1991) woe eecesseseseceneeeteceerenereeees 145 Lackey v. Texas, 514 U.S. 1045 (1995) oo. cccccccccscsessneceseneeeseeeeeseeeeeeeenes 502 Lawson v. Borg, 60 F.3d 608 (9th Cir. 1995) wc cceccssecceeeeeeeeeeeeneeeeeeens 108 Lego v. Twomey, 404 U.S. 477 (1972) sescccssssssssssecsssetsscesersecssseeseeevecsseeee 474 Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992) ooo ceesecseeseteeeterenereees 497 McCleskey v. Zant, 499 U.S. 467 (1991) woeeececcccceeeseeeseesneesteerseesseeenneees 55 McDonough Power Equipment v. Greenwood, A64 U.S. 548 (1984)... oececcececcneeeeneeteesereeseceeesseessessaeseesseesseeseereners 102, 105 McDowell v. Calderon, 130 F.3d 833 (9th Cir. 1997) .oocceecscceeeeeeeeteees 482 McKenzie v. Day, 57 F.3d 1461 (9th Cir. 1995) woeeeeeeeereeeee 502, 519 Xvi Miller v. Lockhart, 65 F.3d 676 (8th Cir. 1995) eeeeeeeseteeneeeeeeeeees 448 Money v. Holahan, 297 U.S. 103 (1935) veccccccccssecesscceseessecsesereesseeseeesees 433 Napuev. Illinois, 360 U.S. 264 (1959) wcccceccccssecssscesseeeeseens 410, 434, 459 Oregon v. Elstad, 470 U.S. 298 (1985) voccccccccccscccssccsseesseeseenseessseeessees 473 Penry v. Lynaugh, 442 U.S. 302 (1989) wee 433, 444, 447, 451, 457 Pope v. Man-Data, Inc., 209 F.3d 1161 (9th Cir. 2000) wou.eeeeeeees 102 Powers v. Ohio, 499 U.S. 400 (1991) ccecccccscsssssecssssesssssseesessssseesesssseeee 164 Remmerv. United States, 347 U.S. 227 (1954) wcceccccccessccessesteessseessseneees 110 Richmondv. Lewis, 948 F.2d 1473 (9th Cir. 1990) ooo... eeeceseeereeteeteees 504 Rochin v. California, 342 U.S. 165 (1952) eccecccccssccssseeeseeeteesseseeteeeeees 459 Sanders v. Ratelle, 21 F.3d 1446 (9th Cir. 1994) oooeeeseeeees 140, 144 Schneckloth v. Bustamonte, 412 U.S. 218 (1973) voeccccccceseeeteees 474, 475 Smith v. Phillips, 455 U.S. 209 (1982) ooeccceccccscceceessseeseeeseesseeeneeeeesaeensees 101 Stein v. New York, 346 U.S. 156 (1953) w.ecccccccsccccccccsseeeeseesteeeeesseaeeeneees 475 Strickland v. Washington, 466 U.S. 668 (1984) oo... eeeeeseeeteseeneeeees passim Taylor v. Kentucky, 436 U.S. 478 (1978) wiceccccccccecsssseesssseeeeeeesenseeesneeees 497 The Paquete Habana, 175 U.S. 677 (1900) oo. ceeecceeeteeneeeeeetteteeeeaes 522, 528 Thomas v. Goldsmith, 979 F.2d 746 (9th Cir. 1992) woe eeeesceeeseeeeees 479 Tinsley v. Borg, 895 F.2d 520 (Oth Cir. 1990) oo. eceeseeseeeestecteeneeeees 105 Tuilaepa v. California, 512 U.S. 967 (1994) woecccsecesseestteeeesneeeeeeees 486 Tumey v. Ohio, 273 U.S. 510 (1927) ooeceeeeceeteeteesustussssssesssssssececseee 102 XVil Turner v. Duncan, 158 F.3d 449 (9th Cir, 1998) ooo cccesecsseceseesseeseeeeee 144 Ungar v. Sarafile, 376 U.S. 575 (1964) voecccccccccescecssccessssesseeessesesseeessecsees 431 United States v. Allsup, 566 F.2d 68 (9th Cir. 1977) woes 103, 105 United States v. Bagley, 473 U.S. 667 (1985) woccecceseccesseseeeseerseees 478, 479 United States v. Cronic, 466 U.S. 648 (1984) ooo cceseessseecssesesseesseeseee 431 United States v. Eubanks, 591 F.2d 513 (9th Cir. 1979) eceeeeeees 105 United States v. Frederick, 78 F.3d 1370 (9th Cir. 1988) w..c.cceeeeeeeeees 497 United States v. Ganon, 470 U.S. 522 (1985) ooo ecccccccesseesssseeeseneeeeees .. 129 United States v. Green, 648 F.2d 587 (9th Cir. 1981) occeeeeeeseeereeeees 497 United States v. Hendrix, 549 F.2d 1225 (9th Cir. 1977) ....eeeeeeeeeeeeeees 103 United States v. Miskinis, 966 F.2d 1263 (9th Cir. 1988) oo...eee 140 United States v. Parker, 997 F.2d 219 (6th Cir. 1993) settestnanste 499 United States v. Sepulveda, 15 F.3d 1161 (ist Cir. 1993) veers 497 United States v. Tory, 52 F.3d 207 (9th Cir. 1995) ooo ccessseeeceeeneeeeee 499 United States v. Wallace, 848 F.2d 1464 (9th Cir. 1988) woccccccceseeeeeee 497 Wade v. Terhune, 202 F.3d 1190 (9th Cir. 2000) 0... cece eeeeeneeeteeteenees 164 Walker v. Engle, 703 F.2d 903 (6th Cir. 1983) ....ccccccceseeseeeseceeeenreeners 500 Weemsv. United States, 217 U.S. 349 (1910) ooccccceccceesccesseeseeeteeeeeenees 520 White v. Ragen, 324 U.S. 760 (1944) woececcceccescesssesseseseseeeeeeeeeeteereeeeneeens 57 Williams v. Taylor,_ U.S. ___, 120 S.Ct. 1479, [146 L.Ed.2d 435] (2000) ooo.eee ecscessecessecesseeeceeesseecssessseeeesaeecseees 53,57 XViil Woodson v. North Carolina, 428 U.S. 280 (1976).......... 457, 492, 493, 494 Zant v. Stephens, 462 U.S. 862 (1983) oe ceeseeeeeseeeserseeeenteeeeeeeees seveneeees 446 Zerka v. Green, 49 F.3d 118 (6th Cir, 1995) ooo. eeeeeseccceeetetenereeeeeeenaees 105 STATE CASES Dincau v. Tamayose, 131 Cal.App.3d 780 (1982) wo.eeeeeeeeeeeeees 428 In re Brown, 17 Cal.4th 873 (1998) ooo cccccccsssscccssssseseessseeesseeeseeeeneeeeas 479 In re Carpenter, 9 Cal.4th 634 (1995) ooeeeeeeceseeeeeeenrees 107, 108, 109 Inre Clark, 5 Cal.4th 750 (1993) wo.ccccccsccsscccsssecesseeccseeecseseecenaaeeeteeeereaes 55 Inre Gay, 19 Cal.4th 771 (1998) wove caceceseeteeeressneeteesteeaes 142, 478, 497 Inre Hitchings, 6 Cal.4th 97 (1993) oeeee 98, 99, 100, 109, 110 In re Jones, 13 Cal.4th 552 (1996) o..eececeeeeseeecceneeteceresseeeeneeereteeetereeneees 497 In re Perez, 65 Cal.2d 224 (1966) 0... cceeceeeeeeseeeseeereeeeneetereeeeeenscnseeseeey 491 Inre Robbins, 18 Cal.4th 770 (1998) ooo cccsceccsssseeeeeseeeeeeeeeesnneeeeeteaas 55 Inre Sassounian, 9 Cal.4th 535 (1995) oe eeeeeeeecceseecesenceeeeetteteeeneeeeeneees 479 Inre Smith, 3 Cal.3d 192 (1970) wn. eeccceceesseeeeeeteteeetseseseeceeseeeererersseneey 501 People v. Anderson, 52 Cal.3d 453 (1990) oo cciececcesscsecrereaeeeeeeenens 452 People v. Arias, 13 Cal4th 92 (1996) ooo. ceseesccecessceeceseseeseseeeeeeeenees 493 People v. Atchley, 53 Cal.2d 160 (1959) woo.eiceeceeceeseeeseeseeeeeneesseeeeeesees 474 People v. Barton, 21 Cal.3d 513 (1978) woesects eeeeceeeeneeneeeeeeey 501 People v. Bell, 49 Cal.3d 502 (1989) voceccc cecseescessessereeneseeeeenees 450 People v. Blackwell, 191 Cal.App.3d 925 (1987) ooo. eeeeects 99, 100 XIX People v. Bolton, 23 Cal.3d 208 (1979) o..cceseccsesceesesseesesceseseeeetenteaeeneeees 412 People v. Bonin, 47 Cal.3d 808 (1989) ....ccccccccssccesseecesecssccesseeteessanenes 128 People v. Boyd, 38 Cal.3d 762 (1985) w..ecccccsccssssesseceeesseeseeee 444, 445, 449 People v. Bradford, 15 Cal.4th 1229 (1997) vccccccesecccsscccstesenseenes 454, 455 People v. Breaux, 1 Cal.4th 281 (1991) ooo eccceseseeseesseeeeeseateeeseneeeaes 449 People v. Carr, 8 Cal.3d 287 (1972) ...eceeecccsssecsssesessecesseenseeeseeereeseaeenns 475 People v. Chessman, 52 Cal.2d 467 (1959) .oiccccccccccsscccssesseeesseeseeeeeeeeees 503 People y. Clair, 2 Cal.4th 629 (1992) woiceccccsescsessesssessessesessesessteneeeseeses 166 People v. Clark, 3 Cal.4th 41 (1992) ooeeeeetees veneeeeeceueeceseneanees 445 People v. Clark, 5 Cal.4th 950 (1993) w.c.cccccccccsssssecsessssesessssseceteseteteeseees 141 People v. Cox, 53 Cal.3d 618 (1991) woeceecccccccsscessecsesseseeseeeeseeeeeenereneetaes 141 People v. Crittenden, 9 Cal.4th 83 (1994) oooceceeecsceccseeeneteeeneeeees 449, 450 People v. Cropper, 89 Cal.App.3d 716 (1979) .o...cccceccceceseeeetceteeeeensees 49] People v. Davenport, 41 Cal.3d 247 (1985) oooceeecceeseeseeceeeeeeseeeteeteneeeees 449 People v. Davenport, 11 Cal.4th 1171 (1995) occecccccesesesesseeteeteeeeereees 450 People v. Diaz, 152 Cal.-App.3d 926 (1984) o..eeeceeccceseeeeceeeeteeeeeneeeesetees 99 People v. Easley, 46 Cal.3d 712 (1988) ....cecceccccsecesseesseeeeeenecenetersaneaes 128 People v. Frye, 18 Cal.4th 894 (1998) ooo ecececcccecsseeeteeteeeteerereetes 140, 141 People v. Galloway, 202 Cal. 81 (1927) ...ceccescccceessseceteeeeteeeeesteeeenseeeeeeee 99 People v. Gardeley, 14 Cal.4th 605 (1996) wow. eeeceeeseneeteerereeeteeeteees 428 People v. Gaston, 20 Cal.3d 476 (1978) oouceeccccccccssesecesseeseeeneeseeeneeeeeentes 501 XX People v. Ghent, 43 Cal.3d 739 (1987) ...eceeecssesecceccesenreeneeeateeeeeeeeaeeees 452 People v. Gonzalez, 51 Cal.3d 1179 (1990) oo... ecescecsssestsseteeseeseteees passim People v. Hayes, 172 Cal.App.3d 517 (1985) sevuesssucessuecessessessunsessseeten 428 People v. Hayes, 52 Cal.3d 577 (1990) woocccceccccssscccessecceeeseeseneeneneeeeeeees 443 People v. Herring, 20 Cal.App.4th 1066 (1993) oo... ccceceeeeseeeeeeeeeeees 498 People v. Hill, 66 Cal.2d 536 (1967) ..cceccsssccscesscceseeceesesaeeeseetseeteeenetenes 476 People v. Hill, 17 Cal.4th 800 (1998) oeeeeeesestcecesreeereees 410, 429, 497 People v. Holloway, 50 Cal.3d 1098 (1990) oo... eeececeesseeceteeeeeeeeeeeeatens 100 People v. Holt, 37 Cal.3d 436 (1984) .occccccscesecsesecseseesesetetseeeeeeesseeeee 496 People v. Howard, | Cal.4th 1132 (1992) vocececeesteeeeeeteeereees 164, 166 People v. Jackson, 168 Cal.App.3d 700 (1985) oo... cieesceeeeeeteeenseseeeneeeees 100 People v. Jimenez, 21 Cal.3d 595 (1978) voceeeseeeeeeeereeeeeeteeees 474, 475 People v. Johnson, 3 Cal.4th 1183 (1992) oo. .eeeeceeeceeceeeeteceeteeeeeeeeeneeeees 48 People v. Johnson, 6 Cal.4th 1 (1993) ........ttaetsetneeanensaasansateasanersnsseenevens 129 People v. Johnson, 70 Cal.2d 469 (1969) wesa aeeeeseaeeeseseeecaeeseesaeens 476 People v. Jones, 53 Cal.3d 1115 (1991) weeeeeeeeseeeeeeeeenees 127, 140 People v. Karis, 46 Cal.3d 612 (1988) ...csccecsesssessessessessessessesessessesaeaneenses 60 People v. Keenan, 46 Cal.3d 478 (1988) oo. eececceceeeneeeserceneeeseteseeseeeenes 450 People v. Kirkpatrick, 7 Cal.4th 988 (1994) ooceccceeeeceeeeneeeeeeeesenseees 141 People v. Ledesma, 43 Cal.3d 171 (1987) oceeeceeseesseceseeeneeeeerieenesenseens 498 People v. Malone, 47 Cal.3d 1 (1988) ooo.eceeeeesceeeneeeereeteenteneeaee 445, 446 XX People v. Markham, 49 Cal.3d 63 (1989) Loe ececsecssecsseestecesssecseesseeeees 474 People v. Marshall, 50 Cal.3d 907 (1990) woucccccececesceeeccsscecseeseeees 108-109 People v. McClary, 20 Cal.3d 218 (1977) w.ceccccccccccsssccssccssessesseseesseees 476 People v. Morris, 53 Cal.3d 152 (1991) woocccceccccccsecsscssscessessesssssesssesaee 445 People v. Morse, 60 Cal.2d 631 (1964) oo.cec ccc cccsecseseecesseeseesseneeeeens 443 People v. Motton, 39 Cal.3d 596 (1985) .occceccccccescccscsccesssessecessecseesereeees 166 People v. Mroczko, 35 Cal.3d 86 (1983) oo...cecieceeccecceseeeeeeneees 127, 141 People v. Murtishaw, 29 Cal.3d 733 (1981) w..cceecccccceeseseessereeees 445, 449 People v. Nesler, 16 Cal.4th 561 (1997) wees 107, 108, 109, 110 People v. Perez, 114 Cal.App.3d 470 (1981) cocceciccceesesecesssssseeseeenes 446 People v. Sanchez, 12 Cal.4th 1 (1996)ccciccccsceseseeesesereeees 127, 141 People v. Sheldon, 7 Cal.4th 1136 (1994) wove ccccceessccsssssecserseens 501, 502 People v. Silva, 20 Cal.3d 489 (1978) oceeccccccsccssccsseseccessecsseeeessseeeeseeeans 501 People v. Sims, 5 Cal.4th 405 (1993) oo. ccccccccccssessssecssssesseesecseseeeseeenseees 428 People v. Snow, 44 Cal.3d 216 (1987) wu...cccccccecccscsssccssssesessneesesetenseeens 165 People v. Spears, 228 Cal.App.3d 1 (1991) ...ccccecccsccesseccsseseessseeeseeesseees 475 People v. Stansbury, 9 Cal.4th 824 (1995) occcceeessceeseseteeeees 110, 501 People v. Taylor, 52 Cal.3d 719 (1990) v..ccccccccccccssscsssssssssssssseecssseseeens 443 People v. Vatelli, 15 Cal-App.3d 54 (1971) ccccccccsssesscsscsssscsssssecssssssseceesen 49] People v. Wheeler, 22 Cal.3d 258 (1978) wo.cccecesceceeseesseees 97, 162, 164, 165 State v. Bey, 112 N.J. 123 [548 A.2d 887] (1988) oo.ceceseeseeeeeenes 483 XX State v. Richmond, 180 Ariz. 573 [886 P.2d 1329] (1994)eee 504 FEDERAL CONSTITUTION AND STATUTES 28 U.S.C. § 2254(0) eesercsecstsececs essences eesseesseeseesneeacsnteneeaneanersetaneenstaceaeeny 58 © 28 US.C. § 2254(€)(2) eeceecseeeesceseseesseseescsesseesecseescseccseesssesseeseeseceasensesass 54 BL US.C. § 5322(a) iceecccceeecceesseesesseeseeeeesecssesecsesescsseesecseecssesecseeeneeees 112 31 U.S.C. § 5324(3) ice cceccececeectseseectecsecseesssssecseessseeaeceeeeseeeseeeseeeeeens 112 Exec. Order No. 13107, 63 Fed.Reg. 68991 (December 10, 1998) oo. eeecesseceecsceesseseecceeecseecesseessneessaeeeesaeens 526, 529 U-S. Const. Amend. Doi.cceeceseceessseeceeeeeeseessseeeecsaeeeeecesaeesseneseeseneenes 43 U.S. Const. Amend. TV oi... cccccccccsssccssescssceescuerssseeeveusuaneness 43, 58, 496 ULS. Const. Amend. Viooiccccccccesesscessressceececssesseseccssaeseeeseneeessnaeees passim ULS. Const. Amend. VI occeeceseescesereereneeeceeeeeeseseceeseneesaeeeneeeneeeees passim U.S. Const. Amend. VILL ccsssscsssssssssssesssssssessssssscescssseeee secsesssesseteee passim U.S. Const. Amend. XIV oo. ceeccececseecsseceseseeessseeecsseeeeessneeesesneeeees passim US. Const. art. 1, § 9 oe cceecccesssssecececsssecsessseeecssseeeessseecesaeeceeseeeseseeesenees 58 ULS. Const. art. TH, cl.2cece ccccceccecccseseescecsceecesecsuevececececasaneseeeeneanes 528 USS. Const., art. VI, Cl. 2 oc ceececccccccscsssecceceeesesseeceeeeeseceeeeessteesssaaes 522, 528 STATE STATUTES Bus. & Prof. Code §§ 6101-6102 niceeeeeeeteteeeeeereeerenteneeaetneeeeeaes 114 Cal. Comst., art. 1, Q beceeeeeeeeecseeeeseaeeseeeeseesseseeeceneeseeerereenetennes passim Cal. Const., art. 1, 9 4 ccecccscccecssseessseeeesseeeesesesseesesessaesecesescsaeeeesseseeeeeeeneaes 43 XX Cal. Const., art. 1, § 6 cccccccccccssccesssccssscccsscccsececessresesenerevevssesvenaeseseenees 43 Cal. Const., art. 1, § 7 ieceeeeeececscceseceseeeseecesesesesesasecsesesasseessusaeseusensees passim Cal. Const., art. 1, § 15 ssuusssussasasessssssesesssvesssssiesesssessssuessseesesessesisereee passim Cal. Const, art. 1, § 16 occccceccssscssssecsscecseesessaaceseeessaeesererevenas passim Cal. Const., art. 1, $17 oeceeeeececcccssccescesseceeeecnssevscesesscsesesessseessesensess passim Cal. Const., art. 1, § 24 ccccccscccssccssseessssecssseesesareseseserseesenuesssseeeeeens 173 Cal. Const., art. 1, § 27 we.eecseaaeeeesssseaaeetececeeesuenenececeuseeeetarereasaneess 43 Cal. Comnst., art. Vio .......ccceeccscessecsssscsccecesscceccecsessnsnaaeececeeaeceeececeeessennnenenss 102 Cal. Const., art. VI ...cccccccccccsececessseesusecestecetesesseeveceseereneesseeaanaanansaeeeseess 102 Cal. Const. art. VII, § 8(b) we...deeeeeessansececeseseneeeensesecanauaaegaeseeeeeeseeseesnes 60 Cal. Const., art. VIID .........cccccssssssccccececesssseteceesessnssssnreccceeaceeeececeettesseesessns 102 Cal. Const., art. XIV §13 0...cosseaeaeaeceseeeeneataeeeaeaencaeesaeeneeenaeanetenenenetaees 102 Code Civ. Proc. § 203(a)(5) oo..ececcccsescssecesseccscesecsssecevseseseeceseesessaeeesenees 60 Code Civ. Proc. § 225. oiieetecccccssccesseeessseeessecesuceeecsseeecesessuesesessessssaeeenees 97 Code Civ. Proc. § 231 ...eceeceeceeecsesseccceeeesssereecereneeseees | eee aa eeeccceecnceeeeeeeeeeernns 97 Code Civ. Proc. § 3510ccccccccccccsssecccssesedeesaceseeseesserseseesecessseeseeeeenses 53 Health & Safety Code § 11360(a) oo... cccccccccsccssecsseeesteecsecesseeneenteeeeseens 68 Pen. Code § 187 wicecceceecsesesssecesessseseeeesecsecesessesecsuessecessaseessesesnseeeaes 10, 52 Pen. Code § 190.2(a)(3) oeeecececceccsseceesseseneeeesseceeeseeeeesssaeecesssueecsneeseeeatees 11 Pen. Code § 190.2(a)(15) oie eee eeeeaccessesecesecseseseecssesseeeeeseeesaeseseeseeessessaeeas 11 Pen. Code § 190.3 iiceciceesessceseseeseeseeesesseesseessesssesseeesasceseesseeeeseaees passim XXIV Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Code § 190.3(C) cece ceeeecssecserceeesseeeeessesesesessessssssecseceseeeesseesseeaees 34 Code § 190.3(K) oieeeececcscesseessesseeeescssesseesscsecseasessssesessescseceeesseeseeeees 218 Code § 190.4(€) oececececsesssecssenessesesecsecseecssssseeecsesseecesseeseeneeenees 13 Code § 190.7 ieee ecceeserecesseeeesereesseesesseessecsssessesecessseesesececsesereees 502 Code § 211 ieeeeeeeeceestesseeseecseeseeseessessesecssssssesseeessesesassseeseeeneees 66 Code § 242 eee ceeeeceeseeseeeneceneceseesseseesecseeeecsaceeeeeaeessseeseesseeseeseaees 70 Code § 484 ooeeeiecccseeseeseesstesseeseesseeesoe seeceaeesacececeaaeeeneeseeeeseteneeeees 66 Code § 667.5(D) wee ee ceeeeeseeeeeereeeeeessaceeaeeseeeeeeeaeeaeeseaseeaeeeenesieeeerenees 1] Code § 987(d) eee ceeeseessessesseecsseeeeeaeeeseneeeaeeesessessanesseeeseeeeeeseeeseens 51 Code § 987.2eeecssussesntntstnssssestesstiasiasntestse 52 Code § 987.9 iiieeeccceceesesseessceneesseseessecsssseeseeceseceseessseseseesesseseaaeees 180 Code § 1203.06 .ceeecccscessccscesseecessssessessscssccsscessesseessseesseeesseseeenseesees 11 Code § 1203.3 .o.ceceececscssesesseesseesseesseseecaresaeeseeneseneenenteoteatentenateateaees 67 Code § 1473 oeeececeeccccsseseesssessesseeeeseseseeccscseeesssccseeseseesseeeeesseessesseeenes 43 Code § 3604 | croseeeeanesnseeecsntanssaessssnnnnscecnnnssnisesennsasnaeennanneenen 507, 508 Code § 3604(a) oo... ceeecceeceesseceseeessecsseesscecsesseeesesseesseeseeseeessecseeseaeeens 508 Code § 4011.6 ieee cecescecssccecseeceseseessecseceseseeasseeeceeesesesseseesensens 202 Code § 11352 ieeececceseceseaeeeeeeeeeeneeeaeeeseaeeeceesceeesseeeeeeteneeensees 68 Code § 12021 oieec eeeceeecneeeeesseeeeeeesssaeeceeeeceseseeeeseseessneeeeenees 11 Code § 12022(a) o..eeceeeetseseesneeeesseutststsntstsantsnsstesenannesse il Code § 120225 eee eeceeecsecesneeeesseeseeecessecesseeeeseeeeeeesseeseeseeesenessaes 1] XXV Veh. Code § 14601.1(a) ..eeceecceececcscessscsnsecsseecseesessecesseecsaeecessecsaessnarenseees 69 Veh. Code § 23152(a) oe. ceeeececceceesesseeesenseesessesecssecsesseesaeeeesseceeeeeeeeseatenees 66 Wel. & Inst. Code § 3051 cesessssssssssusssssnssesseenesesesessesstentseeseneee 69, 72 Wel. & Inst. Code § 5150 oie ecceecssessreceneeessaeecseeeeeseesensesenesearees passim COURT RULES Cal. Rules of Court, rule LO(d) occcececccccscssccsseccesssseeeceesseesersees 531 Cal. Rules of Court, rulen 501 Cal. Rules of Court, rule 951(a) wc ccecccccesscccceecessccecccessseeeecessuseeensees 114 JURY INSTRUCTIONS CALJIC No. 2.82 ceececcccccessessessteeteeseeceeseeesenessteeeneeeseess veeseeseneeneneeeneneeens 432 CALITIC No. 8.85 oo.cecceeceececseseeceeceeeeseeeeeeeeeneeneennsens seseeesecaeeeareenneentes 481, 490 CALIIC No. 8.85(D) o..ceeecceeeceeeccereececeecsesseseceeeesceeseeseseaecaeeereeateaeenseneeaes 487 CALJIC No. 8.87 ciccceccccecccesceseeeeseecneceeceaeeeeeeeesnaeesseceeeeseeeenereaeesseeeeeseesees 433 CALIIC No. 8.88 oo.cceeceecceeeeceeeeeteeeeeeneentestenssecceseeeseseseseeeeneseaeetentess 489, 490 XXVl TO: THE HONORABLE RONALD GEORGE, CHIEF JUSTICE OF THE STATE OF CALIFORNIA, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Petitioner, Maurice Boyette, through his attorney LynneS. Coffin, State Public Defender, petitions this court for a writ of habeas corpus and by this verified Petition sets forth the following facts and causes for the issuance of the writ. I. INTRODUCTION Petitioner’s trial was fatally infected with fraud, deception and misconduct from the momentthat the Alameda County Superior Court Clerk summonedjurors to jury service. Petitioner stands before this Court convicted of capital murder and sentenced to death, not because an impartial jury properly received evidence of his guilt beyond a reasonable doubt of his worthiness of the most severe punishment, but because of extremejuror bias, repeated juror misconduct, egregious prosecutorial misconduct, and the conflicted and incompetent assistance oftrial counsel. Petitioner’s convictions and death sentence must be vacated because . a biased juror served on his jury — in spite of that juror’s statutory ineligibility for jury service due to a prior felony conviction. When summoned to jury service by the Alameda County Jury Commissioner, Pervies Lee Ary,Sr., failed truthfully to disclose his prior felony conviction for grand theft, which would have disqualified him from jury service. On voir dire, Juror Ary knowingly failed to reveal not only his own felony conviction and the fact that he had been incarcerated, but also, inter alia, the fact that both of his sons had criminal records — including drug-related convictions — andthe fact that his eldest son, with whom he hadrecently resided, served a state prison sentence to the California Rehabilitation Center at Norco as a drug addict, where he claimed to have been forced to join a prison gang. Juror Ary’s bias against Petitioner was evident at both the guilt and penalty phasesof thetrial. JurorAry introduced highly prejudicial extraneous evidence into both the guilt and penalty phase deliberations. In the guilt phase deliberations, Juror Ary told the other jurors that Petitioner had previously committed another murder. In the penalty phase deliberations, Juror Ary — who was the foremanat the penalty phase — introduced highly prejudicial extrinsic evidence into the deliberations by recounting experiences about prison and prison gangs in California. When this was not sufficient to convince several jurors who wereholding outfor a sentence oflife without the possibility of parole to change their minds and vote for death, Juror Ary suggested that the holdout jurors were naive about life in California state prisonsand that they should educate themselves about this topic by watching the film American Me. At least two of the holdout jurors followed Juror Ary’s suggestion and watched this movie in the midst of the penalty phase deliberations. American Me, which touts itself as being based ona true story and waslargely filmed at Folsom State Prison, contains powerful and graphic scenes of violence and depicts the California state prison system as a breeding ground for gang violence and murders. After watching the film, the holdout jurors switched their votes and agreed that Petitioner should be sentenced to death. ThroughoutPetitioner’s trial, Juror Ary exhibited his bias against Petitioner by doing everything in his powerto ensure that Petitioner would be convicted of capital crimes and sentenced to death. These structural errors alone require reversal of Petitioner’s convictions and death sentence. Moreover, Juror Ary’s actions are thematically intertwined with the extensive misconduct committed by the prosecutor in this case. At the penalty phase of Petitioner’s trial, the prosecutor presenteda series of hypothetical questions based on facts that she knew to befalse or unsupported by the evidence, relating numerousinstances of alleged prior violent acts by Petitioner, including two incidents she claimed occurred while Petitioner was incarcerated at the county jail. Not a scintilla of evidence waspresented to support these allegations and the prosecutor was specifically aware that several of the “witnesses” — whoshe presentedto the jury in the form of her hypothetical questions and arguments based thereon — would, if called to the stand, have offered testimonythat directly contradicted her hypothetical “facts,” was not aggravating and wasin fact mitigating. The prosecutor’s presentation of these false and unsupported violent acts was exacerbated by her repeated attempts to inflame and prejudice the jurors by racist comments and argument asking the jurors to speculate regarding gangaffiliation and future dangerousness. The cumulative effect of this misconduct was overwhelmingly prejudicial to Petitioner. In the courtroom, the prosecutor improperly told the jury that Petitioner had committed numerousprioracts of violence, including somein prison, encouraged the jury to speculate that Petitioner would join the Black Guerilla Family, a notorious prison gang, and argued Petitioner’s “future dangerousness.” Inside the jury room, Juror Ary stated that Petitioner had committed a prior violent crime — in this case, a murder — of which there was no evidence and which in fact was not true. At the penalty phase deliberations, Jury Ary caused the other jurors to be exposed to highly prejudicial extraneous evidence by sharing experiences of incarcerated felons and urging the holdout jurors to watch a film that actually depicts the Black Guerrilla Family as a violent prison gang in California state prisons. Thus, the prosecutorial misconduct and the juror misconductin this case were inextricably linked and operatedto derail Petitioner’s jury from their legally defined task to collectively weigh properly received aggravating and mitigating circumstances. Instead, they focused on the narrow issueofPetitioner’s likely future dangerousness in the gang-ridden milieu of the California state prison system — an issue that wasnot properly beforethe jury in thefirst place. Neither the Court nor defense counsel protected Petitioner from the impact of this cumulative misconduct. Petitioner was denied his constitutional right to the effective assistance of counsel and counselthat wasfree of conflicts of interest. Instead of being protected by zealous advocates, Petitioner was represented by defense counsel who werelifelong friends, and who acted in their own interests and ignored their duty of loyalty to Petitioner. At the time of the commencementof Petitioner’s trial, one of Petitioner’s attorneys was a federally convicted felon awaiting sentencing, and facing possible incarceration, hundreds of thousands of dollars in fines, and the certain suspension ofhis licence to practice law inthestate of California. His sentencing occurredin the midst of Petitioner’s trial. The financial self-interest arising from these circumstancescreated an actual conflict of interest that adversely affected counsel’s representation of Petitioner. Essentially, counsel obtained appointmentto Petitioner’s case as a means of earning the moneyhe desperately needed becauseofthe expected imposition of a large fine at his upcoming sentencing and the impendingcollapse ofhis legal practice. Counsel couldill afford for Petitioner’s case to proceed on a reasonable schedule. Accordingly, a complex capital case involving a double homicide and two special circumstances wasrushedtotrial in less than six months, thus ensuringthat the penalty phase concluded only four days before the effective date of the suspension of counsel’s license to practice law. This rush to trial adversely impacted the representation of Petitioner in innumerable ways,resulting in pervasive inadequacies in counsel’s investigation, preparation, and execution of a coherent and competent defense at both the guilt and the penalty phases. Counsel’s conflict also adversely impacted the case because it caused counselto be absent from significant portions of Petitioner’s trial and to be constantly coming into the courtroom late or not at all for some court sessions. The randomnessof counsel’s comings and goings could only havesignaled to the jurors counsel’s lack of interest in or respect for the proceedings in which Petitioner stoodto lose hislife. Counsel’s inadequacies constitute examples of both the adverse effects of counsel’s conflicts of interest and of representation that failed to conform to prevailing standards of competence. Counsel failed to hire appropriate experts in the guilt phase ofthe trial, failed to heed the recommendations for investigation of the mental health expert that they did hire, and failed to present evidence. Counsel failed to conduct any significant penalty phase investigation, failed to prepare or present appropriate experts, and failed to provide the jury with an accurate picture of Petitioner’s mental impairments and compelling life history. None of these failings are attributable to reasonabletactical choices. This was not a case where there wassubstantial aggravating evidence. The only evidence that the prosecutor presented in her penalty case-in-chief as aggravation consisted of a stipulation to Petitioner’s two prior drug convictions and victim impact evidence. Petitioner had no juvenile record. He was only nineteen years oldat the time of the crime and twenty years old at the timeoftrial. This was a case where there was compelling mitigation evidence available. Petitioner suffers from life long depression to which he was genetically predisposed. He has mild brain damagethat contributedto his failures in school andis probably the result of childhood headinjuries and exposure in utero to drugs. Petitioner suffered from severe neglect. Both of Petitioner’s parents were severely addicted to heroin and incapable of caring for him. He wasraised in chaotic households by his grandmother | and great-grandmother. The aunts and uncles who also served as Petitioner’s intermittent and indifferent caretakers were engaged in rampant drug abuse and were frequently the perpetrators of violence. Numerous witnesses — includingrelatives, neighbors, school teachers and administrators, were available to testify that Petitioner was a lonely, depressed, neglected child, but who was nevertheless well behaved and respectful. This was notthe picture of Petitioner that defense counsel presented to the penalty phase jury that sentenced Petitioner to death. Atthe last moment, counsel threw together their presentation, switching psychological experts when theinitial psychologist they consulted requested that investigation and record collection be conducted, and instead presented poorly planned psychological evidencethat provided the prosecutor with fodder for her impropergangaffiliation and future dangerousness arguments. Additionally, in presenting the extremely limited testimony of several of Petitioner’s family members, defense counsel painted a false picture of Petitioner’s upbringing, giving the jury the impressionthat apart from having beenraised by his grandmother instead of his mother, Petitioner had enjoyed many advantagesin his childhood and adolescence, including extensive psychological counseling and the support andethical guidanceofa large, and loving family. Thus, the evidence presented by the defense penalty case gave the jury a grossly distorted image ofPetitioner’s family and social history. The prejudice to Petitioner of the misconduct of Juror Ary, the misconductof the prosecutor, and/orthe failure of counselto act effectively’ and in accordance with their duty of loyalty to Petitioner is clear. Petitioner respectfully urges this Court to grant him a newtnal. Il. | UNLAWFUL RESTRAINT 1. Petitioner Maurice Boyette, through his counsel, respectfully petitions this Court for a Writ of Habeas Corpusandbythis verified Petition sets for the following facts and causes for the issuance of said writ. 2. Petitioner is a prisonerof the State of California. Heis illegally and unconstitutionally confined at the California State Prison at San Quentin by Warden Jeanne S. Woodford and Director of the California Department of Corrections Terhune, pursuant to convictions and a death sentence imposed upon him by the Alameda County Superior Court on May 7, 1993. 3. Petitioner requests that this Court take judicial notice of the certified record on appeal and the pleadingson file in this Court in the case ofPeople v. Boyette, S032736. 4. No previousPetition for Writ of Habeas Corpus has beenfiled on Petitioner’s behalf in this Court. 5. This Petition is necessary because Petitioner has no otherplain, speedy, or adequate remedyat law for the substantial violations ofhis constitutional rights as protected by the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution and their State analogues. 6. The claimsasserted in this Petitioner are cognizable in a habeas corpus proceeding and brought in a timely manner. The Petition has been filed within ninety days of the final due date of Appellant’s Reply Brief. HI. STATEMENT OF THE CASE 7. On November20, 1992, the District Attorney of Alameda County filed an Information against Petitioner and Antoine L. Johnson. The Information charged both Petitioner and Johnson with: 1) the murder of Gary Carter on or about May 23, 1992 (Pen. Code § 187); 2) the murder of Annette Devallier on or about May 23, 1992 (Pen. Code § 187); 3) and 10 felon in possession of a handgun (Pen. Code § 12021). Both Petitioner and Johnson were charged with being armed with a firearm (Pen. Code § 12022(a)) and with personaluse of a firearm (Pen. Code §§ 1203.06; 12022.5). As to the second count of murder, Petitioner was charged with personal use of a firearm (Pen. Code §§ 1203.06, 12022.5) and Johnson was charged with being armedwith a firearm (Pen. Code § 12022(a)). Two . special circumstances were alleged: 1) lying in wait with regardto thefirst murder count (Pen. Code § 190.2(a)(15)); and 2) multiple murder (Pen. Code § 190.2(a)(3)). Sentencing enhancements for prior convictions pursuant to Pen. Code § 667.5(b) were also alleged. It was further alleged that Petitioner was previously convicted on December 18, 1991, and on March6, 1991, of possession for sale of cocaine base. Johnson was previously convicted on August 2, 1989, with assault with a deadly weapon. CT 532-37.! 8. On December9, 1992, Petitioner was duly arraigned and entered a plea of not guilty to the chargesset forth in this Information, denied the use and armedclauses, denied the special circumstanceallegations, and denied the prior convictions. RT 1-2. ' References to the Clerk’s Transcript are designated “CT.” References to the Reporter’s Transcript are designated “RT.” 11 9. On January 26, 1993, thetrial court granted Johnson’s motion to sever the two defendants fortrial. CT 825.° | 10. On February 1, 1993, jury selection in Petitioner’s case commenced, CT 826, and on March 1, 1993, the jury wasselected and sworn to try the cause. CT 839. 11. The guilt phase portion of the trial began on March 1, 1993, with the prosecution’s presentation of its case-in-chief. On March 3, 1993,the prosecution rested, and the defense beganits case-in-chief. CT 844. On March 8, 1993, the defenserested andthe prosecution presented witnesses in rebuttal. CT 847. On March 9, 1993, both parties presented their arguments to the jury. CT 848. On March 10, 1993, the jury was instructed and commencedits deliberations. CT 849. On March 11, 1993, the jury renderedits verdicts, finding Petitioner guilty of two counts offirst degree murder, with the attendant use and armedclauses, and guilty of felon in possession of firearm. The jury found the multiple murder special circumstanceto be true, but found the lying in wait special circumstance not true. CT 918-927. ? On April 19, 1993, Antoine Johnson pleaded guilty to attempted murder of Gary Carter, that the attempted murder waswillful, deliberate and premeditated, was with intent to cause great bodily injury, and that he was armed with a firearm. Johnson was sentencedto life in prison but _ would beeligible for parole after seven years. CT 1191-99. 12 12. On March 22, 1993, the penalty phase portion ofthe trial began, ' with the prosecution’s presentation ofits case-in-chief. CT 940. The prosecution rested, and the defense began the presentation of its case-in- chief on the same day. /d. On March 23, the defense rested, and both parties presented their arguments to the jury. CT 941. The jury was instructed and commencedits deliberations. /d. The jury renderedits verdict of death on March 25, 1993. CT 976. 13. On May 7, 1993,the trial court heard and denied Petitioner’s motion for new trial and Petitioner’s motion for modification of sentence pursuant to Pen. Code § 190.4(e). The prior convictions werestricken for purposesof sentencing. The court then pronouncedthe sentence of death. CT 1227-32. IV. STATEMENT OF FACTS A. GUILT PHASE - PROSECUTION CASE-IN-CHIEF 14. Donald Guillory testified that on Saturday, May 23, 1992, he borroweda yellow Lincoln Continental from a man named Bishop, who lived in West Oakland. RT 1203, 1243. He returned in the car to Bishop’s house at about 5:00 p.m., where he was met by Antoine Johnson and Petitioner. Johnson asked for a ride to Cole Street in East Oakland. RT 13 1203-4, 1247. Guillory had known Johnson about three weeks and was associated casually with Petitioner. RT 1203-05. 15. Guillory drove Johnson andPetitioner to a house at 2501 Cole Street. Johnson and Petitioner went upstairs while Guillory waited in the car. RT 1206. According to Guillory, Johnson was blind and hadto be helped up thestairs by Petitioner. RT 1207. Petitioner and a woman named Kenya subsequently came outside with a bag that Guillory believed contained clothes, and put the bag in the trunk of the car. RT 1206-07. They asked Guillory to come upstairs, which he did. RT 1208. Kenya and Petitioner continued to put bags in the car. RT 1209. 16. Guillory sat downin the living room in a chair next to the glass doors. RT 1208-09. Johnson was sitting on a yellow couch. Guillory was feeling nervous and wasfidgeting. RT 1210-11. Johnson asked Guillory to move awayfrom the glass doors. Petitioner and Kenya cameinto the room. Kenya andhersister Jasmeen sat next to Guillory, and Petitionersat next to Johnson. RT 1211. 17. Guillory asked what was going on, andJohnsonsaid they were waiting for someone. RT 1211-1212. After waiting approximately thirty minutes, a man, subsequently identified as Gary Carter, cameinto the house. He looked at Johnson andsaid, “What’s up?” Johnsonreplied, 14 ‘“‘Where’s my stuff at?” Johnson remained on the couch, then pulled a black handgun from behind him andstarted firing. Guillory testified that he believed Johnson fired four shots and was about four feet from Carter. RT 1212-13. Guillory saw Carter grab his side. RT 1214-15. 18. After the shots were fired, Guillory jumped upandtried to leave through the back doorof the house, but the door was locked. RT 12 15-16. As he was goingto the back of the house, Guillory testified that he looked back into the living room and saw Petitioner grab the gun. According to | Guillory, Petitioner said, “Give me the gun, man.” RT 1216. 19, Guillory walked back toward the front of the house and heard two more shots. RT 1217, 1219. Guillory then went out the front door, following Johnson and Kenya. RT 1217. There wasa tree in front of the house which blocked Guillory’s view of the street. RT 1217. A few secondsafter hearing the two shots, Guillory heard a secondset of two gunshots. RT 1219, 1255. The secondset of shots soundedas if they came from different location from thefirst set of shots. RT1219. 20. Guillory walked aroundthetree, and saw Petitioner standing over Carter with the gun in his hands. RT 1217-18. The secondset ofshots sounded like they came from where Petitioner was standing over Carter. RT 1219. Carter was laying on the ground next to the car. RT 1218. 15 Guillory also saw a secondperson,later identified as Annette Devallier, laying in the street about seven feet away. RT 1219-20, 1234. 21. Petitioner then got into the car, as did the others. RT 1220. Guillory was nervous. Hehad trouble getting the car started and had trouble driving. At some point, Johnson slapped him with his hand and said, “Got to drive better than that, straighten up,” or, Johnson threatened, the next bullet would be for Guillory. RT 1221. Guillory drove to Bishop’s house, wheretheyall got out of the car, took the bags of clothes from the - trunk and wentinto the house. RT 1222. Guillory heard Petitioner and Johnson brag to Bishop about what happened, saying, “We smoked them.” RT 1223. 22. Guillory testified that he was nervous whenhefirst spoke to the police because Petitioner and Johnson were still on the streets. Guillory claimed that Petitioner threatened to kill him and his family if he talked to the police. RT 1224-26. While Guillory said he wasafraid of Petitioner, he admitted that he went riding with Petitioner after the shooting. RT 1237. 23. On cross-examination, Guillory admitted to using rock cocaine on a daily basis. RT 1235. Guillory acknowledged that he had beento the Cole Street residence maybe twice before. RT 1236. Guillory denied giving Kenyarides or that he picked her up at her mother’s house a couple 16 of times. He claimed not to know where Kenya’s mother, Vivian Copes, lived, and stated that he never picked up Jasmeen there. RT 1241. 24. Guillory had not seen Petitioner with a gun before or after the incident. RT 1238. He had seen Johnson with a gun; the same gun that was used at Cole Street. RT 1252. 25. David Cronin,a police officer with the Oakland Police Department, was working patrol on May 23, 1992, and respondedtothe scene at 2501 Cole Street sometime after 11:00 p.m. RT 1270. When he first arrived, Officer Cronin saw a man laying on the sidewalk and a woman laying in the roadway. RT 1270-71. Neither victim showedanysign of life. RT 1271. The woman wasalso laying face down, with herfeet in the direction of Cole Street. RT 1279. 26. Between fifteen-to-thirty minutes later, Sergeant Hollomon arrived at the scene. RT 1271-72. Officer Cronin and Sergeant Hollomon went inside the house. RT 1272. Officer Cronin did not see any blood inside the house. RT 1273. The clothes dryer, which was located towards the rear of the house, was on andthe television in the foyer was on, with the sound turned down. RT 1274, 1283. Officer Cronin saw shell casings in the living room,as well as on the ground in the area around bothvictims. RT 1274, 1277. He also found a shell casing in the back yard. RT 1282. 17 27. Sergeant Edward Hollomontestified that he and Officer Cronin werethefirst officers to enter the residenceafter the shooting. RT 1436-37. The front door was open, and the back door was locked. RT 1437. 28. Ralph Lew, a Field Evidence Technician for the Oakland Police Department, recovered the shell casings from the area. In total, he found seven shell casings in front of the house, five inside the house and two in the rear of the house, for a total of fourteen shell casings. One live round wasalso found on the couch. RT 1288, 1295, 1305, 1307. All the casings were Winchester 9 mm shell casings. RT 1289, 1307. There was an area whereit appears that a bullet had hit the woodsill and penetratedat a slight upward angle. RT 1299. There was also damage to the wall and glass china cabinet, consistent with a shotfired by a personsitting on the yellow couch. RT 1300. 29. Technician Lew alsotestified that the bodies of the two victims were approximately 20-to-25 feet apart. RT 1294. 30. Technician Lew dusted the light bulb that was in the porch light of 2501 Cole Street for fingerprints. RT 1307-1308. 31. John Iocco, a pathologist, performed the autopsies on the victims. RT 1335-36. Hetestified that Ms. Devallier’s death was caused by two gunshot woundsto the head. CT 1336. One shot went through the 18 left cheek bone, and ended on the right side of the neck. The slug was recovered from the body. RT 1336-37. There wasno stippling on this wound, meaning that the weapon wasfarther than one-and-one-half to two feet away from the victim. RT 1338-39. A second gunshot wound, an entry woundfrom the right side near the jaw, exited through the top of the mouth, and throughtheleft frontal portion of the brain. RT 1339. There was no stippling with regard to this wound. RT 1340. Dr.loccotestified that either of these wounds would have been fatal. RT 1339. Ms. Devallier also had scrapes and bruises which wereconsistent with her falling on the pavement. RT 1341. Ms. Devallier’s blood had a significant amount of cocaine present. RT 1341. 32. Gary Carter’s death was caused by multiple gunshot wounds. RT 1342. Oneof the gunshot wounds entered the right side of the head, into the right side of the brain. The slug was foundin the parietal lobe. RT 1342. Dr. Iocco testified that it would have been unusual for a person with this type of woundto be able to crawl downa flight of stairs; the wound might not have beeninstantly fatal to Carter but it would have immobilized him. RT 1342-43. Carter received several other gunshot wounds, including to the right arm, RT 1345-46, through the right chest, RT 1346,the left front side chest, RT 1347,the left lateral thigh, RT 1349, the left lower 19 abdominal area, RT 1350, the right leg and knee, RT 1351, and theleft chest and back. RT 1351. According to Dr. Iocco, the only injury that would have immobilized Carter was the head wound. RT 1352. There was no stippling on the wounds to Carter. RT 1352, 1357. 33. A small amount of cocaine and traces of morphine were found in Carter’s blood. RT 1352. Carter had healed scars on his arms, over the veins, which could have been due to past intravenous drug use. CT 1354- 55, 34. Lansing Lee, a criminalist with the Oakland Police Department, testified that when a semi-automatic like a Glock 1s fired the operation follows whatis termed a cycle offire which is a sequence going through loading, firing and reloading. RT 1403. According to Lee, the cycle of firing for a semi-automatic and an automatic are very similar exceptthere is a “disconnect” missing in an automatic. RT 1406. With a semi-automatic, there would be one shot from a trigger pull, and with an automatic, the gun would keep shooting as long as the trigger was held down. RT 1406. 35. Lee concludedthat all the casings recovered from the scene were fired from the same gun -- a Glock 9 mm Lugercaliber semi- automatic. RT 1412. With regard to the slugs and bullet fragments,all werefired from a Glock,although it could not be determined whether they 20 werefired from the same Glock. RT 1414-15. 36. Sergeant David Kozicki was assigned to the case. RT 1315. Prior to June 3, 1992, Sgt. Kozicki received anonymoustelephonecalls that three-to-four people had been present at the shooting. The names mentioned were those of Jasmeen Banks, Lita Kenya Cook, Antoine Johnson and Petitioner. Sgt. Kozicki then began to contact the people named. RT 1317. 37. On June 3, 1992, Kozicki was called by Petitioner and Johnson. They had heard Kozicki wanted to talk with them, and they wanted to make an appointmentto see him. Petitioner came downto the police department on his own on at 9:21 a.m., on June 4th, 1992. RT 1318. After advising Petitioner of his Miranda rights and after Petitioner waived thoserights, Kozicki and his partner, Sgt. Thiem, interviewed Petitioner. RT 1319-20. At somepoint in the interview,Petitioner’s statement was taped, which, according to Kozicki, was a “concise version”of the interview. RT 1321- 22. The tape-recording wasplayedfor the jury. RT 1323; People’s Exhibit 17. 38. In the taped-recordedinterview, Petitioner admitted being in the house whenthe shooting occurred. Hesaid that the others in the house were Johnson, Kenya, Jasmeen, a man named “Dee”and Dee’s friend. 21 Petitioner said that it was Dee andhis friend who wereresponsible for the murders, butthat Johnson hadalso fired a gun at Carter. CT 86. 39. According to Kozicki, Petitioner said he was not a friend of Johnson’s, but saw him only in passing. RT 1325. Petitioner also said he had never ownedor handled a gun. RT 1326. Petitioner initially told Kozicki that only Dee had a gunthat night, but later said that Johnson also had a gun and shot once. RT 1326. Petitioner also said he saw Dee’s friend shoot the woman. Hesaid she put her hands up andsaid, “Don’t doit,” and that Dee’s friend then shot her, maybe twice. She fell, and was then shot a couple moretimesin the back of the head. RT 1327. 40. After this interview, Petitioner was released. RT 1327. Set. Kozicki eventually contacted Donald Guillory, who havingfirst denied any knowledgeofthe incident, eventually inculpated Petitioner and Johnson. Kozicki also interviewed Jasmeen Banks. He then prepared arrest warrants for Petitioner, Johnson and Kenya. RT 1328-29. Kenya, however, was not charged. RT 1383. 41. Petitioner was arrested and taken into custody on July 30, 1992. Kozicki had an arrest warrant, but did nottell Petitioner he was under arrest. According to Kozicki, after advising Petitioner of his Miranda rights, Petitioner again agreed totalk to Sgt. Kozicki. RT 1331-32. 22 Kozicki testified that before the interview, he informedPetitioner that a warrant had been issuedfor his arrest. RT 1330. The tape recording of a portion of this interview wasalso played for the jury. RT 1333; People’s Exhibit 16. 42. In this recorded interview,Petitioner stated that he and Johnson were driven to the house on Cole Street by someone named Donald. After they arrived, Johnson yelled at Kenya, accusing her of taking his drugs and money, Kenyasaid that it was Carter who was responsible. When Carter arrived, Johnson shot him four times, and then another four times, as Carter was going out the door. Johnson then handedthe gunto Petitioner, and said, “Go get the girl.” Petitioner ran after Carter’s girlfriend, who turned aroundandsaid “Please don’t doit.” Petitioner pulled the trigger of the gun, which shot twice, and after she fell, he shot her one more timein the head. Petitioner said that he then went to the car, where Carter, who was laying on the ground, grabbed his leg. Petitioner shot him in the stomach. Petitioner said he did what Johnson told him to do because he feared for his life. He agreed, when askedby the interviewer, that Carter’s girlfriend was killed to preventher from being a witness. Petitioner then left the scene with the others. Petitioner said it was Johnson who madeupthe story about a man named Dee havingbeen the perpetrator, and Johnson told Petitioner 23 to tell this story to the police. Petitioner stated that earlier in the evening he had taken two Valium, and one codeine and that he drank four Jack Daniels coolers, andstill felt high at the time of the shootings. People’s Exhibit 16. 43. A third tape recording was madeofPetitioner’s statements, “for legal reasons,” RT 1364, in which Petitioner wasinstructed to only refer to his involvement and not the involvement of others. This tape-recording was also played for the jury. RT 1364; People’s Exhibit 15. 44, Set. Kozicki testified that the police never recovered the murder weapon and hadnot been able to find the car. RT 1363. 45. On cross-examination, Kozicki denied telling Petitioner that he could go homeifhe gave a statement. RT 1371. 46. Sgt. Kozicki further testified that Betty (Trice) Jackson, who owned the house at 2501 Cole Street, identified Dee as a person who had been at residence previously. RT 1375. Dee, also known as Ronald Thomas, was wanted for escape from juvenile facilities. RT 1376. 47. Alvarez Devallier, Annette’s father, identified a photograph of Annette that was taken two years previously. RT 1440-41. Mr. Devallier testified that he was very close to his daughter before she died. RT 1441. Annette had been living in a church recovery house, which was a drug rehabilitation program. RT 1441. However,she hadleft the recovery house 24 about a week before she was killed. RT 1441. 48. Reo Carter, Gary Carter’s sister, identified a photograph of Carter. Carter had been living with her, although he had missed a few nights in the week before he waskilled. RT 1444. On cross-examination, Ms. Carter stated she knew that Carter was using crack cocaine, but denied that he wasstaying at the Cole Street residence. RT 1447-48. B. GUILT PHASE - DEFENSE CASE-IN-CHIEF 49. Petitioner testified on his own behalf. Petitioner was 19 years old at the time of the shootings. RT 1452. He had gone asfar as the ninth grade in school, and prior to being arrested, was homeless. RT 1452. Whenhe wasgrowing up,he lived with his grandmother in Berkeley. He neverlived with his father, who died when Petitioner was twelve. Petitioner’s mother was a drug addict, wholeft Petitioner with his grandmother when he was two years old. RT 1452-53. 50. Petitioner admitted to having been convicted of a felony -- possession for sale of cocaine -- and that he wasin jail in 1992. Petitioner wasreleased from jail on February 14, 1992. RT 1453. 51. Petitioner’s mother, Marcia Surrell, was living at the Cole Street house in 1992. RT 1453. In May 1992, Petitioner stayed there for a couple of days. RT 1455. A few days before the shootings, Petitioner’s mother 25 was taken to the hospital in an ambulance because “she was off heroin.” RT 1456. Betty (Trice) Jackson and Kenya Cook werealso living there. RT 1455. Petitioner met Antoine Johnson about a month before the offense. RT 1456. 52. On June 4, 1992, after learning that Sgt. Kozicki wanted to talk with him, Petitioner went downto the police departmentfor questioning. RT 1457-58. Petitioner initially told Kozicki that he did not know anything about what happened on Cole Street because he wasafraid for the safety of his family. RT 1458-59. After Sgt. Kozicki assured Petitioner that he would not tell anyone what Petitioner said, Petitioner gave a statement. RT 1459. However, after giving this statement, Petitioner’s family started getting threatening phonecalls. RT 1460. 53. On June 30, 1992, Petitioner was handcuffed and taken to the police station for further questioning. Petitioner testified that Kozicki did not tell him he was underarrest, RT 1461; rather, Kozicki assured him that if he gave a statement, Kozicki would let him go. RT 1462. Petitioner gave the statement because he thought he would bereleased if he did. Kozicki said if he “told on Antoine Johnson that he would let me go.” RT 1463. Petitioner only knew he was underarrest after he had given the statement, when he was taken downstairs and booked. RT 1463. 26 54. Between the first interview and the second interview, Petitioner and his family were threatened, and Petitioner remained worried about the safety of his family. RT 1477-78. After the first interview, word had “hit the streets” that Petitioner had given information regarding Dee, and Dee had threatened him. RT 1478. Petitioner ensured that his mother moved from the Cole Street residence because ofthe threats. RT 1479. Petitioner testified he was afraid of both Dee and Johnson. RT 1479. Petitioner also testified he was movedinto protective custody in the jail because he had been labeled a snitch. RT 1480. 55. On cross-examination, Petitioner agreed that the reason his mother movedout of the Cole Street residence was because it was boarded up. RT 1482. Petitioner denied he had beenreclassified in the jail because he threatened one inmate and beat up another inmate. RT 1483-86. 56. Petitioner was also questioned on cross-examination about the testimony he gave during the suppression hearing, in which Petitioner stated that his second statement to the police was not true, and that he had memorized the facts from what the police had told him. RT 1487-88. Petitioner admitted that at the suppression hearinghetestified that he shot Carter, but did not shoot Devallier. RT 1488. Petitioner also testified that he hadlied at the suppression hearing because Johnson wasin the 27 courtroom, and he wasafraid of Johnson. RT 1489. Petitioner further testified that his statements on the second and third tape-recordings wereall lies, but the first tape recorded statement was mostly true. RT 1490. 57. Petitioner refused to answer questions on cross-examination about Dee, stating that he would be killed if he did. RT 1491. Hetestified that his life was in danger becauseofthefirst statement he gaveto the police in which he blamed Dee and Dee’s friend. RT 1491. Petitioner refused to answer any questions regarding thefirst statement out of concern for the safety of his family. RT 1492. He stated he would rather be on trial for a double murderandface the death penalty than to have his mother and grandmother endangered. RT 1503-04. 58. Marcia Surrell, Petitioner’s mothertestified that in May 1992, | she wasliving at 2501 Cole Street. RT 1624. Gary Carter stayed there sometimes with Annette, his girlfriend. RT 1625-26. Ms. Surrell had known Antoine Johnson for about six or seven months. RT 1626. Johnson and his girlfriend, Kenya, also stayed at the residence. RT 1626, 1627. Petitioner met Johnson whenPetitioner cameto visit Ms. Surrell. RT 1626. Petitioner did not live on Cole Street, but stayed with a friend of his or with her mother. RT 1629. Just before she wentinto the hospital in May 1992, three days prior to the shooting, she saw a person named Dee who came 28 there often, at the residence. RT 1627. 59. Prior to the shooting she saw Johnson with guns, but did not see Petitioner with a gun. RT 1628. 60. Latonya Jackson, Betty Jackson’s niece,testified that she knew Gary Carter, who wasa friend of the family. RT 1567-68. She wentto school with Antoine Johnson. RT 1568. Ms. Jackson did not see Johnson with a gun in 1992. RT 1569. 61. Ms. Jacksontestified that sometime after May 1992, she helped Marcia Surrell move from one location to another. RT 1569-71. 62. Betty Jackson, was the owner of 2501 Cole St in May 1992, and lived there at that time. RT 1528. Marcia Surrell, Petitioner’s mother, also lived there. RT 1528. Ms. Surrell had one of her legs amputated. RT 1528. Antoine Johnson had beenstaying at the Cole Street residence off and on. RT 1529. Ms. Jackson had seen Deeat the residence a week before or perhaps two days before the shootings. RT 1529. Carter, Johnson and Petitioner were close, but Carter and Johnson werecloser than Petitioner and Johnson. RT 1532. Shetestified that both Petitioner and his mother were threatened. RT 1533. 63. On cross-examination, Ms. Jackson testified that the house was closed downafter the murders and no one lived there. RT 1534. She also 29 testified that Johnson waslegally blind, but he could see out of one ofhis eyes. RT 1537. Johnson had two guns. RT 1543-44. 64. Ms. Jackson confirmed that Carter and Devallier also stayed at the house. They were sleeping on the couch whensheleft for the weekend before the shootings. RT 1541. 65. David Brookslived across the street from 2501 Cole Street in May of 1992. RT 1515. At 11:20 p.m., on May 23rd, Brooks went outside to investigate some noise from a party. RT 1516-17. As Brooks was about to go back into his house, the sound of people struggling acrossthestreet attracted his attention. RT 1517. It sounded like punches were being thrown, and, whatreally got his attention, were some loud crashing sounds from 2501 Cole Street. RT 1517. He also heard kicking soundsthat he believed were caused bystruggling inside of the security gate and the gate being kicked open. RT 1518, 1521. It was dark, but Brooks saw possibly three people comeoutofthe security gate, struggling and fighting. RT 1518. He saw “shadowyfigures rolling downthestairs.” RT 1518. Next, Brooks saw a person crawling to the middle of the street. RT 1519. He saw someone going back into the house, and then someone coming out of the house; it may have been the same person. RT 1519. The person who cameout of the housefired the gun at point blank range into a male who 30 was on the sidewalk. RT 1523. Then the person with the gun wentinto the middle of the street, stood over the woman, who had crawledinto the middle of the street and was on her hands and knees, and shot her. RT 1523-24. Brooks heard three or four gunshots, which did not appearto come from an automatic. RT 1519, 1523. After he heard the shots, Brooks wentinto his house and called 911. RT 1519-20. 66. Greg Martin, a school teacher in San Francisco, was on Cole Street on May 23, 1992. RT 1550. Hearrived at 2498 Cole Street around 11:15 p.m. About ten minutes later he heard gunshots, which was not unusualat that location. RT 1551-52. After hearing the gunshots, Martin looked out the window and saw a large American model car parkedin front of 2501 Cole Street. RT 1553. Within a few minutes, Martin looked out the window again, and the car was gone. RT 1555. Martin wasfairly certain that the car was not in front of the house when he arrived. RT 1555. 67. Curtis Sato, a criminalist with the Oakland Police Department, and a fingerprint expert, testified that the fingerprints from thelight bulb at 2501 Cole Street matched Gary Carter’s prints. RT 1558-59. | 68. Joe Chan, an inspector with the District Attorney’s office, met with Donald Guillory on January 19, 1993. RT 1510. Guillory indicated that a few days before he was contacted by the police, he was driving the 31 Lincoln with Petitioner in the car, and had been stopped by the police. RT 1510-11. On cross-examination, Chantestified that Guillory had said that right after the police stopped the car, Petitioner threatened him. RT 1512. 69. Vivian Copes, the mother of Kenya Lita Cook and Jasmeen Banks,testified that she met Donald Guillory a couple of times. He was driving Kenya around. RT 1547. Kenya’s boyfriend in April-May of 1992 was Antoine Johnson. RT 1547-48. Jasmeen’s boyfriend was Dee. RT 1549. On cross-examination, Ms. Copes described Guillory as having grey hair and a beard, andstated that she knew him only as “Donald.” RT 1548- 49. According to Kenya, he was a friend of Bishop’s. RT 1549. 70. Earl Turner and Antoine Johnson grew up together and were good friends. RT 1505. Johnson hadbeenblind for about one-and-one-half years. RT 1505. Johnson wasstaying at the Cole Street house where Turner would visit him. RT 1505. Turner also saw Ronnie Thomas, known as Dee, at Cole Street, and saw him together with Johnson. RT 1505-06. 71. Andrew Barton, an Oakland Policeofficer, testified that he talked with Earl Turner in May 1992, about a car registered to Turner’s girlfriend that was in Johnson’s possession. Officer Barton encouraged Turnerto file a report aboutthe car but he refused to do so. RT 1579. When Barton became aware that Johnson was a murdersuspect, he related 32 the information about Tumerto Sgt. Kozicki. RT 1580. Barton also gave. Kozicki a list of Johnson’s known associates, which included “Ronnie.” RT 1580. 72. Bernie Licata, a Hayward police officer, had contact with Ronald Thomas on May 28, 1992. RT 1582. Thomas was wanted for escaping from custody. There were attempted murder charges pending against him when he escaped. RT 1582. 73. David Lundgren, a Hayward police officer, was looking for Ronald Thomas on May 28, 1992, and was involved in a car chase with Thomason that date. RT 1589-90. Thomas’s nickname was Dee. RT 1590. C. GUILT PHASE - PROSECUTION REBUTTAL 74. David Brooks wasrecalled andtestified that the shooter was not a very large fat man or a very short man, and identified Petitioner as falling within this general description of the shooter. RT 1634-35. 75. Ronnie “Dee” Thomas wasseventeen years old and in custody for attempted murder. In April 1992, he escaped from custody. He was _ picked up on May27, 1992, and had beenin custodyat the California Youth Authority ever since. RT 1638-39. Thomasfirst found out the previous Friday, when he talked to D.A. Inspector Chan,that Petitioner was 33 seeking to blame him for a double murder. RT 1640. Thomashad never threatened Petitioner, and had no conversations with Petitioner since being in custody. RT 1640. 76. Thomas was an associate, not a friend of Johnson’s. RT 1641. He wasfriends with Earl Turner, but they had a falling out because Turner snitched on him. RT 1641-42. 77. Thomastestified that after his escape he stayed mostly in Richmondat his mother’s house, and was at his mother’s house Memorial Day weekend, the week before he was picked up. RT 1642. Hestayedat her houseon the night of the shooting; he did not shoot two people on Cole Street. RT 1643. 78. Tonita Thomas, Dee’s sister, testified that she was with her brother on Memorial Day weekendat their mother’s house in Richmond. RT 1657-58. On Saturday night, they had a barbecue with friends and relatives. RT 1658. Dee wasthere the entire weekend. RT 1658. D. PENALTY PHASE - PROSECUTION CASE-IN-CHIEF° 79. Alvarez Devallier, Sr., Annette Devallier’s father, testified that ; There wasa stipulation that Petitioner’s two prior convictions for possession for sale of cocaine were admissible under Pen. Code § 190.3(c). RT 1887-88. 34 he and his daughter were “very, very close.” RT 1847. He would see her three times a week, or they would speak on the telephone if she was not around. RT 1847. She was a “companion,” and they would talk over things, problems, and she was always willing to help him or anyoneelse. RT 1847. Annette had ten brothers and sisters. RT 1847. 80. Mr. Devalliertestified that Annette’s death particularly affected her eight year old son, who said he wanted to die so he could be with his mother. The boy was having nightmares and missed his motherterribly. RT 1847. Annette also had a six year old son, who also was having nightmares and asked where his mother was. RT 1848-49. Both children were identified in the courtroom. RT 1848. A photograph of Annette’s four year old daughter wasidentified by Mr. Devallier. RT 1849. 81. Mr. Devallier testified that Annette had been in a drug rehabilitation program for three-to-four months, and had turned herlife around. RT 1850. She wasa great help to others, and helped take care of Petitioner’s mother. RT 1850. 82. On cross-examination, Mr. Devallier acknowledged that Annette had a cocaine problem for two years time before going into the drug rehabilitation program. RT 1851-52. Annette left the program shortly before her death, and Mr. Devallier did not know where she went, and was 35 not aware that she was underthe influence of cocaine when she died. RT 1853-54. 83. Alvarez Peter Devallier, Jr., Annette’s brother, was very close to Annette until about a year before she died, when they went their separate ways. RT 1855. Hetestified that he dreamt about her a lot. RT 1855. 84. Moezelle Lake, Annette’s grandmother, had a very good relationship with Annette. She partially raised her, and Annette lived with her for a numberof years. RT 1859. Annette helped her out when her health failed. Annette was a very sweet person,a friendtoall, and everyone loved her. RT 1859. Annette’s loss was devastating, and Ms. Lake thought of her constantly. RT 1860. 85. Brad Elliot was Gary Carter’s brother-in-law, by virtue of his marriage to Carter’s sister, Yolanda Carter Elliot. Carter had seven siblings, and accordingto Elliot, it was the “tightest family I’ve ever seen.” RT 1863. Carter’s death was devastating to the family. Elliot’s wife would wake up in the middle of the night orying and sometimesdid not sleep at all. It “tore her up.” RT 1864, 1866. One brother of Carter’s moved away, and others becamereclusive and angry. RT 1865. 86. Laveone Carter, Gary Carter’s fifteen year old daughter, was very close to her father. RT 1869. Shetestified that her father’s death gave 36 her nightmares, and caused herto be sad, to cry, and to not want to go to school. RT 1869. Her brother, Gary, Jr., was also very upset, and he did not want to cometo court to testify. RT 1869. Her sister was irritable, and would stare at their father’s obituary and cry. RT 1870. 87. Yolanda Carter Elliot, Carter’s sister, testified that she was depressedall the time, and could not function as a whole person. Shelost weight, had a hard time caring for her son and found it hard to be around her family. RT 1873. 88. Carrisa Carter, another of Carter’s sisters, testified that she and Gary were “tight.” RT 1881. She had a hard time accepting his death. She was in therapy and on medication. She could not sleep, and had nightmares and fits of crying. RT 1881. 89. Antonea Brown, another of Carter’s sisters, testified that their father would nottestify because of health problems and because he believed he was going to die. RT 1883. He was having a very hard time dealing with his son’s death: “It’s to the point where he can’t even lookat us, his kids any more, becausehe -- hesaid it was so painful for him to lose Gary, just the idea of losing anotherchild, he just doesn’t want to be around much any more, around us any more.” RT 1883. Ms. Brownfurthertestified that she had been drinking every night and was overwhelmed with sadness. RT 37 1883. Her other brothers and sisters were also having extremedifficulties with Carter’s death. RT 1884-85. 90. Reo Carter, another of Carter’s sisters, testified that she was very upset and missed her brother. RT 1886. E. PENALTY PHASE- DEFENSE CASE-IN-CHIEF 91. Dr. Fred Rosenthal, a psychiatrist, testified that he interviewed Petitioner, and concluded that with the exception of drug and alcohol abuse, Petitioner did not have “‘a clear diagnosis of a mental disorder. He has sometraits which maylead to a diagnosis at some timein the future.” RT 1892-93. Petitioner was not psychotic, but did have emotional problems. He was quite immature, and emotionally and intellectually was more like an early teenager. RT 1893. 92. Dr. Rosenthalstated that Petitioner wasa “fairly passive and dependent individual” and would lean towards a “dependentpersonality disorder.” RT 1893. Someone withsuch a disorder would havedifficulty making independentdecisions, and would tend to rely heavily on, and be easily influenced by, others. RT 1893. They attach to people very quickly andtry to get guidance from others. They have a hard timeliving independently, making judgments, seeing the world from an independent point of view. They are also very vulnerable andsensitiveto criticism from 38 others, and try very hard to please others. RT 1893-94. However, Dr. Rosenthaltestified that he could not reach a diagnosis of dependent personality disorder with regard to Petitioner because Petitioner was too young to have the full blown disorder, which would develop throughout adult life. RT 1894. 93. Dr. William Lane Spivey, a psychologist testified that he first becameacquainted with Petitioner in 1983, when Petitioner was approximately eleven years old. Petitioner’s grandmother brought him in for psychotherapy because he wasnot doing well in school and was having adjustmentproblems at home. RT 1922, 1924, 1926. Dr. Spivey last saw Petitioner as a patient in 1988. In Dr. Spivey’s view, Petitioner “was a kid groping to grow up. Fairly low self-esteem, a lot of adjustmentissues at school as well as in the family.” RT 1923. Dr. Spivey found that Petitioner was very immature for his age. RT 1924. 94. George Barrett, with a masters degree in clinical psychology, worked for Alameda County Mental Health Services. RT 1930. On Apmil 1, 1991, he examined Petitioner at a court’s request because he wastold that Petitioner had made death threats to others and to himself. RT 1931-32. Petitioner was eighteen years old at the time, but acted like a twelve year old. RT 1933. Mr. Barrett viewed Petitioner as essentially still an 39 adolescent and gave him a principle diagnosis of disruptive behavior disorder, which is more of an adolescent categorization. RT 1933. Petitioner was too young for a diagnosis of antisocial personality disorder, | but he was headingin that direction. RT 1933, 1937. 95. Tamika Harris, Petitioner’s seventeen year old cousin,testified that she had knownPetitionerall her life. RT 1948. They lived together and went to school together. RT 1949. Ms.Harris stated that Petitioner waspicked on at school because he washeavier and bigger than other kids but he would not do anything when he wasteased, and would notstart fights. RT 1949. Her father and their grandmother loved Petitioner, he was raised in a loving environment and he was not physically abused in any way. RT 1951-52. 96. Ernest Posey, Jr., was an administrative assistant at Willard Junior High, where he counseled Petitioner. RT 1953-54. Posey stated that Petitioner was an average student who wasvery overweight and passive. RT 1954-55. 97. IrmaSurrell, Petitioner’s grandmothertestified that Petitioner lived with her since he was two years old because his mother was on drugs and was not able to take care of him. RT 1956. Petitioner’s mother did not ~ see Petitioner much when he was growing up, and his father died when 40 Petitioner was about fourteen years old. RT 1958. Ms. Surrell testified that Petitioner was always good to her. RT 1959. She took Petitioner to see Dr. Spivey because “he had trouble with his mind and he wasn’t making good connections with his mind.” RT 1957. Petitioner never really moved out of her house, but at some point would stay over infrequently. RT 1957-58. 98. On cross-examination, Ms. Surrell testified that she loved Petitioner, was a mother figure to him, and taught him values. RT 1960. She did everything she could to help him, and he was neverphysically abused when he was growing up. RT 1961. 99. Celeste Surrell, Petitioner’s aunt, testified that she lived with Petitioner from the time he was two years old. RT 1965. Hersister, Petitioner’s mother, had a problem with heroin. RT 1965. Ms.Surrell stated that she helped her motherraise Petitioner. RT 1966. Petitioner was not disruptive and did not cause any problems. Petitioner usually watched television. He was nota fighter, but was a passive individual. He was a follower, not a leader. RT 1966. 100. Petitioner would go see his mother on Cole Street because he was concerned about her. RT 1967. Ms. Surrell did not like Petitioner going there becauseit was a drug house,but Petitioner went anywayin order to see his mother. RT 1967. Petitioner’s father was not around. He Al would makea lot of promisesto Petitioner, but never kept them. RT 1968. 101. Charmaine Adams, Petitioner’s aunt, testified that she was involvedin Petitioner’s life when he was growing up. RT 1970. Petitioner did not pick fights, but was picked on himself. RT 1971. 102. Eugene Surrell, Petitioner’s grandfather, claimed that he had been involved with Petitioner since Petitioner was born. RT 1973. At the time of Petitioner’s birth, Petitioner’s mother was a drug addict. His father wasalso a drug addict. RT 1973. In one incident, just after Petitioner was born, Petitioner’s mother took him with her to Sacramento. She was under the influence of drugs and left him at someone’s home,but forgot where the place was. Petitioner stayed there for a period of time before he was taken to the authorities. RT 1974. After this incident, Petitioner went to live with his grandmother, Mr. Surrell’s wife. RT 1974. Mr. Surrell testified that he played with Petitioner, and took him to school. RT 1974. Petitioner used to throw tantrums when he was younger. RT 1975. 103. On cross-examination, Mr. Surrell recalled an incident in 1991, when Petitioner had a fight with his mother, and allegedly told his grandmotherhe wasgoingto kill Mr. Surrell with a knife. This was one of Petitioner’s “little tantrums.” Mr. Surrell denied that Petitioner threatened him with a knife in this incident. RT 1977-78. 42 104. Marlon Surrell, Petitioner’s first cousin, grew up with Petitioner. RT 1988. Hetestified that they got into only onefight in their lives, and that Petitioner was a follower. RT 1989-90. V. JURISDICTION 105. No other petition has been filed for Petitioner or on his behalf in this Court in connection with this judgment. This petition is necessary because Petitioner has no other plain, speedy or adequate remedyat law for the substantial violations of his constitutional rights as protected by the First, Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendments to the United States Constitution, of sections 1, 4, 6, 7, 8, 15, 16, 17, and 27, of Article I of the California Constitution and of Penal Code section 1473, in that the crucial factual bases for these claims lie outside the record developed on appeal. VI. INCORPORATION 106. Petitioner hereby incorporates by reference each and every paragraphofthis petition in each and every claim presentedas if fully set forth therein. 107. Petitioner hereby incorporates all exhibits appendedto this 43 petition as if fully set forth herein. Petitioner requests that the Court take judicial notice of the certified record on appeal and all pleadings,briefs, orders, and exhibits on file in this Court in the case of People v. Boyette, S032636, to avoid the expense and time of duplicating those materials that are already in the possession of the Court and the Attorney General. 108. Because a reasonable opportunity for full factual development through discover, adequate funding, access to this Court’s subpoena power, and an evidentiary hearing has not been provided to Petitioner, the full evidence in support ofthe claims that follow is notpresently obtainable. Nonetheless, the evidencethat is obtainable and set out below adequately supports each claim andjustifies issuance of the order to show cause and relieve. Vil. ALLEGATIONS APPLICABLE TO EACH AND EVERY CLAIM 109. Petitioner makes the following allegations which apply to each and every claim and allegation in the Petition. 110. The facts in support of each claim are based onthe allegations in the Petition, the declarations and other documents contained in the exhibits; the entire record ofall the proceedings involvingpetitioner in the trial courts of Alameda County; the documents, exhibits, and pleadings in 44 People v. Maurice Boyette, 8032736 on direct appeal; judicially noticed facts; and any andall other documents and facts that petitioner may develop. 111. Legal authorities in support of each claim are identified within that claim. Each and every claim is based both on the state and the federal constitutions. 112. Petitioner does not waive any applicable rights or privileges by the filing of this petition and the exhibits, and in particular, does not waive either the attorney-client privilege or the work-product privilege. Petitioner hereby requests that any waiverof a privilege occur only after a hearing with sufficient notice and the right to be heard on whether a waiver has occurred and the scope of any such waiver. Petitioner also request “use immunity” for each and every disclosure he has made and may makein support ofhis Petition. 113. If the prosecution disputes any material fact(s) alleged below, petitioner requests an evidentiary hearing so that the factual dispute(s) may be resolved. After petitioner has been afforded discovery and the disclosure of all material evidence by the prosecution, the use of this Court’s subpoena power, and the funds and opportunity to investigate fully, counsel requests an opportunity to supplement or amendthis petition. He is presently aware 45 of the facts set forth below,establishing a prima facie caseforrelief. 114. To the extent that the error or deficiency alleged was due to defense counsel’s failure to investigate and/or litigate in a reasonably competent manner on Petitioner’s behalf, Petitioner was deprived of the effective assistance of counselin violation of the state and federal constitutions. To the extent that defense counsel’s actions and omissions were the product of purported strategic and/ortactical decisions, such decisions were based uponstate interference, prosecutorial misconduct, inadequate and unreasonable investigation and discovery, and/or inadequate consultation with independent experts and therefore were not reasonable, rational or informed, in violation of the state and federal constitutions. 115. To the extent that the facts set forth below could not reasonably have been uncovered by defense counsel, those facts constitute newly- discovered evidence which casts fundamental doubt on the accuracy and reliability of the proceedings and undermines the prosecution’s case against Petitioner such that his rights to due process and fair trial underthe state and federal constitutions have been violated and collateral reliefis appropriate. 116. In addition to withholding and/or destroying material, exculpatory evidence, the prosecution also committed pervasive misconduct 46 throughout Petitioner’s trial, in violation of the state and federal constitutions. The allegations and authority in Claim E andthe facts containedin the exhibits attached thereto, are hereby incorporated by referenceasif fully set forth in this paragraph. But for the misconduct of the state, the trial court’s errors, and the incompetence ofhis defense counsel, Petitioner would not have been convicted of murder, the special circumstances would not have been foundtrue, and he would not have been sentenced to death. 117. Defense counsel was ineffective at both the guilt and penalty phases ofPetitioner’s trial, in violation ofthe state and federal constitutions. 118. Petitioner’s convictions and sentences, including the sentence of death, were obtainedin violation of his most fundamental state and federal constitutional rights, including the right to a fair trial, to an impartial jury, to be given notice and be heard,to effective representation of counsel, to procedural and substantive due process, andto reliable guilt and penalty convictions in a capital case. The entire judgment must be reversed. U.S. Const. Amends. V, VI, VHI & XIV; Cal. Const., art., I, §§ 1, 7, 15, 16, 17. Vill. PETITIONER IS ENTITLED TO DISCOVERY 119. Under compulsion of this Court’s rulings,this Petition was 47 prepared without access to the discovery and subpoena powerofthis or any other court. People v. Gonzalez, 51 Cal.3d 1179, 1258-1261 (1990); People v. Johnson, 3 Cal.4th 1183 (1992). However, discovery is necessary for Petitioner to obtain a full and fair adjudication of his claims in furtherance of his constitutional rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution; and under parallel provisions of the California Constitution. 120. The discovery that is necessary prior to the adjudication of this Petition includes, but is not limitedto: a. Any andall reports, memoranda, photographs,test results, charts, print-outs, writings, samples, portions of evidence,test or control samples, and actual evidence in the possession of the Oakland Police Departmentor in the possession of any laboratory used by the Office of the Alameda County District Attorney or by the State of California in the testing or processing of evidence collected in connection with this case or evaluated as possibly connected withthis case. b. Any and all documents or things containedinthe files in the Office of the District Attorney of Alameda County pertaining to the prosecution ofPetitioner, including, but not limitedto,all notes, memoranda,reports, correspondence,lists, charts, photographs, videotapes, 48 or audiotapes. c. Any and all documents or things containedin thefiles of the Oakland Police Departmentpertaining to the investigation, interrogation, arrest, and custody of Petitioner, including, but not limitedto, all notes, memoranda, reports, correspondence,lists, charts, photographs, videotapes, or audiotapes. d. Any notes or tape recordings of, and any information about, the substance of the interview conducted by the prosecutor, Therese Drabec, with several ofthetrial jurors following the penalty phase verdict in this case. e. All notes, including bench notes, written by Oakland Police Department Criminalist Lansing Lee in connection with this case. f. Any and all records from the Oakland Fire Department regarding their response to the scene at 2501 Cole St. in Oakland on May 23, 1992. g. Any and all records from the Regional Ambulance, American Medical Response, and/or Bay Area Credit regarding Regional Ambulance’s responseto the scene at 2501 Cole St. in Oakland on May 23, 1992. h. All criminal records for co-defendant Antoine Johnson. 49 1. All criminal records for prosecution witness Donald Guillory. including criminal records from the state of Louisiana. j. Any and all records, memoranda,notes, tape recordings, writings, reports of contacts and/or interviews with Donald Guillory | reflecting the nature of contacts with, representations madeto, consideration offered to, and/or discussions with Guillory while he was a prospective witness in Petitioner’s case. k. Anyand all documents orthings, including, but not limited to, all notes, memoranda,reports, correspondence,lists, charts, photographs, videotapes or audiotapes that contain material, exculpatory, favorable, impeaching, or mitigating evidence related to Petitioner’s crimes and sentence. l. The complete probation files for Probation Officer Mei- Ling Pastor’s supervision of Petitioner. m. Any andall records from the Alameda County Public Defender’s Office regarding their representation of Petitioner in previous cases. n. The jury summonses and questionnaires issued by the Alameda County Superior Court Jury Commissioner andfilled out by the jurorswho servedin Petitioner’s trial. 50 o. The United States military personnel file for Pervies Lee Ary, Sr. p. The complete prison files, including medical files, for Pervies Lee Ary, Jr., DOB 08/26/65, CDC # N51703, from the California Rehabilitation Center in Norco, California. q. The complete parole files from the California Department of Corrections Parole and Community Services Division for Pervies Lee Ary, Jr., DOB 08/26/65, CDC # N51703. r. Any and all records from the RichmondPolice Department regarding the December 25, 1992,arrest of Pervies Ary,Jr., for corporal injury of a spouse. s. Any records from the Alameda County Superior Court regarding the appointment of defense attorney Richard Hoveto Petitioner’s case on or about September 15, 1992, including, but not limited to, any written requests and/or affidavits or other pleadings filed by defense attorney Walter Cannady pursuant to Penal Code section 987(d)setting forth reasons why a second attorney should be appointed to Petitioner’s case. t. Any records from the Alameda County Superior Court regarding requests for paymentfor attorneys’ fees by defense attorneys 51 Walter Cannady and Richard Hove, and any documentation of such payments being made,includingall filings made pursuant to Penal Code section 987.2. u. Any records from the Alameda County Superior Court of the appointment of Walter Cannady and Richard Hoveto other criminal cases from January 1992 through March 1993. v. Any reports,statistics, information, or records from the California Department of Justice regarding arrests in Alameda County from 1990 through 1995 for criminal cases where the defendant wentto trial facing capital charges — or if that informationis not available, thenforall such alleged violations of Penal Code section 187 — that indicate the dates whenthe defendants werefirst arrested and when the case begantrial and/or when the defendant was convicted and/or sentenced. w. Any andall files and records, including billing records and calendar entries, in the possession of defense attorney Patrick Hallinan regarding his representation of Richard Hove both in the criminal case United States v. Richard Hove, CR 92-0234, and in disciplinary proceedings before the State Bar of California during 1992 and 1993. x. The pre-sentence report for Richard Hovein the case United States v. Richard Hove, CR92-0234, in the Northern District of 52 California. 121. The holding of People v. Gonzalez, 51 Cal.3d 1179, 1258-1261 (1990), that discovery orders are not appropriate in a habeas corpus matter prior to the issuance of an order to show cause (“OSC”), was predicated on the assumptionthat “if the People’s lawyers have such [disclosable] information in this or any other case, they will discloseit promptly and fully.” /d. at 1261. It is axiomatic that “[w]hen the reason of a rule ceases, so should theruleitself.” Civ. Code, § 3510. Gonzalez was also based on the conclusionthat “there is no postconviction nghtto ‘fish’ through official files for belated grounds of attack on the judgment.” Gonzalez, 51 Cal.3d at 1259. Petitioner’s requests for discovery here are | not a fishing expedition for new groundsofattack; they are focused requests for information relevant to known groundsofattack. Norare they “belated”; this Petition is presumptively timely. 122. The law of federal habeas corpus presupposesthatfull factual development of habeas corpus claims will occurin the state courts. Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992) (“the State must afford the petitioner a full and fair hearing on his federal claim”); see also Williamsv. Taylor, U.S. ___, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Discovery and other mechanismsfor factual development of claimsare limited in 53 federal habeas corpusprecisely because they are presumedto be available in the state courts. See generally Calderon v. United States District Court (Nicolaus) (9th Cir. 1996) 98 F.3d 1102; see also 28 U.S.C. § 2254(e)(2) (limiting the right to an evidentiary hearing in federal habeas corpusif the prisonerhas “failed to develop the factual basis of a claim in State court proceedings.”) 123. In light of these rules of federal law, denial of discovery in state habeas corpus proceedings would wrongfully impede the right to petition for federal habeas corpus,in violation ofarticle I, section 9, of the United States Constitution. Gonzalez should therefore be reconsidered in light of the enactment ofsection 2254(e)(2), Williams, and Nicolaus. 124. Moreover, under the 1996 federal habeas legislation and the decisions applyingit, fact developmentin habeascorpusis the respon- sibility of the state courts. The human, financial, and institutional cost is both great and unnecessary whenthe granting of discovery, an evidentiary hearing, and habeascorpusrelief is deferred to federal court rather than occurring in state court as contemplated by federal law. In addition, a petitioner is ordinarily expected to raise all claims in single,timely petition, and runsthe risk of waiving even meritorious claimsifhe fails to do so. Brown v. Vasquez, 952 F.2d 1164, 1166-1167 (9th Cir.), cert. | 54 denied, 503 U.S. 1011 (1992); In re Clark, 5 Cal.4th 750, 767-779 (1993). 125. The scope of habeas corpusinvestigation authorized by Jn re Clark, 5 Cal.4th at 783-784 and footnote 19, cannot be interpreted to be narrowerthan that required to fulfill counsels’ duty to their client in light of the requirements of federal habeas corpus practice. For example, McCleskey v. Zant, 499 U.S. 467 (1991), imposes a very broad duty to - investigate. McCleskey v. Zant, 499 U.S. at 498 (a “petitioner must conduct a reasonable and diligent investigation aimedat includingall relevant claims and groundsforrelief in the first federal habeaspetition”) (emphasis added); compare In re Robbins, 18 Cal.4th 770, 792-792 and n.12-14 (1998); In re Clark, 5 Cal.4th at 783-784. The standard set by the United States Supreme Court must override the rule stated in Peoplev. Gonzalez, 51 Cal.3d at 1258-1261, prohibiting all pre-OSC discovery without regard to the particularized showing in an individualcase. 126. The constitutional violation set forth in the instant claim could be avoided by either granting an order to show causein this case and thereafter ordering discovery, or by authorizing pre-OSC discovery for Petitioner. 127. In any event, the present petition sets forth a prima facie case on all the stated claims. Therefore, Petitioner is entitled to the issuance of 55 an order to show cause, andto a full evidentiary hearing with accessto this Court’s subpoena power, to adequate funding and opportunity to investigate, and to conductall the discovery relevant to each ofhis claims. 128. Petitioner further moves for any discovery order issued to be a “continuing” discovery order, requiring Respondent to informPetitioner’s counsel of any of the materials, documents or information covered by the order herein which comes to Respondent’s attention after the granting of said order. 129. Finally, Petitioner requests that this Court issue a protective order requiring Respondentto preserveall materials sought by Petitioner until such time as the present request for discovery has been fully litigated. 130. The holding of People v. Gonzalez, 51 Cal.3d 1179, 1258-1261 (1991) that discovery orders are not appropriate in a habeas corpus matter prior to the issuance of an order to show cause,is predicated on the assumption that “if the People’s lawyers have such [discoverable] information in this or any other case, they will disclose it promptly and fully.” Id. At p. 1261. ‘Where the reason of a rule ceases, so should the tuleitself.” Civ. Code, § 3510. Gonzalez was also based on the conclusion that “there is no post-conviction right to ‘fish’ through official files for belated grounds of attack on the judgment.” Gonzalez, 51 Cal.3d at p. 56 1259. The present request for discovery is not a “fishing expedition’ for new groundsofattack; it is a request for information relevant to known groundsofattack. Noris it “belated;” this Petition is presumptively timely. 131. The law of federal habeas corpus presupposesthat full and fair factual development of habeas corpus claims will occurin the state courts. Kenney v. Tamayo-Reyes, 504 U.S. 1, 15 91992) [“the State must afford the petitioner a full and fair hearing on his federal claim”; see also Williamsv. Taylor _U.S.__, (2000), 120 S.Ct. 1479; 146 L.Ed. 2d 435; cf’ White v. Ragen, 324 U.S. 760 (1944). Discovery and other mechanisms for factual developmentof claims are limited in federal habeas corpusprecisely because they are presumedto be available in the state courts. See generally Calderon v. United States District Court (Nicholaus), 98 F.3d 1102 (9th Cir. 1996); see also 28 U.S.C. § 2254(e) [limiting the right to an evidentiary hearing in federal habeas corpusif the prisoner has “failed to develop the factual basis of a claim in State court proceedings”].) Moreover, the reliability componentof the Eighth Amendmentin capital cases requires that a full and fair adjudication be afforded to all federal constitutional claims in atleast one forum. California’s post-conviction procedures afford the only forum for many such claims, particularly ineffective assistance of counsel under the Sixth Amendmentandall other federal constitutional 57 claims involving facts outside the record on appeal. 132. In light of these rules of federal law, denial of discovery in state habeas corpus proceedings would wrongfully impedethe right to petition for federal habeas corpus, in violation of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, and Article 1, section 9, of the United States Constitution. Gonzalez should therefore be reconsidered in light of the enactmentof section 2254(e)(2), Williams, and Nicholaus. 133. In any case, the present Petition sets forth a prima facie case of relief on these claims. Therefore, Petitioner is entitled to the issuance of an order to show cause, and henceentitled to conduct this and other discovery without regard to Gonzalez. IX CLAIMS FOR RELIEF A. PETITIONER MUST RECEIVE A NEW TRIAL BECAUSE JUROR BIAS AND MISCONDUCT FATALLY INFECTED PETITIONER’S CONVICTIONS AND DEATH SENTENCE 134. Petitioner’s convictions and death sentence were unlawfully and unconstitutionally imposedin violation of his rights to due process, to a fair and impartial jury, to confrontation and cross-examination, and to freedom from cruel and unusual punishment underthe Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and under 58 Article I, sections 1, 7, 15, 16, and 17 of the California Constitution as well as Petitioner’s statutory rights, because they were based on juror bias and misconductin that a juror gave materially false answers during voir dire which were designed to conceal and deceive, acted in a mannerprejudicial to Petitioner during deliberations, and introduced extrinsic information into the deliberations at both the guilt and penalty phases. 135. In Petitioner’s case, the system failed because one ofthe jurors was a convicted felon, legally disqualified from service, who repeatedly lied about material facts in his juror questionnaire, and introduced material and prejudicial extrinsic evidence into both the guilt and penalty phases of Petitioner’s trial, fatally infecting both Petitioner’s conviction and death sentence. 136. Petitioner alleges the following facts in support of this claim, amongothers to be presentedafter full investigation, discovery, access to this Court’s subpoena power, adequate funding for investigation and experts, and a hearing on the merits of the claim. Facts Jury Summons 137. Juror Pervies Lee Ary,Sr., received the standard “Summonsfor Jury Service.” Exh. 238. In that summons,the jurors were clearly required 59 to certify that they were not disqualified from jury service by,interalia, a prior felony conviction. Exh. 238; see Cal. Code Civ. Proc., section 203(a)(5) (persons who have been convicted of a felony are ineligible to serve on juries; Cal. Const. art. VII, § 8(b); People v. Karis, 46 Cal.3d 612, 633 (1988) (the legislature since 1851 has concludedthat ex-felons are unfit for jury service.) 138. Juror Ary did not request disqualification even though he was a convicted felon. Exhs. 23 8, 239; CT 5144-67. Juror Ary’s ineligibility to serve apparently was not discovered by the Jury Commission.’ Pre-instructions 139. Juror Ary was present for jury service on February 1, 1993. At that time, all jurors were instructed by the Court as follows: a. It will be your duty to accept those instructions on the law without reservation, and you must do this even though you don’t agree with the policy of the law or you have some doubts aboutthe wisdom ofthe particular law involved. * To the extent that the prosecutor was aware of Juror Ary’s criminal record and failed to inform defense counsel, her actions constitute prosecutorial misconduct. Petitioner incorporates each and every allegation set forth in Claim E asif fully pled herein. To the extent that trial counsel was unaware of Juror Ary’s criminal record because counsel failed to file a discovery motion to seek this information,trial counsel rendered ineffective assistance of counsel. Petitioner hereby incorporates each and every allegation set forth in Claim asif fully pled herein. 60 RT 133. RT 143. RT 146-47. d. RT 149. Wediscuss [penalty] now because the decisions of choice which the jury may be called upon to make touches upon issues about which people have strong feelings which mightinterfere or prevent a juror from making a choice between the two possible punishments. §] The law requires that jurors who make the punishment determination be people who can actually make the choice between the two punishments... . It is also vitally important that each juror maintain an open-mindedattitude toward the case. You must not decide either phase of the case until all the evidence has been presented, the court’s instructions on the law have been given and the case has been arguedby the attorneys. . And the question arises, what do we mean by a fair, unbiased and unprejudiced juror? Basically they mean jurors with an open mind, jurors who have not made up their mindor are not so biased as to one particular position that they can sit with an open mindandlisten toall the evidence, the instructions of the court and the arguments of counsel and then makethe decision they must make. 140. Thetrial court had determined that many of the voir dire questions would be answeredby potential jurors through use of a 61 questionnaire. The use ofjuror questionnaires is commonplacein capital and noncapital trials. The questionnaires allow for voir dire to be completed in less time than would be necessary if the jurors were to be asked the same questions on an individual basis. In the instant case, the questionnaire madeclear that the answers were to be given underpenalty of perjury. CT 5167. 141. The court instructed the jurors regarding the questionnaires as follows: In order to make moreefficient use of your time and to minimize your inconvenience and to reduce the necessity of repetitious questioning, a written questionnaire has been prepared for you to answer which addresses your qualifications to serve as a juror in this case. Somewhat lengthy questionnaire, and some say highly personal, some would also say downright intrusive. § It is, however, legally appropriate, designed to provide information necessary to assist the court and counsel in determining your qualifications to sit as a juror in this case. § In the interest of fairness to both sides and the efficient use of your time, I urge you to be forthcoming and thorough in your answers. There are no right or wrong answers to many of the questions. Weare interested in your attitudes and beliefs, especially on the questions relating to punishment and the death penalty. The more thought and consideration that you give to the questionnaire, the less time will be neededin court for oral questioning. § Again, someof the questions touch on highly personal matters and/or beliefs, and if any of you feel the 62 least bit uncomfortable answering any question, you may indicate your preference by writing “private” or “confidential” in the place reserved for the answer. If you do this, you will be questionedindividually out of the presence of the other jurors .... And rememberalso the questionnaires are public record, and you should be guided by that fact in answering the questions. RT 149-50; RT 176 [same.] 142. Thetrial court also explained to the jury what obstacles they faced to becomingjurors in this trial. The court explained potential challengesas follows: Asa result ofall this questioning by both court and counsel, there are two types of challenges that might be made to youto serve as[a] fair and impartial juror. Oneis referred to as a challenge for cause, andit’s exercised by counsel and must be ruled upon bythe court for its validity. § An exampleof- for a challenge for cause if you were related to the defendant, you wouldn’t be ableto sit on his case and determine whether he’s guilty or not guilty and the necessary punishmenthe should suffer,if necessary. Also, if you knew something about the case from another source and you formed an ‘opinion upon the merits of the action, you wouldn’t beableto sit as a fair and impartial juror. Counsel would make a motion to exclude you, and the court would haveto rule that you may be excused. RT 151; 177 [same]. The secondtype of challenge is one referred to 63 RT 151-52. as a peremptory challenge. It’s one that may be exercised by a party to an action, by both the attorneys without assigning any reason for the challenge itself. Don’t feel embarrassed by the exercise of a peremptory challenge against you by counsel becauseit’s the right of the parties within certain limits to obtain a jury of their own choosing, and the use of the peremptory challenge is a method by which they protect that right. { So the exercise of a peremptory challenge should never be made the subject of surmise or conjecture on the part of the jury whois excused or the remaining members of the panel. 143. Further pre-instructions given by the court to the jurors included: RT 1064. What we’re looking for as jurors in a case such that is [sic] are persons that could not only listen to the evidence in the guilt or innocence phase with an unbiased, unprejudiced mind, and make that decision of guilt or innocence,but if, in fact, the defendant were found guilty of murder first degree with a special circumstance,that they could listen to the evidencein the penalty phase ofthe trial with an open mind and then enter into this weighing process of weighing aggravation against mitigation with an open mind. Andthey, if they found that aggravation outweighed mitigation so substantially that death was warranted, they would actually have a choice between the two penalties at that time and would not every time choose one penalty and not the other. 64 144. The jurors were also pre-instructed: You mustdecide all questions of fact in this case from the evidencein this trial and not from any other source. You must not make any independentinvestigation of the facts or the law or consideror discuss the facts as to which there is no evidence. RT 1795. Juror Questionnaire 145. Juror Ary completed and signed his questionnaire on February 3, 1993. Juror Ary failed to answertruthfully each of the following highly relevant and material questions. 146. In question #25, Juror Ary was askedthe following: “Have you, a close friend or relative ever been accusedof a crime, evenif the case did not come to court?” 147. Juror Ary answered, “No.” This statement was false on multiple material grounds. First, Juror Ary is, in fact, a convicted felon and misdemeanent, and has been charged with additional crimes. Second, Juror Ary knewat the time of Petitioner’s trial that several of his relatives had been convicted of felonies. 148. Juror Ary had been charged with at least the following crimes prior totrial: 65 On March 18, 1964, Juror Ary was charged in Contra Costa County Superior Court violation of two counts of violation of Cal. Pen. Code § 211 (Robbery - felony), and violation of two counts of Pen. Code § 484 (Grand theft - felony). He was convicted of felony grand theft, impositionof sentence was suspended and he was placed on felony probation, including a condition that he serve a six month sentence to the Contra Costa County Jail. Exh. 239. On December30, 1971, Juror Ary was charged with seven counts of Robbery in violation of Pen. Code § 211 in the Superior Court of Los Angeles County. Exh. 240. On May7, 1982, Juror Ary pled guilty in the Pomona Municipal court to violating section 23152a of the California Vehicle Code (driving underthe influence of alcohol or drugs). Juror Ary was placed on probation for three years with conditions, including but not limited to 66 attending 32 hours of drug and alcohol school and 12 Alcoholic Anonymous meetings. Exh. 241. | d. On September17, 1982, Juror Ary was ordered to appearat a probation violation hearing on October 12, 1982. Juror Ary failed to appear and a bench warrant wasissued andhis probation was revoked. On October 13, 1982, Juror Ary waivedhis right to a hearing and admitted the probation violation. Juror Ary was found bythe court to be in violation ofhis probation. However, his probation was reinstated. On July 17, 1984, Juror Ary’s probation was terminated pursuant to Sec. 1203.3 Pen. Code. Exh. 241. 149. Juror Ary’s eldest son, Pervies Lee Ary,Jr., also had a serious criminal record with numerous felony convictions for possession and sale of drugs, a sentence to state prison, and a restraining order issued against him due to domestic violence against the mother of his two children. a. In Criminal Felony Complaint 86-31857, Contra 67 Costa County, on April 1, 1986, Pervies Lee Ary, It., was charged in a four-count indictment with violations of Pen. Code section 11352 (Sale or Transportation of Narcotic); possession and possession for sale of cocaine and marijuana, and pled guilty to all counts on October 15, 1986, and was placed on probation for three years. Exh. 243. In Criminal Complaint 86-32871, Contra Costa County, Pervies Lee Ary, Jr., who was on probation, was charged again with possession for sale (Cocaine) and Felony Committed while on Bail or his own recognizance. Pervies Lee Ary,Jr., pled guilty in this case. Exh. 244. His probation for the prior case was terminated and he was sentenced to 150 days in county jail. © In Criminal Complaint 87-34552, also in Contra Costa County, Pervies Lee Ary,Jr., pled guilty to violation of California Health and Safety Code Section 11360(a) (Sale and Transportation 68 of Marijuana) and on November4, 1987, probation was denied and he was sentencedto three years in state prison with execution of sentence suspendedpursuant to Cal. Welf. & Inst. Code section 3051, the court finding that Ary, Jr., was addicted to narcotics and was amenable to treatment. Ary, Jr., was committed ~ to the California Rehabilitation Center (Norco) for treatment for a maximum ofthree years. Exh. 245. In Criminal Complaint 89-014752, Contra Costa County, Pervies Lee Ary,Jr., was charged with a misdemeanorin violation of Vehicle Code Section 14601.1(a) (driving whenprivilege suspendedor revoked for other reason). Ary, Jr., pled guilty and was sentenced to the work alternative program. Exh. 246. In Criminal Complaint 90-002221, Contra Costa County, Pervies Lee Ary, Jr., was charged with violation of Vehicle Code section 14601.1(a). 69 The case was consolidated with the aforementioned case. Exh. 247. f. In Case # 92-05348, Contra Costa County, Beverly Miller, the mother of two of Pervies Lee Ary,Jr.’s, children, requested a restraining order from the Court. On November3, 1992, a temporary restraining order was issued. On November23, 1992, Pervies Lee Ary, Jr., was ordered to stay away from the residence, and legal and physical custody of the two children was granted to Beverly Miller. Exh. 248. 150. Juror Ary’s second son, Pervies Lee Ary II, also had a criminal record at the time of Ary’s jury service: a. Pervies Lee Ary II was charged in the County of Los Angeles with committing a Misdemeanor Battery in violation of Pen. Code § 242. The battery was allegedly committed on February 8, 1993, and the case wasfiled on February 24, 1993, the same day Ary, Sr., was questioned on voir dire in Petitioner’s case. RT 1092. On the 70 same date an arrest warrant wasissued. The case was ultimately dismissed. Exh. 250. 151. Juror Ary also had a first cousin who had been sentencedto life in prison in the 1950s for a homicide. Ary Dec., Exh. 53. 152. Juror Ary was aware,at the time of Petitioner’s trial, of his son, Pervies Ary, Jr.’s criminal convictions and sentence to the California Rehabilitation Center (“Norco”). Juror Ary lived with his son Pervies Ary, Jr., Beverly Miller, and their two children during approximately 1990-1991. This was after Pervies Ary,Jr., had been released from Norco. Miller Dec., Exh. 90. 153. Based on the foregoing information and additionalfacts detailed below, Juror Ary also lied when he answered “no”to question #24: “Haveyou,a close friend or relative ever been a witness to a crime?” 154. During deliberations, Juror Ary told the other jurors “stories” about crimes he had seen while driving his bus in Oakland. Graff (McLaren) Dec., Exh. 70. 155. In addition, Juror Ary witnessed his son beating Beverly Miller, the mother of Juror Ary’s grandchildren. Miller Dec., Exh. 90. This occurred after Pervies Ary, Jr., was released from prison. Miller Dec., Exh. 90. 71 156. Juror Ary also failed to truthfully answer question # 61 which asked: “Have you, a close friend or relative ever had a problem involving the use of drugs or alcohol?” 157. Juror Ary answered, “No.” This was a false answerin at least the following material respects: a. Juror Ary’s son, Pervies Ary, Jr., had been arrested on numerous occasions for criminal drug violations. Exhs. 243, 244, 245. b. Juror Ary’s son, Pervies Ary, Jr., was sentenced to the California Rehabilitation Center, “Norco,” having been found to be a drug addict pursuant to Welf. and Inst. Code § 3051. Exh. 245. c. Juror Ary had been convicted for driving under the influence; see 241 above. d. Juror Ary’s order of probation from his 1964 felony conviction specifically mandatedthat he “absolutely refrain from the use of alcoholic beverages during his period of probation.” Exh. 239. e. During 1990, when Juror Ary lived with his son, Pervies Lee Ary, Jr., and Beverly Miller, Juror Ary was “drunk much of the time. ...” In Miller’s opinion, Juror Ary “was a complete alcoholic.” Exh. 90. Voir Dire 158. It was clear from the questionnaire and the questions asked 72 during voir dire that the court and counsel considered the question of involvement with drugs and/or violence to be extremely relevant and material to whether a juror would be able to be fair and impartial during service in this case. During voir dire, Juror Ary wastold “this, where the killing occurred was a drug house. And someof the people who may testify, you know, may have used drugs.” RT 1097. He was then asked, “Tijs that going to cause you any bias or prejudice one wayor the other?” Juror Ary answered, “I don’t think so.” RT 1097. There was no follow-up question because counsel and the court were unaware of juror Ary’s son’s serious involvementin drugs, his felony drug possession andsales convictionsor his status as an addict. 159. On voir dire, Juror Ary was also asked by the court if there was “{a]nything about this type of case that would cause you any bias or prejudice where you couldn’t be fair to both sides?” Juror Ary answered, “Injo.” RT 1098. 160. One ofPetitioner’s trial counsel has subsequently stated that: I have been informed by present counsel for Mr. Boyette, Lynne Coffin, State Public Defender, that one of the jurors in Mr. Boyette’s case had a prior felony conviction whichhefailed to reveal to the jury. Moreover, she has informed methat the juror’s son also had felony convictions that involved the possession and sale of drugs. Had I been awareofthis 73 information I would certainly have voir dired the juror on this information and I believe, based on my experience with Judge Haugner, whotried this case, that Judge Haugner would have excused the juror for cause. If Judge Haugnerhad not excused the juror, I would have used a peremptory challenge to remove him. Cannady Dec., Exh. 59. 161. With regard to the material facts relating to his jury service discussed infra, Juror Ary readily admits that he was convicted andjailed in 1963. He hasstated, “I was arrested in the 1963s [sic] and spent some time in jail. This experience made me better able to assist the undecidedjurors who did not understand whatlife waslike, in jail.” Ary Dec., Exh. 53 (emphasis added.) Juror Ary also admits that he was awareofhis son Pervies Ary, Jr.’s, criminal record. Juror Ary hasstated, “my eldest son had spent time in prison. He told me abouthis time there. He told me how he had been forced to join a prison gang. You can’t get along in prison if you don’t join a gang for protection.” Ary Dec., Exh. 53. Guilt Phase 162. None ofthe information detailed above was knowntotrial counselat the time of trial. Juror Ary was seated on the jury. 163. Juror Ary injected highly prejudicial, material and extrinsic evidence into the guilt phase of Petitioner’s trial. 74 164. Juror Ary was demonstrably one of the most active jurors throughoutthe trial. Even before the close of evidence in the guilt phase, Juror Ary was asking numerous questions ofthe court. 165. On March 8, 1993, prior to guilt phase deliberations, the court announcedto counselthat it had received a multi-question note from Juror Ary. RT 1576. Thefirst question was “How can a homeless person obtain such private lawyerorare the [sic] court appointed” The court responded to counsel, “That’s really none of his business, so we’re not going to commenton that.” RT 1576. 166. The second question was“[t]he neighbor wholived 4 houses up the street describe the size of the person he saw standingin the street or over (near) the body (sml, med,Irg) short ortall” RT 1576. The prosecutor ultimately reopenedher case to provide this information. RT 1634-1635. 167. The third question was “[t]his blind person beingtried also or what” RT 1576. To which the court responded to counsel, “[t]hey have been told and they would be told again in instructions not to worry about him.” RT 1577. 168. The final question was “did the person ontrial or is he willing to take a lie detector test.” The Court replied, “whichis really of no - none of their business as such.” RT 1577. 75 169. These questions indicate a bias against Petitioner, as Juror Ary appears to be seeking informationto use in arguing for a guilty verdict. The court failed to respond to Juror Ary’s question.° 170. By his question regarding Petitioner’s ability to retain two private attorneys when he wasallegedly homeless, Juror Ary sought to exploit a perceived discrepancy in Petitioner’s testimony. This question implicates Petitioner’s credibility, as does Juror Ary’s question regarding a lie detectortest. 171. Juror Ary’s question regarding Petitioner’s co-defendant, Antoine Johnson, was also an indication that at least this juror was speculating about matters not before him. 172. The record indicates that the jury was confused about the scope of what it could consider in determining Petitioner’s guilt. The court’s failure to put an end to this speculation could only have encouraged the jurors to continue speculating and considering extrinsic and improper matters outside of the evidence. 173. The court’s failure to respond to Juror Ary’s four questions not only allowed, but invited the jury to discuss the case before it was submitted ° Petitioner raised the impropriety of the court’s failure to respond to Juror Ary’s four questions in Appellant’s OpeningBrief, Issue F, pps. 85- 90, 76 to them andto baseits verdict on speculation about matters not properly beforeit. 174. The court’s failure to answer Juror Ary’s questions permitted the jury to speculate about irrelevant and prejudicial matters, which it was not permitted to consider in deciding either guilt or penalty. 175. After the presentation of the guilt phase evidence, the jury retired to deliberate. The record showsthat the jury was divided as to Petitioner’s guilt. It is apparent from Juror Ary’s declaration that the jury was divided about whetherto return a verdict of secondvs. first degree murder. Ary Dec., Exh. 53. 176. The jurors requested extensive read-back of testimony and additional review of evidence presented at the trial. After two hours of deliberation, the jury sent down a note requesting an enormous amountof material, including a read-back of Donald Guillory’s testimony, all the tapes and transcripts from Petitioner’s police interviews; Tonita Thomas’s testimony, photographs from inside the house, outside the house and ofthe victims; Bettye Jackson’s testimony of her description of Donald [sic] Thomas, aka Dee; the nine millimeter Glock gun; David Brooks’ testimony from the second day; and the school teacher’s testimony regarding the 77 numberof gunshots heard. CT 849; RT 1829.° 177. Subsequently, during the morning session of March 11, 1993, the court discussed another note sent by the jury. This note asked for the testimony of the neighbor, Mr. Brooks, from the first day, and the prosecutor’s charts to describe the law offirst and second degree murder. RT 1831-32. After it was explained to the jury that the chart was not evidence, the following exchange took place between the court and the foreperson for the guilt phase deliberations: The Court: Do you want meto reinstruct you on first and second degree murder or do you want to make out another ° Read-backsof testimony were a source of deep dissension within the jury room. “[T]Jhere ... was a protest anytime a juror wantedto ask the judge a question or look at a piece of evidence. On oneoccasion,after a female jury memberasked for some piece of information from the record, another jury membersaid, ‘maybe we should shoot her.’ This kind of bullying was frequent from several strong-willed people.” Karantzalis Dec., Exh. 83. | It is apparent that the Court added to these problems during the guilt phase deliberations. The jurors did ask for an unusual numberof read- backs of testimony. This was clearly the product of their divisions. The trial court made its impatience with the lengthy process apparentto the jurors. “Approximately three-fourths of the jury didn’t want to discuss the guilt evidence during deliberations. They wanted to immediately vote guilty and move on. Someofthe jurors, including me, wanted someofthe testimony read back to us. I rememberthe judge becoming very impatient with us and somewhat angry about our requests.” Rennie Dec., Exh. 102. This display of impatience further discouraged and undermined the dissenting jurors. 78 Juror Orgain: The Court: Juror Orgain: The Court: Juror Orgain: Court: RT 1832. No,just if we may, I don’t know if it is proper — Whydon’t you go upstairs and make out whatever — We wanta clarification of the law. All night. And we're not — [w]hy don’t you write that out and tell me what it is and then we’ll give it to you. All right. You may go back upstairs. 178. Although there was absolutely no supporting evidence, Juror Ary raised the specter that Petitioner had committed additional murders to convince the other jurors that they had to find Petitioner guilty offirst degree murderandfind the special circumstancestrue in orderthat Petitioner would be sufficiently punished. Juror Ary has admitted that extrinsic evidence was injected into guilt phase deliberations with the purpose of convincing reluctant jurors to vote for first degree murder. Jury Ary hasstated: [The jury] discussed the fact that this may have been the first murder for which Mr. Boyette had been caughtbut that he may have committed previous murders. If we found second degree murder, when he got out in seven years he wouldfeel like he’d gotten away with these killings and would kill again. 79 Ary Dec., Exh. 53. 179. That Juror Ary inaccurately attributed at least one other murder to Petitioner is confirmed by one ofthe other jurors. There was onejuror, a black male bus driver named Pervies, who was very muchin favor of giving Maurice the death penalty. At one point, when it was becoming quite clear to Pervies and the others that I didn’t want to vote for death, Pervies said, ‘But rememberthe other murder.’ Pervies told me that duringthetrial, another alleged murder was mentioned butthat the judgetold us not to consider it. I didn’t rememberthe judgetelling us this, but it stuck in the back of my mindafter Pervies told me.’ Lewis Dec., Exh. 86. 180. Additional examples ofjuror misconduct include the fact that jurors read newspapers during thetrial. “At one point during thetrial, I rememberreading in the paper that one of Maurice’s attorneys, Richard Hove, was under indictment for something. I believed he was charged with money-laundering. I was not the only person who was aware of Mr. Hove’s legal problems.” Rennie Dec., Exh. 102; “At some point duringthetrial, 7 The juror’s declaration is somewhat ambiguousas to when the juror believed she received this information and how it impactedherguilt phase deliberations. However, based on Juror Ary’s statement, it is clear that he made these statements with regard to the guilt phase. The fact that they also influenceda jurorin the penalty phase only adds to the prejudice of the misconduct. 80 the first alternate juror mentioned that one of Maurice’s attorneys, the quieter dark haired one, was ontrial for money laundering. This is the same juror whoeventually replaced me.” Karantzalis Dec., Exh. 83; see also Paul Grabowicz, Former County Attorney Triedfor Laundering Drug Money, Oak. Trib., March 18, 1993, at B2, Exh. 256. 181. Knowledgethat one of Petitioner’s attorneys was accused of a crime prejudiced Petitioner’s defense. The taint from counsel’s alleged impropriety would have undermined the persuasive power of defense counsel and enhancedthe credibility of the prosecutor’s positions. 182. Whenthe jury returned with their verdict for the guilt phase, the clerk read the verdict forms. The following revealing exchange took place: Court Clerk: Wethejury furtherfind the degree of murder to be second degree. Juror Orgain:* No, no, no. The Court: You signed the second degree. Juror Ary: He made a mistake. RT 1834. * Juror Orgain was the foreperson for the guilt phase. 81 Penalty Phase 183. Juror Ary’s determination to see Petitioner sentenced to death continued, with moreforce, if possible, and in an even more blatant manner in the penalty phase. 184. After the penalty presentation, the prosecutor gave her closing argument. A review of the facts demonstrates that the prosecutor’s misconductdirectly contributed to the juror misconduct committed at the penalty phase. See Claim E. 185. Other than the capital crimes, there was no evidence of any violent activity by Petitioner. The only evidence presented by the prosecution in aggravation wasthe stipulation of two prior nonviolent felony convictions for drug offenses and inflammatory victim impact evidence. 186. Both in cross-examining Petitioner’s experts and in her opening and closing arguments, the prosecutor argued Petitioner’s future dangerousness and, without any evidentiary support noras rebuttal to evidencepresented by the defense, her belief in the likelihoodthat Petitioner would kill again. 187. Even in the absence of any evidence that Petitioner was involved in gangactivity, or that the two killings were gang-related, the 82 prosecutor questioned Petitioner’s expert in a mannerthat implied that unless Petitioner were executed, Petitioner would likely become a gang memberin prison who would kill innocent people. These actions would thus create more grieving families for whom the jurors would be personally responsible. The prosecutor then stressed this pointin her closing argument. “Can you put another family through what they went through? That’s what you have to decide.” RT 2003. 188. These highly inflammatory tactics injected impermissible, arbitrary, and inaccurate factors into the jury’s sentencing determination, unduly inflamed the jury and caused the jury to speculate about what might occur in the future. These impropertactics also completely diverted the jury from its legally defined task and formed the basis for the jury misconductthat followed. In fact, at least in part as a result of the prosecutor’s misconduct, the jurors were more proneto believe that their | speculation in this area was permissible, since the prosecutor had directed them to engage in exactly this type of behavior. 189. The prosecutor’s cross-examination and argumentstrongly emphasized prison gangs. On cross-examination of the defense expert psychiatrist, Dr. Fred Rosenthal, she asked whether Petitioner could be influenced by a gang, RT 1897, or would do something in orderto get into a 83 gangorto establish his status in gang. RT 1898. The prosecutor then asked the following questions,eliciting the following responses: Q. Andyou have interviewed inmates in prison, I guess, state prison as well as the differentjails? I have, yes. And you’re awarethat in these prison, there are prison gangs, right? Yes. Have you everheard of the Black Guerilla Family? I’ve heard of them. Yeah. Andisn’t that a very powerful prison gang in the State of California? RT 1898. After an objection to this question was sustained, the prosecutor asked, “[w]ould you say that the Black Guerilla Family would be the type of gang that might influence Maurice Boyette to commit other crimes?” RT 1898. 190. In her closing argument, the prosecutor returned to the theme of gang activity and future dangerousness, paraphrasing the cross- examination of the defense expert to draw her own unsupported conclusions and once again focusing on the Black Guerilla Family: Well, aren’t there gangs in prison who would 84 exert that type of control? Isn’t that the personality of someone whois going to do anything for a gang? Ever hear of the Black Guerilla Family? And all of a sudden,hestarts backing off. I asked him: In other words, if Mr. Boyette gets caught with a good group of people, he will do good things;if he gets caught up with a gang, he will do what they want him to do? A hit man? RT 2001. 191. The prosecutor continued her prison-gang related theme: “as soon as I start mentioning gangs, because you know what I’m getting at, his likelihood ofkilling again, hisfuture dangerousness. The perfect personality who could kill again.” RT 2002; emphasis added. 192. The prosecutor wentfurther: “they brought outall these things that he is a big follower. Think of prison life, can you imagine the stress of prison? You have no idea. And the gangs, and the pressures.” RT 2018; emphasis added. Here the prosecutor also put forward her themethat the jurors did not have the information or knowledge that they needed to understandthe true facts aboutprison life. Not only was this misconduct in that the prosecutor wastestifying to facts not in evidence, but as can be seen by what followed, the prosecutor’s actionsinvited the jurors to consider extrinsic evidence in deciding whether Petitioner should receive the death penalty. 85 193. Furthermore, the prosecutor’s focus on gangaffiliation, particularly a gang knownasthe “Black Guerilla Family,” in the absence of any evidence, wasa blatant appeal to racism, and was designed to further inflame the jury and divert it from its propertask. 194. The prosecutor stressed the themeofthe “street smart” juror- a theme whichlead directly to the misconduct which continuedin the penalty phase: And I think in this part of the proceeding,it is a very different type of proceeding, it is a very different type of proceeding, it’s emotional, you need street smarts, you can’t be naive about these things. J recommendyou pick a very Street smartforeman. A very street smart foreman who will lead you and guide you. RT 1994; emphasis added. 195. The prosecutor returned to this theme - in case the jury had forgotten its importance - near the end of her argument: What I wantto do is just say a couple things to you. First ofall, for some ofyou, in your backgrounds, this is a very different worldfor you. ... We’ve taken you off the streets from different towns in the Bay Area and we’ve thrown you in here. And for someofyou, you’ve seen someofthe violence that goes on, you know. You have street smarts. So those ofyou who aren’t exposed to this, listen to yourfellowjurors who know what's going on. You listen and you bevery patient. 86 Don’t have a set opinion night off the bat, you listen and you talk aboutit. RT 2019. 196. The prosecutor asked the jurors to forego their responsibility for individualized sentencing andrely on the “street-smart jurors.” The prosecutor wasblunt - anyone who could not vote for death should leave the jury: “[n]ow,if you find that this is just too much for you and you cannot deliberate in a caselike this, you must let us know. We have alternates.”” 197. The jury then began penalty phase deliberations. It is axiomatic that penalty phase deliberations are extremely difficult for jurors. Oneofthe difficulties is the conflicting instructions they are given regarding how their deliberations should be conducted, 1.e., how long should an individual juror maintain his/her own personal opinion andat what point should he/she bowto the will of the majority. In this case, pnor to the start of deliberations, the jurors had already been exhorted to follow “street wise jurors,” and not to follow “naive” beliefs. Moreover, since Juror Karantzalis had been removed from the jury for being unable to be ” In responseto the prosecutor’s argument, Juror Karanzalisleft the jury because he did not feel he could vote for death. Karantzalis Dec., Exh. 84. 87 “fair” because he favoredlife without possibility of parole, it clearly follows that the remaining jurors who did not favor the death penalty would be extraordinarily reluctant to dispute the majority view point.'° 198. As the prosecutor had urged, Juror Ary, a “street smart” juror was elected penalty phase foreperson. RT 2089. It is evident, not only from his election as penalty phase foreman, but from the comments of other jurors, that Juror Ary was already a leader of the jury. Numerousjurors expressed this feeling: a. I was impressedby the juror who wasa bus driver - he was very sharp. He knew the bus schedules so well that he could get to lunch on the busses faster than a taxi cab. Tallman Dec., Exh. 119. b. I rememberone ofthe natural leaders in the jury wasa very large black man named Pervis[sic]. He worked a busroute in the Oakland-San Leandro area, including E. 14 St. Salcedo Dec., Exh. 106. c. Pervies remembers what wassaid during the trial and presented it very accurately. He had a way of presenting evidence to each person which wasits correct or accurate interpretation. This was very helpful during deliberations because a couple of college kids on the jury would interpret testimony way off the mark. '0 As previously noted, the trial court had also madeit clear to the jury that it was impatient with the jury’s failure to reach a quick unanimity in the guilt phase ofthetrial. See Footnote 6. 88 Salcedo Dec., Exh. 106. d. Everyone wasparticipating in the penalty deliberations. Pervis [sic] again proved to be a natural leader in the group. He wasthe biggest person in the jury, and the fact that he was black helped as far as my being convinced he wasnot prejudiced against Maurice becauseofhis race. Salcedo Dec., Exh. 106." 199. It was also apparentthat the prosecutor’s admonition to ignore the “naive” jurors and elect a “street smart” foreman was heededbythe majority of the jury: a. The jurors came from different backgrounds and neighborhoods. It was fairly obvious who was from the rougherinnercity of Oakland. I remembera bus driver from Oakland who had a lot of street smarts. He told us stories about crimes he had seen while driving his bus in Oakland. There was also a woman whotold us she had been car jacked beforethe trial. I was living in Pleasanton at the time, and I guess | waspretty naive, so I definitely listened to what these jurors had to say. Graff (McLaren) Dec., Exh. 70. b. I considered the college kids [who were holding out] to be the lowest.group ofjury members because they were negative about understanding the whole process. They didn’t seem very knowledgeable about the law orthe justice system even though they werein college. They '' Juror Ary’s important and divisive role is further confirmed by anotherjuror whohasstated, “‘[t]he foreman was not very helpful during our deliberations. He was not a good mediator.” Mann Dec., Exh. 87. 89 Just weren’t with it. Salcedo Dec., Exh. 106. 200. From the beginningat least three jurors were “holding out” for a life without possibility of parole sentence. During deliberations, not only did the majority ofjurors have disdain for these jurors, see, e.g., Salcedo Dec., Exh. 106, but the holdout jurors became unsure of their ownrole based onthe actions of fellow jurors and the prosecutor’s improper comments. As one jurorstated: I felt that the jury was deadlockedat that point and I didn’t understand what the consequences would be if we didn’t end up agreeing on one sentence. The three of us who were in favor of prison wereall female and I didn’t think we would have any luck in convincing the other nine jurors to change their vote. Compassion didn’t appear to mean muchto the otherjurors. Lewis Dec., Exh.:86. 201. Juror Ary agrees that these jurors were singled out andisolated by the other jurors whofelt that the holdouts simply neededto be educated. He hasstated the following in this regard: [t]here were three Jurors who were hesitant at first to sentence Mr. Boyette to death. They were people who didn’t understand what life was like on the streets. They had not experienced anything.” Ary Dec., Exh. 53. 202. Other jurors confirm this situation: a. During penalty phase deliberations, some jurors 90 were adamant about giving the death penalty right away. I and a few other jurors (no more than three) needed more time coming to a decision. Graff (McLaren) Dec., Exh. 70. At the penalty phase deliberations, I remember there were two people holding out from giving Maurice the death penalty. It seemed like they didn’t believe in taking someone’s life at first. I don’t know whythey changed their minds. Mann Dec., Exh. 87. I rememberthe penalty phase deliberations were very active, with lots of discussion. We were trying to convince the holdouts to change their minds. I had already made up my mind,and I wantedto getthis trial over with. Mann Dec., Exh. 87.7 203. Thus, the jury began penalty deliberations divided not just numerically but also by the artificial boundaries created as a result of the prosecutor’s elevation of “street smart” jurors over “naive” Jurors. As defined by the prosecutor and Juror Ary, naive jurors were those jurors who questionedthe inevitability of a death sentence and street smart jurors were those who believed that the necessary and only appropriate sentence was death. 204. Given the division amongthe jurors, Juror Ary took matters into his own hands. Althoughthe jury had been instructed that they were 2 See also Lewis Dec., Exh.86. 91 not to consider extrinsic evidencein their deliberations, Juror Ary injected just such highly prejudicial, material extrinsic evidenceinto the deliberations. 205. The information Juror Ary hadfailed to disclose in voir dire took on paramount importancein the sentencing deliberations. He used his personal experiencesin jail to “assist the undecided jurors ....” Ary Dec., Exh. 53. 206. In order to convince the holdout jurors of the accuracyofhis personal views aboutjail and prison, Juror Ary exhorted the jurors to rent the movie American Me.” “I told the holdoutjurorsthat if they wanted to understand whatit waslike in prison, they should watch the movie, American Me. Thatis based on a true story. Two of the jurors rented the movie and watchedit over the weekend. They finally understood that Mr. Boyette could kill again in prison if he was not sentenced to death. After they watched the movie, they changed their votes to death.” Ary Dec., Exh. 53. 207. Confirmation of this highly prejudicial misconductis found in the sworn statements of not only the holdout jurors but a total of five jurors whowerewilling to sign declarations concerning this misconduct: '? A videotape copy ofthe movie is attached hereto as Exhibit 273. 92 I was notinitially in favor of voting for the death penalty for Maurice. I remember one of the jurors - the black bus driver - suggesting to me and someofthe other jurors that we watch the movie American Me. The busdrivertold me that it would be an education for me about what prisons werereally like. I rented the movie one night during the deliberations. American Meis about gangs in California prisons and it was based on true story. Rennie Dec., Exh. 102. During the penalty deliberations, there were a few jurors whoresisted sentencing Maurice to death. One juror, whose identity I do not recall, suggested that those jurors who were against sentencing Maurice to death watch a particular movie. I do not remember what the movie was, but it had something to do with prisoners and prisons. The person who suggested that the jurors watch the moviesaid that the movie would show them the truth about prisons and that sending Maurice to prison was not a good enough punishment. I do not recall whether or not the jurors actually watched the movie, but I do rememberthat they changedtheir vote to death soon after the suggestion was made. Orgain Dec., Exh. 95. The movie American Me wasdiscussed during deliberations. Graff (McLaren) Dec. Exh. 70. I rememberthe movie American Me being talked about during the penalty deliberations. A juror named Pervies recommendedto several jurors that they watchit in order to educate themselves about whatlife was like inside of California prisons. Mann Dec., Exh. 87. I rememberthere was some discussion of gangs 93 with respect to how Maurice would do in prison. I also recall there being mention of a movie during the penalty phase, but I don’t recall if anyone watched it. Salcedo Dec., Exh. 106. 208. The inherently prejudicial nature of the film American Me, watched by somejurors and discussed byall during penalty phase deliberations, is manifest. American Me wasfilmed at Folsom Prison in California. It is a movie of over two hours in length which wasrated by the Motion Picture Association with an “R”rating for violence, profanity, nudity, and mature themes. The movie stars Edward James Olmos and was also produced and directed by Mr. Olmos. 209. Oneofthe central points of the film maker in American Me is that a weak, easily led person who goesinto prison will, whether he wants to or not, be forced to becomepart of a gang and do the gangs’ bidding which includes murder. Moreover,the film depicts itself as being “a true story” and includesas one of the two primary prison gangs depicted, the Black Guerilla Family - the same prison gang namedbythe prosecutor. 210. Film reviewers in Newsweek havestated: The prison sequences are savage and sobering, starting with the rape of Santana [the central character] by an inmate, whom he promptly kills. Such scenes go beyond Hollywood sensationalism, detailing the confrontation of prison subcultures, the Mexicans,blacks, the 94 white Aryan Brotherhood. American Me shows the fearsome logic that makes ethnic gangs the inevitable social structures that arise... American Meis a fiercely impressive film; it butts its way inside you andstays there long after you’ve seen it. Jack Kroll and Lynda Wright, Eddie Olmos’s East L.A. Story, Newsweek, March 30, 1992 at 66, Exh. 251. 211. According to a review in Variety, the movie industry newspaper, American Mecontains: [a] long section detailing life at Folsom State Prison (where the companyshotfor three weeks) that is as fascinating asit is disturbing. { Film sketchesracial divisions within the pen, the rise of the so-called Mexican Mafia, how drugs are smuggledinside, the scams that can makelife there safer . . . [n]Jewcomers must commit brutal acts, preferably murder, to gain entree into the group... Todd McCarthy, American Me, Variety, March 16. 1992, at 59, Exh. 251. 212. A review posted in the Internet Movie Databasestates: American Meis one ofthe darkest, grimmest, most unrelenting, and challenging movies | have ever seen... We are forced to face up to | the horrors of rape (man-on-woman and man- on-man), stabbings, stranglings, burningalive, mutilation .... Santana is a ruthless killer who organizes a gang in Folsom state penitentiary. . . at times creates an almost unbearable tension, as in a sequencethat cuts between Santana on the outside on his first romantic encounter and a group of inmates on the inside moving along to 95 a nearly unsupportable and horrifying climax Frank Maloney, American Me (1992), http://reviews.1md.com/Reviews/12/1227, Exh. 251. 213. The content of the film reinforced the prosecutor’s improper and highly inflammatory remarks made during closing argument, in which she exhorted the jurors to return a death sentence for Petitioner because he would become a memberofa gang in prison. In fact, she stated that he would become a memberofthe “Black Guerilla Family,” the prison gang that is depicted in this film. As a juror herself stated, having watched the film, the jurors whohadbeen holding out for a sentence oflife without possibility of parole were convinced that they had no choice but to sentence Petitioner to death or be responsible for the death ofsomeone in prison. 214. Juror Ary hasaptly stated, “[t]wo of the jurors rented the movie and watchedit over the weekend. Theyfinally understood that Mr. Boyette could kill again in prison if he was not sentenced to death. After they watched the movie, they changedtheir votes to death.” Ary Dec., Exh. 53. 215. Petitioner was prejudiced because evidence could have been introduced to counter the prejudicial extrinsic evidence. Petitioner was deprived not only of his rights to confrontation, cross-examination, and counsel but also he was deprivedofa reliable sentencing determination. 96 Juror Ary Intentionally Concealed Material Facts 216. Juror Ary intentionally concealed material facts during the jury selection process, including, but not limited to, his prior felony conviction, his conviction for driving under the influence, his son’s convictions for drug-related offenses, his son’s incarceration in state prison, his cousin’s incarceration on a life sentence for homicide, his own and his children’s problems with drugs and alcohol, and his combat experience. This intentional concealment deprived Petitioner of his constitutional rights underboth the California and United States Constitutions andhis rights under California law. 217. A defendantin a criminaltrial has a constitutional right to have the charges against him or her determinedby a fair and impartial jury. U.S. Const. amends. VI, XIV; Cal. Const., art. I. § 16; People v. Wheeler, 22 Cal. 3d 258, 265 (1978). To this end, the defendant also hasthe statutory right to exercise peremptory challenges to prospective jurors whom the defendantbelieves cannot be fair and impartial, Code Civ. Proc. § 231, and to challenge for cause any juror harboring actual or implied bias. Code Civ. Proc. § 225. 218. Prospective jurors are examined under oath andare obligated to respondtruthfully to the voir dire examination. The prosecution, the 97 defense, and the trial court rely on the voir dire responses in makingtheir respective decisions, and if potential jurors do not respond candidly, the jury selection process is rendered meaningless. Falsehood,or deliberate concealment or nondisclosure of facts and attitudes, deprives both sides of the right to select an unbiased jury and erodesthe basic integrity of the jury trial process. 219. Had Juror Ary not concealed his prior offenses and those of his children, Petitioner not only would have hada basis for a challenge for cause but the juror would have automatically been excusedasineligible to serve on the jury. 220. In In re Hitchings, 6 Cal.4th 97 (1993), this Court adopted the reasoning of the United States Supreme Court regarding the fundamental importance ofvoir dire: Voir dire examination servesto protect [a criminal defendant’sright to a fair trial] by exposing possible biases, both known and unknown,on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror’s being excused for cause; hints of bias not sufficient to warrant challenge for cause mayassist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious. In re Hitchings, 6 Cal. 4th at 109, quoting McDonough Power Equipment, 98 Inc. v. Greenwood, 464 U.S. 548, 554 (1984). 221. The Hitchings court further held, “[w]ithout truthful answers on voir dire, the unquestionedright to challenge a prospective juror for cause is rendered nugatory. Just asa trial court’s improperrestriction of voir dire can underminea party’s ability to determine whether a prospective jurorfalls within one of the statutory categories permitting a challenge for cause[citation], a prospective juror’s false answers on voir dire can also prevent parties from intelligently exercising their statutory right to challenge a prospective juror for cause.” In re Hitchings, 6 Cal.4th at 111. 222. Thus, “a juror who conceals relevant facts or gives false answers during the voir dire examination underminesthe jury selection process and commits misconduct.” In re Hitchings, 6 Cal.4th at 110, citing People v. Castaldia, 51 Cal.2d 569, 572 (1959); People v. Galloway, 202 Cal. 81, 92-93 (1927); People v. Blackwell, 191 Cal.App.3d 925, 929 (1987); People v. Diaz, 152 Cal.App.3d 926, 932 (1984). 223. If the voir dire questioningis sufficiently specific to elicit the information that is not disclosed, or as to which a false answeris later shownto have been given, the defendant has established a primafacie case of concealmentor deception. People v. Blackwell, 191 Cal.App.3d. at 929, citing Moore v. Preventive Medicine Medical Group, Inc., 178 Cal.App. 99 | 728, 742 (1986); People v.Jackson, 168 Cal.App.3d 700, 705-706 (1985). 224. The subject voir dire questions in the instant case were sufficiently specific and free from ambiguity so that the only inference or finding which can be supportedis that Juror Ary was aware of the information sought and deliberately concealedit by giving false answers. See People v.Blackwell, 191 Cal.App.3d at 930. 225. Concealmentis intentionalif “the questions on voir dire clearly and fairly asked [a juror] to reveal [certain knowledge.]” Jn re Hitchings, 6 Cal.Ath at 116. As a generalrule, juror misconduct “raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted.” In re Hitchings, 6 Cal.4th at 118, quoting People v. Cooper, 53 Cal.3d 771, 835 (1991); People v. Holloway, 50 Cal.3d 1098 (1990). Here, as in Hitchings, the juror’s concealment of his knowledgeof the case was unquestionably intentional and material and therefore presents no obstacle to a finding of misconduct, which, if the presumption of prejudiceis unrebutted, will result in reversal. Jn re Hitchings, 6 Cal.4th at 116. 226. A juror wholies her wayonto a jury is not really a juroratall. Clark v. United States, 289 U.S. 1, 11 (1933). Dishonest answers underminethe impartiality of the jury. Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (en banc). Whena jurorlies, it reflects an inability to render 100 an impartial verdict. Smith v. Phillips, 455 U.S. 209, 220 (1982); Dyer, 151 F.3d at 982. 227. A juror wholies about material facts after being instructed that he is under oath with regard to his answers on the jury questionnaire, cannot be trusted to follow any ofthe instructions from the court. 228. As the Ninth Circuit held in Dyer: A perjured juror is unfit to serve even in the absence of vindictive bias. If a juror treats with contempt the court’s admonition to answervoir dire questionstruthfully, she can be expected to treat her responsibilities as a Juror- to listen to the evidence, not to consider extrinsic facts, to follow the judge’s instructions - with equal scorn. Moreover, a juror whotells major lies creates a serious conundrumforthe fact-finding process. How can someone whoherself does not comply with the dutytotell the truth stand in judgmentofto her people’s veracity? Having committed perjury, she may believe that the witnesses also feel no obligation totell the truth and decide the case based on her prejudices rather than the testimony. Dyer v. Calderon, 151 F.3d at 983. 229. The juror’s concealment deprived Petitioner ofhis state and federal constitutional rights to a fair and impartial jury, to due process, and to a fair andreliable verdict and sentence. Since Juror Ary deliberately failed to answer material questions honestly where truthful responses would have provideda valid basis for a cause challenge - and indeed would have 101 required his disqualification - a new trial is warranted. McDonough Power Equipment v. Greenwood, 464 U.S. 548, 556 (1984); Pope v. Man-Data, Inc., 209 F.3d 1161, 1163 (9th Cir. 2000). The juror’s misconduct created a structural defect in thetrial, resulting in a miscarriage ofjustice at both the guilt and penalty phases and requiring reversal of the death sentence. Cal. Const., art. V, VI, VIII, XIV § 13; Arizona v. Fulminante, 499 U.S. 279, 309 (1991); Tumey v. Ohio, 273 U.S. 510, 535 (1927). At a minimum,the misconductraises a presumption of prejudice that cannot be rebutted under the circumstancesofthis case. Juror Ary Was Biased Under Actual and Implied Bias 230. The actions of Juror Ary, including: (1) his failure to disqualify himself on his jury summonsas a convicted felon; (2) his deliberate concealment of material facts in voir dire; (3) his actions during the guilt phasepriorto deliberations; and (4) his introduction of highly prejudicial extrinsic evidence in the guilt and penalty deliberations, demonstrate his actual and implied bias against Petitioner. 231. The Sixth Amendment“guarantees the criminally accused a fair trial by ‘impartial,’ indifferent jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961); Dyer v. Calderon, 151 F.3d at 986. “The bias or prejudice of even a single juror would violate [the defendant’s] right to a fairtrial.” 102 Dyer v. Calderon, 151 F.3d at 973; United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir. 1977). 232. In United States v. Allsup, 566 F.2d 68 (9th Cir. 1977), the Ninth Circuit noted that while “[b]ias can be revealed by a juror’s express admission ofthat fact... more frequently,jurors are reluctant to admit actualbias, andthe reality of their biased attitudes must be revealed by circumstantial evidence.” Id. 233. Here, the acts and omissions of Juror Ary establish both actual and implied bias. The fact that the juror lied repeatedly in voir dire gives rise to an inference of implied bias. Dyer v. Calderon, 151 F.3d at 979. Because Juror Ary lied repeatedly, the Court may consider whether “[his] 399 lack of candorreflects an ‘inability to render an impartial verdict.’” Dyerv. Calderon, 151 F.3d at 981, quoting Smith v. Phillips, 455 U.S.at 220. 234. Juror Ary’s affirmative efforts to become foreperson ofthe jury at the penalty phase andhis repeated efforts to convince other jurors ofhis “special” and “relevant” knowledge concerning their deliberations expose Juror Ary’s actual bias towards Petitioner. As the Ninth Circuit stated in Dyer v. Calderon : Thereis a fine line betweenbeing willing to serve and being anxious, between accepting the grave responsibility for passing judgment on a humanlife and being so eager to serve that you 103 court perjury to avoid being struck. The individual wholies in order to improve his chances of serving has too muchofa stake in the matter to be considered indifferent. Whetherthe desire to serve is motivated by an overactive sense of civic duty, by a desire to avenge past wrongs, by the hope of writing a memoir or by someother unknown motive,this excess of zeal introduces the kind of unpredictable factor into the jury room that the doctrine of implied bias is meant to keep out. Dyer, 151 F.3d at 982. 235. The record contains further evidence of Juror Ary’s “excess of zeal”above and beyondthe multiple lies he told in order to becomeseated on the jury. Before the guilt phase had even been sentto the jury for deliberations, Juror Ary sent out a note with four questions, which themselves evince bias against Petitioner. RT 1576-77. During guilt phase deliberations, Juror Ary discussed with the other jurors the fact that “this may have beenthe first murder for which Mr. Boyette had been caught but that he may have committed previous murders. If we found second degree murder, when hegot out in seven years he would feel like he’d gotten away with these killings and would kill again.” Ary Dec., Exh. 53. When an apparent mistake was made with respect to the reading of the guilt verdicts, Juror Ary spokeupto try to correct the mistake, despite the fact that he was not the foreperson of the guilt phase jury and indeed, the foreperson, Juror 104 Orgain, had already spoken upto correct the situation. RT 1834. 236. In the penalty phase, Juror Ary presented extrinsic evidence of his personal and family experiences in custody - someof the very information he had concealedprior to being seated on the jury. Believing that he had not convinced all of the holdout jurors to vote for death, he exhorted them to watch the movie American Mein an effort to convince them that the only way to prevent Petitioner from committing another homicide was to sentence him to death. 237. Under these circumstances, actual bias is shown. Further, the Court may presumebias. See McDonough Power Equipment, Inc.v. Greenwood, 464 U.S. at 556-57 (Blackmun, Stevens and O’Connor,JJ., concurring) (accepting doctrine of implied bias in exceptional circumstances); id. at 558 (Brennan and Marshall, JJ., concurring in the judgment) (same); Zerka v. Green, 49 F.3d 1181, 1186 n.7 (6th Cir. 1995); Amirsault v. Fair, 968 F.2d 1404, 1405-06 (1st Cir. 1992); Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990); Cannon v. Lockhart, 850 F.2d 437, 440 (8th Cir. 1988); United States v. Eubanks, 591 F.2d 513, 517 (9th Cir. 1979); United States v. Allsup, 566 F.2d 68, 71-2 (9th Cir. 1977). The Jury Considered Extraneous Facts In Reaching the Guilt and Penalty Determination 238. Asis detailed above, the jurors considered extrinsic evidence in 105 both the guilt and penalty phases of Petitioner’s trial. At the guilt phase, Juror Ary interjected the specter of additional murders. Lewis Dec., Exh. 86; Ary Dec., Exh. 53. 239. During penalty phase argument, the prosecutor’s primary theme wasthat Petitioner would kill again unless the “naive” jurors bent to the will of the “street smart” jurors and voted to impose the death penalty. The prosecutor told the jurors, “.. . you talk abouthis likelihood of killing again. § Andit doesn’t take much for him. It - they brought it out. They broughtout all these things that he is a big follower. Think of prisonlife, can you imaginethe stress of prison? { You have no idea. Andthe gangs, and the pressures . . . § Think what he’s going to be exposedto in prison. Think ofhow easy that will be to kill.” [sic] RT 2018; (emphasis added). The prosecutor went on: “[F]or some of you, in your backgrounds,this is a very different world for you. . . and for some of you, you’ve seen some of the violence that goes on, you know. You have street smarts. §[So those of you whoaren’t exposedto this, /isten to yourfellowjurors who know — what’s going on.” RT 2019; (emphasis added.) 240. At the penalty phase, the undisclosed prison experiences of Juror Ary’s son, as well as Juror Ary’s ownjail experience becamea key | factor in deliberations. The jurors were exhorted to watch the movie 106 American Me, which allegedly was based on a “true story” of prison gangs at Folsom State Prison in California. Juror Ary hasstated that: “[a]fter [two of] the jurors watched the movie, they changed their votes to death.” Ary Dec., Exh. 53. 241. This Court has stated that “[w]e assess the effect of out-of- court information upon the jury in the following manner. Whenjuror misconduct involves the receipt of information abouta party or the case from extraneous sources, the verdict will be set aside only if there appears a substantial likelihood ofjuror bias.” People v. Nesler, 16 Cal.4th 561, 578 (1997), citing In re Carpenter, 9 Cal.4th 634, 653 (1995). 242. This Court has further held that: Such bias may appearin either of two ways: whenthe extraneous material, judged objectively, is so prejudicial in andofitself that it is inherently and substantially likely to have influenceda juror; or even if the informationis not inherently prejudicial, if, from the nature of the misconduct and the surrounding circumstances, the court determinesthatit is substantially likely a juror was actually biased against the defendant. If [a reviewing court] finds a substantial likelihood that a juror was actually biased, [it] must set aside the verdict, no matter how convinced [it] might be that an unbiased jury would have reached the same verdict, because a biased adjudicator is one of the few structuraltrial defects that compel reversal without application of a harmless error standard. 107 People v. Nesler, 16 Cal.4th at 579; In re Carpenter, 9 Cal.4th at 653-54. 243. The facts set forth here meet this Court’s standards of actual prejudice under any analysis. They also meet the federal standard. See | Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995). 244. Permitting a juror such as Juror Ary to serve allowed the introduction into the jury room ofextraneousinfluences that materially colored the deliberations. The juror in question clearly lacked the quality of indifference which, along with impartiality, is the hallmark of the unbiased juror. See Dyer v. Calderon, 151 F.3d at 982. 245. The extraneous evidence of “other murders,” of the prison experiences of Juror Ary and his son, and the movie American Meraise a substantiallikelihood of actual bias by other jury membersas well. This is true not only because of the inherently biased material but also based on the nature of the circumstances surrounding the misconduct, includingthefact that jurors actually changedtheir votes after considering the extrinsic evidence. 246. Juror misconduct, such as the receipt of information about a party orthe case that wasnot part of the evidencereceivedattrial, leads to a presumption that the defendant was prejudiced thereby and mayestablish juror bias. People v. Nesler, 16 Cal.4th at 578; People v. Marshall, 50 108 Cal.3d 907, 949-951 (1990); In re Carpenter, 9 Cal.4th at 650-655. “The requirement that a jury’s verdict ‘must be based upon the evidence developedat thetrial’ goes to the fundamentalintegrity of all that is embracedin the constitutional concept of trial by jury...[ {] In the constitutional sense,trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against the defendantshall come from the witness stand in a public courtroom wherethere is full judicial protection of the defendant’s right of confrontation, of cross- examination, and of counsel.” People v. Nesler, 16 Cal.4th at 578, quoting Turner v. Louisiana, 379 U.S. 466, 472-473 (1965). As the United States Supreme Court has explained: “Due process meansajury capable and willing to decide the case solely on the evidence before it.” Peoplev. Nesler, 16 Cal.4th at 578, quoting Smith v. Phillips, 455 U.S. at 217; quoted in In re Carpenter, 9 Cal.4th at 648; accord, Dyer v. Calderon, 151 F.3d at 935; Hughes v. Borg, 898 F.2d 695, 700 (9th Cir. 1990). Cumulative Impact of Misconduct 247. A defendant accused of a crime has a constitutionalright to a trial by unbiased, impartial jurors. U.S. Const. amends. VI, XIV; Cal. Const., art. I, § 16; People v. Nesler, 16 Cal.4th at 578; Irvin v. Dowd, 366 U.S. at722; In re Hitchings, 6 Cal.4th at 110. A defendantis “entitled to be 109 tried by 12, not 11, impartial and unprejudiced jurors. ‘Because a defendant charged with a crime hasa right to the unanimousverdict of 12 impartial jurors[citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced,’ [Citations.]” People v. Nesler, 16 Cal.4th at 578, quoting People v. Holloway, 50 Cal.3d 1098, 1112 (1990), disapproved on other grounds in People v. Stansbury, 9 Cal.4th 824, 830 (1995). 248. A perjured juror is as incompatible with our truth-seeking process as a judge whoaccepts bribes. Dyer v. Calderon, 151 F.3d at 983; cf. Bracy v. Gramley, 520 U.S. 899 (1997). 249. As Justice Cardozo concluded,a juror wholies his way into the jury room is notreally a jurorat all: The judge who examineson the voirdireis engaged in the process of organizing the court. If the answers to the questions are wilfully evasive or knowingly untrue, the talesman, whenaccepted,is a juror in nameonly. Clark v. United States, 289 U.S. 1, 11 (1933). 250. The misconductof Petitioner’s jury creates a presumption of prejudice. Remmer v. United States, 347 U.S. 227, 229 (1954); In re Hitchings, 6 Cal.4th at 119; People v. Nesler, 16 Cal.4th at 578. 251. Juror Ary’s actions leave no doubt of his motivation for jury 110 service. His four questions to the court prior to guilt deliberations, his efforts to correct the inadvertent second degree murderverdict, his injection of extraneous and false information regarding other murders by Petitioner into deliberations, utilization of his own jail experiences, and his exhortation that the holdout jurors expose themselves to extraneous information in the form of the movie American Me, all demonstrate his actual bias toward Petitioner. It is no coincidence that the juror who concealed his own felony conviction and told numerouslies in orderto become a memberofthe jury was the same juror who committed the misconductdetailed above. 252. To the extent that these acts ofjuror misconduct were not disclosed to Petitioner, his counsel, or thetrial judge during the trial, Petitioner was also denied his right to counselat a critical stage of the proceedings, denied a fair and impartial jury, denied his rights to confront and cross-examine witnesses andto present a defenseto the evidence against him, and deniedhis right to a fair, reliable, and non-arbitrary determination of penalty untainted by extrajudicial information. U.S. Const. amends. V, VI, VHI & XIV; Cal. Const., art. 1, §§ 1, 7, 15, 16 & 17. 111 B. PETITIONER’S TRIAL COUNSEL HAD AN ACTUAL CONFLICT OF INTEREST AND PETITIONER WAS PREJUDICED 253. Petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendment rights were violated because trial counsel had an actual conflict of interest due to the financial implications of second counsel’s representation of Petitioner while second counsel himself was being criminally prosecuted in federal court and/orby virtue of second counsel’s prior representation of Petitioner’s grandfather and otherclose relatives. Trial counsel breached their duty of loyalty to Petitioner. Cuyler v. Sullivan, 446 U.S. 348 (1980); Strickland v. Washington, 466 U.S. 668, 692 (1984). 254. Petitioner alleges the following facts in support ofthis claim, amongothers to be presentedafter full investigation, discovery, access to this Court’s subpoena power, adequate funding for investigation and experts, and a hearing on the merits of the claim. Factual Basis 255. On May20, 1992, Richard Hove wasindicted by a grand jury for the United States District Court of the Northern District of California for two counts of Structuring Currency Transactionsin violation of 31 U.S.C.§ § 5324(3) and 5322(a). Exh. 253. Essentially, Mr. Hove was charged with laundering money for one of his drug-dealerclients. 112 256. Thefirst trial in United States v. Hove lasted from July 20 through July 27, 1992 and resulted in a mistrial due to a hungjury. 257. Three days later, on July 30, 1992, Petitioner was arrested. Walter Cannady was appointed to represent Petitioner on August 5, 1992. CT 30. It is not apparent from the record when Mr. Hove was appointed as counsel but a staff memberat the court-appointed office of the Alameda County Superior Court has stated that according to her information, Hove was appointed on September 15, 1992, but that no documentsare available to confirm this information. Gail Johnson Dec., Exh. 82. Thus, at the time of his appointmentin Petitioner’s capital trial, Hove was already aware that he would face the extraordinarily time consuming tasks of preparing for and facing his own federaltrial while he was obligated to defend Petitioner. 258. Nevertheless, Hove, with Cannady, appeared on behalf of Petitioner at the preliminary hearing held on November 16, 1992. CT 368. 259. Status hearings in United States v. Hove were held on September 4, 1992 and November6, 1992. Exh. 253. On November16, Hoveappeared with Cannadyat Petitioner’s preliminary hearing. 260. Hove’s retrial was scheduled to begin on November 30, 1992. On November20, 1992, anotherstatus hearing was held at which a joint request for a continuanceofthe trial date was denied. Exh. 253. The 113 secondtrial was held from November 30 through December8, 1992. Mr. | Hove was found guilty on both counts of structuring currencytransactions, and his sentencing was scheduled for March 12, 1993. Exh. 253. Because the procedures for interim suspensionin this state are essentially automatic, Mr. Hove and Mr. Cannady wereclearly on notice on the date of Hove’s conviction that his license to practice law would soon be suspended pending the finality of his convictions. See Bus. & Prof. Code §§ 6101-6102; Cal. Rules of Court 951(a). 261. Thus, prior to the start of Petitioner’s trial, Hove was a federally convicted felon. 262. On December7, 1992, both Cannady and Hovefailed to appear in People v. Boyette. John Costain, who represented co-defendant Antoine Johnson, madea special appearance for Petitioner, noted that Cannady was ill, and asked for the case to be held over for two days. CT 620. Although no mention was made of Hove’s whereabouts, in fact, he was in federal court for the fifth day of his secondtrial, which lasted the full day from 8:30 ~ a.m. to 4:40 p.m. Exh 253. 263. On January 16, 1993, more than five weeks after Hove’s conviction, Cannady claimsto havefinally discussed Hove’s legal problems with Petitioner. On the morning of January 20, 1993, Judge Haugner metin 114 chambers with counsel for nearly one hour. CT 823. No recordofthis meeting was made. Petitioner was not present. Then, in open court, a purported waiverof the right to have two attorneys presentat his entire trial was obtained from Petitioner. CT 823; RT 13-15. Cannady informed the trial court that Hove was “extremely familiar with the client” and that he needed Hoveas back-up. During the entire colloquy, neither Cannady nor the court ever used the phrase “conflict ofinterest.” Speaking about what he purportedly told Petitioner at the jail, Cannady referred to “Mr. Hove’s unique predicament, shall we say, that there may be a possibility that he would not be with us for the full trial.’ RT 13. Similarly, the court merely made vague reference to Hove’s “problem in the federal courts.” RT 14. No oneeverstated that Hove was a convicted felon. 264. There was no discussion of Hove’s recent federal convictions, the fact that Hove faced possible incarceration or a large monetary fine. Nor was any mention madeofthe impact that Hove’s federal convictions would have on his license to practice law. No one mentioned Hove’s representation of Petitioner’s grandfather and other close relatives. The court did not offer Petitioner any opportunity to speak with independent counselto discuss the conflict-of-interest issues. 265. Petitioner’s responses to the court’s inquiries werelimited to 115 monosyllabic: “yeah” and “yes.” RT 14-15 . Overall, the apparent choice that was offered to Petitioner was one between continuing with Cannady and Hoveas his two defense attorneys, going forward with one attorney, or having Hove replaced by another attorney who would not have known the case. This “waiver” occurred less than two weeks before jury selection in Boyette was scheduled to begin.'* 266. The Clerk’s Transcript succinctly characterized the “waiver”as follows: “Defendant, Maurice Boyette, waives his nght to have two attorneys if counsel, Richard Hove,is unable to complete trial.” CT 823. 267. The evidentiary hearing on the motion to suppress Petitioner’s statements was held on January 25-26, 1993. Hove was absent from court on January 26th; Cannady informedthe Court that Hove was in Sacramento that day. CT 825; RT 92."° 268. Throughoutthe trial, it was clear that not only was Mr. Hove’s presence only an occasional occurrence,but that his co-counsel, Mr. | Cannady had no clear idea when Mr. Hove would be present or even where Mr. Hove was on any given day duringthetrial. The significance ofthis is '4 At no time was any purported waiverofpotential conflicts arising from Hove’s prior representation of Eugene Surrell ever obtained from Petitioner. '> Petitioner hereby incorporates each and every allegation of Claims C and F. 116 clear. How could Mr. Hove be given a meaningfulrole in thetrial if even his co-counsel did not know when he would be appearing in court. 269. Jury selection in Petitioner’s trial began on February 1, 1993, and lasted through the morning of March 1, 1993. Court was in session on fifteen days between those dates. Hove was absent from court for the afternoon session of February 3rd,10th, llth and 16th.'® Additionally, Hove was absent for the morning session of February 18th, when Cannady again informedthe court that Hove had to be in Sacramento. CT 835.1; RT 808. Hove then missed the afternoon sessions of court on February 22nd and 23rd. CT 836-837; RT 913, 1019A. On the morning of February 24th, Cannady waived Hove’s presence for the entire day; however, Hove appeared aboutfifty minutes later that morning. CT 838; RT 1059, 1104. Thus, on ten out of the fifteen days of court time during which jury selection was conducted- a full sixty-six percent of the time - Hove was absent for someorall of the voir dire."’ 270. In the midst ofjury selection, on February 12th, a day on which '6 On the afternoon of February 3rd, Cannady stated with reference to Hove,“I would anticipate he is supposed to be here.” RT 208. '7 Petitioner hereby incorporates the information contained in Exh. 252, entitled “Defense Counsel Richard Hove’s Absences from Maurice Boyette’s Capital Trial” which contains all record documented absencesof Hove from Petitioner’s trial as well as significant events concerning United States v. Hove. 117 court was not in session in Boyette, Hove appeared in federal court for a hearing on his Motion for a New Trial and Motion for a Judgment of Acquittal Notwithstanding the Verdict, which was denied. Exh. 253. 271. On February 22nd, Cannady wrotea letter to Judge Taber regarding his section 987.9 requests that decreased the funds previously requested for Dr. Stephen Pittel and requested limited funds for Dr. Fred Rosenthal. 272. Cannadystated in his letter that based on his “discovery” of an evaluation of Petitioner made pursuant to Welfare and Institutions Code section 5150, he would reduce Dr.Pittel’s hours to fifteen hours and would retain Dr. Fred Rosenthalfor ten hoursto interpret the 5150 report. 273. There was no further mention of Dr. Pittel for the remainder of the case. 274. Four dayslater, on February 26th, while jury selection wasstill ongoing in Boyette, the Review Departmentof the State Bar of California issued an order suspending Richard Hovefrom the practice of law pending the final disposition of his federal case. The effective date of the order- and thus Hove’s temporary suspension - was March 29, 1993, only one 118 monthlater.'® 275. The guilt phase of Petitioner’s trial began on the morning of March1, 1993. CT 839.'° Hove was not present for Cannady’s opening statement on the afternoon of March Ist. CT 839; RT 1198. Hove wasalso absent from the afternoon session of the guilt phase of trial on March 2nd. CT 841; RT 1334. In the middle of the morning session oftrial on March 8th, Cannadystated that he would “waive Mr. Hove’s appearance wherever he may be.” CT 847; RT 1610. Hove was absentfor the afternoon session on March 9th, when Cannady delivered his guilt phase closing argument and the District Attorney gave her rebuttal argument. CT 848; RT 1737. 276. The Court instructed the jury on the morning of March 10th. Cannady waived Hove’s presenceat the beginning of the day; however, he asked that the record reflect that Hove entered the courtroom about ten minutes later, when the Court was instructing the jurors about expert witnesses. CT 849. Cannady waived Hove’s presence at the beginning of '8 It is standard procedure for this type of State Bar order to become effective 30 days after they are filed, to give the attorneys an opportunity to wrap uptheir affairs. Doron Weinberg Dec., Exh. 125. '? During jury selection, on February 3, 1993, Judge Haugner had informedthe jury that the guilt phase was scheduledto last from March 1 through March 19 andthe penalty phase would begin 10 days later on March 29 through April 9th. RT 204. In fact, the guilt phase continued from March Ist through March 11th, and the penalty phase lasted from March 22nd through March 25th. CT 839, 918, 940, 976. 119 the afternoon session on March 10th, when the Court addressed certain requests for information made bythe jurors. CT 849; RT 1828. However, Hove was present an hourlater, and soon thereafter, the jury deliveredits verdict for the guilt phase. CT 918. 277. The following day, March 12th, Hove appeared for his own sentencing hearing in United States v. Hove. The court granted a defense request for a continuance and the hearing was rescheduled to March 17th. 278. Hove was sentencedin federal court on March 17th, five days before the penalty phase was scheduled to begin in Petitioner’s trial. At Hove’s sentencing hearing, his attorney, Patrick Hallinan, recommended a probationary sentence and a fine of $25,000 (half that recommended by the probation officer who wrote the presentence report.) United States v. Hove, transcript of sentencing at 12; Exh. 253. Hallinan stated that there was no question that Hove would be disbarred. /d. at 6. He explained that Hove wasthe sole support for his family and the only person earning money to put his children through school and to support his wife. /d. While the court and Hallinan were discussing the impact of the state bar disciplinary proceedings on Hove’s license to practice in the Northern District, Hove interrupted and twicestated, “I have ceased to practice.” /d. at 11. 279. The Assistant United States Attorney (“AUSA”) asked for a 120 sentence ofincarceration of 46 months. Jd. at 23. The governmentalso criticized Hove for not having surrenderedhis bar card already,id. at 14-15, which undoubtedly led to the following portion of Hove’s allocution: And I haveto tell you that employment wise legally I’m dead. Iam dead man. Mypractice becamea dying thing the day of my indictment. And my incomeoverthe last six months proves that. I virtually am just staying open to close the cases up that I have pending. And I havein fact indicated to this court in front of Judge Smith,earlier, in January ofthis year, maybethe first part of February, that I was no longer appearing in this court, that that was my last case. That’s the last appearance I made.. .”° I have been suspendedasofa particular date, and I am,in fact, resigning. I have, unbeknownstto Mr. Hallinan, talked with counsel from the state bar. They have submitted to me a resignation form. It is my intention to do that. However, what I am doing now is I am completing trial that has been in the works for the last month and a half, fortunately on a court- appointed basis, your honor. And I had to keep operating until this trial is completed; it will be complete by the 29th. I discussed with the state bar, asking permission to have an extension of time so we could complete this trial, but I found out that that wasn’t needed. I am not petitioning for an ° Thus, as ofat the latest, early February, 1993, Hove could only practice in state court, thereby increasing dramatically the importance of Petitioner’s case to Hove’s financialsituation. 121 extension, I can represent that to the court, and I will resign before the 29th. I’m dead. I’m throughlegally, your honor... WhatI can indicate to this court is what information I have from talking with the state bar and other people, is that I’m out-for a minimum offive years. . . That’s the best I can indicate to the court from what information I have about that. But I am resigning. . . I just ask the court to consider that I do support three - actually four people. I’m the sole support for them right now. . . ... My assets right now, with the exception of my house, virtually is my retirement. That’s whatI have; that’s what we’re living offof. Starting the 29th, I’m unemployed. Id. at 26-27; emphasis added. 280. Judge Vaughn Walkerreasonedthat the only motive he could imagine for Hove’s crimes wasa financial. one; therefore, he gave Hove a punishmentthat was financial in nature: a suspended sentence and a $250,000fine. Jd. at 28, 31. He placed Hove on probation for six months, conditioned on his payment of $100,000 by May 17, 1993, and the remaining $150,000 by September 30, 1993. Jd. at 31. 281. The penalty phasein Petitioner’s trial, including argument and deliberations, lasted onlyfour days, from March 22 through March 25, 122 1993.71 Cannady waived Hove’s appearanceatthe outsetof the afternoon session on March 22nd; however, Hovearrived almost an hour later. CT 940. Deliberations began on the afternoon of March 23rd. CT 941. 282. Additional evidence of Hove’s financial problems during 1993 include the following: On August 31, 1993, Hovefiled a pro se motion to modify the conditions of his probation to reduce the amountof his fine from $250,000 to $100,000 (which he had already paid by that time), arguing that he lacked the ability to pay the remaining $150,000 balance. Exh. 253. Ina declaration attached to this motion, Hoveasserted, “[s]ince my indictment throughtrial I spent my liquid assets for my defense and living expenses. | Mylaw practice virtually stopped since my indictment.” Jd. Hove’s motion to modify was denied, and on September 29, 1993, probation revocation proceedings were instituted against him dueto his failure to pay the $150,000 balance ofhis fine. Exh. 253. In the course of admitting the violation and explaining his financial situation to the court, Hove submitted his 1992 IRS form 1040, which indicated that his adjusted gross. incomefor that year was less than $21,000. Exh. 253. On January 27, 1994, Hove filed a financial affidavit with the Ninth Circuit estimating that his net *! The case presented in mitigationby the defense is contained in just 30 pages of transcript. RT 1889-1990. 123 income for 1993 from all sources- including self-employment income and interest income - would be $23,000. This affidavit also calculated Hove’s net worth at -$3,388. Exh. 254. 283. At the time of Petitioner’s trial, Assistant DistrictAttorney Drabec was aware of Hove’s legal and financial situation.” Conflict re Representation of Petitioner’s Relatives 284. Eugene Surrell, Maurice’s maternal grandfather, was arrested and charged with killing William Ashford in April 1980. Alameda County Criminal Case No. 70152, Exh.140. Eugene Surrell retained William DeBoisof Sullivan, Nakahara, DuBois & Hove to represent him in this case. While the case was pending, Eugene Surrell was arrested and charged with felon in possession ofa firearm, concealed firearm, firearm with serial number removed,and open container in vehicle. Alameda County Criminal Case. No. 73298, Exh. 139. Surrell was originally represented by the public defender on this case, but he retained DuBoisearly in the processto represent him in this case as well. 285. DuBois’s partner, Richard Hove, stood in for DuBois in his * «During the meeting [ofjurors with the prosecutor following the penalty phase verdict], several of the jurors told the DA she had done a great job. The DA also mentioned that Hove was in legal trouble and needed money. According to the DA, Hove was taking as many court- appointed cases as possible.” Tallman Dec., Exh. 119. 124 representation of Eugene Surrell in these two cases on numerousoccasions. In Case No. 70152, Hove appeared on August 10, 1981; December 2, 1981; March1, 1982; January 10, 1983; October 26, 1983; January 26, 1984; and January 27, 1984. In Case No. 73298, Hove appeared on December2, 1981; March 1, 1982; January 10, 1983; October 26, 1983; January 26, 1984; January 27, 1984; July 18, 1984; and July 25, 1984. See Exhs.139, 140. Thus, Hove represented Eugene Surrell over a period of three years. Therefore, Hove had actual and clear notice of Eugene Surrell’s violent behavior and history of serious involvement with the criminaljustice system. 286. Eugene Surrell has stated, In 1980, I was arrested for murder. I hired Bill DuBois to represent me. DuBois was a very busy defense attorney at that time, so he would sometimes have other attorneys from his firm appearing with or for me in court. Donald Clay and Richard Hove weretwoattorneys who worked with DuBois and they occasionally stood in for him. Dubois, Clay and Hove carried my case for almost five years. I got to know everyonein that law office by a first name basis. After my case ended in an acquittal, other people in my family also used DuBois andhis firm for their own criminal cases. Some of my ownkids - Michael, Celeste, Alvon, Alton- were represented by DuBois or Clay. Eugene Surrell Dec., Exh. 114. 125 287. Hovealso had constructive notice of the violent and criminal behavior of four of Petitioner’s aunts and uncles. 288. In December, 1987, DuBois represented Celeste Surrell in a drunk driving case. Exh. 154. At this time Hove and DuBois werein the sameoffice suite at Lakeside Plaza building with the same professional phone number. Exh. 257, 259, 289. In March 1990, Michael Surrell was arrested for assaulting two | people and wasrepresented by William DuBois. Exh. 161. In July of that year, Michael pleaded guilty to assault with a deadly weapon, andin August, he was sentencedto three years in prison. At this time, Hove and DuBois wereboth still at Lakeside Plaza. Exh. 257, 259. 290. In 1991, Alton Surrell was arrested and charged with several co-defendants for his participation in a July 4, 1990, shoot-out. Alton was initially charged with conspiracy to commit murder; he pled guilty to assault with a deadly weapon anduseof a firearm, and in March 1992, he was sentencedto a total of seven years in prison. Alton was represented by David Dudley of Los Angeles. C. Don Clay represented one of Alton’s co- defendants, Ricky Geeter. Exh. 196. Throughout this time period, Hove wasin practice with Clay as Clay & Hove. 126 Petitioner’s Purported Waiver WasInvalid 291. Petitioner did not knowingly orintelligently waivehis right to have two attorneys presentat his trial or his right to conflict-free counsel. 292. Petitioner’s waiver was completely uninformed. The entire discussion of the implications of Hove’s personal situation was held outside the presence of Petitioner. CT 823; RT 13-15. Petitioner’s waiver gave no indication that he had any idea, let alone an informed idea of the consequencesofhis actions. His monosyllabic responses in no way indicated informed consent. 293. As this Court has stated: [Waivers of constitutional rights must, of course, be “knowing,intelligent acts done with sufficient awareness of the relevant circumstancesand likely consequences.” No particular form of inquiry is required but,at a minimum,thetrial court mustassureitself that (1) the defendant has discussed the possible ~ consequences ofjoint representation in his case, (2) that he knowsofhis right to conflict-free representation, and (3) that he voluntarily wished to waivethat right. Any waiver must be unambiguous and “without strings.” We indulge every reasonable presumption against the waiver of unimpaired assistance of counsel. People v. Mroczko, 35 Cal.3d 86, 110 (1983) (citations omitted); see also People v. Sanchez, 12 Cal.4th 1, 47-48, as mod. on den. ofreh’g (1996) (same)(finding a valid waiver); People v. Jones, 53 Cal.3d 1115, 1136-38 127 (1991) (same) (finding a valid waiver); People v. Bonin, 47 Cal.3d 808, 841 (1989) (same) (finding no valid waiver); People v. Easley, 46 Cal.3d 712, 729 (1988) (same) (finding no valid waiver). 294. Asis apparent from a review ofthe voir dire regarding waiver in this case, the only issue that Petitioner was made even arguably aware of was that Mr. Hove might at some point no longer be able to attend the trial apparently, and unbeknownst to Petitioner, either because he would be disbarred or sent to prison. See e.g., “Mr. Hove’s unique predicament, shall wesay, that there may bea possibility that he would not be with us for the full trial. .. RT 13; “{Hove] may not be able to complete the case, we don’t know yet...” RT 14; “Mr. Hove faces a problem in the federal courts which may prevent him from completing this case...” RT 14; “he physically may not be here for the completion of this case and your part in the case...” RT 14. 295. It is apparent from the record that an in camera discussion of Hove’s federal conviction was held on January 20, 1993, just prior to the court session at which Judge Haugnerobtained Petitioner’s purported waiverof his right to have Hovepresentat his tnal. CT 823. As a matter of due process both under the Fourteenth Amendmentto the federal constitution and Article I, § 15 of the California Constitution, a criminal 128 defendant has the right to be personally presentat his trial. People v. Johnson, 6 Cal.4th 1, 17 (1993). The United States Supreme Court has held that this right encompassesthe right to be present at court proceedingsif the defendant’s presence has a reasonably substantial relationship to his ability to defend himself. Jd. citing United States v. Ganon, 470 U.S. 522, 526 (1985.) | Petitioner Was Prejudiced by Counsels’ Actual Conflict 296. Trial counsel Hovefailed to act in any way as a competent . advocate for Petitioner in either the guilt or penalty phases ofhis case. Because counsel’s need for funds and attention to his own criminal matters took precedenceoverhis duty to Petitioner, Petitioner was deprived of any second counselin his capitaltrial. 297. Cannady was completely aware of Hove’s legal and financial situation at the time Hove was appointed as second counselinthis case. Moreover, because lead counsel Cannady allowed his lifelong friendship with second counsel Hove, Declaration of Walter Cannady, Exh. 59, to interfere with his loyalty to Petitioner, he too was actually conflicted. 298. It is apparent from a review ofthe record that Petitioner’s representation was adversely affected in at least the following ways. 299. Less than six months elapsed from the time that Cannady was 129 appointed to represent Petitioner and the beginning ofjury selection. CT 30, 826. This extraordinarily brief time period is almost unprecedented when noother factor such as a refusal to waive time by the defendantis present. Sawyer Dec, Exh. 107. Petitioner’s case not only involved a potential death sentence but it was a factually complex case involving a multiple murder and twospecial circumstance allegations. CT 532-537. As can be seen by the gross lack of preparation donein this case, see ClaimsC, D,this brief time wasin no waysufficient to prepare adequately fortrial. 300. Even the prosecutor commented on the unusual nature of the brief length of time in which this capital case with two special circumstances wentto trial. In the course of discussing the appropriateness of the inclusion of numerous family members as witnesses in the penalty phase to “victim impact,” she commentedas follows: WhatI think - what I should point out in the record is unusual about this case, is this only happened last May, so these victimsarestill in a state of trauma and deep grief. And I think a pattern of how it has affected theirlife. In the normalcase of several years after an incident, has of course, not developed yet. And in fact someof these family membersare too grief stricken to even seek counseling at this point. RT 221; Emphasis added. 301. There are extremely sound reasons why capital cases do not 130 cometo trial in such a brief time. Susan Sawyeris an Assistant Public Defender with the Alameda County Public Defender’s Office. She has been with the office since 1976 and has been trying capital cases since 1984. She has tried over one hundredcasesto a jury, including two death penalty cases and seven homicide cases. From 1990 to 1993 and again from 1998 to 1999, she was the Death Penalty Coordinator for that office. In that capacity she participated in sixth death penalty cases. Sawyer Dec., Exh. 107. 302. Susan Sawyerhasstated: Death penalty cases in Alameda County generally take four to five years from arrest to trial unless either the prosecutor or the defense makesa special effort to get the case totrial more quickly. This has beentrue since I started working on capital cases in 1984. Fora capital case to proceedto trial in Alameda Countyafter only six months following arrest would be highly unusual now and would have been highly unusual in 1992 or 1993. Sawyer Dec., Exh. 107. 303. There are numerousreasons whyit is unsoundfortrial counsel to proceed more quickly totrial. From a defense perspective, the time frame of four to five years of preparationis fully justified in all cases and required in others. Investigation of a capital case is quantitatively and qualitatively different than in a noncapital case 131 because of the need to prepare not only a guilt defense but also a mitigation case for the penalty phase. Sawyer Dec., Exh.107. 304. Therush totrial is particularly prejudicial for penalty phase preparation due to the nature of the evidence that should be presentedat that stage of the tral. As Sawyerhasstated: To effectively prepare the penalty phase of a capital case, it is essential to gather records aboutthe client’s life history, including school records, medical and psychiatric records, employmentrecords, military records, criminal records, and records of any periods of incarceration. These records can take many months to obtain, depending on the age of the records, their location, and the institution where they are kept. Records are often misplaced or under different names. Sometimes they have been sent to different locations. Special release formsor court orders are often required in order to obtain records. In many cases, records are located out-of-state, which often requires travel by a memberof the defense team. I cannot think of a single capital case I have worked on where there wasn’t some problem obtaining some records. Sawyer Dec., Exh. 107. 305. Obtaining records is merely onestep in the process of developing a case for mitigation. As Sawyerhasstated: Manytimes, capital defendants are unable to remember the namesof former teachers, 132 psychiatrist, or wardens who maybe helpful to the defense at the penalty phase. In these circumstances, once the defense lawyer has obtained complete recordsofthe client’s life history, the lawyer needs to go over those records with the client to identify individuals who maypossess mitigating information. Finding those people in their current locations and then arranging and conducting interviews with them can take several more months. Sawyer Dec., Exh. 107. 306. Record collection is simply the first step in preparing for a penalty phase presentation. Asin Petitioner’s case,it is necessary to present these records for review by an appropriate mental health expert. This consultation is necessary to determine if there is mental health evidencethat _will be appropriate to present in the guilt and/or penalty phases. Early documentation of problems such as drug or-alcohol addiction obviously enhancesthe weight of any expert’s opinion regarding the existenceofthat condition.’ Sawyer Dec., Exh. 107. 307. Moreover, reasonably competenttrial counsel will coordinate their strategy with regard to guilt and penalty phases. This was not done *3 This is precisely the type of documentationthat Dr.Pittel requested from counsel, that was available to counsel, and which counsel failed to provide to any expert. As discussed in Claim D, counsel has admitted that it was Dr. Pittel’s insistence on such corroborating evidence that led them to forego his testimony. Petitioner was prejudicedto the actionsoftrial counsel in this regard. 133 here. As Sawyerhassaid: It is very important in the defense of a capital case for there to be a coordinatedstrategy between the guilt and penalty phases in order to avoid inconsistency. When positive information abouta client exists, it is often useful for the defense attorneys to inject that into the guilt- phase case as much as possible. For there to be a coordinated strategy between the guilt and penalty phasesofa capitaltrial, the defense must havefully investigated andstrategically planned the defense for the penalty phase prior to the start of the guilt phase. I cannot think of any tactical reason whya capital defense team would postpone penalty-phase investigation until after the guilt phase had begun. Sawyer Dec., Exh. 107. 308. Here, trial counsel failed to consult any mental health expert until the eve oftrial. Moreover, the expert that did testify, Dr. Fred Rosenthal, did not even interview Petitioner until Petitioner had been convicted of capital murderin the guilt phase. Exh. 260. 309. Not a single expert was consulted regarding the guilt phase. See Claim C. The expert consulted for the penalty phase was summarily dismissed when he requested documentation and investigation to determine what mitigation could be presented in the penalty phase. Cannady Dec., Exh. 59. Counsel then substituted an expert who was willing to testify with little or no preparation and without any substantiation other than a history 134 taken from Petitioner to support his conclusions. Rosenthal Dec., Exh. 105. Keenan Counsel 310. In most capital trials in California, two counsel are assigned to represent a defendant. There is a universal recognition by the courts that becauseofthe nature of capitaltrial, it is difficult, 1f not impossible, for one counsel to single-handedly shoulder the responsibility. The role of back-up counsel is an important one in the defense of a capital case. Different attorneys allocate responsibilities differently, with one overall strategy in mind. Occasionally, whenthere are real issues of guilt to be litigated, a defense team will split up the guilt and penalty phasessothat, in the event of conviction of special circumstances, an attorney different from the one whojust lost the guilt case can present the penalty case with more credibility. Although attorneys may choose to split up responsibility for parts ofthetrial, they work together to coordinate their strategy. Whenyouare the lead attorney onthecase,it can be invaluable to have a second attorney who knowsas much about the case as you do. That way, the two of you can make soundstrategic decisions based on twoattorneys’ opinions whereboth attorneys are fully informed. Sawyer Dec., Exh. 107. 311. Cannady has claimed that he needed second counsel Hove as “backup.” Cannady Dec., Exh. 59. However, even a cursory review ofthe record reveals that Hove could not possibly have playedthis role in thetrial 135 since Cannadyclearly had no idea if, or when, Hove would be presentin court. See, e.g., (2/8) CT 830, RT 307, 320-21; (2/17) CT 835; RT 777; (2/24) CT 838; RT 1059, 1104. 312. Cannady has recently stated that Hove’s responsibility was for the penalty phase. Cannadystates: The way Dick Hove andI usually divide capital cases, is that I would do the guilt phase with his assistance, but I would keep him more “in reserve” for the penalty phase. This way,if I lost the guilt phase, there would be someone who had morecredibility with the jury to try the penalty phase. I believe that is what we had agreed to in Mr. Boyette’s case. Cannady Dec., Exh. 59. 313. However, Hove’s role in the penalty phase was extremely limited. The penalty phase presentation was done primarily by Cannady. While Hove did cross-examinethree out of the nine victim’s family witnesses presented by the prosecution and provided the direct examination of two defense witnesses presented at the penalty phase, Cannady cross- examined twovictim’s familywitnesses and presented the direct examination ofthe remaining seven defense witnesses. 314. Cannady also gave the opening statement which did nothing to explain to the jury either what evidence the defense would present or what would constitute mitigation in a capital case. 136 315. Although Dr. Pittel had suggested to counsel that they gather relevant records and conduct an investigation regarding Petitioner’s family and backgroundto obtain potential mitigation evidence, no such investigation was conducted. 316. Had Dr. Pittel’s advice been followed, a wealth of mitigating evidence would have been available for presentation at the penalty phase. Tragically, because Mr. Hove’s license was under suspensioneffective March 29, 1993, counsel could not spare the time to conduct even a cursory investigation of available mitigation. 317. Moreover, because of Hove’s prior representation, potential future representation, and familiarity with Petitioner’s family, he had not only a duty of loyalty to his formerclients but a financialinterest in not presenting the extensive family criminal background he was aware existed in Petitioner’s immediate family. Rather than possibly injuring his own interests, Hove allowed a completely false picture of Petitioner’s — backgroundto be presented to the Jury whose responsibility it was to decide whetherPetitioner shouldlive ordie. 318. Hove’s dismal role in this case was apparentto the jurors. His comings and goings from the courtroom clearly were a distraction for the jurors. The jurors have said the following regarding Petitioner’s attorneys: 137 a. “Maurice’s second attorney, Richard Hove, was only there a few times. It seemed he only spoke on twooccasions.” Tallman Dec., Exh. 119. b.“[Petitioner] was represented by two attorneys who I did not feel ran a very good ship. Oneofthe attorneys was always coming and going from the courtroom. Some days he was not even present in court.” Orgain Dec., Exh. 95. c. “Mr. Hove wasabsent from court quite often and seemed distracted when he waspresent. . . Overall, I thought Maurice’s attorneys were not very forceful in their work on his behalf.” Rennie Dec., Exh. 102. 319. Moreover, many of the jurors became aware of Hove’s criminal problems during the courseofthe trial, which obviously would not inure to Petitioner’s advantage. The following jurors havestated: » a. “At one point during the trial, | remember reading in the paper that one of Maurice’s attorneys, Richard Hove, was under indictment for something. I believed he was charged with money-laundering. I was not the only one who was aware of Mr. Hove’s legal problems.” Rennie Dec., Exh. 102. b. “At some point duringthetrial, the first alternate juror mentioned that one of Maurice’s attorneys, the quieter dark haired one, was on tnal for 138 moneylaundering. This is the same juror who eventually replaced me.” Karantzalis Dec. stated: 320. Hove’s absences were prejudicial to Petitioner. As Sawyer has For back-up counsel to be absent for significant portions of a capital trial, and/or for back-up counsel to be frequently in and out of the courtroom whencourt is in session on a capital case, is extremely unusual in [Alameda County]. Personally, I can only think of a single case that I know of where back-up counsel was not present the entire time in front of the jury. In that instance, the father of the back-up attorney died suddenly on the east coast, and the attorney missed a weekofjury selection to attend the funeral and help with family affairs. The judge in that case informedthe prospective jurors that the attorney was absent due to a sudden death in the family. Without an instruction similar to the one given in that case, I would be very concerned about what impression would beleft with the jury due to the inconsistent presence of back-up counsel. In any criminal case, and especially in a capital case, it is crucial for the defense attorneys to demonstrate that they care abouttheir client and that they take the defense of the client seriously. For back-up counsel to absent himself from significant portions of a capital case, particularly without any explanation by counsel or the court, would tend to send the message to the jury that counsel does not take the client or the case seriously. I can think of no tactical reason for an attorney to absent himself from court proceedings in a capitaltrial. 139 Sawyer Dec, Exh. 107. 321. Counsels’ representation of conflicting interests adversely affected counsel’s performance.Jd. To establish that an actual conflict of interest adversely affected counsel’s performance, Petitioner “need only show that some effect on counsel’s handling of particular aspects ofthe trial was‘likely.’” United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992), quoting Mannhalt v. Reed, 847 F.2d 576, 583 (9th Cir. 1988). 322. Prejudice is presumedsince the harm from the conflict of interest “may not consist solely of what counsel does, but of ‘what the advocate finds himself compelled to refrain from doing, not only attrial but also’ during pretrial proceedings and preparation.” Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir. 1994), quoting Holoway v. Arkansas, 435 U.S. 490 (1978). 323. A criminal defendant’s rightto the assistance of counsel under Article 1, Section 15 of the California Constitution encompasses the rightto - conflict-free counsel. People v. Frye, 18 Cal.4th 894, 998 (1998); People v. Jones, 53 Cal.3d 1115, 1134 (1991). This Court applies what it describes as a “somewhat morerigorous standard of review”than the federal courts to conflict-of-interest claims: [W]e have held - regardless of whether there was an objection - that even a potential conflict 140 may require reversal if the record supports ‘an informed speculation’ that appellant’s right to effective representation was prejudicially affected. Proof of an ‘actual conflict’ is not required. People v. Mroczko, 35 Cal.3d 86, 104 (1983). This Court hasreiterated its “more rigorous” state standard in several recent capital cases. See, e.g., People v. Frye, 18 Cal.4th 894, 998 (1998); People v. Sanchez, 12 Cal.4th 1, 45 (1996); People v. Kirkpatrick, 7 Cal.4th 988, 1008 (1994); Peoplev. (Richard) Clark, 5 Cal.4th 950, 995 (1993); People v. Cox, 53 Cal.3d 618, 654 (1991). 324. Hove hada direct financial incentive to remain involved in Petitioner’s case and to have Petitioner’s case move as quickly as possible. First, Hove clearly needed the money from this case to pay his attorney, Patrick Hallinan, and to pay the court ordered fine of $250,000. He could no longerpractice in federal court after the beginning of February. Moreover, as Hove indicated in federal court proceedings, he had very little income during this period. Particularly during this period, Hove would not have beenable to take on other appointed cases because they would not have concluded before his suspension would have becomeeffective. 325. Hove also oweda duty of loyalty to his former clients and had a direct financial interest in not investigating, preparing or presenting 141 evidence of Petitioner’s family’s criminalactivities since Hove’spast, present, and future earnings would be dependenton the clients that he had successfully represented in the past. 326. Hove sought appointmentin Petitioner’s case to meet his own personal needs, presumably financial, and exploited the governmentas well as Petitioner to meet these needs. See In re Gay, 19 Cal.4th 771 (1998) (Werdegar, J., concurring.) At the time of his appointment, it is clear that Hove, and Cannady as well, were aware that Hove would not be able to function as second chair in this capital trial. Hove was merely present for the financial gain. 327. Hove engineered his appointmentin a capital case “for the apparent purposeof quickly obtaining a fee while expendingaslittle time and effort on the case as possible.” Gay, at 832-35 (Werdegar,J., concurring). 328. Petitioner’s convictions must be reversed because his counsel had an actual conflict of interest adversely affecting his performance. The conflict infectedthe entire trial, andthus, reversal is required not only as to the murders but also the special circumstances and the death sentence. 329. Petitioner hereby incorporates each and every allegation in Claims C and D. 142 C. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE GUILT AND SPECIAL CIRCUMSTANCE PHASESOF PETITIONER’S TRIAL 330. Petitioner’s confinement1s illegal and unconstitutional in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution and Article I, sections 1, 7, 13, 15, 16, and 17 of the California Constitution as a result of the unreasonable actions and inactions of his appointed trial counsel at the guilt and special circumstance phasesofhistrial. As a result of such deficiencies, there was a complete breakdown in the adversarial process. When these deficiencies are considered separately and also in conjunction with other claims alleged herein, the verdicts in the guilt phase and/or the penalty phase of Petitioner’s trial must be set aside. There is a reasonable probability that but for these errors and omissions, the outcomeof Petitioner’s trial would have been different. 331. Petitioner alleges the following facts in support of his claim, amongothers to be developedafter full investigation, discovery, access to this Court’s subpoena power, adequate funding for investigation and experts, and a hearing on the merits of the claim. 332. Counsel’s representation fell below an objective standard of reasonableness underprevailing professional norms. Stricklandv. 143 Washington, 466 U.S. 668, 693-694 (1984). There is a reasonable probability that but for counsel’s failings the result would have been more favorable. /d. at 687-96. A reasonable probability is a probability sufficient to undermine confidence in the outcome. J/d. at 694. 333. Counsel’s performance impaired the proper functioning of the criminal justice system to the point “that the trial court cannot be relied on as having produceda justresult.” /d. at 686. 334. Itis clear that “counsel must, at minimum, conduct a reasonable investigation enabling him to make informed decisions about howbestto representhis client.” Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). Counsel is deemedto have rendered ineffective assistance “where he neither conducted a reasonable investigation nor made a showing of strategic reasons for failing to do so.” Caro v. Calderon, 165 F.3d 1223, 1226 (9th Cir. 1999) (quoting Sanders, 21 F.3d at 1456). 335. While the inquiry into ineffective assistance employs a presumption that counsel’s conductis within the “wide range of professionally competent assistance,” id. at 689, that presumption does not excuse counsel’s failure to investigate and prepare a defense. See Turnerv. Duncan, 158 F.3d 449, 456 (9th Cir. 1998). Any presumptionthat Petitioner’s counsel reasonably exercised professional judgmentis rebutted 144 because the challenged acts and omissions alleged here were not informed tactical decisions but resulted from a lack of diligence in preparation and investigation. Hendricks v. Vasquez, 864 F.Supp. 929, 942 (N.D.Cal. 1994), aff'd 70 F.3d 1032 (9th Cir. 1995), citing Kenley v. Armontrout, 937 F.2d 1298, 1304 (8th Cir. 1991). 336. To the extent that any of the errors and omissions alleged here were tactical decisions not to investigate, they were not reasonable decisions. “An attorney’s strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland v. Washington, at 690-91; see also Kenley v. Armontrout, 937 F.2d at 1304. 337. Giventrial counsel’s decision to contest the identification of the shooter,trial counsel’s tasks were straightforward.** The most important task was to convincethe jury that Petitioner had not committed this crime. It was also important to establish that no matter who had committed these crimes, they did not occur as the prosecution contended, that is, these were not execution-style killings. Finally, it was important to ** Petitioner does not concedethattrial counsel’s decision to put forth a case based on innocence waseffective assistance of counsel but chooses not to contest that issue herein. 145 _establish Petitioner’s credibility. Counsel failed in each of thesetasks. Failure to Effectively Litigate the Motion to Suppress Petitioner’s Statement 338. No physical evidence connected Petitioner to the commission of the crimes in question. At the time of the suppression motion there were no witnessesto the shooting of either victim. The only evidence against Petitioner was his statements to the police. Thus, it was importantthat counseleffectively litigate the Motion to Suppress Petitioner’s Confession. Counselfailed to do so in at least the following respects. 339. Petitioner incorporates each and every allegation of Claim F as if fully pled herein. Failure to Investigate Obvious Defenses 340. Trial counsel failed to investigate obvious defenses that could have been presentedat trial. Trial counsel did not employ any mental health professional to determine if a mental state defense could have been presented. 341. Hadtrial counsel acted as a reasonably competent advocate, trial counsel would have discoveredat least the following information. 342. Dr. Roderick Pettis, an experienced forensic psychiatrist, has concluded, based on his review ofPetitioner’s social history prepared by Dr. Craig Haney, additional documents provided by present counsel, and his 146 interviews with Petitioner the following. 343. Petitioner’s history of neglect, depression, emotional problems, and impaired mental functioning left him incapacitated and overwhelmed in the face of a suddenstressful situation. Pettis Dec., Exh, 99. 344. Petitioner did not form the specific intent required to commit first degree murder. At the time of the offenses, Petitioner lacked the ability to plan, weigh considerations, and carry out a design of action and course of conduct aimed at achieving a specific goal. Accordingly, Petitioner did not premeditate and deliberate in that he did not have an ability to weigh and consider the question of killing and the reasons for and against such a choice. Petitioner was incapable of premeditation, deliberation and formation ofthe intent to kill. Petitioner’s emotional impairments combinedwith his drug use precluded him from being aware of the duty imposed on him not to commit acts which involved the risk of grave injury or death and precluded formation of the mental state to understand meaningfully his actions and consequences. Pettis Dec., Exh. 99. 345. Dr. Pettis’s conclusions are supported by Petitioner’s neurological impairments. Trial counsel unreasonably failed to conduct any neuropsychological testing of Petitioner at the time oftrial. Hadtrial 147 counselnot failed to do so, they would have discovered and presented the following expert opinion. 346. Dr. Dale Watson,a licensed psychologist in the State of California, whose expertise is in forensic psychology and neuropsychology and psychodiagnostic assessment, has examined Petitioner. 347. Clinical neuropsychological testing assesses the behavioral expression of an individual’s brain function. Appropriately interpreted, neuropsychological assessmentis a fundamental part of a reliable and comprehensive clinical evaluation of brain function. Each of the individual tests that make up a neuropsychologicalbattery is designed to provide insight into the nature and extent of brain dysfunction. The testing of Petitioner provides evidence in his summary scores that he suffers mild neuropsychological impairment. Watson Dec., Exh. 122. 348. Petitioner’s neuropsychological test data was assessed in a numberofways, including procedures to form a basis of comparison between Petitioner and cross-validated norms. Theresults of the testing and analysis indicate that Petitioner suffers from generalized mild neuropsychological dysfunction. This results in a slowing of Petitioner’s ability to process information, disruption of auditory processing capacity, and poorfine motor control. These deficits would likely have a significant 148 impact uponhis ability to succeed in school and are consistent with learning disabilities. Petitioner’s neuropsychological impairments hada significant developmental impact upon him. Testing Data 349. Petitioner’s history includes multiple injuries to the head, including:a fall out of bed hitting his head on the floor as a toddler, resulting in vomiting and a “very dreamy”state; a skateboardfall resulting in loss of consciousness, vomiting and sleepiness at age four; anda fall off a 5-foot wall as a child but without loss of consciousness. This history of head traumas suggests a possible environmental etiology for Petitioner’s impairments,and should be considered along with possible biological and genetic factors. Watson Dec., Exh. 122. 350. Neuropsychological summary measures, which have gained widespread acceptance in the neuropsychological community, and which were widely used in the period of 1992-1993, include the Halstead Impairment Index and the Average Impairment Rating. Using age and education adjustments, the Halstead Impairment Index falls within the mildly impaired range, though the Average Impairment Rating is within the low normal range. Petitioner’s scores on these indices, along with a more detailed analysis of test findings, establish that he has underlying mild 149 neuropsychological dysfunction. Watson Dec., Exh. 122. 351. Petitioner’s Neuropsychological Deficit Scale (NDS) score of 37 falls within the Mild Neuropsychological Impairment range. In Reitan’s 1988 study, no non-brain damaged person scoredhigher than 34 on the NDS. That study foundthat a cutting score between 25 and 26 separated normal from brain-injured individuals with the greatest degree of accuracy. Petitioner, therefore, tests in the impaired range. The NDSis one ofthe most comprehensive of the neuropsychological indices available for the Halstead Reitan Battery. In addition, the NDS has been cross-validated as an effective means of identifying brain damage. In multiple, independent scientific studies, the NDS hasproved to be a consistently valid measure of brain damage. Watson Dec., Exh. 122. 352. Petitioner’s overall intellectual ability falls within the low average range. However, analysis of the underlying factors of the intelligence measures show Petitioner to have significant difficulties in his speed of information processing. Petitioner is very slow to process information andto transfer written information. His ability to process information is well below his other scores which is a common problem for individuals who havehadanytype of neuropsychological insult, including head injuries as has Petitioner. Watson Dec., Exh. 122. 150 353. Petitioner shows signs of microsmia, or the loss of the sense of smell. This may be an indicator of impairments within the orbital-frontal region of the brain — an area associated with personality functioning and when damaged, with impulsivity. His behavior often appears rather child- like and immature — consistent with this hypothesis. 354. Further, Petitioner has signs of lateralized impairment within the auditory processing centers of the left hemisphere. On a dichotic listening task, in which different words were simultaneously presented in eachear, Petitioner was able to correctly identify 35 of 50 words onthe left but only 25 of 50 on the right — strongly suggesting left hemisphere disruption. This task is useful in identifying impairments that may or may not involve structural defects within the brain, particularly within the » subcortical areas associated with the temporal regions. Watson Dec., Exh. 122. 355. Petitioner's oral reading abilities are also of note because, though he comprehends well (12th grade level), his reading speedis remarkably slow at less than the Ist percentile for his age (Sth grade level). This performance again speaks to the slowness with which he processes information as well as his difficulties in learning. His performanceis consistent with the reports of Petitioner being a “slow” learner. Watson 151 Dec., Exh. 122. 356. Likewise, on the California Verbal Learning Test, Petitioner wasslow to orient to a new task. Watson Dec., Exh. 122. 357. An examination of the test results and Petitioner’s school records show that he was a very slow student who clearly had a problem processing information. He related that he never adequately learned to write in cursive and this appearsin part to berelated to difficulties with fine motor control. His awkwardness, whichisstill evident, is not simply a function ofhis size but rather reflects subtle brain dysfunction. Watson Dec., Exh. 1 22. 358. There are several possible sources for Petitioner’s neuropsychological impairments. He was exposedprenatally to alcohol and other drugs, both knownto cause permanent brain damagein developing fetuses. He wasat risk genetically for psychiatric illness and limited intelligence. His maternal grandmother was diagnosed with an affective mood disorder. Both his maternal grandmother and his maternal great- grandmother had problems with alcohol and both of his parents were chronic drug abusers. Moreover,all of his maternal aunts and uncles had very serious problems with drugs. Petitioner also experienced losses of consciousness from accidents. Any of these factors can cause impairments 152 or brain damage and all may exacerbate preexisting mental disabilities. Watson Dec., Exh. 122. 359. Petitioner's limited intellectual functioningas it relates to verbal comprehension and processing speed, combined with the unrelenting traumatic experiences he survived as a child, had devastating consequences for him during his developmentalyears. Understress, and especially in circumstances whenthereis little time to think, the functional impactofhis disabilities increases,heis less likely to think rationally and logically, to understandthe long-term consequences of his actions, to reflect and weigh the impact of his responses, or to develop alternative strategies to follow instead of impulse driven actions. Watson Dec., Exh. 122. 360. Petitioner's Wechsler Adult Intelligence Scale — 3 Processing Speed Index score of 73 places him at the 4th percentile and indicates that he is very slow to process information. He will not perform well under time pressure. This ability to process information is well below any of the other test indices from the WAIS-3. This phenomenonis often foundin people with neuropsychological dysfunction. Watson Dec., Exh. 122. 361. Petitioner suffers from mild generalized neuropsychological impairment. As manyofthe abilities assessed by thesetests are not lost over time, the damageto Petitioner’s cognitive functioning occurred at an 153 early stage in his life. These impairments are brain-related deficits. Watson Dec., Exh. 122. 362. In addition, polysubstance abuse would have exacerbated the effects of Petitioner’s impairments to a significant extent. At the time ofhis arrest in 1992, the impact of his polysubstance abuse would have been significantly more markedthan testing is able to identify this many years later. Watson Dec., Exh. 122. 363. A neuropsychological assessment of Petitioner reveals evidence of organic brain impairments. Such findings would have been made had Petitioner been evaluated by a competent neuropsychologist at the time of Petitioner’s trial in 1992-1993. Watson Dec., Exh. 122. 364. The above findings would have supported a mental state defense. Counsel’s failure to conduct a reasonably effective investigation, consult appropriate experts, prepare their testimony and effectively present it at trial, undermines confidence in the outcomeofPetitioner’s case at both the guilt and penalty phasesofhis trial. Failure to Effectively Employ Investigators 365. Trial counsel also failed to effectively employ the services of the sole investigatorin the case, Brian Olivier. 366. As detailed in Claim B, trial counsel failed to investigate, 154 prepare, and present an effective case for Petitioner at either the guilt or penalty phases becausetrial counsel hurried this case to trial in order to ensure that Keenan counsel, Richard Hove, would be able to collect his legal fees in this case prior to his disbarment. 367. An examination of Olivier’s billing reveals the following information. 368. During the five month period from August 12, 1992 to January 25, 1993, Olivier, the sole investigator working on this case,billed a total of 62.75 hours. Olivier did notbill for the period of January 26, 1993 to February 15, 1993. However, jury selection began on February 1, 1993. CT 826. On February 15, 1993 -- after two weeksofJury selection-- Olivier resumedhis efforts. According to Olivier’s billing, the sole investigator in Petitioner’s case billed seventy-one percentofthe total work that occurred in a mere five weeks andafter jury selection had commenced. 369. Olivier’s billing also reveals that during the period of August 12, 1992, to January 25, 1993, the sole investigator in this case saw Petitioner, outside of the courtroom,a total of three times. These interviews occurred once in the month of August, once three monthslater in November, and once in January. After January, according to Olivier’s billing, Petitioner never again met with the sole investigator in his case 155 unless it was in the courtroom. 370. In the final two weeksofthe trial, from March 10, 1993, through March 23, 1993, Olivier billed only 15.15 hours. Oliver did not once meet with Petitioner’s family members-- including those whotestified at trial. Failure to Consult and Present the Testimony of a Criminalist 371. The prosecutor argued in her closing argumentat the guilt phase that Petitioner had “executed”the victims in a cold-blooded manner. See, e.g., RT 1705, 1721-22, 1728, 1791. 372. Had a criminalist been consulted, at least the following could have been presentedto establish that the crimes were not committed as the prosecutor suggested. 373. Charles V. Morton has been the Chief Forensic Scientist at the Forensic Science Division of Forensic Analytical Laboratories in Hayward, California since 1997. Mr. Morton has overthirty-five years of experience as a criminalist, including over nineteen years of experience as a crime laboratory director. He has extensive experience in laboratory andfield examination of physical evidence, crime scene processing and reconstruction. Morton Dec., Exh. 92. 374. Mr. Morton hasstated: 156 [D]ue to the quantity of variables including the numberand angles of the bullet woundsin the victims, it would have been impossible for any competent criminalist to opine with reasonable certainty as to the sequence of bullet wounds, locations of the victims, or the precise location of the weapon whenthe shots were fired. Thus it would not have been possible to opine, based on the physical evidence, that these were ‘execution style’ killings due to the numberof variables present. Morton Dec., Exh. 92. 375. Thus, had trial counsel consulted a criminalist to examine the crime scene evidence, testimony could have been presented to effectively refute the notion that Petitioner had committed a “cold-blooded” or “execution style” killing25 376. Counsel also failed to call lay witnesses who could have confirmed that the victims were not shot “execution style.” Johnnie Wright, Jr. who lived at 2497 Cole Street in Oakland in the house next doorto 2501 Cole Street has stated the following regarding what he witnessed on the night of the shootings: *> Petitioner acknowledges that his statementsets forth facts which could support the prosecutor’s allegations. However,if trial counsel had rendered reasonably effective assistance either with regard to suppressing the statement and/orin establishing the likelihood that the crime was committed in a different manner, counsel would have supported Petitioner’s contention that the confession wasthe result of facts that were supplied to him bythe police rather than being based on whatactually occurred. 157 ... 1 saw the woman go runningintothestreet. She was running whenshefell and landed face down. She did not change direction or turn before she fell. No one was standing near her so whoevershot her must have been some distance away. I did not see whoshother. I did not hear anyonesay or yell anything. I continued to watch and no one approachedher or shot at her after she was laying in thestreet.*®° Wright Dec., Exh. 126. Failure to Investigate and Refute Prosecutor’s Hypotheticals at Guilt and Penalty Phases 377. Petitioner incorporates each and every allegation of Claim E as if fully pled herein. Failure to Refute Prosecution Claim re: Cole Street House 378. Petitioner testified during the guilt phase that he and his family had been threatened after he gave his statements to the police. RT 1479. In support of this contention, he testified that he had asked someone to move his mother out of the Cole Street house for her protection. RT 1479. On cross-examination, the prosecutor impeachedPetitioner’s testimony by stating that the Cole Street house had been boarded up following the shootings. RT 1481. Trial counsel failed to refute the prosecutor or support *6 Wright’s testimony wouldalso have refuted the prosecution’s theory that Devallier was shot as she begged for her life. This testimony should have, at a minimum, been presentedin the penalty phase to mitigate the crime evidence vigorously argued by the prosecution in aggravation. 158 Petitioner’s version of the facts thus undermining Petitioner’s credibility with the jury. 379. In fact, the Cole Street house was not boarded up directly following the shootings. Persons wholived in the same neighborhood as 2501 Cole Street have stated: In the monthsafter the shooting, people were still going in and out of 2501 Cole Street like they had been before. Four to six months after that, the house wasfinally boarded up by the city. Edward Johnson Dec., Exh.81. 380. Bill Ashley, another neighbor, has stated “[a]fter the shootings, people still went in and out of 2501 Cole Street for some time. It took some time before for the City took control of the house and boarded it up.” Ashley Dec., Exh. 54. Failure to Obtain Jury Background Checks 381. The policy of the Alameda County District Attorney’s Office at the timeoftrial was to initiate criminal background checksofpotential jurors. Sawyer Dec., Exh. 107. 382. Susan Sawyer, an Assistant Public Defender in the Alameda County Public Defender’s Office and an expert in capital litigation has stated: 159 In my experience, the district attorneys trying cases in Alameda County routinely run the criminal records ofall prospective jurors in a criminal case. Moreover, it has been standard practice since at least 1980 for defense attorneys to file a motion requesting this information from the prosecution, and this informationis routinely provided. I am fairly certain that I have obtained this information in every case I havetried since at least 1980, either because the judge ordered the information turned overor because the district attorney agreed to turn it over voluntarily. Sawyer Dec., Exh. 107. 383. Trial counsel was awareofthis policy. Cannady Dec., Exh. 59. 384. Reasonably competenttrial counsel would have made discovery requests to obtain these background checks from the District Attorney’s office. Sawyer Dec., Exh. 107. 385. The failure of counsel to request and obtain criminal background checks donebythe District Attorney’s Office wasineffective assistance of counsel. This failure prejudiced Petitioner because hadthis request been made, counsel would have become aware that Juror Ary was a convicted felon. Trial counsel has stated that had he known that Ary was a convicted felon, he would have used a peremptory challenge against Juror Ary if the trial court had failed to disqualify him for cause, Cannady Dec., Exh. 59, although heis confident that this would not have been necessary 160 since, in his opinion, the trial judge would have disqualified Juror Ary. Cannady Dec., Exh. 59. Failure to Make Appropriate Objections 386. As raised on appeal, when Petitionertestified at the hearing to suppress his statements to the police, on cross-examination the prosecutor was permitted to ask questions regarding not the details and circumstances of the interrogations, but rather the substance and veracity of the underlying statements. To the extent that counsel failed to properly or fully articulate an objection that such cross-examination was beyond the scopeofdirect, was irrelevant, and violated Petitioner’s Fifth Amendmentrights, counsel rendered constitutionally ineffective assistance of counsel. 387. As raised on appeal, the prosecutor committed misconduct by cross-examining Petitioner during the guilt phase in a manner which improperly and unnecessarily alerted the jury that the Petitioner’s prior testimony was from a suppression hearing andbyreiterating this point in closing argument. To the extentthat trial counsel’s failure to object and request admonitions to the prosecutor’s misconduct waivesthe issue on appeal, he renderedconstitutionally ineffective assistance of counsel. 388. As raised on appeal, inflammatory evidencerelating to the victims, including testimony and photographs, was introduced in violation 161 of Petitioner’s state law and state and federal constitutional rights. To the extent that counsel’s objections were not sufficient or timely to preserve the claim raised on appeal, counsel rendered constitutionally ineffective assistance of counsel. 389. As raised on appeal, the prosecutor committed misconduct in vouching for and expressing personalbeliefs as to the credibility of witnesses, distorting the burden of proof, misstating the law and facts, inflaming the jury, and misrepresenting the nature of the deliberative process. To the extent that trial counsel’s failure to object and request admonitions waives the issue on appeal, counsel rendered constitutionally ineffective assistance of counsel. Failure to Make An Adequate Recordto Establish Prima Facie Case for Discriminatory Use of Peremptory Challenges , 390. The prosecutor exercised peremptory challenges on four of the first six African-American women whowerecalled, using four ofthe first fifteen peremptory challenges: Jurors Alston (RT 1151); Davis (RT 1153); Wiggins (RT 1154) and Farwell (RT 1155). After Ms. Farwell was excused,trial counsel, raised a “Wheeler’’ motion”on the groundthat the prosecutor demonstrated a systematic exclusion of African-Americans by *7 People v. Wheeler, 22 Cal.3d 258 (1978). 162 excluding four Afncan-American women. RT 1155, 1162. 391. The court, noting that the prosecutor had permitted two African-American womento remain onthe jury,stated it did not “think” a prima facie case had been made, but asked the prosecutor if she wishedto explain her challenges. RT 1163. The prosecutor then indicated that these four jurors were “lifers;” the prosecutor stated that she believed that they could not vote for death. RT 1163. The prosecutor also indicated that in addition to the two African-American women notedbythe trial court who remained on the jury, that there was an additional African-American male on the jury.7 RT 1163. 392. After hearing-the prosecutor’s explanations, the court stated that no prima facie case had been shown, agreeing with the prosecutor“on her challenges of the four black African-American women,that I did not believe they were persons who would vote for the penalty of death based upon their questionnaires and their answers.” RT 1164. The motion was therefore denied. RT 1164. 393. It is without question that a criminal defendant “does have the right to betried by a jury whose membersare selected pursuant to *8 A third African American woman ultimately remained onthe jury, but she wascalled to the jury box after the prosecutor had exhausted all of her peremptory challenges. RT 1158-59. 163 nondiscriminatory criteria.” Batson v. Kentucky, 476 U.S. 79, 85-86 (1986); see also Powers v. Ohio, 499 U.S. 400, 404 (1991). The use of peremptory challenges to excuse prospective jurors on the basis of race or gender violates the Equal Protection Clause of the Federal Constitution, Batson v. Kentucky, 476 U.S. 79; .E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), as well as the right under the California Constitution to a trial by a jury drawn from a representative cross-section of the community. People v. Wheeler, 22 Cal.3d 258 (1978). 394. At the time ofPetitioner’s trial, to establish a primafacie case of systematic exclusion ofjurors on the ground of groupbias, Petitioner was required to demonstrate a “strong likelihood” that persons were challenged because oftheir group bias. See People v. Howard, | Cal.4th 1132, 1153-54 (1992). 395. Group bias may be demonstrated by a showingthat the prosecutor has struck mostor all of the membersofthe identified group 2° The Ninth Circuit recently held that California state courts have been applying an incorrect legal standard in making its determinations whether a peremptory challenge is a race-based violation of the Equal Protection Clause. Wade v. Terhune, 202 F.3d 1190 (9th Cir. 2000). As raised on appeal, to the extent that California courts have created an inconsistency between Batson and Wheelerbyinsisting that a defendant show a “strong likelihood”ofracial bias to establish a prima facie case rather than show a “reasonable inference”ofbias, the higher standard established by California is unconstitutional. /d. at 1193. 164 from the jury panel, has exercised a disproportionate numberof challenges against a cognizable group, and/or that those individuals excluded shared no _ characteristic other than their membership in the group. People v. Wheeler, 22 Cal.3d at 280. Once the court determines on the basis of this evidence that a prima facie case has been made, the burdenshifts to the other party to show,if he can, that the peremptory challenges were not based on group bias alone. /d. at 281. 396. Here, thetrial court initially indicated its view that a prima facie case had not been made,”but nevertheless invited the prosecutor to give nondiscriminatory reasons for the challenges. RT 1163. Although as argued on appeal, the prosecutor’s reasons were not supported by the record,trial counsel unreasonably failed to go beyond merely indicating the numberof excusals that were African-American, and therefore unreasonably failed to demonstrate that a prima facie case was made and that the reasons the prosecutor gave were pretextual. 397. At the time of the Wheeler motion, trial counsel stated that the 30 Thetrial court’s determination that a prima facie case had not been made was apparently based on the fact that the prosecutor did not exercise a peremptory challenge as to every African-American prospective juror. RT 1162-63. It was improperfor the trial court to rely onthis fact as a “conclusive factor” in finding no prima facie case. People v. Snow, 44 Cal.3d 216, 225 (1987). 165 prosecutor had excused by peremptory challenges four African-American women. RT 1162. Itis without question that the excluded jurors were membersof a cognizable group;”' the trial court agreed that four of the prosecutor’s twenty challenges were African-American women. RT 1163. 398. However, aside from demonstrating that the prosecutor had’ excluded four African-American women,defense counsel did not make any additional showing that there was a “strong likelihood that such persons are being challenged because oftheir group association.” People v. Howard, 1 Cal.4th at 1153-54. 399. The prosecutor gave explanations for the excusals — that each of the four women could not vote for death -- which trial counsel should have shown were not supported by the record. In fact, three of the four were clearly neutral on the death penalty.*? Had counsel directedthetrial court to the evidence described below, he would haveestablished,in light of the prosecutor’s false justifications for exercising peremptory challenges, a primafacie case and that the prosecutor did not have nondiscriminatory 3! African-Americans are a cognizable group for purposes of both Wheeler and Batson, and African-American women are a cognizable group under Wheeler. See People v. Clair, 2 Cal.4th 629, 652 (1992); People v. Motton, 39 Cal.3d 596, 605 (1985). *2 Petitioner concedes that Gail Alston, one of the four prospective jurors, would arguably meetthe prosecutor’s purportedcriteria of being reluctant to impose the death penalty. RT 586-594. 166 reasons for excluding the African American female jurors. 400. Valette Farwell, on her juror questionnaire, indicated she was “neutral” in her attitude towards the death penalty. CT 1336. If the voters of California were presented with a proposition as to whetheror not to have a death penalty in California, she would vote to have a death penalty law. CT 1336. She further indicated that she could vote to impose the death penalty depending on the circumstances, CT 1339, and “agree[d] somewhat”with the proposition that “anyone whointentionally kills another person should always get the death penalty.” CT 1341. 401. During voit dire, Ms. Farwell reiterated her neutrality on the question of capital punishment, and that she could vote for death based on the circumstances of the case outlined by the court. RT 539. She agreed there was “nothingin the allegation of the murder of two persons which prevent[ed] [her] from returning a death verdict, depending upon the ~ evidence.” RT 540. Ms. Farwell indicated she could chooseeither death or life without possibility of parole, depending on the evidence, and would “have an honest choice” between the two penalties. RT 541. 402. Someone who would have difficulty voting to impose death, Ms.Farwell wasof the belief that a sentence oflife without possibility of parole wasactually worse than death. CT 1338; RT 543. She agreed, 167 however, that she would be able to follow the law that the death penalty was 4 worse penalty. RT 543. She further agreed that she could be the foreman andsign a death verdict. RT 545. 403. Linda Davis, on her questionnaire, stated she was “moderately in favor” of the death penalty. CT 6761. She would vote for a proposition to have a death penalty in California if it were on the ballot. CT 6761. She further stated that she could vote to impose the death penalty depending on the circumstances, CT 6764, and “‘agree[d] somewhat” with the proposition that “anyone whointentionally kills another person should always get the death penalty.” CT 6766. 404. On voir dire, Ms. Davis reiterated that she was moderately in favor of the death penalty. RT 697. Moreover, depending on the circumstances, she was capable of returning a death verdict and would “have an honest choice” between the two penalties. RT 697, 698. - 405. Like Ms. Farwell, Ms. Davis believed that life without possibility of parole was a worse sentence than the death penalty. CT 6763. She also agreed, upon being informedthat the death penalty was the most severe penalty under the law, that she could follow the instructions. RT 699. Ms. Davis asserted that she would havethe strength to look Petitioner in the eye and say “yes, I vote for your death.” RT 699-700. 168 406. Barbara Wiggins, on her questionnaire, stated she was “moderately in favor” of the death penalty. CT 4434. She would vote for a proposition to have a death penalty in California if it were on the ballot. CT 4434. She further indicated that she could vote to impose the death penalty depending on the circumstances. CT 443. 407. On voir dire, Ms. Wigginsreiterated that she was moderately in favor of the death penalty. RT 905. She further stated that, depending on the circumstances, she was capable of returning a death verdict, and would | “have an honest choice” between the two penalties. RT 905-907. 408. Ms. Wiggins answered one question on the juror questionnaire that she could not vote for death if life without possibility of parole was an option. CT 4439. However, on voir dire, this was clarified, and Ms. Wiggins madeclear that she could vote for either penalty if appropriate. RT 907-908. Ms. Wigginsstated that she could vote to impose death and state in open court that she had reached such a verdict. RT 908-909. 409. Trial counsel unreasonably failed to undertake a review of both the voir dire and juror questionnaires to demonstrate that the prosecutor’s stated reason for excusing these jurors wasfalse, and that the trial court’s agreementwith the validity of these reasons was erroneous. 410. Trial counsel also unreasonably failed to demonstrate that a 169 comparison of these prospective jurors’ responses with the responses of those whosat on the jury, demonstrates that the prosecutor’s reasons were pretextual. 411. Christine Rennie indicated on her questionnaire and on voir dire that she was “moderately against” the death penalty. RT 727; CT 5310. She further indicated it would be difficult to vote to impose the death penalty, and was unsure whether she could do so. CT 5313, 5315. She ultimately agreed that she could probably vote to impose death. RT 729- 730. 412. Darlene Perez indicated on her questionnaire and on voir dire that she was “neutral” on the death penalty. CT 5635; RT 795-96. She also stated in her questionnaire that she believed thatlife without possibility of parole was a worse punishment than death before being informedthat the law wasto the contrary. CT 5637; RT 797. 413. Philip Karantzalis indicated on his questionnaire and on voir dire that he was “neutral” on the death penalty. CT 4985; RT 975. Healso believed thatlife without possibility of parole wasa worse penalty than the death penalty. CT 4987. 414. Marland Orgain indicated on his questionnaire and on voir dire that he was “moderately in favor” of the death penalty. CT 5785; RT 926. 170 Healso stated that he believedthatlife in prison without possibility of parole was a worse punishment than death, but would follow the law that death is the more severe of the two punishments. CT 5787; RT 926-27. Although Orgain indicated on his questionnaire that he would not be able to vote for either penalty, CT 5789, he stated on voir dire that he, in fact, could chooseeither penalty. RT 929. 415. Carmen Garcia indicated in her questionnaire and on voir dire that she was “moderately in favor” of the death penalty. CT 4185; RT 995. Aswith the African-American jurors who were challenged by the prosecution, she indicated she could makean honest choice between the two penalties. RT 996-997. 416. Reasonably competent counsel would have argued that there was no meaningful way to distinguish these answers regarding attitudes toward imposing the death penalty by jurors actually seated from the prospective African-American jurors who were struck. Several of the seated jurors expressed similarif not identical views. Yet while the African-American jurors were excused, each of these other individuals was unchallenged and ultimately sat on the jury. A review of the prosecutor’s justification for excusing the African-American women, comparedto the statements provided on voir dire and in questionnaires by those jurors who 171 ultimately sat in this case, reveals nothing more than sham excuses belatedly contrived to avoid admitting acts of group discrimination. The disparate treatment of African-American jurors, particularly African- American female jurors, as compared to non-African-Americans was strongly demonstrativeofbias. 417. Trial counsel’s failure to undertake any meaningful attempt to evaluate the prosecutor’s conduct and statements and review the record in an attempt to discern whetherthe prosecutor’s basis for exercising peremptory challenges constituted bona fide reasons or sham excuses was unreasonable and constituted constitutionally ineffective assistance of counsel. 418. Hadtrial counsel acted reasonably in this regard, he would have demonstrated that the prosecutor’s “reasons”failed to establish that the peremptory challenges against three of the four African-American women were exercised for motives other than specific group bias. Due to counsel’s failures, Petitioner wastried, convicted, and sentenced to death by a jury selected using racially discriminatory criteria in violation of the Equal Protection Clause of the United States Constitution and the California Constitutionalright to a trial by a jury drawn from a representative cross- section of the community. 172 419, Counsel’s deficient performance in this regard was prejudicial and undermines confidencein the outcome of the case. Trial Counsel’s Ineffective Performance Was Based On An Actual Conflict of Interest ‘420. Petitioner hereby incorporates each and every allegation of Claim B asif fully pled herein. D. PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE PENALTY PHASE OF HIS CAPITAL TRIAL 421. Petitioner’s confinement and sentenceare illegal and unconstitutional under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and California Constitution Art. I, §§ 1, 7, 14, 15, 16, 17, 24 because he was deprivedof effective assistance of counsel dueto trial counsel’s failure to recognize, adequately investigate, consult and prepare appropriate lay witnesses and experts, and present statutorily and constitutionally appropriate and readily available mitigation evidence in the penalty phase of Petitioner’s trial. The failure to develop and present such evidence wasprejudicial to Petitioner. 422. Trial counsel’s acts and omissionsas set forth below denied Petitioner the right to effective assistance of counsel; the nights to due process and fairtrial, to present a defense andto present relevant evidence; the right to confrontation and cross-examination of witnesses; the 173 right to a jury determination of material facts; the right tocompulsory process; andthe rightto a reliable, rational and accurate determination of death eligibility and death-worthiness, free from any constitutionally unacceptable risk that those determinations were the productofbias, prejudice, arbitrarinessor caprice. 423. Trial counsel’s representation fell below an objective standard of reasonableness underprevailing professional norms. Strickland v. Washington, 466 U.S. at 693-694. There is a reasonable probability that but for counsel’s failings the result would have been more favorable. /d. at 687-96. A reasonable probability is a probability sufficient to undermine confidence in the outcome. /d. at 694. 424. Petitioner alleges the following facts in support of this claim, among others to be developed after full investigation, discovery, access to this Court’s subpoena power, adequate funding for investigation and experts, and a hearing on the merits of the claim. Analysis of Pretrial Investigation and Penalty Phase Preparation 425. Petitioner was arrested on July 30, 1992. Within a few days, on August 5, 1992, Walter Cannady was appointedto represent Petitioner. On September 15, 1992, Richard Hove was appointed as Keenan counsel. Gail Johnson Dec., Exh. 82. At the time of Hove’s appointment, Hove was 174 already scheduledto betried in federal district court on money-laundering charges beginning on November30, 1992.*° 426. Cannady and Hoverepresented Petitioner from their respective appointments in August and September, 1992 throughtrial in February - March, 1993. 427. In August, 1992, Cannadyretained the services of Brian Olivier, a private investigator. 428. Between the time of Cannady and Hove’s appointments, and . January, 1993, on the eve oftrial, Cannady took only one preliminary step with regard to the developing of mental state evidence either for the guilt phaseor the penalty phase. On or about January 5, 1993, approximately five months after his appointment, Cannady finally contacted Dr. Stephen Pittel, a psychologist, to interview and evaluate Petitioner. 429. According to Dr.Pittel’s billing records, he met only once with Cannady and/or Hove, and only spoke to Cannady or Hoveby telephone for a total of approximately one hour.** 430. Cannady did not request funds for Dr. Pittel from the court 33 For the details of Hove’s trial, see Claim B. Petitioner incorporates each and every allegation contained in Claim asifpled herein. 4 Dr. Pittel also spent approximately one hourtalking by telephone with Olivier. 175 until February 8, 1993. 431. Dr. Pittel was given no records pertaining to Petitioner or Petitioner’s family, by trial counsel or counsel’s agents. The only documents Dr. Pittel reviewed were reports that appeared to have been given to counsel in discovery. Pittel Dec., Exh. 100. 432. On February 15, 1993, after eight days ofjury selection had already been conducted, Dr. Pittel interviewed Petitioner. Dr. Pittel immediately wrote a letter to counsel outlining the results of his interview and requesting follow-up by counsel and/or counsel’s investigator of certain areas of investigation that Dr. Pittel believed could provide relevant evidence documenting Petitioner’s mentalstate at the time of the crime and/or for penalty phase mitigation evidence. Dr.Pittel’s requests detailed the information that he believed could form the basis for a competent mental health evaluation of Petitioner. His recommendations included the following: a. With regardto Petitioner’s drug abuse history, Dr. Pittel asked that interviews be conducted with friends and relatives to document the history; Dr. Pittel asked to review the records of Dr. William Spivey who had previously treated Petitioner; Dr. Pittel asked to review anypre- sentence reports or other medical records. Dr. Pittel explained the reason 176 for his request as follows: Exh. 262. I will need to corroborate the information that Mr. Boyette provided through interviews with friends and family members who he has indicated are aware of his use of drugs andhis behavior whenheis intoxicated. I will also need to meet with Dr. Spivey, and review the records of his psychiatric treatment of Mr. Boyette. I would also like to review pre- sentence reports and jail medical and psychiatric records that may include documentation of Mr. Boyette’s drug abusehistory. b. With regard to Petitioner’s psychosocial history, Dr. Pittel’s interviews of Petitioner indicated to him that Petitioner’s ‘“‘father’s death from cancer when he was 12 years old wasa significant factor in his psychological development. [Petitioner’s] use of drugs, involvementin criminal activities and decline in school performanceall appear to have begun shortly after his father’s death.” Exh. 262. Dr. Pittel informed counsel of what he believed would be necessary to documenthis preliminary findings: I will need to review school records and investigative reports, and possibly conduct interviews with teachers, counselors, family members and peers who maybeableto provide additional information in this regard. I would also like to review investigative reports, and to conductinterviews, if necessary, regarding Mr. Boyette’s mother’s heroin addiction, and his 177 grandmother’srole in his psychological development. Exh. 262. 433. Reasonably competent counsel maintains responsibility for directing the investigation for both guilt and penalty phase. Here, trial counsel failed to do so even when their own expert requested information he believed could be the basis of compelling mitigation. Both Cannady and Hove simply read what few reports were given to them bythe investigator and the discovery provided by the prosecution. Neither Cannady nor Hove instructed their investigator Olivier to obtain any of the information requested by Dr.Pittel. 434. With regard to his participation in this case, Dr. Pittel has stated: Myfirst involvementin Mr. Boyette’s case occurred on January 5, 1993. At that time I was consulted by telephone by Walter Cannady regarding the capital trial of Maurice Boyette. Mr. Cannady asked meto interview Mr. Boyette with regard to his capital case. I was not informed that the case was on the verge of goingto trial. Had I knownthis, I probably wouldhave refused to participate in the case, because in my experienceit is not desirable to attempt to determine if there are mental health aspects to a case withsolittle time remaining prior to trial. Pittel Dec., Exh. 100. 178 435. Dr. Pittel has confirmedthat he was never provided with the records or investigative reports he requested: At no time wasI provided with any records pertaining to Mr. Boyette such as school records, medical records, or defense investigative reports of interviews with witnesses, family members, neighbors, or teachers. I did not receive Dr. William Spivey’s records regarding Mr. Boyette, nor did I receive any reports that had been made pursuant to Penal Code sections 4011.6 and 5150. Pittel Dec., Exh. 100. 436. Dr. Pittel has also confirmed that his contact with Petitioner’s counsel was perfunctory. “Before my interview with Mr. Boyette on February 15, 1993, I had a numberofrelatively brief phone conversations with Bryan Olivier, who I understood to be Mr. Cannady’s investigator in this case, and Mr. Cannady. Tothebest of my recollection these phone calls, simply involved making arrangements for me to interview Mr. Boyette at the county jail.” Pittel Dec., Exh. 100. 437. On February 15, 1993, Pittel interviewed Petitioner for less than 2.75 hours. Regarding this interview,Pittel has stated, “This was the only interview I conducted with Mr. Boyette. At all times, Mr. Boyette was forthcoming and cooperative. During our interview, Mr. Boyette related to me valuable information concerninghis life history which I believed could 179 have formedthe basis for testimonyto be presented on his behalf at either the guilt and/or penalty phasesofhistrial.” Pittel Dec., Exh. 100. 438. Based on this interview, as stated above, Pittel then wrote to Cannady on February 17, 1993. Regardingthis letter Pittel has stated: I explained to Mr. Cannady that I would need to review pre-sentencereports,jail medical and psychiatric records, school records and investigative reports, and possibly conduct ' interviews with teachers, counselors, family members and peers of Mr. Boyette. These requests are the usual methods by which persons in my profession prepare an evaluation of potential issues related to an individual’s mental _ health and social history. Pittel Dec., Exh. 100. 439. Cannady did follow-up on Dr.Pittel’s letter. On February 18, 1993, Cannady filed a request with the court pursuant to Penal Codesection 987.9, authorization for an additional 40 hours of time for Dr. Pittel. Cannadystated that this authorization was necessary for Dr. Pittel to “review pertinent documents, conduct interviews and meet with the defense team and prepare for testimony with respectto the relatives that are involved in here.” Exh. 261. 440. On February 19, 1993, Dr. Pittel met for over three hours with Mr. Cannady, Mr. Hove and Mr.Olivier. I believe we metfor lunch. During our meeting 180 I told them that I needed to be provided with underlying documentary records regarding my initial questions about Mr. Boyette’s drug history, his traumatic relationship with his mother, the effect of Mr. Boyette’s father’s death on his development, the effect of alleged rape of Mr. Boyette’s mother on him, and other issues relevant to the guilt and penalty phases. At no time during the meeting was I given the impression that I would not continue to be involved with Mr. Boyette’s case. . . Although I did have a subsequent brief telephone conversation with Mr. Olivier, I was never informed that I would not be continuing my involvement in Mr. Boyette’s case. Pittel Dec., Exh. 100. 441. Although Dr. Pittel was nevertold bytrial counselthat his services would no longer be needed.in Petitioner’s case, Cannady has now stated: “TI] had originally contacted Stephen Pittel, but I decided to go with [Dr. Fred] Rosenthal instead because Pittel continued to want to keep investigating the case even thoughI felt we had done enough. Pittel wanted me to keep getting records long after it was necessary and I wanted him to assess Mr. Boyette as he wasat the time of trial. [ also did not believe that Pittel would be able to testify regarding the alcohol and drug issues in the case.” Cannady Dec., Exh. 59. 442. At the time Dr. Pittel requested “records” he had been provided 181 with none.*> Norhad he been provided with a single investigative report, family interview, or any other documentrelated to potential mitigating evidence. Pittel had had only one interview with Petitioner, one meeting with counsel, and had been retained for only a brief time. 443. As stated, Cannady and Hove never discussed their decision with Dr. Pittel. It is apparent, however, based on counsel’s subsequent statements, that Cannady and Hove concludedthat not only was Dr.Pittel requesting “records,” but that Dr. Pittel would be unwillingto testify regarding issues for which he had no corroboration such as drug and/or alcohol addiction. Dr. Pittel has stated that: Althoughthe issue neverarose, I would not, however, have been willing to reach conclusionsortestify regarding Mr. Boyette’s history of drug and alcoholabuse unless I had been provided with somecorroborating information. In my opinion,it is professionally unsound to reach conclusionsortestify regarding such issues based only on the history provided by the client because the patient is not always the best source of information abouthis or her own mental health and such reliance potentially leaves the mental health professional open to impeachment on cross-examination. While I fully expected that such corroboration was available, and in fact present counsel has 35 As far as Petitioner is able to determine,trial counsel made no effort to obtain even the school records for Petitioner’s attendance in the Berkeley School District. 182 now providedit to me, at the time of my meeting with Mr. Cannady, Mr. Hove and Mr. Olivier, no such corroboration had been provided. Pittel Dec., Exh.100.*° 444, Obtaining even the readily available corroboration, however, would require time, and time was not something that Cannady or Hove were willing to ask the court for. See Claim B. By the time Dr. Pittel interviewed Petitioner on February 15, 1993, the penalty phase was scheduled to begin in approximately one month. 445. On February 22, 1993, three days after the long meeting with Dr. Pittel, Cannady suddenly informed the court that he had changedhis entire penalty phase plan. Rather than employing Dr. Pittel to compile a social history and then retaining a psychiatrist after Pittel completedhis work, the plan Cannadyhadoriginally proposed to the court, Cannady now informedthe court that he intendedto “cut back” on the hours he had previously requested for Dr. Pittel only four days before, and,instead, 36 Dr. Pittel has further stated that “[b]ased on information given to me by Mr. Boyette’s present counsel,I believe that the issuesthatI originally wanted to pursue in Mr. Boyette’s case would have provided the basis for as rich a case in mitigation as I have ever seen. Moreover, this evidence would also have provided a basis for a guilt phase defense.” Pittel Dec., Exh. 100. 183 requested “limited hours and funding” for another expert, Dr. Fred Rosenthal. Cannady informedthe court that Rosenthal’s tasks “will encompass review ofthe basic reports, not the full reports due to the time limits and time consumingfactor, and an interview with the Defendant and a report to the defense counsel.” Exh. 262; emphasis added. 446. Thus, based on Cannady’s stated intentions, Dr. Rosenthal was not going to be asked to review even the minimal information given to Dr. Pittel. 447. Cannady further wrote that he had recently become aware of a psychiatric report rendered pursuant to Welfare and Institutions Code section 5150 and he nowintended to use the testimony of the doctor who authored the report, Dr. William Spivey, who had treated Petitioner as an adolescent, and Dr. Rosenthal to “interpret” the report. Exh. 260. 448. It was not until February 22, 1993, that Dr. Fred Rosenthal was actually consulted and asked bytrial counsel to interview Petitioner. By the time Dr. Rosenthal first met with Petitioner, Petitioner had already been convicted of murder and the special circumstance had been foundto betrue. CT 918-27. Dr. Rosenthal met with Petitioner on March 12 and March 18, 1993 for a total of four and a half to five hours, Rosenthal Dec., Exh. 105; RT 1897. 184 449. Dr. Rosenthal spent a scant one hour reviewing materials and/or preparing for his testimony. Rosenthal Dec., Exh. 105; Rosenthal Billing Records, Exh.260. The only materials he reviewed were the reports associated with the 5150 and the 4011.6 referrals. He did not review any other records, did not interview a single witness, nor was he provided with a single report of an interview with any witness other than what was contained in the 5150 and 4011.6 reports which had been written almost two years previously. He never met with trial counsel subsequent to his meetings with Petitioner. Rosenthal Dec., Exh. 105. Andit is apparent from his billing that there was no consultation with trial counselprior to his testimony. 450. Dr. Rosenthal does not have an independentrecollection ofhis conversation with Mr. Cannady, but admits that several things are clear from his records and the timing ofhis interviews with Petitioner. First, Dr. Rosenthal was never askedto interview Petitioner regarding either his mental state or any other matters relating to the crimes in question. Second, Dr. Rosenthal believes that Cannady asked him to testify in this case as a “favor,” given that he would be doing so on such short notice. Rosenthal Dec., Exh. 105. Dr. Rosenthal has stated: The documents that Mr. Cannady asked me to review consisted of a report made pursuantto 185 Welfare & Institutions Code section 5150 (dated March 20, 1991) and a report made pursuantto section 4011.6 (dated April 1, 1991). At no time wasI provided with any records pertaining to Mr. Boyette’s background such as school records, medical records, or defense investigative reports of interviews with witnesses, family members, neighbors, or teachers. Nor did I receive Dr. William Spivey’s records regarding his treatment of either Mr. Boyette or his treatmentfor" depression of Mr. Boyette’s grandmother, Irma Surrell. Rosenthal Dec., Exh. 105.°” 451. Dr. Rosenthal was never provided with Dr. Pittel’s letter to counsel suggesting investigative avenues to pursue for potential mitigating evidence. Dr. Rosenthalstates: Present counsel has provided me with letter that psychologist Stephen Pittel wrote to Mr. Cannady on February 16, 1993, shortly before I was broughtinto this case. Thisis the first time I have seen that letter. When I consulted with Mr. Cannadyabout Mr. Boyette’s case in February and Marchof 1993, Mr. Cannadydid not tell me that he had previously consulted with Dr. Pittel about Mr. Boyette’s case. I was 37 Dr. Rosenthal never received anyofthe information contained in the declarations of Mei-Ling Pastor, Diane Talsky, or Marva Smith. Thus, Dr. Rosenthal was not aware of the actual circumstances surrounding the incident leading to the 5150 referral as they are described in the declarations. However, had Dr. Rosenthalortrial counsel reviewed the report they would have been aware ofthe falsity-of the prosecutor’s allegation that Petitioner threatened people in Judge DeLucchi’s courtroom. 186 also unaware of the recommendations for further investigation of possible mitigation issues that Dr. Pittel provided to Mr. Cannady in his letter. Rosenthal Dec., Exh. 105. 452. Trial counsel’s investigator, Brian Olivier, didlittle or no investigation of potential penalty phase issues. Ofall the possible family mitigation witnesses Olivier could have interviewed, he only interviewed Marcia Surrell, Petitioner’s seriously drug-addicted mother, and Alvon Surrell, Petitioner’s uncle.** With regard to any other potential mitigating witnesses, Olivier contacted Dr. William Spivey’, a psychologist who had 38 Olivier may have spoken briefly to Celeste Surrell, Charmaine Surrell and Eugene Surrell in September, 1992. There is no indication that he interviewed them in any depth noris there any indication that he spoke with them after September, 1992, which was some six monthspriorto their testimonyat the penalty phase. Exh. 260. 39 Althoughtrial counsel was clearly aware of Dr. Spivey as early as September 1992, no effort was made to prepare him to testify. On March 19, 1993, a letter from Cannady was sent to Alameda County Auditor’s Office stating, “The bill to William L. Spivey whois a psychologist who testified in the penalty portion . . . he was not authorized and was subpoenaedat the last minute due to thefact he had seen Mr. Boyette.” The fact that Spivey had seen Petitioner someyearsprior to trial had been knownto counsel for at least six months. Thetotal bill for Spivey’s services was $187.50. Exh. 260. Giventhat trial counsel was aware of Dr. Spivey’s potential testimony as early as September 1992, the subpoening ofthis witness at the last possible moment combined withtrial counsel’s statements to the court confirm that the mitigation testimony presented wasliterally thrown togetherat the very last possible minute. 187 formerly treated Petitioner, and met with the twotestifying witnesses, | George Barrett and Ernest Posey. 453. The penalty phase investigation conducted in this case wasat best preliminary, superficial, and omitted a series of basic investigative steps. 454. Defense counsel waited “until long after the very last minute” to begin preparation of the penalty phase defense. Critical tasks were being performed, expert assessments were being made and opinions were being formulated long after they could adequately be integrated into a meaningful and effective penalty case. Haney Dec., Exh. 71. 455. Manycrucial tasks were never performedat all. Many extremely obvious, eminently feasible, and critically important investigative leads were never pursued. Haney Dec., Exh. 71. 456. In most capital penalty trials, expert mental health testimony of somesort is central to an effective case in mitigation. This is especially true in a case such as this one, where serious substance abuserelated issues were present, where many members of the defendants family suffered from emotional and psychological problems and disorders, and where the defendant’s medical and psychiatric records indicated that there was a history of long-term psychotherapeutic contact. Haney Dec., Exh. 71. 188 457. However, the most important reason mental health experts must be broughtinto capital cases early in the process of preparationis to msure that they have adequate time to develop and render the opinionsthat are typically elicited in capital penalty trials. Unlike other kinds of forensic settings, a capital penalty trial typically requires mental health experts to formulate opinions and be preparedto testify about a much broaderrange of issues extending over a muchlongerperiod of time—often an entire social history, including social historical information and data gleaned from the lives of other significant persons in the defendant’s life. Haney Dec., Exh. 71. 458. In addition, because of the typically expanded scope of mental health testimony, such experts must be provided with adequate amounts of time with which to review and incorporate the social historical data and other information for which they are—or should be—responsible for analyzing and presenting to the jury. At the very least, mental health experts must be provided with documentation upon whichto premise their opinions andtest the tentative hypotheses they are in the process of developing about the broad range of issues presented in the case. This,too, can only be done well in advanceoftrial and under circumstances that afford experts with time to complete the range of tasks before them. Haney 189 Dec., Exh. 71. 459. Trial counsel were in possession of information that placed them on notice that powerful mitigating evidence existed in a vast array of categories. 460. Trial counsel failed to follow-up on any of the information in their possession. 461. Hadtrial counsel conducted a reasonable investigation, they would have discovered the extensive mitigating evidence that was readily available, including the history of extreme instability and violence in the immediate family, the extraordinary pattern of parental and familial neglect, the poverty Petitioner endured, his depression andisolation, the social ostracism, the exposure to familial and community violence,his neuropsychological deficits, and the adult psychological, emotional, and behavioral consequencesofhis history. This is exactly the kind of relevant mitigating evidence that a jury must consider in order to render an individualized assessment of the appropriate penalty. 462. Reasonably competent counsel would have directed or conducted the investigation needed to develop such evidence, employed appropriate experts, and presented the evidenceto the jury in the penalty phase. As is demonstrated below,there is a reasonable probability that had 190 such an investigation been conducted and presentation been made,the outcome of Petitioner’s penalty trial would have been different. Penalty Phase Trial Presentation 463. Trial counsel Cannady hasstated that: “[t]he way Dick Hove and I usually divide capital cases, is that I would do the guilt phase with his assistance, but I would keep him more‘in reserve’ for the penalty phase. This way, if I lost the guilt phase, there would be someone who had more credibility with the jury to try the penalty phase. I believe that is what we had agreed to in Mr. Boyette’s case.” Cannady Dec., Exh. 59. 464. In contrast, however, the penalty phase presentation was done primarily by Cannady. While Hove did cross-examine three of the nine victim’s impact witnesses presented by the prosecution and conducted the direct examination of two defense witnesses presented at the penalty phase, Cannady cross-examined two victim impact witnesses and presented the direct examination of the remaining seven defense witnesses.*° 465. The penalty presentation of either counsel failed to demonstrate the compelling case in mitigation that was readily available. The defense portion of a capital penalty trial must provide jurors with clear and “° Counsel chose not to cross-examine someofthe victim impact witnesses. 191 consistent mitigating themes that are supported by credible testimony. Wherepossible, the penalty trial should also mitigate or place in context whatever aggravation the jury has already heard. Haney Dec., Exh. 71. 466. Although the defense does not need to present a single theory of mitigation, the various mitigating themes should not be mutually inconsistent or blatantly contradictory of one another. Haney Dec., Exh. 71. Opening Statement 467. Cannady gave an extremely brief opening statement -- approximately one and one-halfpages of transcript -- that did nothing to explain to the jury either what evidence the defense would present or what would constitute mitigation in a capital case. 468. An opening statement would have been particularly important in this case to explain to the jury how a determination of penalty would be made. Becausetrial counsel was awarethat, except for a stipulation to two prior convictions for possession for sale of cocaine, the only evidence in aggravation would bethe highly emotional testimony of numerousvictim impact witnesses, he should have attempted to prepare the jury for what they were aboutto hear and thuslessen the impact of this evidence for the jurors. Counsel could have placed the emotional testimonyin its appropriate context in terms ofpenalty determination. Instead, counsel 192 squandered the opportunity to mitigate this testimony andalso failed to begin the process of humanizinghis client before the jury heard the evidence in aggravation. By giving an opening statement, he should have set the stage for what the jury was aboutto hear and given the jurors a context more favorable to the defense in whichto assess the evidence. 469. This failure left the prosecutor free to set the tone of the penalty phase. 470. In contrast, the prosecutor succinctly and powerfully conveyed her messageto the jury. At the very outset of Petitioner’s penalty trial, the prosecutor placed defense counsel, and the jury, on notice that she intended to raise the specter of future dangerousness and heighten whateverfears the jury might have hadthat Petitioner could and would commita heinous murderin the future. Only a few minutes into her opening statement in the penalty trial, she told the jury: And what I want you to think about when I present this evidence, is do you wantthis to happen to another family? It is the People’s position that the circumstances that presented to you, the cold, calculated mannerin which Mr. Boyette executed two people showsyouthat there is a strong likelihood that he would kill again. And you have to ask yourselves, do you want to put more families through that? 193 RT 1844. 471. Thus, trial counsel knew from opening argumentthat future dangerousness would be the main focus of the prosecutor’s case for the death penalty. Prosecution Case in Aggravation 472. The prosecution’s penalty phase case-in-chief consisted of a series of victim impact witnesses (including the father, brother, and grandmotherof victim Annette Devallier, and the brother-in-law, daughter, and four sisters of victim Gary Carter) who gave highly emotional and inflammatory testimony regarding the loss they had suffered. RT 1846- 1887." Defense Mitigation Testimony 473. The fact that penalty phase presentation was pulled togetherat the last possible moment wasreflected in the evidence presented. 474. The defensecase in mitigation consists of approximately 30 pagesoftranscript. In this brief time, nine witnesses, including three mental health experts were presented. Even a cursory review ofthe time devoted to each witness presented showsthe shallow nature of the witness’s ‘| The jury was also informedthat Petitioner had been convicted of two separate felony drug priors which he admitted to. RT 1887-1888. 194 testimony.” 475. Defense counsel chose to follow the emotional testimonyofthe victims’ family members by beginning his case-in-chief with an expert witness, Dr. Fred Rosenthal. Dr. Rosenthal’s direct examination--excluding the portion that dealt with his qualifications -- consumedless than five full pages oftrial transcript. RT 1892-1896. 476. Dr. Rosenthal’s direct testimony failed to inform the jury of the amountoftime he had spent with Petitioner, what, if any documents he had reviewed,or even the purpose for which he interviewedthe Petitioner. 477. Counsel’s first substantive question to Dr. Rosenthal about Petitioner was whether he had reached “any diagnosis with respect to him?” Dr. Rosenthalreplied that, “as I discussed with you, I don’t thinkhe really has a clear diagnosis of a mental disorder.” The jury learned instead that Dr. Rosenthal believed that Petitioner had “sometraits which lead -- which may lead to a diagnosis at sometime in the future.” RT 1892. As would later becomeapparent, this opened the door for some very difficult exchanges with the prosecutor during cross examination, and even elicited some “2 The 3 mental health witnesses were presented in a total of 11 % pages of which 4 pages were devoted to the witnesses’s credentials. Five family witnesses were presented in less than 15 pages of testimony. 195 disparaging remarks about Dr. Rosenthal from the bench.®It raises questions about why defense counsel would have chosen to ask Dr. Rosenthal, as his first substantive question, about a diagnosis he knew,or should have known,Dr. Rosenthal did not have. Haney Dec., Exh. 71. 478. Then, with no contextualizing testimony whatsoever, the jury also quickly learned that, in Dr. Rosenthal’s opinion, Petitioner had engaged in “drug and some alcohol abuse.” RT. 1892. There was no sympathetic discussion of why Petitioner might have become addicted to drugs(for example, in terms of the number of drug addicts living in the household in which he grew up), no sympathetic discussion of the nature of addiction and the way in whichit robsits victims of the capacity to resist the demand for the drug itself, or the failure of the mental health and criminaljustice systems to provide Petitioner with drug-related treatment (despite the recommendation that he receive it). Haney Dec., Exh. 71. 479. To be sure, Dr. Rosenthal also told the jury that Petitioner was a “quite immature” and also a “dependent person.” “I would lean more toward a dependentpersonality disorder, if a diagnosis were to be given”. RT 1893. Counsel then elicited that a dependentpersonality -- which Dr. Rosenthal “leaned” toward using to describe Petitioner -- as someone who “ “The doctor hasn’t really said anything atall.” RT 1918. 196 had a difficult time making independent decisions, was very easily influenced, attached to people quickly, and tried to get guidance from other people. /d. But there wasreally no explanation of why or how Petitioner could have developed these traits. Haney Dec., Exh. 71. 480. This was a perfect opportunity for defense counsel to develop the actual reasons for Petitioner’s dependency — the history of chronic abandonment, psychologically unavailable caregiving to which he was subjected, the extreme levels of instability and unpredictability in the environment aroundhim, and the traumatic consequencesof his “war zone” upbringing. Counsel never pursued any of these avenues. All the primary mental health expert witness in the defense mitigation case could offer the jury to explain Petitioner’s life wasthis: “[H]e has quite a disturbed childhood...’°“* RT 1896. There wasno further or more detailed explanation. Haney Dec., Exh.71. 481. Instead of providing an explanation rooted in Petitioner’s destructive upbringing, and the accumulation of the many damaging risk factors to which he was exposed, Dr. Rosenthal volunteered an embellished “* Whenpressed on cross examination, Dr. Rosenthal admitted that ‘he knewlittle or nothing about the facts of the crime - at least had read no reports or testimonypertaining to it. “The only reports I’ve seen .. . was the emergency room record” from twoyears previous. RT 1903. Later he said: “I haven’t seen any reports, except those two that we’ve been discussing,” referring apparently to the 5150 and 4011.6 reports. RT 1909. 197 rn ee _ i a. a description saying that dependentpeople are: [P]eople who look desperately for guidance from the world outside, from other people... [S]ometimes people with this problem will pick anyone, almost anyone, anyone who seemsto be independent or seemsto have strength. They will attach themselves to those people and follow them. Unfortunately you see some of these cult situations where people follow a leader that has a lot of power and seemsto be very aggressive, dependent people will attach themselves to those kind of people and have—havedifficulty judging how destructive something maybe,that they’re told to do and they will go ahead and follow someone. RT 1895. 482. Given the prosecutor’s clearly expressed intention to vigorously pursue the issue of future dangerousness, this was predictably problematic andtruly inadvisable. It created the image of Petitioner as a person who wasso desperately seeking guidance from “any” strong person in his environmentthat, once he had found such aperson, he would follow them anywhere and do anything they directed him to. It provided an inaccurate anddistorted picture of Petitioner, one that was insufficiently nuanced,and lacked anyreal feel for Petitioner’s actual social history -- a social history in which he was repeatedly described as a “loner,” one who for mostofhis life had refused to follow the violent lead ofmany “strong” but destructive potential role models in his immediate environment, and 198 who had never becomeinvolvedin the neighborhood gangs that surrounded him in the places he grew up. Haney Dec., Exh. 71. 483. On cross-examination, the prosecutor turned predictably and almost immediately to the issue she had earlier indicated she intended to focus on: “You’re saying he can be easily influenced by peer pressure? ...And he’s the type of individual that might be influenced by a gang, for example?” RT 1897. Bythe time the cross examination had been completed, the prosecutor had managed to imply through Dr. Rosenthal that Petitioner would very likely become a memberof the violent Black Guerilla Family gang in prison, and was a remorseless, anti-social sociopath who wasfinding it “easier to kill.” RT 1916. In large part because counsel had provided Dr. Rosenthal with solittle background information about Petitioner and had given him such a short amountof time in which to prepare for his testimony, Dr. Rosenthal was hard pressed to rebut effectively or respond to these wildly misleading characterizations. Haney Dec., Exh. 71. 484. In the continuation ofthe defense mitigation case-in-chief, the inept and disastrous presentation of Dr. Rosenthal wasrivaled by the way the next witness, Dr. William Spivey, was presented. Defense counsel’s direct examination of Dr. Spivey, whose records indicated he had seen 199 Petitioner in some 70 counseling sessions that began at a time when he was just 11 years old and continued throughout the next several, crucial adolescent years, consumed approximately two pagesoftrial transcript.” 485. The few questions that defense counsel choseto ask elicited relatively superficial answers -- Petitioner was brought to see him because “he was not doing extremely well in school,” and there were “some issues of his adjustment at home.” RT 1922. Based on the questions defense counsel posed, Dr. Spivey’s testimony left the jury with the impression that Petitioner was just a “kid groping to grow up,” RT 1923, who had done drawings for Dr. Spivey that were “very immatureforhis ageatthat particular time.” RT 1924. Cannadyfailed to elicit any significant mitigating testimony from Dr. Spivey about the range of potentially very damaging and destructive risk factors to which Petitioner had been exposed. 486. In cross examination the prosecutorelicited a whole series of very misleading statements from Dr. Spivey that were designed to convey to the jury that Petitioner had experienced, in essence, a relatively normal if not idyllic childhood. Thus, the following characterizations were admitted into evidence without any contradiction: that his grandmother seemed “very concerned about him,”that “he had love in his family,” that Petitioner “S For Dr. Spivey’s entire direct examination , excluding voirdire, see RT 1922-1924. 200 seemedto be “more or less” alright when their therapeutic relationship ended and he did not have “any major problems,” and that Petitioner and his grandmother “got along well.” RT 1926-1927. Technically, these statements were not outright falsehoods. But they represented no more than partial truths. They were just a tiny part ofthe life Petitioner had lived, and hardly a very important part. Taken out of context, as they were here, they presented the jury with an entirely inaccurate view of Petitioner’s life and the range of problems from which he had suffered. Haney Dec., Exh. 71. 487. What Dr. Spivey was never asked by defense counsel to do. was to place Petitioner’s behavior in context. During cross examination, Dr. Spivey volunteered that Petitioner “would becomefrustrated at times, because so manythings didn’t go his way often” and he would “act out” or “pout”or “misbehave in some way” becauseofthat frustration. RT 1927. Absenta context for this behavior -- and that was how the jury wasleft to interpretit -- this description conveyed an impression ofPetitioner as willfully prone to acting out andeasily frustrated. The accurate description of Petitioner’s life -- as one in which he had good reasonto be frustrated because there were so many disappointments, so much neglect, and solittle genuine caring——wasa description his capital Jury never got. Haney Dec., Exh. 71. 201 488. Defense counsel then called psychologist George Barrett to the stand, the third expert witness in a row. Mr. Barrett was the county mental health worker who evaluated Petitioner at the court’s request pursuant to Penal Code section 4011.6 to follow-up on Petitioner’s threatened suicide attempt. Excluding the preliminary qualifying questions, counsel’s direct ° examination of Mr. Barrett consumed just over two pagesoftrial transcript. RT 1931-1933. His extremely brief questioning elicited the opinionthat, at _ the time of this evaluation, approximately two yearsearlier, Petitioner thought“in the style of a 12-year old,” “was quite immature for his age,” and would not be seen “as a leader.” RT 1933. There were no follow up or clarifying questions to explain to the jury the mostcritical ways in which the thinking of a 12 year old differs from that of an adult, what Petitioner did or said or how he acted that led Mr. Barrett to the conclusion that he was immature, and why he wasof the opinion that Petitioner was not likely to be perceivedas a leader. 489. Cannadyfailed to elicit mitigating information reflected in Mr Barrett’s report including that at the time of the report Petitioner’s grandmother had recently suffered a stroke and wasincapacitated and that Petitioner was “growing up in and arounda destabilizing drug environment.” Exh. 14. 202 490. On cross examination the prosecutorelicited opinions from Mr. Barrett -- who had spent approximately two hours with Petitioner two years _ earlier -- suggesting: (1) that Petitioner had been “in the fast life,” RT 1934; (2) that Petitioner did not finish school because he would always“find a way to disrupt and cause trouble” in the classroom, RT 1935; and (3) that Petitioner had developed a pattern of behaving “certainly... at home” and “probably... at school” in which he would “step over the line little bit” and then “step again and step again, step again.” RT 1936. 491. This series of characterizations on Mr. Barrett’s part is remarkable because there appearsto be little or no actual factual basis for any of it. Petitioner, who had applied for public assistance not long after Mr. Barrett had seen him, and was described in the welfare agency contact form as having been homeless for most of the preceding year, could hardly be accurately described as “living the fast life.” In addition, nowherein his schoolrecords doesit indicate that he did not finish school because he was constantly disruptive in the classroom.In fact, a numberof schoolofficials recalled him fondly and with some degree of sympathy,as a sweetif isolated and timid young boy. Finally, he was not described by any of his family members as someone who was constantly “stepping overthe line.” Ofall the members of Surrell household where helived (one inhabited by 203 drug dealers and abusers, violently predisposed men, and women engaged in hustling andprostitution), Petitioner was probably the one memberofthe family most respectful of whatever lines and boundaries were being drawn, such as they were. Haney Dec., Exh. 71. 492. When asked on redirect examination to provide an example of “how [his] mother was reacting toward him,” Mr. Barrett talked about Petitioner’s disappointment over the fact that his mother had promised him Easter clothes that she “didn’t get...” for him. RT 1938. There was no mention ofPetitioner’s disappointmentat the lifetime of abandonment he had experienced at his mother’s hands, the fact that for many years the only way he could spend any time with her wasto track her down in hospitals where she wasrecovering from drug-related medical problems,or that he wasleft in the house with her when she was going throughpainful drug withdrawals. Thus, the jury was left without any meaningful, accurate context in whichto place Petitioner’s behavior and begin genuinely to understand him. Barrett Dec., Exh. 55; Haney Dec., Exh. 71. 493. The remainderof the defense mitigation case consisted of lay witnesses, most of whom were family memberstestifying about their contact with Petitioner. None of these witnesses were interviewed by counselor preparedto testify in any way. Tamika Harris Dec., Exh. 76; 204 Posey Dec., Exh. 101; Celeste Surrell Dec., Exh. 113; Eugene Surrell Dec., Exh. 114; Marlon Surrell Dec., Exh. 115. All of the direct examinations of these witnesses were shockinglybrief, they developed few if any consistent themes, and developed none of them in adequate detail or in a particularly credible way. With virtually every witness whotestified, defense counsel failed to elicit more than a tiny amountof the useful information the witness actually possessed. Haney Dec., Exh. 71. 494. In fact, even in the extremely brief direct examinations he conducted, counsel often elicited information that was harmful to the mitigation case and buttressed an obvious approachthat the prosecution had immediately begun to neutralize the true story of horrible upbringing-- suggesting that Petitioner had a relatively normalifnot idyllic earlier life. Haney Dec., Exh. 71. 495. In her cross-examination of Petitioner’s family witnesses, the prosecutor wasable to quickly shift the focus of questioning to whether or not Petitioner was “loved.” This line of questioning diverted attention from the real issues in the mitigation case -- the profoundly dysfunctionallife that Petitioner had been exposedto, the psychologically unavailable caregiving and other forms of neglect to which he had been subjected, the destructive role models that permeated his childhood and adolescent years, and the 205 “war zone”-like conditions that prevailed in the communities in which he grew up. Whetheror not, in someone’s opinion,Petitioner was “loved,”his capital sentencing jury had a right to know how badly he wastreated (sometimes by the very same people whoprofessed to love him). Haney Dec., Exh. 71. 496. In many instances, defense counsel actually initiated the misleading line of questioning that resulted in a gross minimalization of Petitioner’s mistreatment. Thus, for example, he askedthefirst of the lay witnesses, Tamika Harris, if her father “kind of adopt[ed] Maurice,” a characterization that the prosecutor was able to quickly turn into acting “like a father figure to him.” RT 1951. Of course, Robert Harris was no father figure to Petitioner and had hardly served as one to his own daughter, Tamika. When Petitioner was seven years old, Harris wasarrested for using a gun to break a man’s jaw and, when the mantried to run away, shooting him in the legs; when Petitioner was 11, Harris was arrested for being physically abusive toward his wife and threatening to kill or disfigure her if she left him; at the same time he was described in the related court proceedings as “decompensating”and referred for a mental health evaluation; in later years he was arrested on numerousoccasions for possession of narcotics for sale. In fact, when Petitioner wastrying to pull 206 — eettti(‘i‘( il his life together on the streets of Oakland and Berkeley in 1991, this particular “father figure” wasoflittle help to him because he was incarcerated in the California Department of Corrections on a drug conviction. Defense counsel never explained any of this relevant and readily available context to the jury that sentenced Petitionerto death. Haney Dec., Exh. 71. 497. The fact was that Petitioner had no father figure in his life, and no one could rememberPetitioner’s actual father functioning as one to him for a single day in his childhood. When the prosecutor had concluded her examination of Tamika, the jury had heard that she herself “loved” Petitioner “very much,” along with their grandmotherand great grandmother, Tamika’s own motherandstepfather, and her aunt, not to mention her father who had been described by defense counsel as “adopting” him. RT 1952. Indeed, he was said to have comefrom,as the prosecutor phrasedit, “a loving family or environment.” Jd. 498. From the next family memberto testify, Petitioner’s grandmother, Irma Surrell, defense counsel elicited the opinion that she had “raise[d] him like he was [her] own son,” and “encourage[d] him with | school,” RT 1957, that she “tried to help Petitioner throughout his life,” RT 1958, and that she was even able to “get Maurice in Boy Scouts.” RT 1960. 207 There was no mentionofthe chaosanddisorganization in the homes over whichIrma presided, no discussion of her having been so overwhelmed by the problems she was confronting that she sought counseling for depression and wasprescribed psychotropic medications and authorized for disability, no mention of the fact that virtually every one of her own children suffered from serious drug addictions and had been arrested numeroustimes, often _ for violent crimes. Not surprisingly, the prosecutor immediately developed and emphasized the themes on which she had previously focused: that Mrs. Surrell loved Petitioner “very much”and “all his life,’ RT 1961, and that she did “everything [she] could to help Maurice when he was growing up.” RT 1961. Haney Dec., Exh. 71. 499. Similarly, Petitioner’s aunt, Charmaine Adams(Surrell) told the jury nothing about the neglect from which Petitioner had suffered, nothing about the drug use and criminalactivity that was rampant in the Surrell household when he was growing up there, and nothing about the abusive men, including Grandfather Eugene, whonot only failed to function as “father figures” but provided violent role models whom Petitioner, fortunately, had been largely successful in not emulating. Instead, the jury heard from Charmaine that she was “involvedin his life,” so muchthat, “wJhenever he needed me, I was there.” RT 1970. His own mother’s 208 heroin addiction — the same addiction that led her to inject drugs into the stump of her amputated leg and attempt to prostitute herself despite her disability, was described simply as a “drug problem.” RT 1971. Cannady failed to ask a single follow up question of Charmaine aboutthe true nature of this “drug problem.” Haney Dec., Exh. 71. 500. The next witness, Petitioner’s grandfather, Eugene Surrell, answered the same way-- Marcia’s problem was merely a “drug addiction,” RT 1973, a terse characterization that defense counsel let stand, without explanation or providing any ofthe painful, clarifying details. Remarkably, the jury then learned through defense counsel’s own questioningthat Eugenewas“active in trying to help with Mauricein raising him,”that he 39° C6“took him to schoolall the time,” “played with him a lot at home,” “kept him... alot,’ RT 1974, had “tried to help him out with his life” and had done so virtually “all throughlife,” RT 1976,that Petitioner called Eugene asking for his advice “‘all the time,’ RT 1981, and that there were times when Eugene “was involved with [Maurice] on an every day basis”to help him avoidtroublein his life. RT. 1982. 501. Because Hove’s law firm had represented Eugene Surrell on someofhis past criminal charges and Hove had appeared in court with EugeneSurrell numeroustime, there can be no question that he knew about 209 his unsavory past. Yet defense counsel chose to present Eugeneas a loving and wise grandfather, and even allowed him totell the jury a story about intervening on Petitioner’s behalf with his “good friend” Officer Randall, who “heads the task force” in Berkeley, wherein he told Randall“to keep an eye on”Petitioner because he was hanging around the wrong people.*° RT 1983. 502. There was no mitigating purpose defense counsel pursued with this line of questioning. If counsel hoped to somehowindirectly suggest to the jury that family members who cared deeply about Petitioner would be hurt by his execution, he failed to pursue even that limited goal in an effective manner. Virtually all of the questions that family members were asked focused on the past - had they loved him, hadtheytried their best to help him, and so on. No questions were asked about how the witnessesfelt about Petitioner now, whether they would makeany effort to maintain contact with him in the future, and how they would feel if he were to be executed. This limited and poorly pursued goal was certainly not worth the cost of the consistently misleading and distorted rendition of Petitioner’s life through which it was attempted. Haney Dec., Exh. 71. 46 See Claim B. 210 Prosecutor’s Closing Argument 503. The prosecutor’s closing argumentin Petitioner’s penalty trial focused extensively on “future dangerousness,” as her opening argument had indicated. Because defense counsel did not addressthis issue directly through lay or expert testimony, the prosecutor was able grossly to distort Petitioner’s background and character almostat will. She was allowedto offer her own psychiatric diagnoses -- “he was labeled... a sociopath,” RT 1996,“[t]he perfect personality who could kill again,” RT 2002, this “is a sociopath who’s goingto kill again,” RT 2003, and “he’s a sociopath, he doesn’t feel” RT 2010, without qualifying as an expert witness or having these unsupported views subjected to cross examination. 504. Similarly, the argument aboutfuture dangerousness-- a prediction that, because ofits inherent unreliability, is permitted by law only under very limited circumstances*’ even as the subject of expert testimony, had no evidentiary basis, and was offered essentially without qualification: [H]e doesn’t feel any of those things that you’re going through orfeeling. And he’s going to do it again. Andthat next victim is the intangible that you can’t see. It is not sitting here. That’s 47 See Claim A. ‘8 For example, the prosecutor continuedto refer to “the fights in prison”(e.g., RT 2005), despite the fact that no evidence had been presented concerning any fights and, in any event, Petitioner had never been “in prison.” 211 RT 2016. RT 2017. what I represent. And those families are what you can’t see. But I want you to be logical, and use the evidence and use the facts. And you evaluate that. Andthat’s what I’m talking aboutright here, the likelihood he will kill again. It gets easier and easier. That’s not going to be any different in prison... That is your bottom line issue. Someoneis going to die. The bottom line issue:Is it a sociopath, remorselessliar or1s it his next victim? That’s what you have to decide. That’s the value you haveto place onlife. 505. Becausetrial counsel hadfailed to contextualize any of Petitioner’s behavior, explain the psychological roots of the desperation he was experiencing in the year or two preceding the crimes for which he was convicted, present expert psychologicaltestimony disproving this diagnosis, and because family membersorother potential witnesses hadnottestified about the extraordinary pressures that Petitioner had withstood as a child growing up in a neglectful and crime-ridden home and neighborhood,the prosecutor’s inaccurate characterizations appearedplausible. 506. Indeed, in the absence ofan alternative explanation for Petitioner’s behavior — onethattrial counsel simply did not provide — 212 many jurors no doubtfelt that they had no choice but to accept the prosecutor’s characterizations. Trial counsel gave them no reason to question or reject them. Haney Dec., Exh. 71. 507. The issue of future dangerousness on whichthe prosecutor placed so much emphasis was onethat could have been straightforwardly rebutted. Petitioner had no record of convictions for violent felony offenses, either as a juvenile or adult. He had no juvenile record atall. Moreover, as the prosecutor undoubtedly knew, compared to many ofthe young men who grew upin and aroundthe areas where Petitionerlived, his was a remarkablerecordof law abidingness,at least until the year or two that precededthe crimeitself. The only two felony convictions that were introduced against him in aggravation were Clearly drug-related, and Petitioner’s involvementin the drug culture in which his whole family was immersed would havebeenrelatively simple to place in context. Haney Dec., Exh. 71. 508. In comparisonto other capital defendants, Petitioner’s potential for future institutional violence could only be judged low. Haney Dec., Exh. 71. Yet, because counsel did not address any of these issues, the prosecutor wasable to argue: Thinkofprison life, can you imaginethestress of prison? 213 You have no idea. And the gangs, and the pressures... Well, think what he’s going to be exposedto in prison. Think of how easythat will be to kill... RT 2018. If you give him life, you give him a license to kill. You don’t give him a lifetime of remorse. He has none. You give him licenseto kill. RT 2020. 509. In fact, no oneis given a “license to kill” in the California prison system to which Petitioner would be sent. The factually unsupportable speculation by the prosecutor concerning Petitioner’s future dangerousnesscontained anotherset of implicit assertions that were simply untrue, and untrue in a way that anyone experienced in and knowledgeable about the California Department of Corrections could have explained as such. Like virtually every state prison system in the country, theCalifornia Department of Corrections operated in 1992 (and for a century before that) with a system ofdisciplinary punishmentthat has always included disciplinary segregation, restricted housing,or solitary confinement. In fact, for more than a decade and a half preceding Petitioner’s capitaltrial, the disciplinary segregation units in California were the subject of widely discussed, protracted constitutionallitigation over the procedures used to 214 place inmates in them andthe extremely harsh conditions that prevailed there. Haney Dec., Exh. 71. 510. There was no shortage of such placesto place Petitioner or any other prisoner.who misbehaved, and no lack of will and commitmenton the part of the California Department of Corrections to do so in order to maintain the safety and security of their institutions. This wastrue by the 1990s, whenseveral so-called “supermax”facilities had been openedat the state prisons at Pelican Bay and Corcoran. Haney Dec., Exh. 71. 511. It is hard to imagine a combination of a more inflammatory and more inaccurate line of argument-- a remorseless sociopath, lacking feelings or a conscience, with license to kill in prison. Competent counsel would have precludedthis extraordinarily prejudicial argument by presenting expert testimony that accurately informedthe jury abouttheir client’s low potential for violence and high potential for positive prison adjustment, and educated them aboutthe nature of the prison environment that he would enter undera sentence oflife without parole. The failure to do this in the mitigation case-in-chief or in rebuttal to the prosecutor’s argument addedcredibility to statements by the prosecutor that were not only prejudicial and improperbut also lacking in foundation and validity.” 4 See Claim A. 215 Haney Dec., Exh. 71. 512. Finally, because trial counsel had failed to present the jury with an accurate and detailed picture of the nature.of Petitioner’s childhood and the neglect and traumathat he had suffered, the prosecutor was able to normalize Petitioner’s life story and minimize (indeed,trivialize) the significant number of powerful psychological risk factors to which he was exposed. Haney Dec., Exh. 71. 513. Due to trial counsel’s failures, the prosecutor was able to trivialize the significance of Petitioner’s social history for his jury: If you give him a break because he only went through the 9th grade,it’s his choice to drop out and he’s 19, you better be ready for an onslaught. This is a turnkey society. People come—oneout of two families come from divorces. What you heard was not that unusual any more. “Father KnowsBest” doesn’t exist any more. There’s no more “Leaveit to Beaver” in our society. And we can’t expectthat. Mostofyou are divorced or from divorced families, according to your questionnaires. You didn’t kill anybody. RT 2008. 514. Of course, the Boyette jury had a right and a need to hear the actual case in mitigation, the one they did not hear, amounted to much more than thetrials and tribulations of a divorced family and the failure to meet 216 the expectations of “Father KnowsBest.” Haney Dec., Exh. 71. Defense Argument 515. One of the most glaringly ineffective aspects of the penalty phase presentation was Cannady’s closing argument. Given the lack of any significant content in his opening statement, closing argument was Cannady’s sole opportunity to address the jury to explain their role in sentencing. Therefore, it was essential that he convey to the jury atleast the following information: his theory of why Petitioner should receive a sentence less than death; why death was inappropriate in this case; how the evidence presented to them could legally be considered as mitigation; how the prosecutor’s evidence in aggravation could be mitigated and why the prosecutor’s argument wasincorrect; why they did not have to be concerned that Petitioner would commit violentacts in prison; that sentencing Petitioner to death was each juror’s individual responsibility; and that sympathy and mercy were appropriate considerationsat this stage of the proceedings. Trial counselfailed in almostall respects in his responsibility to Petitioner. 516. Counsel began with an attempt to rebut the prosecutor’s argument concerning the likelihood that Petitioner would kill someone in prison. However,this line of argument wasruled inadmissible because 217 “there is no evidence” regarding prison conditions.” 517. Counsel did begin a discussion aboutthe factors that the jury should consider in determining penalty. He began with “factor (k)” which is the factor that allows the jury to consider “any other circumstance which extenuates the gravity of the crime even thoughit ts not a legal excuse for the crime.” Penal Code section 190.3(k). However, with regard to factor (k), counsel only mentioned Petitioner’s mother’s heroin addiction, RT 2039, thus leaving the jury to conclude that there was no other evidence relevant to factor (k). 518. The remaining argument relevant to the additional factors that could be considered was oneprimarily conveying to the jury that there really was very little mitigating evidence of any significance to consider. 519. Counsel’s argumentrelied instead on his oft repeated hypothesis that Petitioner was a young man, even younger than his chronological age, and a “throw away kid.” Unfortunately, the testimony that had been offered had failed to give much support to this argument. 520. Counsel’s argument did nothing to refute or rebut the 0 While it may besaid that trial counsel, albeit belatedly, attempted to confront and refute the prosecutor’s argument regarding future dangerousness through argument, once againtrial counsel’s efforts were muchtoolittle and muchtoo late. Instead of asking the court for time to retain expert witnesses and to allow rebuttal testimony, counsel choseto rely solely on argument, which waspredictably ruled inadmissible. 218 prosecutor’s themes,particularly of future dangerousness. Counsel failed to counter the prosecutor’s unsupported argumentthat Petitioner would join a gang and be a dangerin prison. In fact, counsel continuedto argue that Petitioner was a follower without distinguishing whythis did not simply support the prosecutor’s argument. Indeed, counsel evenfailed to rebut the prosecutor’s version of Petitioner’s life as not being soterrible afterall. Counselalsofailed to explain clearly to the jury why the prosecutor’s attempts to inject evidence of other “violent” acts by Petitioner into the case — without proof — could not stand. 521. Since little or no affirmative mitigation evidence, or evidence which could be used by the jury to mitigate the aggravation evidence, had been presented by the defense, Cannady’s argumentultimately was merely a plea to the jury to think of Petitioner as a twelve year old and rememberthat he had notkilled before.°' RT 2044-47. 522. Moreover, since the defense presented at the guilt phase was one of innocence,trial counsel should either have argued lingering doubt or presented evidenceto mitigate the crime. Doing neither, particularly since counsel never mentioned the guilt verdict, could only signal to the jury that >! Given that the jury had been told by Juror Ary that Petitioner had killed before, see Claim A, his argument would certainly have hadlittle impact. 219 Petitioner hadtried to “pull a fast one” on them in the guilt phase. 523. Trial counsel’s closing argument wasfree of anystrategically | significant content, lacked a focus and failed to convey why Petitioner should receive a sentenceless than death. Petitioner was prejudiced by counsel’s performance. Compelling Mitigation Evidence Could have Been Presented by Reasonably Competent Counsel Overview 524. There was a wealth of information that trial counsel could have presented to the jury had they conducted a reasonablyadequate investigation. By simply interviewing family members, neighbors, and others whom counsel knew about, or should have knownabout, obtaining relevant family records, and retaining appropriate experts - or supplying those experts who were retained with appropriate information - they could have presentedat least the following evidence in mitigation to the penalty phasejury. 525. Petitioner’s life was filled with trauma, tragedy and a profound degree of neglect. He grew up under extraordinarily difficult circumstances, living in crime-ridden areas of Oakland and Berkeley, in a householdthat was characterized by chronic chaos, extreme poverty, rampant drug use and criminality, and extremely high levels of violence and psychological 220 dysfunction. As one longtime family friend would later aptly summarize: “While Maurice’s grandmother and great-grandmothertried to help, they seemedto be totally overwhelmed by money problems and problems with Maurice’s mother, uncle, and aunts. Maurice was a sweet, but sad and depressed, boy who grew up in a nightmare situation.” Haney Dec., Exh. 71. 526. There are three concepts frequently used by scholars and researchers who study traumatic social histories and the developmental factors that help to explain adult criminal behavior. The terms apply so perfectly to Petitioner’s life that theymight have been coined simply to explain him. Thefirst is “nsychologically unavailable caregiving” — a pattern ofparenting that entails unresponsiveness, lack of involvement, and passive rejection in which the needsof the child are chronically overlooked and ignored. Unlike outright abandonment andabject neglect -- and, to be sure, there are certainly many examples of both of these things in Petitioner’s childhood-- psychologically unavailable caregiving occursin an environment in which parents (most commonly, maternal caregivers) are simply overwhelmedby their own problemsand the range of seemingly insurmountable day-to-day crises they confront. It is a pattern of dysfunctional parenting that has profound psychological consequencesfor 221 the children who are exposedto it. It was a form of maltreatment to which Petitioner was chronically subjected throughout his young life. Haney Dec., Exh.71. 527. The term “criminal embeddedness”is used by criminologists to refer to the lives of children and adolescents that are rooted in criminal networks, that essentially immerse them in and aroundillegal activity, and that regularly place them in familial and social relationships that revolve in some way aroundcrime.It is hard to imagine a young life more “criminally embedded”than the one Petitioner lived. The sheer numberof criminal acts that were being committed in and aroundthe Surrell household as Petitioner was growing up is staggering, matched only by the number of Surrell family members whowereactually arrested, prosecuted, and incarcerated and the amountofillegal behavior that was taking place in the crime-ridden neighborhoodsin which Petitioner lived and where his attempts to garner some small of amount of contact with his errant and absent mother took him. Haney Dec., Exh. 71. 528. Finally, the term urban “war zone” was coined by psychologist James Garbarino to convey the sense in which many innercity children in the United States are being raised in communities that expose them to levels of violent trauma comparable to those suffered by the children of war-torn 222 areas elsewhere in the world. The term accurately captures the feel of the violently traumatic events, experiences, and conditions that have been more elaborately depicted in numerous ethnographic studies of innercity life that have been published overthe last several decades. As these studies show, the children whoareraised in these urban war zones sometimes adoptthe fearsomepostures of the aggressive “role models” around them, they sometimes cowerin fear and attemptto find safety in timid withdrawal from the environment, and they sometimes range back and forth between these extremes and attempt whateverstrategies they can to survive the dangers around them. Petitioner grew up in such an urban war zone. Heis, unmistakably, one of its casualties. The extraordinary amount of violence that took place in the Surrell household, in the immediately surrounding neighborhoods,and in the lives of the people who were closeto Petitioner wastruly “war-like” and goes a long way toward explaining the characteristic patterns of behaviorin which Petitioner engaged throughout _ childhood and adolescence. Haney Dec., Exh. 71. 529. Properly told, stories like these carry tremendous mitigating significance. Capital jurors seek explanations for the lives of the people whosefates they determine. In Petitioner’s case, his life history contained numerous explanatory themes, precisely the kind that capital jurors find 223 meaningful, persuasive, and mitigating in choosinglife over death. The testimony through which these themes are conveyed to the jury must be properly prepared and effectively presented. Undertaking these basic but essential steps -- especially in a case like Petitioner’s where there was such a substantial amount of powerful mitigation to be presented --is what influences the outcome ofa capital penalty trial. Haney Dec., Exh. 71. ' 530. Moreover, in this case, especially, the evidence upon which such an effective penalty phase presentation could have and should have been premised wasreadily available. The investigation and preparation of Petitioner’s penalty phase wasstraightforward andrelatively uncomplicated. Haney Dec., Exh. 71. 531. In Petitioner’s case, the key penalty phase witnesses were readily accessible to trial counsel and his investigator. Most lived within just a few miles of the courthouse where Petitioner’s trial took place. Many of the people with the greatest amount of information were living exactly wherethey had lived during Petitioner’s formative years and, even nearly a decade after the trial took place, they appear to be highly cooperative (indeed, eager to help). Moreover, there wasa readily accessible documentary recordin this case -- formedin part by the extensive medical, psychiatric, and, especially, legal contacts that the Boyette and Surrell 224 family members had with Joca! Oakland and Berkeley agencies and officials. Competent counsel would have made extensive use of these accessible sources for the information they contained, for the clues to subsequentinvestigation they provided, and for the valuable objective record against which to evaluate the reliability and credibility of potential witnesses they represented. Haney Dec., Exh.71. 532. Trial counsel failed properly to discharge these basic responsibilities. The penalty phase wasill-considered, poorly presented, and gave evidenceof a lack of the most basic preparation. There were many potentially valuable witnessesthattrial counsel neglectedto find, interview, or present in the Boyette penalty trial. In addition, the few witnesses counsel did call were questioned in such a waythat often: a) failed to surface much of the information they did possess about powerful mitigation themes in Petitioner’s life; b) elicited information in needlessly unconvincing or incomplete ways; c) more than occasionally provided unexpectedly damaging information that was unnecessary, unhelpful, and even inaccurate and misleading; and d) provided unnecessary and unfortunate openingsfor the prosecution to develop and embellish obviously damaging and often inaccurate themes and characterizations that misportrayed Petitioner’s backgroundand character. Especially in light of the substantial case in 225 mitigation that was available for defense counsel to obtain and present, there can be no competent, legitimate, or tactical reason for failing to discharge these basic penalty-phase responsibilities. Haney Dec. Exh.71. 533. Petitioner’s life story could have been told through readily available lay and expert witnesses. Had counsel acted effectively, they would have conducted a reasonable investigation of mitigation evidence, prepared lay and expert witnessesto testify and presented the evidence to the penalty phase jury. Early Childhood History 534. Petitioner was born on December2, 1972, to Marcia Surrell and Will “Dicky” Boyette. By all accounts, Petitioner was neverreally “raised” by his natural parents, neither of whom were able to stay away from drugs long enoughto function as effective parents for any significant portion of Petitioner’s life. Instead, he lived with his maternal grandmother, Irma Surrell. The two households in which they lived as Petitioner was growing up were shared by his maternal great grandmother, Geneva Jacobs, and variously occupied by numerousotherrelatives including, from time to time, Irma’s four children -- Petitioner’s mother (Marcia), aunts (Charmaine and Celeste), and uncle (Michael) -- who came and went moreorless as they pleased. Petitioner lived under these circumstances during virtually his 226 entire life until he left to attempt to live on his own in the early 1990s. Haney Dec., Exh. 71. 535. As the oldest and seemingly moststable relative in the family, Geneva Jacobs functioned as its matriarch. Geneva’s husband, Clark, died in 1974 and,for virtually Petitioner’s entire life, he lived in a house in which Geneva and Irma were nominally in charge. There wereliterally no consistent, positive male role.models of any kind around him. His grandfather, Eugene Surrell, was a notorious womanizer who managedto maintain residences with several different families at once -- indeed, actually maintaining simultaneous marriages for much ofhis adultlife. Perhapsnotsurprisingly, “[e]ven when he was a teenager, Eugene had a bad reputation as a playboy and a troublemaker.” Parker Dec., Exh. 97. As one of the women with whom he fathered children summarized: EugeneandI had twin boys together -- Bryant and Brent-- in 1980...Eugene wasbasically living with meat that time. Eugene and Irma [Petitioner’s grandmother] had four children together. Eugene also had two sons with a woman named Michele. Eugenealso [had] a few other children by different women... I doubt that Eugene was muchhelp inraising [Petitioner’s] family, stnce he had three families he wastrying to support. _ Frazier Dec., Exh. 69. 536. In addition to being chronically unfaithful, Eugene was 227 physically abusive. One longtimefriend of the family recalled that: “Eugene was a big drinker and he would physically and mentally abuse [Petitioner’s grandmother] Irma. I would see Irma with bruises or cuts from Eugene beating on her. Eugene even beat her when she waspregnant with their kids.” Parker Dec., Exh. 97. 537. Geneva Jacobs, who was Eugene’s mother-in-law and Petitioner’s great-grandmother, reported that Eugene treated Irma “terribly.” GenevaJacobs Dec., Exh. 78. In fact, Geneva had a gun that she kept in herroom that she called “Mr. Smith.” She recalled that when Eugene “would be mean or rude to Irma or me, I would threaten to go get ‘Mr. Smith’... There were many times when I wasclose to using ‘Mr. Smith’ on Eugene,since he never did an ounce of good for myor Irma’s family.” Geneva Jacobs Dec., Exh. 78. 538. The house wherePetitioner spent his early years was extraordinarily chaotic, the Oakland neighborhood around 28th Street was notoriously crime-ridden, and Petitioner’s immediate and extended families were deeply involvedin drugs, crime, prostitution, and domestic abuse. One neighborsaid that: “People would hangoutin the street and at the Surrell house and there was always partying or something going on. The police werecalled a lot because of the noise or people gambling on the corner.” 228 Beverly Harris Dec., Exh. 72. As Petitioner’s Aunt Monica describedit: “The Surrell’s house was like the neighborhood hang-out. Marcia’s mother, Irma, seemedto let her kids do anything they wanted... My mother didn’t like me going overto the Surrells’ house because she thought there was too muchpartying going on.” Monica Boyette Dec., Exh. 56. 539. As another Oakland neighborputit succinctly: “The Surrell kids were always out of control.” August Dennis Dec., Exh. 65. Cela Maxwell, the mother of one of Michael Surrell’s children, Marlon, was a frequent visitor at the house. She noted that Irma “ran a very loose household andall of her kids took advantage of that.” Maxwell Dec., Exh. 88. Indeed: It seemed that everyday at the Surrell house someone wasgetting into trouble or having a fight. It was chaotic. The Surrells’ house on. East 28th had an upstairs attic whereall the younger people hung out andwhere you could get away with just about anything. Maxwell Dec., Exh. 88. 540. Yet another neighbor, Eloyce Packer, recalled that “Irma’s children had been running wild at least since they were in high school.” Packer Dec., Exh. 96. There did not appear to be any rules in the Surrell household, and the children never appeared to be disciplined: “The house always hadlots of people running in and out and there wascertainly a lot of 229 partying going on inside.” Packer Dec., Exh. 96. Mrs. Packeralsorecalled that “the police [were] often stopping by the houseto break things up,” and that “drugs were a big thing for young people and those kids wereintoit “all.” Packer Dec., Exh. 96. 541. Petitioner’s mother Marcia Surrell, was described by virtually everyone who knewheras especially unruly, out of control, and deeply involved in drugs. Marcia and her sister Celeste, one of the auntswholived off and on in the house in which Petitioner grew up, were described by a neighborhoodfriend as “definitely part of the ‘fast’ crowd,” and as “using cocaine and heroin while most everyoneelse wasstill only smoking maryuana.” Ronald Adams Dec., Exh. 52. A school friend of Marcia’s noted that “she quickly becametoo fast for me. You nameit and Marcia would do it, even as a young girl. Marcia started getting into drinking and using drugs when wewerejust starting high schooland,as a result, we stopped being as close offriends.” Byrd Dec., Exh. 57. 542. Marcia got pregnant with Petitioner when she wasstill a senior in high school. She had already developed a serious drug habit, one in which she andPetitioner’s father, Dicky, “were speedballing just about everyday...” Celeste Surrell Dec., Exh. 113. Speedballing, as Marcia’s sister Celeste explainedit, “was when you snorted heroin and cocaine 230 together. Because heroin is a downer and cocaineis an upper, speedballing is supposed to get you right in between and give you the perfect high. Once Marcia started using heroin and cocaine, she really never stopped.” Celeste Surrell Dec., Exh. 113. 543. Another neighbor of the Surrell’s who lived just a few houses away and who movedinto the area just after. Marcia graduated from high school, described her drug use this way: Celeste, Marcia [and two other neighborhood girls] were a pretty fast group—they smoked dope, or marijuana, used a lot of other drugs, partied all the time—and I didn’t. Besides smoking dope, Marcia and the others mostly snorted ‘hop,’ or heroin, cocaine, and took mescaline. They would also takelittle red pills. August Dennis Dec., Exh. 65. 544. Petitioner’s father, Dicky Boyette, had grown upin the Oakland area and become addicted to drugsfairly early in his life as well. The woman with whom he had children, before meeting Petitioner’s mother, was murdered in Oakland. His sister, Monica Boyette, believed that the tragic event “pushed my brother deeper into his drug use.” Monica Boyette Dec., Exh. 56. Whatever the causes, Dicky Boyette was a serious drug user by the time he met Marcia, and his presence in herlife only helped to intensify her drug use and exacerbate her rebelliousness and 231 ee | a ee a instability. 545. Right after Petitioner was born,a friend recalled that Marcia and Dicky “both got very hooked on drugs together and could not take care of Maurice from the beginning.” Adams Dec., Exh. 52. There were times when Petitioner was “barely old enough to speak” but was nonethelessleft alone in the playground near the house where Marcia and Dickylived, and other times when Petitioner’s parents were “passed out in a drug haze on the couch”while Petitioner, “who was probably no older than three years old, was off by himself in another corner of the house.” Adams Dec., Exh. 52. Indeed, it was clear to many people in the neighborhoodthat “[b]oth Marcia and Dicky werepretty strung out by the time they had Maurice...” Byrd Dec., Exh. 57. 546. Vivian Coit, who had prevented her own daughter from marrying Petitioner’s uncle, Michael Surrell, just a year or so before Dicky and Marcia had Petitioner, concurred with this description: “[Grandmother] Irma raised Maurice from the time he was a baby because Marcia was always so drugged out. I don’t think Marcia was sober one day in Maurice’s life. Maurice’s father, Dicky Boyette, was also addicted to drugs.” Coit Dec., Exh. 60. Not surprisingly, perhaps, given the level of drug use that characterized it from thestart, the relationship between Marcia and Dicky 232 wastumultuous, andit often entailed physical violence. 547. Dicky’s stepbrother, Larry Murphy, acknowledged that Dicky and Marcia had manyphysical fights, that Marcia was “extremely unstable and [had] a violent temper...” andthat, at the time of their break up, things “got pretty ugly.” Larry Murphy Dec., Exh. 93. He also admittedthat: “Dicky sold drugs, hustled, and, for a while, was Marcia’s pimp.I rememberDickytelling me of his plans to go to Sacramento to make some moneybyselling drugs and pimping Marcia.” Larry Murphy Dec., Exh. 93. According to her mental health records, Marcia made a “suicide attempt by overdose in 1973,” when Petitioner was less than a year old. Haney Dec., Exh. 71. 548. There is overwhelming evidence that Petitioner was profoundly neglected throughouthis childhood and adolescent years. Muchofthis evidence is based on the observations of numerous family members, neighbors, and friends whoconsistently recollect the chronic chaos and instability in the Surrell household and the characteristic way in which Petitioner was simply ignored, forgotten about, and overlooked by the adults around him. Rather than functioning as consistent, stable, and moderately attentive caretakers, family members wereall struggling with their own psychological, economic, and legal problems; they hadlittle or no 233 emotional resourcesleft to invest in Petitioner. Haney Dec., Exh. 71. 549. Some evidence of the lack of supervision to which he was exposed also comesfrom Petitioner’s medical records. For example, in December 1974, when Petitioner was 2 years old, he fell out of the bed and struck the frontal portion of his head. He became drowsy and vomited. He wastreated at the hospital and released. Haney Dec., Exh. 71 550. When Petitioner was about 4 % years old, a Children’s Hospital physician recommendedthat he have his tonsils removed. However, because they were unablelocate his parents or “to have appropriate legal guardianship established for consent to surgery” the medical procedure was delayed another five months. About a month later, while still less than 5 years old, Petitioner fell off his skateboard and againhit his head, he also vomited and became drowsyandfell asleep. This time, however,the physician’s notes indicated that hospitalofficials were “unable to reach mother for treatment permission.” There were a numberofsimilar entries in Petitioner’s medical file confirming the fact that medical officials were often at a loss to know how to obtain the necessary consent totreat Petitioner because the adults who were neededto give their permission | could not be found. Haney Dec., Exh. 71. 551. Indeed, byall accounts, Petitioner’s mother, Marcia, was often 234 “strung out,” and her whereabouts were typically unknown. Marcia continued to use drugs throughout Petitioner’s childhood years and, as he grew older, her addiction intensified. One school friend reported: At somepointin the late 1970s I bumpedinto Marcia at a club called the Screaming Eagle in Oakland. Marcia was completely wasted and high. Marcia didn’t recognize meatall -- even though wehadpractically grown up together-- and Marcia offered to sell me some cocaine and heroin. I was shocked, not only because Marcia was so obviously underthe influence of a lot of drugs and alcohol, but also because Marcia didn’t even recognize me enough to remember that I didn’t use drugs. Byrd Dec., Exh. 57. 552. In November 1979, when Petitioner was six years old, Marcia was seen in a San Leandro Mental Health program to which she had been referred by a therapist from the San Francisco County Jail. The attending physician summarized her complaints: [Patient] says that she feels uncomfortable in unfamiliar surroundings, gets nocalls or visitors from her family, she has headaches,is tired of being “locked up”(has been in onejail or another for five months). It appears hard for her to focus on specific issues, she speaks about “tripping out” on her family and her leg. Says she’s afraid she’ll lose her leg but can offer no medical evidence about whythis should happen. Haney Dec., Exh. 71. 235 553. By this ttme Marcia’slife had deteriorated further, in part as a result of her involvement with a new man—SonnyHill. Hill was described by neighborhoodfriends of Marcia’s as “a drug addict and a pusher, as well as a thief.” Adams Dec., Exh. 52. He had a very bad effect on Marcia’s drug addiction --“[h]eroin becamelike food to Marcia”after she got involved with Sonny -- and he kept heractively involved in prostitution: “Marcia wasselling her body while she was with Sonny. Sonny would physically abuse Marcia and she would sometimes come by the house looking bruised or beat up.” Adams Dec., Exh. 52. Petitioner’s Aunt Monica described Sonny as a “really bad guy who was even moreinto using and dealing drugs than Dicky was.” Monica Boyette Dec., Exh. 56. 554. August Dennis, a contemporary of Marcia’s, rememberedthat Marcia changed dramatically after she broke up with Dicky:“I didn’t see much of Marcia... mostly because she was so hooked onto hop and was neverat the house much. Marcia had becomea real mess and even when I saw her, she wasn’t the same person anymore.” August Dennis Dec., Exh. 65. August’s sister, Eva Mae used somewhatdifferent words to describe very muchthe samething: Thereis a big difference between calling someone a “drug addict” and saying someoneis “real bad.” Marcia was real bad. She would steal things from the houseso she could get 236 moneyto stay high. The only times Marcia would return home was when she wasreally sick and neededto be nursed backto health. Onceshe gota little better, Marcia would disappear, just when people werestarting to get used to her being around. Eva Mae Dennis Dec., Exh. 66. 555. Petitioner was aware of his mother’s deteriorating lifestyle and, in a sense, was madepainfully aware of her neglect of him: Marcia would always makelots of promises to Maurice about spendingtime with him or giving him money so he could do something... [but] Marcia would almost always let Maurice down...Even when Marcia did show upat home, which wasn’t often, she would usually be high on something. Maurice would getreal excited about seeing his mother and he would start talking real fast and pulling on her, but Marcia would kind of look past Maurice and not really respond. Adams Dec., Exh. 52. 556. Vivian Coit observed a different aspect to his mother’s neglect: “Marcia was always Maurice’s weakest point. He would miss his mother terribly and was always worried about her, even when he wasreallittle. Marcia might come by for a few days, but then she would up and leave again and Maurice would notsee her for weeksat time.” Coit Dec., Exh. 60. On the other hand, there were times when Grandmother Irma would lock Marcia in the house in an attempt to get her off drugs, and “Marcia 237 would go through withdrawal right there in the house, with Maurice practically sitting next to her.” Eva Mae Dennis Dec., Exh. 66. 557. Petitioner had no other responsible adults in his life to whom he could regularly turn for guidance, or for support in times of emotional distress. Petitioner’s father, Dicky Boyette, was no more of a parent to him than his mother. Both parents engaged in abject neglect that bordered on outright abandonment: “Maurice would see Dicky walk by the house and he would cry whenhis father wouldn’t come by. Sometime Maurice didn’t cry but would get very quiet and sort of stare off by himself.” Adams Dec., Exh. 52. When Petitioner finally would get brief opportunities to spend time with Dicky, the experience was often rough and abusive: Maurice was alwaysreal shy and scared of things and wasn’t used to being around Dicky. Dicky would say things to Maurice like, “you end up being a fag and [11 kill you,” when he didn’t like how Maurice was acting. When Dicky came around he would be very tough on Maurice and wouldcall him sissy, twist his ears, or slap him to try and toughen him up. Robert Harris Dec., Exh. 75. 558. Petitioner’s contact with his mother’s next boyfriend, Sonny Hill, provided him with none of the male supervision he needed and plenty of experienceshe did not. Indeed, contact with Hill and his lifestyle appears to have been damagingto Petitioner as well as Marcia. As Petitioner’s 238 uncle, Bobby Harris, who was a contemporary of Sonny and Marcia recalled: Sonny was a bonafide dope fiend... Everybody in [the house that Sonny and Marcia lived in] used and dealt drugs, from the mommato the kids. Marcia would sometimes bring Maurice to Sonny’s house with her. Maurice wouldsit downstairs in the basement while everyone in the house shot dope. I am sure Maurice saw a lot of drug using andselling in that house... Onetime, Maurice saw Marcia shoot herself up with heroin and hestarted crying so hard that he urinated on himself. Robert Harris Dec., Exh. 75. 559. As Petitioner’s aunt, Celeste Surrell, herself a drug addict who was frequently arrested for crimesthat includeddrugsales andprostitution putit, “I don’t know whatPetitioner understood about what was happening over at Sonny’s house,but none ofit was good and mostofit wasillegal.” Celeste Surrell Dec., Exh. 113. Yet, as his cousin Tamika observed, Petitioner would take advantage of any chance to go to Sonny’s just to spend sometime with his mother: Maurice would sometimes go with Marcia to Sonny’s house... even though ourgreat- grandmother thought it was too dangerousat Sonny’s house.I don’t think Mauricereally cared that it was a drug house, since it was one of the few times Maurice actually got to do something with his mom. For Maurice, going to Sonny’s meant spending time with his mom, 239 even if it was just to watch television while Marcia and everyone got themselves high. Tamika Harris Dec., Exh. 76. 560. The level of neglect Petitioner suffered at the hands of his - mother and father wasjust a part of this unhappystory. In addition, Petitioner received “psychologically unavailable caregiving” at every turn inside the Surrell household. To be sure, the wide-ranging social, economic, emotional, and legal problems that plagued the Surrell family helped to account for Petitioner’s neglectful upbringing. Nonetheless, it was fairly evident that, for much ofPetitioner’s younglife, “[n]o ne paid much attention to him.” Adams Dec., Exh. 52. Indeed, one family friend said: “Growing up, Maurice always seemedto be forgotten in that household and he would usually end up being alone, watching television by himself or just standing off to the side. Maurice was always very quiet and it was difficult to get him to talk about things.” Byrd Dec., Exh. 57. And: “Maurice was always very eager and happyto join me and myson,since there wasn’t anyone in Maurice’s family whoactively tried to do things with him-or who paid attention to him.” 561. Although most of the other young children in the extended Surrell family also lacked careful, attentive parenting, they all had at least one parent who, from time to time, took responsibility for them, and to 240 whom they clearly “belonged.” Not so Petitioner, whose mother and father were seemingly the most distant, damaged, and dysfunctional figures in an otherwise very troubled and problematic group ofrelatives. This was clearly evident to the people who watchedPetitioner grow up from outside the Surrell family. As one neighborputit: “Maurice wasa kid on his ‘own.. .Maurice didn’t get the kind of affection and love that I gave my kids and grandkids and that I saw Marlon’s mother give Marlon.”Beverly Harris Dec., Exh. 72. Because Petitioner had no one to defend him or who regarded him astheir primary responsibility, he was hurt by his “outsider” status in the family, and sometimesthat status was usedto criticize him. Petitionerstill remembers the time “Aunt Celeste told me I wasa bastard child -- one without any parents -- people said she was drunk when she said it, but I wasn’t drunk and I know whatshesaid andit hurt.” Haney Dec., Exh. 71. 562. Thus, although it was generally true in the Surrell household that “[w]ith so manyof the adults in the family coming and going and in and outof trouble, the kids were often left to be by themselves,” Adams *? Vivian Coit saw it much the same way:Petitioner “didn’t have any other place to go besides Irmaandit really hurt him. Maurice always wantedto be accepted, but in that house he was mostly ignored. I don’t think his father’s side of the family had much to do with him,either.” Coit Dec., Exh. 60. 241 Dec., Exh. 52, unlike the other children, this pattern was virtually unbroken in Petitioner’s case. And Petitioner himself understood it: “I was the only kid living there who didn’t have a parent living there --other kids had parents who came and went -- mine neverat all.” Haney Dec., Exh. 71. 563. Eldora Robinson, a longtime friend of the Surrell family made a similar observation about the lack of care and affection Petitioner received growing up: Maurice was a very lonely child. There always seemed to be so manycrises or problems going on in Maurice’s family that he was always ignored andleft to himself. Growing up, Maurice always seemed to have clothes to wear and food to eat. However, no one ever paid any attention to Maurice or gave him the emotional support that he clearly needed. As muchashis grandmother loved him, Maurice always ended up being an afterthought -- or not a thought-- in his own house. Robinson Dec., Exh.104. 564. Sometimes children whoare severely neglected at home manage to compensate byreceiving the neededattention from adults or _ even other children during the time that they are in school. This adaptation or “buffering” experience does not appear to have been available to Petitioner in elementary school, in part because his weight made him the object of someridicule at the hands of other children andin part because he 242 was extremely shy and often so depressed that he simply kept to himself: “When kids would make fun of me-- I’d pull away from people, kind of stayed to myself, not get[ting] really close to people because I wasafraid they’d make fun of me.” Haney Dec., Exh. 71. 565. Eloyce Packer, one of the teacher’s aides at Bella Vista Elementary School, recalled that she often tried to speak with Petitioner when hewasa student there. He stood outin part because he seemed so alone andlost, even in a school setting where he was surroundedby other children from the same neighborhood. She remembered him this way: Maurice was always a heavy boy and he was made fun of quite a bit. Even though he was always getting picked on, Maurice was always very polite and sweet with me. Maurice was very quiet and when I would observe him at schoolin the yard or lunchroom, he was often alone. Other kids made fun of him and took advantage of him becauseofhis weight and because he was slow and clumsy. Maurice was very sensitive and would cry a lot. I never saw Maurice lash out or get so upset where he fought another student. Packer Dec., Exh. 96. 566. Vivian Jefferson, the assistant principal at Bella Vista had similar recollections. She recalled Petitioner as a “very quiet, slow moving, chubbylittle boy,” Jefferson Dec., Exh. 79, as someone who wasshy and seemedto stay by himself: 243 Maurice was a loner who seemedto keepto himself most of the time. Maurice wascertainly not outgoing or vocal like many ofthe other students his age at Bella Vista... I mostly remember Maurice standing alone with a sad look on his face... I do not recall Maurice being sent to my office for discipline... I do not recall meeting Maurice’s mother, father, or any adult male from his family. Jefferson Dec., Exh. 79. Later Childhood Years 567. Theissue of Petitioner’s contact with “any adult male from his family,” as Mrs. Jefferson put it, was problematic in his early life and it became morecritical as he grew older. This issue is one that becomes especially important for children in later childhood, as they begin to approachtheir crucial adolescent years. Psychologically, later childhood represents a transitional period during which children begin to anticipate and grow into the social roles they will eventually occupy as adults. The presenceofviable, positive same-sex role models in one’s life are needed to lay the groundwork with which children will build “psychological road maps,” so to speak, to those adult identities. In Petitioner’s case, of course, it was not that he lacked male role models of any kind. Indeed, byall accounts, men were coming and going on a moreorless constantbasisat the Surrell home for mostofhis life. The problem wasthatvirtually all of 244 these potential role models were confirmed drug addicts, deeply involved in criminal and othernefariousactivities, and often openly abusiveto their spouses and girlfriends. Many were extremely violent in other ways as well. 568. For example, the man around whom Petitioner probably spent the greatest amountof time as a young boy washis uncle, Michael Surrell. Michael wasdescribed by virtually everyone who knew him well as an extremely angry, violent man. Cela Maxwell, the mother of one of Michael’s children, reported that he “had a terrible temper and that was part of the reason why we didn’t stay together very long. Michael use to beat me...” Maxwell Dec., Exh. 88. Indeed: “I know that some years after he and I split up for good, Michael got into smoking crack and he ended up going to prison for killing someone.In fact, Michael, his father, andI believe his uncle Van,all killed somebody at some point.” Maxwell Dec., Exh. 88. 569. Another of Michael’s wives, Daphne Yeldell, reported that he threatened to kill her and, indirectly, also to kill her mother. She finally decided to leave Michael because his behavior was“erratic and he had violent tendencies that scared me.” Daphne Yeldell Dec., Exh. 127. Another of Michael’s wives, Regina Surrell, also reported on someof the “role modeling” that Michael provided for Petitioner: “In the late 1980s, 245 Michael and I had a fight where he put a shotgun in myface and threatened to kill me. Michael beat mevery, very badly -- he was kicking me with his cowboy boots and I could hardly see afterwards -- and I ran back to Ohio and left him for good.” Regina Smith Surrell Dec., Exh. 117. Regina was fond of Petitioner and she disagreed with the way Michaeltreated him: Maurice always seemed withdrawnandpretty depressed, which I always found strange for a kid his age. There wasn’t really anyone ever paying Maurice muchattention and I think he wasreal lonely. Michael was always very hard on Maurice because Maurice wasn’t tough. Michael would say thingslike, “Hecries like a little girl.” I would tell Michael not to be so hard on Maurice, but he would say he wasjust trying to toughen Maurice up.” Regina Surrell Dec., Exh. 117. 570. Michael Surrell was by no meansthe only man in Petitioner’s immediate environment who wasopenly abusiveto his wife or girlfriend(s). Indeed, physical abuse may havebeenthe rule rather than the exception for most of the men Petitioner was around as he was growingup. Forexample, the relationship between Bobby Harris and Aunt Charmaine Surrell has been described: “From what I could tell, Bobby and Charmaine’s relationship was neververy stable. Bobby had a real short temper and he would getinto a lot of fights. It was pretty obvious that Bobby and Charmaine fought each otherall the time and sometimesit could get real 246 ugly, with both of them throwing punches and clawing at each other.” Adams Dec., Exh. 52. 571. In addition to the presence of violent male role models around him, there were other negative influences in Petitioner’s life that were extremely difficult for him to avoid or ignore. For example, another one of Petitioner’s uncles, Alvon Surrell, was only a few years older than Petitioner and attuned to the neighborhood pressures faced by people Petitioner’s age. Alvon described the typical adaptations that were taken by young menin the environments in which Petitioner wasraised: Growing up in East Oakland wasa very scary and difficult experience. By the time Alton and I were teenagers, we were getting involved with gangs, which wasa lot like playing cowboys and Indians, except with real guns. There was a lot of violence happeningall around and if you were a teenager—especially an African- American male—you were going to get roped in or affected one way or another. As a teenager, I was faced with a lot of adult decisions and I saw. a lot of horrible things, including death. I think things were even tougher for someonelike Maurice, since he had trouble making even basic decisions and he wasreal slow to catch on to things. Alvon Surrell Dec., Exh. 112. 572. Yet, in spite of the violent role models in his immediate environmentandthe violent subculture that surrounded him growingup, 247 there is no evidencethat Petitioner channeledhis frustration and disappointment into outward aggression as a young boy or adolescent. As one longtime Oakland neighbor, Anita Dennis putit: “Maurice was always a very quiet boy who never gave me or my husbandany problems. Maurice was always somebody whokeptto himself.” Anita Dennis Dec., Exh. 64. _ Ronald Adams, who knew theSurrell family for many years and was matried to Petitioner’s aunt, Charmaine, recalled: “Maurice would get scared very easily and usually didn’t stray far from school and home. Anytime there was an argumentorfight on the school playground, which wasonly one block from the house {in Oakland], Maurice would run home.” Adams Dec., Exh. 52. 573. There is no evidencethat Petitioner sought to be the kind of predatory figure that so many of the menliving in and aroundthe Surrell’s extended family had become. For example, as Alvon Surrell putit, “[uJnlike a lot of the guys I knew, Maurice wasn’t really involved in the gangstuff as a teenager. Maurice seemedto mature real slowly and he always needed a lot of attention because he couldn’t really do things on his own or for himself.” Alvon Surrell Dec., Exh. 112. 574. Indeed, rather than predatory aggression of any kind, the record established the opposite pattern. Thus: 248 Maurice was always a fat kid. People used to call him “Fat Reecie.” Maurice would cry a lot and usually run home to Ms. Jacobs, who Maurice and some ofthe family always called “Mother.” Even though Maurice wasa lot bigger than mostkids,little kids would pick on him and beat him up. Maurice wasnot independent or confident enough to go anywhere by himself and would often end up sitting in the house alone. Maurice was so slow that I sometimesfelt that he wasslightly retarded in some way. With the amountof drugs his parents used, I wouldn’t be surprised if he was. August Dennis Dec., Exh. 65. 575. Eldora Robinson, the mother of one of Petitioner’s neighborhoodfriends also noted the wayPetitioner tried to distance himself from the violence around him: There wasalwaysa lot of fighting going on with both kids and adults in our neighborhood. The police were often coming by to break up a fight or arrest someone. Unlike his peers and so- called role models, Maurice would become very quiet when he got upset. Maurice would also eat a lot when he waslonely or upset, which was quite often. Robinson Dec., Exh. 104. 576. The nature of the fighting that took place in Petitioner’s Oakland neighborhood andthe pattern of drug use in which manyofhis peers were engaged were about to worsenat an especially unfortunate time 249 for Petitioner. There was a large-scale transition underway in many urban communities in the United States. It would radically transform not only the nature and pattern of drug use but also the very atmosphere and day-to-day social relations in the communities themselves. As one scholar describedit: The 1980s witnessed the rediscovery of crack cocaine... There were the highs, binges, and crashes that induced addictsto sell their belongings and their bodies in pursuit of more crack; the high addiction liability of the drug that instigated users to commit any manner and variety of crimes to support their habits; the rivalries in crack distribution networksthat turned someinner-city communities into urban “dead zone,” where homicide rates were so high that police had written them off as anarchic badlands. Haney Dec., Exh. 71; See also, Rivlin Dec., Exh. 103. 577. The crack epidemic also modified patterns of drug distribution in many neighborhoods.Forthe first time, many younger children were widely and systematically drawn into drug dealing enterprises,andfelt direct pressure from local drug dealers. Thus, there was: [T]he involvement of many ghetto youths in the crack business, including the “peewees” and ““wannabees,” those street gang acolytes in grade school and junior high whopatrol the streets with walkie-talkies in the vicinity of crack houses, serving in networks of lookouts, spotters, and steerers, and whoaspire to be “rollers” (short for “high-rollers) in the drug distribution business... 250 Haney Dec., Exh. 71. 578. Just before Petitioner entered his teenage years, the crack epidemic cameto the Oakland and Berkeley areas. It would transform the nature of the community in which he lived and the one to which he would soon move.As his Aunt Monica describedit: Like most of mysiblings, I had started using drugs in high school. Bythe early 1980s, crack wasthe drug of choice in Oakland and I knew so many people who were smokingit. I probably started smoking crack around 1982 or 1983. People’s lives were getting really messed up because of crack. Lots of people I know went broke and turnedto stealing and hustling in order to continuetheir habits. Monica Boyette Dec., Exh. 56. 579. Just as it had elsewhere, the widespread crack use that permeated the African American communities in Oaklandin the 1980s seemed to push drug addicts to greater extremes in order to survive. A sense of desperation spread throughout many of these neighborhoods. As one neighborof the Surrell’s observed: Crack started taking over Oaklandin the early 1980s and things really changed for the worse. Most of the guys wholived in the neighborhood had a fatalistic attitude about the world anyway and got involved with drugs as a result. There weren’t many decentjobs available for black guys in Oakland, so dealing and hustling drugs wasseen bya lot of people as the only available 251 option if they wanted to make any money... Guys were either hooked on the stuff or just trying to makea living. Jeannette Deran Dec., Exh. 67. 580. Although Petitioner may have been able to distance himself psychologically from the violence and conflict and drug use that surrounded him, he was ultimately unable to escape the chaos,instability, and neglect that characterized his upbringing with the Surrells. Petitioner described life at his grandmother Irma’s houseas a kind of around-the-clock “Jerry Springer family, with the numberofpeople on drugs,all the conflicts [and] problems.” Haney Dec., Exh. 71. And his home life would soon take a significant turn for the worse. Just as Petitioner was aboutto enter his - teenage years,a series of important events wereset in motion that would further destabilize the Surrell family and the tenuouslifestyle that Irma Surrell and Geneva Jacobshad been able to maintain. The events would have especially important consequences for Petitioner, who had been completely dependent on Irma and Geneva for any semblanceofstability and normality in hislife. 581. Irma had purchaseda liquor store with money that her mother, GenevaJacobs, had loaned her. But the business quickly began to fail and lasted only a few years. By most accounts: 252 Irma worked very hard at the store, but it didn’t last too long because Irma’s kids [Maurice’s mother, aunts, and uncles] destroyed it. They stole as much moneyandliquor from the store as they pleased. Herkids either stole from her while they were working or they would go in late at night with a store key. August Dennis Dec., Exh. 65.° 582. The stealing by her own family members obviously undermined Irma’s ability to keep the enterprise profitable. But 1t combined with another unexpected debt to doom Irma’s business andresult in the loss of the store. Geneva Jacobsrecalled that: - A little while after we bought the store, Eugene got into sometrouble after he shot and killed a man. Irma gave Eugenea lot of moneyto help him hire some lawyers, and we ended up going into debt and having tax problems. Wefirst lost the store and a few years later the house was foreclosed on and we had to move.Irma was real upset about losing the store and the house. Irma was neverthe same again. Jacobs Dec., Exh. 78. 583. Even before her liquor store business finally failed, the pressure from mounting economic and family problems(that included the legal costs she helped underwrite for Eugene Surrell’s pending murdertrial) *3 Indeed, Beverly Harris recalled the same thing:“Irma’s kids would take moneystraight from the cash register and take alcohol off the shelvesjustto keep them andtheir friends happy.” Beverly Harris Dec., Exh. 72. 253 and her children’s increasingly severe drug addictions and frequent difficulties with the law had begunto takea toll on Irma’s physical and mental health. She sought psychological help from Dr. William Spivey, an Oakland psychologist. Dr. Spivey recalled that Irma “was so depressed that she had no desire to venture out of her house. She had problems sleeping at night and suffered from frequent crying spells.” Spivey Dec., Exh. 111. 584. Irma did not immediately improve and several years after beginning treatment, Dr. Spivey recommendedherfor disability benefits. Spivey also reported that Irma began to miss appointments because she was so seriously depressed. Indeed, he recalled later that she “was often unable to leave home and pursue normal interests. Her affect was affected by thoughts and feelings of helplessness.” Spivey Dec., Exh. 111. The source of this deep depression was notdifficult for Spivey to discern: “It was clear to me during my treatment of Mrs. Surrell that her children and familylife were causing her a great deal ofstress andthatthis stress contributed to her depressed condition.” Spivey Dec., Exh. 111. 585. In April 1984, when Petitioner was ll years old, Irma took him to see the same psychologist who hadbeen treating her. Dr. Spivey “4 According to Dr. Spivey’s records, Petitioner visited him on fairly consistent, twice a month basis for most of the next four years (a total of 72 visits are reflected in Spivey’s billing records). Remarkably, however, Dr. Spivey does not appearto have kept any particularly detailed notes on 254 recalled the following short summary ofPetitioner’s presenting problems: Atthe time I first met Maurice he was an overweight boy of about eleven years of age who was always being picked on and beaten up by other children. He seemedto be a child who simply could not do anything right and was depressed by his circumstances.I recall that he was unable to focus on school. Maurice had serious self-esteem issues which he seemed unable to resolve. Maurice never had an opportunity to make life-decisions affecting him. He was always pushedor pulled into situations. He never was able to take control of his life because his homelife would end up overwhelming him. Spivey Dec., Exh. 111. 586. Petitioner’s recollections of what he was feeling and why he went to counseling were consistent with Dr. Spivey’s perceptions of him. Petitioner said: “I went because I was so unhappy-- I could see my future and it was bad; I’d just get upset about where I was and how I wasliving in mylife -- the life I [was] goingto live didn’t look too good.” Haney Dec., Exh. 11, 587. Spivey wasalso able to corroborate the effects that Marcia’s these numeroussessions. Nor does he appear to have written any contemporaneousreports containing his professional assessment of Petitioner, a detailed description of Petitioner’s problems, the causes for his psychological distress, or the professional recommendations Spivey might have given Petitioner or the Surrells in order to addresshis problems. 255 chronic drug problemshad on herson. Spivey reported that Petitioner’s “moods and behavior were often predicated on his mother’s actions and whereabouts”—aswell as the fact that she “constantly made promisesto Maurice that she did not keep,” and Spivey observedthat this resulted in Petitioner being “devastated,” no matter how manytimes it happened. Spivey Dec., Exh. 111. 588. Although Petitioner was receiving counseling for his depression, there waslittle Dr. Spivey could do to influence oralter the series of events in the Surrell household that were beginningto spiral out of control. Thus, when Irma became even more depressedoverthe loss of her liquor store, it affected her behavior in other ways: “Irmastarted drinking a lot, which I think was her way of dealing with her depression. Irma stopped showing her face as muchas before andI think she spent a lot of time sitting in her room.” August Dennis Dec., Exh. 65. Another neighbor described the consequences this way: “OnceIrmalostherstore, it was only a matter of time before she lost the house. Things all seemedto get a lot worse once the family realized they were losing their house. No one knew where they were goingto live andit created a lot of animosity and turmoil in the family.” Eva Mae Dennis Dec., Exh. 66. 256 Transitions in Early and Late Adolescence 589. The Surrells soon lost their house in Oakland. As Geneva Jacobs noted above,they lost the house on 28th Street a few years after the liquor store business failed. In 1985, when Petitioner was 12 years old, Irma wasforced to move him andthe rest of the family to a much smaller house on Boise Street in Berkeley. However, in order to stay close to her job at Bella Vista Elementary School in Oakland, Geneva Jacobs stayed behind, living with another family during the week and visiting her daughter and the rest of the Surrells on weekends. Haney Dec., Exh. 71. 590. The new Berkeley neighborhood would prove a much worse place for the Surrell family -- especially Petitioner -- to live. For one thing, the adults staying in the house continued their drug use and, for some,it intensified. They deteriorated even further. As Eva Mae Dennisputit: “When the Surrells moved to Boise Street in Berkeley, things really fell apart. Michael, Marcia, Charmaine and Celeste were all going through their own problemsand going their own ways.” Eva Mae Dennis Dec., Exh. 66. 591. In addition, of course, the move represented a majortransition for Petitioner. He had spentliterally his entire life in the same neighborhood in Oakland. Despite the problems to which he was exposed in Oakland,the neighborhood had becomea familiar one for him. The school 257 that he attended in Oakland had been only a block from the Surrell residence and, when he becamefrightened or intimidated by what was taking place on the streets, Petitioner had been able to quickly seek the relative safety of home. For someonelike Petitioner who had such tenuous connections to the people with whom helived, being uprooted from his familiar neighborhood would prove especially problematic. “[E]ven though there were shootingsand things, I knew Oakland and I liked it... [I]n Berkeley I was by myself.” Haney Dec., Exh. 71. 592. By the time the Surrell family movedto Berkeley, the crack cocaine epidemic had transformed their new neighborhood as muchasit had Oakland. Moreover, in the old 28th Street Oakland neighborhood, many residents knew firsthand about the problemsPetitioner confronted at home and they understood the manydifficulties he endured growing upthere. These neighbors had a certain sympathy for Petitioner and a context into whichto place his shyness,his timidity, and some ofhis other limitations. Petitioner also believed that the older kids around 28th Street had adopted something of a protective stance toward him, doing what they could to make sure that he was not exploited too badly or involved too deeply in any of the serious criminal activities that were taking place on a regular basis in the surrounding neighborhood. Haney Dec., Exh. 71. 258 593. Petitioner stated that “in Oakland, the older guys kind of treated melike a little brother -- in Berkeley they didn’t know meso [they] drew meright into [the] scene.” Haney Dec., Exh. 71. In Berkeley, of course, there was no such sympathetic view ofhis earlierlife, no context for his slow, shy demeanor, and no informalprotection from a neighborhood wherehe wasvirtually a stranger was forthcoming. Indeed, his slowness and vulnerability were morelikely to be exploited than anythingelse. Haney Dec., Exh. 71. 594. Moreover, in May, 1986, shortly after the Surrell family moved to Berkeley, Petitioner’s father died. Thirteen year-old Petitioner wasstill attached to his father, howeverlittle he had seen him and howeverbadly he was treated whenhe did. His cousin Tamikareported that Petitioner “seemed to have a real hard time dealing with”his father’s death, which occurred shortly after Petitioner and the rest of the family moved to Berkeley.“I don’t think Maurice ever saw muchofhis dad, but Maurice would always talk about how he hoped his dad would quit using drugs and start spending more time with him.” Tamika Harris Dec., Exh. 76. When his father died, Petitioner also lost a fantasy that he had used to sustain him during the worst of times with the Surrells — that somehowhis father and his father’s family, the Boyettes — would “save” him from the painful life in 259 which he had become immersed. Haney Dec., Exh. 71. 595. Psychologist Spivey also understood that the death of _ Petitioner’s father had an important emotional impact on him: “I remember that when Maurice’s father died when Maurice was aboutthirteen, Maurice tried to put up a psychological shield and seemedto be fronting off his real feelings,” despite the fact (or perhaps because ofthe fact) that “Maurice never really had a chance to bondwith his father.” Spivey Dec., Exh. 111. 596. At the sametime, the condition of Petitioner’s mother, Marcia, continued to deteriorate. It becamedifficult to distinguish the accumulating effects of her extensive drug abuse from a possible underlying, serious psychological disorder. In November 1987,-- Petitioner was 14 years old -- Marcia was brought involuntarily into a psychiatric services unit. She was described as “confused and combative” and the intake report noted that restraints had to be used to control her and that she was “‘screaming and threatening.” She was uncooperative, had a “vacant stare,” and was “mildly depressed andtearful.” The initial evaluation concluded that she suffered from “organic mental disorder” and suggested that she was “homicidal.” Haney Dec, Exh. 71. In 1988, when Petitioner registered for 8th grade in the Berkeley Unified School District, his mother’s occupation waslisted as “disable”(sic). 260 597. Nowthat he had gotten a little older, however, Petitioner had figured out that one way he could see his mother wasto visit her during her frequent visits to the hospital. She wasat least required to stay in one place for a while and, for the time she was hospitalized, he at least knew where she was. “[It was] the only time I’d regularly see my mom... they'd say, ‘your mom is in the hospital’ -- I’d get on the bus and go see her.” Haney Dec., Exh. 71. But even when she washospitalized Marcia continued to use drugs, and this was apparent to Petitioner: “[P]eople would bring her drugs in [the] hospital, -- I could tell as soon as I saw her-- she’d act like my‘homegirl’ [saying] ‘what’s up?’ rather than being my motherandsay, ‘this is my son.’” Haney Dec., Exh. 71. Nonetheless, Petitioner was undeterred, and he continued to visit his mother under these conditions. 598. It had been obviousto virtually everyone who knew Petitioner and who knew the Surrell family as Petitioner was growing up that “Ms. Jacobs[his great grandmother] basically raised Maurice since Marcia was no kind of mother and Irma [his grandmother] workedall the time. Celeste, Charmaine, and Michael [his aunts and uncle] were no substitutes as parents, either.” August Dennis Dec., Exh. 65. But Geneva Jacobs was now getting very old, she was in poor health herself, and no longer lived with the Surrell family, visiting them only on weekends. Irma was 261 increasingly beset with serious psychological as well as economic problems of her own. And now Petitioner no longer had the familiar surroundings of his Oakland neighborhood to depend on,or the fantasy that somedayhis father would finally become the parent he had badly needed him to be. Haney Dec., Exh. 71. 599. Yet, there is still no evidence that Petitioner handled this growinglist of personal problems by following the aggressive orviolent role models that surrounded him. Reports from his junior high school years are very consistent with the earlier-cited observations from elementary school. For example, Marylin Davis was the administrative assistant at Willard Junior High School whenPetitioner attended 8th grade there in 1988. She described Petitioner as “overweight and shy,” and noted that he “kept a pretty low profile and was not too socially adept. Maurice always seemedpretty lethargic and little slow to react.” Davis Dec., Exh. 63. As administrative assistant at Willard, it was Ms. Davis’s responsibility to call families of students who were behavioral problems or causing disruptions at the school. As she recalled: “I have no recollection of Maurice ever getting into serious trouble or getting suspended for fight.I believe all of Maurice’s detentions were for minorthings, like not having his school books or for chewing gum.” Davis Dec., Exh. 63. Ms. Davis had 262 Petitioner work in her office during some school periods because shefelt ‘Maurice was the type of kid [who] needed moreattention, since he wasn’t very capable of being independent.” Davis Dec., Exh. 63. 600. Petitioner was having a difficult time adjusting socially in school and also performing in his classes. While at Willard in 1988, Petitioner’s performance on the Comprehensive Test of Basic Skills placed him at roughly the 4th grade level, even though he was currently enrolled in the 9th grade. Specifically, Petitioner scored in the 3rd percentile for the overall battery,” and the only portion ofthe test in which he scored above the 7th percentile was in mathematics (where his scores were consistently above average). He enrolled in the Emilio Zapata Street Academy inlate 1989 and, although his teachers reported Petitioner was “making progress” while enrolled, at the end of April 1990, the Academy wroteto Petitioner’s family informing them that he had not yet passed his Graduation Proficiency Tests required for graduation. Haney Dec., Exh. 71. 601. In the early 1990s,it wasclear that Petitioner was beginning to experience a range of increasingly serious problemsthat he was simply not °° This test is nationally normed with a sample of students from across the country. A score at the 50th percentile is the national average score. A score at the 3rd percentile means that approximately 97 percent of the children in the country at his grade level scored better. 263 equipped to handle on his own. His Aunt Monica noted: At the time, it seemed to me that Maurice needed a lot of help. He always had on old clothes and always seemedto need[a] haircut. It didn’t seem like he wastaking care of himself all... Maurice was a teenager by then, although he wasstill very immature and slow for his age. I always believed that Marcia and Dicky’s heavy drug use when Marcia waspregnant and when Maurice was a baby was a major reason why Maurice had so many problems understanding things. Monica Boyette Dec., Exh. 56. 602. The chaos andinstability that had characterized Petitioner’s life was aboutto get much worse, along with the psychological unavailability of the adults on whom he depended. In August, 1990, somefive years after she had moved her family to Berkeley, Irma Surrell suffered a majorstroke. Petitioner was at home. His Uncle Michael (who wascalling from jail) was on the telephone whenit occurred. Petitioner called the ambulance for Irma. 603. Irma was hospitalized for three months. Sheinitially suffered severe damageto her cognitive abilities that only gradually andpartially returned. As her doctorputit: “She worked very hard in her speech therapy... and after a number of months she wasable to formulate complete sentences, althoughshestill struggled.” Sherwood Dec., Exh. 109. In 264 addition, she was now wheelchair-bound: After an acute episodelike the one Mrs. Surrell suffered, limited recovery in motor skills functioning is expected. She was completely wheelchair bound following her stroke. She could briefly stand and support her weight, although she basically lost complete functioning ability in the right side of her body. Sherwood Dec., Exh. 109. 604. According to her physician and virtually everyone else who knewherat the time, Irma became extremely depressed and wasagain prescribed a variety of anti-depressant medications. In the past, Irma had resisted taking these drugs because, as the doctor reported, they “made Mrs. Surrell feel lethargic and slowed her down too much.” Sherwood Dec., Exh. 109. But eventually she felt she had no choice. She took the anti- depressant drugs despite their side effects. Haney Dec., Exh. 71. 605. This wasa period in Petitioner’s life when,as still immature 17 year-old boy, he was struggling to find himself. Irma’s stroke was an especially difficult blow for him to overcome. As oneofhis friends reported: “The few times I saw Maurice after his grandmother’s stroke, he told me how difficult it was for him now that both his grandmother and mother were sick.” Eva Mae Dennis Dec., Exh. 66. A neighborhood friend of the family, Beverly Harris saw essentially the same thing: “Maurice was 265 a teenager when Irma hadherstroke, but he wasstill very immature and he still depended on his grandmotherto take care of him. There wasn’t really anyone else in Maurice’s life he could depend on. Maurice’s mother was still heavily addicted to drugs and washavingserioushealth problems herself.” Beverly Harris Dec., Exh. 72. Indeed, as she putit: “after Irma’s stroke, the Surrell family, which had always been so unstable,fell completely apart.” Beverly Harris Dec., Exh. 72. 606. Petitioner’s cousin, Tamika, described the impact of Irma’s medical condition in similar terms: “My grandmother’s stroke was very upsetting and painful for everyone in our family. While my mother and aunts and uncle were off getting into trouble and ruining everybody’s lives, my grandmother was always the one persontrying to keep it together.” Tamika Harris Dec., Exh. 76. Of course, now that was no longerpossible, and no one would suffer more from her absence than Petitioner, who was becomingincreasingly lost, at just the time in his life when he needed more, rather than less, guidance. Petitioner’s mother was battling increasingly serious addiction-related problems of her own,and Irma’s other children (Petitioner’s aunts and uncle) were in no position to provide any more help now than they hadin the past. Petitioner said: “[T]here was nobody around to talk to—nobodysat downto talk with you about what to do or how to do 266 it. [They were] all worried about their own lives.” Haney Dec., Exh. 71. 607. Eldora Robinson, the mother of one of Petitioner’s childhood friends, was fond of Petitioner, and she had watched him grow up underthe extraordinarily difficult circumstances he faced as a young boyin the Surrell household. She summarized the problemshe faced in Berkeley after his grandmother’s stroke: Maurice wasleft with absolutely nothing after his grandmother’s stroke. Even though Maurice wasa teenagerat the time, he wasstill like a little boy inside. Maurice’s great-grandmother, Ms. Jacobs, was not doing well with her own health either. [His mother] Marcia was continuing to godownhill and her own health was getting worse. Maurice’s aunt Celeste was still in and out of the house depending on what was happeningin her life. Maurice’s other aunt, Charmaine, had becomeaddictedto smoking crack and she wasreally out there, drugged out | and basically on the streets. [ believe that Michael, Maurice’s uncle, was incarcerated at the time that Irmahadherstroke. Robinson Dec., Exh. 104. 608. Petitionertried to stabilize himselfby attending school: “I pretty much never did well in school-- I got forced to go, even though I did bad and[it] got to the point where [ didn’t like it.” Haney Dec., Exh. 71. In light of the fact that he had never doneparticularly well in school and lacked basic educational skills, he would have neededa great deal of 267 guidance anddisciplinein his life to catch up after so many years of marginality in the classroom. It was guidance anddiscipline that he could not and would not get. Not surprisingly, he began to falter in school as well. Soon Petitioner would finally succumb to the lure ofthe streets -- a lure that, unlike virtually everyoneelse in his family, he had previously managed to resist. 609. Because both his grandmother Irma Surrell and great grandmother Geneva Jacobs weresick, Petitioner decided it was time for him to moveout on his own andtry to somehow fashion an independent adult life for himself.°° He waslittle preparedfor it. The streets into which he moved had become extremely dangerous. Oneofhis friends at the time, and into whose homePetitioner moved for a while, reported: There was a lot of gun play and violence happening just downthe street from where we lived. During the 1990s, around the same time when Maurice wasstaying with us, there was something happening just about every other day. People were getting kidnapped, pistol whipped, and shotat all the time. Even if you weren’t directly involved in what was happening, there was a good chance that you could get caught in something.... Everyone wholived in my neighborhood and who was around myageat °° Petitioner also appears to have been pressured to moveoutof the Berkeley residence. “Maurice was spendingless time in Berkeley - Celeste had actually kicked him out of the house - and was basically homeless.” Tamika Harris Dec., Exh.76. 268 that time knew that getting shot wasa real possibility. At a certain point, when I wasstill a teenager, I bought a bullet-proof vest that I wore when I wentout at night. I know ofa lot of kids whodid the samething. Jason Harris Dec., Exh. 74. 610. Petitioner lived for a while with his friends, Jason and Brian Harris. Their mother, Imelda Harris, rememberedPetitioner fondly: “It was not an ideal time to have another person living with us. However, I quickly came to enjoy having Mauricelive with us. In fact, he was a better house guest than most of my own children.” Imelda Harris Dec., Exh. 73. Petitioner had few personal possessions when he movedin with the Harris family and did not ask for much. Haney Dec., Exh. 71. 611. According to Mrs. Harris, Petitioner was always respectful and helpful to her: When Maurice first movedin, he hardly ever came out from the back room unless one ofmy kids brought him out. Maurice wasso timid and quiet that he seemed almost nervousto be around me... Maurice always offered to wash the dishes or clean up around the house. When I would haveto leave the house to run an errand or pick up someone from school, I alwaysfelt very comfortable about leaving my young children Tiffany and Kyle home alone with Maurice. Maurice was good aroundlittle kids. If I asked Maurice to do something, I trusted that he would do it. I probably trusted Maurice to do something more than I did [my own sons] Jason 269 or Brian. Imelda Harris Dec., Exh. 73. 612. But the same pattern ofisolation, of having essentially no one to really care for or look after him that had characterized Petitioner’s earlier life, continued in these later years. This was certainly apparent to Imelda Harris during the few months he lived with her. She recalled thinking “it wasstrange that Maurice’s family never called or stopped by to see Maurice.” Imelda Harris Dec., Exh. 73. Even though Petitioner wasin his 18th year, Mrs. Harris wondered whether there was anyoneinhislife who could or would provide him with the. love and guidance he appearedtostill very muchneed: Maurice wasstill of school age and seemed much youngerthan his age, but it didn’t seem like he really had a family at all. I was worried about Maurice, since I knew that young people in his situation didn’t have very many choices or options beside the streets. | remember asking Maurice whether there was anyplace for homeless kids where he could get some help, but there didn’t seem to be any place that he knew of where he could goto. Imelda Harris Dec., Exh. 73. 613. Mrs. Harris also saw some of the same shynessandlack of sophistication that others had commented on during earlier times in Petitioner’s life: 270 Maurice was the kind of person whoI felt could and would be taken advantage of. Maurice was always very heavyand large. People called him “Chunka” becauseofhis size. He didn’t seem very quick or sophisticated in being out on the streets and I think [my sons] Jason and Brian got bored with him pretty quickly. Imelda Harris Dec., Exh. 73. 614. Imelda’s son Jason reachedessentially the same conclusions aboutPetitioner. He remembered that Petitioner’s ownrelatives “used to pick on Maurice,calling him fat or scared.” Jason Harris Dec., Exh. 74. Jason wasfriends with Petitioner during this period, and he knewthat Petitioner “‘wasn’t very tough or smart.” Jason Harris Dec., Exh. 74. Indeed: “Maurice was the kind of kid who waseasily taken advantage of by other people. Brian and I had been runningthe streets since we werelittle andit was pretty obvious to us that Maurice did not haveanystreet education. Brian and I always assumed that Maurice was younger than us.” Jason Harris Dec., Exh. 74. 615. Shortly after he left the Oakland Street Academy in December, 1990, where he wasenrolled in the 9th grade, Petitioner got into trouble with the law. On January 24, 1991, Petitioner was arrested for possession of rock cocaine that he admitted he had intendedto sell. It led to his first criminal conviction, at age 18. 271 616. The Probation Report filed in conjunction with that case noted that Petitioner had “no juvenile criminal history,” and included Petitioner’s explanation that “he had the drug for the purposeofselling it to provide for necessities, in that at the time he was homeless.” The section on “Family Background”described Petitioner’s mother this way: “The defendant’s mother has a long-term drug problem andhasled an unstable life. Several years ago, she suffered some type of paralysis as a result of drug use andis still disabled. The defendant knowslittle as to her circumstances.” The Report acknowledged Petitioner’s candor in speaking with the probation officer and the officer’s feeling that his demeanor “betrays a certain lack of criminal sophistication.” The Report recommendedprobation rather than incarceration: “It is felt that he would be amenable to probation, and, in fact, could profit from counseling in the area of drug use as well as his employment and educational plans.” Exh 16. 617. There is no indication in the records that Petitioner ever got the counseling that the Probation Report recommended, and he doesnotrecall having received it. However, he did know that he would needa plan for surviving in the Oakland and Berkeley areas -- the only places he had ever lived -- or some wayofgetting out of the area. Still relatively unsophisticated, Petitioner certainly perceived the changesin thestreetlife 272 around him and the dangerousness of the world he had entered. In terms that capture the “war zone”like feel to the adult environmenthe wastrying to survive, Petitioner stated that certainly by 1990-91: People were notjust carrying guns but also began to use them—lots of people getting shot—you’d govisit them in [the] hospital, go to funerals.[There were] lots of neighborhoods that didn’t get along—there were fights everyday, people getting jumped everyday [and] nobody wentto schoolor left school by themselves. Haney Dec., Exh. 71. 618. After he got out of Santa Rita Jail for his January 1991 offense, Petitioner again tried the only “straight” environmenthereally knew:“I went back to schoolafter I got out of Santa Rita. I neverfit in but I knew I would need school to do anything on my own.I knew it was so serious on the streets that I would haveto get out of here to survive. I wantedoutbut I - didn’t know howto do it.” Haney Dec., Exh. 71. But, again, he was unable to sustain himself in school, and unable to stay away from the drug culture that had envelopedvirtually his entire family. And, again, there was no one in his family in a position to help. His probation officer at the time remembersthat: Maurice hada lot of expectation on him that he was not capable of meeting because he was very immature. He seemedlike a 12, 13, or 14 year 273 old. He wasincredibly needy for attention and needy for direction. Even more than just direction, he needed someoneto take his hand and walk him through things. There was nobody in his family or in his life to do that for him. Pastor Dec., Exh. 98, 619. Petitioner sensed his life was spinning out of control but he had no real idea how to stabilize it. On March 20, 1991, in an act of desperation, he called his probation officer, crying hysterically, and said, “I can’t take it anymore... please help, I need help... please arrest me,” and then threatened to kill himself. Petitioner recalls: “[W]hen I called asking for help, that’s really all it was—I was hurting and I needed people to help me.” Haney Dec., Exh. 71. And he was very clear about why he washurting: I wantedto kill myself -- I didn’t want to be here, didn’t want to know about what mylife was going to be -- nobody wants to live the life I was in. I wasn’t going to hurt my grandfather. [I] wanted to hurt myself. [I] said “I’m going to cut my wrists.” They asked me to comeoutside [and then] took meinto custody and to Highland Hospital. Haney Dec., Exh. 71. 620. Although it would belater characterized very differently in the prosecutor’s cross examination and closing argumentin Petitioner’s penalty trial, it was clear to others that Petitioner was acting out of desperation at the complete chaos and lack of controlin his life, and the sense of 274 helplessnessthat he felt as a result. Perhaps the most objective account of the event comesfrom his probation officer, Mei-Ling Pastor, the person whotook Petitioner’s original phonecall and arranged to have himtaken to Highland Hospital that day. She recalls that Petitioner left her “a very urgent message”in an “emotional voice” in which he asked herto call him back as soon as possible “because he really needed to talk to me and it was an emergency.” Pastor Dec., Exh. 98. When shecalled back and got Petitioner on the phone: Maurice wasnotarticulate enoughat the time to say what wasreally wrong. He wasupset becausethere werea lot of things going on with his family. He was crying hysterically and pleading to be arrested. He said he wanted to kill himself and his family, but he wasn’t specific. I know that Maurice did notreally want to kill anyone andhis saying that was an expression of the extreme emotional stress he was under, the fact he had no oneto turn to, and his inability to cope with it. He was moving around all the time from place to place, and he didn’t have enough money. Maurice was in a really upsetting situation, and he did not have the emotional resources to deal with this situation himself. It was clear to me that Maurice wanted meto intervene and help him get to asafe place. Pastor Dec., Exh. 98. 621. Ms. Pastor consulted with a more experienced probation officer, Diane Talsky. Ms. Talsky also talked briefly with Petitioner and 275 suggested to Ms. Pastor that by having him arrested she could “get Maurice to a safe place where he could stabilize.” Talsky Dec., Exh. 120. Ms. Talsky felt that by having the police pick Petitioner up and take him into custody he would be removed from the difficult situation he was in. This was an approach Ms.Talsky had usedin the past with her own probationers. Ms. Pastor asked Petitioner to stay by the phone while she made these arrangements. Whenshe called Petitioner back, he had waited by the phone,as she had asked. But “[b]y the time of this call, he was hyperventilating on the phone and crying hysterically.” Pastor Dec., Exh. 98. 622. It is clear from the two probation officers involved, as well as from Petitioner’s own description of the sequence of events that transpired, that he was arrested because he was asking for help from perhapsthe only person he knew who might be able to provideit -- Probation Officer Pastor -- and that her actions were directed at getting him the help shefelt he needed. As Ms.Talsky put it: “From my experience with Maurice on the phonethat evening and from talking to Mei-Ling [Pastor] subsequently, Maurice wasput into custody in order to stabilize him and temporarily remove him from a difficult homesituation.” Talsky Dec., Exh. 120. Ms. Pastor believed that the hospital would provide that stabilization: “My 276 intention was to get Maurice to the hospital so he could sit down in front of a psychiatrist and get him sometime awayfrom his homesituation. He neededa little time in a safe place away from thestress of his family.” Pastor Dec., Exh. 98. 623. Unfortunately, the Highland Hospital staff held Petitioner for only a few hours and then released him to the streets. Several factors may have accountedforthis decision. For one, the emergency room psychiatric unit in which Petitioner was evaluated may not have been equipped to conduct an especially careful examination. As Probation Officer Talsky put it: ... Highland Hospital’s Emergency Room psychiatric unit was cursory in its mental health evaluationsin the early 1990s. It was not rare for patients released from this unit after a few hours or a few days to later be committed to a mental health detention facility, in Napa for example, for monthsat a time. Talsky Dec., Exh. 120. 624. In addition, although “Maurice clearly needed help and counseling,” as Ms.Pastorrecalled, he also “did not have the verbal skills to articulate to the psychiatric staff of Highland Hospital the emotional turmoil he was experiencing.” Pastor Dec., Exh. 98. 625. Once she learned that Petitioner was goingto be released so 277 quickly from Highland Hospital, Ms. Pastor determined that she could “buy time for him to be away from his family and get him the counseling he needed”by revoking his probation. She did this not because she felt he had committed a criminal offense that justified his incarceration, but rather “for hisown safety and... as a psychiatric measure.” Pastor Dec., Exh. 98. BecausePetitioner also understood that he needed help, he waited patiently in the lobby of the hospital for the police to come and take him to Santa Rita jail. Pastor Dec., Exh. 98. ‘626. After discussing Petitioner’s problems with him injail, Ms. Pastor decided to request a psychiatric evaluation under Penal Code section 4011.6. Her purpose wasclear: she wanted to get Petitioner “the help he needed” and she knew that a 4011.6 evaluation was required “before you are eligible for mental health services.” Pastor Dec., Exh. 98. Following Ms. Pastor’s request, Petitioner was evaluated by Alameda County mental health worker George Barrett. Mr. Barrett concludedthat Petitioner “thinks and speaksin the style of a 12 year old. He has been nearly his present size since he wasthat age and in somerespects his ‘emotional clock’ remains . there.” Exh. 14. Petitioner was placed back on probation a weeklater and released to the streets. CT 1240. 627. Two monthslater, Petitioner was arrested for a physical 278 altercation with Max Schireson on an Oaklandstreet. It was the only time he had ever been arrested for a crime involving any physical force. According to Schireson’s subsequent account of the incident, Petitioner was still suffering from someof the psychiatric problems that hadled to his earlier cries for help and brief hospitalization: “I had the definite impression that Mr. Boyette was out of it mentally, like he was mentally retarded or impaired in some way.Hereally didn’t seem to know what was going on. He wasn’t hostile in the least and didn’t seem aware that he had done anything wrong.” Schireson Dec., Exh. 108. Indeed, Mr. Schireson was surprised that Petitioner was prosecuted for something thathe -- Schireson -- did not think it was “a big deal.” In fact, Mr. Schireson remembered “telling people that I felt it was unfair that he was being punishedso harshly for such minor thing. He seemed like someone who neededhelp, not punishment.” Schireson Dec., Exh. 108. 628. Petitioner was prosecuted nonetheless, pled guilty in July, and was sentenced to 90 daysin jail. He was released in August (after serving approximately 50 days) and his probation wasrestored. Later that month, on August 26, 1991, he filled out an application for aid at the Alameda County Social Services Agency in which helisted his home address as “homeless.” Hestated that he was applying for assistance because he had “no place to 279 live, no moneyfor food, no moneyfor transportation,” and wasliving “friend to friend, anywhere someone will let him.” The contact sheet indicated that Petitioner had been homeless since December1990. 629. About a monthlater one final tragedy occurred in Petitioner’s life that profoundly affected the final path he would take and helped lead him to the scene of the crime for which he received the death penalty. On September 20, 1991, after breaking her leg and foot numeroustimes, Petitioner’s mother went to the hospital and wastreated for an infection in her leg that she had apparently ignored. Her leg was amputated just below the knee. Petitioner was shocked and saddenedby the event. His grandmotherdid nottell him about it when it happened and by chance he saw his motheronthestreet: “I was going down the street when we saw her -- shocked -- she was in a wheelchair!” Haney Dec., Exh. 71. After Petitioner’s mother’s leg was amputated, hetried to help her even more than in the past: “When my mom hadher leg amputated, she washelpless, using drugs, fighting with her boyfriend -- I tried to just be there for her.” Haney Dec., Exh. 71. 630. Marcia Surrell’s amputation and increasingly deteriorating health unfortunately did not lessen her continuing drug addiction.In fact, it may havecontributed to her desire to remain high in order to avoid 280 confronting her physical incapacity. Nor was herlifestyle appreciably affected: “Marcia’s leg had been amputated, although it didn’t really stop her from trying to prostitute and hustle to stay high.” Jackson Dec., Exh. 77. However, Petitioner now came moreoften to the Cole Street house where Marcia wasliving and using drugs, hopingto help take care of her. 631. Bettye Jackson, the ownerof the house, described Petitioner’s gentle and unsophisticated demeanor: Maurice waslike a baby in the jungle when he was hanging out at my house. Maurice was only at my house to spend some time with his mother... I think Maurice wastrying to have a closer relationship with her. Marcia wasa real mess and Maurice wantedto take care ofher... It was pretty obvious how much Maurice worried about Marcia. There were a few times when Maurice called an ambulance to come get Marcia, since her condition kept getting worse and worse...At one point, I told Maurice that he should stop coming by my house. I didn’t think Maurice belongedthere, in that crowd of people, and I told him to stay away. Maurice got real upset and didn’t understand whyI told him that. Jackson Dec., Exh. 77. 632. According to Bettye, Petitioner “was totally afraid of guns” and he “seemedpretty shaken and scared” whenhetold her about anincidentin which a goodfriendofhis had been shotin the face while they were both sitting in a car. Jackson Dec., Exh. 77. 281 633. Petitioner eventually succumbedto the pressures that most of the young men in his neighborhood hadfallen prey to muchearlier in their lives. “[I]t was hard notto sell drugs-- I got out ofjail and came home to basically nothing.[I] had no wayto eat -- didn’t want to live at my grandmother’s house because she wassick and I didn’t want to bring hassles hometo her.” Haney Dec., Exh. 71. Indeed, Petitioner’s grandmother had reached the conclusion that she could no longerreally take care of him, and that he was addingto the family’s already substantial burdens. Petitioner’s probation officer at the time, Ms. Pastor reported: I had talked to Maurice’s grandmother. She didn’t want Maurice around. Nobodyin the family did. The grandmotherfelt like Maurice was old enoughto be working,to be getting through his education, and to be productive. Maurice’s family was not well-off financially. They seemed downand depressed.It is very hard for a young personto be in an environment like that all the time. Pastor Dec., Exh. 98. 634. Even though Petitioner began to associate with a rough crowd, his friends Brian and Jason Harris reported that he wasstill unsophisticated, immature, and easily taken advantage of. The social security check he received each monthafter his father’s death was regularly given to his grandmotherfor “rent,” so that he had no real money of his own. Moreover, 282 he lacked a high school diploma or any significant job experience -- except for selling newspapersubscriptions door-to-door and washingdishes. He has stated, “I got into selling drugs when I realized I wouldn’t get any moneyotherwise.” Haney Dec., Exh. 71. 635. But an additional motivation for this behavior was a common one: Maurice sold drugs because he had becomeaddicted to drugs.*” As he said, when he got addicted to heroin, he realized he “hadto payforit, so I sold drugsto do it.” Haney Dec., Exh. 71. Just as it had with his mother, Petitioner’s lifestyle began to revolve aroundthe drug. Indeed, he even had conversations with his mother in which they discussed “the different ways of using heroin—she would always shoot, said it gave you a stronger rush—or[you could] snort it like me.’ Haney Dec., Exh. 71. But Petitioner was involvedin little more than the kind of small-time drug sales that addicts rely onto get by, selling just enough to get them to their next >’ There is a vast social scienceliterature on the relationship between drug use andcrime.It establishes the basic, commonsense proposition that most people who become addicted to drugs eventually turn to crime to support their habits. It also demonstrates the various ways in which drug abuse places addicts in direct and continuing contact with a criminal culture and lifestyle. Haney Dec., Exh. 71. * Petitioner also explained why seeing firsthand the way in which heroin had ravaged his mother’s mind and body did not deter him from usingit: “T _ saw heroin have a bad effect on my mom,then I figured that if I just smokedit, I'd be OK.” Haney Dec., Exh. 71. 283 fix. He would sell drugs to “get money, buy heroin, clothes -- whatever you had in your pocket you’d use on drugs that day. I hardly had any money accumulated -- I’d spendit as soon as I gotit.” Haney Dec., Exh.71. 636. By the time he was forced to begin to create an independent life for himself and to decide what kind of an adult he would become, he had only the examples from his extended family to draw upon and examples from the community that surrounded him. Buthestill saw these things through unsophisticated eyes: I only had drug dealers as role models—all around me—fancycars, girls, money. You don’t see the bad side of it. Then, when they’d disappear, you’d see them come back from [the] pen lookingstronger, bigger. They also never tell you the bad side of prison. They justact like goingto prison is just part of life. But there are worse things that go on that they don’t tell you about. Haney Dec., Exh. 71. Longterm Consequences and the Mitigating Significance of Petitioner’s Social History 637. The social historical factors summarized from Petitioner’s life are crucial to any meaningful understanding of his criminal behavior. They are equally important to any overall assessment of moral culpability of the kind that is essential in capital jury penalty decision making. Thatis because of the widespread consensusthat has existed for many years now 284 among psychologists and other mental health professionals that early experiences play an extremely important formative role in shaping the course of subsequent psychological development. They profoundly influence the direction of ourlives, the choices that we make along the way, and the degree of moral culpability that nghtly attaches to the actions we have taken. This particular approach to understanding human behavior-- what is sometimescalled “the study of lives”-- is a long-established framework in psychology andrelated disciplines. Put simply, the past greatly affects present and future outcomes, and what happensto us as children often has a significant influence on our thoughts, feelings, and actions as an adult. No one’s life course can be fully and meaningfully understood without paying special attention to these issues. Haney Dec., Exh. 71. 638. It is painfully clear that Petitioner was subjected to a wide variety of powerfully negative influences and experiencesthat, in turn, profoundly affected his development and subsequentlife course. That1s, Petitioner was exposed throughouthislife to an extraordinary number of what developmental psychologists have termed “risk factors.” This risk- factors model of understanding the effects of past experience on subsequent developmentand adult behavior applies a basic psychological framework 285 that was summarized in a widely-known and oft-cited published review by Ann Masten and Norman Garmezy in 1985, some seven years before Petitioner’s trial took place. Amongtheirlist of the risk factors that were knownthen to predispose children to later delinquency are many ofthe very things that characterized Petitioner’s early life: a social history marked by poverty, parental abandonment, chronic neglect that included grossly inadequate care and supervision, inappropriate parental and other adult role models, and repeated exposure to violence and the abusive treatment of others. Haney Dec., Exh. 71. 639. Over the last 25 years, extensive empirical research on childhoodrisk factors has establishedthe fact that poverty, abandonment, neglect, the presence of negative role models, and exposure to violence and abuse in the family as well as the larger community function to predispose children to a wholeseries of significant problems. For many children, these problemspersist as they mature into adulthood. The long-lasting negative effects include emotional and psychological dysfunction, poor academic performance, drug and alcohol abuse, delinquency, criminality, and violence. Haney Dec., Exh. 71. 640. Petitioner’s social history provides very clear evidence of these risk factors at work. Petitioner was exposedto precisely those problematic 286 conditions and forms of childhood maltreatment that we know are destructive of normal development andthat place children seriously at risk. His adolescent years provide corresponding evidence of many ofthe very problemsthat the risk factors literature suggests are likely to be created as a result. Indeed, Petitioner’s social history illustrates many of the ways that these risk factors can interact over a life course to produce exactly the kinds of emotional and behavioral problems -- poor school performance,truancy, drug use, and eventual delinquency-- that the research indicates they will. Haney Dec., Exh. 71. 641. Petitioner’s situation is a textbook example of “psychologically unavailable caregiving.” His is an extreme example of this form of childhood maltreatment. This particular risk factor is recognized by experts to be rooted in an “environmentof neglect” rather than “only an isolated incident.” Indeed, in words that could have been chosen directly from descriptions of Petitioner’s homelife, psychologically unavailable caregiving tends to occur in families that “are characterized by chaos, disruption, and disorganization. Drug and alcohol abuse are common,the mothers often are physically abused, and, in general, the homes provide a very aversive environmentfor raising the children.” The long-term psychological effects of this form of parental maltreatment are cumulative 287 and can produce very dramatic destructive consequencesthat include depression, negative emotion, poor impulse control, and high levels of dependency. Manychildren whosuffer this kind of chronically neglectful upbringing turn to drugsto ease the psychological pain and sense of worthlessness it produces, and a high percentage of them engage in adolescent and adult criminal behavior. Haney Dec., Exh. 71. 642. In Petitioner’s case, there is clear evidence that his natural parents were both psychologically (as well as literally) unavailable as caregivers throughoutvirtually his entire life. Drug addicted at the time he wasborn, they never assumed appropriate parental responsibility for Petitioner’s well-being. The two people who did attemptto serve as parent substitutes for Petitioner -- his great grandmother Geneva and his grandmotherIrma -- were repeatedly described by neighbors and family membersalike as “overwhelmed”bytheir financial and emotional obligations to their own children and to the numerous,serious personal and legal problems and dysfunctional relationships and problematic other people that these children and young adults brought into the household where Petitioner lived. Throughout his childhood, Petitioner was described as someone whowasoverlooked, ignored, and otherwise “on his own.” To be sure, there seemsto belittle doubt that this chronic and extreme form of 288 neglect was primarily the result of the sheer number of seemingly insurmountable problemsthe Boyettes and Surrells faced over the course of Petitioner’s life. Yet, the consequencesof the kind of psychologically unavailable caregiving he received were painful and detrimental nonetheless. Haney Dec., Exh. 71. 643. Moreover, at precisely the time when Petitioner needed the most guidancein his life -- when he was preparing to enter young adulthood and move independently into the world -- whatever inadequateandill- conceived support he may havereceived in the past was almosttotally missing in his life. Psychologically unavailable caregiving had turned into noneat all. Thus, by the time Petitioner began to commit drug-related crimes as an immature 18 year-old, his great grandmother no longerlived at the family home and had becometoo old and infirm to provide much if any guidance or supervision; his grandmother had suffered a stroke, was confined to a wheelchair, was taking psychotropic medications and had begun to drink; his grandfather was absent and co-habitating with one or another of the various families and wives and/or girlfriends with whom he had lived throughoutPetitioner’s life; his own father had passed away; his mother wasstill very much addicted to drugs andstill engaging in prostitution, despite having had her leg amputated; his aunts, Charmaine 289 and Celeste, who had lived with him sporadically in the Surrell family home, were in the throes of drug addictions; and, his Uncle Michael was incarcerated, having pled guilty to an assault with a deadly weapon charge. There wasliterally no one to give him sound advice, meaningful guidance, or supportive care and concern. Haney Dec., Exh. 71. 644. “Criminal embeddedness”is the degree to which people living in-criminogenic contexts become immersed in a network of interpersonal relationships that increase their exposure to crime-prone role models. In someinstances this network includes people in their immediate family -- in extremecases, parental figures or other important relatives whose own behavior teaches them lessons about illegal and even violent ways to deal with deprivation, frustration, and conflict. In other cases it refers to what are in essence“tutelage” relationships in which inexperienced young people are influenced in a direct way by more sophisticated criminal actors who are present in the neighborhoods or communities where they live. In Petitioner’s case, the criminal embeddednessoccurred both in and out ofhis home,andit was vast in scope and deep in nature.” °° To illustrate just some of the ways in which Petitioner’s day-to- day existence was immersedin criminality, long before he had the capacity to “choose” his ownlifestyle or preferred courses of action, see appended chart depicting “Denizens of the Households Where Maurice Boyette Lived” (as Appendix B to Haney Declaration, Exh. 71). It is obvious from just this brief, schematic summary that Petitioner was surrounded for most 290 645. In addition to the appended chart depicting the negative and problematic role models living in the households in which he grew up, Appendix B to Haney Dec., Exh. 71, consider the following partial but more descriptive list of broad criminogenic influences present throughout most of Petitioner’s development: he had (a) a mother who was a chronically drug-addicted prostitute who stole from the house where he lived, who was sometimes locked by her own motherinside the house -- with Petitioner sitting nearby -- and forcibly put through drug withdrawal, whoherself gave Petitioner pointers on the different highsthat were brought about by different ways of using heroin, and whose own drug addiction remained so powerfullate in herlife that, after she had one of her legs amputated, she shot heroin into the stump, Tamika Harris Dec., Exh. 76, and attempted to streetwalk as a one-legged prostitute, Robert Harris Dec., Exh. 75; (b) a father who wasalso a drug addict, who servedas his mother’s pimp, suffered numerousarrests and criminal convictions, and stuck marijuana cigarettes into Petitioner’s mouthwhenhe wasstill a young child, Robert Harris Dec., Exh. 75; (c) a great aunt who was nicknamed of his life with persons who themselves suffered from a variety of disabling problemsand dysfunctional patterns of adjustment. These negative influences were immediate -- in the sense that these were people who occupied the same house in which helived -- and their impact on him was long-term -- in the sense that these were people with whom hehadcontact overvirtually his entire life. 291 “Betty 5150” because of the frequency with which she was committed to the mental health clinic, and was “always considered crazy...used a lot of drugs and mostly lived on the streets”, Monica Boyette Dec., Exh. 56; (d) a great uncle who was a biker with the East Bay Dragons, Byrd Dec., Exh. 57, and who wasreputed to have committed murder; (e) another uncle who did three California prison terms for drug sales and robbery, Alvon Surrell Dec., Exh. 112; (f) an aunt who “wasarrestedafter the police saw her carrying a large rifle from her car into her mother’s house on East 28th Street,” Byrd Dec., Exh. 57; (g) a grandfather who “had a few other families beside [Petitioner’s grandmother] and her kids,” Coit Dec., Exh. 60, was referred to as a “ho-monger” who “had lots of other women and children,” August Dennis Dec., Exh. 65, fractured the nose ofat least one of the women with whom he fathered children, Frazier Dec., Exh. 69, beat Petitioner’s grandmother whenshe was pregnant with their children, Parker Dec., Exh. 97, served time in prison for assault with a deadly weapon and later killed a man and wasput ontrial for murder, Marlon Surrell Dec., Exh. 115; (h) an uncle with whomhe wasraised who, whentold to stop beating his girlfriend by his mother-in-law,“took a shovel from in front of the house on East 28th Street and hit her in the face with it,’ August Dennis Dec., Exh. 65, put a shotgun to the head of his wife during an argument, 292 and threatened to kill another of his wives and her mother, Daphne Yeldell Dec., Exh. 127, later went to prison for trying to cut someone’s throat and, little more than a year after he was paroled for that crime, wasarrested for killing someone else; and (i) an aunt with whom he wasraised who taught the younger children how to steal by dropping sleepingpills into their drinks, who spent timein jail for selling drugs and was known aroundthe house and neighborhoodonly as “Red,” her “street name for when she was hustling and dealing.” Tamika Harris Dec., Exh. 76. 646. Moreover, every single memberofPetitioner’s immediate family who regularly occupied the house in which he grew up appears to have had a substance abuse problem of onesort or another. In the case of the two most“stable” figures in his life, Irma Surrell and Geneva Jacobs, their alcohol problems did not appear to prevent them from working and maintaining the household in which Petitioner lived. However, in every other case the substance abuse problems — virtuallyall involving drug addictions —- were often disabling, frequently forcing family members into criminal behaviorand,as in the case of Petitioner’s mother, completely dominating their life. It is not an exaggeration to say that it would have been nothing short of extraordinary if Petitioner had managedto avoid substance abuse problemsas a young adult. Haney Dec., Exh. 71. 293 647, Urban “war zone”refers to the high level of violence to which Petitioner was exposedas a child and adolescent, both in the house in which he grew up and the surrounding community in which he lived. Indeed, Petitioner grew up in a family in which violence was a commonplace occurrence. Although he wasnotoften the target of direct abuse, he witnessed it on numerous occasions. Virtually all of the men around whom he wasraised were physically abusive to the women with whom they were involved. Petitioner’s grandfather, his Uncle Michael, and his father were all arrested for violent crimes. And there were more subtle but direct acts of violence that he experienced at home. For example, his father would call Petitioner a “sissy” on those rare occasions when he saw him atall, he fired gunsinto the air to scare Petitioner and yelled at him when hecried, and told him he would kill him if he ended up “being a fag.” Robert Harris Dec., Exh. 75. Even his great grandmother, despite being one of Petitioner’s few points ofstability earlier in his life, had a gun that she had named “Mr. Smith” that she would look for whenever she got into an argumentthat she could not handle, and would usesticks (whichshe also had named) to beat the children when they got out of line. Eva Mae Dennis Dec., Exh. 66. 648. In addition, Petitioner lived in two nearby communities — 294 Oakland and Berkeley —- that were saturated with violent crime and decimated by the crack epidemic of the 1980s. At the time Petitioner was coming of age in Oakland and Berkeley, people were being shot so regularly that some young residents suffered from Post-Traumatic Stress Disorder, Imelda Harris Dec., Exh. 73, and others purchasedbullet-proof vests so that they could more safely walk the streets. Jason Harris Dec., Exh. 74. Indeed, one of Petitioner’s uncles analogized the gangactivities in which heparticipated as “playing cowboys andIndians, except with real guns.” Alvon Surrell Dec., Exh. 112. Petitioner had a close childhood friend wholost a leg after he jumped off the roof of a building to escape from a neighborhood gang that was chasing him, and whowaslater shot and killed in a separate incident while Petitioner wasstill a teenager. Marlon Surrell Dec., Exh. 115. 649. Given his exposure to violence —- indeed, his immersion in an extremely violent household and subculture for most of his young life — it is noteworthy that Petitioner did not become much more aggressive much earlier. Petitioner’s behavior stood in dramatic contrast to the other young men in the Surrell family as well as many of the young men wholived in the Oakland and Berkeley neighborhoods where he grew up.” © Tn fact, turmoil, criminality, and violence occurred so often in Petitioner’s childhood and adolescence that 1t was impossible to includeall 295 650. Petitioner’s emotional problems, his early timidity and depression, his loneliness and passivity, his seemingly irrational devotion to his mother, the low self esteem, eventual drug use, and involvementin crime as a relatively immature 18 and 19 year-old young man can only be understood in the context of this traumatic social history. The way in which these destructive events shaped Petitioner’s development and warpedhis perspective on himself and the world around him represents a compelling summary of the available mitigation in his case. It is mitigation that was essential for trial counselto carefully develop and effectively presentat Petitioner’s capital penalty trial. Mental Health and Impairments 651. Significant evidence of Petitioner’s mental impairments could have been presented in mitigation. The expert presented by counselattrial, Dr. Fred Rosenthal, has admitted that Petitioner’s history predisposed him for neuropsychological deficits. Rosenthal Dec., Exh. 105. Counsel did not have any neuropsychological testing of Petitioner done at any timeprior to of it in this narrative, despite its length. To provide a more comprehensive list of the destabilizing events and criminal influencesthat shaped the atmosphere and environment in which Petitioner was raised, appendedis a documententitled “Maurice Boyette: Traumatic, Destabilizing, and Criminogenic Events” (as Appendix C to Haney Declaration, Exh. 71). It is instructive to compare this detailed document with the more benign picture of Petitioner’s family and upbringing that emerged throughtrial counsel’s penalty phase presentation in Petitioner’s capital trial. 296 or during histrial. Had such an evaluation been done, the results would have provided significant mitigating evidence to be presented at the penalty trial. 652. Dr. Dale Watson,a licensed psychologist in the State of California, whose expertise is in forensic psychology, neuropsychology and psychodiagnostic assessment, has examined Petitioner. 653. Clinical neuropsychological testing assesses the behavioral expression of an individual’s brain function. Appropriately interpreted, neuropsychological assessmentis a fundamentalpart of a reliable and comprehensiveclinical evaluation of brain function. Each ofthe individual tests that make up a neuropsychological battery is designed to provide insight into the nature and extent of brain dysfunction. The testing of Petitioner provides evidence in his summary scores that he suffers mild neuropsychological impairment. Watson Dec., Exh. 122. 654. Petitioner’s neuropsychological test data was assessed in a number of ways, including procedures to form a basis of comparison between Petitioner and cross validated norms. The results of the testing and analysis indicate that Petitioner suffers from generalized mild neuropsychological dysfunction. This results in a slowing ofPetitioner’s ability to process information, disruption of auditory processing capacity 297 and poorfine motor control: These deficits would likely have a significant impact uponhis ability to succeed in school and are consistent with learning disabilities. Petitioner’s neuropsychological impairments hada significant developmental impact upon him. Testing Data 655. Petitioner’s history includes multiple injuries to the head, including;(a) a fall out of bed hitting his head on theflooras a toddler, resulting in vomiting and a “very dreamy”state; (b) a skateboard fall resulting in loss of consciousness, vomiting and sleepiness at age four; and (c) a fall off a 5-foot wall as a child but without loss of consciousness. This history of head traumas suggests a possible environmentaletiology for Petitioner’s impairments and should be considered along with possible biological and genetic factors. Watson Dec., Exh. 122. 656. Neuropsychological summary measures, which have gained widespread acceptance in the neuropsychological community, and which were widely used in the period of 1992-1993, include the Halstead Impairment Index and the Average Impairment Rating. Using age and education adjustments, the Halstead Impairment Index falls within the mildly impaired range though the Average ImpairmentRating is within the low normal range. Petitioner’s scores on these indices, along with a more 298 detailed analysis of test findings, establish that he has underlying mild neuropsychological dysfunction. Watson Dec., Exh. 122. 657. Petitioner’s Neuropsychological Deficit Scale (NDS) score of 37 falls within the Mild Neuropsychological Impairment range. In Reitan’s 1988 study, no non-brain damaged person scored higher than 34 on the NDS. That study found that a cutting score between 25 and 26 separated normal!from brain injured individuals with the greatest degree of accuracy. Petitioner, therefore, tests in the impaired range. The NDSis oneofthe most comprehensive of the neuropsychological indices available for the Halstead Reitan Battery. In addition, the NDS has been cross-validated as an effective meansof identifying brain damage. In multiple, independent scientific studies, the NDShas proved to be a consistently valid measure of brain damage. Watson Dec., Exh. 122. 658. Petitioner’s overall intellectual ability falls within the low average range. However, analysis of the underlying factors of the intelligence measures showsPetitioner to have significant difficulties in his speed of information processing. Petitioner is very slow to process information andto transfer written information. His ability to process information is well below his other scores, which is a common problem for individuals who have had any type of neuropsychological insult, including 299 head injuries as has Petitioner. Watson Dec., Exh. 122. 659. Petitioner shows signs of microsmia, or the loss of the sense of smell. This may be an indicator of impairments within the orbital-frontal region of the brain — an area associated with personality functioning and when damaged, with impulsivity. His behavior often appears rather child- like and immature — consistent with this hypothesis. Watson Dec., Exh. 122. 660. Further, Petitioner has signs of lateralized impairment within the auditory processing centers of the left hemisphere. On a dichotic listening task, in which different words were simultaneously presented in each ear, Petitioner was able to correctly identify 35 of 50 words ontheleft but only 25 of 50 on the right — strongly suggesting left hemisphere disruption. This task is useful in identifying impairments that may or may not involve structural defects within the brain, particularly within the subcortical areas associated with the temporal regions. Watson Dec., Exh. 122. 661. Petitioner’s oral reading abilities are also of note because, though he comprehends well (12th grade level), his reading speed is remarkably slow at less than the Ist percentile for his age (Sth gradelevel). This performance again speaks to the slowness with which he processes 300 information as well as difficulties learning. This is consistent with the reports of Petitioner being a “slow” learner. Watson Dec., Exh. 122. 662. Likewise, on the California Verbal Learning Test, Petitioner wasslowto orient to a new task. Watson Dec., Exh. 122. 663. An examination ofthe test results and Petitioner’s school records show that he was a very slow student who clearly had a problem processing information. Herelated that he never did adequately learn to write in cursive writing and this appears in part related to difficulties with fine motor control. His awkwardness, whichisstill evident, is not simply a function of his size but rather reflects subtle brain dysfunction. Watson Dec., Exh. 122. 664. There are several possible sources for Petitioner’s neuropsychological impairments. He was exposed prenatally to alcohol and other drugs, both known to cause permanentbrain damagein developing fetuses. He wasat risk genetically for psychiatric illness and limited intelligence. His grandmother was diagnosed with an affective mood disorder. Both his grandmotherand his ereat-grandmother had problems with alcohol and both of his parents were chronic drug abusers. Moreover, all of his maternal aunts and uncles had very serious problems with drugs. Petitioner also experienced losses of consciousness from accidents. Any of 301 these factors can cause impairments or brain damage andall may exacerbate . preexisting mental disabilities. 665. Petitioner’s limited intellectual functioningas it relates to verbal comprehension and processing speed, combined with the unrelenting ‘traumatic experiences he survived as a child, had devastating consequences for him during his developmental years. Understress, and especially in circumstances whenthereislittle time to think, the functional impact of his disabilities increases andheisless likely to think rationally and logically, to understand the long-term consequencesofhis actions, to reflect and weigh the impact of his responses, and/or to develop alternative strategies to follow instead of impulse-driven actions. Watson Dec., Exh. 122. 666. Petitioner’s Wechsler Adult Intelligence Scale — 3 Processing Speed Index score of 73 places him at the 4th percentile and also indicates that he is very slow to process information. He will not perform well under time pressure. This ability to process information is well below any of the other test indices from the WAIS-3. This phenomenon ts often found in people with neuropsychological dysfunction. Watson Dec., Exh. 122. 667. Petitioner suffers from mild generalized neuropsychological impairment. As manyofthe abilities assessed by these tests are not lost over time, the damage to Petitioner’s cognitive functioning occurred at an 302 early stage in his life. These impairmentsare brain-related deficits. 668. In addition, polysubstance abuse would have exacerbated the effects of Petitioner’s impairments to a significant extent. At the time of his arrest in 1992, the impactofhis polysubstance abuse would have been Slgnificantly more marked thantesting is able to identify this many years later. Watson Dec., Exh. 122. 669. A neuropsychological assessment of Petitioner reveals evidence of organic brain impairments. Such findings would have been made had Petitioner been evaluated by a competent neuropsychologistat the time of Petitioner’s trial in 1992-1993. Psychological Evaluation 670. Trial counsel was informed by Dr. Stephen Pittel that he believed relevant mitigating evidence could be substantiated by investigation into at least the following areas: Petitioner’s alcohol and substance abuse; review of the records of Dr. William Spivey who had previously treated Petitioner; pre-sentence reports or other medical records; psychiatric reports; information regarding Petitioner’s father’s death from cancer; school records and investigative reports; interviews with teachers, counselors, family members and peers who maybeable to provide additional information; investigative reports, and interviews, if necessary, 303 regarding Petitioner’s mother’s heroin addiction, and his grandmother’s role in his psychological development. Pittel Dec., Exh. 100. 671. Althoughtrial counsel ignored Dr.Pittel’s suggestions, regarding them as a demand for too many records, Cannady Dec., Exh. 59, such investigation would have producedsignificant results. Dr. Roderick Pettis, a psychiatrist, whose expertise is as a clinical psychiatrist, specializing in psychopharmacology, forensic psychiatry and psychodynamic psychotherapy, has examined Petitioner, reviewedrelevant records and other documents, reviewed the Declaration of Dr. Craig Haney detailing Petitioner’s social history, and the Declaration of Dr. Dale Watson. 672. A qualified psychiatrist would have been able to testify to at least the following compelling evidence in mitigation, placing Petitioner’s social history in the context of the psychological ramifications that enured for Petitioner. 673. Dr. Pettis found during his interviewsof Petitioner that Petitioner exhibited some outward manifestation of anxiety which appeared in the form of pressured speech and other body language, but he was extremely cooperative and pleasant during the interviews and earnestly attempted to answerall questions put to him. Petitioner’s movements and 304 behavior were somewhatchildlike, although at times he showed a remarkable insightinto his life and his limitations. Pettis Dec., Exh. 99. 674. Petitioner is genetically predisposed to alcoholism, substance abuse and mental disease by his family history. As a young child he exhibited significant signs of depression, which went undiagnosed and untreated. Depression, as well as his predisposition to substance abuse,led Petitioner to self-medicate with alcohol, heroin, and Valium. Pettis Dec., Exh. 99. 675. Petitioner’s childhood and adolescence experiences were affected and shapedbyatleast the following factors: (a) his aforementioned genetic predisposition to substance abuse, and mentalillness; (b) his organic brain impairment; (c) his life-long history of depression; (d) his extraordinarily dysfunctional family, the chronic neglect he experienced and his mother’s absence; (e) the violence of the community in which helived; and (f) the failure of the public institutions to assist him in any meaningful way. Pettis Dec., Exh. 99. 676. Petitioner’s deficits and impairments were worsened by the situation in which he lived, which was markedby violence, chaos, and chronic neglect. Petitioner was never able to get the attention he needed which would haveassisted him in overcoming his problems. There was 305 never adequate or appropriate intervention by anyinstitutionto assist Petitioner in obtaining the help he desperately sought to modify his developmental, emotional, mental, psychological and educational problems. Pettis Dec., Exh. 99. 677. At the time of the commission ofthese crimes, Petitioner was tragically overwhelmed by his drug abuse and his emotional problems. The sudden occurrence of unplanned violence on the part of Antoine Johnson, a person Petitioner had cometo trust and rely upon, propelled Petitioner into a state of extreme mental and emotional disturbance which governedhis actions at that time. Pettis Dec., Exh. 99. 678. Petitioner’s judgment was and is impaired. His social judgment is compromised. He does have an awarenessofhis own emotional limitations and capabilities. Because of his emotional and cognitive impairments, he wasat times able to foresee some of the problems or difficulties he would develop in his life, but was unable to determine how to avoid them. Pettis Dec., Exh. 99. 679. Dr. Pettis found Dr. Watson’s findings, see Paragraphs 652 to 669, consistent with his own conclusions. Pettis Dec., Exh. 99. Predisposition to Drug/Alcohol Abuse And Mood Disorders 680. A review ofthe social and family history of Petitioner prepared 306 by Dr. Craig Haney reveals a family that for generations has a documented history of alcoholism, intra-familial physical abuse, violence, criminality and mentalillness, which not only genetically predisposed Petitioner to certain mental illnesses but also greatly impaired his ability to develop to his full potential. Pettis Dec., Exh. 99. 681. Prior to birth, Petitioner was exposed in utero to cocaine and heroin, the drugs his mother was addicted to. Pettis Dec., Exh. 99. 682. Petitioner appears to have suffered as many as five head injuriesprior to the time of the crimes in question. Pettis Dec., Exh. 99. 683. The in utero exposure, combined with the head injuries that Petitioner suffered, put him at risk for the organic brain impairments which he now has. Pettis Dec., Exh. 99. 684. Both Petitioner’s maternal grandmother, Irma Surrell, and maternal great-grandmother, Geneva Jacobs, known as “Ms.Jacobs” abused alcohol. Pettis Dec., Exh. 99. Petitioner’s father, Dicky Boyette, and Petitioner’s mother, Marcia Surrell, were drug abusers throughout their adolescence and adult lives. Pettis Dec., Exh. 99. All of Petitioner’s maternal aunts and uncles were drug and alcohol abusers. Pettis Dec., Exh. 99. 685. Irma Surrell, Petitioner’s maternal grandmother, was diagnosed 307 as suffering from Major Depression overa period ofat least four years. Michael Surrell, Petitioner’s maternal uncle, has also been diagnosed as suffering from depression. Marcia Surrell, Petitioner’s mother, has been diagnosed assuicidal. It is likely that other membersofthis family suffered from mood disorders that went undiagnosed becauseof their alcohol and/or drugaddiction and the lack of social services provided. Pettis Dec., Exh. 99. 686. It is common for persons with mooddisordersto “self- medicate” with drugs and alcoholto alleviate the symptomsoftheir diseases such as over-whelming anxiety and depression. The high comorbidity of alcohol and substance abuse disorders with mooddisorders cannot be explained merely as the chance occurrence of two prevalent disorders. Self-medication for mood symptoms is commonplace but the diagnosis is often missed. Pettis Dec., Exh. 99. 687. At the time of Petitioner’s trial in 1992-1993, it had been well established in the mental health community for manyyears that children born into families that either abused drugs and/or alcohol and/or where mooddisorders were present were at greater risk to develop these same problems. Pettis Dec., Exh. 99. 308 Early Development 688. The mother-child interaction determines the organization and quality of thought and overall development of the child. Every mother creates a unique environmentfor her child. The nature ofthe early psychological environment created by the mother significantly influences the social, emotional, and cognitive development of her children. The developmentofintelligence progresses from immediate experience toward the development of understanding symbols and abstract concepts. When the mother suffers from a lack of normal emotional ranges the psychological environmentof the hometendsto be seriously impoverished ‘and the child’s cognitive developmentseriously restricted and damaged. Symbolic representation whichplays a crucial role in the developmentof language andthe higherlevels of thinking is lacking and thus normal development does not occur. Pettis Dec., Exh. 99. 689. As alittle boy, Petitioner was not shielded from what was going with his parents and he was exposed to Dicky and Marcia’s fighting andto their drug use. Pettis Dec., Exh. 99. 690. Being the child of substance abusers, Petitioner was predisposedto have an increased vulnerability to visual problems inadequate fine motor coordination, heightened levels of motoractivity and 309 attention deficits, particularly in structured interactions and learning problems. Pettis Dec., Exh. 99. 691. Older children of heroin-addicted parents suffer from emotional and cognitive problems; they express feelings of anxiety and insecurity and are characterized by shorter attention spans thantheir peers. They have increased problems in school and behavioral and adjustment problemsat a greater rate than their peers. They are morelikely to be involved in delinquent behavior and drug and alcohol abuse and have poor impulse control. Pettis Dec., Exh. 99. 692. Low self-esteem, anxiety, and depression are associated with being raised in an addicted family. Children of substance abusing parents often lack basic trust and ability to becomeattached as they hope for parental love and nuturance;as parents live in continually shifting states of intoxication and abstinence, the child learnsself-care that interrupts developmentof intimacy andresults in isolation and depression. Positive supportive trusting relationships are helpful in improvinga child’s self- image. Early interventionis critical. They need support to reduceisolation, depression and anxiety. Pettis Dec., Exh. 99. 693. The consequences for Petitioner of beingraised for his first two years primarily bysuch an over-whelmed, depressed, dysfunctional and 310 absent individual was devastating. Pettis Dec., Exh. 99. Life Long History of Depression 694. Petitioner was genetically predisposed to mood disorders. Indeed, Petitioner has suffered from a lifelong depressive condition. The documentation of Petitioner’s life-long depression is overwhelming. Pettis Dec., Exh. 99. 695. A predisposing factor to depression may be an inadequate, disorganized, rejecting, and chaotic environment. Depression is morelikely to occur if biologic relatives have Major Depression,as in Petitioner’s case. Pettis Dec., Exh. 99. 696. The essential feature of depression is a chronic disturbance of moodinvolving depressed mood. Children with depression may exhibit low energyor fatigue, low self-esteem, poor concentration or difficulty making decisions, and feelings of hopelessness. Children with depression may also exhibit a decline in school performance, restlessness and pulling or rubbing hair, skin or clothing, outbursts of complaining, shouting or crying. They also will exhibit social withdrawal, isolation, sad mood, low motivation and overeating or anorexia. Emotionality is also a common feature of depression. Petitioner exhibited all of these characteristics. Pettis Dec., Exh. 99. 311 697. Mood disorders tend to be chronic if they begin early. Childhood onset may be the most severe form ofmood disorder. Children suffering from depression are likely to have such secondary complications as alcohol and substance abuseas did Petitioner. Pettis Dec., Exh. 99. 698. Functional impairment associated with a depressive disorder in childhood extendsto practically all areas of the child’s psychosocial world: school performance and behavior, peer relationships, and family relationships — all suffer. Pettis Dec., Exh. 99. 699. Petitioner’s feelings of being completely overwhelmed by his inability to affect his environmentwere, in part, due to his depression. Petitioner felt that he was always pulled back into isolation and depression. Pettis Dec., Exh. 99. 700. Petitioner was a sensitive, clumsy, shy boy who wasostracized becauseofhis obesity throughouthis life. Not only was his obesity probably the result of his depression, it caused him to becomethe object of ridicule, even more isolated from his peers and tragically, more depressed. Pettis Dec., Exh. 99. Universally Regarded as “Slow” 701. The neurological tests done by Dr. Watson do not confirm that Petitioner is mentally retarded. They do confirm that Petitioner has mild 312 organic brain impairment. Thus, while Petitioner does have learning disabilities, it is more likely that the universally held view of Petitioner as “slow”is, in part, a function of the debilitating effect of life-long neglect and depression had on Petitioner’s ability to function, and the secondary effects of prenatal exposure to drugs, than it is an indication of his actual intellectual functioning. Pettis Dec., Exh. 99. 702. Petitioner was well aware that others viewed him as “slow” whichcontributed to his lackof self-esteem and his depression. Pettis Dec., Exh.99. 703. It is instructive that the emotional pressures on Petitioner were so profound as to cause everyone who camein contact.with him to believe that he wasseriously intellectually impaired to the point of retardation. Pettis Dec., Exh. 99. Impact of Mother’s Absence 704. One of the most profound influences in shaping Petitioner’s mental health and emotional state was his mother’s extraordinarily erratic, unreliable behavior and her extended absencesfrom his life. Pettis Dec., Exh. 99. 705. Petitioner never really got to know his mother. Petitioner never saw his mother more that twice a year. She would rarely call. She would 313 only just show up. Petitioner has no memory ofliving with his mother. His mother was neverthere for family pictures, school events, or family events. Pettis Dec., Exh. 99. 706. Petitioner’s mother would sometimes come and get him and take him to visit with her. Butwherever they went, there were always other drug addicts like her boyfriend Sonny Hill around. Marcia would take Petitioner to drug houses. The visits usually ended early becausethe police would raid the house or a fight would break out. Marcia would then call Petitioner’s grandmother, Irma, to comeandget Petitioner. Pettis Dec., Exh. 99, 707. Once the police came and useda battering ram to get into the house. Petitioner and his mother escaped over a fence. After this incident, Petitioner’s grandmother would not let Petitioner go with his mother any more. He did not see or hear from his mother for about a year after this and had no idea where she was. This really hurt him because he wanted to be with her and was very worried about her. Pettis Dec., Exh. 99. 708. Extended separations and absence of a maternal figure can create much anxiety which is overwhelmingto the child who desperately tried to connect with its mother. The lackof contact and not knowing his mother’s whereabouts certainly adversely impacted Petitioner’s ability to 314 socialize with others and concentrate in school. These factors were in turn exacerbated by Petitioner’s depression. Pettis Dec., Exh. 99. 709. Marcia would always makea lot of promises to Petitioner about spending time with him or giving him moneyso he could do somethinglike join the Cub Scouts or go to a baseball game. Marcia would almost always let Petitioner down.. When Marcia would finally show up to do something with Petitioner, it would usually end up being a quicktrip to a fast food restaurant. Pettis Dec., Exh. 99. 710. Petitioner had been abandonedby both his parents. Not only did he have to cope with feelings of abandonmentandthe resulting low self-esteem but he was confronted by what others said to him abouthis situation. Pettis Dec., Exh. 99. 711. While Petitioner ached for his mother and was devastated by her failure to be involved in any wayin his life, the consequences for him whenshe did come around were horrific. Petitioner saw his mother shoot herself up with heroinand began crying so hard he urinated on himself. At one point Marcia’s armshadcysts all over them from shooting up, so she started shooting heroin into her neck. Pettis Dec., Exh. 99. 712. Petitioner remembers that his mother would occasionally come to his grandmother’s houseto attempt to quit drugs. In one instance, 315 apparently when Marcia wasattempting to quit heroin, Petitioner saw his mother screaming and picking at her skin because she believed there were maggots crawling all over her. However, rather than actually kicking her habit Marcia later stole guns from Irma Surrell’s closet, threw them out the windowto a waiting confederate andleft, apparently to sell the guns for drugs. On other occasions, Marcialiterally stole Petitioner’s clothes, presumablyto sell them to get drug money. Pettis Dec., Exh. 99. 713. Yet, in Petitioner’s eyes, the worst thing his mother ever did wasto tell him on numerousoccasions that she was coming to get him to visit and then fail to show up or evento call. After a while Petitioner just would not even get ready. The “worst days” of Petitioner’s life were seeing his mom on drugs and days when his mom let him down. Pettis Dec., Exh. 99, Petitioner’s Father and Other Male “Role Models” 714.. Petitioner never had any positive male role models. 715. Petitioner’s father, Dicky Boyette was as absent a parent as Marcia Surrell. In fact, since Petitioner did not perceive his father to be as impaired as his mother, it was even more painful for him that his father neverplayed anyrole in his life. Whatis clear from the numerous declarants whohavediscussed this subject is that, on the few occasions that 316 Dicky Boyette did come around, he only sought to humiliate his son for his perceived inability to live up to the image of manhoodthat Dicky required. Pettis Dec., Exh. 99. 716. Petitioner’s father would tell him, “You end up being a fag and Pll kill you,” whenhedid notlike how Petitioner was acting. When Dicky came around, he would be very tough on Petitioner and would call him a sissy, twist his ears, or slap him to try and toughen Petitioner up. Dicky was a great athlete in high school and he wanted Petitioner to be good in sports, too. Petitioner was always very slow and uncoordinated, and Dicky would get upset with Petitioner when he didn’t catch a football or run fast enough, even though Petitioner was very young. If Dicky was throwing a football to Petitioner, he would just keep throwing harder and harder,yelling at Petitioner to catch it. Dicky would keepfiring the ball at Petitioner, even after it hit him in the face and nose, and Petitioner would end up crying. Pettis Dec., Exh. 99. 717. Dicky would on occasion walk downthestreet in front of the house where Petitioner was living. Almost without fail, Dicky would be gone without ever stopping by to see Petitioner. Petitioner would see Dicky walk by the house and he would cry when his father would notvisit him. SometimesPetitioner did not cry but would get very quiet and sort of stare 317 off by himself. Pettis Dec., Exh. 99. 718. Petitioner’s feelings regarding his father were also confused by what he heard about his absent father. Pettis Dec., Exh. 99. 719. Petitioner fantasized throughouthis life about goingto live with his father or his father’s family. While he did not wantto live with his mother because she was a drug addict, Petitioner does not seem to acknowledgethat his father was a drug addict too. This may be because he saw him so infrequently or because it was necessary to his emotional survival to retain this rescue fantasy. Either way, one of the things that made him the saddest was “not being with myfather’s side of the family.” This wish can only be appreciated as a reaction to the complete isolation and loneliness Petitioner experienced living in the chaos and violence of the Surrell household. Pettis Dec., Exh. 99. 720. The other “male role models”in Petitioner’s life were notrole modelsat all and in fact had profoundly negative influences on Petitioner. Theyall led criminallife styles, abused drugs and alcohol, were physically violent with the womenin their lives and treated Petitioner with contempt and disdain even whenhe wasjust a little boy. Pettis Dec., Exh. 99. 721. Michael Surrell, Petitioner’s uncle wholived with Petitioner at various times in Irma Surrell’s house, was always very hard on Petitioner 318 becausePetitioner was not tough. Michael would say, “He cries like little girl.” Pettis Dec., Exh. 99. Chronic Neglect 722. The chronic neglect suffered by Petitioner, which extended well beyond his absent drug-addict parents, cannot be overstated. From birth to the time his mother “lost” him in Sacramento, throughout his childhood and adolescence, Petitioner was a boy whobelongedto no one, who belonged nowhere, and who felt completely alone almost every day of his life. He did not believe that anyone really cared about him. He got no attention because there were so manypeople in the house. Petitioner knew if he was gone from homehe would not even be missed. Pettis Dec., Exh. 99, 723. Petitioner also craved a “real family.” The Surrell household in whichPetitionerlived all of his life consisted for the most part of people, literally more than a dozen, who wererelated to each other but never functioned as a “family” in the way most of us understand the term. There were few family events. People did not look after one another. Adults constantly verbally and physically abused each other. Literally everyone wasin and outofjail or prison. Pettis Dec., Exh. 99. 724. Petitioner’s isolation and loneliness was exacerbated by the 319 fact that he lived primarily with two older women who were the only people other than Petitioner who consistently resided in the house. While obviously well-intentioned, they really could not understand whatPetitioner was going throughnorrelate in any significant way to what his life outside of their house waslike. It also meant that for much ofhis life he was the _only male in the house on a consistent basis which,in itself, presented enormouspressures on Petitioner. Pettis Dec., Exh. 99. 725. Although IrmaSurrell clearly loved Petitioner, she had so many competing problemsthat there waslittle energy or attention left over for him. Moreover, since Irma worked constantly prior to her stroke, Petitioner was very much alone. Pettis Dec., Exh. 99. Adolescent Destabilizing Events 726. Petitioner had so few friends and no real family that when he did make a emotional connection with someone, that connection took on such major importancethat the loss of the connection was devastating to Petitioner. Pettis Dec., Exh. 99. 727. One such relationship was between Petitioner and Paris - Robinson, an older boy wholived across the street from Petitioner in ‘his Oakland neighborhood. Pettis Dec., Exh. 99. 728. Paris was like a “big brother”to Petitioner. Petitioner was 320 devastated when Paris died. Paris’s death left Petitioner even morealone. Pettis Dec., Exh. 99. Moveto Berkeley and Petitioner’s Father’s Death 729. In 1985, Irma Surrell wasforcedto file for bankruptcy and the Surrells lost their house on E. 28th Street in Oakland. They moved to Boise Street in Berkeley, California. This move was extremely traumatic for Petitioner. While Petitioner experienced profound neglect in Oakland, he at least had a sense of neighborhood. Now,at theage of twelve, Petitioner was forced to begin again. Such a move would be traumatic for any young adolescent, but for someoneas insecure and depressed as Petitioner, it was devastating and marked the beginning of Petitioner’s downwardspiral. Pettis Dec., Exh. 99. 730. Tragically, just as Petitioner was forced to leave Oakland,his father suddenly died. Petitioner’s father died just at the time at which he hadstarted school at Malcolm X Elementary in Berkeley. Pettis Dec., Exh. 99, 731. Although Dicky Boyette was never a real father to Petitioner, Petitioner continued to harbor a fantasy that his father would come and reclaim him from the Surrells. Petitioner would then live with the Boyettes in a “real family.” Dicky’s death shattered this fantasy and plunged 321 Petitioner further into depression. Pettis Dec., Exh. 99. 732. In 1982, Irma Surrell began to seek help from Dr. William Spivey, apparently referred by her physician Dr. Wade Sherwood. Dr. Sherwood wasan internal medicine specialist associated with Highland Hospital who hadbeen treating Irma for years and recommendedthat she get further treatment for her depression. Pettis Dec., Exh. 99. 733. Dr. Spivey determined that Irma wassuffering from severe depressionat the time of her referral and had already been taking Valium for several months. Whenhefirst met Irma, she was so severely depressed that she had no desire to venture out of her house. She had problems sleeping at night and suffered from frequent crying spells. Pettis Dec., Exh. 99. 734. Dr. Spivey diagnosed Mrs. Surrell as suffering from Major Depression recurrent unspecified and Adjustment Disorder with depressed mood. Based on her severe depression, he attempted to assist Mrs. Surrell in securing Disability Insurance from the Department of Social Services. He believed that Mrs. Surrell’s emotional problems were such that she was unable to work. After one year of treating Irma, Dr. Spivey foundthat she wasstill chronically depressed and was often unable to leave home and pursue normalinterests. Her affect was affected by thoughts andfeelings of 322 helplessness. Pettis Dec., Exh. 99. 735. From 1982 through 1985, Dr. Spivey reported that Irma continued to suffer from Major Depression and that her prognosis was poor to fair; her condition had not changed. As late as February 1986, she had not recovered enough to return to work. Pettis Dec., Exh. 99.; Spivey Dec., Exh. 111. 736. Thus, for over at least a four-year period when Petitioner was a young adolescent, his only emotional support was being provided by a woman whoherself was so severely depressed that she was virtually unable to function. Pettis Dec., Exh. 99. Irma Surrell’s Stroke 737. Petitioner began to seriously deteriorate after his move to Berkeley. He was in a new school where he was even moreostracized and socially isolated. His father had died. The Surrell household was a shambles and Irma was severely depressed and taking drugs and drinking alcohol. Pettis Dec., Exh. 99. 738. Although Irma Surrell had few resources to cope with the problemsfacing her family and certainly hadlittle left over for her grandson,she was throughoutPetitioner’s life the one caregiver who wasat least consistently living in the same house with Petitioner and who,byall 323 accounts, very much loved her grandson. Pettis Dec., Exh. 99. 739. Tragically, in 1990, when Petitioner most needed her, Irma Surrell suffered a massive stroke right in front of Petitioner. Pettis Dec., Exh. 99. 740. Irma was on the telephonetalking to her son Michael, who had called her from jail. Suddenly she fell backward andhit her head. Petitioner had to call the paramedics. Pettis Dec., Exh. 99. 741. After Irma’s stroke, Petitioner’s Aunt Celeste took over running the house. Irma couldn’t take care of herself anymore-- she couldn’t move oneside of her body and her speech was slow andslurred -- and Celeste thought she was going to be in charge of the house. While Celeste wanted everyoneto think that she was taking care of everything, she was not really any help to Irma or anyoneelse, especially Petitioner. Celeste wantedto be in chargeofall the moneyin the house, even though she was not working herself. Instead ofa real job, Celeste was selling cocaine from the house. The same people would stop by the house on their lunch breaks and they would go into Celeste’s room and close the door for a long time. Everyone would comeout looking like they had just gotten high. Both Petitioner and his cousin Tamika Harris foundit difficult under the circumstances to view Celeste as an adult from whom they should take 324 instructions. Pettis Dec., Exh. 99. Alcohol/Drug Abuse 742. Drug abuseand alcoholism are commonresponsesto the mentalillnesses and environmental stressors suffered by Petitioner. In Petitioner’s situation, as mentioned earlier, this was compoundedbya’ genetic predisposition. Petitioner’s polysubstance dependence began in his early youth. He drank alcoholstarting in elementary school and quickly graduated to snorting heroin and taking pills such as Valium in an effort to ward off the intense feelings of rejection, abandonment, shame, humiliation, low self-esteem, fear, terror, anxiety, loneliness and depressionthat hefelt in response to the abuse and neglect in his life. As he becameolder, he developed an addiction to alcohol and drugs, especially heroin and Valium. It has been well documented that children who are subjected to severe trauma and abuse are morelikely to turn to drugs and alcoholto “self- medicate” in an attemptto dull the pain they are experiencing. Thisis also true of children and adolescents like Petitioner who suffer from depression. Pettis Dec., Exh. 99. 743. Chronic use of heroin and drugs like Valium in the normal functioning brain results in sufficient impairment to renderthe user unable to conform their sense ofreality and behavior to normative standards. The 325 combination of Petitioner’s impaired cognitive function with polysubstance abuse in the amounts documented here compoundsthis effect. Watson Dec., Exh. 122; Pettis Dec., Exh. 99. 744. Petitioner’s drinking, as early as age 10 or 11, was clearly an attempt to self-medicate his depression and trauma. He would goto school drunk as early as the 6th grade. Hehadto repeat the grade. Pettis Dec., Exh. 99, 745. Petitioner knew he was drinking too much but he drank something every day — whatever was around — even though hegot sick to his stomach ever time he drank — but he just kept drinking. Pettis Dec., Exh. 99. 746. Petitioner also turned to heroin. Heliked heroin best becauseit put him to sleep and that way he could escape from his circumstances. It wasdifferent from any other drug he had used before. He found himself dozing off in the middle of a conversation. After the first time hetriedit, he tried it again the next day, even thoughit had made himsickto his stomach. Pettis Dec., Exh. 99. 747. At somepoint in his late teens, Petitioner switched from heroin to pills, primarily Valium and codeine. Atfirst two pills would knock him out, but eventually he wastaking pills in larger and larger quantities. Pettis 326 Dec., Exh. 99. 748. Valium and other benzodiazepines are commonlyself- administered by drug addicts, sometimes to ameliorate withdrawal from heroin, alcohol or other drugs. Pettis Dec., Exh. 99. 749. While these drugs can be prescribed for panic attacks, anxiety, depression, and insomnia, current and ex-drug abusers may havedifferent subjective responsesto psychoactive drugs than non-drug abusers. Heroin addicts use Valium and other benzodiazepinesto self-medicate opiate withdrawal symptoms. Pettis Dec., Exh. 99. Chronic Exposureto Violence 750. Petitioner grew up in an isolated, threatening and dangerous community. At risk himself, he also experienced the loss of close friends and family members. This chronic exposureto violence left Petitioner even more depressed, chronically anxious and traumatized. He was under intense psychological distress. Pettis Dec., Exh. 99. 751. Even for a child and adolescent growing up in a crime-ridden neighborhood, Petitioner’s exposure to violence was extraordinary. It beganin his first few years when he lived with his mother and her drug- addicted boyfriends in what amounted to crack houses. It continued in the household of his grandmother Irma Surrell, where he witnessed his male 327 relatives physically abusing the women with whom theylived and bore children, his grandmother and great-grandmother’s gun collections, and his grandfather’s gun collection, part of which he keptat the Surrell house. Pettis Dec., Exh. 99. 752. Petitioner’s exposure extended beyond his immediate family to his closest friends. His best friend Paris, whom Petitioner idolized, was chased andafter an altercation following which Paris jumped from a roof for escape,lost his leg. Paris was ultimately shot and killed in a separate incident, which was devastating to Petitioner. Pettis Dec., Exh. 99. 753. On another occasion, Petitioner was walking past a store in Oakland when a man stumbled past him after being shot in the knee. The man was bleeding and trying to run away. Petitioner has been reported as terrified by the sight and almost hyperventilating on the spot. On another occasion, Petitioner was staying with one of his grandfather’s other families whenthe next door neighbor’s car was shot up with bullets. As soon as the shooting started, Petitioner hit the floor, probably believing that someone had cometo kill one of his relatives. Pettis Dec., Exh. 99. Petitioner was also “jumped” and beaten up on occasion. Pettis Dec., Exh. 99. 754. The violence in the Oakland community during the time Petitioner lived there is well known andcertainly well documented. Pettis 328 Dec., Exh. 99. 755. Petitioner’s reaction to this exposure to violence is evidenced by his well-documented aversion to guns. Pettis Dec., Exh. 99. 756. Petitioner’s responseto his drug addiction, and chronic exposure to violence, must be viewed within the context of Petitioner’s life. HadPetitioner come from anything resembling a stable family situation, had he not suffered from depression, had he not been chronically neglected throughouthis life, or had he not had the mental deficits which profoundly impairedhis ability to succeed, this exposure might have hada less dramatic impact. It is well established that children whoare at risk,as _ Petitioner clearly was, can beassisted by positive factors in theirlives. Petitioner had none. Pettis Dec., Exh. 99. 757. Thus, Petitioner’s reactions, from a clinical standpoint, were tragically predictable. Petitioner did not want to repeat what he had seen in his own family — an endless cycle of crimes and violence — yet he saw no wayout. He neverreceived assistance from probation although he repeatedly requestedit right after he wasfirst placed on probation. Hefelt that no one understood the dangerousnessorthe seriousnessofhis situation on the streets. Pettis Dec., Exh. 99. 758. Petitioner was exposed to an extraordinary level of community 329 violence. Witnessing violence at the community level resulted in heightened anxiety, stress, depression, self-blame and hopelessness. The psychological and cognitive impact included an increased likelihood of acting out andself-destructive behaviors. Pettis Dec., Exh. 99. Stressors at the time of the crime 759. In the months preceding the crimesat issue in this case, Petitioner’s life was spinning out of control. He had recently been released from jail where he served time for a drug-related offense and was determined not to go back because he knew that the next time he was: caught he would be sent to state prison. He was attempting to continue school, which for the first time in his life, he felt he was succeedingat, but hadlittle money to even commute to the schoolfacilities. He was essentially homeless since his grandmother had decided that he was old enoughto take care of himself. He was self-medicating with prescription drugs, including Valium and codeine, as well as continuing to abuse alcohol, he had come underthe influence of Antoine “Twan” Johnson and his mother’s physical situation was seriously deteriorating. Pettis Dec., Exh. 99. 760. Petitioner originally began going to the house on Cole Street, a “crack house” because his mother wasliving there but also because it was 330 closer to his school, Adult Day. He sometimesstayed there particularly if he did not have the bus fare to return to Berkeley. Pettis Dec., Exh. 99. 761. Petitioner first metAntoine “Twan”Johnsonat the Cole Street house. Twan treated Petitioner as a youngerbrother, felt sorry for him, believed he was emotionally really young, and, therefore paidfor small things like haircuts. Pettis Dec., Exh. 99. 762. Ironically, Petitioner was enjoying schoolfor the first time. He was doing relatively well and believed that school would help him stay away from thestreet — at least for a little. When he got out ofjail, he wanted to do something different with his life even if it was “onlya little different.” Pettis Dec:, Exh, 99, 763. He felt there was no wayoutofthe life he was leading. He tried a numberof things including telling his probation officer Mei-Ling Pastor that he wantedto get out of the area. Hetried to stay off of the streets at least part of the time. Pettis Dec., Exh. 99. 764. Petitioner was extremely concerned about his mother. Her stump left from her amputation was badly infected. Hefelt she needed to go to the hospital. Pettis Dec., Exh. 99. Petitioner’s desire to get Marcia to the hospital appears to be two-fold. First, he was genuinely concerned for her health and safety. Marcia’s leg smelled so badly that you could smell it 331 even when you werenot in the room with her. Pettis Dec., Exh. 99. 765. Second, Petitioner’s experience with his mother had shown him that his mother wasonly a “mother” when she wasin the hospital. It was the only time she was concerned and asked Petitioner what he was doing in his life. They could be alone together then — without Sonnyor any ofthe people at the Surrell house. Pettis Dec., Exh. 99. 766. One day during the time when Marcia wasliving at Bettye Jackson’s house on Cole Street, she paged Petitioner numeroustimes on his beeper. She had never donethis before. Apparently, Marcia had gotten into an altercation with her boyfriend Sonny. Bettye’s niece Tanyatold Petitioner that Sonny had hit Marcia with a stick. Although Petitioner urged Marcia to go andstay at Irma’s house, Marcia refused to leave the crack house. Pettis Dec., Exh. 99. 767. In the past, Petitioner had repeatedly witnessed Sonny and others beating and abusing Marcia. Now Petitioner went after Sonny. Petitioner had seen him hurt Marcia when he was young. Now he could do something about it. But his mother did not seem to wanthis help. Petitioner believed his mom feared Sonny. Pettis Dec., Exh. 99. 768. When Petitioner went to the Cole Street house, Garry Carter would be there. Petitioner really did not know much about Garry. He was 332 really there to see his mother. She was completely “drugged out” and her leg wasliterally putrefying. Marcia wouldsit in the living room ofthe Cole Street house all day doing nothing andoften crying. Petitionerfelt helpless and angry because his mother was getting worse, and she would not go to the hospital. He felt like he was “dealing with a kid.” He would also get upset because he knew the people who were giving herthese drugs, one of whom was Garry Carter. Pettis Dec., Exh. 99. 769. Before the shootings, Bettye Jackson had kicked Garry Carter out of her Cole Street house because he wasstealing from the people that stayed there. Garry had stolen things from Bettye and Kenya’s rooms. Even though they both had put locks ontheir doors, hestill broke in. Before the shootings, Bettye had found it necessary to pull a gun on Garry because she was so afraid of him. The whole neighborhood was complaining about him. Pettis Dec., Exh. 99. 770. Garry would also take Marcia’s money and push her around physically. Petitioner was awareof this. Petitioner also believed that Garry had raped his mother. Pettis Dec., Exh. 99. 771. Garry usedto bully Petitioner and talk down to him. Antoine Johnson witnessed Petitioner sitting in the living room crying and very upset. Whenheasked Petitioner what was the matter, Petitioner told him 333 that Garry was picking on him and his mother. Antoine Johnson believes that Petitioner was probably too scared to go after Garry the way he himself would have. Pettis Dec., Exh. 99. 772. On the day of the shooting, Kenya called Antoine and told him that Garry had stolen more stuff from her. Antoine told her to pack her things and he would comeand get her from Bettye’s house. Petitioner and Antoine Johnson went to the Cole Street house to help Kenya moveher stuff. Kenyastill had stuff in the clothes dryer when they got there so they had to wait for them to be done. Kenya’s sister Jasmeen wasalso there. Petitioner and Antoine sat down on the couch while waiting for Kenya’s clothes to dry. Donald movedto the seat on the other couch only because he wanted to make a phonecall and that was where the telephone would reach. Pettis Dec., Exh. 99. 773. Antoine Johnson kept a gun in the couch in the living room at Bettye’s house because it was the only place in the house he could leave the gun without having Garry take it. Petitioner did not know Antoine had the gun in the couch. On the day of the shootings, Garry cameto the house and let himself in. Antoine had a brief argument with Garry before the shooting started. He shot Garry five times while in the living room of Bettye’s house. The shooting had nothing to do with drugs. Pettis Dec., Exh. 99. 334 774. Petitioner had no idea that Antoine had a gun. | After the shooting, Petitioner was really upset and agitated, so Antoine gave him some Valium and codeine to calm him down. Pettis Dec., Exh. 99. Dr. Pettis’s Conclusions 775. There is a clear connection between the events of Petitioner’s youth and his behavior as a young adult. Petitioner was the victim of ceaseless emotional neglect, chronic criminality and environmental chaos. From his earliest childhood, he suffered from depression and trauma. This history of childhood trauma, mental illness, neglect, deprivation and the absence of any resources with which to cope profoundly impacted the developmentofhis adult functioning. Children are far more likely to develop normally with mentally healthy functioning and appropriate social responsibility if they grow up in environments thatare safe, stable, disciplined and nurturant. Pettis Dec., Exh. 99. 776. Petitioner’s life since birth has been a profoundly painful experience. Hebeganlife genetically predisposed to mental illness, drug addiction and alcoholism. He experiencedvery little that was positive in his homelife, having been essentially abandonedbyboth his parents almost at birth. He was unsuccessful in school and the object of ridicule among his peers. Pettis Dec., Exh. 99. 335 777. The untreated effects of childhood mentalillness clearly influence adult interpersonal relationships. The various continuingeffects of these illnesses also severely negatively effected Petitioner’s ability to deal with stress. Exceptional stressors often trigger in a person such as Petitioner the perceived loss of control and helplessness, fear of impending intense pain, dissociation and efforts to reduce or avoid the source of the stress. Petitioner’s behaviorat the time of the crimes in question reflected the innerstate of stress and turmoil that he was experiencing. Pettis Dec., Exh. 99. 778. Although environmental deprivation, parental neglect, and the chronically violent and criminal atmosphere that surrounded him contributed to Petitioner’s disabilities, they are not solely to blamefor his deficits. He was born pre-disposed to mental illness and substance abuse. He was always considered slow, and his disabilities went untreated. He suffers from organic brain disorder. The etiology of Petitioner’s mental deficits are genetic, organic and environmental. His disabilities are long- standing and leave him with impaired judgment, compromisedintellectual functioning, and a greatly reducedability to control his actions, conform his conduct to the requirements of the law andthink logically and rationally when heis in stressful and potentially complex decision-making situations. 336 He does not perceive events around him realistically, and he becomes mentally confused easily. He is easily dominated by others. Petitioner’s mental impairments clearly leave him less able than a normalperson to understand and conform his conduct to the law. Pettis Dec., Exh. 99. 779. Petitioner experienced psychological abuse and neglectin the formsofrejection, humiliation, belittling, maladaptive socialization, parental failure to supervise, and a chaotic and criminalistic home environment. Pettis Dec., Exh. 99. 780. Petitioner learned to withdraw andto live a solitary life, even though he came into contact with numerouspeople daily. He had very few lasting relationships. Petitioner was clearly depressed and apparently so throughout his childhood, adolescence and early adulthood. Petitioner’s alcohol and drug abuse are a commonwaychildren and adolescents cope with depression. Pettis Dec., Exh. 99. 781. One method Petitioner adopted very early on to cope with this situation wasthe use of alcohol and drugsto block out the pain. Hedid his best with his extremely limited capabilities to cope and contend with the realities of his homelife. As with many abused andrejected children, he desperately sought out his mother even more but to no avail. His chronic substance abuseis fully consistent with his history of childhood physical 337 and psychological abuse. Pettis Dec., Exh. 99. 782. Petitioner’s self-esteem was low and had beensince early childhood. Hefelt stigmatized by his lack of parents, his parents’ drug abuse, his father’s preference for his other children and his own awkwardness and size. Pettis Dec., Exh. 99. 783. The psychological abuse Petitioner experienced, whether intentional or simply the product of severe neglect, went on essentially on a daily basis. No one comforted him or consoled him; no one soughtto prevent or lessen the abuse. Pettis Dec., Exh. 99. 784. Petitioner’s history of neglect, depression, emotional problems and impaired mental functioning,left him incapacitated and overwhelmed in the face of a suddenstressful situation. Pettis Dec., Exh. 99. 785. Petitioner did not form the specific intent required to commit first-degree murder. At the time of the offenses, Petitioner could not plan, weigh considerations, and carry out a design of action and course of conduct aimedat achieving a specific goal. Accordingly, Petitioner did not premeditate and deliberate. Petitioner’s emotional impairments combined with his drug use precluded him from being aware of the duty imposed on him not to commit acts which involvedthe risk of grave injury or death and precluded formation of the mental state to understand meaningfully his 338 actions and consequences. Pettis Dec., Exh. 99. 786. Petitioner did not at the time oftrial and does notat present suffer from an Antisocial Personality Disorder.®' “The essential feature of Antisocial Personality Disorderis a pattern of irresponsible andantisocial behavior beginning in childhood or early adolescence and continuing into adulthood.”Criteria for a diagnosis of Antisocial Personality Disorder include a requirementthat there be evidence of a Conduct Disorder before age fifteen and that the individual continue a pattern of irresponsible and antisocial behavior from age fifteen into adulthood. Pettis Dec., Exh. 99. 787. Petitioner plainly does not meet those criteria. Petitioneris universally described as slow and depressed. He is the child who was picked on, not the bully who used his size and weight to intimidate others. He wasneglected, lonely and withdrawn,not the leader breaking rules and inspiring other children to follow his lead. There is no evidence of a reckless disregard for others in his past. Rather, Petitioner’s past is marked by hislife-long concern for his drug-abusing and neglectful mother and his yearning for a father who never paid him anyattention. Adults who at °! Trial counsel wasineffective for failing to present evidence to refute the prosecutor’s repeated references to Petitioner being a sociopath. 6? American Psychiatric Association: Diagnostic and Statistical ManualofMental Disorders, Third Edition Revised. Washington D.C., American Psychiatric Association, 1987, pp. 342-346. 339 various points in Petitioner’s life took him in consistently describe a polite, quiet, respectful young man whopresented no problems. Pettis Dec., Exh. 99, Institutional Adjustment 788. Trial counsel failed to consult an institutional adjustment expert even after the prosecutor raised the specter of future dangerousness in her opening statement andeffectively implied through defense expert Dr. Rosenthal that Petitioner was likely to become a memberofthe prison gang the Black Guerrilla Family and to kill people in prison. With the possible exception of the prosecutor’s repeated assertions that Petitioner had committed an “execution murder” and a “cold-blooded killing,” no issue was presented with more vehemence as the compelling reason why Petitioner deserved to be sentenced to death. Thus, it was extremely important for the defense to investigate, prepare and present evidence to refute these assertions. Trial counsel unreasonably failed to investigate, prepare andpresent such evidence, even thoughit was available to them. They knew or should have knownthat Petitioner’s history pointed directly to the conclusion that he was a person who would not be dangerousin confinement. 789. Had counselinvestigated, prepared, consulted and presented 340 such an expert, the following highly relevant mitigation would have been available. 790. Wheneverpossible and in the appropriate case,it is important for defense counselto at least consider affirmatively addressing the issue of positive future adjustment to prison. This is because capital jurors may become concerned about whether a capital defendant will pose a future danger and, therefore, whether by sentencing him to prison rather than death they are possibly endangering others.°? Haney Dec., Exh. 71. 791. In conjunction with such testimony, and in addition to whatever can be said directly about a defendant’s potential for positive adjustment, jurors need reassurance that maximum security prisons not only punish inmates but also maintain adequate security, protect against escapes, ensure the safety of the persons who work there, and have effective mechanisms for controlling the behavior of even highly disruptive prisoners. In cases in which capital defendants have something positive to contribute to prison life (such as work skills, religious commitment, artistic talent), in addition to simply not posing a problem,that too should be highlighted. This kind of information provides the jury with a sense of the positive contributionsthat a life sentence can accomplish and, conversely, one of the things that might 6 See, Claim A regarding the jurors’ consideration of extrinsic evidencedirectly relating to their concerns about future dangerousness. 341 - be lost by a-death verdict. Haney Dec., Exh.71. 792. There were several factors arguing in favor of including such testimony on Petitioner’s behalf. One, Petitioner was a good candidate for positive prison adjustment. He had not been a gang memberdespite living in two communities where gangs flourished. His prior crimes andlifestyle were nonviolent, and he had no history of aggressive confrontations with authority figures. Forexample, although his actual performance in school was marginal, he was not a behavior or management problem, had no record of fights or assaults in school, and was generallyregarded as someone who waseasy to get along with. Indeed, there were a number of school officials who had contact with Petitioner who hadpositive things to say about-him, despite his poor academic record, and some whofelt very sorry for him. Similarly, although he had not performed particularly well on probation, he did not have difficult or problematic relationships with his probation officers. Thus, Petitioner lacked the sort of confrontational history with teachers and probation officers that might be expected to translate into problems with prison authority figures. Haney Dec., Exh.71. 793. Once the prosecutor implied that Petitioner’s future in prison would be extremely troublesomeandlikely dangerous, it was incumbent upon defense counsel to rebut that allegation. 342 794. An expert on prison adjustment and prison conditions could have addressed the important distinction between prison andjail. Thatis, such an expert could have explained to the jury that, given the high security classification score that Petitioner’s convictions in the instant case ensured he would receive upon entering the California Departmentof Corrections, he would besent only to one of California’s maximum security (“Level IV”) prisons. These prisons are the harshest, most safety- and security- mindedin the state. Haney Dec., Exh. 71. 795. Thus, even if the prosecutor had introduced testimony about an alleged altercation in jail that she claimedPetitioner was involved in (something that she alluded to in her cross examination of Dr. Rosenthal but neverintroduced testimony about™), an expert could have explainedto the jurors that, unlike the Alameda County jail facility in which hehad been housed, Level IV prisons in California were places designed for very long- term, ultra-secure confinement, where a much greater emphasis on security, surveillance, monitoring occurs and in which many more mechanismsfor controlling and punishing the behavior of inmates had beeninstituted. Theseinstitutions were certainly adequate to the task of safely controlling Petitioner’s behavior and, in the unlikely event that he did misbehave, had 4 See RT 191; but see Claim E re actual facts of this incident. 343 numerous disciplinary procedures and sanctionsat their disposal with which to effectively respond, including isolating him in what were then some of the most severe disciplinary segregation units anywherein the country. Haney Dec., Exh. 71. 796. In addition, once the specter of prison gangs had been brought into the trial, it behooved defense counsel to consult with experts on this issue and consider seriously whether such a person should becalled to testify. Such an expert would very likely have informed defense counsel, and the Boyette jury if asked, that Petitioner was not a probable candidate to join a prison gang, in part because he had grownupin areas of Oakland and Berkeley that were dominated by neighborhood gangs and had not previously become a gang member. Further, Petitioner’s characteristic pattern as a “loner,” of staying by himself, was notlikely to change in prison. At one point, Dr. Rosenthal appeared to be suggesting precisely that defense counsel should have consulted an expert on gangsor prison gangs. He said on cross examination: “I’m not a student of prison gangs. There are people who study those — sociologically study those groups. I don’t do that and I don’t have much information about what these gangsare like.” RT 1899. Because defense counsel chose not correct the misleading impression created through the prosecutor’s cross-examination of Dr. 344 Rosenthal, the jury was not given much information about what such gangs were like either. The only “information”that arose in the course of thetrial came in the form of the prosecutor’s frequently expressed but inexpert opinions. Haney Dec., Exh. 71. Institutional Failure 797. Trial counselalso failed to present evidenceofinstitutional failure. Hadtrial counsel obtained and reviewed Petitioner’s probation records and/or interviewed Mei-Ling Pastor, he would have discovered evidencethat Petitioner was failed by the systems that were supposed to help him. 798. Trial counsel could also have presented rich information about the failure of the Berkeley school system to provide for Petitioner’s needs. Counsel’s Failures were Prejudicial Witnesses Presented at Trial 799. The defense penalty phase presentation had no thematic structure other than that Petitioner was a follower and functioned as a twelve year old, presentedlittle or no evidence which could even be termed mitigating, and most importantly, was inaccurate and misleading. Thus, whatshould have been the presentation of evidence which created the basis for an argumentthat Petitioner be allowedto live, actually was inapposite, 345 andleft the jury with the false impression that Petitioner, although he was the child of a drug addict, had lived in a loving home with numerous parental substitutes who soughtto help him even to the extent of taking him to a psychologist. Once the main “theme”presented by trial counsel, that Petitioner was a follower, had backfired and had been used bythe prosecutor as aggravation, counselstill failed to do anythingto dispel the aggravating evidenceor present an accurate picture of Petitioner’s actual circumstances. 800. There were numerous avenuesthat reasonably competent counsel could have taken either separately or in conjunction to present a compelling and accurate case in mitigation. Even a minimalinvestigation would have uncovered many powerful mitigation witnesses. If counsel or counsel’s investigator had simply gone to Petitioner’s former neighborhood in Oakland, many of the mitigation witnesses whose testimonyis detailed above would have been uncovered. 801. A legal investigator who conducted muchofthe investigation for present counsel drove to the blocks of East 28th Street and 12th Avenue in East Oakland, while standingon the curb in front of 1130 East 28th Street and looking in a 360-degreecircle, he could see the following residences in plain view: 2738 12th Avenue, Eldora Robinson, 1136 East 346 28th Street, Helen Thomas, 1200 East 28th Street, Jeanette Deran, 1202 East 28th Street, the Dennis family, and 1220 East 28th Street, Eloyce Packer. Moreover, while standing in front of 1130 East 28th Street, he could also see Bella Vista Elementary School. Sussman Dec., Exh. 118. 802. Signed declarations containing powerful mitigation evidence were subsequently obtained from Eldora Robinson, Helen Thomas, Jeanette Deran, Eloyce Packer, and Anita Dennis, who were interviewedin their respective homes. After visiting the Bella Vista Elementary Schooloffice, the investigator confirmed that Vivian Jefferson had, in fact, been the Principal of Bella Vista during the years of Petitioner’s attendance. Vivian . Jefferson’s name had beenlisted as a contact on some of Petitioner’s records. SussmanDec., Exh. 118. 803. In addition to knowledge about Petitioner and his family, the witnesses were able to provide information about the neighborhood and surrounding area of Oakland. Sussman Dec., Exh. 118. 804. Each of the declarants would have been excellent witnessesat Petitioner’s trial. Eldora Robinson, Helen Thomas, Jeanette Deran, Eloyce Packer, and Anita Dennis haveall lived in and around the neighborhoodof East 28th Street and 12th Avenuesince Petitioner’s family lived there. Ms. Robinson and Ms. Thomasare currently employed. Ms. Deran, Ms. Packer, 347 and Ms. Dennis areall retirees. Vivian Jefferson is also a retiree. Each witness provided specific recollections of Petitioner and theyall clearly continue to care about him. They wereall easily reached and very willing to provide the necessary time to discuss Petitioner and his family. Sussman Dec., Exh. 118. Witnesses Presented at Trial Family Members 805. Six membersofPetitioner’s family testified at trial. The total numberoftranscript pages necessary to documentthe information these witnesses presented to the jury in mitigation was less than twenty pages. 806. Reasonably competent counsel would have prepared the lay witnesses they anticipated presenting so that they would be aware of the kinds of information that would provide evidence of the mitigating themes counsel intended to argueto the jury. 807. The inaccurate picture presented by the defense could have been dispelled with only the witnesses presented had counsel prepared these witnesses to testify. All of the family witnesses whotestified” have stated 6° Petitioner was unable to obtain a declaration from IrmaSurrell dueto her severeillness by the time Petitioner was appointed counsel. Petitioner was also unable to obtain a declaration from Petitioner’s aunt Charmaine Surrell. Charmaine Surrell has been seriously addicted to cocaine since before her testimonyat Petitioner’s trial. Celeste Surrell Dec., Exh. 113. 348 that counsel failed to meet with them or prepare them for their testimony. Trial counsel failed to make even minimalefforts to prepare lay witnesses for their penalty phase testimony. The results were prejudicial. 808. Had counsel reasonably prepared these witnesses, they would have beenable to present the following mitigation evidence. 809. Tamika Harris, Petitioner’s cousin, has stated that: “At the time of my testimony in Maurice’s trial, I had no idea what a penalty phase was. I had no idea what Maurice’s attorney would ask me. I have reviewed my testimony and while I believe all of my answers were completely honest,I do not believe my testimony gave an accurate picture of my family and whatlife was like for Maurice growing up.” Tamika Harris Dec., Exh. 76. 810. Tamika, who was only 17 yearsold at the time oftrial, was neverdirectly contacted bytrial counsel or reasonably preparedfor her testimony. Moreover, she was given the responsibility of finding witnesses to testify to save her cousin’s life without any guidance as to how to accomplish this task. I believe that my grandmother, Irma Surrell, was the person whotold me a few daysbefore I testified that Maurice’s attorneys wanted me in court. My grandmotheralso told me that Maurice’s lawyer wanted meto find a teacher who mightalso be willing to cometo court. Since my grandmother asked me,I contacted Ernest Posey, who had been Maurice’s teacher 349 in the past and was my teacherat the time. Mr. — Posey said he would be willing to do whatever he could to help Maurice. I was given no instructions or guidance exceptto find a teacher. Tamika Harris Dec., Exh. 76. 811. Tamika has further stated that: Myonly contact with Maurice’s attorneys before my actual testimony was a short meeting with one of them outside the courtroom. I was toldthat I had to wait outside until I wascalled to the stand. When I was asked questions by Maurice’s attorney, I gave very short answers, since J didn’t know how much information he wanted. For example, when I was asked about my father, Bobby,andhis relationship with Maurice, the attorney asked, “Did your father kind of adopt Maurice?” I said, “Yeah.” Although myfather tried to be good to Maurice and sometimestried to include Maurice when my father and I did things together, “adopt” wouldn’t exactly describe their relationship. Myfather had spent time in jail and he never lived with Maurice while Maurice and I were growing up. If Maurice’s attorney or investigator had explained to me whata penalty phase was, andif they had actually interviewed mepriorto testifying, I would have been very willing to tell them more about Maurice, our family, and our experiences growing up and would have knownto provide more complete answers whenI testified. Tamika Harris Dec., Exh. 76. 812. Tamika Harris could havetestified to at least the following 350 relevant, powerful mitigation evidence. 813. Tamika is Petitioner’s cousin. Her mother, Charmaine, and Petitioner’s mother, Marcia, were sisters. She was born on May 19, 1975, in Oakland, California. Tamika Harris Dec., Exh. 76. 814. Her parents, Charmaine Surrell and Bobby Harris, met when they were teenagers. They got to know each other because her mother’s family, the Surrells, were living on East 28th Street and her father’s family, the Harrises, were living nearby on 12th Avenue. Tamika Harris Dec., Exh. 76. 815. Tamika lived with her parents when she waslittle. Her parents split up when she was aboutthree years old. From the age ofthree until she wasin high school, she mostly lived with her grandmother, Irma Surrell, her great-grandmother, Geneva Jacobs, and Petitioner. Her mother stayed with her at Irma’s house from time to time, as did her aunts Celeste and Marcia, and her uncle Michael. In 1982, when she was aboutsix years old, her mother married a man named Ronnie Adams. At that time, her mother, Ronnie, and his daughters, Denee and Chanel, moved in with the other people living at East 28th street. Tamika Harris Dec., Exh. 76. 816. After Tamika began living with Irma, she would spend most of her summersand holidays with her dad’s family, the Harrises. Even when 351 her mother Charmainewasnotliving with herat Irma’s, shestill saw both of her parents pretty regularly. Tamika Harris Dec., Exh. 76. 817. Her grandfather, Eugene Surrell, was never around much when she was growing up. Hedid not really play any importantrole in their family. Eugene might comeby for a few hours or maybe a few days, but he never stayed for very long. She does not believe that her grandparents were ever officially divorced, although Eugene had been married to two other womenbesides Irma. Eugene also had other children from other relationships. In addition to spending time with his other families, Tamika’s grandfather also spent some timein jail while she was growing up. Tamika Harris Dec., Exh. 76: 818. Eugene’s brother, Van Surrell, would sometimes come around their house when Tamika and Petitioner were young. She remembersthat he would drive up on his motorcycle. Van has been to prison on numerous occasions and Tamikabelieves that he had aboutfifteen children with a few different women. Tamika Harris Dec., Exh. 76. 819. Tamika hasstated that Irmaraised Petitioner because her aunt Marcia and Dicky Boyette, Petitioner’s parents, were both drug addicts. Marcia was almost always high whenever she cameby the house. Tamika does not have many memories of Marcia when she wasnot on highor sick 352 from drugs. Marcia would usually cometo eat their food or borrow some money. If Marcia ever stayed over, she wouldn’t usually stay more than a few days. Tamika does not have a clear memory of Dicky because she was very young when he was around, but she remembersbeingtold that he was just as addicted to drugs as Marcia. Tamika Harris Dec., Exh. 76. 820. She does recall that Dicky didn’t spend muchtime with Petitioner when they were growing up. She recalls that Petitioner would get very excited wheneverthere was a chance that he would get to hang out with his dad, but those plans did not usually occur. “Dicky died when Maurice was aboutthirteen years old and I don’t think that Maurice met a lot of his father’s family until Dicky’s funeral. I remember Maurice methis half-sister LaMonicafor the first time at the funeral. When Maurice was old enoughto travel around by himself, he would sometimes go to Dicky’s mother’s houseto see that side of his family. I don’t remember any family from Maurice’s father’s side ever coming around the house to see Maurice.” Tamika Harris Dec., Exh. 76. 821. Tamikaalso recalled that: Like my mother and aunt Marcia, my aunt Celeste used a lot of drugs. When I was young, I remember Celeste and Marcia bringing some of their friends around the house. They used to hang out with low life criminals and drug dealers. My mother warned me about a guy 353 a ll ee ee a ee a nicknamed Chicago, who Celeste went out with for a while. My mother told me that Chicago wasa rapist and that I should stay away from > him. Even though my mothertold me those things about Chicago, he was alwayslet in to our house. When! gota little older, my aunt Celeste told me how she usedto steal from people by dropping sleeping pills or some kind of drugs into their drinks so they would get knocked out. She also told me how she had spent time in jail for selling drugs. Until I was about ten years old, I didn’t know my aunt’s name wasCeleste. She had always gone by “Red,” so I always called her Auntie Red. Celeste told me that Red washerstreet name for whenshe washustling and dealing. Tamika Harris Dec., Exh. 76. 822. Tamika hasalso stated that, “My uncle Michael always had a violent temper. Michael usedto get into a lot offights -- either yelling and screaming or with hisfists -- and I rememberthe police having to come around our block to break things up. When I was sevenoreight years old, Michael socked my mother-- his ownsister -- in her face and busted her lip.” Tamika Harris Dec., Exh. 76. 823. Tamika remembers Marcia’s boyfriend Sonny Hill. With regard to Sonny Hill she hasstated: Sonny’s family lived on Foothill Boulevard in East Oakland. Everyone alwaystalked about Sonny and how he andhis entire family were into selling and using drugs. Sonny was a criminal and he got my aunt Marcia to work 354 _Min,atten cote(alla, scams with him. Marcia didn’t come around the house very often, but once in a while she and Sonny would stop by my grandmother’s house. They never stayed very long, though. Maurice would sometimes go with Marcia to Sonny’s house on Foothill, even thoughourgreat- grandmotherthought it was too dangerousat Sonny’s house. I don’t think Maurice really cared that it was a drug house, since it was one of the few times Maurice actually got to do something with his mom. For Maurice, going to Sonny’s meant spending time with his mom, even if it was just to watch television while Marcia and everyoneelse got themselves high. Tamika Harris Dec., Exh. 76. 824. Tamika was also awareofPetitioner’s relationship with Paris Robinson, a neighborhood boy whoacted as a big brotherto Petitioner: Maurice would sometimes spend the nightat Eldora Robinson’s house, who lived a few houses away on 12th Avenue. Eldora’s son, Paris, was a few years older than Maurice. Paris wassort of like a big brother to Maurice. Maurice used to get picked on a lot and Paris was oneofthe only people who would look out for Maurice. In the mid-1980s, when we were still living on East 28th Street, Paris jumped off of a building while being chased by a gang of kids. Paris messed up his leg very badly andit had to be amputated. I remember Maurice being real upset when he heard about Paris and how helost his leg. A few years after we moved from East 28th Street to Berkeley, Paris wasshot and killed only a few blocks from where we had grown up. Maurice was very shaken up and upset by Paris’ death. 355 Tamika Harris Dec., Exh. 76. 825. Tamika remembersthat Petitioner was always “slower” than the other children: Maurice was always slowerthan kids his age. Kids younger than Maurice would pick on him, either because of his weight or because he was slow. I am over two years younger than Maurice, but I still had to protect him. I rememberthat Maurice washeld backat least one grade at Bella Vista because he wasn’t doing well in school. I don’t believe that Maurice waseverplacedin anyspecial education classes or programsat Bella Vista when we were going to schoolthere, although I am not sure if the school even had any such thing. Tamika Harris Dec., Exh. 76. 826. Tamika was aware of habits that Petitioner exhibited which were unusual: Maurice used to have a habit of licking hislips. Maurice would besitting by himself or staring out a window and he wouldbelickinghislips. Maurice licked his lips so muchthat the skin around his mouth was raw andit formeda ring. Maurice also used to suck his tongue. Maurice would do these things while spacing out or watching television and it never seemedlike he noticed he was even doingit. Tamika Harris Dec., Exh. 76. 827. Tamika recounts the Petitioner’s reaction to corporal 356 punishment: Maunice and I used to get our spankings and whippingsfrom our great-grandmother, who we called “Mother.” Mother used a switch to whip — us and she had namesfor the types of switches she used: Dr. Green and Dr. Brown. Depending on what we did and what we were wearing, Mother would either pick a green switch or a brown switch from a tree or bush outside. Maurice used to get disciplined more than me, especially at school. Mother would sometimes smack Maurice in his head with her hand or a spoon in the cafeteria if Maurice got into trouble for anything. Maurice would usually cry after Mother smacked or whipped him. Tamika Harris Dec., Exh. 76. 828. Tamika has stated the following with regard to Petitioner, Dr. Spivey and her grandmother’s depression: When Maurice was about eleven years old, my grandmothersent him to see a therapist named Dr. Spivey. She was worried that Maurice had trouble concentrating and that he was depressed. Maurice ended up seeing Dr. Spivey for a couple of years. {I believe my grandmother, Irma, had been seeing Dr. Spivey for herself before Maurice started going. I think my grandmother was seeing Dr. Spivey about depression. My grandmother would often keep herself shut in her room by herself with the door closed for long periodsoftime. Tamika Harris Dec., Exh. 76. 829. Tamika Harris hasrelated the following regarding the steep 357 decline her family suffered when they were forced to move to Berkeley. WhenI wasstill little, my grandmother owned a liquor store for a couple of years. I believe my grandmotherlost her store because my grandfather was goingto trial for murder around that time and my grandmotherhelped pay for his attorney with every dollar she had. My grandmother went into someserious debt because of my grandfather. A little while after my grandmotherlost her liquor store, we moved from East 28th Street to Berkeley. My great-grandmother, Ms. Jacobs, movedto the Dennis family’s house, wholived next door to us on East 28th Street. I think my great-grandmotherstayed close to the school because she neededto keep herjob at Bella Vista because my grandmother wasn’t working anymore. My great-grandmother would come visit us in Berkeley on the weekends before she finally moved in. Things got even more out of hand for our family after we moved to Berkeley. Dicky, Maurice’s father, died soon after we moved and Maurice seemed to have a real hard time dealing withit. I don’t think Maurice ever saw muchofhis dad, but Maurice would always talk about how he hoped his dad would quit using drugs andstart spending more time with him. Marcia was also getting worse because of her heroin problem, although westill didn’t see too muchofher. Tamika Harris Dec, Exh. 76. 830. Other of Petitioner’s relatives moved in with them after they moved to Berkeley. 358 Whenwefirst moved to Berkeley, my aunt Celeste was off living with other people, but would show up at the house when she needed moneyora placeto stay. My uncle Michael had been married to Regina “Gina” Smith during the early 1980s, but by the time we movedto Berkeley, his marriage was . falling apart. They had two kids together, Ronnell and Raquel, but Gina was a drunk and she and Michael would fight a lot. Gina moved home to Cleveland, Ohio, for a few years during the 1980s and Michael followed herthere. After we moved to Berkeley, Gina left Michael for good and ended up movingto New Jersey. Michael cameto live with us in Berkeley after Ginaleft him. Michael was a mess after he and Ginasplit. Michael was smoking crack and was in and out of the house, always asking people for money. Maurice and Marlon, Michael’s oldest son, used to complain that Michael would steal their sneakers or ask them for money. Marlon, who is about one year older than Maurice, would live with us from time to time. Marlon’s mother and other grandmotherlived up in Richmond and he would mostly live up there with them. In the late 1980s, Michael started living with a woman named Lynette Daniels, who wasa full blown crackhead. When I was about fourteen years old, | rememberthat Michael stabbed a man in a fight that had something to do with Lynette. I heard Michael stabbed the guy thirty- seven times. Michael ended up goingto prison, although he was eventually paroled and came back to live with us in Berkeley. Less than one year after Michael was paroled from prison, he wasarrested for killing a man in fight. The 359 fight happenedjust around the corner from my grandmother’s house in Berkeley. Tamika Harris Dec., Exh. 76. 831. Petitioner and Tamika started drinking alcohol when they were in the 5th or 6th grade. Although Petitioner is only approximately two and a half years older than Tamika, he was held back when they wereat Bella Vista elementary school, so they were only one grade apart. They were going to Malcolm X elementary school in Berkeley when theystarted drinking. Tamika’s step-father, Ronnie, worked for a wine distributer and he would always bring home lot of wine, usually in small bottles. Tamika and Petitioner would pour some wine into cups and drinkit on their way to school. Tamika has said, “I wouldn’t see much of Maurice during the day, but I know that I would sometimesfeel sick from drinking in the morning. Maurice and I would also drink wineafter school. I remember getting sick from drinking after school and throwing up.” Tamika Harris Dec., Exh. 76. 832. According to Tamika,“Petitioner wasn’t the kind of kid who started trouble on his own. Everyonefigured that any trouble Maurice was getting into was because of the people he was around. I remember our grandmother was upset with Maurice about him getting arrested, but she wasnot the type of person who would come down hard on Mauriceor play the “tough love” game.” Tamika Harris Dec., Exh. 76. 360 833. Tamika and Petitioner attended school together in Berkeley. “In Berkeley, Maurice and I both went to Malcolm X elementary school before going to Willard junior high school. Maurice had a difficult time at Willard and was held back another grade. I believe Willard had special education classes when we were goingthere, but I don’t think Maurice was ever placed in one. Like at Bella Vista and Malcolm X, Maurice didn’t do well at Willard. Maurice seemedpretty lost with the school work.” Tamika Harris Dec., Exh. 76. 834. Following the move to Berkeley, Marcia’s drug use worsened. Tamika wasa witness to the devastating impact this had on Petitioner: Myaunt Marcia’s drug use continuedto get worse and worse after we moved to Berkeley. Marcia started spending a lot more time in the hospital because her health was so bad from the drugs. Oneyear I think Marcia brokeher leg about twelve times. Apparently the drugs were causing her bones to becomevery brittle and her leg would break very easily. Marcia was high or coming off heroin almostall the time, so she would fall or trip a lot. Gangrene eventually set into her foot and she hadto get part of her leg amputated. I think Marciafirst had a piece of her leg amputated when Maurice was about seventeen years old. Marcia shot her heroin intravenously and after she had herleg amputated, she started shooting up through the stump of her leg. Another time, when Marcia wasin the hospital because of heart problems, she had someone -- Sonny, probably -- shoot heroin directly into the [V hook-up that the 361 doctors had been using for her heart. Before Marcia even turned forty years old, she had burned out most of her veins and had needle tracks all over her arms, feet, and neck. Marcia becameso desperate for drugs that she once sneaked into the house in Berkeley that Maurice and I were living in and stole somestuff out of our grandmother’s closet. Maurice worried about his mom all the time and when my mother or aunt Celeste would get angry with Marcia,it would make Maurice very upset. Tamika Harris Dec., Exh. 76. 835. Petitioner’s cousin Marlon is approximately one year older than Petitioner but according to Tamika, Marlon “always seemed mucholder.” Tamikahasstated: Maurice really looked up to Marlon and when Marlonstarted getting into dealing drugs when he was a teenager, I think Maurice started to follow down that road. Marlon would sometimes use Maurice’s name and date of birth whenhe wasstopped by the police, so Maurice started getting into trouble for stuff he never did. I remember Maurice got real upset when hefinally figured out what Marlon was doing, but there wasn’t anything he could tell Marlon. Tamika Harris Dec., Exh. 76. 836. Tamika experienced problems in her immediate family after the moveto Berkeley. My mother, Charmaine, Ronnie, and Ronnie’s two daughters, also moved to Berkeley after we left East 28th Street. They lived with us at my 362 grandmother’s house on Boise Street for a while before getting their own house together. Ronnie drove a truck for a wine distributor, so he was often out on the road for a couple days at a time. My mother and Ronnie lived a couple of houses down from us on Boise Street until they moved to a place on 6th Street in Berkeley. I moved with them to 6th Street. It wasn’t too long after we movedthere that it became clear my mother was smoking crack. There was a man named Emmitt Gardner, who was a drug dealer, who lived upstairs from us. My motherstarted hanging out with Emmitt in his apartment and smoking crack with him after we movedin. One day, my motherjust didn’t come home. She left us completely. No one in the family saw my motherfor days, until she finally showedup at my grandmother’s house on Boise. I guess you could say that my mother moved backin with Irma after that, but she was still popping in and outall the time. My mother and Ronnie split up for good a few months after that. Tamika Harris Dec., Exh. 76. 837. Tamika hasrelated the crisis the family experienced after her grandmother had a stroke: After my grandmother, Irma, moved from East Oakland to Berkeley, she worked at a wholesale clothing company. Irma worked until August 1990, when she had a major stroke. Irma spent a few monthsin the hospital and was almost completely paralyzed. She wasn’t able to speak for a while and had to undergo therapy to regain her speech. My grandmother’s stroke was very upsetting and painful for everyone in our family. While my mother and aunts and uncle 363 were off getting into trouble and ruining everybody’s lives, my grandmother was always the one person trying to keep it together. After my grandmother had herstroke, Celeste came backto live in the house. Irma couldn’t take care of herself anymore -- she couldn’t moveoneside of her body and her speech was slow andslurred -- and Celeste thought she was going to be in charge of the house. While Celeste wanted everyone to think that she was © taking care of everything, she wasn’t really any help to Irmaor anyoneelse, especially Maurice. Celeste wanted to be in charge ofall the money in the house,all the while she wasn’t working herself. Instead of a real job, Celeste was selling cocaine out of the house. The same people would stop by the house on their lunch breaks and they would go into Celeste’s room and close the door for a long time. Everyone would come out looking like they had just gotten high. It was hard taking orders from someonelikethat. Tamika Harris Dec., Exh. 76. 838. Tamika has also recounted the problems she and Petitioner experienced after her grandmother’sstroke: I got kicked out of Berkeley High School when I was seventeen years old. I wasstill having trouble dealing with my mom’ssituation, and everything that was happening with my grandmotherand her stroke only made it worse. I wasn’t going to classes and I flunked out. I was sent to East Campus Continuation, whichis affiliated with Berkeley High. Maurice had gone to East Campusa few years before I got there. By the time I was at East Campus, 364 Maurice had pretty much stopped going to school. He had been arrested a couple of times for dealing drugs and had spent about two short stints in jail. Maurice and I still spoke on the telephone, but we saw less of each other because I was living with myfather’s family in East Oakland. Maurice was spendingless time in Berkeley -- Celeste had actually kicked him out of the house -- and was basically homeless. I believe it was aroundthis time when Maurice mentioned to me that he wanted to move to New Jersey and live with our Aunt Gina. Maurice washaving a hard time dealing with everything -- family, the people he hungoutwith,his mother-- and I think he wantedto get out of California. I believe that Maurice felt his only chance wasto get far away from all these bad influences. Tamika Harris Dec, Exh. 76. 839. Eugene Surrell, Petitioner’s grandfather, also testified at the penalty phase. Surrell’s testimony gave the false impression to the jury that he was very involvedin Petitioner’s life, acted as a firm, but kind, disciplinarian and saw Petitioner on a regular basis. To the contrary, Surrell has stated: I testified at Maurice’s trial, although I do not recall who specifically asked me to appear in | court. I had very minimal contact with Maurice’s lawyers and investigator and no one from Maurice’s defense prepared me for my testimony. WhenI first took the stand, I didn’t havetheslightest idea what my testimony would do for Mauricein his trial. I have since 365 reviewed mytestimony from Maurice’s trial, and while my answers wereall true, I don’t believe that my testimony gave an accurate picture of Maurice or our family. For example, Maurice’s attorney asked me whether I was active in trying to raise Maurice. I answered, “Yes,” but was not given the opportunity to explain that I was unable to see Maurice everyday, or sometimes even every week or every month, becausefor all of Maurice’s life I didn’t live with him or his grandmother. I also would have explained that I had a huge number of people who depended on me for support and raising besides Maurice, including Michele, Shirley, and a numberofmyother children. In reviewing my testimony, I also notice thatI started rambling on at a few different points. I recall feeling that although [ didn’t know what wasgoing to be most helpful to Maurice,I felt that the jury was not getting a good sense of Maurice’s background. Eugene Surrell Dec., Exh. 114. 840. Surrell cannot recall having any direct contact with either of Petitioner’s attorneys except in the courtroom during his testimony. Eugene Surrell Dec., Exh. 114. Although Surrell knew Richard Hove because Hove “had helped [Surrell] during [his] own murdertrial back in the early 1980s, he and [Surrell] never had a face-to-face conversation during Maurice’s trial.”** Eugene Surrell Dec., Exh. 114. 66 Based on Hove’s prior contact with Eugene Surrell and other membersof the Surrell family, Hove was aware that the penalty presentation at Petitioner’s trial was wholly inaccurate and misleading. Nevertheless, Hove failed to present any of the evidence of criminality, 366 841. Had Petitioner’s attorneys provided reasonably competent assistance to Petitioner and prepared their witnessesto testify at the penalty phaseof Petitioner’s trial, Eugene Surrell would have related at least the following mitigation evidence: 842. Eugene wasfar from the family man portrayedat Petitioner’s trial. Eugene himself has recounted: I met Irma Jacobs when we were both living in Richmond, CA. Irmagot pregnant soon after westarting seeing each other. At that time,if you got a girl pregnant, you were supposedto marry her. Irma and I had a shotgun wedding, butit didn’t keep me from leaving. J didn’t want to have a family yet, so I went back to Oklahomaand lived with some of my family back there. A few monthsafter Irma and I were married, my aunt told me that Irma had had a son back in California. I still didn’t want to go back to California, but my aunt grabbed me around the neck andtold me to get myself back to Irma and our new son, Michael. Irma and I ended up having three other children together -- all daughters -- named Marcia, Charmaine, and Celeste. In the late 1950s, when Celeste wasjust a baby, I was arrested and charged with robbery. I served about two-and-a-half years in prison. From the very beginning of my relationship with Irma, I always spent a lot of time away from home. Myabsence waspartially due to abuse or neglect to which Petitioner was exposed becausehe had an actual conflict of interest. See Claim B. 367 the type ofjobs I kept. Since I was old enough to drive, there has always been the chancethatI would be gone from home for anywhere from one day to ten days, usually to help someoneout with a job they had going somewhereelse, or to transport someone’s car for them. Eugene Surrell Dec., Exh. 114. 843. Contrary to the false impression that was left with the jury - because ofthe lack of focus oftrial counsel’s direct examination, bythe 1960s, Eugene wasnotliving with Irmaandhisfirst family: In the mid-1960s, Irma, our kids, and Irma’s parents movedinto a house on East 28th Street. Bythat time, Irma and I weren’t really spending much time together. I started seeing a woman named Michele during the late 1960s and we ended up having two sons together, named ~ Alvon and Alton. I would stop by the house on East 28th from timeto time, but I was basically living with Michele. The times that I would visit Irma and the kids was usually when something neededto befixed,like the car or something in the house. I hoped that Irma would find someone new to spend hertime with, but she never did. A few years after Michele and I got together, we bought a house on 62nd Avenue in East Oakland. I was basically living with Michele when Maurice was born. Eugene Surrell Dec., Exh. 114. 844. Eugene was awareofthe serious problemsPetitioner’s mother and father had: 368 Marcia and Celeste were always with the fast crowd and the two of them were addicted to heroin by the early to mid-1970s. I remember they both got arrested a few times for drug related things, both in the East Bay and in San Francisco. When she wasstill in high school, Marcia started going out with Dicky Boyette, Maurice’s father. Dicky was under the influence of drugs from the first time I met him. After Maurice was born,it wasn’t too long before Irma and Ms. Jacobsstarted taking care of Maurice because Marcia and Dicky couldn’t. I’m sure that Marcia and Dicky being hooked on drugs from before Maurice was born had something to do with Maurice being so slow.It was like Maurice’s brain had no roots and there was just water sloshing aroundinside his head. The only thing Maurice was ever good at was video games. He wasn’t a goodathlete -- he would fall down ortrip over himself all the time -- and he wasn’t quick thinking. Maurice would spend a lot of his time just spacing out. EugeneSurrell Dec., Exh. 114. 845. Eugene has provided additional details about his living situation: It was around the time of my arrest on murder charges that I started living with a woman named Shirley Frazier. I still spent some time with Michele, but I started spending most of my time with Shirley and our twin sons, Brent and Bryant. I saw less and less of Irma andour kids, although I would stop by once in a while. EugeneSurrell Dec., Exh. 114. 369 846. Eugene has confirmedthe escalating crisis faced by Irma’s family after they were forced to moveto Berkeley. In the mid-1980s, Irma, her mother, and Maurice movedto Berkeley. The financial troubles that Irma and I had faced kept getting worse andthey lost the house on East 28th Street. Our kids were all over the place by the time Irma moved. Michael was married and spending some time back in Ohio with his wife. Celeste was in and out of the house, living with boyfriends or friends of hers. Charmaine was married by then to Ronnie Adams and they movedto Berkeley, too. Charmaine had broken up with her boyfriend, Bobby Harris, a few years before she married Ronnie Adams. Bobby and Charmaine had been going out since they were little, but it had always been a rocky relationship. Bobby was an extremely jealous person. He used to beat on Charmaineandstalk her wherever she went. I was glad when Charmaine and Bobbyfinally split up. Eugene Surrell Dec., Exh. 114. 847. Eugene would also have confirmed his daughter Marcia’s deterioration: Marcia only kept getting worse and worse over the years. She and Dicky had broken up when Maurice wasstill a little kid, but she eventually found a new boyfriend who was even worse. His name was Sonny Hill, and he and Marcia had a relationship that was based solely on drugs. Sonny’s mother had a house on Foothill Boulevard and they would spenda lot of time there. Irma, Ms. Jacobs, and Mauriceall used to worry about Marcia constantly. Marcia 370 would stop by the house for a minute, and then disappear for days or weeks. One time Irma and Maurice werereal upset about Marcia and wanted to see her, so I went looking for Marcia at Sonny’s house. The house wasfull of people getting high. I guess Marcia heard me coming, since I found Marcia trying to climb overa fence in the back yard to get away from me. I grabbed her down andbroughther back to Irma’s house. I think Irma and Ms. Jacobs kept Marcia locked up in the house for a few daysto try and clean her up. One day, Marciastole all the coats from the house -- including Maurice’s -- and took off. That’s how Marcia was ever since she got hooked on drugs. Marcia would sometimes bring Maurice with her to Sonny’s house. I didn’t agree with Marcia bringing Maurice with her, but it was really the only time Maurice ever got to spend with his mother. Maurice saw hell of a lot being with his mother. Besides being a drug addict, Sonny was a criminal and he would run scams with Marcia to make some cash. Marcia and Sonny would get arrested and spendtimein jail, which was usually the time when Irma or I would hear from her. Marcia’s drug addiction got worse and worse while she was with Sonny and she becametotally dependant on him for drugs. Even when Marcia started going to the hospital as her body broke down, Sonny would sneak her drugsto her hospital bed. Eugene Surrell Dec., Exh. 114. 848. Eugene was not involved in Irma’s decision to take Petitioner to see Dr. Spivey. He believes it was because Petitioner was doing so badly 371 in school. He wasalso aware that Irma saw Spivey because of her depression. Eugene Surrell Dec., Exh. 114. According to Eugene, “Maurice was almost non-functional in school. He was held backat least once whenhe wasin elementary school and just wasn’t able to comprehend even the simplest things.” Eugene Surrell Dec., Exh. 114. 849. Eugene wasalso aware of the problems that were caused for Petitioner by Irma’s stroke: A few years after Irma moved her mother and Maurice to Boise Street, Irma had a terrible stroke. Irma had always hadtrouble with her health. She had a heart attack back when,I believe, she was even forty years old. This stroke on Boise Street really disabled her. Irma could hardly walk and her speech was impaired. She would struggle to walk to the corner. Irma wentto therapy for a few monthsafter the stroke and she would haveto take a taxicab by herself because there was no one whocould take her. After Irma’s stroke, Celeste moved into the house on Boise Street. Celeste likes to run things when she’s around and she and Maurice, who wasa teenagerat the time, started butting heads. Celeste tried to take control of everything in the house, including the finances. I rememberone time Maurice got into an argument with his aunt and grandmother over something and Celeste called me to comeover. Everyone knew that Maurice would do anything I told him. He would just about faint if I raised my voice to him. WhenI gotto the house,I took Maurice out the back doorandstarted 372 talking to him. Maurice wasall upset and wouldn’t stop, so I popped him in the face with my fist. Maurice went down quickly and started crying. I told Maurice to get on his hands and knees and I made him crawlbackinto the kitchen and upthe stairs, saying he was sorry with each step. By the time Maurice was done apologizing, I saw that he had peedall over himself. Although I didn’t see him regularly, I could tell that Maurice was havinga lot of trouble after his grandmother’s stroke. Irma was the one whoraised Maurice, and her stroke completely changed things. Celeste being back in the house wasn’t a good match for Maurice, and hestill didn’t see much of Marcia. Charmaine wasalso started slip around that time. Charmaine’s marriage to Ronnie Adams wasbreaking up and she was getting involved with lot of drugs. Charmainehadstarted off as the “good”one, the daughter who wasn’t getting into trouble when she was young. Since the early 1990s, though, Charmaine has only gone downhill. Now,she’s the worstoff of all of them. Eugene Surrell Dec., Exh. 114. 850. Eugenealso knew that Petitioner was not a young man who had many friends. And he wasalso aware of the signs of depression that Petitioner exhibited: When Maurice got to be a teenager, he started hanging out more often. Maurice was never a kid with many friends, so I think hetried to tag along with other people in hopesthat they would accept him. Maurice was usually taken advantage of, however, whenever he was 373 hanging out on the street. I recall one time Ms. Jacobs got Maurice a new wintercoat, but it wasstolen from Mauricethe first day he woreit outside. Maurice’s cousin, Marlon, who spent some time with the family on Boise Street, was the opposite side of the coin from Maurice. Marlon could take care of himself and I think Maurice always envied that. Probably the only thing Maurice wasever goodat was video games,like Nintendo. Irma kept a Nintendo in the house because it was the only thing that seemed to keep Maurice’s attention and he really enjoyed playing it. I actually started worrying about Maurice when he got to be an older teenagerandstill only wanted to play his video games. I thought Maurice should be outside, hanging with his friends, but he usually stayed inside and played by himself. Eugene Surrell Dec., Exh. 114. 851. Eugene knewthat Petitioner was deteriorating just prior to the crimes: In the spring of 1992, I remember Maurice stopped by to see me onedayat the auto shop whereI wasfixing a car. I believe it was a few weeksbefore the shootings took place on Cole Street. Maurice told me that Marcia was doing real bad and he wanted meto help move her from the house she wasstaying in on Cole Street. Maurice was alwaysreal worried about his mom,but he wasn’t capable of doing anything for her by himself. I was up to my neck in work that day and I told him it would ~ have to wait. I believe Maurice came by once more to get my help, but I still wasn’t able to go help him. I wasn’t seeing Mauriceor his grandmother too often during that time,so it 374 wasn’t until a few weeks later when I saw Maurice again and he told me that something happenedat that house on Cole Street. Eugene Surrell Dec., Exh. 114. 852. Marlon Surrell, Petitioner’s cousin, attended some of Petitioner’s trial, although Petitioner’s attorneys never asked to speak with him aboutPetitioner or their family. Marlon Surrell Dec., Exh. 115. 853. As with the other family members,trial counsel made no attempt to consult with Marlon prior to his testimony. Marlon Surrell has stated: Oneday duringthe trial, someonefrom Maurice’s defense asked meto find Marcia because they wanted herto testify. I imagine the person knew I wasrelated to Maurice, but I had never spoken with him before. I finally found Marcia -- who washigh andtotally out of it -- and I brought her to court and Maurice’s attorneys put her up on the stand without even speaking to her. Marlon Surrell Dec., Exh. 115. 854. Marlon was only approached on oneother occasion bytrial counsel whentheytold him that they wanted him to testify for Petitioner. Trial counsel again failed to take even the most preliminary steps to prepare the witnessto testify. Asfar as I could tell, Maurice’s attorneys didn’t know anything about me and I didn’t know 375 what they wanted meto talk about. Since then, I have reviewed my testimony from Maurice’s trial and although my answerswereall true, I do not feel they gave an accurate depiction of Maurice or our family. For example, Maurice’s attorney asked me whether Maurice and I were raised in the same household. While I answered, “Yes,” I was not given the opportunity to explain that my mother -- and my mother’s mother -- were the ones whotruly raised me and cared for me. Even though Maurice andI lived together in the same house from time to time, I always had my motherto look after me, while Maurice did not. Another example is when Maurice’s attorney asked me whether Maurice everlistened to me when I tried to discourage him from hanging around Antoine Johnson. I answered, “No,”that Maurice hadnot listened to me. However, I did not know I could give a further explanation and was not asked any follow up questionsas to why Maurice didn’t -- or couldn’t -- follow my advice. The truth was that Maurice wanted to be with his mother, no matter what, and his only reason for hanging out on Cole Street was to see her. I would havealso liked to explain to the jury that Maurice didn’t really have any place else to go, and how protective Maurice was of Marcia and how upset he wasabouthis mother’s condition. Marlon Surrell Dec., Exh. 115. 855. If trial counsel had provided reasonably effective assistance, Marlon could havetestified to at least the following evidence in mitigation. 856. Petitioner is Marlon’s cousin. Petitioner’s mother, Marcia Surrell, and Marlon’s father, Michael Surrell, were sister and brother. 376 Marlon’s parents, Cela and Michael, separated soon after he was born. Marlon spent mostofhis life living with his mother and her motherin Richmond,California. Both his mother and grandmother always worked, so he would spenda lot of time at his grandmother’s house in Oakland. For a few years while he was in elementary school and high school, he lived with Irma on a full time basis. However, even when he stayed with Irma, unlike Petitioner, he still saw his mother and other grandmotherall the time. Marlon Surrell Dec., Exh. 115. 857. Marlon would havetestified that Eugene Surrell spentlittle time with the family and that Marlon wentto school with Petitioner, who was always very quiet and slowerthan the other children. Marlon Surrell Dec., Exh. 115. 858. Marlon would also have been able to inform the jury about the impact of Paris Robinson’s death and Marcia’s drug abuse and neglect had on Petitioner. Marlon Surrell Dec., Exh. 115. 859. Marlon also aware of the circumstancesthat led to the family’s disastrous moveto Berkeley: Grandma Irma owneda liquorstore for a couple of years when I wasstill in grade school. I rememberhearing that my aunts were taking liquor and money from the store. The store ended up going bankrupt and a few years after that, grandma Irmalost the house on East 28th 377 Street. Irma, Ms. Jacobs, and Maurice ended up moving from Oaklandto a smaller house in Berkeley. I was back living in Richmond with my motherby the time they moved to Berkeley. Marlon Surrell Dec., Exh. 115. 860. Marlon would also have given testimony about the impact of Irma Surrell’s stroke on Petitioner: In 1990, grandmaIrma hada real badstroke. My grandmother’s stroke totally changed her life and the family. The stroke paralyzed one wholeside of her body and she spent a long time in rehab and therapy. My grandmother couldn’t work and had a hard time speaking after her stroke. GrandmaIrma’s stroke was tough on everyone, but I think Maurice had the most trouble dealing with it. Celeste moved into the house on Boise Street after grandma Irma’s stroke and she and Maurice hada lot of problems between them. At somepoint, I believe Celeste kicked Maurice out of the house. Marlon Surrell Dec., Exh. 115. 861. Marlon wasalso a witness to Petitioner’s deterioration and the reasons underlyingit. Marcia’s condition kept getting worse and worse over the years. She started spendinga lot of time in the hospital and always seemedto be in pain when she wasn’t high. At one point, Marcia had her leg amputated becauseit got badly infected. Marcia shot heroin for so many years that she had track marksall over her arms 378 and legs and neck. Marcia looked so bad after a while that I didn’t ever want to touch her. Aroundthe time of grandma Irma’s stroke, Charmaine began smoking crack. Celeste stopped living on Boise Street after a little while and would come and go. My father had moved back to California after he and Gina broke up and he having a lot of problems. Myfather ended up serving twostints in prison, once for assault with a deadly weapon and anothertime for manslaughter. Mauricestarted getting into trouble after grandmaIrma’s stroke. I remember one time when Mauricecalled the police on himselfafter he got into an argument with someofthe family. The police brought Maurice to the psychiatric ward at Highland Hospital. Marlon Surrell Dec., Exh. 115. 862. Petitioner’s aunt Celeste Surrell has stated: “I did not attend very much of Maurice’s trial, but | do remembertrying to talk with Maurice’s attorneys abouthis case. I recall going to see the attorney named Cannadyat his office in San Leandro, and he gave me somecopiesofthe trial transcripts. I remember asking Cannadyif there was anything I could do to help, but I don’t recall him telling me anything.” Celeste Surrell Dec., Exh. 113. 863. Celeste has further stated that her testimonyat the trial did not reflect an accurate picture of Petitioner’s life or homesituation: 379 My mother told me that Maurice’s attorneys wanted meto testify in court on Maurice’s behalf. My mother told some other members of my family the same thing. I didn’t have any idea what a penalty phase was when I took the stand, and at no timedid I ever talk with Maurice’s attorneys or investigators about our family’s background or about what purpose my testimony would serve. I have reviewedthe transcript of my testimony at Maurice’s trial and I do notbelieve that my testimony gavea clear picture of what Maurice’s life was like. I believe all of my answers were completely truthful. However, some ofmy answers gave a false impression of our family’s situation. For example, Maurice’s attorney asked, “Do you remember whatperiod that you lived with Maurice.” I responded, “Since he was two.” I never meant to imply that I had constantly lived with Maurice ever since he was two, since I had not. I was in and out of Maurice’slife and my mother’s house just like everyone else. However, Maurice’s attorney never asked me any follow-up questions, so | never had a chance to be morespecific. In another instance, Maurice’s attorney asked me whether or not Marcia had a heroin problem, to which I answered, “Yes.” I was never asked any more questions about Marcia’s drug addiction, which I would have described as something much more devastating than just a “heroin problem. Celeste Surrell Dec., Exh. 113. 864. Celeste talked with other members of the family prior to their testimony. They were unanimousin their concern that they were ignorant of what the purpose oftheir testimony was and had not been prepared to testify in any way bytrial counsel. In speaking with my other family membersright before and after our time in court, I remember 380 that not one of us felt sure of what we were supposedto talk about on the stand. We were basically thrown up there and asked a few quick questions andthat wasit. Celeste Surrell Dec., Exh. 113. 865. Celeste would have been ableto testify about her parents relationship, her father’s otherfamilies and the devastating impact her father’s absence had on her and her siblings. Celeste Surrell Dec., Exh. 113. 866. Celeste also could have documented the extensive drug histories of all her siblings as well as her own arrest record. Celeste could further have offered testimony regarding the dangerous men she was involved with whom she brought to her mother’s house during Petitioner’s childhood. Celeste Surrell Dec., Exh. 113. 867. She would also have provided detailed testimony describing what it waslike to live at Irma’s house: Between mysisters’ boyfriends, my brother’s girlfriends, and their kids, my mother’s house on East 28th Street could be very crowded with people. While sometimes the house wasover- crowdedwith people, there would be other times when there was hardly anyone around. At any given time during the late 1970s and early 1980s, my mother’s house could include her mother, Michael, any of Michael’s kids, Michael’s girlfriend or wife, Charmaine, her boyfriend or husband, Charmaine’s daughter 381 Tamika, Maurice, and me. Ontheflip side, because everyone, including me, was always moving around, there might only be my mother, my grandmother, or Mauricein the house. Celeste Surrell Dec., Exh. 113. 868. Celeste was also a witnesses to the problems Irma had before and after she lost her liquor store including the fact that one of the reasons Irmalost the store was because she borrowed moneyto help Eugeneafter he was charged with murder. Celeste Surrell Dec., Exh. 113. 869. Celeste was aware of Irma’s severe depression that led her to seek assistance from Dr. Spivey and to take Valium. Celeste Surrell Dec., Exh. 113. 870. Celeste has confirmedthe stress Petitioner experienced after the moveto Berkeley and the reasons whyPetitioner was taken to see Dr. Spivey: Wemoved from East Oakland to Berkeley around the time that Dicky, Maurice’s father, died. Marcia wasstill a real mess and wasn’t coming around the house much. Maurice seemedto be having a real hard time dealing with his parents and the fact that they were never there for him. My mother and grandmotherhadalso been getting concerned that Maurice was too slow anddistracted in school, so my motheralso started bringing Maurice to see Dr. Spivey. The two of them would sometimes see Spivey on the same day. 382 Ever since he waslittle, Maurice had always movedslowly and been real clumsy. Maurice would fall downa lot -- it always seemed that his balance was off or something. Maurice would get picked on by kids much youngerthan him and always hadtrouble defending himself. His cousin, Tamika, who was younger than Maurice, would have to defend him against other kids. Maurice would watch a lot of television by himself and eat anything he could get his hands on. Even when he wasvery little, Maurice seemed sad. He would cry lot, or sometimes he would just go off by himself and space out. Maurice had trouble saying what he wanted. Celeste Surrell Dec., Exh. 113. 871. The chaos that was evident in the Berkeley house could have been described by Celeste as follows: In the late 1980s, my brother, Michael, split with his wife, Regina, andstarted living with our mother, grandmother, and Maurice on Boise Street. At that point, Michael was heavily involved with drugs andhis life was out of control. Michael started going out with this woman who was a complete crackhead. I was not living at homeat the time, but I would stop by and see Michaelandhis girlfriend in the house. I told Michael that he shouldn’t let his girlfriend stay in the house and Michael threatened to blow up my car. We had an argument aboutit, but nothing ever happened. It was not a good situation with Michael andhis girlfriend being around the house. Celeste Surrell Dec., Exh. 113. 383 872. One lay witness who wasnot a family member, Emest Posey, waspresented. Mr. Posey’s testimony took only two transcript pages. RT 1953-1955. The prosecutor apparently saw no reason to cross-examine him. RT 1955. 873. At the time of his testimony,trial counsel had not attempted to obtain Petitioner’s school records from the Berkeley SchoolDistrict. Thus, Mr.Posey hadto testify without that reference. In addition, Mr. Posey has stated the following about the complete lack of preparation he hadfor his testimony at Petitioner’s penalty phase: I believe that Tamika was the person who informed me that Maurice had beenarrested for murder. I recall Tamika asking me whetherI would be willing to speak on Maurice’s behalf in court. I, of course, told her I would do anything to help Maurice. I rememberreceiving a phonecall at East Campus from someone working on Maurice’s behalf®’, who asked me whetheror not I had ever taught Maurice. That person asked meto show up in court on a particular date, which I did. At no time did I have an in-depth conversation with anyone about Maurice as a student or a person. I did not speak to anyone prior to my testimony in court. During my testimony,I recall being asked very general and superficial questions about Maurice. At no time wasI asked to gather or review any of Maurice’s school records. If I had been asked to do so, I could ®” Olivier’s billing records reflect a “contact” with Mr. Posey. Exh. 260. 384 have testified about much more substantive issues regarding Maurice’s school experience. WhenI testified I had no idea whatrole I was playing in Maurice’s trial. Had I been informed about what information could have been helpful to Maurice’s case, I would [have] been willing to provide the information... Posey Dec., Exh. 101. 874. Not surprisingly, Mr. Posey presentedlittle in the way of mitigation evidence. From 1986-1988, he was an administrative assistant at Willard Junior High School in Berkeley. RT 1953. He described Petitioner as a student who had minorproblems, who was “kind of spaceyat times.” RT 1954-55. Petitioner never provokedfights. RT 1955. He believed Petitioner was an “average” student. RT 1955. 875. Had trial counsel been reasonably effective and prepared Mr. Poseyto testify on Petitioner’s behalf, he could have providedat least the following evidence in mitigation. 876. From 1986 to 1988, Mr. Posey was an Administrative Assistant at Willard Junior High School. Petitioner was a student at Willard during Posey’s time there. In the Fall of 1988, Posey began teaching at East Campus, Continuation. Petitioner transferred to East Campus a few months after Posey started there. Posey Dec., Exh. 101. 877. Mr. Posey was familiar with the lack of resources at Willard 385 during Petitioner’s timethere. [D]ue to the few resources and number of students at the school, there was not a lot of close monitoring of students who had trouble in the classroom. There was no psychological or counseling componentset up at Willard that could really address many of the problems the students were having. If students were having problems at home,there was nothing at Willard that could adequately address those issues. Asa result, kids often got labeled as underachievers or behavioral problems without anyone at the school really knowing what was happening in their lives besides how they did in the classroom. Posey Dec., Exh. 101. 878. Mr. Posey has now reviewed Petitioner’s files. Petitioner was not, in fact, an average student. Mr. Poseyhasstated, “I recall that Maurice had low skills in the classroom. I have reviewed portions of Maurice’s schoolfile from Willard and it indicates that in both 1987 and 1988, when Maurice was in the seventh and eighth grades, he scored well below the grade level.” Posey Dec., Exh. 101. 879. Mr. Posey has admitted, “Maurice was a perfect example of a student who needed morehelp than he ever received and, asa result, he slipped through the cracks unnoticed.” Posey Dec., Exh. 101. 880. Mr. Posey could have explained the following and placed Petitioner’s learning problemsin their appropriate context: 386 Willard rarely held its students back to repeat a grade. The schoolusually passedits students, regardless of academic achievement, on the basis of social promotion. The school believed that social promotion wasbetter for the students because students who were held backrarely,if ever, did any better academically their second year through a grade. Holding a student back at Willard was the ultimate way for the schoolto label a student a social failure. It was believed that any student who couldn’t somehow makeit out of the eighth grade usually did not have a chance makingit in school, period. As Maurice’s records show,he was the extremely unusual case of a student who was made to repeat the eighth grade at Willard. Posey Dec., Exh. 101. 881. Mr. Posey also had contact with Petitioner at East Campus. Posey Dec., Exh. 101. Mr. Posey hasstated: I believe that Maurice’s agefinally forced Willard to transfer him to East Campus. East Campusis a continuation school, which means it enrolls students who are performing poorly in their regular schools or who are having behavioral or attendance problems. As opposed to Willard, where the student body came from the surrounding neighborhoodsin Berkeley, East Campusstudents were specifically referred to the school because of some problem at their former school. Willard had a rather diverse, “Berkeley-esque” population of students. East Campus, however, was largely comprised of students of color. Posey Dec., Exh. 101. 387 882. Mr. Posey has explained the nature of the student body at East Campus: Quite a few students from Willard ultimately woundup at East Campus. Mostly, the students were African-American males. I believe this occurred, in part, because of the Berkeley School District’s view that many of the African- Americans who were not performing well in class were underachievers, as opposedto being students who needed extra support or who had learning problems. Unfortunately, students were often type-case very early on as underachievers or problem learners and their real learning or emotional problems were never addressed. In an ideal world, students at East Campus would spend approximately two semesters catching up with their credits and then transfer to a non-continuation school. However, in my experience at East Campus, only approximately one to five percent ofall the East Campus students ever make it back to non-continuation school. Most of the students who endupat East Campus ultimately drop out because they stop going to class or they move. Manyofthe students at East Campus comefrom unstable families, where the student would often be moving from family member to family member, or house to house. East Campus, the way it was operating when Maurice wasenrolled, was not a place for students to succeed in school. Posey Dec., Exh. 101. 883. Mr. Posey would have beenableto testify to additional examples of what can be called “institutional failure,” 1.e., public 388 institutions that were unwilling or unable to meets the needs of those who depended on them. 884. Mr. Posey has further stated about East Campus: [I]n terms of funding andattention, East Campusis the unwanted step-child of the Berkeley Unified School District. The students whoare referred to East Campus are those students who,for a variety of reasons, aren’t making it at the mainstream schools. Nonetheless, the school district doesn’t give East Campus the funds and support it needs to help its students succeed. In the early 1970s, East Campus had about fourteen teachers and roughly two-hundred-and-twenty-five students. In the late 1980s, when I started at East Campus, the school was downto eight teachers and approximately one-hundred-and-fifty students. In order to keep students coming to East Campus, the school had flexible grading and evaluations to motivate student attendance. There was not adequate resources to address the needs ofmany students and particularly Maurice. One counselor was assigned to meet the needs of 200-225 students. Posey Dec., Exh. 101. Expert Witnesses 885. Reasonably competent counsel would have prepared the expert witnesses he intended to present. Had counsel doneso, these witnesses could havetestified as follows. 389 886. As detailed above, Dr. Rosenthal was given no materials other than the reports relating to the 5150 referral and the 4011.6 evaluation to review,had only one interview with Petitioner, and no meeting withtrial counselprior to his testimony. Thus,it is not surprising that Dr. Rosenthal’s testimony failed to present relevant mitigation evidence, and, in fact, gave an inaccurate and damagingportrayal of Petitioner to the jury. 887. Dr. Rosenthal has now examined materials provided to him by present counsel documenting Petitioner’s background and family history. Dr. Rosenthal has concludedthat these materials constitute informationthat I believe could have formed the basis of important areas of mitigation testimonythat I was unable to address at the penalty phases of Mr. Boyette’s trial. For example, the fact that both Mr. Boyette’s mother and father were heroin addicts points to a genetic predisposition underlying the substance abuse problemsin Mr. Boyette’s life. Moreover, there is also the possibility that Mr. Boyette was exposed to drugs in utero andthat this exposure permanently affected the developmentofhis brain. Rosenthal Dec., Exh. 105. 888. Dr Rosenthal has further declared that had he been asked to do so, he could have providedat least the following additional mitigation evidence to the jury: HadI been askedto do so, I also could have 390 described for the jury the particular characteristics of drug users who use opiates such as heroin. In my professional experience, opiates tend to produce sedation, depression, and a lack of motivation in the user. The effects of heroin stand in marked contrast to the effects of stimulants such as cocaine and amphetamines. Heroin users tend to be people whoare notable to focus on the world or be clear about what is going on around them. In lay terms, they tend to be “spacey.” Heroin is the kind of drug people take when they seek to numb themselves. Rosenthal Dec., Exh. 105. 889. In addition, Dr. Rosenthal could havetestified as follows: Dr. Spivey’s records regarding his treatment of Mr. Boyette’s grandmother for depression would have been highly relevant to my psychiatric assessment of Mr. Boyette and the substance of my mitigation testimony. Thefact that Irma Surrell suffered from depression would have impacted my assessment of Mr. - Boyette in two distinct ways. First, this information tends to suggest that Mr. Boyette had a genetic predisposition to depression. Second, the fact that the woman whoservedas Mr. Boyette’s primary caretaker for many years suffered from depression would likely have had a negative impact on Mr. Boyette’s development. Rosenthal Dec., Exh. 105. 890. Based on the information provided to him by present counsel, Dr. Rosenthal has concludedthat the jury received an incomplete picture of 391 the psychological implications of Petitioner’s social and familial background. Rosenthal Dec., Exh. 105. “Had I had this information back im March 1993, and had I not been consulted under such timeconstraints, I would have beenable to provide more extensive mitigation testimony.” Rosenthal Dec., Exh. 105. 891. Dr. William Spivey presented very brief testimonyat the penalty phase.® Nevertheless,the fact that Dr. Spivey had treated Petitioner for four years certainly gave the jury the impression that Petitioner had been fortunate enough to be afforded the benefit of psychiatric counseling thatis rarely available to troubled teenagers. 892. Trial counsel’s failure to elicit mitigating testimony from Dr. Spivey, even though Spivey had knownPetitioner for so manyyears, is thus more damaging, since the jury would have reasonably believed that Dr. Spivey would be privy to mitigating evidenceif it existed. Trial counsel’s actions with regard to Dr. Spivey represents a stark example of counsel’s failure to make reasonable efforts to prepare fortrial. Given that Dr. Spivey hadtreated Petitioner overa significant periodoftime,it is inconceivable that trial counsel did not recognize the necessity of meeting with Spivey to determine, in detail, what information he had regarding Petitioner and his 8 His testimony, absent his credentials, was seven pages of transcript. 392 family. Trial counsel unreasonably failed to makethis effort. 893. Trial counsel failed to determine that Dr. Spivey had treated not only Petitioner but his grandmother, Irma Surrell. They also failed to determine that it was because Irma Surrell was already being treated by Spivey that she took Petitioner to see him. Spivey Dec., Exh. 111. 894. Trial counselthusfailed to investigate, prepare or present the relevant mitigating information concerning Irma’s mental illness and her family circumstances. Hadtrial counsel conducted a reasonably effective investigation, Dr. Spivey could havetestified to at least the following mitigation evidence. 895. Dr. Spivey was aware of relevant information concerning the underlying causes of Irma Surrell’s depression: “[i]t was clear to me during my treatment of Mrs. Surrell that her children and family life were causing her a great deal of stress andthat this stress contributed to her depressed condition.” Spivey Dec., Exh. 111. 896. Further, Dr. Spivey states: “I recall that although Mrs. Surrell genuinely seemed concerned about her grandson, she was overwhelmed by her own problems, and I knew, from myseparate treatmentofher, that she was suffering from Major Depression. Mrs. Surrell was struggling with her own children’s problems and spent quite a bit of the time that was 393 scheduled for Maurice’s therapy talking about her ownsituation. “ Spivey Dec., Exh. 111. 897. Dr. Spivey could also havetestified that: “It was clear that there was tremendousinstability in Maurice’s family. The fighting between Maurice’s aunts and Maurice’s mother was one constant issue.” Spivey Dec., Exh. 111. 898. Dr. Spivey also had information regarding Petitioner’s depression. “At the time I first met Maurice he was an overweight boy of about eleven years of age who wasalways being picked on and beaten up by other children. He seemed to be a child who simply could not do anything right and was depressed by his circumstances. I recall that he was unable to focus on school. Maurice had serious self-esteem issues which he seemed unable to resolve.” Spivey Dec., Exh. 111. He furtherstates, “Maurice never had an opportunity to make life-decisions affecting him. He wasalways pushedor pulled into situations. He never wasableto take control of his life because his homelife would end up overwhelming him.” Spivey Dec., Exh. 111. 899. Dr. Spivey could havetestified regarding Petitioner’s relationship with his mother. I was aware that Maurice’s mother had severe drug and health problems. I was also aware that 394 she was not a source of consistent support for Maurice and, in fact, constantly made promises to Maurice that she did not keep. Maurice’s moodsand behavior were often predicated on his mother’s actions and whereabouts. On the rare occasions when his mother cameto see Maurice, he was delighted. However, when she failed him, no matter how many timesthis happened, he was devastated. Spivey Dec., Exh. 111. 900. Dr. Spivey also had significant information concerning Petitioner and Petitioner’s father. “Maurice wasnotclose to his father either. Maurice never really had a chance to bond with his father. I rememberthat when Maurice’s father died when Maurice was about thirteen, Maurice tried to put up a psychological shield and seemedto be fronting off his real feelings.” Spivey Dec., Exh. 111. 901. Dr. Spivey believes that he consulted with Petitioner’s tnal counsel and perhaps another person on a single occasionprior to testifying at Petitioner’s trial. Dr. Spivey admits that he was ignorant of the function of his testimony. “At that time,I had little criminaltrial experience andI certainly had no idea what a penalty phase in a capital case involved or what issues or aspects of my contact with Maurice would be beneficial to discuss during my testimony.” Spivey Dec., Exh. 111. 902. Even though reasonably competent counsel, based on even a 395 preliminary investigation, should have been aware that there were myriad issues about which Dr. Spivey could contribute valuable detail and insight, trial counsel’s only inquiry with Dr. Spivey related to the question of whether Petitioner was a leader or a follower. Spivey Dec., Exh. 111. 903. Although trial counsel was awarethat Petitioner’s mother had been raped by Garry Carter, one of the victims, they did not inform Dr. Spivey of this. They also failed to ask Dr. Spivey any questions regarding how Petitioner would have been affected by this information. Dr. Spivey has stated that “had I been asked, I certainly would have told Maurice’s attorney that Maurice was very emotionally involved with his mother,that he felt very protective of her, and that if Maurice had knownthat someone hurt his mother, that would have been devastating for him emotionally.” Spivey Dec., Exh. 111. 904. Trial counsel also presented the testimony of George Barrett - who interviewedPetitioner when he wasreferred for a 4011.6 evaluation pursuant to Petitioner’s probation officer, Mei-Ling Pastor’s, request. Barrett’s direct testimony, absent his credentials, is contained in less than three transcript pages. RT 1931-1933. 905. Apparently trial counsel presented Barrett to support trial counsels’ penalty “theme”that Petitioner was immature. Barrett did testify 396 that Petitioner spoke and acted like a twelve year old. RT 1931. However, healso testified that he would give him a diagnosis of disruptive behavior disorder and antisocial personality disorder. RT 1933. 906. Trial counsel failed to present the testtmony detailed in Claim E abovethat showed whythis incident wasactually mitigating — not aggravating as it was portrayed by the prosecutor. 907. Without the presentation of the testimony of Mei-Ling Pastor, Diane Talsky, and Marva Smith, there can be no reasonabletactical basis for presenting Barrett and opening the door to accusationsthat Petitioner was manipulative and dangerous. Barrett’s testimony that Petitioner was immature was hardly worth incurring the damaging testimonythat resulted. 908. Reasonably competent counsel would havecollected easily obtainable records which could have, even without the testimony oflay witnesses, corroborated at least the mitigation themes detailed herein. 909. Finally, reasonably competent counsel would have attempted to mitigate the facts of the crime. Powerful testimony concerning Petitioner’s mental state at the time of the crime, and the actual circumstances under which the crime was committed, should have been investigated, prepared and presented at either the guilt or penalty phases by reasonably competent counsel. Moreover, counsel should have consulted 397 with and prepared expert witnessesto testify regarding the crime. Counsels’ failures in this regard were prejudicial. 910. In the guilt phase, counsel presented an identity defense in which counsel attempted to establish reasonable doubt that Petitioner committed the crimes in question. 911. Petitioner incorporates each and every allegation in Claim C,as if fully pled herein. 912. Whetheror not the actions and/or inactions of counselin the guilt phase of Petitioner’s trial constituted ineffective assistance of counsel, once the jury had found Petitioner guilty of the crimes, and had found one special circumstance, multiple murder,true, and proceededto a penalty determination, counsel was required to present statutorily appropriate mitigation evidence tothetrier of fact in support of a penalty oflife without possibility of parole. 913. In this case, the only significant evidence in aggravation before the jury were the circumstances of the crime and evidence of “victim impact.” The prosecution hammered on two themesin her closing. The first was that Petitioner would kill again in prison,” and the second ° The prosecutor also impermissibly argued future dangerousness to the jury. See Claims A, E. 7 See Claim E. 398 emphasized was that Petitioner was a cold-blooded killer who had killed in “execution style.” See, e.g. RT 2002-2003 [‘‘The perfect personality to kill again.”], [. ..Because that is a very important consideration for you. You have to look at his future dangerousness. Is this a remorseful person who really blew it one nightor is this a sociopath who’s going to kill again?]; RT 2013 [“What you haveto lookat, that lack of remorse, and the facts of ‘this killing, which show you a substantial likelihood of him killing again.”); RT 2013 [“They don’t have a conscience. Who’s a better hit man? When you talk about his future dangerousness, no conscience. It doesn’t matter. He could look at a young woman whois begging for her life. He doesn’t getit. It is not there.”] RT 2014 [“I’m standing up hereto savethe life of the next victim and to avoid another family going through what these have gone through. We’re both up here to save lives. Mineis the life of an innocent person who has done nothing. Theirs is the life of a sociopath.”]; RT 1999 [You found him guilty of twofirst degree, execution-style, premeditated murders.”’]. 914. Thus, in order to rebut the argument regarding the circumstancesof the crime, it was necessary for counsel to either continue to argue to the jury that Petitioner had not committed these crimes — 1.e. argue “lingering doubt” — or to attempt to “mitigate the circumstancesof the 399 crime.” Counsel unreasonably failed to do either. 915. Nothing in trial counsel’s closing argument suggested to the jury that they should not sentence Petitioner to death because there was some question that he had not committed the crime. However,trial counsel failed to present readily available evidence that would have convinced the jury that the circumstances of the crime were not as they were vigorously argued by the prosecution. 916. There was substantial, readily available, compelling evidence that trial counsel could have presented to rebut the prosecution’s argument. 917. Petitioner incorporates each and every allegation of Claim C,as if pled herein. 918. First, counsel was awarethat Petitioner believed that one of the victims, Garry Carter, had raped Petitioner’s mother shortly before the crime. Costain Dec., Exh. 62; Antoine Johnson Dec., Exh. 80; Letter from Dr. Pittel to counsel, Exh. 262. Dr. Pittel and John Costain, attorney for Petitioner’s co-defendant Antoine Johnson, had both informed counsel of this information prior to the penalty phase. It was also contained in the notes of the police interviewwith Antoine Johnson. CT 235. Yet counsel failed to present this information. 919. Counselalso failed unreasonably to investigate, prepare or 400 present evidence ofPetitioner’s mental state at the time of the crimesat either guilt or penalty. Had counsel investigated, prepared, and presented the evidence of Petitioner’s mental state at the time of the crimes,at least the following information could have been presented. 920. As detailed above, the testimony of numerous mental health professionals — such as that presented herein by Dr. Craig Haney, Dr. Stephen Pittel, Dr. Fred Rosenthal, Dr. Dale Watson, Dr. William Spivey, Dr. Roderick Pettis — was available to documentand explain Petitioner’s deteriorated mental state at the time of the crime. 921. Reasonably competent counsel would have presented the testimony of criminalist Charles Morton regarding the circumstancesof the crime. See Claim C. 922. Reasonably competent counsel would have presented the testimony of Gary Rivlin and Richard Leo concerning the lack of credibility of Petitioner’s confession. See Claim F. 923. Reasonably competent counsel would have investigated, prepared and presented the testimony detailed in Claim E that would have conclusively established for the jury that the hypotheticals presented by the prosecutor were not based on facts. 924. Counselfailed to investigate, prepare, or present readily 401 available evidence which would have been relevant in numerous categories of statutory mitigation under Penal Code section 190.3, including but not limited to: a) Factor (a): the circumstances of the crime of which the defendant was convicted in the present proceeding; b) Factor (b): the presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence; c) Factor (c): the presence or absence of any prior felony conviction; d) Factor (d): whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance; e) Factor (f): whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct; f) Factor (g): whether or not the offense was committed under extreme duress or under the substantial domination of another person; g) Factor (h): whetheror not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conductto the requirements of law was impairedasa result of mental 402 disease or defect, or the affects of intoxication; h) Factor(i): the age of the defendantat the time;”! 1) Factor (j): whether or not the defendant was an accomplice to the offense and his participation in the commission ofthe offense wasrelatively minor; J) Factor (k): any circumstance which extenuates the gravity of the crime even thoughitis not a legal excuse for the crime.” 925. To the extent that counsel’s failure to object to the prosecutor’s misconductat the penalty phase waived Petitioner’s claim on appeal, see Appellant’s Opening Brief claim K, counsel rendered ineffective assistance of counsel. 926. The defense penalty phase presentation as a whole suffered from disorganization and an overall lack of focus that undermined the testimony of expert and lay witnesses alike. Indeed, few if any coherent mitigating themes were presented and then supportedin a sustained, consistent way by counsel through witness testimony and argument. Mitigating themesstarted to be developed and then were abandoned without explanation,likely leaving the jury confused and skeptical about counsel’s " Counsel did argue this factor in mitigation. ” Counsel mentionedfactor (k) but only with referenceto the fact that Petitioner’s mother was a drug addict. RT 2039. 403 intended message. Others were only thinly and unconvincingly conveyed, while still others were counterproductive andlikely did much more harm than good. Moreover, an extremely misleading and,at points, grossly inaccurate set of impressions was created concerningPetitioner’s upbringing and homelife. Either because defense counsel did not know,or chose on the basis of counsel’s conflict, not to emphasize or even present key aspects of Petitioner’s social history, the jury that decided his fate did so without the benefit of competent, accurate, and complete information about whoPetitioner was, what kind oflife he had led, and the ways in which many powerful, painful, and destructive forces that were well beyond his control had combinedto influence and affect him from a very early age. See Haney Dec., Exh. 71. 927. Therewere extremely powerful mitigating themes rooted in Petitioner’s traumatic social history that were ready accessible yet never pursuedbyhis trial counsel. In large part because of an apparentfailure of counsel to adequately investigate and then properly prepare these issues, the defense portion of Petitioner’s penalty trial lacked a discernable and coherent penalty phase strategy. The few themes that were pursued were presented in unconvincing manner through the use of mental health experts whoappearedto be unprepared and unfamiliar with key aspects of 404 Petitioner’s social history, and with lay testimony that was superficial, distorted, and left out significant portions the important story Petitioner’s capital jury had a right and a need to hear. Indeed, the mitigating significance of most of the evidence trial counsel chose to present was either unclear or nonexistent. At times counsel presented testimony that wascontradictory or that buttressed the aggravating themes being pursued by the prosecution. And most of the important and central mitigating themes that were clearly present in Petitioner’s life and that could have been persuasively presented onthe basis ofreadily available information and witnesses were overlooked entirely. 928. The themes that could have been presented were straightforward, standard mitigating themesthat all competent capital counsel who werepracticing in the early 1990s (and well before) understood neededto be carefully investigated, elaborately prepared, and properly presented. Petitioner’s case was distinguished from manyother capital cases by the amount of mitigating information that wasreadily available but which was overlooked by counsel and, perforce, kept from Petitioner’s jury. This information and the mitigating themesto which they spoke would have beenessential in order for his jury to gain any real understanding of Petitioner’s life. This is precisely the kind of information 405 that capital juries generally find important and persuasive in reachinglife verdicts and without which they feel compelled to sentence capital defendants to death. Haney Dec., Exh. 71. 929. In addition to having a poorly conceived penalty phasestrategy, counsel implementedit in an ineffective way. Witnesses appeared to be unprepared and counsel asked questions to which he appeared not know the answers (often with harmful results) and others that appeared designed to elicit answers that were not only not mitigating but were supportive of the prosecutor’s aggravating themes. Although Petitioner’s social history was replete with risk factors that help to explain the path his life took and the criminal behavior in which he was involved, his jury heard almost none of it, and the tiny portion they did hear was not presented in a clear and coherent fashion that would have allowed them to understandits overall mitigating significance. Because of the poorly prepared and ill-conceived testimony of the main mental health witness in the case, prejudicial issues were introduced by defense counsel that had a negative and counterproductive effect on the mitigation case. 930. Moreover, the prosecutor’s closing argument was replete with prejudicial references to “sociopathy” and future dangerousness, none of which would have been supportable had the defenseelected to 406 contextualize Petitioner’s criminal behavior through social history testimony, and rebut her characterizations by presenting expert testimony about Petitioner’s low violence potential in prison, that educated the jury about the difference between jail and prison, explained the elaborate security procedures that are followedin prison to controlthe behavioroffar moreinstitutionally violent persons than Petitioner, and discuss Petitioner’s likely positive adjustmentto the structured environmentofprison. 931. Trial counsel’s investigation, preparation and presentation for the penalty phase was not reasonably competent. The scant information in counsel’s possession suggested at minimum a history of chronic abuse, predisposition to mental illness and substance abuse,institutionalfailure and exposure to violence. Andyettrial counsel failed to conduct any investigation that would have developed these themes. Moreover, counsel failed to consult the most obvious of experts, including an institutional adjustment expert, even though it should have been apparent to counsel that Petitioner’s future dangerousness could beanissue in this case.” 932. In presenting the case in mitigation, it was unreasonable for ® Even assuming, arguendo,that it was reasonable for counsel to fail to anticipate this issue, it was not reasonable that once counsel was placed on notice that the prosecutor intended to pursue this question,that counsel did not seek a continuance to consult such an expert, prepare the expert to testify and present the testimonyto the jury. 407 counsel to fail to conduct, develop or present the evidence cited above. A wealth of mitigating evidence waseasily obtained. First, Petitioner andall of his extended family lived in the East Bay and hadlivedthereall of their lives. This meant that family members werereadily available to be interviewed andto testify to their observations had they been prepared by counsel to do so. Second, Petitioner’s family history was well documented by social service agencies. These records were available to counselat the time oftrial. Third, dozens of neighbors and family friends, who had known the family for many years and were upstanding membersofthe community who could have spoken eloquently to the jury, were available simply by going to Petitioner’s former neighborhood. Andfinally, consultation with mental health professionals and/or appropriate testing would have provided evidence of Petitioner’s serious mental impairments. 933. Petitioner was prejudiced by counsels’ ineffective assistance. 934. Petitioner incorporates by reference each and every allegation in Claims A, B, C, D,E. E. THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT AT THE PENALTY PHASE 935. Petitioner’s confinement and sentenceareillegal and unconstitutional underthe Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, sections 1, 7, 15, 16, and 17 408 of the California Constitution because the prosecutor and her agents . committed misconduct throughout the penalty phase of Petitioner’s trial. 936. The prosecutor’s presentation of false evidence, including the use of hypotheticals not based on fact, her failure to disclose exculpatory evidenceto the defense, and her prejudicial comments, during cross- examination and closing argument, particularly when combinedwith the elicitation of improper victim impact evidence presented to the jury without any appropriate legal framework, so skewedthe jury’s sentencing determinations by injecting false, irrelevant and inflammatory factors that Petitioner’s trial was fundamentally unfair, his rights to due process,cross- examination and confrontation were violated, and his death sentence was rendered constitutionally unreliable, arbitrary and non-individualized. The prosecutor’s improper conduct was not harmless beyond a reasonable doubt.” 937. The prosecutor in this case abusedherpositionoftrust. It 1s well settled that a prosecutoris held to a standard higher than that imposed on other attorneys because of the unique function she performsin representing the interests, and in exercising the sovereign power, ofthe 7 Someofthe facts alleged in this claim were presentedto this Court on direct appeal, People v. Maurice Boyette, S032736, and are realleged herein with extra-record facts and allegations to demonstrate the pattern of pervasive prosecutorial misconduct. 409 State. People v. (Shawn) Hill, 17 Cal.4th 800, 665 (1998); see also Berger v. United States, 295 U.S. 78 (1935). 938. This pattern of prosecutorial misconduct, in which the prosecutor was allowed unfettered opportunities to overstep the bounds and duties imposedby herposition, led in this case, and if allowed by this Court will lead in other cases, to more egregious levels of inflammatory,illegal, and unconstitutional methods employed by prosecutors in order to secure death verdicts in capital cases. 939. The claim presented herein demonstrates a pattern of misconductby the State. The Alameda District Attorney’s Office andits agents violated their proper role in the criminal justice system. The proper role of a criminal prosecutoris not simply attempt to obtain a conviction but rather to obtain a fair conviction. Brady v. Maryland, 373 U.S. 83, 87 (1963). The American Bar Association Code of Professional responsibility states, “In his representation ofa client, a lawyer shall not knowingly use perjured testimonyorfalse evidence.” Disciplinary Rule 7-102(A)(4); American Bar Association Canons of Professional Ethics, Canon 30 (1980). Such conduct perverts the adversarial system andtaints the results. Napue v. Illinois, 360 U.S. 264 (1959). Such behavior should be condemnedas violative of canons fundamentalto the “traditions and conscience of our 410 people.” Rochin v. California, 342 U.S. 165, 168 (1952), quoting Snyderv. Massachusetts, 291 U.S. 97, 105 (1934). 940. Petitioner alleges the following facts in support of this claim, among others to be developed after full investigation, discovery, access to this Court’s subpoena power, adequate funding for investigation and experts, and a hearing on the merits of the claim. The Prosecutor Knowingly Used False And/Or Unsupported Hypotheticals Concerning Alleged Crimes Committed by Petitioner False and/or Unsupported Facts Regarding the Instant Case 941. Petitioner’s rights to due process,a fair trial, to confront and cross-examine witnesses andto a reliable, individualized and non-arbitrary sentencing determination were violated by the prosecutor’s use of improper hypothetical questions in cross-examining Petitioner’s expert witness. The hypothetical questions were not only unsupported by the evidence, but were in most instances false and unreliable and were introduced without benefit of proof, confrontation, cross-examination, or any of theother processes designedto ensurereliability. By using these hypotheticals, the prosecutor created the false impression that extremely damaging aggravating ‘information existed unknownto the jury but knownto the prosecutor. 942. Dr. Rosenthaltestified on direct examination on Petitioner’s behalf at the penalty phase regarding Petitioner’s mental state, generally, 411 but not about Petitioner’s participation in the capital offense. On cross- examination, Dr. Rosenthal stated that he did notlisten to the tape-recorded statements Petitioner had given to the police, did not talk to the eyewitnesses and did not read court transcripts. RT 1900. Followingthis testimony, the prosecutor asked a series of hypothetical questions which she knew, or should have known, were not based on fact, or were not supported by the evidence. These hypothetical questions were designed to convince the jury that the death penalty was necessary to deter Petitioner from future acts of violence. The improper hypotheticals put before the jury prejudicial information that was either demonstrably false or unsupported by the evidence and could not be rebutted. Because of the prosecutor’s function as the State’s representative, jurors most likely would conclude that she had access to extra-record information andthat her statements could betrusted. People v. Bolton, 23 Cal.3d 208 (1979). 943. According to the prosecution’s evidenceat the guilt phase, the individuals other than Petitioner and Antoine Johnson who were present whenthe shooting occurred were Donald Guillory, whotestified, and Jasmeen Banks and Kenya Lita Cook, whodid not testify. The prosecutor asked Dr. Rosenthal hypothetical questions that required him to assume non-testifying witnesses Banks and Cook werecredible and that they would 412 havetestified to many facts which were never presented in evidence, in support of the prosecution’s theory of the case: Q. RT 1902. I want to you [sic] to assume that you talked to these witnesses, you found them credible and that you found that the facts were that Mr. Boyette is in a house with a blind man by the name of Antoine Johnson. [{] Mr. Johnson shoots a gun at an individual by the name of Gary Carter. Then Mr. Boyette is involved, somehow, with a struggle with the victim Annette Devallier, who is dragging Gary Carter out of the house. [{] Mr. Boyette, then, on his own, goes to Mr. Johnson and says, “give me the gun.” [{] He goes outside, he fires someroundsinto a person identified as Gary Carter, then he goes and he coldly executes a woman on her hands and knees whois saying “please don’t.” [{]] Then he’s going to a car and hefires one last round into the body of Gary Carter... and you assume that you believe Kenya Cookin her statements that then that second victim also says “please don’t.” And Mr. Boyette exercising his, | guess you would say poor judgment, shoots a final shot into Gary Carter’s head. [1] Now, are you claiming somehow thathe is not acting under his ownfree will? 944. This is not the version of events presented by the actual evidence. The only purported eyewitness, Donald Guillory, saw Johnson shoot the gun at Carter, and later saw Petitioner with a gun in his hand standing near Carter. There was no testimony whatsoever that Petitioner was involved in a struggle with Devallier; that Devallier dragged Carter out of the house; that Petitioner fired shots at Carter, then executed a woman 413 whowassaying “please, don’t,” and fired another round at Carter, who also said, “please, don’t.” The use of these improper hypotheticals allowed the prosecutor to expound at length on “evidence”that she did not present to the jury and that was not tested by cross-examination. While this is surely a more convenient method ofplacing a theory of the case before a jury, it is not permitted by the Constitution nor by state law. 945. The prosecutor asked additional hypothetical questions not based on the evidence that also effectively provided the jury with what might have been the “testimony” of witnesses who were not subject to CTOSs examination. These hypotheticals involved facts relating to Petitioner’s referral pursuant to Welfare and Institutions Code section 5150 and an evaluation pursuant to Penal Code section 4011. The prosecutor knew or should have knownthat thesehypotheticals, which described violent acts that had not occurred and were not otherwise in the record, were untrue. Facts Regarding the 5150 Referral and 4011 Examination 946. Although Dr. Rosenthal did not disagree that Petitioner had several of the characteristics required for a diagnosis of antisocial personality disorder, he testified that Petitioner did not meet the diagnostic criteria in large part because he was too young. RT 1904, 1906-1907, 1909. The prosecutor cross-examined Dr. Rosenthal, asking hypothetical 414 questions that assumed facts of additional“antisocial traits” that were based on facts the prosecutor knew to be false. This questioning began with the prosecutor making the following hypothetical assertion: Q. Assumethat [Petitioner] had threatened others and himself in Judge DeLucchi’s courtroom and he was brought overto Highland and they diagnosed him as Antisocial Personality Disorder. RT 1903. Later, when referring to this unproven alleged violent conduct, the prosecutorasserted that the threats by Petitioner had been directed at Judge DeLucchi and his courtroom staff. RT 1914. There is no factual basis in the record for these prejudicial assertions by the prosecutor and the prosecutor knew or should have knownthat these statements were false. 947. Petitioner’s probation officer has stated that: If Maurice had ever threatened anybody or caused a disturbance in Judge DeLucchi’s courtroom, I would have heard about it. The Court Officer for the Probation Department kept me informed about what happenedin court with my cases and I: would have beentold if anything like that had happened. Judge DeLucchi was really respectful towards clients and would neverhave said or done anything to make Maurice upset in his courtroom. Additionally,it would have been too out of character for Maurice. Maurice wasvery respectful of authority and too muchofa follower to do anythinglike that. Mei-Ling Pastor Dec., Exh. 98. 415 948. Marva Smith, a court probation officer for Alameda County appeared in Judge DeLucchi’s courtroom with various probations every ’ Mondayin 1991. She was familiar with both Judge DeLucchi’s courtroom and the probation process in Alameda County in general. Marva Smith Dec., Exh. 110. 949. Marva Smith doesnot believe that Petitioner caused any problems in Judge DeLucchi’s courtroom. Shehasstated that “if [Petitioner] had threatened to kill himself or others in Judge DeLucchi’s courtroom while I was with him, I would have reported this to his regular probation officer. This incident would have been serious enoughthatI believe any court probationofficer at that time would have done the same.” Marva Smith Dec., Exh. 110.” 950. The prosecutor’s questioning included a hypothetical question which injected into the case the opinion of a non-testifying probation officer” that Petitioner was manipulative: Q. Assume youtalked to [probation officer Maylene(sic). Pastor] and found her credible and she also told you that Mr. Boyette was extremely manipulative, he 7° The reporter’s transcript from Petitioner’s appearances in Judge DeLucchi’s courtroom on Monday, March 25, 1991 and Monday, April 8, 1991 demonstrate that no violence or threats of violence occurred on either of these days. Exh. 17. 7 Again referring to Mei-Ling Pastor. 416 would say whatever he wants to say to get whatever he wanted. Would that change your opinion that he was manipulating you? RT 1907. 951. In fact, the prosecutor had been in contact with Ms. Pastor. The prosecutor knew based on these conversations that Ms. Pastor did not believe that Petitioner was “manipulative” in any negative sense ofthat word. Moreover, the prosecutor was aware that Ms. Pastor was extremely sympathetic to Petitioner and believed that he was a young person who needed help that he was not getting from his extraordinarily dysfunctional family or the probation system. Ms. Pastor believed that the incident which resulted in a request for a 72-hour involuntary detention pursuant to Welfare and Institutions Code section 5150 wasa cry for help from Petitioner, a person who was overwhelmedbyhis emotionalfrailties. 952. Later, the prosecutor returned to the incident which resulted in the 5150 referral, with the following “hypothetical:” Q. Did [counsel] show youthe. . .. one page Berkeley Police Report, the reason he gotinto the hospital for this incident, where he had a fight with his mother because he wanted some money and wasn’t given enough, grabbed a knife and threatened to kill his grandfather and himself, which is why he was brought to the hospital. RT 1912; see also 1913, 1914. 417 953. Ms. Pastor has stated the following: a. Therese Drabec[the prosecutor] and an investigator from the DA’s office interviewed me about this 5150 incident and about revoking Maurice’s probation in March of 1993. She subpoenaed metotestify at Maurice’s trial about the shootings in East Oakland. I had a disagreement with Ms. Drabec about what I would say at trial. Ms. Drabec wanted me to testify about something that I just didn’t see the way she wanted me to — about Maurice being manipulative, or something like that. Maurice was manipulative only in a positive senseoftrying to get help for himself. The comments in Maurice’s emergencypsychiatric evaluation “clearly manipulative” and “not in need of mental health treatment” were referring only to Maurice’s acute situation. He was not in need of treatment only in the sense that he had already calmed downby the time he wasevaluated at the hospital. I told Ms. Drabec that Maurice did not have the resources to deal with stress and that he needed help. Ms. Drabec wanted meto talk about something regarding the current case, but I didn’t know anything about Maurice’s case that was ontrial. I madeit clear to Ms. Drabecthat I thought Maurice was simply a kid who needed help which he wasn’t getting from his family or from social services. She did not seem to want to hear this from me. Mei-Ling Pastor Dec., Exh. 98. 418 b. I said to myself that if the DA wanted to put me on the stand that was fine with me, but I wouldjusttell it like I saw it and not change my opinion for her. Some probation officers will let the DA havea lot of influence on their opinions and conclusions. Sometimesthey forget that they aren’t supposedto be on oneside or the other, but are supposedto try to explain the situation neutrally. In the end, I was nevercalledto testify. I was pretty sure I would not be called by the DAtotestify based on our disagreements about Maurice - I did not even reschedule my appointments with probationers on the day I was supposedto testify. Ifthe DA or the defense attorneys had contacted me, though, I would have been happyto testify at Maurice’s trial to any of the information contained in this declaration. Much ofthe informationthat is set forth here was in myfiles, including my handwritten notes from the telephone calls from Maurice on the night of the 5150 referral. Those notes confirm how upset Maurice was - and how heessentially called the police on himself. Mei-Ling Pastor Dec., Exh. 98. c. I never understood why I was being subpoenaed by the DA instead of the defense attorneys to begin with. I felt that I should be a defense witness in Maurice’s case. The 5150 incident as I saw it would be helpful to Maurice’s defense, not the prosecution. Maurice’s attorneys 419 never contacted me, and I had such a big caseload back then thatit got lost in the shuffle and I did not contact them. Mei-Ling Pastor Dec., Exh. 98. 954. In addition to the testimony of Mei-Ling Pastor, Diane Talsky, another probation officer was a percipient witness to Petitioner’s involvementin the events that led to the 5150 referral. Diane Talsky has stated: a. I have been a probation officer for the Alameda County Probation Office since 1981. I have always handled a substantial mental health caseload for the adult probation department. Talsky Dec., Exh. 120. b. One eveningin the early 1990's, I was working in myoffice after most people hadleft the probation office. Mei-Ling Pastor, another probationofficer, caught my attention. She was on the telephone and was motioning to me. She explained to me that one of her probationers, Maurice Boyette, was on the telephone and wasvery upset about something to do with his family. Maurice wasafraid that he would do something to himself or someone else because he wasso agitated. Maurice called Mei-Ling because he desperately wanted help. Mei-Ling introduced me to Maurice over the phone and had metalk to him while she called the police to go pick him up andtake him to the hospital. Mei-Ling wanted to get Maurice to a safe place where he couldstabilize. Talsky Dec., Exh. 120. 420 c. I often tell my probationers that if they find themselves in a situation that they cannot handle and they need sometime out,to call me or any probation officer and we will getthem into custody. Putting someone in custody can be a way to remove them from a bad environment and stabilize them. In these circumstances,I think of custody as part of a probationer’s therapy. From my experience with Maurice on the phonethat evening and from talking to Mei-Ling subsequently, Maurice was put into custody in order to stabilize him and temporarily remove him from a difficult home situation. Talsky Dec., Exh. 120. d. From my experienceas a probation officer, Highland Hospital’s Emergency Room psychiatric unit was cursory in its mental health evaluationsin the early 1990's. It was not rare for patients released from this unit after a few hours or a few daysto later be committed to a mental health detention facility, in Napa for example, for months at a time. Talsky Dec., Exh. 120. 955. The prosecutor, by use of hypothetical questions attempted to place beforethe jury false information that Petitioner had an antisocial personality disorder and was dangerousto others including courtroom personnel and his own family. The prosecutor knew that had she called Ms. Pastor as a witness, Ms. Pastor would have provided mitigating, not 421 aggravating unsympathetic testimony. Instead, the prosecutor used hypotheticals which falsely portrayed Ms. Pastor’s opinion and presented “facts” that were either demonstrably false or unsupported by the evidence. False Facts Regarding Max Schireson Incident 956. The prosecutor also presented facts of unproven alleged violent activity by Petitioner that were found nowherein the record, under the guise of yet another series of hypothetical questions: Q. Assumethat you talked to a person by the name of Mat Shearson[sic] and that back on June 4th [objection to using name in hypothetical is sustained]... . I want you to assumeto betrue, that on June 4th, 1991, the defendant, with a group of several other males was standing on the sidewalk, and a white individual” walked by and the defendant wentup and hit him for no apparent reason. Is that the kind of act you’re talking about when you talk about antisocial behavior? RT 1909-10. 957. In fact, someone from the prosecutor’s office had been in contact with Max Schireson. Max Schireson hasstated: A year or twolater [after the 1991 incident], someone from the Alameda County District Attorney’s Office telephoned me and told me about the death penalty case that was being ™ What is mostreprehensible aboutthis particular hypotheticalis the attempt by the prosecutor to injectracial considerations into the deliberative process. As in the prosecutor’s argument regarding gangs, in particular the Black Guerilla Family, the reference to a “white individual” can only be seen asa blatant attempt to inflameracial prejudice. 422 pursued against Mr. Boyette. We discussed both the June 1991 incident and the possibility of metestifying at Mr. Boyette’s trial, but I never heard back from them and wasnotcalled to testify. Schireson Dec., Exh. 108. 958. Mr. Schireson wasnotcalled to testify because, like Ms. Pastor, his testimony would not have provided evidence in aggravation, nor would it have supported the prosecutor’s facts as set forth in her hypothetical. | 959. Had Mr. Schireson testified, he would have stated the following mitigating facts with regard to this incident: a. In June of 1991, I was walking toward a friend’s house on Harrison Street in Oakland. As I walked by a group of young men,one of them hit me and myglassesfell off. Then one of the young men took my | beeper. I said somethingto the effect of, “What'd I ever do?” and asked for my glasses back. One of them handed myglasses to me and I walkedoff. Schireson Dec., Exh. 108. b. I continued on to my friend’s house and told her what had happened. She thought that my beeper might turn upat the scene of a crime, so she suggested thatI call the police just to be safe. Schireson Dec., Exh. 108. 423 c. I called the Oakland Police Department, and they came outto Harrison Street. They started walking alongthe street asking people if they had seen what happened. At one point, an older woman becameangry at the cops because she thought they were harassing people. Schireson Dec., Exh. 108. d. The cops continued asking people questions, and when they asked one young man if he knew what had happened,hesaid, “I hit him.” I found out later that this young man’s name was Maurice Boyette. I don’t actually know if he is the person who hit me. When I gothit, my glasses fell off and I couldn’t see anything clearly. Schireson Dec., Exh. 108. e. I had the definite impression that Mr. Boyette was outofit mentally, like he was mentally retarded or impaired in some way. Hereally didn’t seem to know what was going on. He wasn’t hostile in the least and didn’t seem aware that he had done anything wrong. Schireson Dec., Exh. 108. f. | I have no concrete reason to believe that whoever hit me did so because I was white. I really have no idea why it happened. Schireson Dec., Exh. 108. g. A couple of weeks afterwards, I went to Europe for a few weeks. WhenI got back, I was surprised to find a message on my answering 424 machinesaying that they had Mr. Boyette in jail awaiting trial. Schireson Dec., Exh. 108. h. While it was very unusual and surprising I didn’t think the whole incident wasa big deal, but I basically went along with what the cops and prosecutor wanted to do. Mr. Boyette actually served time in jail for the incident, and I remembertelling people that I felt it was unfair that he was being punished so harshly for such a minor thing. He seemed like someone whoneeded help, not punishment. Schireson Dec., Exh. 108. Facts Involving Gregory McClain 960. The prosecutor’s final hypothetical was also false. Q. Well, assumeto betrue that January of 1993, Mr. Boyette along with several other individuals, beat up an inmate by the name of McClain. Would that be consistent with antisocial personality disorder? RT 1911. 961. Gregory McClain has declaredas follows: a. I was in the Santa Rita Jail in Alameda County around Christmas in 1992for a parole violation. I was only there for a very short time before I was transferred to prison. McClain Dec., Exh. 89; b. On December 30, 1992,there was a dispute in my pod where some guys did not want to let my cellee use the telephone. I was going to fight one ofthe guys in thecell, but he didn’t want to fight me so he had 425 another guy jump me from behind. McClain Dec., Exh. 89; c. Based on the description that Maurice Boyette was six feettall and weighed over two hundred pounds, he could not have been oneof the guys who jumped me. I am 5'11" and I weigh 200 pounds and noneofthe guys who jumped me were bigger than me. There were about fouror five of them and most of them were small. McClain Dec., Exh. 89; d. The whole thing was not a big deal and I was not even hurt. The guys who jumped me were more messed up than me. I flipped them every which way and I ran one guy’s face into the wall. McClain Dec., Exh. 89; e. I have alwaystried to mind my own business, keep quiet, and do my own time. I would not have reported this incident to anyone and I would not have told the cops the names of the people who jumped me. [ wasonly in the pod a short time and I didn’t even know anybody’s name there. I wasn’t afraid to tell, it just wasn’t a big deal. I was moved to a different housing unit immediately after the incident andnever saw any of the inmates who were involved again while I was at Santa Rita. McClain Dec., Exh. 89. f. I was never contacted aboutthis incident by anyone prosecuting or defending Maurice Boyette until now. I would have told anyone who contacted me whatI have said here. [ don’t thinkit is fair that a prosecutor 426 wouldtry to use this incident against Boyette. Like I said, it wasn’t a big deal and no one of Boyette’s description jumped me. McClain Dec., Exh. 89, 962. In case these explosive hypotheticals of violent activity, which had not been introducedin the prosecution’s case, were not clear enough, the prosecutor summarized them all for the jury in the following question: Q. Now,if you had talked to him aboutall these incidents, and including the murder, and you found them all to be true, you’ve got an assault in jail, a battery in 1991, grabbing a knife and threatening his grandfather, threatening the court, courtroom staff over in Judge Delucchi’s courtroom and a double murder, would you say that all these circumstances kind of point to antisocial personality disorder? RT 1914. 963. The prosecutor knew,or should have known,that these hypotheticals were false and could not have been proved through testimony or other evidence. Moreover, the prosecutor was aware, or should have been aware, that had persons with knowledgeof these incidents been called as witnesses they would not only havefailed to confirm the hypotheticals set forth by the prosecutor but in fact would havetestified to extremely compelling mitigation evidence. 964. It is well settled that hypothetical questions fall within the 427 scope of proper expert testimony only when they are supported by the evidence properly received at trial. People v. Sims, 5 Cal.4th 405, 437 (1993), citing Mosesian v. Pennwalt Corp., 191 Cal.App.3d 851, 860 (1987) (“The expert should base the opinion uponfacts personally observed or upon a hypothesis supported by the evidence.”). Hypothetical questions “must be rooted in facts shownby the evidence.” People v. Gardeley, 14 Cal.4th 605, 618 (1996)(citations omitted). “If an expert is asked to give his opinion based on an assumedset of facts, the assumption on which the hypothetical question is based must be supported by evidencein the record.” People v. Hayes, 172 Cal.App.3d 517, 524 (1985), citing Hyatt v. Sierra Boat Co., 79 Cal.App.3d 325, 338-339 (1978). While on cross- examination, there is a widerlatitude for questioning expert witnesses, hypothetical questions mustbe “fair in scope andfairly relate to the state of the evidencein the case...” Dincauv. Tamayose, 131 Cal.App.3d 780, 799 (1982). 965. None ofthe hypothetical questions posed by the prosecutor were based on the evidence. Indeed, most of the hypotheticals were based on facts the prosecutor knew,or should have known, were actually false. Moreover, the questions that asked the witness to assumethe credibility of witnesses constituted improper vouching by the prosecution for testimony 428 she knew or should have knownto be false and unsupported by the evidence. 966. The hypotheticals, which included both victims’ alleged pleas for mercy purportedly based on eyewitness statements, were much more vivid and inflammatory than the actual evidence presented by the prosecution. Furthermore, the use of alleged additional violent acts through hypotheticals knownto be false was highly prejudicial, particularly in this case wherethere was no violent criminal activity alleged except for the capital murderitself. In at least one instance, the prosecution emphasized race, blatantly appealing to any racist tendencies ofjurors, although she knew or should have knownthat race was not a factor the jurors could properly consider in sentencing. 967. It is unquestionably misconduct for a prosecutor to argue facts that are knownto befalse and that are not in evidence. People v. Hill, 17 Cal.4th at 827-28, citing People v. Pinholster, 1 Cal.4th 865, 948 (1992). The prosecutor’s misconductin using hypotheticals not based on the evidence and that she knew or should have knownto be false and/or unsupported by the evidence, renderedthetrial fundamentally unfair in violation of due process. The prosecutor’s excesses are especially egregious in a death case, where both the prosecutors and courts are 429 charged with an heightenedobligation to ensure thatthe trialis fundamentally fair in all respects. Moreover, the trial court erred in overruling counsel’s objections to the prosecutor’s hypothetical questions. The court also erroneously rejected a motion for mistrial based on this conduct. RT 1984-1986. The court’s failures and the prosecutor’s misconductviolated Petitioner’s rights to due process,to fairtrial, to confront and cross-examine witnesses and to a reliable, non-arbitrary and individualized sentencing determination. The Prosecutor Used Argument As a Substitute for Evidence 968. It has long been established that a prosecutor may not use argumentto the jury as a meansof supplying additional testimony in support of the People’s case. 969. A violation of these rules of professional and ethical conduct 78constitutes misconduct’® and implicates basic constitutional rights. When a 78 See also the following: ABA Model Rulesof Professional Conduct(1989), Rule 3.4(e) [A lawyer shall not . . . in trial. . . assert personal knowledgeoffacts in issue except whentestifying as a witness, or state a personal opinionasto . . . the credibility of a witness”]; ABA Code of Professional Responsibility (1980) DR 7-106(C) [‘In appearingin his professional capacity beforea tribunal, a lawyer shall not . . . (3) Assert his personal knowledgeofthe facts in issue, except whentestifying as a witness. § (4) Assert his personal opinion as to. . . the credibility of a witness.”]; ABA Code of Professional Responsibility, Ethical Considerations, EC -7-25 [“[A] lawyer should not by subterfuge put before a jury matter which it cannot properly consider”]; 1 ABA Standards from Criminal Justice, The Prosecution Function (2nd ed. 1980), Standard 3- 430 prosecutor uses her argumentto present the jury with facts not in evidence but allegedly knownto her, the accusedis denied his rights to confrontation and cross-examination of witnesses. Donnelly v. DeChristophoro, 416 U.S. 637, 643, n.15 (1974). This in turn renders the accused’s right to the effective assistance of counsel an “empty formality.” See Ungarv. Sarafile, 376 U.S. 575, 589 (1964); see also United States v. Cronic, 466 U.S. 648, 659, n. 25 (1984). And because the accused is unable to employ the great truth-determining devices of cross-examination and the assistance of counsel, the resulting verdict is fundamentally unreliable. See Beck v. Alabama, 447 U.S. 625 (1980); Johnson v. Mississippi, 486 U.S. 578 (1988). 970. Thetrial court’s error in refusing to rein in the prosecutor’s use of hypotheticals was exploited by the prosecutor in closing argument when 5.8(b) [“It is unprofessional conduct for the prosecutor to expresshis or her personalbelief or opinionasto thetruth or falsity of any testimony”’] and Standard 3-5.9 [“It is unprofessional conduct for the prosecutor intentionally to refer to or argue on the basis of facts outside the record... unless such facts are matters of commonpublic knowledge. . . or matters of whichthe court maytake judicial notice.”]; National District Attorneys Association, National Prosecution Standards (1st ed. 1977), commentary to std. 17.17, p. 280 [“The courts are, in general, adamant concerning any suggestion from the prosecution that there is other convincing evidence of the defendant’s guilt which is not before the jury.”]; Rules of Professional Conduct of the State Bar of California (Jan 1989), rule 7-105 [“a member of the State Bar shall refrain from asserting his personal knowledgeoffacts at issue except whentestifying as a witness.”’]. 431 she referred to the hypotheticals as if they were proven facts which properly could be considered by the jury. This misconception was also fostered by the court’s instruction, CALJIC 2.82, which informed the jury that in permitting such questions, the court had determined that the “assumed facts are within the probable or possible range of the evidence.” CT 956. Under the circumstancesofthis case, that instruction further misled the jury, improperly informedthe jurors that evidence existed to support the hypothetical questions, and wholly undermined the Eighth Amendment requirementofreliability in capital sentencing. 971. Additionally, in discussing sentencing factor (b), the presence or absence of other criminal activity involving violence, the prosecutor reminded the jury of some “facts” mentionedto the psychiatrist, and stated she did not “need [to] bring in those witnesses in order to ask a hypothetical to that witness,” RT 1995, implying that the witnesses would have so testified if called. Although at defense counsel’s request the jury was instructed that there was noprior violentactivity for consideration,” RT 2022, RT 2055, the damage wasalready done. Furthermore, that instruction did not address the misleading hypotheticals or refute the suggestion that someof the hypothetical questions were relevant to factor (a), while others 7 The court’s instruction was oral. The written instructions contained no qualifier on factor (b). 432 soughtto establish non-statutory aggravation. Nor were the jurors instructed according to CALJIC No. 8.87 that they were required to find criminal acts beyond a reasonable doubtbefore they could consider these incidents in aggravation. 972. The introduction of non-statutory aggravation without proper notice, and without providing the opportunity to rebut such evidence violated Petitioner’s statutory and constitutional right to notice of aggravation that will be admitted against him, Pen. Code § 190.3; Cole v. Arkansas, 333 U.S. 196 (1948), as well as his due processliberty interest in having his sentence determined on the basis of properly noticed statutory factors, Hicks v. Oklahoma, 447 U.S. 343 (1980). 973. The use of hypotheticals to inject false, inflammatory and unreliable information into the penalty phase violated Petitioner’s constitutional rights to due process,a fair trial, confrontation and cross- examination, and a reliable determination of penalty. Dardenv. Wainwright, 477 U.S. 168 (1986); Donnelly v. DeChristoforo, 416 U.S. 637; Penry v. Lynaugh, 492 U.S.at 328. 974. The State violated Petitioner’s rights by knowingly presenting false testimony, Money v. Holahan, 297 U.S. 103 (1935), allowing witnessesto give false impressions of the evidence, Alcorta v. Texas, 355 433 U.S. 28 (1950), and/or allowing false evidence to go uncorrected, Napuev. Illinois, 360 U.S. 264 (1959). 975. Petitioner incorporates Claims C and D. 976. To the extent that trial counsel should have knownthat the hypotheticals were false, unsupported by the evidence and/or that the witnesses upon whom the hypotheticals were based possessed potentially mitigating evidence, counsel’s failure to investigate, discover, and/or introduce the evidence cited in the preceding subparagraphsofthis section of the petition, such failures were unreasonable andprejudiced Petitioner, and deprived him of the aforementionedconstitutional rights to due process and equal protection, to the reasonably competent assistance of counsel, and to freedom from cruel and/or unusual punishment. Hadtrial counsel performed adequately, it is reasonably probable that the outcome ofthe penalty phase ofthe trial would have been different. See Claim D. 977. To the extent that the prosecutor failed to inform the defense of potential mitigation material, including impeachment material, Petitioner’s due processrights were violated. Brady v. Maryland, 373 U.S. 83, 87 (1963). ImproperInjection of Speculation Concerning Gang Affiliation and Future Dangerousness Into the Penalty Phase 978. Other than the capital crimes and the improperly injected false — 434 other crimes evidence, there was no evidence ofany other violent activity by Petitioner. The only evidence presented by the prosecution in aggravation wasthe stipulation to two prior felony convictions for nonviolent drug offenses and the inflammatory victim impact evidence discussed above. RT 1847-89. Nevertheless, the prosecutor, both in cross- examiningPetitioner’s experts and in her opening and closing arguments, stressed her opinion concerning Petitioner’s future dangerousness and, her unsubstantiated belief in the certainty that he would kill again. The prosecutor essentially informedthe jury that its choice was notthe one authorized by the statute and demanded by the Constitution -- between sentencing Petitioner to death orlife without possibility of parole -- but was instead between giving Petitioner death or ensuring death for some innocent victim that Petitioner was sure to kill in the future. Despite the total absence of evidence that Petitioner had ever been involved ingang activity or that the shootings were gang-related, the prosecutor questioned Petitioner’s expert in a mannerthat implied that unless Petitioner were executed, Petitioner would likely become a gang memberin prison who would kill innocent people, thus creating more grieving families for whom the jurors would be personally responsible. The prosecutor then stressed this point in her closing argument. 435 979. These highly inflammatory tactics injected impermissible, arbitrary, and inaccurate factors into the jury’s sentencing determination, unduly inflamed the jury and causedthe jury to speculate about what might occur in the future. These impropertactics completely diverted the jury from its legally defined task, which was to determine the appropriate penalty based on the circumstances of the crime and character of the defendant through the context of the statutory factors. As a result, Petitioner’s trial was fundamentally unfair and the jury’s sentencing determination was rendered unreliable, non-individualized and arbitrary in violation of Petitioner’s Eighth Amendment and due processrights. 980. In her opening statementat the penalty phase, the prosecutor informedthe jury that “[1]t is the People’s position that the circumstances that I presented to you [at the guilt phase], the cold, calculated mannerin which Mr. Boyette executed two people showsthat there is a strong likelihood that he would kill again. And you haveto ask yourselves, do you want to put more families through that?” RT 1844. 981. After the prosecution presented its victim impact evidence, the defense presented the testimony of Dr. Fred Rosenthal, whotestified that Petitioner suffered from drug and alcohol abuse, had emotional problems, and was “operating emotionally and intellectually at a much younger age 436 than his actual age.”” RT 1892-93. Dr. Rosenthal further testified that Petitioner was a “fairly passive and dependentindividual.” RT 1893. Such characteristics, Dr. Rosenthal testified, might lead to a diagnosis of dependentpersonality disorder in the future. RT 1892-1893. Dr. Rosenthal described individuals with this disorder as those who “tend to rely very heavily and very easily get influenced by other people . . . they have a hard time living independently, making judgments, seeing the world from an independentpoint of view . . . [and are] very vulnerable and sensitive to criticism from other people.” RT 1893-94. 982. On cross-examination, the prosecutor asked Dr. Rosenthal whetherPetitioner could be influenced by a gang, RT 1897, or would do something in orderto get into a gangorto establish his status in a gang. RT 1898. Dr. Rosenthal responded that Petitioner could be influenced by people he considered leaders and would morelikely do somethingto please others, rather than get into a gang. RT 1897-98. The prosecutor then asked the following questions and elicited the following answers: Q. And you have interviewed inmates in prison, I guess, state prison as well as the differentjails. A. I have,yes. Q. And you’re awarethat in these prisons, there are prison gangs, right? 437 A. Yes. Q. Haveyou ever heard of the Black Guerilla Family? A. Ive heard of them. Q. Yeah. And isn’t that a very powerful prison gang in the State of California. RT 1898. 983. After an objection to this question was sustained, the prosecutor, asked, “Would you say that the Black Guerilla Family would be the type of gang that might influence Maurice Boyette to commit other crimes?” RT 1898. Dr. Rosenthal respondedthat he did not know anything about this gang and wasnot an expert on gangs, and that people like Petitioner did not need a gang to be led. RT 1898-99. 984. The prosecutor then attempted to elicit additional testimony on Petitioner’s future dangerousness: Q. But if it is the wrong type of personality, as far as committing crimes, then Mr. Boyette’s going to get caught up with the wrong -- in more crimes, is that what you’re saying? A. I’m not sayingthat. RT 1899. 985. In her closing argument, the prosecutor returned to the theme of gang activity and future dangerousness, paraphrasing the cross- 438 examination of the defense expert to draw her own unsupported conclusions: Then I had my opportunity to cross-examine him. And I wentright to the issue of: could you describe this dependent personality? And he repeats, how dependent? Howeasily led? Then I asked him: “Well, aren’t there gangsin prison who would exert that type of control? Isn’t that the personality of someone whois going to do anything for a gang? Everhear of the Black Guerilla Family?” Andall of a sudden,hestarts backing off. I asked him: “In other words,if Mr. Boyette gets caught with a good group of people, he will do good things; if he gets caught up with a gang, he will do what they want him to do? A hit man?” Then the good doctor backs off. RT 2001. The prosecutor continued to disparage the expert’s testimony, stating that the expert “talks out of both sides of his mouth . . . as soon as I start mentioning gangs, because you know whatI’m getting at, his likelihood of killing again, his future dangerousness. The perfect personality who could kill again.” RT 2002; see also RT 2018 (“They brought out all these things that he is a big follower. Think ofprisonlife, can you imaginethe stress of prison? You have no idea. And the gangs, and the pressures.”); RT 2004 (regarding whetherit is easier for sociopaths to kill); RT 2013 (“Who’s a better hit man? When youtalk abouthis future dangerousness, no conscience.”). 439 986. The prosecutor further argued that the jury must vote to impose death to prevent Petitioner from being violentin prison or joining a gang. RT 2017 (“{I]f you give him life in prison, what are they going to do if he commits an assault or something? If he commits a murder I’m back here with him asking for the same thing. More grief, more trauma, another dead body or two.”); Jd. (“But what are they going to do to him if they’re fighting, joining a gang? .. . There’s nothing that they can do to him unless he commits another murder.”). 987. The prosecutor exhorted the jury to speculate about the likelihood that Petitioner would kill again, and referring back to and interweaving the highly emotional victim impact evidence, urged the jury to vote for death on the basis of future pain that would be caused. Thus, the prosecutor argued that future dangerousness was “a very important consideration,” RT 2002, and that the jurors “have to look at his future dangerousness. Is this a remorseful person whoreally blew it one night or is this a sociopath who’s goingto kill again? That’s the bottom line. Can you put another family through what they went through? That’s what you have to decide.” RT 2002-2003; see also RT 2008 (“And what you have to rememberis you have to weigh: do you wantto put another family through that... Are you going to make the choice to put another family through that 440 if he kills again?”). 988. The prosecutor continued: “/’m standing here to save the life of the next victim and to avoid anotherfamily going through whatthese families have gone through. We’re both up here to save lives. Mineislife of an innocent person whohas done nothing. Theirsis the life of a sociopath.” RT 2014. (emphasis added.) 989. The prosecutor argued further: RT 2016. You found two cold-blooded,first degree -murders. No remorse. No concern. Whatbetter evidence do you have that he would doit again? [4] And that’s the intangible. You see him sitting here and it’s human nature to want to help preservea life. That’s the moral struggle you have, because you see in front of you a humanbeing that you would like to help and you would like to avoid any traumato the family. I know that. This is not an easy decision. [§]] But what you have to rememberis he doesn’t feel any of those things that you’re going through or feeling. And he’s going to do it again. And that nextvictim is the intangible that you can’t see. It is not sitting here. That’s what I represent. And those families are what you can’t see... and that’s where I’m talking aboutright here, the likelihood he will kill again. It gets easier and easier. 990. The prosecutor again emphasized that the choice was not simply death or life without possibility of parole, the two sentencing 441 alternatives; instead, with no evidentiary support and contrary to California law and the mandatesof the federal constitution, she insisted that the real choice the jury had was between death for Petitioner or death for other innocent victims for whom the jurors would be responsibleif they did not fulfill their obligation to sentence Petitioner to death: “That is your bottom line issue. Someoneis going to die. The bottom lineissue:Is it a sociopath, remorseless liar or is it his next victim? That’s what you have to decide. That’s that value you haveto place on life.” RT 2017. See also RT 2018 (“So when youtalk abouthis likelihood of killing again, it doesn’t mean just because he’s in prison it’s going to be another bad guy. There’s a lot of good people who havejobsin prison”); id. (“Well, think what he’s going to be exposedto in prison. Think of how easythat will be to kill.”); RT 2020 (“If you give him life, you give him licenseto kill.”’). 991. The prosecutor’s line of questioning and argument on future dangerousnessand gangaffiliation and her attemptsto elicit expert testimony on future dangerousness was highly improper. The prosecutor argued facts not supported by the record, appealed to the passions and prejudice ofthe jury, incited racial animus, and improperly asked the jury to speculate about future victims and consider future dangerousnessas an aggravating circumstance. 442 992. The prosecutor’s argumentthat the death penalty was necessary to prevent future murders by Petitioner was clearly improper, Dardenv. Wainwright, 477 U.S. at 180-181 & n. 10; was not based on the evidence, were highly inflammatory, caused the jury to unduly speculate about the future, and misinformedthe jury aboutthe nature of its sentencing choice (i.e., death or life without possibility of parole, not death of defendant or death of future victims). The prosecutor misled the jurorsasto their task, and she did so in a mannercalculated to achieve a verdict based, not on reason, but on passion. This Court has condemned such argument because it “might diminish [the jury’s] sensitivity to its task.” People v. Morse, 60 Cal.2d 631, 649 (1964); see also Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985). 993. While argument regarding a defendant’s future dangerousness has been held to be proper when based on the defendant’s past conduct, People v. Hayes, 52 Cal.3d 577, 635 (1990), or in response to defense evidence that the defendant would not be a dangerin prison, Peoplev. Taylor, 52 Cal.3d 719, 752 (1990) (Mosk J., concurring), when there has been no properly admitted evidence ofprior violence, the defense presented no affirmative evidence of Petitioner’s prison conduct, and the prosecutor’s argumentis based solely on speculation without any evidentiary support, 443 and particularly here where the argument was based in part on false hypotheticals, such questioning and argument are completely inappropriate andare likely to lead to an unreliable sentencing determination. The prosecutor’s comments -- warning the jurors that if they did not sentence Petitioner to death Petitioner would kill again -- improperly placed responsibility on the jury for future conduct and diverted the jury from its responsibility to determine the appropriate sentence based on Petitioner’s background and character and the crime. Penry v. Lynaugh, 492 USS.at 328.%° | 994. In addition, the prosecutor’s argument constituted a misstatement of the law, since future dangerousness is not a proper aggravating factor under California law. See Pen. Code § 190.3; Boyd, 38 Cal.3d at 772-776. The jury’s consideration of future dangerousness in determining sentence violated due process by arbitrarily depriving Petitioner of his state-created liberty interest in a sentencing determination based solely on the statutory factors. Hicks v. Oklahoma, 447 U.S. 343. 995. Theprosecutor’s focus on gangaffiliation, particularly a gang knownas the Black Guerilla Family, and particularly in the absence of any evidence ofPetitioner’s affiliation with that group, was a blatant appeal to 80 As can be seen bythe juror misconductthat followed, the jury was led to speculate wildly and wholly inappropriately. See Claim A. 444 racism, and was designedto further inflame the jury and divert it from its proper task. Moreover, even assuming there was evidencethat Petitioner was in or would some day join a gang,” such evidenceis not a statutory sentencing factor, and is therefore an improper consideration for the jury. See People v. Gonzalez, 51 Cal.3d 1179 (1990); Boyd, 38 Cal.3d 762. 996. Furthermore, while eliciting testimony on cross-examination regarding the possibility of gang activity in prison may be appropriate where the defense presents evidence ofthe likelihood ofpositive institutional adjustment, People v. Malone, 47 Cal.3d 1, 31 (1988); People v. Morris, 53 Cal.3d 152, 219 (1991), it is not permissible here, where no such evidence was presented and where the questioning and argument only sought to obtain expert opinion regarding the defendant’s future dangerousness. See People v. Murtishaw, 29 Cal.3d 733, 767-75 (1981) (expert testimony maynotbe elicited in a capital case on the subject of a defendant’s future dangerousness); see also People v. Clark, 3 Cal.4th 41, 161 (1992) (no misconduct because prosecutor did not solicit expert forecasts of future dangerousness). 8! In fact, defense counsel wasineffective for failing to rebut insinuations of gangaffiliation with the uncontrovertedfact that Petitioner had never joined a gang, despite having spent a vulnerable,isolated, and lonely adolescence surroundedbythat sort of activity. Haney Dec., Exh. 71. 445 997. Evidence and argument about gangactivity in this case were irrelevant and prejudicial. See People v. Malone, 47 Cal.3d at 30,citing People v. Cardenas, 31 Cal.3d 897, 904-05 (1982); People v. Perez, 114 Cal.App.3d 470 (1981); see also Zant v. Stephens, 462 U.S. 862 (1983); Johnsonv. Mississippi, 486 U.S. 578. The jury’s consideration of this improperand highly inflammatory factor arbitrarily deprived Petitioner of his due processliberty interest in a penalty determination based solely on statutory factors. Hicks v. Oklahoma, 447 U.S.343. | 998. The prosecutor’s rhetoric and knowingly false speculation were not evidence, and had no place in trial where Petitioner’s life was at stake. The prosecutor worked and reworked the fears and prejudices of the jurors to the point where no court of law could have confidence in the verdict. The prosecutor’s cross-examination of Petitioner’s expert and her opening statement and closing argument were highly inflammatory and prejudicial, contained misstatements of law and fact, and inflamedthe jury soasto divert it from making a reasoned moral responseto Petitioner’s background, character, and crime. This misconduct so infected the trial with unfaimess as to make the resulting sentence fundamentally unreliable in violation of Petitioner’s right to due process of law and his Eighth Amendment night to a reliable, non-arbitrary and individualized sentencing determination. 446 Darden v. Wainwright, 477 U.S. 168; Donnelly v. DeChristoforo, 416 U.S. 637; Penry v. Lynaugh, 492 U.S.at 328. Improper Comments on Petitioner’s Failure to Testify and Lack of Remorse 999. By improperly referring to Petitioner’s failure to testify at the penalty phase, the prosecutor committed misconduct, which was exacerbated by her argument and cross-examination of Petitioner’s expert regarding Petitioner’s alleged lack of remorse. The prosecutor’s comments violated Petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendmentrights to due process, against self-incrimination,to a fairtrial, and reliable, individualized sentencing determination. 1000. In her closing argument, the prosecutor commented on Petitioner’s failure to testify and to express remorse for the killings. In her discussion of aggravating factors, the prosecutor stated that Petitioner’s prior convictions would have been relevant to Petitioner’s credibility “if he were to -- somehow, Godforbid take the stand and say he wassorry, which you didn’t see.” RT 1995. Later in her argument, the prosecutor returned to this impermissible theme, giving her definition of remorse andstressing Petitioner’s alleged lack of remorse, including his failure to admit his guilt and say he wassorry for committing the crimes: “‘A deep torturing sense of guilt felt over a wrong that one has done.’ Which we know sociopaths can’t 447 do. He shoots Carter, no remorse. Killed Annette, no remorse. Shoots Carter again,it’s getting easier. No remorse. .. . Not once hashe said he’s sorry.” RT 2102. 1001. In addition, during her cross-examination of Dr. Rosenthal, the prosecutor asked questions regarding whether Petitioner showed any remorse, RT 1908, 1916, despite her awareness or knowledgethat Petitioner had denied committing the crime to Dr. Rosenthal, RT 1900, 1913. 1002. The prosecutor then explicitly argued that in determining sentence, the jury should consider the facts of the crime, Petitioner’s lack of remorse and his future dangerousness: “What you haveto lookat, that lack of remorse, and the facts of this killing, which show youa substantial likelihood of him killing again.” RT 2013. 1003. The prosecutor’s comments regarding Petitioner’s failure to testify and her argumenton lack of remorse constituted error pursuant to Griffin v. California, 380 U.S. 609 (1965) because they focused on Petitioner’s exercise of his privilege against self-incrimination,as reflected in his failure to testify at the penalty phase and express remorse. See Miller v. Lockhart, 65 F.3d 676 (8th Cir. 1995). While it is true that the prosecutor is free to make “a logical comment on the defendant’s lack of remorse” 448 based on the state of the evidence, a “reference to a defendant’s failure to testify” is improper. See People v. Breaux, 1 Cal.4th 281, 313 (1991); see also People v. Crittenden, 9 Cal.4th 83 (1994). “Prosecutorial comment which drawsattention to a defendant’s exercise of his constitutional -right not to testify, and which implies that the jury should draw inferences against defendantbecauseofhis failure to testify, violates defendant’s constitutional rights.” People v. Murtishaw, 29 Cal.3d 733, 757 (1981). 1004. Here, the prosecutor did not commenton Petitioner’s lack of remorse based on inferences from the evidence, but clearly and unequivocally commented, not once, but twice, on the fact that Petitioner did not testify at the penalty phase to say he was sorry. RT 1995, 2012. Worse, the prosecutorial commentary waslinked to improper argument that Petitioner would kill again if he were not sentenced to death. 1005. The prosecutor’s commentsalso constituted Boyd error by invoking a nonstatutory aggravating factor, and Davenporterror by misrepresenting the absence of mitigation as aggravation. See Boyd, 38 Cal.3d at 771-76; People v. Davenport, 41 Cal.3d 247, 288-90 (1985). In Boyd, this Court held that a prosecutor may not present evidence in aggravation that is not relevant to the statutory factors enumerated in Pen. Code § 190.3. Boyd, 38 Cal.3d at 773-74. It is well settled that lack of 449 remorseis not a statutory aggravating factor. Crittenden, 9 Cal.4th at 148. While the prosecutor “may suggest that an absence of evidence of remorse weighs against a finding of remorseas a mitigating factor,” id. (emphasis in original), he or she may not argue or imply that lack of remorse is aggravating. See also People v. Keenan, 46 Cal.3d 478, 510 (1988). “Because remorseis not a statutory factor, comment on its absenceis irrelevant and inappropriate in cases in which the defendant has not acknowledged responsibility for the killing or otherwise invited comment.” People v. Bell, 49 Cal.3d 502, 548 (1989). 1006. The prosecutor did not argue that remorse wasa factor in mitigation that was lacking in this case, Davenport, 11 Cal.4th at 1220, but strongly implied that lack of remorse, together with the prosecutor’s speculation on Petitioner’s future dangerousness andthe facts of the crime as embellished by the prosecutor’s knowing use of false hypotheticals in questioning and argument at the penalty phase, was an aggravating factor. This argumentarbitrarily deprived Petitioner of his state law entitlement to have his sentence determinedbystatutory factors in violation of due process. Hicks v. Oklahoma, 447 U.S. 343. The prosecutor’s argument renderedthetrial fundamentally unfair, Darden v. Wainwright, 477 U.S.at 181, and created an unacceptable risk that the jury’s weighing of factors 450 wasbased on mere “‘caprice” or on “factors that are constitutionally impermissible or totally irrelevant to the sentencing process.” Johnsonv. Mississippi, 486 U.S. at 585, quoting Zant v. Stephens, 462 U.S. at 884-85. Improper Arguments Regarding Society at Large and Other Murders in the Community 1007. As discussed above, the prosecutor appealed to the fears of the jury at the guilt phase by commenting on the increasing violence in society and the jury’s obligation to do something to stop it. The prosecutor continuedto emphasize this themeat the penalty phase, which infected the trial with unfairness, precluded an individualized and reliable sentencing determination and diverted the jury from a “reasoned moral responseto the defendant’s background, character and crime.” Penry v. Lynaugh, 492 U.S. at 328, quoting California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring); Johnson v. Mississippi, 486 U.S. at 585; Darden v. Wainwright, 477 U.S.at 181. 1008. The prosecutor’s comments wereas follows: What’s interesting is we, as a society, are fascinated by our youth andtheir ability to kill. They don’t feel anything andit’s getting younger and younger. And what you have to remember,that’s a different generation than us. That’s a different T.V. generation, different lifestyle, drugs are younger,it is normal to carry a gun to junior high these days. Very different culture and we can’t understand it. How many 451 times do you pick up the newspaper and read about an 11-year-old killing, Time Magazine about a 15-year-old wants to stab their teacher and others placing bets on whether they’! doit. Andwejust can’t believeit. [§[] We haveto start believing it, Ladies and Gentlemen, we have to start believing it. Because it’s reality. And it’s . not good enough any morethat you’re only 19. . .. If you give him a break because he only went through the 9th grade .. . and he’s 19, you better be ready for an onslaught. RT 2006-07; see also RT 1999 (“It’s going on right now,front page. Cantina murders on Park Boulevard.”). 1009. Such an extended appeal to the jury to vote to impose death becauseof theills of society, particularly when considered with similar guilt phase arguments, cannot be characterized as “isolated, brief references to retribution or community vengeance,” that have been deemed permissible by this Court. See People v. Anderson, 52 Cal.3d 453, 479-80 (1990); People v. Ghent, 43 Cal.3d 739, 771 (1987). On the contrary, as with so muchofthe prosecutor’s argument, such comments were designed to— and surely did — have an inflammatory effect on the jury that would divert it from determining a sentence based on appropriate considerations;i.e., the circumstancesof the crime and the character and backgroundofPetitioner. 1010. The prosecutor wentfurther, discussing other murders and comparing them in degree to this case: 452 I thought it was very interesting that a few weeks ago while we werein this trial, whatis on the front page of every newspaper in the Bay Area? And everyone is saying whata senseless, cold, double murder, execution-style senseless. That was the Cantina murders on Park Boulevard. Execution-style, shot in the head in the freezer. [§]] And you know what? There was a motive involved. It was robbery. In this case, you have cold-blooded, execution-style double murder and you don’t even have a motive, except that they’re witnesses. This is far more heinous. Hekilled for no reason. RT 2010. The prosecutor continuedto argue that the grief felt by the families of the victims in this case wasjust as important as in the Cantina murders. RT 2010-11. The prosecutor then argued the impactof this case on the community: RT 2011. Andyou don’t read about these cases. But you know what? These are wherethestatistics of Oakland comefrom, in the streets and families and neighborhoods. Your verdict is very important to them. They moveoutof the neighborhoods because of a murder. These families, they get life sentences. Everyone does. The pain and the grief is everywhere, whetherit is front page or it is a paragraph in the back. 1011. It was completely improperfor the prosecutor to compare this case to other cases. Not only would this havethe likely effect of precluding an individualized sentencing determination based on the facts and 453 circumstancesofthis case, but it is fundamentally unfair to allow the prosecutor to make such arguments, when Petitioner is precluded,as a matter of law, from presenting evidence and arguinginter-case proportionality. See People v. Bradford, 15 Cal.4th 1229, 1383-84 (1997). Improper Argument that Jurors Should Excuse Themselves If They Could Not Vote for Death and Defer to Other Jurors Who Had “Street Smarts” 1012. At the guilt phase,the prosecutor misrepresented the jury’s deliberative process by encouraging any potential holdouts for acquittal to submit to the majority. RT 1720. By the time of penalty argument, the prosecutor wasalso awarethat at least some of the jurors were speculating about extrinsic evidence. Juror Ary had already asked four questions that the court had determined were, for the most part, “None of his business.” RT 1576.” The prosecutor also knew that the jury contained jurors who could be termed“street smart”like Ary, and others from different backgrounds whoshe termed “naive.” RT 1994. Thus, the prosecutor made a similar appeal at the penalty phase, encouraging jurors who might feel sympathy for Petitioner or might be inclined to vote for life without 82 Juror Ary asked: (1) How can a homeless person obtain such private lawyeror are the [sic] court appointed; (2) The neighbor wholived 4 housesupthe street describe the size of the person he saw standing in the street or over (near) the body (sml, med,Irg) short ortall; (3) This blind person being tried also or what; (4) Did the person ontrial or is he willing to take a lie detector test. CT 804. 454 possibility of parole to excuse themselves from the panelor to defer to other jurors whowere not as naive. First, the prosecutor remindedthe jurors that they all avowed during voir dire that they could return a death verdict. RT 1993. “And every one of you said you could.” /d. The prosecutor then stated that if “this is just too much for you and you cannot deliberate in a case like this, you must let us know. Wehavealternates.” RT 1993-94." 1013. This argument was improper. Atthis point in thetrial, the jurors had heard all the penalty phase evidence. It would be completely appropriate and indeed expected that some would have doubts about imposing the death penalty againstPetitioner at this point in the trial. These doubts do not constitute a reason for disqualification and are not inconsistent with a juror’s promise on voir dire that he or she had the capacity to imposethe death penalty in general. 1014. The prosecutorinstructed the jurors to defer to those jurors among them who had experiencedviolence,1.e., those with “street smarts,” 83 Juror Karantzalis informed the court that he had been influenced by the prosecutor’s argumentto believe that it was his duty to remove himself from the jury. RT 2024-2025. See also Karantzalis Dec., Exh. 84. Outside the presence of the other jurors, the trial court acknowledged that this comment was improperalthoughit failed to make anyclarifying comments to the jury. RT 2025. After Juror Karantzalis was excused for being unable to vote for death, a clear message was sent to the remaining jurors that someone who was unwilling to vote for death should not continue to serve on the jury. In fact, the court lacked the good cause necessary to properly excusea sitting jurorat that late stage of the trial. 455 and told them that they “can’t be naive about these things,” and that they should pick a “street smart foreman. A very street smart foreman whowill lead you and guide you.” RT 1994. The prosecutor urged the less savvy jurors to defer to the ones with “street smarts.” RT 2019-20. 1015. What I wantto dois just say a couple of things to you. First of all, for some of you, in your backgrounds,this is a very different world for you. And | think sometimes wein the criminal justice system forgets [sic] that. We’ve taken you off the streets from different townsin the Bay Area and we’ve thrown you in here. And for some of you, you’ve seen some ofthe violence that goes on, you know. You have street smarts. [{]] So those of you who aren’t exposedto this, listen to your fellow jurors who know what’s going on. Youlisten and you be very patient, don’t have a set opinionright off the bat, you listen and you talk aboutit... . You’ve gotto listen to your otherjurors in this regard. You don’t think for one second he’s learning from this. He’s just learning to be a better liar.... And I want you to always rememberthe victims. If someonestarts to feel sympathy for him, you look at these [photographs] right here. You lookat that. That’s what he did. When youstart to feel sorry for him. These comments, in essence, told jurors who might have open minds about their penalty determination and who might feel sympathy for Petitioner to defer to other jurors who would not be swayed by sympathy, 456 including those who might have somebias due to the fact they had previously had experience with or been exposed to violence. The argument expressly urged jurors to go outside the evidence in deciding the penalty, to consider the extra-judicial experiences ofjurors “who know what’s going on.” Particularly when considered with a similar appeal in guilt phase closing arguments, this argument unreasonably skewedthe deliberative process, Penry v. Lynaugh, 442 U.S. 302 (1989), renderedthe trial fundamentally unreliable, Woodson v. North Carolina, 428 U.S. 280 (1976); Darden v. Wainwright, 477 U.S.at 181, and deprived Petitioner of a fair and impartial jury,in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments.” The Prosecutor Knew or Should have Knownthat Juror Ary was a Convicted Felon and Not Eligible for Jury Service. 1016. It was common knowledgethat the Alameda County District Attorney’s Office would routinely run a criminal background check on potential jurors, Cannady Dec., Exh. 59, Sawyer Dec., Exh. 107. 1017. Had the prosecutor run such a check on Juror Ary, she would have discovered that he was a convicted felon and therefore disqualified for jury service. 8* Tt is now apparentthat other jurors were also misled by the prosecutor’s remarks which, arguably, led directly to the misconduct committed in the penalty phase deliberations. See Claim A. 457 1018. Thus, the Alameda County District Attorney’s Office, including the prosecutor and her agents, knew or should have knownthat Juror Ary was disqualified to serve as a juror in Petitioner’s case. The prosecutor failed to disclose this information to either the court or defense counsel. 1019. The State violated Petitioner’s rights by failing to disclose this ' information to defense counsel. Brady v. Maryland, 373 U.S. 83 (1963). To the extent that trial counsel failed to moveto receive this information from the prosecutor, see Sawyer Dec., Exh. 107, Petitioner was denied effective assistance of counsel. 1020. Had the information concerning Juror Ary been discussed, Juror Ary would have been deemedineligible to serve as a juror. If he had not been deemedineligible, trial counsel would have used a peremptory challenge to strike him. Cannady Dec., Exh. 59. Cumulative Misconduct 1021. The claims presented herein demonstrate a pattern of misconduct by the State. The prosecutors and their agents in this case violated their properrole in the criminal justice system. The properrole of a criminal prosecutoris not simply to obtain a conviction but to obtain fair conviction. Brady v. Maryland, 373 U.S. 83, 87 (1963). Prosecutorial 458 misconduct perverts the adversarial system andtaints the results. Napuev. Illinois, 360 U.S. 264 (1959). Such behavior should be condemnedas violative of canons fundamental to the “traditions and conscience of our people.” Rochin v. California, 342 U.S. 165, 168 (1952) quoting Snyderv. Massachusetts, 292 U.S. 97 (1934). 1022. Petitioner incorporates Claims A, B, C, D. F. PETITIONER’S STATEMENT TO THE POLICE WAS INVOLUNTARY AND ITS ADMISSION VIOLATED HIS CONSTITUTIONAL RIGHTS 1023. Petitioner’s confinement and sentenceareillegal and unconstitutional under Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution, and under Article I, sections 1, 7, 13, 15, 16 and 17 of the California Constitution because the Oakland Police Department deliberately prevented Petitioner from knowingly, intelligently and voluntarily exercising his Fifth Amendment and Fourteenth Amendmentrights to counsel andto be silent, continued to interrogate Petitioner after he invoked his right to counsel, and used coercive interrogation techniques which were specifically designed to confuse Petitioner and overcomehis will thereby obtaining unreliable statements which were usedat trial to convict him and sentence him to death. 1024. Further, all fruits of the government’s violations of 459 Petitioner’s rights should have been suppressed by the trial court, including but not limited to statements that Petitioner made while in police custody. 1025. In addition, the Alameda District Attorney’s Office andits agents, and the Oakland Police Departmentandits agents failed to disclose or preserve the evidence of the interrogation which would haveestablished that the statements were coerced,andtrial counsel failed adequately to investigate and presentreadily available evidence at the suppression hearing which would haveresulted in a finding that Petitioner’s statements were unconstitutionally obtained. 1026. Petitioner was deprivedofhis constitutional rights against self-incrimination, to be free of unreasonable searches andseizures, to representation by counselat all critical stages of the proceedings against him, to effective assistance of counsel, to confrontation and cross- examination of witnesses, to fundamental fairness and due process oflaw, andto reliable guilt and penalty determinationsin a capital case. 1027. Petitioneralleges the following facts in support ofhis claim, amongothers to be developedafter full investigation, discovery, access to this Court’s subpoena power, adequate funding for investigation and experts, and a hearing on the merits of the claim. 1028. Petitioner was interrogated by Oakland Police Officers on ™ 460 June 4, 1992, and on July 30, 1992. He was nineteen yearsold at the time, had only reached the ninth grade in school, and although he had been arrested for drug charges previously, he had never been interviewed by the police before. 1/25/93 RT 63; CT 728. 1029. Asalleged in Claim D,Petitioner suffered from depression, isolation, and social ostracism, had neuropsychological deficits, and manifested psychological, emotional, and behavioral consequencesofhis exposure to extreme violence in his community, a family history of extreme instability and violence, and an extraordinary pattern of parental and familial neglect and poverty. Haney Dec., Exh. 71; Pettis Dec., Exh. 99; Watson Dec., Exh. 122. 1030. As detailed in the Statement of Facts, Petitioner was interviewed by Sgt. Kozicki and Sgt. Thiem of the Oakland Police Department on June 4, 1992. Petitioner voluntarily wentto the police station. He wasread his Mirandarights, and signed a waiveras to those rights. 1/25/93 RT 20-22. In the interview, Petitioner admitted that he was in the house when the shooting occurred, but stated that a man named Dee wasresponsible for the murders. 1/25/93 RT 23; CT 86. After giving this statement, Petitioner was released. 1/25/93 RT 35, 56. 1031. On July 28, 1993, an arrest warrant was issuedfor Petitioner. 461 Sgt. Kozicki asked Petitioner’s grandmother and aunt to havePetitioner contact him, but did not inform them that an arrest warrant had issued. 1/25/93 RT 37-38. Sgt. Kozicki told them that Petitioner was “running with a bad crowd”and that he was goingto try to help Petitioner. 1/25/93 RT 37. When he talked with Petitioner’s mother, Sgt. Kozickialso left the impression that he wastryingto help Petitioner. 7/5/93 RT 32. Petitioner called Sgt. Kozicki on July 30th, and arranged to cometo the police station on August 3rd. Sgt. Kozicki did not inform Petitioner at that time that an arrest warrant had issued for him. 1/25/93 RT 38. 1032. Although Petitioner had agreed to be interviewed on August 3, 1992, Oakland police officers executed a search warrant on July 30th on Petitioner’s grandmother’s residence, where they believed Petitioner was staying. 1/25/93 RT 25, 39-40. That same day, Petitioner was handcuffed, taken into custody andtransported to the Oakland Police Department for questioning. 1/25/93 RT 40, 70. Hearrivedat the station and wasplaced in an interview room at approximately 4:50 p.m. 1/25/93 RT 40-41. Although an arrest warrant had been issued two daysearlier, Petitioner was not told he was underarrest. 1/25/93 RT 36, 57, 71. 1033. The interview room was a small room with just a table and chairs. 1/25/93 RT 34. According to Petitioner, he asked to speak with a 462 lawyer, but this request was refused. 1/25/93 RT 72. Beginning at 9:00 p-m., morethan four hoursafter being placed in the interview room andleft alone, the officers began to question Petitioner. 1/25/93 RT 41, 46. Petitioner was read his Miranda rights, and signed a waiver. 1/25/93 RT 26-27, 61. According to Sgt. Kozicki, it was not until that time that he finally told Petitioner he was underarrest. 1/25/93 RT 42. However,Sgt. Thiem stated that neither officer told Petitioner he was underarrest. 1/25/93 RT 61. Petitioner, confirming the statement of Sgt. Thiem, stated that he did not know he was underarrest when he gave the statement, and first learned he was underarrest when he was subsequently taken downstairs for booking. 1/25/93 RT 75, 77. 1034. Petitioner further stated that although he told Sgt. Kozicki he did not wantto talk to him, Sgt. Kozicki raised his voice,telling him he neededto tell them what happened because they could help him. 1/25/93 RT 74. Petitioner claimed that Sgt. Kozicki said that as long as Petitioner informed on Johnson, they would let him go, and that Petitioner would not be able to see his grandmother or mother if he did not inform on Johnson. 1/25/93 RT 74. Petitionertestified that he only gave the statement because Sgt. Kozicki said Petitioner would beable to leave if he did. 1/25/93 RT 75. Sgt. Kozicki denied that he told Petitioner that Petitioner could go 463 homeif he gave a statementor that they were interested in Antoine Johnson, not Petitioner. 1/25/93 RT 42-43. 1035. Sgt. Kozicki and Sgt. Thiem questionedPetitioner for approximately one hour before taking a taped statement from him. 1/25/93 RT 27. After giving a taped statement, in which Petitioner admitted that he and Antoine Johnson did the shooting, Petitioner was told by the police to give another taped statement, in which he was not to mention Johnson’s name. 1/25/93 RT 27-29. 1036. On January 25, 1993, the trial court denied the motion to suppress the statements, RT 104, and they were thereafter introducedat the guilt phase of Petitioner’s trial, and played repeatedly to the jury. RT. 1194, 1322, 1333, 1364, 1688-90, 1694, 1720. 1037. Petitioner’s vulnerability and thetactics of the police, individually and in combination, resulted in a coerced, and therefore unreliable and inadmissible confession. At the time of his arrest and interrogations, Petitioner was a slow, uneducated, immature, unsophisticated, and inexperienced nineteen year old. Moreover, his mental deficits and the psychological, behavioral and mental consequencesofhis backgroundandlife history, as alleged herein, see Haney Dec., Exh. 71; Pettis Dec., Exh. 99; Watson Dec., Exh. 122, left him particularly 464 susceptible to the police tactics used. He wasleft alone in a small room for four hours, never told he was underarrest, was physically and psychologically intimidated, and wasled to believe that if he gave the statementthe police wanted he would be allowed to go home.Petitioner ultimately gave a statement to the police, involving himself and Antoine Johnson in the shooting. 1038. These coercive tactics were commonly used by the Oakland Police Department, and the officers who interrogated Petitioner. 1039. Gary Rivlin, an investigative reporter, wrote a book published in 1995, called Drive-By, involving a murder in Oakland, which described the interrogation techniques employed by the Oakland Police Department and Officer Brian Thiem in particular. Rivlin Dec., Exh. 103; Excerpt from Gary Rivlin, Drive-By (1995), Exh 263. 1040. In the course of researching his book in 1993-1994, Rivlin developed a relationship with some membersof the Oakland Police Department, including Sgt. Thiem, who wasthe lead homicide investigator in the case discussed in Drive-By. Sgt. Thiem allowed Mr.Rivlin to follow him around and observe him in action. Mr. Rivlin conducted approximately one-half dozen interview sessions with Sgt. Thiem, all of which were taped and transcribed. Each interview with Sgt. Thiem lasted at least one hour. 465 Any quotes from Sgt. Thiem that are in Drive-By were taken from these taped interview sessions and are verbatim. Mr. Rivlin also took additional notes during the interview sessions and while he watched Sgt. Thiem do his job. According to Mr. Rivlin, all of the information and characterizations of Sgt. Thiem and/or his work on the homicide case are true and accurate. Indeed, Mr. Rivlin sent manuscript pages of the book to the main subjects involved, including, Sgt. Thiem, and received no corrections or complaints from him but rather compliments for accuracy. Rivlin Dec., Exh. 103. 1041. Mr. Rivlin devoted an entire chapter ofDrive-By to the arrest and interrogation of the young suspects in the book. Rivlin’s description of the interrogation techniques used by Sgt. Thiem and other officers mirrors the methods described by Petitioner but denied by the officers involved. RT 63-78, 85-88. 1042. In Drive-By, the suspect wasnotinitially arrested ortold that he was underarrest when he wasbeing questioned since arresting him would have meantthat an attorney would be assigned, makingit difficult to extract incriminating statements. Drive-By, at 95, Exh. 263. Similarly, Petitioner wasreleased after providing an initial statement to the police on June 4, 1992, andtestified at the suppression hearing that he wasnottold he was underarrest until after the July 30th statement was given. RT 77-78; 466 Exh. 264. 1043. As noted above, Petitioner described being placed tn a small room with a table and chairs where he wasleft for four hours until the interrogation commenced. In Drive-By, the Oakland Police referred to this as a “sweat room,” which was describedasthe size of a prisoncell, furnished with a bulky table and several chairs, making it even more claustrophobic. CT 251. As in Petitioner’s case, the police often parked a suspect or reluctant witness inside one of these locked sweat roomsfor hours at a time where the suspect or witnesss has nothing to do but stare at the walls. Drive-By, at 162. Exh. 263. 1044. Asa matter of practice, the Oakland officers do not tape the entire interrogation but only the ultimate confession so that the techniques andtactics used bythe officers to get a suspectto talk are a matter of the word ofthe officers against the word of the suspect. Drive-By, at 194, 199, 204; Exh. 263. In Petitioner’s case, the first hour of the interrogation was not taped. Exh. 264; CT 242-251. 1045. In Drive-By, Sgt. Thiem admitted to using just about any bluff to get the job done. He would cajole and make promisesof leniency, use verbal and physical intimidation, and makeclaimsandstate facts that were not true. Drive-By, at 199-200, 204; Exh. 263. 467 1046. As Petitioner testified at the suppression hearing, and as alleged above,all of the interrogation tactics described in Drive-By were used in the interrogation of Petitioner, RT 63-78, 85-88, and the description of these tactics in Drive-By corroborate Petitioner’s testimony, which the trial court rejected. 1047. Richard A. Leo, Ph.D., an expert in police interrogations and false confessions, has reviewed documents andtranscripts in Petitioner’s case for indicia of police coercion. Leo Dec., Exh. 85. 1048. During the period from 1990 to 1993, Dr. Leo attended and participated in a numberof formal!police interrogation trainings and engaged in empirical research on interrogation practices at the Oakland Police Department. He vieweda total of 122 interrogations conducted by that departmentandis therefore familiar with the interrogation practices of the Oakland Police Departmentat the time of Petitioner’s arrest and interrogation. Leo Dec., Exh. 85. 1049. Dr. Leo confirms the Oakland Police Department’s practice to interrogate the suspect and develop a confession without recordingit on audiotape, then turn the tape on after they are convinced that the suspect will recorda rehearsed version of the confession. In Dr. Leo’s professional opinion, the only reason Oakland Police Department investigators do not 468 make a complete audio or video recording oftheir interrogationsis to avoid the scrutiny of the outside world and obscure interrogation practices which may not comport with constitutional requirements. Such practices, are more likely to occur in homicide cases. In Dr. Leo’s professional opinion, the officers who questioned Petitioner intentionally destroyed the record of what occurred by failing to record the entire interrogation. Leo Dec., Exh. 85. 1050. The failure to create a complete objective electronic record of custodial interrogations maintains the advantageofthe police in any “swearing contest” when their accountof the interrogation differs from that of the suspect in court. Since they are almost always of higher status than defendants, and since they control the social production of knowledge about the interrogation and confession, police virtually always prevail in any “swearing contest.” Complete taping of custodial interrogations therefore threatens to undermine police officers’ superior control over the legal construction of facts about the suspect’s interrogation. With videotaping, especially, no longer can two officers “cleanse”their notes to tell similar accounts that may contradict a suspect’s testimony; instead, an objective record replacesthe officer’s testimony as the most authoritative account of the interrogation. Videotaping custodial questioning thus represents a threat 469 only to those officers who fear either receiving internal or external criticism about the legality of their interrogation methods or whofear losing a “swearing contest” adjudicated by an independent and objective record. Leo Dec., Exh. 85. 1051. Dr. Leo confirmsthat the interrogation techniques employed by Officer Brian Thiem in Gary Rivlin’s book Drive-By are consistent with those he has seen employed by the Oakland Police Department. These techniques include the practice of onlypartial taping, softening the suspect by “sweating,” using implied threats and promises, lying about the evidence or leniency, and physical and verbal intimidation. Leo Dec., Exh. 85. 1052. In Dr. Leo’s experience, the more serious the crime, the more strenuous the interrogation, both in duration and numberoftactics used. The seriousness of the crimealso increasesthe likelihood that coercive techniques will be employed. Explicit or implicit threats and promises are far morelikely to be used in high-stakes cases. Leo Dec., Exh. 85. 1053. At the time of Dr. Leo’s research and Petitioner’s interrogation, Oakland Police Departmentofficers were trained to employ conditioning strategies throughoutinterrogation with the goal of structuring the environmentso that the suspect is conditioned and positively reinforced to waive his Miranda rights and to respond favorably to the officers’ 470 questions. The technique of “sweating” the suspect is an example of one such tactic that was used in an extreme form in Petitioner’s case. He was held, alone, in two different interview rooms for four hours and eleven minutes, before he was formally interviewed. Leo Dec., Exh. 85; CT 251. 1054. According to Dr. Leo, the techniques described in Drive-By suggest clear coercion and are consistent with what Petitioner described during his suppression hearing testimony. Investigators are adept at using psychological methods to communicate coercive threats and promises by subtle, indirect and camouflaged means. The promises of leniency that Petitionertestified about (telling him he could go homeif he implicated Antoine Jackson and that nothing would happen to him) andthe threat such promises imply (ihat Petitioner will not be able to leave if he does not supply the police with that story) are tactics that Dr. Leo had seen used before, either explicitly or implicitly, in how interrogators frame benefits and rewards whentrying to persuade a suspect to comply. Leo Dec., Exh. 85. 1055. Petitioner’s description of his interrogation is consistent with Dr. Leo’s research, with what Petitioner’s aunttestified to, RT 93-98, and with the discussion in Drive-By. According to Dr. Leo, if what Petitioner describesis true, then Petitioner was clearly coerced and his statement was 471 improperly obtained. Moreover, the type of coercive tactics alleged to have been used in Petitioner’s case wouldbethesort likely to result in a false confession. Leo Dec., Exh. 85. 1056. In Dr. Leo’s professional opinion,there is no correlation whatsoever between lying and stuttering. A suggestion by a prosecutor toa jury that there was such a correlation would be false, inflammatory, and illogical. Thescientific literature does not provide a basis to include stuttering amongindicia of deception. Petitioner could have beenstuttering during the courseofhis taped statements to the police for any number of reasons, such as being nervousor because he was innocent. It could just as easily have been because he wasterrified and was being coercedto give the statement. Leo Dec., Exh. 85. 1057. Dr. Leo, or someone with comparable qualifications, would have been available in 1993, at the time of Petitioner’s suppression hearing andtrial, to evaluate Petitioner’s statements and to provide testimony and consultation for the purpose of suppressing or otherwise attacking those statements. Leo Dec., Exh. 85. 1058. Petitioner’s statements given on July 30th were involuntary under the Fifth Amendmentof the United States Constitution which guaranteesthat “[n]o person . . . shall be compelled in any criminal case to 472 be a witness against himself... without due process of law.” U.S. Const. Amend. V. A statement is voluntary under the Fifth Amendmentonly ifit is voluntary under the meaning of the Due Process Clause. See Oregon v. Elstad, 470 U.S. 298, 304 (1985) citing Haynes v. Washington, 373 U.S. 503 (1963); Chambers v. Florida, 309 U.S. 227 (1940). The test for determining whetheror not a statement is voluntary under the Due Process Clause “is whether the confession was ‘extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however, slight, [or] by the exertion of any improperinfluence.’” Hutto v. Ross, 429 US. 28, 30 (1976) quoting Bram v. United States, 168 U.S. 532, 542-43 (1897). 1059. The United States Supreme Court held in Blackburn v. Alabama, 361 U.S. 199, 208 (1960), that a confession must be the “product of a rational intellect and a free will” in order to be voluntary. The Court. | described “voluntary” in Colorado vy. Connelly, 479 U.S. 157, 167 (1986), stressing that “coercive policeactivity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Although a defendant’s susceptible mental state is not enough to render an otherwise valid confession involuntary under the Due Process Clause of the Fourteenth Amendment, compoundedby “coercive police activity,”it will constitute such a 473 violation. Id. at 167.*° 1060. “It is axiomatic that the use in a criminal prosecution of an involuntary confession constitutes a denial of due process of law under both the federal and state Constitutions.” People v. Jimenez, 21 Cal.3d 595, 602 (1978); see also Jackson v. Denno, 378 U.S. 368 (1964). Use of such confessions in a criminal prosecution is prohibited because “it offends ‘the community’s sense of fair play and decency’ to convict a defendant by evidence extorted from him... .” People v. Atchley, 53 Cal.2d 160, 170 (1959). 1061. The proper inquiry is whether the defendant’s will has been “overborme”or his “capacity for self-determination has beencritically impaired.” Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973). The Governmentbears the burden of proving by a preponderanceofthe evidence that the statement was voluntary. See Lego v. Twomey, 404 U.S. 477 (1972); People v. Jimenez, 21 Cal.3d at 602; People v. Markham, 49 Cal.3d 63, 71 (1989). To determine whether a defendant’s will has been overbornethetotality of the circumstances must be considered. Derrickv. 85 A defendant’s mental state may preclude him from beingable to knowingly andintelligently waive his constitutional rights if he is unable to “understand the significance and consequencesofa particular decision and whether the decision is uncoerced.” Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993). 474 Peterson, 924 F.2d 813, 817 (9th Cir. 1990). Thetotality of the circumstances include “both the characteristics of the accused and the details of the interrogation.” See Schneckloth v. Bustamonte, 412 U.S.at 225-226. 1062. Characteristics of the accused include age, sophistication, prior experience with the criminaljustice system and emotionalstate. See Stein v. New York, 346 U.S. 156, 185-86 (1953); People v. Spears, 228 Cal.App.3d 1, 27-28 (1991). Details of the interrogation include whether the confessionis elicited by promises of benefit or leniency, in whichcase, the confession was inadmissible. See People v. Carr, 8 Cal.3d 287, 296 (1972). 1063. “It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied.” People v. Jimenez, 21 Cal.3d at 611. This Court has explained the line to be drawn between permissible police conduct and conduct deemedto induceorto tend to induce an involuntary statement: Whenthe benefit pointed out by the police to a suspect is merely that which flows from a truthful and honest course of conduct, we can perceive nothing improperin such police activity. On the other hand,if in addition to the foregoing benefit, or in the place thereof, the 475 defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the handsofthe police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible. People v. Hill, 66 Cal.2d 536, 549 (1967). 1064. The promise to Petitionerthat he could go home if he gave a statement was an improper inducement becauseit “carries the implication that by cooperating andtelling what actually happened he might not be accused of or found guilty of first degree murder(i.e., more lenient treatment by the court or jury).” People v. Johnson, 70 Cal.2d 469, 478-79 (1969). There is also an implication that unless Petitioner changedhis story from his first statement, in which he denied involvement, he would be punished. See People v. McClary, 20 Cal.3d 218, 223 (1977). 1065. Petitioner’s statements were obtained underthe stress of false promises of leniency and deceptive practices during the interrogation,all while Petitioner was in a vulnerable mental state. See Haney Dec., Exh. 71; Pettis Dec., Exh. 99; Watson Dec., Exh. 122. Given Petitioner’s immaturity, inexperience and lack of education these statements were coerced, involuntary, unreliable and therefore inadmissible. 1066. The admission of Petitioner’s statements was not harmless 476 beyond a reasonable doubt with regard to conviction and sentence. See Arizona v. Fulminante, 499 U.S. 279 (1991). Petitioner’s statements were the centerpiece of the prosecution’s case. While one witness, Donald Guillory, testified that he saw Petitioner with a gun before and after the shootings, no one saw Petitioner shoot the two victims. Nor wasthere any physical evidence implicating Petitioner. The critical nature of Petitioner’s confession is demonstrated by the prosecutor’s reliance on that statement in her closing argument. Shestressed Petitioner’s statements and repeatedly played portions of the tape-recordings for the jury. See, e.g., RT 1670 (“If you believe his taped confession, he’s guilty as charged.”); see also RT 1679-81, 1688-90, 1694-95, 1710, 1714, 1718. 1067. Trial counsel unreasonably and incompetently failed to investigate, obtain or seek to present readily available evidence regarding Oakland Police Departmentinterrogation practices to corroborate Petitioner’s suppression hearing testimony, failed to investigate and present evidenceof Petitioner’s background and mental state relevantto his susceptibility to such coercive interrogation practices, failed to establish adequately that the statement wasthe result of coercion and improperpolice tactics, and failed to move for suppression ofall of the fruits of the government’s violations of petitioner’s rights in violation of Petitioner’s 477 rights to the effective assistance of counsel. Strickland vy. Washington, 466 U.S. 668, 686, 688 (1984). 1068. These acts and omissionsfell below an objective standard of reasonableness for defense counsel in a capital case under prevailing professional norms. Jn re Gay, 19 Cal.4th 771 (1998). No acceptable tactical reason exists for the acts and omissions of counsel. Counsel made no reasonable preliminary investigation that rendered any subsequent investigation unnecessary. No benefit inured or would reasonably belikely to inure to Petitioner from the various acts and omissions. 1069. Had counsel performed adequately in this regard,it is reasonably likely that the trial court would have found that the statement wasinvoluntarily obtained in violation of Petitioner’s constitutional nights, and would have suppressed the statement. For the reasons alleged above, had the statements been suppressedit is reasonably likely that the outcome of the case would have been different. 1070. The Alameda County District Attorney’s Office, the Oakland Police Department andtheir agents failed to disclose material evidence related to Petitioner’s interrogation and/orthe fruits thereof, in violation of Petitioner’s rights to due process and fair trial. Brady v. Maryland, 373 U.S. 83 (1963); United States v. Bagley, 473 U.S. 667, 682 (plurality) 478 (1985); see also id. at 685 (White, J., concurring); In re Brown, 17 Cal.4th 873, 879-880 (1998); In re Sassounian, 9 Cal.4th 535, 543-545 (1995). Moreover, the requirements of due process impose uponthe prosecution an ongoing post-conviction duty to disclose information casing doubt on the correctness of a defendant’s convictions and judgment of death. Jmblerv. Pachtman, 424 U.S. 409, 472, n.25 (1976); People v. Gonzalez, 51 Cal.3d 1179, 1261 (1990); see also Thomas v. Goldsmith, 979 F.2d 746, 749-750 (9th Cir. 1992). 1071. To the extent that there is insufficient evidence to establish that Petitioner's statement was the product of coercive and improper techniques, the Alameda County District Attorney’s Office, Oakland Police Departmentand their agents failed to preserve such evidence by purposefully and in bad faith failing to recordthe entirety of the interrogation in violation of Petitioner’s rights to due process anda fair trial. California v. Trombetta, 467 U.S. 479 (1984); Arizonav. Youngblood, 488 U.S. 51 (1988). 1072. To the extent that the facts set forth above could not reasonably have been uncovered by defense counsel, those facts constitute newly discovered evidence which casts fundamental doubt on the accuracy andreliability of the proceedings and underminethe prosecution’s case 479 against Petitioner such that this rights to due process anda fairtrial have been violated and collateral relief is appropriate. 1073. Petitioner incorporates each and every allegation of Claims B, C, and E. G. PETITIONER’S DEATH SENTENCE AND CONFINEMENT ARE UNLAWFUL BECAUSE PENALTY PHASE INSTRUCTIONS ARE UNCONSTITUTIONALLY VAGUE AND INCAPABLE OF BEING UNDERSTOODBY JURORS 1074. Petitioner’s death sentence was unlawfully and unconstitutionally imposedin violation ofhis rights to due process,a fair trial by jury, and freedom from cruel and unusual punishment underthe Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and under Article I, sections 7, 15, 16, and 17 of the California Constitution as well as Petitioner’s statutory rights, because Penal Code section 190.3 and the jury instructions given in this case that were based on that section, failed to guide the jury’s discretion, are vague and incomprehensible, and resulted in arbitrary, capricious, and unreliable sentencing. 1075. Petitioner alleges the following facts in support of this claim, among othersto be presented after full investigation, discovery, access to this Court’s subpoena power, adequate funding for investigation and experts, and a hearing on the merits of the claim. 480 1076. To the extent that any error or deficiency alleged was due to trial counsel’s failure to investigate and/orlitigate in a reasonably competent manneron Petitioner’s behalf, he was deprived ofthe effective assistance of counsel and his death sentenceis unreliable, requiring reversal. 1077. To the extent that any of the errors alleged in the present claim deprived Petitioner of the benefits of state law in which he had a liberty interest, he was deprived of due process of law underthe state and federal constitutions. United States Constitution, Amendments V, XIV; Cal. Const., art. I, §§ 1, 7, 15; Hicks v. Oklahoma, 447 US. at 346; 1078. Petitioner hereby incorporates Claims O and P from the Appellant’s Opening Brief in Case No. $032736. 1079. Prior to penalty phase deliberations in this case, the trial court issued CALJIC No. 8.85 to the jury. CT 958-960. This pattern instruction tracks the language of Penal Code section 190.3 concerning the factors that the jury wasto take into consideration in determining whether Petitioner deserved the death penalty and included factors (a) through (k).*° 1080. Even when correctly instructed according to the law,jurors 86 With respect to factor (b), the court verbally instructed the penalty jury that no such evidence of criminal activity had been produced. RT 2055. However, the written jury instructions providedto the jury failed to include a similar caveat. CT 958. 481 can and frequently do misapprehendtherulesset forth to guidetheir discretion in determining whetherthe death penalty is an appropriate sentence. A study of actual California jurors who haveservedin capital cases found: Manyofthe jurors who were interviewed simply dismissed mitigating evidence that had been presented during the penalty phase because they did not believeit ‘fit in’ with the sentencing formula that they had been given by the judge, or because they did not understand that it was supposed to be considered mitigating. . .. Other jurors recognized mitigating evidence as such but then rejected or limited its significance by imposing additional conditions on the concept that would makeit difficult to ever influence a capital verdict. Thus, fully 8 out of the 10 California juries included persons who dismissed mitigating evidence becauseit did not directly lessen the defendant’s responsibility for the crimeitself... . In addition, 6 of the California juries in the study rejected mitigating evidence becauseit did not completely account for the defendant’s actions. Haneyet al., Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence ofDeath, 50 (No. 2) J. of Social Issues 149, 167-168 (1994) (emphasisin original); see also McDowell v. Calderon, 130 F.3d 833 (9th Cir. 1997) (en banc) (although jurors “properly” instructed, the plain languageof the jury’s request for guidance demonstrated that eleven jurors were confused about the law and erroneously believed that they could not consider eight aspects of the 482 defendant’s background as mitigating evidence); State v. Bey, 112 N.J. 123, 168-170 [548 A.2d 887, 910-911] (1988) (instructions on mitigating factors that merely restate the statutory text of the mitigating factors are inadequate because they do not explain the nature of the mitigating inference sought to be drawn). 1081. The systematic study of actual capital-case jurors in many states by the Capital Jury Project demonstrates virtually without exception a serious lack of understanding on the part of these jurors of many ofthe concepts whichare at the core of the Eighth Amendmentrestrictions on the death penalty. See generally Bowers, The Capital Jury Project: Rationale, Design, and Preview ofEarly Findings, 70 Ind. L.J. 1043, 1077-1102 (1995); Haney, Taking Capital Jurors Seriously, 70 Ind. L.J. 1223 (1995). The nature of these misunderstandings is such that they virtually always skew the process in favor of death. See Luginbuhl & Howe, Discretion in Capital Sentencing Instructions:. Guided or Misguided?, 70 Ind. L.J. 1161, 1176-1177 (1995); Haney & Lynch, Comprehending Life and Death Matters: A Preliminary Study of California’s Capital Penalty Instructions, 18 L. & Hum.Behav. 411, 428 (1994). One study summedup,“if the final penalty decision is death, there is a high probability [i.e., more than a “reasonable likelihood”that this final penalty verdict is partially a product 483 of the faulty interpretation of the law.” Luginbuhl & Howe, 70 Ind. L.J. at 1180. The empirical data demonstrates that common understanding of these principles is so likely to be wrongthat Petitioner’s jury’s understanding cannotbe relied upon consistent with the Eighth Amendment’s requirement of heightenedreliability in capital sentencing. Beck v. Alabama, 447 U.S. at 625. 1082. The Capital Jury Project relied on the experienceof actual jurors in death penalty trials, not mock juries or hypothetical cases. But even research of the latter type supports this claim: Because westudied individual rather than collective inter- pretations of these instructions, we could not address the issue of whether the lack ofjuror comprehension wouldlikely be corrected in the course of penalty phase deliberation. However, several things seem to us to minimizethis possibility. Nothing in the California instruction requires capital juries to reach consensus about the meaning ofthe instructions themselves, and there are no verdict forms that require them to agree on the factors that led them to their verdict. Moreover, the prevalence of misunderstanding that characterized both the overall definitions [of “aggravation” and “mitigation’”] and the template of factors [(a) through (k)] . in the California instruction suggests that even the collective intelligence of most capital juries is likely to be highly compromised on these issues. Indeed, based on our data, the likelihood of a capital defendant’s life or death verdict being decided by a jury in which at least one memberis completely inaccuratein his or her definition of aggravation or mitigation, and incorrectas to at least two specific factors that form the capital sentencing template in California (19% of our sample) is greater than 2 to 1. This comparesto less than a 1 in 2 likelihood of such a jury containing a juror whois legally 484 correct on both terms and completely accurate as to the sen- tencing template (.04% of our sample). In addition, Ellsworth’s (1989) research on the general issue of whether ‘twelve heads are better than one’ in improving jury comprehension ofinstructions indicated that while some errors of instructional interpretation are corrected in deliberation, about an equal numberofcorrect interpretations are relinquished in favor of incorrect ones. Finally, interview data collected by Haney, Sontag, and Costanzo (1994) indicated that a numberofbasic instructional misconceptions werestill held by actual capital jurors in California, long after they had deliberated and renderedtheir verdicts. Haney & Lynch, 18 Law & Human Behaviorat 425, n.14. 1083. There is now “converging proofthat the same kinds of misunderstandings occur in both experimental and real capital jury decision-making. Whetherthey are given these instructions in the quiet of the laboratory or the intense experienceofthe capital trial, whether they hear them from a researcher or a judge, and whether they report their understandings immediately or muchlater, people show serious comprehension problems.” Hans, How Juries Decide Death: The Contribution ofthe Capital Jury Project, 70 Ind. L.J. 1233, 1239 (1995). 1084. Allowing the decision for life or death to turn on a concept misunderstood, to the defendant’s detriment, by a majority of actual and prospective jurors, is inconsistent with the extraordinary degree of reliability required by the Eighth Amendmentin a capital case. There is nothing in the record of Petitioner’s trial or sentencing proceedingsto 485 suggest that the jurors had any extraordinary ability to understand these commonly misunderstood factors. 1085. Factor (a), which directs the jury to consider the “circumstances of the crime,” is unconstitutionally vague not in an abstract sense, see Tuilaepa v. California, 512 U.S. 967 (1994), but becauseit fails to identify any circumstancesor types of circumstances that the jury may consider in orderto distinguish the offensefrom other offenses not subject to the death penalty or to make clear that there may be mitigating aspects to the circumstances ofthe crime. Furthermore, factor (a) allows the sentencer to consider the presence of any special circumstance findings. The sentencer’s discretion is therefore not properly channeled becauseall capital cases haveat least one special circumstance; using factor (a), a Jury cannot know howto distinguish a death-worthy case from one that is not death- worthy. In Petitioner’s case, factor (a) was the vehicle through which wide- ranging victim impact evidence was improperly presented and considered. For these reasons, factor (a) did not constitutionally guide Petitioner’s jury in determining whether death was the appropriate punishment. Furman v. Georgia, 408 U.S. 238, 247 (1972). 1086. Factor (b) directs the jury to consider evidence ofprior violent criminal conduct: 486 The presence or absence of criminalactivity by the defendant, other than the crime(s) for which the defendant has beentried in the present proceedings, which involved the use or attempted use of force or violence or the express or implied threat to use force or violence. Factor (b) improperly allows the jury to consider the defendant’s alleged criminal conduct without requiring that the jury unanimously agreethat he is guilty of each — or any — of the alleged crimes beyond a reasonable doubt. There was absolutely no evidence of factor (b) evidence presented to the jury in Petitioner’s case. However, the vagueness of the instruction, combined with prosecutorial and juror misconduct, likely caused the jury to find aggravating factor (b) evidencein this case. Without presenting a scintilla of evidence and based on improper hypothetical questions and argument and without propernotice as alleged herein, the prosecutor informedthe jury that Petitioner had committed no fewer than five acts that would fall under factor (b): (1) that Petitioner had once grabbed a knife and threatened to kill his grandfather; (2) that Petitioner had once threatened courtroom staff in Judge DeLucchi’s courtroom; (3) that without any provocation, Petitioner had once beat up an unidentified “white individual” walking downthestreet; (4) that while incarcerated, Petitioner and others had beat up an inmate named McClain; and (5) that while incarcerated, Petitioner had threatened another inmate, James Webb. See Claims E; RT 487 1910-1914, 1994-95. 1087. The improperfactor (b) crimes suggested to Petitioner’s jury, despite the lack of evidenceor notice, included twoallegations of violence in an institutional setting, which compoundedthe prejudice of the prosecutor’s improper arguments concerning the likelihood that Petitioner would join the “Black Guerrilla Family” gang in prison and would go on to commit further murders in prison unless the jury gave him the death penalty. See Claim E. In these circumstances,the trial court’s perfunctory oral, but not written, instruction to the jurors that the prosecution had failed to produce evidence underfactor (b) was insufficient to ensure that the jurors would not base their penalty decision on a finding that Petitioner deserved the death penalty because he had committed other prior violent criminal acts. Moreover, the court’s issuance of CALJIC No. 8.85(b) without the accompanyinginstruction of CALJIC No. 8.87 — requiring the jury to besatisfied beyond a reasonable doubtthat the defendant has committed other criminal acts before considering those acts as an aggravating circumstance — wasinsufficient to ensure that the jury would find that constitutionally-required restraint on themselves. Therefore, the use of this factor violated Petitioner’s rights to due process underthe Fourteenth Amendmentto the United States Constitution andarticle I, 488 section 7 of the California Constitution, and to a fair, accurate and nonarbitrary sentencing determination under the Eighth Amendmentto the United States Constitution and article I, section 17 of the California Constitution. 1088. The consideration of aggravating acts underfactor (b) in violation of state law deprived Petitioner of his state-created liberty interest in violation of due process. Hicks v. Oklahoma, 447 U.S. 343 (1980). 1089. Thetrial court also issued a modified version of CALJIC No. 8.88 to Petitioner’s penalty jury. The court’s alteration of the pattern instruction had the effect of broadening the crucial definition of what constitutes an “aggravating” factor. The pattern instruction reads: An aggravating factor is any fact, condition or event attending the commission of a crime which increasesits guilt or enormity, or addsto its injurious consequences which is above and beyond the elements ofthe crime itself. CALJIC No. 8.88 (emphasis added). In this case, the court modified the instruction by deleting the important qualifier emphasized in the quotation above. Thus, Petitioner’s penalty jury was erroneously instructed that “[a]n aggravating factor is any fact, condition or event attending the commission of a crime whichincreasesits guilt or enormity, or addstoits injurious consequences.” RT 1945-1946, 2057. This instruction removeda critical componentof the death penalty scheme, was unconstitutionally vague and 489 overbroad, and permitted the jury to consider aggravating circumstancesin violation of state law, depriving Petitionerof his liberty interest in violation of due process. 1090. There is grave danger that Petitioner’s jury had the samesort of misunderstandings that most jurors have been shown to have concerning the meaning of the sentencing factors — particularly since it received an erroneousandtruncateddefinition of an “aggravating factor” — andthatit sentenced him to die because of those misconceptions, in violation ofhis right to a fair trial and reliable, non-arbitrary and individualized penalty verdict reached through due process of law and protected by the Eighth Amendment. Becauseit is reasonable likely that the jury applied instructions CALJIC No.8.85 and the modified CALJIC No. 8.88 in an unconstitutional manner, vacation of Petitioner’s death sentence1s mandated under the Eighth and Fourteenth Amendments. H. EXECUTION OF PETITIONER WOULD VIOLATE HIS RIGHT TO DUE PROCESS AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT BECAUSEHIS SENTENCE WASBASED ON INACCURATE AND UNRELIABLE EVIDENCEANDIS A DISPROPORTIONATE PUNISHMENT 1091. Petitioner’s death sentence was unlawfully and unconstitutionally imposedin violation of his rights to due process, a fair trial by jury, and freedom from cruel and unusual punishment under the 490 Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and under Article I, sections 7, 14, 15, 16, and 17 of the California Constitution as well as Petitioner’s statutory rights, becauseit wasbased on inaccurate, unreliable evidence andis disproportionate to petitioner’s culpability. 1092. Petitioner alleges the following facts in support of this claim, amongothersto be presented after full investigation, discovery, access to this Court’s subpoena power, adequate funding for investigation and experts, and a hearing on the merits of the claim. 1093. Sentencingis a critical stage of the proceedings, at which a defendantis constitutionally guaranteed the right to effective assistance of counsel. Gardner v. Florida, 430 U.S. 349; In re Perez, 65 Cal.2d 224, 229-230 (1966). In general, defense counsel is under a duty to ascertain that the sentence is based on complete and accurate information. Peoplev. Vatelli, 15 Cal.App.3d 54, 62 (1971); People v. Cropper, 89 Cal.App.3d 716, 719 (1979). 1094. Petitioner’s defense counsel failed to investigate, develop and present evidence relevant to both the guilt and penalty phasesofhistrial. 1095. Petitioner hereby incorporates by reference ClaimsB, C, D, E, and F ofthis Petition and the exhibits referenced therein,as if fully set forth 491 herein. 1096. The death sentence imposed on Petitioner wasarbitrary, capricious and unreliable because it was based on inaccurate and unreliable evidence and was disproportionate to his guilt and moral culpability. It must therefore be vacated. U.S. Const., amends. V, VI, VIII, XIV; Cal. Const., art. I, § 17. 1097. Because the death penalty is qualitatively different from any other criminal punishment, “there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. at 305 (opinion of Stewart, Powell, and Stevens, JJ.). “In capital cases the finality of the sentence imposed warrants protections that may or may not be required in other cases.” Ake v. Oklahoma, 470 U.S. 68, 87 (1985) (Burger, C.J., concurring). “Because sentences of death are ‘qualitatively different’ from prison sentences, . . . this Court has gone to extraordinary measures to ensure that the person sentenced to be executed is afforded due process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim,passion, prejudice, or mistake.” Eddingsv. Oklahoma, 455 U.S. 104, 117-18 (1982) (O’Connor, J., concurring). 1098. The Supreme Court has repeatedly condemnedsentencing 492 procedures that inject unreliability into jury deliberations in capital cases. Under the Eighth Amendmentto the United States Constitution, a criminal sentence must be proportionate to the crime the defendant committed. See, e.g., Johnson v. Mississippi, 486 U.S. 578 (1988); Caldwell v. Mississippi, 472 U.S. 320 (1985); Gardner v. Florida, 430 U.S. 349 (1977); Woodsonv. North Carolina, 428 U.S. 280 (1976). 1099. A capital sentence that is “grossly disproportionate”to the offense constitutes cruel and unusual punishment underarticle I, section 17 of the California Constitution. People v. Arias, 13 Cal.4th 92, 193 (1996). 1100. The jury’s determination that Petitioner was deserving of the death penalty was based on incomplete, inaccurate and unreliable evidence as the result of the failure of defense counselto investigate, develop and presentcritical mitigating evidence;the failure of thetrial court to ensure that Petitioner was represented by competent and conflict-free counsel and received a fairtrial (see Claims B, C, D); prosecutorial misconduct (see Claim E); and rampant juror misconduct (see Claim A). The sentence of death was therefore imposed on Petitioner in violation of his night to a reliable sentence under the Eighth and Fourteenth Amendments. 1101. There was no meaningful intercase or intracase proportionality review conductedin this case. See Appellant’s Opening 493 Brief, claim P. 8. 1102. The penalty of death is unique in its severity and finality. The United States Constitution therefore requires individualized sentencing in a capital case, which considers the character of the individual defendant as an “andispensable part of the processofinflicting the penalty of death.” Woodson v. North Carolina, 428 U.S.at 304. 1103. The death sentence imposed on Petitioner is unconstitutional because it was not based on an individualized determination of his death- worthiness and wasbased on inaccurate, incomplete, and unreliable evidence. 1104. The death sentence imposed on Petitioner was andis disproportionate to his moral culpability. 1105. In April 1993, Petitioner’s co-defendant, Antoine Johnson, wasallowedto enter a plea under an agreement with the State in which he wassentencedto life in prison and would beeligible for parole after seven years of incarceration. CT 1191-1199. Mr. Johnson’s initial parole consideration hearing was held on January 14, 1998. Exh. 267. 1106. Petitioner’s conviction and sentence of death were unlawfully and unconstitutionally imposedin violation of his Fifth, Eighth, and Fourteenth Amendment rights under the United States Constitution and 494 under Article 1, sections 7, 15, 16, and 17 of the California Constitution because the State failed to use consistent and permissible criteria to govern the charging decision with respect to other murder cases in Alameda County and throughout the State in which the death penalty could have been imposed. Asa result, Petitioner’s sentence of death for a crime that was less egregious than those of other defendants who werenot even charged with capital murderis disproportionate to the crimes of which he was convicted. 1107. Accordingly, Petitioner’s death judgment must be vacated. I. PETITIONER’S CONVICTIONS AND DEATH SENTENCE . MUST BE VACATED BECAUSE OF THE CUMULATIVE EFFECT OF ALL THE ERRORS AND CONSTITUTIONAL VIOLATIONS SHOWNIN THIS PETITION AND THE AUTOMATIC APPEAL 1108. Petitioner’s confinementis illegal and unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, sections 1, 7, 15, 16, and 17 of the California Constitution, because the errors complained ofin this Petition compounded one another, resulting in a trial that was fundamentally unfair and in the imposition of cruel and unusual punishment. 1109. Petitioner alleges the following facts in support ofthis claim, amongothers to be presented after full investigation, discovery, access to 495 this Court’s subpoena power, adequate funding for investigation and experts, and a hearing on the merits of the claim. 1110. All other allegations and supporting exhibits are incorporated into this claim by specific reference. 1111. Eachofthe specific allegations of constitutional error in each claim and sub-claim ofthis Petition requires the issuance of a writ of habeas corpus. Assuming arguendothat the Court finds that the individual allegations are, in and of themselves, insufficient to justify relief, the cumulative effect of the errors demonstrated by this Petition and the briefing submitted for the automatic appeal (No. S032736) compels reversal of the judgment and issuance of the writ. See, e.g., People v. Holt, 37 Cal.3d. 43 6, 458-459 (1984) (discussing cumulative error on direct appeal). Whenall of the errors and constitutional violations are considered together, it is clear that Petitioner has been convicted and sentencedtodeath in violation of his basic human andconstitutional right to a fundamentallyfair and accuratetrial, and his right to an accurate andreliable penalty determination, in violation of the Fourth, Fifth, Sixth, ighth, and Fourteenth Amendments to the United States Constitution and Article I, sections 1, 7, 15, 16, and 17 of the California Constitution. 1112. The prejudicial impact of each of the specific allegations of 496 constitutional error presented in this Petition and in the direct appeal must be analyzed within the overall context of the evidence introduced against Petitionerat trial. No single allegation of constitutional error is severable from any other allegation set forth in this Petition and/orin Petitioner’s automatic appeal. “Where, as here, there are a numberoferrors attrial, ‘a balkanized, issue-by-issue harmless error review’is far less effective than analyzing the overall effect of all the errors in the context of the evidence introducedattrial against the defendant.” United States v. Frederick, 78 F.3d 1370, 1381, citing United States v. Wallace, 848 F.2d 1464, 1476 (9th Cir.1988); see also United States v. Green, 648 F.2d 587, 597 (9th Cir. 1981) (combination oferrors and lack of balancing probative value and prejudicial effect of testimony andlack of limiting instruction required reversal). “In other words, a columnof errors may sometimes have a logarithmic effect, producing a total impact greater than the arithmetic sum of its constituent parts.” United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993); see also Taylor v. Kentucky, 436 U.S. 478, 486-488 & n.15 (1978); Harris v. Wood, 64 F.3d 1432, 1438-1439 (9th Cir. 1995); Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir. 1992); United States v. Wallace, 848 F.2d 1464, 1475-1476 (9th Cir. 1988); In re Gay, 19 Cal.4th 771, 826; People v. Hill, 17 Cal.4th 800, 844; In re Jones, 13 Cal.4th 552, 583, 587 497 (1996); People v. Ledesma, 43 Cal.3d 171, 214-227 (1987); People v. Herring, 20 Cal.App.4th 1066, 1075-1077 (1993). 1113. Petitioner hereby incorporates by specific reference the record on appeal, and each of the claims and arguments raised in his Opening Brief, Reply Brief, and Supplemental Brief(s) in his related automatic appeal (No. S032736) and any appendices and exhibits referred to therein, as if fully set forth in this paragraph. Alternatively, Petitioner requests that the Court take judicial notice of the same. 1114. Petitioner also incorporates by reference every Claim ofthis Petition, and the exhibits incorporated therein, asif fully set forth in this paragraph. 1115. it the state disputes any of the facts alleged herein, Petitioner requests an evidentiary hearing to resolve the factual disputes. 1116. Petitioner and his counsel believe that additional facts exist which would support this claim, but have been unable to adduce those facts because this Court has not provided Petitioner with adequate funding for investigation, access to discovery or subpoena power,or an evidentiary hearing. Counsel requests an opportunity to supplement or amendthis Petition after Petitioner has been afforded discovery, the disclosure of material evidence by the state, the use of the Court’s subpoena power, 498 funding, and an opportunity to investigate fully. 1117. Petitioner’s convictions, sentence, and confinement were obtained as the result of a plethora of errors constituting multiple violations of his fundamental constitutional rights at every phaseofhistrial, including the selection of a biased and death-pronejury, the denial of his right to conflict-free counsel, the denial of his right to competent counsel, the failure of the prosecutor to disclose material and exculpatory information to the defense, gross prosecutorial misconductin the penalty phase, serious instructional error, and juror misconduct during penalty phase deliberations. 1118. Justice demandsthat Petitioner’s convictions and sentence of death be reversed because the cumulative effect of all the errors and violations alleged in the present Petition and on his automatic appeal “was so prejudicialas to strike at the fundamental fairness of the trial.” United States v. Parker, 997 F.2d 219, 222 (6th Cir. 1993) (citation omitted); see also United States v. Tory, 52 F.3d 207, 211 (9th Cir. 1995) (cumulative effect of errors deprived ‘defendantoffair trial). 1119. This is also true of state law violations which may not independently rise to the level of a federal constitutional violation,see, e.g., Barclay v. Florida, 463 U.S. 969, 951 (1983): the cumulative effect of the state law errors in this case resulted in a denial of fundamental fairness and 499 violate due process and equal protection guarantees under the Fourteenth Amendment. See Walker v. Engle, 703 F.2d 903, 962 (6th Cir. 1983). 1120. In light of the cumulative effect of all the errors and constitutional violations which occurred over the course of the proceedings in Petitioner’s case, Petitioner’s convictions and death sentence must be vacated to prevent a fundamental miscarriage ofjustice. J. EXECUTION FOLLOWING LENGTHY CONFINEMENT UNDER SENTENCE OF DEATH WOULD CONSTITUTE CRUEL AND UNUSUAL PUNISHMENTIN VIOLATION OF PETITIONER’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS AND INTERNATIONAL LAW 1121. Execution of Petitioner following his lengthy confinement under sentence of death (now morethan eight years) would constitute cruel and unusual punishment in violation of the Fifth, Sixth, Eighth, and _ Fourteenth Amendments of the United States Constitution; Article I, sections 1, 7, 15, 16, and 17 of the California Constitution; and international law, covenants, treaties and norms. 1122. Petitioner alleges the following facts in support of this claim, amongothers to be presentedafterfull investigation, discovery, access to this Court’s subpoena power, adequate funding for investigation and experts, and a hearing on the merits of the claim. 1123. Petitioner was sentenced to death on May 7, 1993, after nine 500 months of imprisonmentin the county jail. At the timeofthe present Petition, he has already been continuously confined for more than eight years and undersentence of death for more than seven years. His automatic appeal has been pending continuously duringthat time. 1124. Petitioner’s excessive confinement on death row has been through no doing of his own. The appeal from a judgmentof death is automatic (§ 1239, subd. (b)), and there is “no authority to allow [the] defendant to waive the [automatic] appeal.” People v. Sheldon, 7 Cal.4th 1136, 1139 (1994), relying on People v. Stanworth, 71 Cal.2d 820, 833-834 (1969). Of course, full, fair and meaningful review ofthe trial court pro- ceedings, required underthe state and federal constitutions andstate law, necessitates a complete record (Chessmanv. Teets, 354 U.S. 156 (1957); Pen. Code § 190.7; Cal. Rules ofCourt, rule 39.5) and effective appellate representation. See People v. Barton, 21 Cal.3d 513, 518 (1978); Peoplev. Gaston, 20 Cal.3d 476 (1978); People v. Silva, 20 Cal.3d 489 (1978); In re Smith, 3 Cal.3d 192 (1970); U.S. Const. amends. VI, VU, XIV. 1125. The delays in Petitioner’s appeal have been causedbyfactors over which he has exercised no discretion or control whatsoever, and are overwhelmingly attributable to the system that is in place, established by state and federal law, which necessitates extremely time-consuming and 501 exhaustive litigation.*’ The delays have nothing to do with the exercise of any discretion on Petitioner’s part. Cf McKenzie v. Day, 57 F.3d 1461, 1466-1467 (9th Cir. 1995) (claim rejected because delay caused by prisoner “avail[ing] himself of procedures” for post-conviction review, implying volitional choice by the prisoner), adopted en banc, 57 F.3d 1493. The delays here have been caused by “negligence or deliberate action by the State.” Lackey v. Texas, 514 U.S. 1045 (1995) (mem.of Stevens,J.). The information in this case was filed on November 20, 1992. Petitioner’s judgementof death was imposed on May 7, 1993. Appellate counsel was appointed on May 8, 1996. The record on appeal wascertified on June 22, 1998. 1126. The condemnedprisoner’s non-waivable right to prosecute the automatic appeal remedy provided by law inthis state does not negate the cruel and degrading character of long-term confinement under judgment _ of death. 87 The “death row phenomenon”is particularly stark in California, where well more than 100 condemned men and womenhaveyet to have counsel appointed on their automatic appeal. People v. Sheldon, 7 Cal.4th 1136 (1994); see also Kaplan, Anger and Ambivalence, Newsweek, August 7, 1995, at 29.. Throughout the country, the number of death row inmates continuesto rise, putting even morestrain on the already overburdened " appellate system. According to Ninth Circuit Judge Alex Kozinski, “[t]o eliminate the backlog, there would have to be one execution a day for the next 26 years.” See Kozinski and Gallagher, For an Honest Death Penalty, New York Times, March 8, 1995. 502 1127. The United States stands virtually alone amongthe nations of the world in confining individuals for periods of many years continuously under sentence of death. The international communityis increasingly recognizing that, without regard for the question of the appropriateness or inappropriateness of the death penaltyitself, prolonged confinement under these circumstancesis cruel and degrading andin violation of international humanrights law. Pratt v. Attorney Generalfor Jamaica (1993) 4 AILE.R. 769 (Privy Council); Soering v. United Kingdom 11 E.H.R.R. 439, ¥ 111 (Euro. Ct. of Human Rights). Soering specifically held that, for this reason, it would be inappropriate for the government of Great Britain to extradite a man underindictment for capital murderin the state of Virginia, in the absence ofassurances that he would not be sentencedto death. 1128. In an earlier generation, prior to the adoption and developmentof international humanrights law, this Court rejected a somewhatsimilar claim. People v. Chessman, 52 Cal.2d 467, 498-500 (1959). But the developing international consensus demonstrates that, in addition to being cruel and degrading, what the Europeansrefer to as the “death row phenomenon”in the United States is also “unusual” within the meaning of the Eighth Amendment and the corresponding provision of the California Constitution, entitling Petitioner to relief for that reason as well. 503 1129. While the Ninth Circuit rejected a claim ofthis type in Richmondv. Lewis, 948 F.2d 1473, 1491-1492 (9th Cir. 1990), rev’d. on other grounds, 506 U.S. 40 (1992), vacated 986 F.2d 1583 (1993), that rejection was deprived of persuasive force when the Arizona Supreme ’ Court subsequently reduced the death sentence of the defendant in that case to a sentenceoflife imprisonment, in part because he had changed during his excessively long confinement on death row. State v. Richmond, 180 Ariz. 573 [886 P.2d 1329] (1994). 1130. Further, the process used to implement Petitioner’s death sentence violates international treaties and laws that prohibit cruel and unusual punishment, including, but not limited to, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(the Torture Convention), adopted by the General Assembly of the United Nations on December 10, 1984, andratified by the United States ten years later. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR,39" Sess., Agenda Item 99, U.N. Doc. A/Res/39/46 (1984). The length of Petitioner’s confinement on death row, along with the constitutionally inadequate guilt and penalty determinations in hiscase, have caused him prolonged and extreme mental torture and degradation, 504 and denied him due process,in violation of international treaties and law. 1131. Article 1 of the Torture Convention definestorture, in part, as any act by which severe pain or suffering is intentionally inflicted on a person by a public official. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR,39"Sess., Agenda Item 99, U.N. Doc. A/Res/39/46 (1984). Pain or suffering may only be inflicted upon a person by a public official if the punishmentis incidental to a Jawful sanction. Jd. Petitioner has made a prima facie showingthat his convictions and death sentence were obtained in violation of federal and state law. 1132. In addition, Petitioner has been, and will continue to be, subjected to unlawful pain and suffering due to his prolonged, uncertain confinement on death row. “The devastating, degrading fear that is imposed on the condemnedfor months and years is a punishment more terrible than death.” Camus, Reflections on the Guillotine, in Resistance, Rebellion and Death 173, 200 (1961). The international community has increasingly recognized that prolonged confinement undera death sentence is cruel and unusual, and in violation of international human nghts law. Pratt v. Attorney Generalfor Jamaica, 4 All.E.R. 769 (Privy Council); Soering v. United Kingdom, 11 E.H.R.R. 439, § 111 (Euro. Ct. of Human 505 Rights) (United Kingdom refuses to extradite German national under indictment for capital murder in Virginia in the absence of assurancesthat he would not be sentencedto death). 1133. The violation of international law occurs even when a condemnedprisoneris afforded post-conviction remedies beyond an automatic appeal. These remedies are provided by law,in the belief that they are the appropriate meansoftesting the judgment of death, and with the expectation that they will be used by death-sentencedprisoners. Petitioner’s use of post-conviction remedies does nothing to negate the cruel and degrading character of his long-term confinement under judgment of death. 1134. Further, in addition to the actual killing of a human being and the years of psychological torture leading up to the act, the method of execution employed by the State of California will result in the further infliction of physical torture, and severe pain and suffering, upon Petitioner. See Claim J. 1135. Petitioner’s death sentence must be vacated permanently, and/or a stay of execution must be entered permanently. 506 K. PETITIONER CANNOT BE LAWFULLY EXECUTED BECAUSE THE METHOD OF EXECUTIONIN CALIFORNIA IS FORBIDDEN BY STATE, FEDERAL, AND INTERNATIONAL LAW 1136. Execution of Petitioner by lethal injection — the method by which the State of California plans to execute him — and the procedures used to administer lethal injection constitute cruel and unusual punishment in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendmentsof the United States Constitution; Article I, sections 1, 7, 15, 16, and 17 of the California Constitution; and international law, covenants, treaties and norms. 1137. Petitioner alleges the following facts in support ofthis claim, among others to be presented after full investigation, discovery, access to this Court’s subpoena power, adequate funding for investigation and experts, and a hearing on the merits of the claim. 1138. Prior to 1992, lethal gas was the sole meansof execution provided for under California law. In 1992, California added as an alternative means of execution “intravenous injection of a substance or substancesin a lethal quantity sufficient to cause death, by standards established under the direction of the Department of Corrections.” Cal. Pen. Code § 3604. 1139. The 1992 legislation allowed the inmate to select either lethal 507 gas or lethal injection and if the inmate made noselection, execution would be by lethal gas. In 1996, section 3604 was again amendedto providethat, in the absenceof an election by the inmate, the default method of execution would be bylethal injection. 1140. Forcing Petitioner to choose his method of execution, and the use oflethal injection as a default execution method,is a cruel and unusual punishment. 1141. The Department of Corrections has not complied with the mandate of section 3604, subdivision (a), to establish standards for the administration of lethal injection. Asit is administered, in the absence of protocols ensuring the prisoner’s nght to be free from unnecessary suffering, the method oflethal injection violates the Eighth Amendment, applicable to the states through the Fourteenth Amendment. 1142. The only information available from the Department of Corrections is a three-page document[hereafter “document”] dated March 1996 that provides nothing more than a vague description ofthelethal injection procedures. It neither states the source of the informationit contains, nor doesit refer to any official regulations or rules. California Execution Procedures: Lethal Injection, Exh. 268. 1143. This documentstates that at some unspecified time before an 508 execution, syringes containing specified amounts of sodium pentothal, pancuronium bromide, and potassium chloride are to be prepared. It provides that the condemnedprisoner will be strapped onto a table, and connected to a cardiac monitor which is connectedto a printer outside the execution chamber. An IV is started in two usable veins and a flow of normalsaline solution is administered at a slow rate; one line is held in reserve in case of a blockage or malfunction in the other. The doorto the execution chamberis closed, and the wardenissues the order to execute. The sodium pentothalis first administered, then the line is flushed with sterile normal saline solution, pancuronium [sic] bromide then follows; finally, potassium chloride is administered. A physician “is present” to declare when death occurs. 1144. The California Department of Corrections has not established any other standards for administeringlethal injection pursuant to section 3604. 1145. There is a real and substantial likelihood that the method of execution bylethal injection scheduled to be used on Petitioner will cause such pain and suffering that his execution will be in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article I, section 17 of the California Constitution. 509 1146. The documentreleased by the Department of Corrections does not define a coherent set of procedures to ensure that the condemned prisoner would be free from unnecessary suffering. Prolonged suffering and pain are likely to occur in the ways explained below. See also Thornburn Dec., Exh. 270; Palmer Dec., Exh. 271; Radelet Affidavit, Exh. 272." 1147. The document doesnot prescribe even a minimallevel of training for the personnel involved in administering the lethal injection, thereby raising the substantial and unnecessary risk of causing extreme pain and suffering to Petitioner before and during his execution. 1148. The document does not provide for properly trained personnel to insert the intravenousline or catheter. If the catheter is not properly inserted, there is a risk that the chemicals will be inserted into Petitioner’s muscle and other tissue rather than directly into his bloodstream, causing extreme pain in the form of a severe burning sensation. Furthermore, a failure to inject the chemicals directly into the bloodstream will cause the chemicals to be absorbed far more slowly, and the intended effects will not occur. Improper insertion of the catheter could also result in its falling out 88 These declarations refer to a document dated January 1996, which is similar in relevant particulars to the March 1996 documentreferred to in text. 510 of the vein, resulting in a failure to inject the intended dose of chemicals. Thereis also the risk that the catheter will rupture or leak as pressure builds up during the administration of the chemicals unless the catheter has adequate strength andall the joints and connections are adequately reinforced. Without propertraining, these problems that may arise will not be properly addressed. 1149. The document does not mandate that a physician or other trained medical expert be present to render treatmentor assistance to a prisonerin the event of an emergency;instead, the document mandates only that a physician be presentto declare death. In fact, medical doctors are prohibited from participating in executions pursuant to the ethical principles set forth in the Hippocratic Oath. The American Medical Association has issued a policy statement proscribing physician participation in executions, and the American Nurses Association also forbids members from participating in executions. This increases the chances of improper administration which could result in pain, an air embolism,the clotting of the catheter which would prevent injection, and heart failure. Furthermore, there is a risk that the dosages selected by untrained persons may be inade- quate for the purposes for which they were selected, may result in unanticipated or inappropriate effects in a particular individual for medical 511 or other reasons, and mayinflict unnecessarily extreme pain and suffering. 1150. The document does not outline the proper guidelines for the storage or the handling of the chemicals involved. Improperly stored and/or handled chemicals may cause unnecessary suffering. Sodium pentothal wears off quickly; and if not given enough,it would paralyze the muscles of the prisoner and cause him to choke, making him unableto breathe. 1151. The condemnedprisoneris entitled to an execution free from “unnecessary and wantoninfliction of pain,” Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion) under the state and federal constitutions and international law, and the methodof execution used in California fails to comport with this in that the risk of such pain is substantial. See also Thorburn Dec., Exh. 270; Palmer Dec., Exh. 271; Radelet Affidavit, Exh. 272. 1152. If Petitioner is given sodium pentothal followed by pancuronium bromide and regains consciousness before the potassium chloride takes effect, he will be unable to move or communicate in any way while experiencing excruciating pain. As the potassium chlorideis administered, he will experience an excruciating burning sensation in his vein,like the sensation of a hot poker beinginserted into the arm and traveling up the arm and spreading across the chest until it reaches the heart, 512 whereit will cause the heart to stop. If the sodium pentothal, pancuronium bromide and potassium chloride are administered in the sequence described and Petitioner’s heart fibrillates but does not stop, he will wake up but be unable to breathe. The initial dose of sodium pentothal could sensitize Petitioner’s pharynx, causing him to choke, gag, and vomit. He wouldbeat risk of aspirating his vomitus or swallowing his tongue and suffocating. If the flow ofthe solution during the initial injection of sodium pentothalis too fast, Petitioner is likely to suffer a violent muscular reaction. It is very likely that an unskilled technician would fail to detect the improper flow rate. 1153. Furthermore,it is likely that Petitioner’s heart activity will not be adequately monitored because the EKG monitoring pads attached to him will become detached because faced with imminentexecution,it is likely that he will sweat, the moisture of the skin will cause the pads to come loose, and this circumstance will not be detected, causing the risk that any state of medical distress or other emergency will not be detected. 1154. Theserisks increase significantly where proper com- prehensive procedural safeguards are lacking. 1155. In examining whether a methodof execution is “unconsti- tutionally cruel,” the court is to look at the “degree of risk” involvedin its 513 administration. Fierro v. Gomez, 8605 F. Supp. 1387, 1411 (N.D. Cal. 1994) (discussing Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994).) Factors to be considered in this assessmentinclude the amountof pain involved and the immediacy of unconsciousness. /d. at 1410-1411 (interpreting the authorities cited in Campbell.) The Fierro court interpreted Campbellto suggestthat “the persistence of consciousness ‘for over a minute’ or for ‘between a minute and a minute-and-a-half, but no longer than two minutes’ might be outside constitutional boundaries.” /d. at 1411. There have been many instances where execution bylethal injection has been prolonged, extending the amount of psychological pain inflicted. 1156. In 1982, in the case of Charles Brooks of Texas, thefirst person executed by lethal injection in the United States, the Warden ofthe Texas prison reportedly mixedall three chemicals into a syringe. The chemicals had precipitated; thus, the Warden’s initial attemptto inject the deadly mixture into Brooks failed. On March 13, 1985, in Texas, Stephen Peter Morin laid on a gurney for forty-five minutes while his executioners repeatedly pricked his arms and legs with a needle in search of a. vein suitable for the lethal injection. See Graczyk, Convicted Killer in Texas Waits 45 Minutes Before Injection is Given, Gainesville Sun (Mar. 14, 1985); Murderer ofThree Women is Executed in Texas, N.Y. Times (Mar. 514 14, 1985). Problems with the execution prompted Texas officials to review their lethal injection procedures for inmates with a history of drug abuse. Id. Over a yearlater, on August 20, 1986, Texas officials experienced such difficulty with the procedure that Randy Wools had to help his executioners find a good vein for the execution. See Texas Executes Murderer, Las Vegas Sun (Aug.20, 1986). Similarly, on June 24, 1987, in Texas, Elliot Johnson laid awake and fully consciousfor thirty-five minutes while Texas executioners searched for a place to insert the needle. On December13, 1988, in Texas, Raymond Landry was pronounced dead 40 minutes after being strapped to the execution gurney and 24 minutesafter the drugs first started flowing into his arms. Two minutes into the execution, the syringe cameout of Landry’s vein, spraying the deadly chemicals across the room. The execution team had to reinsert the catheter into the vein. See Graczyk, Landry Executedfor ‘82 Robbery Slaying, Dallas Morning News(Dec.18, 1988); Graczyk, Drawn-Out Execution Dismays Texas Inmates, Dallas Morning News(Dec. 15, 1988). On May 24, 1989, in Huntsville, Texas, Stephen McCoyhad violent physical reaction to the drugs (heaving chest, gasping, choking, etc.). The Texas Attorney General admitted that the inmate “seemed to have a somewhatstrongerreaction,” adding,“[t]he drugs might have been administered in a heavier dose or more rapidly.” See Man 515 Put to Deathfor Texas Murder, N.Y. Times (May 25, 1989); Witnesses to an Execution, Hous. Chron. (May 27, 1989). On January 24, 1992, in Varner, Arkansas, it took the medical staff more than 50 minutesto find a suitable vein in Rickey Ray Rector’s arm. Witnesses were not permitted to view this scene, but reported hearing Rector’s loud moans throughout the process. The administrator of the State’s Department of Corrections Medical Programssaid, paraphrased by a newspaperreporter, “the moans came as a team of two medical people, increased to five, worked on both sides of Rector’s bodyto find a suitable vein.” The administrator said that mayhavecontributed to his occasional outbursts. See Farmer, Rector, 40, Executedfor Officer’s Slaying, Ark. Democrat-Gazette (Jan. 25, 1992); Clinesmith, Moans Pierced Silence During Wait, Ark. Democrat-Gazette (Jan. 26, 1992). On March 10, 1992, in McAlester, Oklahoma, Robyn Lee Parks had a violent reaction to the drugs used in the lethal injection. Two minutes after the drugs were administered, the muscles in his jaw, neck, and abdomen beganto react spasmodically for approximately 45 seconds. Parks continued to gasp and violently gag. Death came eleven minutes later. See Witnesses Comment on Parks’ Execution, Durant Democrat (Mar. 10, 1992); Dying Parks Gaspedfor Life, The Daily Oklahoman (Mar. 11, 1992); Another U.S. Execution Amid Criticism Abroad, N.Y. Times (Apr. 516 24, 1992). On April 23, 1992, Billy Wayne White died 47 minutesafter his executioners strapped him to the gurney in Huntsville, Texas. White tried to help prison officials as they struggled to find a vein suitable to inject the killing drugs. See Man Executed in ‘76 Slaying After Last Appeals Rejected, Austin (Tex) American-Statesman (Apr. 23, 1992); Killer Executed By Lethal Injection, Gainesville Sun (Apr. 24, 1992); Graczyk, Veins Delay Execution 40 Minutes, Austin (Tex) American-Statesman (Apr. 24, 1992); Fair, White Was Helpful at Execution, Hous. Chron. (Apr. 24, 1992). On May 7, 1992, in Texas, Justin Lee Mayhada violent reaction to the lethal drugs. According to Robert Wernsman,a reporter for the /tem in Huntsville, Texas, May “gasped, coughed andreared against his heavy leather restraints, coughing once again before his bodyfroze... .” Reporter Michael Graczyk wrote, “He went into a coughing spasm, groaned and gasped,lifted his head from the death chamber gurney and would have archedhisback,if he had not been belted down. After he stopped breathing, his eyes and mouth remained open.” Graczyk, Convicted Texas Killer Receives Lethal Injection, Plainview, Tex. Herald (May7, 1992); Convicted Killer May Dies, Huntsville, Tex. Item (May 7, 1992); Convicted Killer Dies Gasping, San Antonio Light (May 8, 1992); Graczyk, Convicted Killer Gets Lethal Injection, Denison, Tex. Herald (May 8, 1992). On May 517 10, 1994,in Illinois, after the execution of John Wayne Gacy had begun, one of the three lethal drugs used to execute Gacy clogged the tube, preventing the flow of the drugs. Blinds were drawnto block the scene, thereby obstructing the witnesses’ view. The clogged tube was replaced with a new one,the blinds were reopened, and the execution resumed. Anesthesiologists blamed the problem on the inexperience of prison officials who conducted the execution. Doctors stated that the proper procedure taught in “IV 101” would have preventedthis error. It took fifty minutes to execute Gacy, after the mixed chemicals clogged the tube twice. See Karwath and Kuczka, Gacy Execution Delay Blamed on Clogged T.B. Tube, Chi. Trib. (May 11, 1994). On May 3, 1995, Emmitt Foster was | executed by the state of Missouri. Foster was not pronounced dead until twenty-nine minutes after executioners began the flow of lethal chemicals into his arm. Seven minutes after the chemicals began to flow, the blinds were closed to prohibit the witnesses’ view. Executioners finally reopened the blinds three minutes after Foster was pronounced dead. According to the coroner who pronounceddeath, the problem was causedby the tightness of the leather straps that bound Foster to the execution gurney. The coroner believed that the tightness stopped the flow of chemicals into the veins. Several minutes after the strap was loosened death was pronounced. The 518 coroner entered the death chamber twenty minutes after the execution began, noticed the problem,and told the officials to loosen the strap so that the execution could proceed. 1157. Morerecently, the Ninth Circuit has acknowledged “the execution team’s difficulty in administering the procedure(i.e., insertion of the IV tubes),” during the February 23, 1996 execution of William Bonin at San Quentin Prison. California First AmendmentCoalition v. Calderon, 138 F.3d 1298, 1300 (9th Cir. 1998). 1158. Therisk of such prolonged administration of the lethal _ Injection is increased by California’s lack of comprehensive standards in defining the procedures. 1159. A swift, painless death cannot be ensured without standardsin place to ensure that the lethal chemicals will be administered to petitioner in a competent, professional manner by someone adequatelytrained to do so. See McKenzie v. Day, 57 F.3d 1461, 1469 (9th Cir. 1995). 1160. The very real risk of such prolonged administration of the lethal injection also violates international law. A recent report by the International Commission of Jurists recently noted that the trend in the United States towards lethal injection in an attempt to “humanise”the execution process in fact merely prolongs the “torture” of the death row 519 inmate: Locating a suitable vein has, in several cases, prolonged the execution process by over an hour. Lethal injections are often inserted by non-medical, inexperienced correctional personnel since doctors are prohibited from participating in executions except to announce death. International Commission of Jurists, The Death Penalty: Condemned,Sept. 2000. The report further noted that “[a]waiting death is a form of psychological torture evidenced by the fact that mock executions .. . are a commontorture tactic. It is cruel and inhuman.” Jd. 1161. California’s use oflethal injection in the administration of the death penalty fails to protect condemned prisoners from unnecessary pain and suffering, and the risk of inflicting such cruel and unusualpain is enhancedby the lack of established, comprehensive protocols. The Eighth Amendment’s prohibition against cruel and unusual punishment “acquire[s] meaning as public opinion becomes enlightened by a humanejustice.” Weemsv. United States, 217 U.S. 349, 378 (1910). To kill Petitioner by the lethal injection procedures used by the California Department of Corrections would be inhumaneandis prohibited by the Bighth and Fourteenth Amendments to the United States Constitution as well as international law. See also Claim L. 1162. Accordingly, Petitioner’s death judgment must be vacated 520 and/or a stay of execution entered permanently. L. PETITIONER CANNOT LAWFULLY BE EXECUTED BECAUSE HIS DEATH SENTENCE VIOLATES INTERNATIONAL LAW 1163. Petitioner’s death sentence was unlawfully and unconstitutionally imposed in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution; Article I, sections 1, 7, 15, 16 and 17 of the California Constitution; and international law, covenants, treaties and norms. Petitioner’s sentence of death was imposed without regard to internationaltreaties and laws to which the United States is a signatory, and which obligate the United States to comply with humanrights principles. In addition to being deniedhis rightto the minimum international, federal and state law guarantees for a fair trial and a competent defense, petitioner has also been denied his right under customary international law to appeal and habeas corpus review by an independent, impartial tribunal. 1164. Petitioner alleges the following facts in support ofthis claim, amongothers to be presented after full investigation, discovery, access to this Court’s subpoena power, adequate funding for investigation and experts, and a hearing on the merits of the claim. 1165. The State of California is boundbyinternational law and 521 treaties to which the United States is a signatory: “[A]lIl treaties made, or which shall be made, underthe authority of the United States, shall be the supremelaw ofthe land; and the judgesin every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.” U.S. Const., art. VI, cl. 2. The United States Supreme Court has recognized that “[i]nternational law is part of our law, and must be ascertained and administered by the courts ofjustice of appropriate jurisdiction, as often as questions of right depending uponit are duly presented for their determination.” The Paquete Habana, 175 US. 677, 700 (1900);see also Rest.3d Foreign Relations Law of the United States, § 111(1) (“International law and international agreements of the United States are law of the United States and supreme overthe law of the several States”); and Jd. at § 702, commentc (“[T]he customary law of human rights is part of the law of the United States to be applied as such bystate as well as federal courts”’). 1166. The bodyofinternational law that governs the State of California’s, and the United States’s, administration of capital punishment includes, but isnot limited to, the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the United Nations 522 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention Against All Forms of Racial Discrimination, and the Vienna Convention on the Law of Treaties. The purpose of these andothertreaties is to bind signatory nations, including the United States, to the protection of the nghts of all humans, including Petitioner and others who havebeen accusedof capital crimes. Human rights treaties are different from othertreaties in that parties to human rights treaties agree to protect individuals within their jurisdictions, while parties to other treaties agree how to act with respect to each other. The “object and purpose”rule keepsstate parties from eliminating important aspects of humanrights treaties by making reservations to them, leaving its own citizens as well as other state parties with no recourse. “{T]he true beneficiaries of the agreements are individual human beings, the inhabitants of the contracting states.” Rest.3d Foreign Relations Law of the United States, §313, reporter’s notes p. 184. 1167. The United States Senate has ratified the International Covenant on Civil and Political Rights (hereinafter “International Covenant”). International Covenant on Civil and Political Rights, June 8, 1992, 999 U.N.T.S. 171. The United States is therefore bound by the provisions of the Second Optional Protocol to the International Covenant, 523 adopted by the United Nations General Assembly in 1989. The Second Optional Protocol provides for the total abolition of the death penalty, but allowsstate parties to retain the death penalty only in wartime,if a reservation to that effect was madeat the time ofratifying or acceding to the Protocol. The United States was not at warat the time Petitioner was sentenced to death, and his sentence doesnot arise from convictions for crimes committed during a war. 1168. The process by which the President of the United States and the United States Senate ratified the International Covenant, and the substance of the purported reservations and declarations placed upon its ratification, present important federal questions underthe separation of powers doctrine as well as the Treaty Clause. The United States ratified the International Covenant on September8, 1992 with five reservations, five understandings, four declarations, and one proviso. S. Res. 4783-84, 102d. | Cong., (1992). Oneofthe purported reservations was madeto avoid the provisionsofarticle 6 to the International Covenant, which guarantees the right to life and specifically prohibits the execution ofjuveniles. The United States’s ratification of the International Covenant on Civil and Political Rights included a vague declaration “that the United States understandsthat this Covenant shall be implemented by the Federal 524 Governmentto the extent that it exercises legislative and judicial jurisdiction over the matters covered therein and otherwiseby the state and local governments. The Federal Governmentshall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measuresfor the fulfillment of the Covenant.” S. Treaty Doc. No. 95-2 (Dec. 16, 1966), International Covenant on Civil and Political Rights. 1169. However, the federal Treaty Clause does not contain any language suggesting that the Senate can partially consentto a treaty or create a new oneby placing conditions onit that materially alter the treaty which is proffered by other nations. Nor doesthe alleged “reservation power”survive analysis under the federal Supreme Court’s recent decisions regarding the separation of powers, culminating in Clinton v. City ofNew York, 524 U.S. 417 (1998) (line-item veto held invalid because the Constitution does not authorize the president “to enact, to amend or to repeal statutes”); see also Bowsherv. Synar, 478 U.S. 714 (1986); INSv. Chadha, 462 U.S. 919 (1983). 1170. President Clinton subsequently issued an executive order adopting a “policy and practice of the Government of the United States” to implementinternational humanrights treaties. Exh. 269, Executive Order 525 No. 13107, “Implementation of Human Rights Treaties.” President Clinton specifically referred to the International Covenant whenordering that the United States fully “respect and implementits obligations under the international humanrights treaties[.]’”® 1171. In addition to violating federal constitutional and separation- of-powers principles, the United States’s attempt to condition its consent to the treaty with a “reservation”to the prohibition against executions violates 8 Exec. Order No 13107states, in part: “IMPLEMENTATION OF HUMAN RIGHTS TREATIES By the authority vested in me as President by the Constitution and the laws of the United States of America, and bearing in mindthe obligations of the United States pursuant to the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Elimination ofAll Forms ofRacial Discrimination (CERD), and other relevant treaties concerned with the protection and promotion ofhumanrights to which the United States is now or may becomea party in the future, it is hereby ordered as follows: “Section 1. Implementation of Human Rights Obligations. “(a) It shall be the policy and practice ofthe Governmentofthe United States, being committed to the protection and promotion ofhuman rights and fundamental freedoms,fully to respect and implement its obligations under the international human rights treaties to which it is a party,includingthe ICCPR, the CAT, and the CERD.” Exh. 269, Exec. Order No. 13107, 63 Fed.Reg. 68991 (emphasis added). 526 international law becausethe “reservation”is inconsistent with the “object and purpose”ofthe treaty. The Vienna Convention on the Law of Treaties states that a “reservation”is not valid if it “is incompatible with the object and purposeofthe treaty.” Vienna Convention on the Law ofTreaties,Jan. 27, 1980, 1155 U.N.T.S. 331, pp. 336-37; see also Rest.3d Foreign Relations Law of the United States, § 313(1)(c) (“A state may enter a reservation to a multilateral international agreement unless the reservation is incompatible with the object and purpose of the agreement.”) This rule of international law has been adopted by the International Court of Justice and the United Nations General Assembly. See Reservations to the Convention ofthe Prevention and Punishmentofthe Crime ofGenocide, U.N. GAOR,6th Sess., 360th plenary meeting, at p. 84, U.N. Doc. A/L.37 (1952). 1172. The “object and purpose”of the International Covenantis to bestow and protect inalienable human rights to citizens: “[e]very human being has the inherent right to life. This right shall be protected by law. No oneshall be arbitrarily deprived of life.” Article 6, para. 1, International Covenant on Civil and Political Rights, June 8, 1992, 999 U.N.T.S. 171. Theright to life is a fundamental humanright which is expressed throughoutthe International Covenant. There is nothing more contravening 527 to the “right to life” than the death penalty. 1173. In 1995, the United Nations Human Rights Committee concludedthat the United States’s reservation to Article 6, paragraph 5 was incompatible with the object and purpose of the International Covenant, and recommendedthat it be withdrawn. See Consideration ofReports Submitted by State Parties Under Article 40 ofthe Covenant, U.N. Hum. Rts. Comm., 53rd Sess., 1413th meeting., at para. 14, U.N. Doc. ICCPR/C/79/Add.50 (1995). “The Committee [was] particularly concerned at reservationsto article 6, paragraph 5, and article 7 of the Covenant, whichit believes to be incompatible with the object and purposesofthe Covenant.” Id. 1174. Because the United States’s “reservation” to Article 6, paragraph5, violates the object and purpose of the International Covenant and its Second Optional Protocol, it is void. Since the “reservation”is void, the United States is bound bythis treaty, and, pursuantto the Supremacyand Treaty Clauses to the United States Constitution and long established rules of international law, the State of California is prohibited from executing petitioner. U.S. Const. art. VI., cl. 2; U.S. Const.art. II,cl. 2; International Covenant on Civil and Political Rights, June 8, 1992, 999 U.N.T.S. 171; The Paquete Habana, 175 U.S. 677, 700 (1900); Clintonv. 528 City ofNew York, 524 U.S. 417 (1998); Bowsherv. Synar, 478 U.S. 714 (1986); INS v. Chadha, 462 U.S. 919; Exec. Order No. 13107, 63 Fed.Reg. 68991 (December 10, 1998) [App. 137]; S. Treaty Doc. No. 95-2 (Dec. 16, 1966), International Covenant on Civil and Political Rights. 1175. For all of the reasons asserted herein, and in this Petition, the writ must issue. 529 PRAYER FOR RELIEF WHEREFORE,Petitioner respectfully requests that this Court: 1. Take judicial notice ofall records and briefing in Peoplev. Boyette, No. S032736, and ofall other matters and documents of which judicial notice is requested elsewhere in the present Petition; 2. Request that the original exhibits referred to in this Petition be transmitted to the Court by the clerk of the superior court (Cal. Rules of Court, rule 10(d)); 3. Order the custodians of records pertaining to Petitioner’s case to producethe record or a certified copyto be filed with the clerk of this Court; 4. Allow Petitioner a reasonable opportunity to amend or supplementthis Petition to include legal and factual grounds for claims which becomeapparent from further investigation or from allegations made in the return or informal opposition to the Petition; 5. Allow Petitioner a reasonable opportunity to amend or supplementthis Petition to include legal and factual grounds for claimsthat become apparent from this Court’s decision on his pending direct appeal; 6. Grant Petitioner, who is indigent, sufficient funds and the opportunity fully to develop and provethe facts and law relevant to the 530 claims raised herein; 7. Issue an order to show cause, returnable before this Court, why Petitioner’s convictions, special circumstance findings, and death judgment should not be set aside; 8. Grant Petitioner an evidentiary hearing at which proofmay be offered concerning the allegations of this and any supplemental or amended Petition; 9. Authorize Petitioner to conduct discovery and grant Petitioner the authority to obtain subpoenasfor witnesses, documentsandall matters with respect to the claims pleaded herein; and to reconsider Gonzales on this point; 10. Order that Petitioner has not waived any applicable privileges by the filing of this Petition and the exhibits; that he has not waivedeither the attorney-client privilege or the work-productprivilege; that any waiver of a privilege may occuronly after a hearing with sufficient notice and the night to be heard on whether a waiver has occurred and the scope of any such waiver; that Petitioner is granted “use immunity” for each and every disclosure he has made and may makein support ofthis Petition; 12. Order a hearingand,if necessary, the taking of evidence, upon | all allegations by Respondent of waiver and/or forfeiture by Petitioner; 531 13. Uponfinal review of the cause, order that Petitioner’s convictions, special circumstancefindings, other findings, and death sentence be setaside; 14. Issue any stays of execution or proceedings necessary to protect this Court’s jurisdiction; and 15. Provide Petitioner such other and further relief as may be deemed appropriatein the interests ofjustice. DATED: /o//¢foo... LYNNES. COFFIN STATE PUBLIC DEFENDER AUDREY CHAVEZ Deputy State Public Defender GAIL JOHNSON Deputy State Public Defender BY: Sf, E S. COFFIN Attorneys for Petitioner MAURICE BOYETTE VERIFICATION I, LYNNE S. COFFIN,declare under penalty of perjury: I am an attorney admitted to practice law in the State of California. I am the State Public Defender andrepresent Petitioner, who is unlawfully confined andrestrainedofhis liberty at San Quentin State Prison, Tamal, California, in violation ofstate law, the state constitution, and the federal constitution. I am authorizedto file this Petition for Writ of Habeas Corpus on behalfof Petitioner. I am makingthis verification because Petitioneris incarcerated in Marin County and because these matters are more within my knowledgethan his. I have read the foregoing Petition for Writ of Habeas Corpus and knowthe contents to be true. Executed under penalty of perjury this 18th day of October, 2000,at San Francisco, California. (pe~~. YNMNE S. COFFIN | STATEPUBLIC DEFENDER Attormey ‘or Petitioner 533 DECLARATION OF SERVICE Re: In Re Maurice Boyette No. I, Siobhan Noble, declare that I am over 18 years ofage, and not a party to the within cause; my business address is 22] Main Street,'10" Floor, San Francisco, CA 94105. On this day, I served true copies of the attached: PETITION FOR WRIT OF HABEAS CORPUS AND EXHIBITS on each of the following, addressed (respectively) as follows: Christina Kuo Maurice Boyette ( hand delivery) Deputy Attorney General H-76600 455 Golden Gate Ave. #11000 San Quentin State Prison San Francisco, CA 94102 San Quentin, CA 94974 Office of the District Attorney ( hand Alameda County Superior Court 1225 Fallon St. # 900 delivery) 1225 Fallon Street, #209 Oakland, CA 94612 Oakland, CA 94612-4293 Each said package wasthen, on October 19, 2000, sealed and mailed via United Parcel Service (UPS) at San Francisco, California, the county in which I am employed, with the postage thereon fully prepaid. I declare under penalty that the foregoingis true and correct. Executed on October 19, at San Francisco, California. Siobhan Noble
