WELCH (DAVID ESCO) ON H.C.Petitioner’s Petition for Writ of Habeas CorpusCal.June 24, 2002 76) SupREME COURT Seni »9$10'7782 JUN 24 2002 Frederick K. Ohirich Clerk S e a a a POSTON rae IN THE SUPREME COURTOFTHE STATE OF CALIFORNIA Related to Automatic Appeal Case No. $011323 Inre_ w h e e DAVID ESCO WELCH, ) ) Alameda County Superior On Habeas Corpus ) Court No. 90396 )} (Hon.Stanley Golde Presiding) PETITION FOR WRIT OF HABEAS CORPUS STEPHANIE ROSS Attorney at Law State Bar No. 130810 600 Winslow Way East, Suite 130 Bainbridge Island, WA 98110 (206)780-8276 WESLEYA. VAN WINKLE Attorney at Law State Bar No. 129907 P.O. Box 5216 Berkeley, CA 94705-0216 (510) 848-6250 Attomeys for petitioner, DAVID ESCO WELCH DEATH PENALTY No. IN THE SUPREME COURTOF THE STATE OF CALIFORNIA ) Related to In re ) Automatic Appeal ) Case No. 8011323 DAVID ESCO WELCH, ) ) Alameda County Superior On Habeas Corpus ) Court No. 90396 ) (Hon.Stanley Golde Presiding) PETITION FOR WRIT OF HABEAS CORPUS STEPHANIE ROSS Attorney at Law State Bar No. 130810 600 Winslow WayEast, Suite 130 Bainbridge Island, WA 98110 (206)780-8276 WESLEY A. VAN WINKLE Attorney at Law State Bar No. 129907 P.O. Box 5216 Berkeley, CA 94705-0216 (510) 848-6250 Attorneys for petitioner, DAVID ESCO WELCH TABLE OF CONTENTS JURISDICTIONAL FACTS 2... 0... cece cc ceceSr tt eee 1 PROCEDURAL HISTORY ...... 0... 0c ccc ccc cee eee eee ence eens 4 TIMELINESS FACTS AND RELEVANT HISTORY ..................00000- 9 REQUEST FOR DISCOVERY AND EVIDENTIARY HEARING .............. 6 CLAIMS FOR RELIEF ........... 0... ceeeee eee e eee eeesLecce cece eeeeee 28 Claim 1: Brady Error— Prosecution Misconduct— Withholding of Impeachment Evidence Regarding Payment and Other Favorable Treatment Given to Barbara and Stacey Mabrey ........ 0... ccc eee eee eee e ence ee eeeee 38 Claim 2: Judicial Error--Failing to Order a Determination of Petitioner’s Competence; Trial While Mentally Incompetent in Fact ............. 0. cece eee eee 59 Claim 3: Judicial Error--Petitioner’s Rights Were Violated by the Court’s Imposition on the Defense of an Unworkable Form of Hybrid Representation ........... 86 Claim 4: Judicial Error--Denial of Self-Representation..................00- 112 Claim 5: Prejudicial and Egregious Mistreatmentof Petitioner While Incarcerated Lenn een n en eee eee eben teen tenn eee beeen nenes 122 Claim 6: Juror Misconduct: Private Communicationsby Bailiff to Jurors of Material, Extrinsic Evidence ....... 0... cece eee eee teen ee eneneas 132 Claim 7: Prejudicial Courtroom Atmosphere ............. 000 c cece cece ees 141 Claim 8: State Misconduct — Tampering With Exculpatory Forensic Evidence .... 146 Claim 9: Prosecutorial Misconduct--Prosecutor’s Prejudicial Invocation of God’s — Authority and Consequencesfor Failure to Impose Death Penalty ........ 156 Claim 10: Prosecutorial Misconduct--Unconstitutional and Shocking Interaction in Court With Petitioner and Prejudicial Comments on Petitioner During Trial ..... 165 Claim 11: Prosecutorial Misconduct--Prejudicial Introduction of Egregious, Extrinsic Evidence in Closing Argument ........... 00.0 ccc ccc cc eecccecccce 173 Claim 12: Prosecutorial Misconduct--Prosecutor’s Prejudicial Misdirecting Jury to: “Advise” the Court; Serve as the “(Conscience of This Community”; and Impose a Sentence of Death to Prevent Hypothetical, Future Acts ................ 179 Claim 13: Prosecutorial Misconduct — Overt and Prejudicial Violation of Court Order ........ 0.0.0. ceeeeeneeeecs 185 Claim 14: Prosecutorial Misconduct--Improperly Urging Jury’s Comparison ofPetitioner to Ramon Salcido .... 0.2... . 0. ce cece cence eenecneeee 192 Claim 15: Prosecutorial Misconduct and Judicial Error (Batson) ............... 196 Claim 16: Brady Error--Penalty Phase Impact of Prosecution Suppression of Material Evidence. 2.0... ccc ccc cece cece eee eteeeeeeees 203 Claim 17— Cumulative Error — Prosecutorial Misconduct .................... 207 Claim 18: Ineffective Assistance — Failure to Competently Investigate and Present Social History ..... 0.0... ccc cece cc cece eee cece eeeeeannnees 210 Claim 19: Ineffective Assistance of Counsel--Failure to Move for Competence Determination ...... 20.0... 0... cece cece e cence eeeneeeeeanns 229 Claim 20: Ineffective Assistance of Counsel -- Acquiescing in andFailing to Object to a Hybrid Form of Legal Representation Devised by the Court ........... 241 Claim 21: Ineffective Assistance of Counsel — Failure to Competently Investigate and Present Impeachment Evidence Regarding Prosecution Witnesses ........ 268 Claim 22: Ineffective Assistance of Counsel --Failing to Adequately Investigate and Challenge the ConditionsofPetitioner’s Confinementin the County Jail ... 274 Claim 23: Ineffective Assistance of Counsel — Failure to Competently Investigate and Present Mental Health Evidence ..........0.. 0.0. c cece cece eeeaes 279 Claim 24: Ineffective Assistance of Counsel--Failure to Move for a Private Psychiatric Examination of Petitioner ..........0. 0... ccc ccc cece cc eeeeeueeeee 301 Claim 25: Ineffective Assistance of Counsel--Failure to Challenge Loss or Destruction of Forensic Evidence ............ cece cece cece cece eee cnwccceceee 305 Claim 26: Ineffective Assistance of Counsel--Jury Selection Proceedings Beeeee eee eee ete ee tee tee t eee bebee teen eenes 309 Claim 27: Ineffective Assistance of Counsel — Failure to Competently Confront and Respondto Prosecution Case in Aggravation. weeeee ee ee en ee ee eee teen tees bene eebeeeeeeeuas 322 Claim28: Ineffective Assistance of Counsel — Pretrial Proceedings weeee ee eee eee ee ee tee ee ee bene een e tev eeeeeeues 335 Claim 29: Ineffective Assistance of Counsel--Guilt Phase Errors eeeee eee eee tee teen eet e eee et eeeeneenaee 345 Claim 30: Ineffective Assistance of Counsel--Deficient Performance Throughoutthe Penalty Phase ... 0.2... ccc cece een e eee nneeeees 355 Claim 31: Ineffective Assistance of Counsel During the Post-Trial Phase weee nee ee eee cent been eee e tence eee eeeeeeeeane 365 Claim 32: Ineffective Assistance of Counsel--Failure to Object to Prosecutorial Misconduct ..... 0.2... cece eee eee cence ee cee ee eneeenneaes 372 Claim 33 — Ineffective Assistance of Counsel — Cumulative Error Leeeee eee ee ee eee teen e ee eee ee ee eet ee ee ee ees 377 Claim 34: Judicial Bias--Misconduct--Failure to Control Proceedings Beeee ee ee nee eee tee teen teen tent et ee ee eeee nes 379 Claim 35: Judicial Bias: Unconstitutional Instruction Precluding Requisite Consideration of Testimony ............. 0... cee cece cee eee e eens 385 Claim 36: Judicial Error--Bias: Denial of Allocution Rights--Fundamental Constitutional Violation and Judicial Bias/Error.... 2.0.0... 0.0 ccc cee eee eee 389 Claim 37: Judicial Bias--Court’s Unconstitutional Denial of Petitioner’s Opportunity to Review Probation Report ........ 00... ccc cece cece cee cent e eens 397 Claim 38: Judicial Bias--Failure to Control Juror’s Access to Media andFailure to Admonish Jurors Regarding the Extensive Pre-Trial, Trial and Penalty Phase Publicity... 0.00.0... cece eee c ccc eee ccc eeeeeeeeeeeeeeneeeeeeees 401 Claim 39: Judicial Bias — Misconduct: Prejudicial Orders Regarding Petitioner’s Testimony and Orders Favoring Prosecution Witnesses Bee ee eee ee ee eee eee ne ee ee teen tee eeeeeneneneens 408 Claim 40: Judicial Bias-- Prejudicial Curtailment and Inadequate Voir Dire ..... 412 Claim 42: Judicial Misconduct--Abdication of Duty--Misguiding and Leaving Jury During Deliberations ............. 00.0 ccc cece eee eee e ee neveeves 426 Claim 43: Judicial Misconduct--Instructional Error--Unconstitutionally Precluding Jurors’ Consideration of Entire Testimony (Angela Payton) ............. 431 Claim 44: Judicial Error--Misconduct--Court’s Violation of Penal Code Section 190.4 and Constitutional Guarantees in Modification of Sentence ............. 440 Claim 45: Judicial Misconduct — Review Error: Constitutionally Erroneous Application of Penal Code Section 190.3 to Ruling on Automatic Modification Motion . 446 Claim 46: Judicial Error--Prejudicial Shackling ........0.. 0.0.0 cc cc eee eee 450 Claim 47: Judicial Error--DenialofPetitioner’s Right to Expert Psychiatric, Psychological and Requisite Medical Assistance in the Guilt Phase ....... 454 Claim 48: Judicial Error--DenialofPetitioner’s Right to Expert Psychiatric, Psychological and Requisite Medical Assistance in the Penalty Phase ..... 469 Claim 49: Judicial Error--Trial Judge’s Introduction of Prejudicial, Extrinsic Information Regarding Petitioner’s Conduct ............ 0.00. cece cence ee eaeees 476 Claim 50: Judicial Error — Petitioner’s Fundamental Right To Be Present was Violated By His Absence During KeyPortionsofthe Trial eeee ener eee nee e ee ee teen ee ene eee e eee eeeneneee 486 Claim 51: Judicial Error--Pattern of Ex Parte Contact by the Court with the Prosecutor and Counsel .. 0.0...eeeccc cence eee e ee eneeenes 497 Claim 52: Judicial Error: Unconstitutional Venire and Panel--Excusing Jurors Who Were Not Clearly Pro-Life Without Parole eeeee eee ee ee ence eee eee e eden ene t ee eeees 501 Claim 53: Judicial Error: Failure to Change Venue ...................00000- 508 Claim 54: Judicial Error--Constitutionally Inadequate Record--Failure to Keep and Provide Petitioner Transcripts of Significant Proceedings and Essential Elements Of Record 2.0... ccc cece eee e ence eee eeeneeneeues 519 Claim 55: Insufficiency of Evidence — Insufficient Evidence of Premeditation and Deliberation to Sustain Conviction .........0.. 0.000. c cece ence ee eeee 533 Claim 56: Instruction Error-Improvised, Egregious MurderInstructions ........ 539 Claim 57: Instructional Error--Judicial Bias: Instruction on Petitioner’s Conduct .. 546 Claim 58: Instructional Error—Constitutional Error in Instructing Jury That They Must Accept Prior Felonies As Conclusively Proved Beeee ee ee eee eee eee eben tent ete tebe ene enenenee 553 Claim 59: Instructional Error--Erroneously Directing Jurors to Agree Unanimously on a Sentence Less Than Death ......... 0... cece cece cece eee e eens 557 Claim 60:Instructional Error--Constitutionally Inaccurate and Confusing Special Circumstance Instruction ..........0 0... c cece eee cee eee c eee e ences 561 Claim 61: Instructional Error--Erroneous Directive on the Meaning of “Aggravating” and “Mitigating” Evidence ........... 0. ccc ccc ce cence een e ee eeeee 565 Claim 62: Instructional/CALJIC Error--CALJIC 8.85 Misled the Jury to Double Count the Circumstancesof the Crime in Violation of the Prohibition Against Double Jeopardy .. 0...ccceee eee eee e eee teen ennens 570 Claim 63: Instructional Error--Failure to Instruct Jury of Prosecution’s Burden to Prove Other Criminal Activity Beyond a Reasonable Doubt .................. 574 Claim 64: Instructional Error--Instruction Permitting Consideration of Criminal Acts Not Involving Violence as Aggravating Circumstances .................05. 580 Claim 65: Failure to Instruct on the Presumption of Life ..................... 586 Claim 66: Cumulative Errors--Ruling on Automatic Modification Motion eeeeee eee nee ee te ene ee ee nee teen teen teens 589 Claim 67: Cumulative Judicial Error ....... 0.0... cc ccc cee cc cee eee neces 591 Claim 68: Ineffective Assistance of Appellate Counsel ..............veeeees 594 Claim 69: Ineffective Assistance/Conflict of Counsel--California System of Dual Representation Results in Conflict of Appellate Counsel Lene een eee ee ee eee ee eee eee eee eee e tenetsa .... 596 Claim 70: Disproportionate Sentence ........ bce e cece nsec eee eneeeeeenes 602 Claim 71: California Death Penalty Statutes are Unconstitutional Because They Fail to Perform the Constitutionally Mandated Narrowing Function ............ 609 Claim 72: International Law--Numerous Due Process Violations Violate Treaties and Principles of International Law .......... 0... cece cece cece nee eees 616 Claim 73: Systematic Error--Unbridled Prosecutorial Discrimination in Charging 633 Claim 74: California’s Death Penalty Scheme is Unconstitutional Becauseit Fails to Require Written Findings With Respect to Aggravating Factors.......... 636 Claim 75: Appellate Delay Has DeniedPetitioner His Right to Counsel, His Right to Due Process, and His Right to Be Free of Cruel and Unusual Punishment .. 640 Claim 76: Cruel and Unusual Punishment — Lethal Injection .................. 642 Claim 77: Cruel and Unusual Punishment — Execution of Mentally Retarded or Impaired... 0...eeecee eee ee ee eee een eneas 656 Claim 78: Cumulative Error ........ 0... cee eee ee eee enna 658 PRAYER FOR RELIEF .... 0... ccccecc cee eee eee eee 661 TABLE OF AUTHORITIES CASES Ake v. Oklahoma (1985) 470 U.S. 68 cccecccssscceesssseesseessenees 60, 88, 211, 231, 243, 275, 281, 302, 306, 323, 337, 346, 356, 455, 469, 595, 598 Ake v. Oklahoma, supra, 470 U.S. at p. 84-85 wissesssssssssesssecesesseees seaseeneaeseaceees 471 Ake v Oklahoma, supra, 470 U.S.at pp. 83-84 ....sssscessessessessessesssessessssscssneeses 461 Alcorta v. Texas (1957) 355 U.S. 28 w.ceussecsssscssssssersscseeseeceees 39, 147, 204, 269 Apprendi v. New Jersey (2000) 530 U.S. 466 ou...eeccsscecscsessessteneeeeeeeneees passim Arave v. Creech (1993) 507 U.S. 463 ....ceessssscseceessesscescsocssscsseessssseosseesecessees 610 Arizona v. Youngblood (1988) 488 U.S. 51...cesses 146, 155, 305, 306, 308, 595 Arizona v. Youngblood, supra, 488 U.S. 51 ..issesssssssessssesessssessssenseseseessenseees 308 Asakura v. Seattle (1924) 265 U.S. 332 wocccessssecceseseceeseceeseccceseesseesessseeesesees 617 - Asakura v. Seattle (1924) 265 U.S. 332 [68 L.Ed. 1041, 44 S.Ct. 515] 0... 630 Atkins v. Virginia (2002) 02 Daily Journal D.A.R. 6937 .0..... ce sessscesseseees 656, 658 Barker v. Wingo (1972) 407 U.S. 514 weceessctsssscessstenssccnsscessessensecsenssrsoseeees 642 Barker v. Wingo (1972) 407 U-S. 514 oeeicescssssssssscsesessercessssscsectssessnsseeseaseees 640 Barkley v. Florida, 463 U.S. 939 ....ccsssccssssssssesseessseecssssesessessessessessesersassesseeseecs 523 Batson v. Kentucky (1986)476 U.S. 79 w.esessssssssesesseseesens 113, 134, 142, 196, 197, 502, 509 Batson v. Kentucky, supra, 476 U.S. 79 wcccccccsssccssssssssesesenscsseessseesesseeseees 198, 199 Beckv. Alabama (1980) 447 U.S. 625 cessesssssssssessscsssssessesseseeresecsseesssssesneeaees passim Beck v. Alabama (1980) 447 U.S. 625 oo... ccssesesceseseeseseesersssssssssecsseceseeeseenees 540 Beck v. Alabama, supra, 447 U.S.at Pp. 643 occceesssesesseesessstseesseseseeenseneenees 583 Beck v. Alabama, supra, 447 U.S.at pp. 637-638 oo... eeesssssssseesesseeeeseneeseeeees 601 vii Berger v. United States, 295 U.S. 84 ...cccscsscsssssssssssscscsscscecceccssestccsssscssenseassnenses 184 Berger v. United States (1921) 255 U.S.2 w.cccsscccssssssssscecescsssssccssescsosscerseneeces 470 Berger v. United States (1921) 255 U.S. 22 ccescsssscsssssssssssssesssssssesssesessssesee ‘passim Berger v. United States (1921) 255 U.S. 22. cicicsccccsssscsssssssessessenscessecessece 446, 565 Berger v. United States (1935) 295 U.S. 78 ccecsccesssseeeee 147, 159, 167, 175, 181, 186, 194, 208, 374 Berger v. United States (1935) 295 U.S. 78 c.cccccccccsssssssscsscesssseccessssscsssenssecasens 155 Berger v. United States, supr ; People v. McNeer (1935) 8 Cal.App.2d 767 .... 422 Bollenbach v. United States, 326 US. O07 oo. cesceccesscessscccsscccssscesscssccececsccerescens 439 Bollenbach v. United States (1946) 326 U.S. 60. v.ucccccecscecesssesecsecccessessesenseees 548 Bollenbach v. United States (1946) 326 U.S. 607 w.ecccccccecsssccssssceseseescecene passim Bollenbach v. United States (1946) 326 U.S. 607 ooo 167, 186, 194, 442 Bouie v. Columbia (1964) 378 U.S. 347 vceccccsccssssssscssscssecseseccscesssssesceesscesssessees 603 Bouie v. Columbia, supra, 378 U.S.at pp. 354-355 c.cccsceccessssssssssscscescssscsseseees 609 Brady v. Maryland (1963) 373 U.S. 83. ...scsscccssssssssssessscscsssscssssssasscesesceeeeces passim Brady v. Maryland, supra, 373 U.S. 83 w..ccccscscscssssessscsssscsscessesssscssssesacsacseeseecees 206 Brecht v. Abrahamson (1993) 507 U.S. 619 ...ccccccssssccccsssscsssssssscssssesccsssesacsaces 164 Britt v. North Carolina (1971) 404 U.S. 226 v.cccecssccscsscsscssccesscessscseceacencees | saaee 524 Bustamante v. Eyman (9th Cir. 1972) 456 F.2d 269 ....ececescsscsssssssesssscssecceeees 494 Caldwell, 472 U.S. at 341 oieeeescssssssssesesesesssescsesssesesssenesestenssscsessecseeesscasesesens 184 Caldwell, supr ; Viereck v. United States (1943) 318 U.S. 236 w..ccccccccssscssceees 183 Caldwell v. Mississippi (1985) 472 U.S. 32. w..cccssesssesssseeseseees 167, 175, 181, 187 Caldwell v. Mississippi (1985) 472 U.S. 320 ...ccccccsssssscssesssssssssssscsceesssessees passim Caldwell v. Mississippi (1985) 472 U.S. at 328-329 .o...escceseessessees 172, 182, 183 Caldwell v. Mississippi, supra, 472 U.S. at 330 ......csscssesssesseesesssseesseeesssseseteees 162 Vill Caldwell v. Mississippi, supra, 472 U.S.at p. 341 w..cccssssscssssscsescsessessssseeeseeees 639 California v. Brown (1987) 479 U.S. 538 w..cccccesessssssssssssssssscscscsesesesesessscsescssscees 637 California v. Ramos (1983) 463 U.S. 992 w.cecescssssscesescescssescsesseccsssssssseeeeae 610 California v. Ramos (1985) 463 U.S. 992 wccccccssccssscsssssccessccessssessssscesses 593, 660 California v. Ramos, supra, 463 U.S.at pp. 998-999 wou. ceccseccsessscsssssessessenes 614 California v. Trombetta (1984) 467 U.S. 479 vcccccssccsseee 147, 305, 306, 308, 595 California v. Trombetta, supra, 467 U.S. 479 wicssscccssscsssssesssessccsssssssessscceecece 308 Campbell v. Blodgett (9th Cir. 1992) 997 F.2d 512 ...cscccsccsccccssecesesesssseceessees 599 Campbell v. Wood (9th Cir. 1994) 18 F.3d 662 uu... 644, 645, 646, 647, 648 Carella v. California (1989) 491 U.S. 26 voccccssscssescssssssssecssscsssescsessessssceesesses 548 Carella v. California (1989) 491 U.S. 263 vcccccsccscsssssssscssesscessssssesesessseees passim Carella v. Californnia, supra, 491 U.S. 263 ....ccccccscscsscsssssssssssssessssssseassscscesecene 551 Chandler v. Florida (1981) 449 U.S. 560 ...cccccsessssseeees 113, 133, 142, 311, 403, 509 Chandler v. Florida (1981) 449 U.S. 560 ....cccccsssssssssssscsscscecesssessscscssssecsacseees 161 Chapman Vv. California (1967) 386 U.S. 18 v.cccccssscscscessssssscscssscssecssssesctsesersseees 639 Chessman v. Teets (1957) 354 U.S. 156 c..ccscscscssssssssscscssssscecsesecessesscscssesersasscees 640 City ofRevere v. Massachusetts General Hospital (1983) 463 U.S. 239.......... 123 Clemonsv. Mississippi (1990) 494 U.S. 738 ..eccsscssssssccssscessssscssssseccecesesessessseees 599 Coker v. Georgia (1977) 433 U.S. 584 wcecscscsssssssssssssscscscssessesesecseees 602, 643, 656 Coleman v. Thompson (1991) 501 U.S. 722 v.eccccccccssssssssscssssssceccssecssescececsscenees 640 Commonwealth v. Chambers (Pa. 1991) 599 A.2d 630 vo.cccsccccecsscseceessseceereecsees 164 Corona v. Superior Court (1972) 24 Cal.App.3d 872 .....c.cccceccsssssssseseseeees 319, 513 Cox v. Louisiana (1965) 379 U.S. $59 .ccccscsscsssscsscscssssssssssssssssssssssssssssecscceseess 145 Coy v. Iowa (1988) 487 U.S. 1012 oo. eccseessesesssesesteseee 390, 447, 451, 477, 487, 534, 540, 547, 554, 558, 562, 571, 575, 581, 590 ix Coy v. Towa, supra, 487 U.S. 1012 wceeccscsscccssescssesssessescssssesssessecessessesseeseeees $50 Crow v. Gullet (8th Cir. 1983) 706 F.2d 774 wocccccsccccecssssesessseseseccssscsseessrceceeee 625 Cuyler v. Sullivan (1980) 446 U.S. 33 cccccccccssescesssesesees 87, 230, 242, 269, 275, 280, 311, 337, 366, 374, 498, 597 Cuyler v. Sullivan (1980) 446 U.S. 335 ccescscsscssssssssccsssssssssssesscceesereceeceees passim Daniels v. Williams (1986) 474 U.S.327 ..e.ceccsssssssssccsscesesssecesssssecsssescecscseessece 123 Davis v. Alaska, 415 U.S.at 316-317 ..csccesssssssssssssssssssscsssessscsscesecssssstarsesesenses 177 Davis v. Alaska (1974) 415 U.S. 308 ...ccccccsssscsssssssosssssessscssecesecsesscssessecsecseee passim Davis v, Alaska, supra, 415 U.S. 308 scccsosssssssssssesessusesssseeseseeeesseescesec 483 DeMarco v. United States (1974) 415 U.S. 449 ovcccsesssssesesees 40, 147, 204, 269 Dear Wing Jung v. United States (9th Cir. 1962) 312 F.2d 73 ...ccecccssssssssesssecees 651 Delo v. Lashley (1993) 507 U.S. 272 visccssccssssccsscceseccsesesessssssssssssscssscessacesesesceee 588 Dent v. West Virginia (1889) 129 U.S. 114 cieccccscccccsscsssssssecssscesscscscesscsescesees 122 Donnelly v. DeChristoforo (1974) 416 U.S. 637 vseseseeene 40, 147, 176, 204, 270 Douglas v. Alabama (1965) 380 U.S. 415 w.ccccsessssssssseseseees 40, 148, 204, 270, 497 Douglas v. California (1963) 372 U.S. 353 coccsccssscsscscssssssssssssesessecscssseeees 597, 640 Draper v. Washington (1963) 372 U.S. 487 ..cccccsssssssssssssssssssssececcessescesesereceseees 520 Draper v. Washington, supra, 372 U.S. 487 veccccccsccsssesssssssssscessrssssscsesecsesseeeseases 524 Dropev. Missouri (1975) 420 U.S. 162 wccccscscssssssssescecee 60, 123, 231, 275, 281, 302, 323, 337, 346, 356 Drope v. Missouri (1975) 420 U.S. 162 vcccscscccsscsssceccssscsscssssssesssscesssesscscsseessees 61 Drope v. Missouri, supra, 420 U.S.at po 177 vcccccscssssssssssscsssssesscssesesestsssecesesenees 65 Duncan v. Louisiana (1968) 391 U.S. 145. voceccesseesceeeees 386, 403, 414, 428, 548 Duren v. Missouri (1979) 439 U.S. 357 w.cscccccccssssssssssssssssssscsssserscesecsssseecesseceeees 502 Dusky v. United States (1960) 362 U.S. 402 wo..cccessssssssseseseees 60, 61, 67, 113, 123, 230, 275, 280, 302, 323, 337, 339, 346, 356 Dusky v. United States, supra, 362 U.S,at p. 403 ....cssccsssssesssecsscsesssssescsssesens 119 Eddings, 455 U.S. at 113 ....esssssssssssssssssssessssssesesesssscssscsssecesesenesesessesscseeenspeooee 3392 Eddings v. Oklahoma (1981) 455 U.S. 104 vccsccsccsssssssscscccsssesesesesessssesesessesees 634 Eddings v. Oklahoma (1982) 455 U.S.10 v.cccsssscseseeseeees 337, 381, 403, 421, 455, 470 Eddings v. Oklahoma (1982) 455 U.S. 104 w.c.scscscsssssesssssssssssssscssssstesssssneees passim Eddings v. Oklahoma (1982) 455 U.S. 104 civcessssssssscssssssscsccssescssscssssecsessesees 392 Eddings v. Oklahoma, supra, 455 U.S. 104 wccccssscssssssscsssssscsecssssssssesessssessseesees 401 Enmundv. Florida (1982) 458 U.S. 782 c.cccccccccssssssssssscsseccsscccecssessscsesessees 603, 610 Enmundv. Florida (1982) 458 U.S. 782. cccccsssssssscssssssssscscesssscesssssesscsssssecesscsses 605 Estelle v. Gamble (1976) 429 U.S. 97 vececccssssssssssssssssssesessscescesererees 123, 643, 656 Estelle v. Smith (1981) , 451 U.S. 454 wcccscsssscssssscscsssccsscscsesssesessssseens passim Estelle v. Williams (1976) 425 U.S. 501 w.ccssscsssssssssesseeee 133, 142, 323, 346, 356, 390, 451, 587 Estelle v. Williams (1976) 425 U.S. 501 wu.cccscsssssssssscscscscceceseececeseseccsesessecseesees 578 Estelle v. Williams, supra, 425 U.S.at p. 503 ...ccccccssscsssscscscscssccesesesesssseseceesseees 587 Estes v. Texas (1965) 381 U.S. 532 .cccccsssssssssssscesssseseeees 113, 134, 142, 311, 509 Evitts v. Lucey (1985) 469 U.S. 387 .eecssssscsssssssesssssssssssscscsserssesesssssaeeeees 594, 597 Evitts v. Lucey, supra, 469 U.S. 387 ...cccsecsssssssssssssssscssscsesssscassscssectcestsesssnseassenes 595 Ewing v. Williams (9th Cir, 1979) 596 F.2d 391 .....cecsessssssscsssssscssssstssseseceseees 378 Eyde v. Robertson (1884) 112 U.S. 580 .....cccccscsssssssssssssssssssscscsesssssecsesscsrseseceees 618 Faretta v. California (1975) 422 U.S. 80 weccesccssccssscsssssscssssescsssserscessesceenes passim Faretta v. California (1975) 422 U.S. 806 .....ceccccsscscssesscsceee 7, 63, 87, 113, 233, 242, 337 Faretta v. California, supra, 422 U.S. 806 ...cccccccsssssssscssssssecsscesssvseseesees 119, 120 Faretta v. California, supra, 422 U.S. 806 ...cccccccccsssssscscsssecesssscessssssecsescecesceres 119 xi Fierro v. Gomez (9th Cir. 1996) 77 F.3d 301 uu...esesscssesscssevsescsssecsseseescssesees 644 Fierro v. Gomez (N.D. Cal. 1994) 865 F.Supp.1387 .......csssessssscsssessecsseesseseees 644 Fierro v. Gomez, supra, 865 F.Supp. At Po 1411 weecsssesseseeesssesseeeseees sees 644 Filartiga v. Pena-Irala (2d Cir. 1980) 630 F.2d 876........:sccsssssssseessesssoeeseseseese 626 Filartiga v. Pena-Irala (2nd Cir. 1980) 630 F.2d 876 .......ccscssssssscessesseeeeseeeeeees 625 Fisher v. United States (1976) 425 U.S. 391 ou...cccscsscsssesscssesscssessecsecsssssesssansens 409 Florida (1977) 430 ULS. 43 wccsssssssscscssssessssssssssscsessacecesecssssssseessasestessesseareeses 455 Ford v. Wainwright (1986) 477 U.S. 399 sccsscssssscsssssssesessssesssssesessssssneesLa 601 Ford v. Wainwright (1986) 477 U.S. 399 v..ccccessccsscseceescesceseeseetesteeeussesesssseenees 606 Frey v. Flucomer(3rd Cir. 1997) 132 F.3d 916 ......ccsscssscsssesseeseecsecessesentceseenes 559 Furman v. Georgia (1972) 408 U.S. 238 .....cccssscsscssesscesessensssesseeeereenteeees 523, 634 Furman v. Georgia (1972) 408 U.S. 238 v..cccccssssccecssssssessessesseseceseecessesseseeeeee 610 Furman v. Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726 ... 611, 613, 614, 615, 616 Furman v. Georgia (1972) 408 U.S. 430 ou... cecccsscssseesseessessssseseeseesseeeenes 643, 657 Gamble (1976) 429 U.S. 9 oceesssssssssscsssscsssssseecscssseseensacsscsssessesseesscesesnesesenasers 643 Gardnerv. Florida, 430 U.S. 439 w.ccssssscesesssesessesseseseees 60, 148, 212, 231, 243, 281, 303, 311, 497 Gardnerv. Florida (1977) 430 U.S. 43 wu.cecesssssssscssssssssseessesecessesseeeseeeeseeenseeses 470 Gardnerv. Florida (1977) 430 U.S. 439 ....ccsccssssscssesessescesessseseescessesseeentens passim Gardnerv. Florida, supra, 430 U.S. 349 vcccceccsscssescsssssscsssssseesssesssssssesssesseessseses 500 Gardnerv. Florida, supra, 430 U.S. 439 ....ccccccsccsesessscsseseesneeees 401, 484, 552, 556 Gardnerv. Florida, supra, 430 U.S.at p.361 .....eccsceccsscsecsscssseecseseseceeseesnssceeees 523 Geders v. United States (1976) 425 U.S. 80 ......sccssssscsssecsssesscescesceeseereeenees 88, 243 Giglio v. United States (1972) 405 U.S. 150...ceeessccseeeees 39, 40, 147, 203, 204, 269, 270 Giglio v. United States, supra, 405 U.S., at p. 154 ..eeeseseesestestsseeeeseenenneeentens 54 Xii Godfrey v. Georgia (1980) 446 U.S. 42 cesssssssssssssssssesssssesssseeeees 402, 421, 455, 470 Godfrey v. Georgia (1980) 446 U.S. 420 uu... essscssescsssessssscessecsseiscnseseseacees passim Godfrey v. Georgia (1980) 446 U.S. 420, 100 S.Ct. 1759 oo. ccscsssssesesee.eves O11 Godfrey v. Georgia, supra, 446 U.S. 420 ...ecscsccsssecssssseesscoees 484, 552, 613, 614 Godfrey v. Georgia, supra, 446 U.S.at p. 420 ...ecsssscsssccssessesesssssssssssessscocecacs 162 Godfrey v. Georgia, supra , 446 US.at p. 428 .....scsssessesssscscesessessssssessesscsssees 400 Godfrey v. Georgia, supra, 446 U.S. 420 uv. ecssescsseccensssesessssssccsssssssessscssscecseseees 371 Godinez v. Moran (1993) 509 U.S. 389 ucccecscsccsssssscssesessceseseensesees 113, 337, 608 Godinez v. Moran (1993) 509 U.S. 389 .....eccssssssssssscsssssccseesccsessccscserssssssscesscess 119 Gomez v. Fierro (1996) 519 U.S. 918 cccssssssssees sasssssesssessssuecessvescessseseesensanseeseen 644 Green v. Georgia (1979) 442 US. 95 Lo eeceessssscenccssrsessesseessssesscesseseesesscsceeseees 392 Gregg Vv. Georgia, 428 U.S. 153 wi ceessscssscsssssssssssesssssssccessessssseesseeressenssseesssees 523 Gregg v. Georgia (1976) 428 U.S. 15 wtesesssssessessesseceseesscsecsesssesssssscesseceasers 643 Gregg v. Georgia (1976) 428 U.S. 153 ...ceeesssessessesseseeseenees 123, 637, 643, 656 Gregg V. Georgia, SULA, 428 U.S. 153 ...ecscsssssssssessessecesceseccessssssssssceesessscseers 613 Gregg v. Georgia, supra, 428 U.S.at p. 184 wcccecsesseresscesesssessessecsseesseseees 614 Griffin v. Illinois (1956) 351 U.S. 12 wceesescsssssssecessscsscescscsscsceseasssssseeaees 338, 520 Griffin v. Illinois, supra, 351 U.S. 12 vecccscccsscssssscssscssssssssessessssesssesesesseceecseseeses 524 Groppi v. Leslie (1972) 404 U.S. 496 oo...eesssssessenscssesesercessecssssseseeeneses 361, 392 Harmelin v.Michigan (1991) 501 U.S. 857 .o..cccesssecssseseesssesssssecccesesssssssessesesees 657 Harmelin v. Michigan (1991) 501 U.S. 957 w.ccsssccsscsssessessesseccssesessescensesssseees 637 Harris v. Pulley (9th Cir. 1988) 885 F.2d 1354 .0.....esssesssssssseccsceecsesecsseessrseesees 26 Harris v. Wood (9th Cir. 1995) 64 F.3d 1432 o0......secsssssecssceceessseneseenees 593, 660 Hernandezv. Ylst (9th Cir. 1991) 930 F.3d 714 uuu... .ecscscsssssssescesseseeesesseensenees 61 Hicks v. Oklahoma, 447 U.S. 343 ...ccccssccssssssessssesssccscsssssssesseerseseessnscssnsssseseesseees 603 xiii Hicks v. Oklahoma, 447 U.S. 343 ...esessssssssssessessssscssscsssvenss 60, 148, 149, 212, 281, 282, 283, 374, 498, 657 Hicks v. Oklahoma (1979) 447 U.S. 34 wcceccsssscsesseseeees 303, 338, 380, 403, 421, 470, 548 Hicks v. Oklahoma (1979) 447 U.S. 343 v.cccccccssssccscssssessecessecesesssessassesceece passim Hicks v. Oklahoma (1980), 447 U.S. 343 ...cccsscscsscsescsscsssssssecsscsseseeceesssssecsesees 606 Hicks v. Oklahoma, supra, 447 U.S. 343 vccccccccsssssscsssscsssescscsssesesces 496, 524, 598 Hill v. Lockhart (1985) 474 U.S. 5 v.ccccssssssssssscscssssessecereees 87, 230, 242, 269, 275, 280, 311, 337, 366, 374, 498, 597 Hill v. Lockhart (1985) 474 U.S. 52. v.ecccsssssscsscssssscsccsseseees 87, 211, 230, 242, 269, 275, 280, 302, 311, 337, 366, 374, 498, 597 Hitchcock v. Dugger, 41 U.S. at 394 wececcssscsssscsesssssscscssscssssececesssseseessseuensenes 178 Hitchcock v. Dugger (1987) 481 U.S. 393 vccccscccsssssssscsssesesescsesesessesseees 455, 469 Hitchcock v. Dugger (1987) 481 U.S. 393 vccccccscscssssccsccssssssecsccssssecsscsesececereees 392 Holbrook v. Flynn (1986) 475 U.S. 560 w.ccessccccscsssssssseccesssssececessssesssssceseucenenes 145 Hudson v. McMillian (1992) 503 U.S. vccccccsssssssscssssssesesesssceseceecscesersaes 643, 656 Hutto v. Finney (1978) 437 U.S. 678 ...ccssssscsscssecssssssssscscscsssscscsesesssssacesscnseeescess 122 Hydrite Chemical Co. v. Calumet Lubricants Co. (7th Cir. 1995) 47 F.3d 887 359 Ibid. ; In re Murchison (1955) 349 U.S. 133 cccecccscccssscsscecsssssscececesceceeses 483, 507 Id. Gregg v. Georgia (1976) 428 U.S. 153 w.ccccceccsssesssssssessssssssssecsescstsescnseees 172 Id. In re Murchison (1955) 349 U.S. 133. cccecccssssscsscssssssscscssssssssssescsseceeessecees 422 Illinois v. Allen (1934).291 U.S. 97 vcecccccccssssssssssscscsssssssssscssscssssssessscessseeseesseees 486 Illinois v. Allen (1970) 397 U.S. 337 v.cccccsssccsessssssssssscsscscsssscessscscsssscssssssceeseaees 497 Illinois v. Allen, supra, 397 U.S. 337 w.escsssssssssesssessssssssssesessessssssscsssoesees soteenenanes 500 Illinois v. Allen, supra, 397 U.S. at p. 337 ..cscssssssssssssessssssssssssseessssesseesesssesssssess 491 Illinois v. Allen, supra, 397 U.S.at p. 338.....sessenseceesnsssecesaneseessansecsssnsensasenssnees 490 XiV Imbler v. Pachtman (1976) 424 U.S. 409. vo. escssssessssseessssceceeseee 40, 147, 204, 270 In re Benoit (1973) 10 Cal.3d 72 wu... eesssccssssssssssesscsscesesssetestcccessersssssscseeecsaseuss 600 In re Clark (1993) 5 Cal.4th 750. 0... .eescscscsssssssececcssesescessssscsearsees 10, 14,26, 600 In re Dennis (1959) 51 Cal.2d 666 .0.........sscssssccsssssssssccsscsssscssssscnscoesssessececsersnses 70 In re Kemmler (1890) 136 U.S. 43. weeesessssecssecesceecesesssssecessececessssssessseeseeeneass 643 In re Kermmler (1890) 136 U.S. 436 wu... ccssssssssessescessessssesesesssesesssscnscoes 643, 656 In re Lynch (1972) 8 Cal.3d 410 uu... cesssssccscesesseesssessesssseessesseseecsessesesceenes 604, 606 In re Murchison (1955) 349 U.S. 13 ....cssccscsscscsscesssscssessessessccesesteceeeeesecstssaeseasass 337 In re Murchison (1955) 349 U.S. 133 ...cccsccscsssecsscsscesscessscecsessscssssccssessscees passim In re Murchison (1955) 349 U.S. 133 ...essscssscsssesecsnseeeees 166, 173, 179, 185, 192, 397 In re Murchison (1955) 394 US. 133 v.eeccesssscstsscssccssssscccessccesetessesssessesseceseneees 394 In re Murchison, supra, 349 U.S. at pp.136-139 wu... cecscssssccsssesceseessesssstesseseees 468 In re Oliver, 333 U.S. 257ei sessesssscsssssescnscsseseecsseceacsceseessceseaceeseeessssecsseeeeesenses 138 _ Inre Podesto [(1976)], 15 Cal.3d 921 oo... ecessssssesssssctesceseeesssssesacssssessteesesseees 638 In re Robbins (1998) 18 Cal.4th 770 oo... esecsssssscceesessecescsccsscsseesenesseeeees 10,11, 12 In re Rodriguez (1981) 119 Cal.App.3d 457 ou... eesecsssssessseseecersenseeeceecers 593, 660 In re Thomas C. (1986) 183 Cal.App.3d 786.0...ecsesesceeseresceccscceeeeeseeeeeeseees 543 In re Winship, 397 ULS.at 364 ooo. eeesscescetseceeesseseesasscescscenesseesesscessonsseeesnees 578 In re Winship (1970) 397 U.S. 35 wee eeesssceesesesecessesetseseceesecsseeeeeseeses 380, 403, 421 In re Winship (1970) 397 U.S. 358 ...cccsscsscssscsssesesscesssssessseescenecesseeneeeneensess passim In re Winship, supra, 397 U.S. 358 .....esscsssssssssessecsscenccesscesccsseesneeacens 483, 584, 586 Inupiat Community ofthe Arctic Slope v. United States (9th Cir. 1984) 746 F.2d 570 wie eeescsssseessesscsscssecsscssssssnscssessecssescarscssssceeseeseeesrsessesensesseeenses 625 Irvin v, Dowd (1959) 359 U.S, 394 oo. ceesescssssseesecescessescenssssseesseseaseseessceseeeseeeease 311 Irvin v. Dowd, supra, 366 U.S, at Pp. 722 weecscsssscsscerssscceeesseeecuscscsoesnseeseneeses 144 XV Irwin v. Dowd (1961) 366 U.S. 717 oeecssssesssssscesssscsscsessssescscssaseceetecenees 133, 142 Irwin v. Down (1961) 366 U.S. 717 uc.ecssssssscsssssscssccsssscssesessssscnscesscssecssesecssees 144 Jeffries v. Wood (9th Cir. 1997) 114 F.3d 1484,cert. deni ........c.cccccsesceeeeesvee 419 Jeffries v. Wood (9th Cir. 1997) 114 F.3d 1494 wuvcesscssccsssesececcsceseseseseeeees 164 Jeffries v. Wood (9th Cir. 1997) 114 F.3d 1494 522 U.S. 1007 .....ccccecessssseseee 137 Johnson v. Mississippi (1988) 486 U.S. 578 ....ccccssssssscsssssseccscscsescessccecenseees passim Johnsonv. Mississippi, supra, 486 U.S. at pp. 584-585. ....cccscsssssesescssececessseseee 583 Kirby v. United States, 174 U.S. 47 v.ccccccssscssssssscscsssscscsccsccssesssssessssssnccacssenesasecs 138 Kubatv. Thieret (7th Cir. 1989) 867 F.2d 351 co.ccccsecccscsssesssesessescessceesscssseseee 559 Kyles v. Whitley (1995) 514 U.S. 419 w..ccccccssesesssssssssssssssscseststsssesceseececeessesessees 52 LaGrandv. Lewis (D.Ariz. 1995) 883 F.Supp. 469 ....cccccccsssssccssssccseseceseseees 649 Lafferty v. Cook (10th Cir. 1991) 949 F.2d 1546 wo.ccccccsssccssssssssssscssssscestssesesees 61 Lanev. State (Fla. Dist. Ct. App. 1984) 459 S0.2d 1145 voccccscssscesseseseseeeees 492 Lawson v. Borg (9th Cir. 1995) 60 F.3d 608 ....cccccsessscsssssssssssccscesesesesceceness 137 Lee v. Illinois (1986) 476 U.S. 530 ...eesesssssecsssssssessccssssssscssscscssscsesesseseeceens 486, 490 Lehrv. Robertson (1983) 463 U.S. 248 vic. ccccescsccsscccessescescsesscsessessccsceses 643, 657 Lemonv. Kurtzman (1971) 403 U.S. 602....sssssssssssessssssessscssssssecescetrsesecereees 162 Lewis v. United States, 146 U.S. 370 ..cccccccscssssssssssscsscescscecssssssesssceesccsccessnseneees 486 Liteky v. United States (1994) 510 U.S. 540 w..cccssssescsscsssssssssssscsssssssscscesscseessens 88 Lockett v. Ohio (1978) 438 U.S. 536 w.cscsssscssssecssscsssssssssssscscsscsescscsesesesscecececsees 603 Lockett v. Ohio (1978) 438 U.S. 58 ..c.scssssssssescssssssssssssesssssssesssssssscecsesseenses 456, 470 Lockett v. Ohio (1978) 438 U.S. 586 ....csscsssssccssssssessssseess 159, 167, 175, 181, 187, 211, 400, 456, 470 Lockett v. Ohio (1978) 438 U.S. 586 o.ecccsscssssssssssssseseees 123, 159, 167, 175, 181, 187, 194 Lockett v. Ohio (1978) 438 U.S. 586 o...cecssssssssssssssssssssssssessssseseseseseseesssssaesesess 392 XVi Loven v. Kentucky, 488 U.S. 227 ...c.csccsscsssscsscsssssseseesensessescnssasecenesseses 60, 212, 281 Lovenv. Kentucky, 488 U.S. 227 (1988) o....ccseeeessesecesscessscssessssssecsssssssssessseecs 497 Loven v. Kentucky (1988) 488 U.S.227 cecsssssssssssssssssssssssscsssssssseesessssseeeseen ‘passim Loven v. Kentucky, supra, 488 U.S. 227 ....scsssssccssssssccscssscssessessesessessenssasseesscees 483 Lowenfield v. Phillips (1988) 484 U.S. 231 Leeessetceccessesceseeseessccsssseeneseees 393 Lynch v. Donnelly (1984) 465 U.S. 687-688 ........ecssssececssssssescssssescsesserensseeereces 157 Main v. Superior Court (1968) 68 Cal.3d 375 ou... esssssscssssessssecessseesseetees 319, 513 Maine v. Moulton (1985) 474 U.S. 15 ceeeecssssscssetsssesssscesscesscsesssesesseeseeees 87, 242 Maine v. Moulton (1985) 474 U.S. 159 vveecssscssscsssscssessssesesessessesesesseesscers 87, 242 Makv. Blodgett (9th Cir. 1992) 970 F.2d 614 wo... ceesssccsceeceseseeeeees 344, 354, 365 Marshall v. Union Oil(9th Cir. 1980) 616 F.2d 1113 oo...ce ceeessessssesssssseseee 651 Martinez v. Superior Court (1981) 29 Cal.3d 574 oo. eccscssssssssseceseesesssesesseees 512 Massiah v. United States (1964) 377 U.S. 201 ..cesssssssssscsssssesesssseeesseseees 88, 243 Mattox v. United States (1892) 146 U.S. 4 wovccecsesesessssteesesessseresscetssssessnneers 337 Mattox v. United States (1892) 146 U.S. 40 weeceeceeees 113, 133, 141, 197, 311, 337, 374, 413, 476, 502, 509 Mattox v. United States (1892) 146 U.S. 40 wocessscsssscessesceessseeeeessesteseeenenees 390 Mattox v. United States, supra, 146 U.S. 40 oo... cescssssssersesescssesscsenssseseesneseeenens 419 Mattox v. United States, supra, 146 U.S.at p. 150 ocesccsceccsseseecceesscesereserees 137 Mayberry v. Pennsylvania (1971) 400 U.S. 455 wo.ecccesssscesssssscescessseceeeeeees passim Mayberry v. Pennsylvania (1971) 400 U.S. 455 oo. eecesescestssesssetseeseessneessenesees 393 Mayberry v. Pennsylvania (1971) 400 U.S. 455 wi.eecsssseesseseseteesscsenetseeeeseeees 44] Mayberry v. Pennsylvania (1972) 400 U.S. 455 oo. cccscssccsscsescesesscsseessescceasensees 88 Mayberry v. Pennsylvania, supra, 400 U.S.at p. 464 woecceseeceeeseeeeeeeeeees 483 Maynard v. Cartwright (1988) 486 U.S. 356 oo... eeessssssescesseeeeceeeeetsscececeesscesees 615 XVii Maynard v. Cartwright (1988) 486 U.S. 456 .....cccssccsscsscsscsscscscsecsccsscsessescesees 401 McClesky v. Zant (1991) 499 U.S. 467 wcecsccccssccsccsssssscssesscssssssessscseccscssseceseees 14 McCoy v. North Carolina, supra, 494 U.S.at p. 443 sessesesusanenseseeseeeseststsesensee 560 McCoyv. North Carolina, supra, 494 U.S,at p., 444 c.ccccccccsssscscessssssscersesesees 559 McKaskle v. Wiggins (1984) 465 U.S. 16 .....cccssssssscscssssssssseccecsceecsesescnseees 87, 242 McKaskle v. Wiggins (1984) 465 U.S. 168 ........cssscssesesees 87, 113, 119, 242, 337 McKenzie v. Day (9th Cir 1995) 57 F.3d 1461 occcsssssessssssssscscssesssessceseecersees 649 McMannv. Richardson (1970) 397 U.S. 759 ...eccsecsssessssseees 40, 87, 204, 211, 230, 242, 268, 274, 280, 302, 306, 310, 322, 336, 345, 355, 366, 373, 594, 597 Mempa v. Rhay (1967) 389 U.S. 128 v...ecccescssssesssssessescccsssssssscssscessccavscssssecescees 640 Miller v. Pate (1967)386 U.S. eccescesseetsessceeseseceeceesseseseesesses 39, 147, 204, 269 Mills v. Maryland (1988) 486 U.S. 367 ....cccsssscccssssecseesees 400, 431, 557, 570, 574, 580 Mills v. Maryland (1988) 486 U.S. 367 ....ccscscssssssssssssssssesessssssstsssssssescecares 637, 638 Mills v. Maryland, supra, 486 U.S. 367 ..ccccccccsscssssssssssscevsccesssscescssceseceecenes 559, 560 Mooney v. Holohan (1935) 294 U.S. 103 ....ccescessssessessessscesssesees 39, 147, 203, 269 Moorev. Nebraska (1999) 528 U.S. 990 ..ccceccsccssssssssessssesssssscssnsssssessecenss 641, 642 Morrissey v. Brewer (1972) 408 U.S. 471 wo.ceccscccsssssssscscsssssssssssscsscsccsecssceeeecees 393 Mullaney v. Wilbur (1975) 421 U.S. 684 w...ccccsccssessscssssssscssscssesssssscesceeseeesco 602 Murphyv. Florida (1975) 421 U.S. 794 wccccscsscsssssccssescesssesssesssessscsssssssesvessanes 519 Murray v. The Schooner, Charming Betsy (1804) 6 U.S. (2 Cranch) 64 ........... 617 Murray v. The Schooner, Charming Betsy (1804) 6 U.S. (2 Cranch) 64 [2 L.Ed 208] o..eeeecesesesccssscsscsscsssssccsesesesssesesstscesesessssesessoesesescacsesseceseacseeecessssneaeess 618 Namba v. McCourt (1949) 185 Or. 579, 204 P.2d 569 ou....csescsssssssssesseescseseeneees 619 Napuev. Illinois (1959) 360 U.S. 26 iciccssccsssessscsssssscssssesssessscrsesosess 54, 167, 181 XViil Napuev. Illinois (1959) 360 U.S. 264 oo.eeesessssseeeeesseeeeees 39, 58, 147, 155, 159, 167, 175, 181, 194, 204, 208, 269 Napue v. Illinois (1959) 360 U.S. 264 .......ccssseccscessessscsssssssersscscseccenssssesesceerses 186 Nebraska Press Associate v. Stewart (1976) 427 U.S. 539 vucecccsessscecsssccessees 414 Nebraska Press Association v. Stewart (1976) 427 U.S. 539 .... 386, 403, 428, 548 Norris v. Risley (9th Cir. 1989) 878 F.2d 1178 wu..cccccssccsssssscsesssecsssssccsecssssceees 144 Ohio Adult Parole Authority v. Woodward (1998) 523 U.S. 272 vcs 644, 657 Ohio v. Johnson (1994) 467 U.S. 493 ....ceccsssesssstessescessssesessesssesssessesesceees 572, 573 Ohio v. Roberts (1980) 448 U.S. 56 ....ceccccsccsessssssssssssssssssssacesssssecessenseeseeees passim Olden v. Kentucky (1988) 488 U.S. 227 ...ccscccssssssessseessssseceesessssscessscsssseseseseees 177 Oyamav. California (1948) 332 U.S. 633 [92 L.Ed 249, 68 S.Ct. 269] ........... 619 Parker v. Dugger (1991) 498 U.S. 308 w.scecsscscssssscssssssscssssssecsesecsessssssesnssaseseeeeess 523 Parker v. Duke (1991) 498 U.S. 308 ......cecsscsssssssssssssssesesseeseceseseeeseseessesecaeseees 603 Parker v. Duke (1991) 498 U.S. 308 .......cccccssssssssessesessessssseessssessecssessscessassscssees 607 Parker v. Gladden (1966) 385 U.S. 363 .......sccsssssssseresseees 133, 141, 390, 413, 502, 510 Parker v. Gladden, supra, 385 U.S. 363 .....ccscssscsccsssssssesssscsssseseesesssscessscens 137, 419 Parker v. Gladden, supra, 385 U.S. at p. 366 ...cccccccsssssscscesescessssesssesssssseesceeees 137 Parker v. Gladden, supra, 385 U.S. at pp.365-366 .......csscecesssecesseees 138, 140, 177 Pate v. Robinson (1966) 383 U.S. 375 ...cccccscscssscssssssssescssesonee 60, 61, 67, 123, 231, 275, 281, 299, 302, 323, 337, 346, 356 Pate v. Robinson (1966) 383 U.S. 375 uo... cssssssssssssssssessssssssescessecsnescesenees 61, 62, 84 Pate v. Robinson, supra, 383 U.S. 375 w..ccccscsssssssssssescsssscesesecssceseeessensssesseneeneacees 85 Patterson v. Colorado, 205 U.S. 454 o....ccccccsssssssscssscecssscssscccesesssscessssssssnsssesscees 138 Patterson v. New York (1997) 432 U.S. 197 .....ccccsssssssscssccesseessscesseseessseessesseeees 578 Patton v. Yount (1984) 467 U.S. 1025 oo.ceeessssssessesssscecsaceeeeeetscceeeeeeeaeeesees 311 X1x Penry v. Lynaugh (1989) 492 U.S. 302 wu.ccccccssssscssssseccessscssessocescsceessoccesesce 184 Penson v. Ohio (1988) 488 U.S. 75. ...sssscccsssssssscsssssssccessccsescssscessssssscsecesesecesceees 599 People v. Arias (1996) 13 Cal.4th 92 ....c.cccssscssssssssssscsesssessssessesssseseccasseesecs‘aves 588 People v. Bailey (1992) 9 Cal.App.4th 1252 woiccccsscssscscsescsessscssssscecscececcescess 600 People v. Barboza (1981) 29 Cal.3d 375 w....essssssssssescsssscssssssssssseccesescesesceeceeeee 599 People v. Barton (1978) 21 Cal.3d 513 cucucececsscccsccssesessssssesecesssececssececescceceees 524 People v, Bean, 46 Cal.3d 919 .....cessssscsssessssssessssessssssscscssssessessssessesscscassessssnsanes 573 People v. Bonin (1989) 47 Cal.3d 808 ....cccccccesccsssscecsesesesssesessssssssssscesssesecseceses 599 People v. Boyd (1987) 38 Cal.3d 762 ...ceccccccccssssssssssssesessssssssscssssssscscseccee 176, 582 People v. Buffum (1953) 40 Cal.2d 719 ...cccccccsssescssscesssssssesesesssssessecescenee 593, 660 People v. Burton (1989) 48 Cal.3d 483 ..cccccccccsssccsscsssssesesessessesssscssssececssssvescese 582 People v. Carroll, 140 Cal.App.3d 1350 ..ccccccccscsssssssscssesecessssessesessssessesessevecessess 491 People v. Cooper (1991) 53 Cal.3d 771 cicscscccsssscssssesssssscsssssssesesscsssesesesssseeeeeee 155 People v. Crew (1991) 1 Cal.App.4th 1591 w.occccccccccssssessssecsesssssesecsssssceseees 603 People v. Davenport (1985) 41 Cal.3d 247 woovcscssesscssesessssssssssssssscssssscsseseeees 449 People v. Dillon (1983) 34 Cal.3d 441 wocccccccccsscsccsesessssesecessesseseesees 604, 605, 606 People v. Edelbacher (1989) 47 Cal.3d 983 [254 Cal.Rptr. 586] ..........ccceee 611 People v. Farmer (1989) 47 Cal.3d 888 ...ccccccscccssesesssessssssesssssssssssssscscscssavences 182 People v. Fauber (1992) 2 Cal.4th 972 ....ccssscssssssssssssssssecsssssessssessesesescsesseseeees 443 People v. Fields (1983) 35 Cal.3d 329 w.ccccsssssssssssccscssesessssesesessessecessessessnseee 195 People v. Gent (1987) 43 Cal.3d 739 ....ccccccssssccscsesssssscseesscsssesessesessssssssecssesesesese 507 People v. Graham (1969) 71 Cal.2d 303 ....cccccsscssscscsesssssessssssecessesesessssscecsersesees 309 People v. Hamilton (1989) 48 Cal.3d1142 0 .o...eccsssssssescsssssssssssssssseccesssssesteneesees 603 People v. Haskett (1982) 30 Cal.3d 841 w.c.c.cccccccsssssssssssesesesessssssescscscscsececececsees 195 People v. Hightower (1996) 41 Cal.App.4th 1108 ............ 120, 602, 607, 608, 609 XX People v. Hill (1998) 17 Cal.4th 800 ou...ccsscsssssccssecsnssecscscsssssssssssceessenes 604 People v. Hitch (1974) 12 Cal.3d 641... .cesssssssssssscsssscssesseccsssssssecsssssessscacsenees 308 People v. Holt (1984) 37 Cal.3d 436 ....ccscssssscessssscssssescssssssesssscsessssersessers 593, 660 People v. Jackson (1980) 28 Cal.3d 264 ......ccsssssssssscssessssssssssssccsssestceseseecscecens 448 People v. Johnson (1989) 210 Cal.App.3d 870 ......ccccssssssssssssscssscsccesssessereersenes 541 People v. Kassim (1997) 56 Cal.App.4th 1360 ......ccccccssssscscsccssesescsssssssersersere 54 People v. Kelly (1980) 113 Cal.App.3d 1005 .......c.ccscssscsscsssssesssscsssssescssesencerees 542 People v. Lan (1989) 49 Cal.3d 991 oo.ecccsssssssssescssescesessssecsessnssecssssssssessenses 604 People v. Lee (1979) 92 Cal.App.3d 707..........0+vestecsessesceecescaeeasesessnecerseneeeneees 542 People v. Lewis (1990) 50 Cal.3d 262 ......cccssssscssssssscscsscssssssscssssscsscsesesceeesceaes 443 People v. Marsden (1970) 2 Cal.3d 118 w.ccecccscssssssssessssessseceeres 30, 63, 64, 67, 96, 99, 116, 118, 120, 233, 236, 250, 253 People v. Marshall (1990) 50 Cal.3d 907 ......cc.ccsccsssssssssssescececcssecsecareceessnesseers 604 People v. Martin (1986) 42 Cal.3d 437 v.cecccssccsccsssssssssesssssssssscecseceeees 637, 638 People v. McNeer (1933) 8 Cal.App.2d 676 ......ccccccsscssssessessescsessssssssssssscessceeess 552 People v. Melton (1988) 44 Cal.3d 713 ...ccccccsssssssssesesesssessssessesesssssresssscsssesssees 573 People v. Milner (1980) 45 Cal.3d 227 .....cccscccscsssssssessessessessessssssssssesssvsccessesees 182 People v. Morales (1989) 48 Cal.3d 527 ......cccccsscsssssssssssscsssssesssssscsssscseees 195, 635 People v. Nicolaus (1991) 54 Cal.3d 551 quoting People v. Anderson (1978) 70 Cal.2d 15 oicccssssssccecccessssssessesssesssssesesesesssessessseesesessseseseaceesssesseaees 537 People v. Ortiz (1990) 51 Cal.3d 975 oo.tccsssscssesssssscsssccssessssesesesssssecceecesseaes 608 People v. Padilla (1995) 11 Cal.4th 891 oo...cesesscsssscesssssessesescsesssssssesscseeess 604 People v. Pantages (1931) 212 Cal. 237 w...c.cccccscsssssscssessesscsssssesseessesesseees 51,273 People v. Pennington (1967) 66 Cal.2d 508 o..cicececcsscccssscsssscsscssesesseceeesses 62, 70 People v. Phillips (1985) 41 Cal.3d 29 ooo. ccssssssscssssessessessessesessseeseseesssees 51, 273 XXi People v. Poke (1965) 63 Cal.3d 443 .....ccscsssssssssssssssssssssessssesesssesscsceesecess 577, 578 People v. Ramos (1982) 30 Cal.3d 553 ....ccccsccssssccssssssssscssecsesssescescoesocsees 593, 660 People v. Rhodes (1974) Cal.3d 180 ....csssssssssssscssssossscsesssesessesescsssssesecscesanerees 599 People v. Rodriguez (1986) 42 Cal.3d 730 ocsccccsescesescessssssccsecsssescsscaseaseceaeceace 638 People v. Ruthford (1975) 14 Cal.4th 399 wocccssssscscsccsssscscsecccsssscscceseseesees 53 People v. Superior Court (Engert) (1982) 31 Cal.3d 797 cccccccccsseccossescccceccccocece. 616 People v. Terry (1964) 61 Cal.2d 137 ...ccccccsscsssssssssccsssssssssesssscssscscesesssccsssseeee 577 People v. Tidwell (1970) 3 Cal.3d 82 savitustustusustusisistusnsnsineened seeees $13 People v. Turner (1986) 42 Cal.3d 711 v.cccecsccccccscsessceccsssssssssssssssesseccecssscececes 198 People v. Van Ronk(1985) 171 Cal.App.3d 818 .....ccccccscsessssccsscssseccsseseesseees 541 People v. Van Ronk (1985) 171 Cal.App.3d 823 ...cccccssccccccssssscssesesesssecscscsesscees 543 People v. Vindiola ( 1979) 96 Cal.App.3d 370 .o....cescsssescsssssssscscssessesescees 593, 660 People v. Wader, 5 Cal.A4th 610 o.c.cccccccssccsssssescssssssssssesssssesessecessasesscsesassesseeeees 443 People v. Watson (1956) 46 Cal.2d 818 ....ccccccccccccsssssssessesesesessesesssesesesessssecceees 639 People v. Welch (1999) 20 Cal.4th 701 wo.ccccccscsssessseseseess 339, 399, 608, 661 People v. Wheeler (1978) 22 Cal.3d 258 w...ccccscsssccscsessoees 97, 102, 103, 198, 252, 257, 258 People v. Williams (1971) 22 Cal.App.3d 34 .cccccccsscssscssssscssssessssescsesesescecsees 348 People v. Williams (1997) 16 Cal.4th 153 wiccccccccsscscccssecsscsesesescesescecesesessscees 349 People v. Woodard (1979) 23 Cal.3d 329 vo.ccccssssccsssssssssssssessssesesssessessees 348, 351 Perry v. Leek (1989) 488 U.S. 272 w..ccecssssssssescsescsssssscssssscssscssssseceenseeesceees 87, 242 Pointer; Coy supra, 380 U.S. 400 .....cccceccccssssssccssccssssscsesssscscsesesessesencascasaceececaes 550 Pointer v. Texas, 380 U.S. 400 ......cssccsscssssesssscscessscsseseesssees 60, 138, 147, 212, 281, 374, 497 Pointer v. Texas (1965) 380 U.S. 400 u.....cccccsssccsssssssssssssssscssesssssscsecscecessees passim Pointer v. Texas, supra, 380 U.S. 400 ooesssessssesesesssessesssscesssesesseeceesscesseses 483 XXil Powell v. Alabama (1932) 287 U.S. 45 eesscssssssceeeeeeseees 40, 87, 204, 211, 230, 242, 268, 274, 280, 302, 306, 310, 322, 336, 345, 355, 366, 373, 594, 597 Profitt v. Florida (1976) 428 U.S. 242 sessssssssssssessssesesessensnssessastasenseessesseseseesceess 500 Pulley v. Harris (1984) 465 U.S. 37 .o...eccsscsssscssssecssccssesseesssessesseeseceeesessssseeeesens 591 Pulley v. Harris (1984) 465 U.S. 37 w.ecccsssssssssssssesesessesecestesccescseesenes seteaseeesees 599 Pyle v. Kansas (1942) 317 U.S. 213 voces eeessecssececcesesessesessessessees 40, 147, 204, 270 Remmerv. United States (1954) 347 U.S.227 wcecccsscessssceseeesscestsesseseneees 403, 414 Remmerv. United States, supra, 347 U.S. 227 w.eesessesssssssssescensessseseneeeees 418, 419 Rhoden v. Rowland (9th Cir. 1999) 172 F.3d 633 ...cssssssssssssssessessecesssessessesesees 453 Rideau v. Louisiana (1963) 373 U.S. 723 ...eccscsessesesseseees 113, 134, 142, 311, 509 Rideau v. Louisiana (1963) 373 U.S. 723 oo. eessscssssscsssessecssssscesessessenesseeteneses 144 Romano v. Oklahoma (1984) 114 S.Ct. 2004ceeseescssesssesseeessseessesssesseeses 182 Sanders (1999) 21 Cal.4th 697 oo... cesscssesecsesscereccesseeseeeseeseeeseseees 10, 11, 12, 14 Sandovalv. Calderon (9th Cir. 2000) 241 F.3d 765 .......cccsssssssssssssssseessssssesesees 162 Sandovalv. Calderon, supra, 241 F.3d at p. 777 sosssseeeceesanassensannescesenennaasseeessnes 162 Sandoval v. Calderone, supra, 241 F.3d 765 ....csccsscssssssessssescssssecssessesssenseesceees 164 Sandovalv. Claderone, supra, 241 F.3d at 777 .......csssssscsssssccssccsseesssseeseeseseeees 163 Sandoval v. Claderone, supra, 241 F.3d at pp. 777-778 ......:cccssccessssssseseeensenes 162 Sandstrom v. Montana (1979) 442 U.S. 510 wcccsccssessesssesssssesseessseeseeees passim Sandstrom v. Montana, supra, 442 U.S. 510 oeeeeseeeseeeeeeeeeees 483, 551, 584, 586 Sei Fujii v. California (1952) 38 Cal.2d 718, 242 P.2d 617 .....cessessseceeeeeeeeeees 629 Shepard v. Maxwell, 384 U.S. 333 ...cccccssssssssscessesesssessesscessesecessccesseseeeenseeesecsces 138 Shepard v. Maxwell (1966) 384 U.S. 333 ....csssceecteceseseeseeees 113, 311, 403, 509 Shepard v. Maxwell (1986) 384 U.S. 333...ssssssssssseccsecsessecsseetseresseseeeeacesees 519 Sheppard v. Maxwell (1966) 384 U.S. 333 wo.eesssscesseeeeeceeeeeeceecteseseeseeeneens 142 XXiil Sheppard v. Maxwell (1966) 384 U.S. 333 scccsccssssssssssssssssssssssssssesssssssssssse 133 Shoultz v. State (Fla. 1958) 106 S0.2d 424 oo... eseccscscsscssssssssssssssssssecsscssesseseees 492 Singh v. Prunty (9th Cir, 1998) 142 F.3d 1157 ccccccccsssscsscssssscsssssssssssssssssessecesssees 51 Skipper v. South Carolina, 476 U.S, at 4 o..eesssssssssssssscssessessssssseseessesesseseseeees 178 Skipper v. South Carolina (1986) 476 ULS.1 weeee 159, 167, 175, 181, 187, 194, 337, 381, 403, 409, 414, 421, 431, 553, 557, 565, 570, 574, 580 Skipper v. South Carolina (1986) 476 U.S..1 w..eccsssssscsssssssssscsssessesesssssesensnssees 392 Skipper v. South Carolina, supra, 476 U.S. ...ccccessssssssesscescsesssscsssssesseees 556, 569 Smith v. McCormick (9th Cir. 1990) 914 F.3d 1153 u....ccesesecccscessessssseseeeeees 460 Smith v. McCormick, supra, 914 F.3d at pp. 1159-1160 ou... cecscesseseesesssseeees 461 Snyderv. Massachusetts (1934) 291 U.S. 97 vo eeessscssssssesseseesteerscencestesseeseeees 486 Snyder v. Massachusetts, supra, 291 U.S.at p. 105-106 .......cecsessesseeseesseeees 491 Snyder v. Massachusetts, supra, 291 U.S.at p. 106 ....ccscscssssescssssessesseceseensenees 492 Spaziano v. Florida, 468 U.S. 447 ....essssssssssssssssescssessccssesessssesessenesseseeeeseeseees 523 Specht v. Patterson (1967) 386 U.S. 605 ......ccccscsssssssssssscssssesssssssssssssesssssecsees 577 Strickland v. Washington (1984) 466 U.S. 66 .....ccccccscscssscsssssessessssseees 87, 211, 302 Strickland v. Washington (1984) 466 U.S. 668 ........c:ccssscssssesssssssesseesceeseees passim Strickland v. Washington (1984) 466 U.S. 668 ............00 267, 339, 340, 341, 342, 343, 344 Strickland v. Washington, supra, 446 U.S. 668 ........c00 358, 359, 361, 362, 364, 365, 372 Strickland v. Washington, supra, 466 U.S. 668 ......ccssssscssecesseceeeees 308, 379, 601 Strickland v. Washington, supra, 466 U.S.at p. 668 ......cccsssessscecceceeeeseeeeeseeeees 318 Strickland v. Washington, supra, 466 U.S.at Pp. 668 ......:ccesccsscssecssceccesereeseeees 371 Taylor v. Hayes, 411 U.S. at p. SO] oceeeceessssssscsseseseescsesscesscnsceseeeenes 393, 394 XXiV Taylor v. Hayes, 418 U.S. 488 wo... cscssssscsscssssssssssscesessessesseessecesceesssssesseuseeseess 367 Taylor v. Hayes, 418 U.S. at 498 wovecesesssssssecceesessssecssseecsccscessectsensssesessessaes 392 Taylor v. Hayes (1974) 418 U.S. 488 oeecsscscecsseesssssssssssssescseessersenenes passim Taylor v. Hayes (1974) 418 U.S. 488 oo.cecsesssscessescsesseessescssssstssusessessesoseees 422 Taylor v. Hayes (1974) 418 U.S. 488 uu... .cscessssssecccseesseseesseseesecssscessesseessssesseees 44] Taylor v. Hayes, supra, 418 U.S. 488 ....ccsccsscssssssscescsssssessceseeseeseseeansesstseseesses 468 Taylor v. Hayes, supra, 418 U.S. at 498 oo... ceessssessesessscssssessessssssssessessssescenes 361 Taylor v. Hayes, supra, 418 U.S. at p. 488 oesseescescccseseecnceesseneseees 482, 483 Taylor v. Kentucky (1978) 436 U.S. 478 o..ccccssseesseeeeees 324, 344, 347, 357, 372 Taylor v. Kentucky (1978) 436 U.S. 478 ...ccccssssscessesseseees 208, 209, 377, 592, 593, 659 Taylor v. Kentucky, supra, 436 U.S. 478 .ecssssssesssssscssssssssssssessssssssssssscsssseensseess 365 Taylor v. Kentucky, supra, 436 U.S. at p. 478 ...ccccsssssssessescessestecesscseseeseaseeses 354 Taylor v. Kentucky, supra, 436 U.S.at p. 478 w..ccccsscsssssssssssssessssessssseseseseneseenes 378 The Paquete Habana (1900) 175 U.S. 677 [44 L.Ed. 320, 20 S.Ct. 290] ......... 618 The Paquete Habana, supra, 175 U.S., at p. 700 .......cccscsssesesceccssessesssssseseseeses 626 The Paquette Habana (1900) 175 U.S. 677 ......essssesssssssessessssseesesssssesssesesesnesees 617 Tison v. Arizona (1987) 481 U.S. 137 vceesscsscsssssscsescesscenesscecessecssesseseeseeseeeees 613 Townsend v. Sain (1963) 372 U.S. 293 ....ccccsssssessscsssessecssesssssesescssssssesssescenseass 637 Townsendv. Sain, supra, 372 U.S. at pp. 313-316 .....cccesscsssssscessesseecsscscersereenes 638 Trans World Airlines, Inc. v. Franklin Mint Corporation (1984) 466 U.S. 243 617 Trans World Airlines, Inc. v. Franklin Mint Corporation (1984) 466 U.S. 243 619 Trop v. Dulles (1958) 356 U.S. 86 ....ccecccssssssssssssessesscesssesssccececessesecessesneees 643, 656 Tuilaepa V. California (1994) 512 U.S. 967 ...cecsscssssessssseseeteeeeeeeeees 603, 607, 610 Tuilaepa v. California, supra, 512 U.S. 967 ....sssessssssscsesseceseeseesseseeceesseensoees 612 Tumey v. Ohio (1927) 273 ULS. 51 ceeescssesssessesscceececesceetsscesesesessceseesessereansees 470 XXV Tumey v. Ohio (1927) 273 U.S. 510 oeeeessssssssssssessssssscsssscesesccsesecesestessseeess passim Tumey v. Ohio (1927) 273 U.S. 510 weeessssessssssssssssececesesesssesssesssssersesscsaseessvaee 393 Turner v. Louisiana, 379 U.S. 466 wiccccccscsccccssscsssssccscssscsscesseceecescccecceceeeeee: a. 137 Turner v. Louisiana, 379 U.S. at 472-473 ciccccccssssssssssssssssessssssssssessseececccccsccecces 177 Turner v. Louisiana (1965) 379 U.S. 466 v.ecccessccscsscsssccssscscesecsscsscsosseseceeee 133, 142 Turner v. Louisiana, supra, 379 U.S. at p. 472-473 vicccsssscssssesscsssssesssecscscessoes 144 U.S. v. Bagley, supra, 473 U.S. 667 w.eccssccsssscsssssscecsssssscsescssssesssescceees 59, 156, 207 Ungarv. Sarafite (1964) 376 U.S. 575 vcsssssscsssssssssseeeeees 380, 402, 409, 413, 421 Ungarv. Sarafite (1964) 376 U.S. 575 vcccsscssssssssssssssssssstcecesessseseess 394, 422, 482 United States v. Agurs (1976) 427 U.S.97 veccccccccsssssssssscecsscseseees 39, 147, 203, 269 United States v. Agurs.(1976) 427 U.S.97 vcssscssssssssssssssscestssssecsssesnsecsesssssasenssees 52 United States v. Bagley (1985) 473 U.S. 667 c.eccccssecsssseseseeees 39, 51, 52, 147, 203, 269 United States v. Blockburger (1932) 284 U.S. 299 ....cccccsscssssssssssssscesessesece $72, 573 United States v. Christophe (9thCir. 1987) 833 F.2d 1296 ...cccccccsccsccescsssssccseees 209 United States v. Cronic (1984) 466 U.S. 648 voces: 87, 230, 242, 269, 275, 310, 336, 366, 373, 597 United States v. Cronic (1984) 466 U.S. 648 wosssseseseeee 40, 87, 205, 211, 230, 242, 269, 275, 280, 302, 306, 310, 323, 336, 346, 356, 366, 373, 594, 597 United States v. Cronic, supra, 466 U.S. at p. 648 .o.cccscscscsssssssessssecececesesess bese 370 United States v. Francis (6th Cir. 1999) 130 F.3d 546 oo... ecesesescssseseesesees 170, 171 United States v. Gagnon (1985) 470 U.S. 522 vcccscscccccscsecccessccsssseseseeeees 486, 497 United States v. Gagnon, supra, 470 U.S.at p. 526 wiececcscsssssscssssssseeeseees 491, 500 United States v. McLister (9th Cir. 1979) 608 F.2d 785 .....cccscsccscssessseceees 593, 660 United States v. Meadows(Sth Cir. 1979) 598 F.2d 984 .weesessssssecsseccessceeee 439 XXVi United States v. Noriega (1992) 808 F.Supp. 791 ........scscsssssscsscessestesssecesssenes 630 United States v. Sanchez (9th Cir. 1999) 176 F.3d 1214 weecessssesssecseeesees 209 United States v. Schuler (9th Cir. 1987) 813 F.2d 978 oc.ceccsssssseeseceeseesyee 170 United States v. Springfield (1987) 829 F.2d 860.........:sccsssssesssssssessesesseecesscens 349 United States v. Tucker (1972) 404 U.S. 443...ccsceseceee 157, 166, 173, 179, 185, 192, 367, 397, 441, 446, 534, 589 United States v. Vasquez-Lopez (9th Cir..1994) 22F.3d 900 qo...cessssseeeesseseres 202 Wade v. Calderon (9th Cir. 1994) 29 F.3d 1312 0... cccsssscssessesscessseceeseeeesseeseees 378 Wainwright v. Witt (1985) 469 U.S. 412 oo...eeeeeeecessscecssccecenscesseesecesens 505, 506 Wainwright v. Witt (1985) 469 U.S. 424 ooeeeeesseeeeeseeseeeees 311, 403, 414, 502 Weemsv. United States (1910) 217 U.S. 349 woo eecescsssssccstcessssesesersssesseeeeeees 602 Weinbergerv. Rossi a 982) 456 ULS. 25 weececescessesseessssseesssssascesersnsesessccesseenee 617 Weinberger v. Rossi (1982) 456 U.S. 25 w.csesssscscescsesssesseseesencesceeceeseceseasenseess 618 Whitley v. Albers (1986) 475 U.S. 312 c.eeecsssescsssssscessscssesessssssecsecseseeeesesceeeees 122 Williams v. Superior Court (1983) 34 Cal.3d 585 .0.......ssssesscsssssceseeesceesseeeneees 512 Williams v. Taylor (2001) 529 U.S. 362 ....ccccccssssscsssssesssssssessssseecesseeseserecessesnees 229 Winship, supra, 397 U.S. 358 ...ecescescsssssescescesscescececsasenenessseasecesecsnesseesseteceersees 551 Witherspoonv. Illinois (1968) 391 U.S. 510 o....eesescesseetseeseseeseeees 311, 506, 507 Witt, 469 ULS. at 424 wiecscsssssscecseccescecesececeecsescescerceeesceeceesecsaceseeeseeeesenseseeeees 507 Wolffv. McDonnell (1974) 418 U.S. 539. .ceesessssssessecsececceceeceaceeceeseeessceeceereees 122 Wood v. Georgia (1981) 450 U.S., 261 voceetecesscssessesceseescsesessesesenessessenes 599 Woodsonv. North Carolina (1976) 428 U.S. 280 .....s.cscsscssssesecesresseesteees 211, 603 Woodsonv. North Carolina (1976) 428 U.S. 280 ......ccccsccecseeccesteescesececesseeeeees 634 Woodson v. North Carolina (1976) 428 U.S. 280 ......cescssscsseceeseceeseseceeeeee 583, 637 Zant v. Stephens (1983) 462 U.S. 862 2... .csssssscscscssceeseeessesseesescscssesenetesseenees 610 XXVli Zant v. Stephens (1983) 462 U.S. 862 ........cccsssccssscsscsscscccccssseccssseecsnsecssesseeess 634 Zantv. Stephens, supra, 462 U.S. at p. 877 wu.cccccccccscsesssssssssscesssscececscsssercsececes 614 Zant v. Stevens (1983) 462 U.S. 862 .........ccccscsescssccsessssessscccsssessssssessecaseenesgees 176 STATUTES 22 U.S.C. Section 2304(a) ........sscecsessssssssscsevsssscsscssesenseesssesesserscassacecsasenseseecses 626 Cal. Const., art. 1, §§ 1, 7,9, 15,17, 24 wc ccccssccssecsscsscesesssssecsssssscsesecsessessecees 640 Cal. Const., art. I, §§7, 15, 16, 17, & 24.csssssessssssssssssssscssscssscsescsssscssssecseee 598 Cal. Const, art. V, §15 .....esssscsssscssssssssscssscsecesscsssscssssscesssssssssesessssecceccecsasacace 495 Cal. Const., art. VI, §10 .....secssecosecsseessssesseesssesssecsssesanecessessseeessesesseesseessns 190, 384 Cal. Pen. Code, § 1043, subd. (b) 0...essccscscsccssccssecsscececescscecceceasereesseceaees 495 Cal. Rules of Court, rule 4.423 wo.lecccssssceccccsscssecssccsssessecessecs 368, 369, 370 Cal. Rules of Court, rule LO Loiceeeeccssccsscsscesscescsessceuscsssssscessscuscscssssacesacessceonssess 661 Cal. Rules of Court, rule 39.51 wo... ceececccsscccsccssscsccsssecccessesssecssscecscscscacceneensens §24 California Constitution, Penal Code section 1473 et Seq .......cccsesssscsssssssssscsesseees 3 California Penal Code Section 190.4 wiiciceccesccsscsecscecscesssssssscsscsssesecsscees 440, 443 California Penal Code section 1260 ...........ccsssssssssssesessscscesssssessscssessassccatscssssees 606 Code Civ. Proc. § 206 ......cecescscssssesscsssssscsscssccscsssessssssscensseccscsecsescacscescenecessences 371 Former Cal. Rules of Court, rule 39.5 woeleceeccccccscecsccssccescsccssesessccessccceceess §22 FormerPen. Code, §190.9 ......cscescsssessssssssscsssssscssccsscssevsccsssesssssescsessscscesessseaces $24 Gov Code, §11340.5 weeesssscsssecsssssssssscssssesescessscessseesssssssesessessseeaensnes 652, 655 Gov. Code, §11342, subd........ccccccssssccscssessssssceccscsscsssscssssvscessessssscsesssseecassenses 651 Gov. Code, §11346.4 et Seq .....ecscsssssssssssssssssesessersssscssesesesssssecsssssessesseesesenseess 652 Model Penal Codesection 210.6, subdivision ..............c::ccsccccesscesscecsccecseceseeeees 448 Pen. Code, § 190.3, Subd. .........cscsessecssessessessesecsscsssssssasssssscsssssssssessscssnvessessees 358 Pen. Code §§ 190.7, 190.9 subd. ........uscscssssssscescssceessssesessscsssssacssssessssssereesenses $22 XXVili Pen. Code §190.2 oo... ceessssssscsscssssssssscssseseessesteessssessneessnseesesesensensseesnsesseenes 171, 172 Pen. Code §190.3, Sub. 0.0.0... cseesesssecessssssssecesssenssessesscesessesscseeseseeseseneeseateneaes 206 Pen. Code, §§ 1235, 1237 ....sssssssssssssssssssssessseescsesencsssssesesssnenssssesessssseensareesves 598 Pen. Code, §1170, Subd. 0.2.0.0...eessssessssosssssssessscsesssesessseeeeassnesarenseessenseneesensenes 637 Pen. Code, § 3604 oc... essescsssecssscssssessssscsccsscsssssessscaseseensenseneeseseasenssseecsesnssrenssaes 651 Pen. Code, § 3604, subd. ..........cccscccssssecsecssecessessessssssscessecersseeenssssnseeseeees 650, 651 Per. Code §1368 ......ccccessescssessssecesseeneensnseseesssenensssensesescnsesoseneaceenssssaceceensees 61, 62 Pen. Code §1370 .......sscssssscsssssecssescscesesssssecserstcscessesscscsssssseusessersssussssesestensaeeesanats 70 Pen. Code section 190 et S€q ..........sssssscesssscssccsssesssecsscsssesecsseeseessenscntecceseseeatenes 161 Penal Code 190.3 ........cccssscssscscseceeeceecessessesessssecsssssssessesseceesesesseesusrsnsensesesseneanes 449 Penal Code §190.6 .......csccsessssssccstececsscsscsssenssssssnssscsensssseseeateaseeesesnereseneneseesreees 522 Penal Code 1368 ssssssccccsssssssssscccscecsssssssnsnseseeeeecceceeersnsnsnnsssesersssnnessssssunssesesssssseesse 7 Penal Code Section 127 ...........sscsssssssssscssssesessssssceseesseessesssecesensssnssssanesssseceeeeneees 56 Penal Code section 187 ..........c.s:cccsscsssssssecsssccsnceseceseccessceecsscesecosesseessesesesseneusees 5,6 Penal Code section 190.2 0... .cssesessssscssssssessscsssssessceeseeneserecensseesenessesesssneeneees 611 Penal Code section 190.2, subdiviSiON ............:ccscccsestssssssseesesesensessesnseneesssenseees 58 Penal Codesection 190.2 subdivision (8).............scssscsssescsesecsseseeeeseresenees 5, 6,7 Penal Codesection 190.2 subdivision (8)...........:cssssesressseesssarssscsssssseesseeeesserseees 6 Penal Code Section 190.3 w....ccccccecccscssscsssrecssstseseserssesseeseseseenes 443, 446, 448, 572 Penal Code Section 190.3 .......:.sccssssssceccecsssscsssesesssssssscsecessenseeseessssessserserssnsenes 572 Penal Code Section 190.4 ........cccccsscsccssctessscscsessseeesscssesearassevnsersseeers 440, 445, 591 Penal Code Section 190.4 ..........cccsccccssssecsssneccesssesceccesesstossessesensscenees 442, 443, 445 Penal Code section 243 Subdivision ..........:cssssssscsscessssessesssesessssecsstessnessseseneees 7 Penal Code section 245 subdivision ..........ccscssssecscscesseseeesteessesssssseeenseaseneeereeeeeeees 7 Penal Code section 459 .......c.scssscccecscsscsscsecsesssssssssescescsesessensssaesensnssensensscessensneoes 7 XXiX Penal Code section 496 ..............cccccccsscsscssssessssssesccssssssscsssssscsssseccesseececcaseacsnssuncssoss 7 Penal Codesection 849, subdivision (b).............scccscssssssssscssesssecsssscsssncessseeeeeneess 47 Penal Code section 977 ..........sssssssscsssessscssceecesssessssceesssasesenssessssecteneeneesesees 495, 496 Penal Code section 977 SuDGIVISION .............cssecscesseecencsssesserssseetecceasesecseeencenees 495 Penal Code section 1118.1 ou... ceeessscsssesccccsscsscesessesccsseecesseeesessnes 105, 260, 536 Penal Code section 1181, SUDdIVISION .............ccccsccsssssscssssceccesseccssceecceecssseceersess 607 Penal Code section 1239 SubdiIVISION 00.0.0... esessssecesseeseeeceectsecnetseseseecensenseeseceateee 9 Penal Code section 1260 .0......eecssssesssccsscceseceescesecsecsessneceeseccosscesseesseeeesnenseess 607 Penal Code section 1368 .............cccssscsssessscssssecesssesssetsneeecenees 61, 66, 67, 231, 236, 240 Penal Code section 12021 20... eeeeessescseecesccecessesseneescsnccesssncesseecscesenceessenstesesceeeee® 6 Penal Codesection 12022 subdivision ............cceeessseceseeeceeestseresseeesceossssseaseaseores 6 Penal Code section 12025 oo...eessscssscssesssseesccecescsessesensceseseasecnseneeesecsonennensees 43 Penal Code sections 187 .00......eeseeesseecesessccessceeessescesassecenencesseeceecsessessessansonsoeees 6 Penal Code sections 190.3 oo... eeeessccsseseceeseenceeeseescesseececeassecseecscessesosesosesees 448 Penal Code sections 190.6 0...eeeessseeceeccesscsseeseeeseneesneescesassecsseaeseseeoeesoeesseees 522 Penal Code sections 667.5 SUDdIVISION .............cccsssssseeseceeeeeeseereseesssecssesecceesesseenes 6 Penal Code sections 1368 et S€q ...........sssseesssesesesssssssecseseesssenesesossaseseesonnssessees 84 Penal Code sections 12022.5 oi... eeeseeseecceseeecceeseecseceseeeecsscesssseesseseeenscesssseaceesees 6 Penal Code sections 12022.7 ......e ee csssssscecscsscesccsssssscceessesssscssersssseseecesseateseessseees 6 U.S. Const. Amends., 5, 6, 8 .........:sssccssscesscnecescssnscceseecessnctscsssseessnceeeeesseeseeeaees 640 USS. -Const. Article I, section 8 ...........cccssscscsseccescsscesereecessnreessssssnccecceesoneceeeeess 618 U.S. Const., Sixth Amend.) Cal. Const., art. 1, § 15 oo... ecscsseeeceereseceseessenseees 599 XXX Case Number90936, rendered on July 29, 1989.' Petitioner is indigent and has been incarcerated since his conviction, and consequently has had no ability to investigate fully the factual bases for the claims raised in this petition. 2. Petitioner’s imprisonment and death sentenceare the result of a fundamentallyunfair trial. A numberoferrors and other factors combined to deprivepetitioner ofsafeguards to which he wasconstitutionally entitled and distorted the truth-seeking function ofhistrial. These errors and otherfactors include, but are not limited to, the presentation of false evidence, governmental interference with the attorney-client relationship, ineffective assistance of counsel, the withholding of materials exculpatory and impeachmentevidencefavorableto the defense, deprivation of the right to trial only while competent, deprivation of the right to competent expert assistance, egregiousprosecutorial misconduct,juror misconduct, deprivation ofthe right to an unbiasedtribunal and extraordinarily prejudicialtrial court error. These errors violated petitioner’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and the _ corresponding provisions of the California Constitution. In addition, petitioner’s claims merit consideration because oftheharsh and irrevocable nature ofa capital sentence. Anylimitationor restriction on consideration of the merits of these claims would violate article I, section 11 andarticle VI, section 10 of the California Constitution, Penal Code section 1473 et seq., and article I, section 9, paragraph 2 of the United States Constitution. ' Although the judgmentand sentencing proceedings occurred on July 25, 1989, judgment wasnotsigned until July 29, 1989. 3. Noprior application for a writ of habeas corpushas been filedin this court on petitioner’s behalf in regard to the detention or restraint complainedofin this petition. 4. Petitioner seeksrelief in this court becausethis petition is related to the automatic appealfiled in petitioner’s case, and because this court’s appointment of appellate counsel contemplated the filing of this petition directly in this court. Petitioner’s related automatic appeal was before this court as Case Number $011323. The opinion wasissued on June 1, 1999. This court hasoriginal jurisdiction over this petition pursuantto article VI, section 10 ofthe California Constitution. 5. Petitioner has no other plain, speedy, or adequate remedy at law becausethe claimsin this petition are based in whole or in part upon facts outside the certified record on direct appeal. Petitioner is a layman whohas not knowingly, voluntarily, or intelligently waived or failed to raise these claimsat an earlier time, nor has he deliberately foregone any available state proceeding. 6. Petitioner hereby incorporates into each of the claims set forth below all exhibits appendedto this petition and the facts set forth therein. In connection with any expert declaration, the matters reliedupon by such expert are incorporated into each ofthe claimsset forth below asif fully set forth therein. Petitioner also hereby requests that the court take judicial notice of the contents ofthe entire certified record on appealin petitioner’s automatic appeal, including any exhibits admitted or marked for identificationattrial, and the briefs, motions, pleadings and ordersfiled in petitioner’s automatic appeal. PROCEDURAL HISTORY 7. On December 16, 1987, the prosecution filed an information charging petitioner with nine felony counts based upona single incident alleged to have occurred in the early morning hours of December8, 1986. (CT 1787-1797.) 8. Count One chargedpetitioner with the murder of Sean Orlando Mabreyin violation ofPenal Code section 187, with a special circumstance that the murder was committed to prevent his testimony in a criminal proceeding, pursuant to Penal Code section 190.2 subdivision (a)(10). 9. Count Two chargedpetitioner with the murder ofDwayneMiller in violation of Penal Code section 187, with a special circumstancethat the murder was committed to prevent his testimony in a criminal proceeding, pursuant to Penal Code section 190.2 subdivision (a)(10). 10. Count Three chargedpetitioner with the murder ofKathyWalker in violation of Penal Code section 187, with a special circumstancethat the murder was committed to prevent her testimony in a criminal proceeding, pursuant to Penal Code section 190.2 subdivision (a)(10). 11. Count four chargedpetitionerwith the murder ofDarnell Mabrey in violation of Penal Code section 187, with a special circumstancethat the ? The following abbreviationsare used to refer to the record on appeal: Clerk's Transcript (CT): The Clerk's Transcript consists of eleven volumesandis consecutively numbered. Citations refer to the page number. Reporter's Transcript (RT): The Reporter's Transcript for the trial consists of twenty-six volumes of consecutively numberedtranscripts. (A Master Witness and Exhibit List accompaniesthesetranscripts.) Citation to the trial transcripts refer to the page number. Othertranscripts are not consecutively numbered;any citation refer to the date of the proceeding and the page number. murder was committed to prevent his testimony in a criminal proceeding, pursuant to Penal Code section 190.2 subdivision (a)(10). 12. Count Five charged petitioner with the murder ‘of Dellane Mabreyin violation of Penal Code section 187, with a special circumstance that the murder was committed to prevent her testimony in a criminal proceeding, pursuant to Penal Code section 190.2 subdivision (a)(10). 13. Count Six chargedpetitionerwith the murder ofValenciaMorgan in violation of Penal Code section 187, with a special circumstancethat the murder was committed to prevent her testimony in a criminal proceeding,as set forth in Penal Code section 190.2 subdivision (a)(10). In addition, a multiple-murder special circumstance waschargedin this count, pursuant to Penal Codesection 190.2 subdivision (a)(3). 14. Count Seven charged petitioner with the attempted murder of Dexter Mabreyin violation of Penal Code sections 187 and 664. 15. Count Eight charged petitioner with the attempted murder of Leslie Morgan in violation of Penal Code sections 187 and 664. 16. Count Nine charged petitioner with the possession of a concealable firearm by an ex-felon in violation ofPenal Code section 12021. 17. In addition, in Counts One through Eight, inclusive, petitioner was charged with being armed during the commission of the offense in violation ofPenal Codesection 12022 subdivision(a), using a firearm during the offense in violation of Penal Code sections 12022.5 and 1203.06 subdivision (a), and committing great bodily injury during the offense in violation of Penal Code sections 12022.7 and 1203.075. 18. Defendant wasfurther charged with fourprior felony convictions for which he wasalleged to have servedpriorprison terms within the meaning of Penal Code sections 667.5 subdivision (b). These convictions were alleged to have included: a March 1, 1983 felony battery with serious bodily injury in violation of Penal Code section 243 subdivision (c); an August 5, 1981 felony receiving stolen property in violation ofPenal Code section 496; a May 8, 1981 felony assault with a deadly weapon in violation of Penal Code section 245 subdivision (a); and a May 29, 1981 felony residential burglary in violation of Penal Code section 459. 19. On April 7, 1988, petitioner was arraigned onthe information. (CT 1832; April 7, 1988, RT.4-5.) He entered.a not guilty plea to all counts and denied the special circumstanceallegations, arming clauses, firearm use clauses, great bodily injury clauses, and four prior convictions. (CT 1832.) The People were represented in the trial court by Deputy District Attorney James Anderson; the defendant wasrepresented by private counsel Spencer Strellis and Alexander Selvin. 20. On November2, 1987, counsel movedto refer petitioner for a Penal Code 1368 proceeding. (CT 778-783.) The motion was denied (CT 783.) Prior to trial, defendant moved to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806. (CT 2117, 2120-2123).* The case wastransferredto the trial department on November9, 1988, before the Honorable Stanley P. Golde. (CT 2124.) On November21, 1988 the court denied petitioner’s Faretta motion. (CT 2144.) 3 The witness special circumstance, Penal Codesection 190.2 subdivision (a)(10), and great bodily injury enhancementallegations for the murdered victims in Counts 1-6 were dismissedpriorto trial. (CT 2117; November8, 1988 RT 58-59.) “ Defendant made knownhisintentions to represent himself at a trial setting conference on October 3, 1998 before the Honorable Michael E. Ballachey. (October 3, 1988 RT 39.) The motion was formally transferred to the trial court by the Honorable Martin N. Pulich on. November8, 1989 (CT 2117; November8, 1989, RT 57.) 21. Pre-trial motions occurred over 31 court days from November 9, 1988 to January 19, 1989.5 (CT 2124-2266; RT 1-981.) Jury selection occurred over 50 court days beginning on January 19, 1989 (RT1059), and endingwith thejury and alternates being sworn on May16, 1989.’ (CT 2423; RT 3856-3857.) 22. On June 19, 1989,the jury found defendantguilty of all counts and found the multiple-murder special circumstance to be true. (CT 2473-2492; RT 5648-5656.) 23. The penalty phase began before the samejury on June 26, 1989. (CT 2493; RT 5668.) On July 12, 1989, after slightly more than four hours ofdeliberation, the jury returned a verdict that defendant's penalty should be death. (CT 2513-2514, 2523; RT 6227.) 24. On July 25, 1989,the trial court denied defendant's motion for newtrial and motions for probation and reduction ofthe verdict of death to life without possibility of parole. (CT 2524; RT 6255.) The trial court *Morningsessions generally started between 10:30 and 11:00 a.m. and continue to noon. Afternoon sessions began approximately 2 o’clock. (CT 2124, 2127, 2135, 2143, 2144-2148, 2154, 2163, 2186, 2208-2209, 2232-2247, 2265.) °The court typically conducted voir dire two prospective jurorsin the morning and four prospective jurors in the afternoon. The morning | session typically began around 11:00 o'clock and continued until the jurors were excused or voir dire was complete. The afternoon session typically began about 2:00 o’clock. (CT 2249, 2266, 2278-2279, 2281 2291-2301, 2311, 2320-2323, 2329-2330, 2334, 2343, 2345-2347, 2350-2351, 2354, 2356, 2358-2360, 2362-2364, 2367-2371, 2374-2378, 2380, 2382, 2395-2396, 2358, 2400, 2418.) 7Final selection began on May 15, 1989 at 10:30 in the morning and was completed by 11:45 in the morning. (CT 2421.) struck the arming, firearm use and great bodily injury clauses in Counts Seven and Eight, as well as the prior convictions sua sponte. (CT 2524.) 25. Thetrial court imposed the sentence ofdeath as toCounts One through Six. (CT 2524; RT 6268.) Thetrial court also sentenced defendant to imprisonmentofone year on the arming clauses and twoyearsas to the firearm use clauses in Counts One through Six, seven years as to Counts Seven and Eight, and two years as to Count Nine. (CT 2524.) Thetrial court ordered the imprisonment terms wereto run concurrentlywith each other and to the punishmentofdeath, to be stayed permanently upon the completion of the death sentence. (CT 2524.) 26. The death judgment wassigned bythetrial court on July 29, 1989. (CT 2526-2530.) An automatic appeal to this Court followed pursuant to Penal Code section 1239 subdivision (b). Petitioner was represented on that appeal and in related habeas corpus proceedings by George C. Boisseau. This court affirmed the judgmentin an opinion issued on June 1, 1999. Mr. Boisseau, however,did not complete a habeas corpus investigation or file a habeas corpuspetition in this Court. 27. Petitioner’s petition for writ ofcertiorari following direct appeal was denied by the United States Supreme Court on February 22, 2000. Petitioner filed a request for the appointment of federal habeas counsel on February 28, 2000. On April 16, 2001, the United States District Court for the Northern District of California appointed Stephanie Ross and Darlene Ricker as federal habeas counsel. On January 28, 2002, Ms. Rickerfiled a motion to withdraw, and on March 21, 2002, the federal court appointed Wesley A. Van Winkle as co-counsel to Ms. Ross. On March 28, 2002, the federal court granted equitable tolling ofthe statutory deadlineforfiling the federal habeas corpuspetition until June 24, 2002. TIMELINESS FACTS AND RELEVANT HISTORY 28. The present petition is timely pursuant to the’ timeliness standards set forth in Policy Statement 3 of the Supreme Court Policies Regarding Cases Arising fromJudgmentsofDeath, hereinafter“the Policies”, and musttherefore be consideredonits merits. Thepetition is timely under the Policies, as explainedin Jn reRobbins (1998) 18 Cal.4th 770, Jn re Clark (1993) 5 Cal.4th 750, and_Jn re Sanders (1999) 21 Cal.4th 697, becauseit wasfiled without substantial delay and, as to any claim the presentation of whichhasbeen substantially delayed, good cause exists for such delay and/or the matter falls within one or more of the exceptions to the timeliness standards. 29. Unless this Court is prepared to find on the basis of the pleadingsthatthis petition is timely filed or that petitioner has established good cause for any delay or an exception to the timeliness standards, petitioner respectfully requests an evidentiary hearing to establish the asserted facts concerning the timelinessofthe petition. Petitioner’s state and federal constitutional rights, including his rights to due process of law, counsel, and meaningful post-conviction review in capital cases, as guaranteedbythe Fifth, Sixth, Eighth and Fourteenth Amendments, require that he be given an opportunity to be fully heard regarding the timeliness of this petition. 30. Underthe Policies, Timeliness Standard 1-1.1, a petition for writ ofhabeas corpuswill be deemed presumptively timelyiffiled within 90 days of the final due date for the reply brief in the direct appeal or within 24 months of the appointment of habeas corpus counsel, whicheverislater. Petitioner’s appellate counsel, George C. Boisseau, was appointed to representpetitioner on bothhis direct appeal and habeas corpus proceedings on May1, 1992,and the final due date for the reply brief fell on May 18, 1998. This petition is being filed on June 24, 2002. Accordingly,the petition is not presumptively timely under Timeliness Standard 1-1.1. 31. Under the Policies, Timeliness Standard 1-1.2, a petitioner whosepetition is not presumptively timely under Timeliness Standard 1-1.1 may establish that the petition is nevertheless timely by establishing the absence ofsubstantial delay. A petitionercarries this burdenbyalleging with specificity facts showingthe petition wasfiled within a reasonable timeafter petitioner or counsel (a) knew,or should have known,offacts supporting a claim and (b) became aware, or should have become aware,ofthe legal basis for the claim. Substantial delay is measured from the time petitioner or counsel knew,or reasonably should have known,ofthe information offered in support of the claim and the legal basis for the claim. (Jn re Robbins, supra, 18 Cal.4th, at p. 780.) To establish the absence of substantial delay, petitioner may support the allegations with relevant exhibits. (Jbid.) Accordingly by, petitioner has done sohere. 32. A petition which is substantially delayed may nevertheless be deemedtimely filed if a petitioner demonstrates good cause for the delay. (Policies, supra, Timeliness Standard 1-2.) Good cause is established by a showingparticular circumstancessufficienttojustify the delay. (Jbid.) Good cause can be established, for example, if the petitioner can demonstrate that becausehe or she was conducting an ongoing investigation into at least one potentially meritorious claim, the petitioner delayed presentation of one or more other knownclaims in order to avoid the piecemeal presentation of claims. (In re Robbins, supra, 18 Cal.4th at p. 780.) Good causeis also demonstrated where petitioner’s counsel abandons him during the post- conviction period, failing to conduct a reasonable investigation and file a petition if so warranted. (Jn re Sanders, supra, 21 Cal.4th at p. 720.) 33. There are two ways to establish abandonment. First, abandonmentis shown if counsel did absolutely nothing to commence a habeas corpusinvestigation or otherwise failed to even acknowledge his or her habeascorpusresponsibilities. (/d., at p. 708.) Second, abandonmentis shown “when counsel ceases representation before he or she should have doneso(i.e., before investigation is complete, and/or before counsel has a reasonable basis upon which to conclude that no potentially meritorious habeas corpusissue exists).” (/d., at pp. 708-709.) Under either form of abandonment, counsel's inaction places a habeascorpuspetitioner in the same position as he or she would have beenin had heor she been unrepresented. (/d., at p. 709.) A showingofeither form of abandonmentestablishes good cause for delay and rendersthe petition timely. 34. A claim that is substantially delayed without good cause, and hence is untimely, nevertheless will be entertained on the merits if the petitioner demonstrates(i) that error ofconstitutional magnitude led toa trial that wasso fundamentally unfair that absent the error no reasonablejudgeor jury would have convicted the petitioner; (ii) that the petitioner is actually innocentofthe crimeor crimesofwhichheorshe wasconvicted;(iii) that the death penalty was imposedbya sentencing authority that had such a grossly misleading profile of the petitioner before it that, absent thetrial error or omission, no reasonable judge or jury would have imposed a sentence of death;or(iv) that the petitioner was convicted or sentenced underan invalid Statute. Determination of the applicability of the first three of these exceptions is madeexclusivelybyreferenceto state law, whereas application of the fourth exception is made byreference to federal law. (Jn re Robbins, supra, 18 Cal.4th at pp. 780-781.) 35. This petition is not substantially delayed, and is thereforetimely, becauseit is being filed within a reasonable timeafter petitioner’s counsel became aware of the factual and legal bases of claims that petitioner is actually innocent ofmurder, was not competentto standtrial, was not guilty by reason of insanity, was deprived of the effective assistance of counsel, and/or is undeserving of the death penalty. Petitioner’s counsel became aware ofthe factual and legal bases of these claims when they learned that petitioner suffers from profound brain damage affecting the frontal and temporal lobes of his brain. Specifically, petitioner asserts that claims rely in whole or inpart upon the recent discovery of petitioner’s substantial organic impairments. Petitioner discovered this information asa result of neuropsychologicaltesting which took place between March and June 2002. (Exhibit 10, Declaration of Karen L. Froming, Ph.D.) This information presented petitioner’s counsel with triggering facts requiring further investigation, and counsel havediligently investigated these facts to discover the source and date of origin of the damage for inclusion of the relevant claimsin this petition. 36. Triggering facts pertainingtopetitioner’s brain damagecouldnot reasonably have beendiscovered earlier because the discovery ofthe damage required the administration, analysis, and scoring of extensive neuropsychological testing. Funding made available by this court to state appellate/habeas counsel was inadequate to permitthis testing to take place. Petitioner did not receive adequate funding for the requisite expert assistance until his case reachedthe federaldistrict court, which provided authorization for the funds required for neuropsychologicaltesting in an order ofMarch 29, 2002. Petitioner’s counsel promptlyarranged for neuropsychologicaltesting at that time, and extensive organic brain damage was discovered. This petition is being filed less than one week after the date petitioner’s neuropsychological expert completed scoring ofthe tests and preparing her declaration. (Exhibit 10, Declaration of Karen L. Froming, Ph.D.) Accordingly, petitioner has demonstrated an absence of substantial delay in the developmentof the claimslisted in the preceding paragraphs. 37. Asto those claims ofwhich petitioner was aware substantially before the filing of the petition, good cause is demonstrated because presentation of the claims was delayed while counsel conducted ongoing investigation into the claimslisted in the foregoing paragraphssoas to join all the claimsin a single petition in order to avoid piecemeallitigation of claims. (McClesky v. Zant (1991) 499 U.S. 467; Jn re Clark (1993) 5 Cal.4th 750, 797.) 38. In the event that this Court should deem anyclaim or claimsto have been substantially delayed, good cause for such delay is established by state habeas counsel’s abandonmentofpetitioner during the post-conviction period before the investigation was complete, and/or before counsel had a reasonable basis upon which to conclude that no potentially meritorious habeas corpusissue existed. (Jn re Sanders, supra, 21 Cal.4th at p. 720.) This court’s records show that George C. Boisseau was appointed as counsel to petitioner on May 1, 1992, and that his appointmentrequired representation ofpetitioner with respect to both his automatic appeal and anyrelated habeas corpus proceedings. However, Mr. Boisseau never filed a habeas corpus petition in this court andalso failed to conductany substantial investigation oftriggering facts which appearedin the record on appeal, in trial counsel’s files, or in any other source. (Exhibit 5, Declaration ofGeorge C. Boisseau.) 39. By Mr. Boisseau’s own admission,he failed to undertake any of the most basic, fundamental tasks required even to begin a habeas corpus investigation. For example, Mr. Boisseau failed to obtain any social history documentsother than those which had alreadybeen obtained by trial counsel. Neither Mr. Boisseau nor an investigator working on his behalf ever conductedinterviewswith such critical social historywitnessesas health care providers, teachers or school personnel, caretakers, persons related to institutions at which petitioner was placed, juvenile and adult probation and/or parole officers, peers, or court personnel. Mr. Boisseaualso failed to interview any ofpetitioner’s prior counsel or obtainall of their files. He retained no experts and, failed to consult any mental health experts at all, either for the purpose of diagnosing petitioner or assisting Mr. Boisseau _ himself in communicating with petitioner in a meaningfulway. This failing wasparticularly egregious in light of the fact that Mr. Boisseau admittedly recognizedthat petitioner was severely mentallyill. He also did notdraft or obtain any declarations or other documents for use as exhibitsto the petition, nor did he ever draft a claim. (Exhibit 5, Declaration ofGeorge C. Boisseau, and Exhibit 1, Declaration of Daniel Abrahamson.) | 40. Although substantial triggering facts appeared on the record or in trial counsel’s files, Mr. Boisseau failed to investigate these facts. For example, despite the fact the transcript of the preliminary hearing shows prosecution witness Stacey Mabrey was given favorable treatment in connection with a pending assault charge in part to secure his testimonyat trial, Mr. Boisseau failed to conduct basic court searchesofthis witness or other prosecution witnesses. He therefore failed to discover: (1) Mabrey had anumberofotherarrests and convictionsfor other crimes committed between the preliminary hearing andtrial; (2) Mabrey received favorable treatmentin these cases to secure his testimony in this case; (3) trial counsel failed to discoverthis information oruse it to impeach Mabrey’stestimonyattrial; and (4) the prosecution failedto disclose this essential information to the defense as it was required to do under Brady v. Maryland (1963) 373 U.S. 83. (Exhibit 5, Declaration of George Boisseau.) 41. Mr. Boisseaualso failed to investigate a host ofother triggering facts which appear in the record orin trial counsel’s files. For example, triggering facts showedthatcritical forensic evidencein the possession ofthe police was lost or intentionally destroyed before it could be tested by the defense. The evidence showedpetitioner had a combination of alcohol, cocaine, and morphinein his system immediately after the offenses, but did not show the quantity of these drugs. Mr. Boisseau failed to investigate to determine what happenedto the evidence and whetherit was negligently or intentionally destroyed. In addition, although petitioner complained repeatedly on the record about violations of the gag order, Boisseau did not conduct newspaperor other media searches which would have revealedthat the prosecutor did in fact flagrantly violate the gag order, that he was extensively quoted in prejudicial newspaperarticles which appeared during the break betweenthe guilt and penalty phases, and that the jury by exposure to these improper comments. (Exhibit 5, Declaration of George Boisseau.) 42. The recordalsoreflects that petitioner sought to be examined by three psychiatrists, that trial counsel thought the issues of petitioner’s competenceand a possibleplea ofnotguilty by reason of insanity should be explored,and that thejudge ruled petitioner incompetent to represent himself becausepetitioner did not comprehendthe scope of his mental disabilities. (RT 67-71, 84-85.) In addition, the facts surrounding the crimes themselves suggested no comprehensible motive for the killings, and numerouswitnesses had described petitioner as “crazy.” (RT 4488, 4555, 5300-5301, 5719.) Furthermore, two mental health professionals testified that petitioner had serious mental problems, and a possible organic brain syndrome. (RT 5936- 5939, 6011-6048.) In spite of his awareness of these triggering facts, Mr. Boisseau did not retain or consult a psychologist, neuropsychologist, psychiatrist, or other mental health expert to review transcripts or documents and advise him with respectto whatpetitioner’s mental impairmentorillness might have been, how bestto investigate this impairmentor illness, or how best to interact with petitioner to secure his trust and cooperation. Mr. — Boisseau admits he had nostrategic or tactical reason for these failures. (Exhibit 5, Declaration of George C. Boisseau.) 43. This Court’s records further establish that Mr. Boisseau has doneno investigationfor at least the last five years and has failed to expend or seek the funds necessary to conduct a competent habeas corpus investigation. This court’s records show that Boisseau sought and received reimbursement for only $4,600 and received his final payment on June 25, 1997. Underthis Court’s Policies Regarding Cases Arising from Judgments of Death, Policy Statement 3, Compensations Standards, Standard 2-2.1, Boisseau wasentitled to reimbursement for up to a total of $25,000 for habeascorpusinvestigation expenses. The expenditure of less than 20% of this amount is strongly indicative of the inadequacy of Mr. Boisseau’s investigation. 44. Other information obtained by petitioner’s counsel further demonstrates Mr. Boisseau’s abandonmentofhis client. As an attorneywith no experience representing capital clients in post-conviction proceedings, Mr. Boisseau was undera professional obligation to seek the advice of and cooperate with the assisting entity on the case, the California Appellate Project (hereinafter “CAP”). (See e.g., Rules ofProfessional Conduct, Rule 3-110.) However, it is clear that he repeatedly failed to do so, and in fact consistently resisted every effort CAP made to assist him in pursuing a habeasinvestigation andfiling a petition. 45. Although Mr. Boisseau accepted this court’s dual appointment in May, 1992, it required nearly two years of repeated requests before Boisseau provided CAP with transcripts to enable CAP to copythe record. (Exhibit 1, Declaration of Daniel Abrahamson.) As of January, 1994, Mr. Boisseau had not yet obtainedtrial counsel’s files, the first essential step required in order to commence a habeascorpusinvestigation. (/bid.) Also in that month, Mr. Boisseau informed CAP that although he had read the record, he had madenotranscript notes of his review of the record, making it impossible for CAP to assist him in identifying issues requiring further investigation. (/bid.) 46. In January, 1994, Mr. Boisseau informed his CAP advisor, Daniel Abrahamson,that he plannedto do substantial work onthe case during the next four months. Mr. Boisseau did not contact CAP again during that period, however, in May Mr. Abrahamson decidedto remind Mr. Boisseau of the availability of CAP’s assistance by sending him relevant sections of the opening andreply brief in a case Mr. Abrahamson thoughtwassimilar to petitioner’s case. In early June, Mr. Abrahamsonsent Mr. Boisseaua legal memorandum updating him on ineffective assistance of counsel issues and suggested Mr. Boisseau contact him about developmentsin the case. In mid- June, Mr. Abrahamsonsent Mr. Boisseau relevant newspaperclippings and an excerpt from People v. Wash, a case tried by the same judge whotried petitioner’s case. In July, Mr. Abrahamson sent Mr. Boisseau a sample release form for use in obtaining social history records and offered to provide him further assistance with his habeas corpus representation. Mr. Abrahamsonreceived no responseto any of these attempts to contact Mr. Boisseau. (Exhibit 5, Declaration of George Boisseau.) 47. Finally, in December, 1994, Mr. Abrahamson was able to arrange to have Mr. Boisseau come to a meeting at CAP’s San Francisco office. At this meeting, CAP stafftried to assist Mr. Boisseau bydiscussing legal claimsto be raised in the opening brief identified specific facts in the record which triggered a need for further investigation and the legal claims which CAPbelieved might be madeifborneout bythe investigation. (Exhibit 1, Declaration of Dan Abrahamson.) 48. By the conclusion of this meeting, Mr. Boisseau had agreedto undertakea seriesoftasksto further the habeas corpusinvestigation. Among other tasks, Mr. Boisseau agreed: to obtain trial counsel’s files and make copies of these files for CAP; to create a family tree ofpetitioner’s family; to interview petitioner’s motherfor familybackgroundinformation;to obtain releases from petitioner’s familymembers; to begin gathering family vital and medical records; to locate hospital and jail records for petitioner; to investigate the missing blood which wasobtained by Highland Hospital and then disappeared; to obtain police, court, and attorney files on petitioner’s prior convictions; to investigate petitioner’s father; to investigate conditions of confinement at the county jail; and to obtain jail records relating to petitioner’s incarceration there. (Exhibit 1, Declaration ofDanAbrahamson.) 49. Following this meeting, Mr. Abrahamsonsent Mr. Boisseau a letter advising him that Mr. Abrahamson waswilling to drive to Santa Rosa, where Mr. Boisseau’s office was located, to meet with Mr. Boisseau andhis paralegal to map out a record gathering plan. Mr. Abrahamson received no response to his letter and did not hear from Mr. Boisseau again for two months. (Exhibit 1, Declaration of Dan Abrahamson.) 50. In late February, 1995, Mr. Abrahamsonlearnedthat the record in the case had beencertified. He called Mr. Boisseauto strategize about the case. Mr. Boisseau informed Mr. Abrahamsonthat he washavingdifficulty finding large blocks of time to concentrate on the case. Mr. Abrahamson stressed that it was critical to do so without further delay and volunteered to make the time to assist mr. Boisseau as soon as he received the requested materials from Mr. Boisseau. (Exhibit 4, Declaration ofDan Abrahamson.) 51. During the call, Mr. Boisseau said he was in the process of making a working copyofthe trial files and said he would make a copyfor Mr. Abrahamson. Mr. Abrahamson neverreceived this copy. Mr. Boisseau also represented that he was “in the midst” of interviewing petitioner’s mother. Mr. Abrahamson neverreceived an update on this interview or any notes of Mr. Boisseau’s interview with Minnie Welch. Mr. Boisseau also said he was compiling life history of petitioner. In spite of repeated requests, no copies ofthis life history were ever received by CAP. Mr. Boisseau said he would check for mental health reports in petitioner’s correctional file and elsewhere and would provide Mr. Abrahamson with copies. Mr. Abrahamson neverreceived these reports or an update regarding the status of this effort. Finally, Mr. Boisseau promised to send Mr. Abrahamsona copyofthetrial files, the opening brief issueslist, and drafts of the opening brief issues as they were completed. Mr. Abrahamson never received this material. (Exhibit 1, Declaration ofDan Abrahamson.) 52. A few days later Mr. Abrahamson sent Mr. Boisseau letter asking him to senda list ofall potential interview subjects and other persons involved in the case as well as anyissueslists or other notes Mr. Boisseau might have. Mr. Abrahamson never received documents pursuantto this letter. (Exhibit 1, Declaration of Dan Abrahamson.) 53. In mid-April, Mr. Abrahamson sent Mr. Boisseau a recently issued opinion in Moore v. Calderon, a federal capital habeas corpuscase decided on Faretta grounds. Mr. Abrahamsonfelt this would be ofinterest because he knew Mr. Boisseau was working on a Faretta issue. Mr. Abrahamsondid not hear back from Mr. Boisseau about this matter. (Exhibit 1, Declaration of Dan Abrahamson.) | 54. In May, 1995, Mr.Boisseaufiled an extension oftime request in connection with the opening brief, informing this Court that he was also working on two complex federal narcotics cases but had been working on the openingbriefand “potential habeas corpus issues.” Every month thereafter Mr. Boisseau filed another extension request, each time citing the pressing need of other identified business as the reason for requiring an additional extension oftime. In June, Mr. Boisseau stated he had beguninvestigation into potential habeas issues, and hadresearchedthree ofthe potential legal issues revealed by investigation into the case. In July, Mr. Boisseau made the same representation regarding the habeas investigation. In August, this same representation was repeated. In September, Mr. Boisseau again made an identical representation. Mr. Abrahamsonnever received any reports or documentation from Mr. Boisseau to support the representation that any habeasinvestigation wasbeing conducted. (Exhibit 5, Declaration ofGeorge Boisseau; Exhibit 1, Declaration of Dan Abrahamson.) 55. In October, 1995, petitioner filed two motions with this Court seeking to relieve Mr. Boisseau as appointed counsel. Later that month, Mr. Boisseau filed another extension requestreciting the work he had done on the openingbriefin the case. With respect to the habeasinvestigation, he again repeated the representation that he had researchedthreeofthe potential legal issues revealed by the investigation. (Exhibit 1, Declaration of Dan Abrahamson.) 56. In November, Mr. Abrahamson called Mr. Boisseau to discuss the lack of progress Mr. Boisseau was making in the case. Mr. Boisseau informed Mr. Abrahamson that Mr. Boisseau’s wife had been clinically depressed for several months, and that the burdensofchild care had fallen on him. Mr. Abrahamson urged Mr. Boisseau to consider speaking with someoneat the court about this matter in confidenceorraising the matterwith the court in a confidential filing, but Mr. Boisseau declined on the grounds that he did not wantto air his family problems with the court. Mr. Boisseau stated that he wanted to get the opening brief done for a variety of reasons and believed the Faretta issue would win the case. Hestated that he had an investigator who “has been talking to people.” Mr. Abrahamson renewedhis offer of assistance from and asked for copies of everything CAP had previously requested: the opening briefdrafts, habeas investigation materials, a copyofthetrialfiles, interview notes, copies ofvital records, and any other documents he had gathered. Mr. Boisseau indicated that he had working copiesoffiles and promised to send them to Mr. Abrahamson by November 10 so that Mr. Abrahamsoncould review them in advance ofa meeting they scheduled at the CAP offices on November 15. (Exhibit 1, Declaration of Dan Abrahamson.) 57. On November 10, 1995, Mr. Boisseau called to cancel the November15 meeting and stated that he was unable to get Mr. Abrahamson the materials he had requested. Mr. Boisseau cited ongoing family problems and other commitments. Mr. Abrahamson asked Mr.Boisseau to provide CAP with the materials as soon as possible and told Mr. Boisseau they could meet in Decemberof 1995. (Exhibit 1, Declaration ofDan Abrahamson.) 58. Later that November, this Court denied petitioner’s motion to relieve Mr. Boisseau as counsel. Subsequently, Mr. Boisseaufiled his eighth extension of time request with the court. The request reported progress on the opening brief, but, with respect to the habeas corpus proceeding, again simply repeated Mr. Boisseau had researched three of the potential legal issues revealed by the investigation. Neither Mr. Abrahamson nor CAP had any ability to verify this purported progress, since Mr. Boisseau had never provided CAP with any of the materials they had repeatedly requested. (Exhibit 1, Declaration ofDan Abrahamson.) 59. On December 1, 1995, Robert Wandruff, this Court’s clerk, wrote to Mr. Boisseau and asked him to advise the court by December15 whatprogress had been completed, what remained to be completed on the openingbrief, and the date by which the work wasexpected to be completed. Mr. Abrahamsonreceived a copy ofthis notice and immediately called Mr. Boisseau. Mr. Abrahamson again urged Mr. Boisseau to disclose the personalfamily problemsto the court. A few days later, Mr. Boisseau called Mr. Abrahamson andstated that he had spoken to the court’s automatic appeals monitor, Mary Jameson,regardinghis family problems,and that Ms. Jameson had been somewhat sympathetic. Mr. Boisseau told Mr. Abrahamsonheintendedto file the opening briefby the end ofFebruary. Mr. Abrahamsontold Mr. Boisseau he thought this plan was overly optimistic. Mr. Abrahamsonhadstill received no transcript notesortrial files and again asked Mr. Boisseau for these materials. Mr. Boisseau promised to provide the materials to Abrahamsonby the end ofthe year or by the first week in January. (Exhibit 1, Declaration of Daniel Abrahamson.) 60. A few days after that, Mr. Boisseau respondedto the letter from this Court’s clerk and reported on the appellate issues he had completed and issues which remained. Mr. Boisseau asked forleave to file the brief by March 31. Mr. Boisseau also filed a confidential status report with the California Supreme Court indicating that he had suffered “serious domestic problems”since July, 1995. Mr. Boisseau reported he had advised CAP of his marital problems and promised to complete andfile the opening briefby March 31. Mr. Boisseau stated that he intended to continue to cooperate with CAPand to complete both the opening briefand the habeas corpuspetition. (Exhibit 1, Declaration of Daniel Abrahamson.) 61. By February 1, 1996, Mr. Abrahamson had not received the requested materials from Mr. Boisseau, any drafts of any arguments for inclusion in the openingbrief, or any indication ofanyprogress on the habeas corpus investigation. On that date Mr. Boisseau filed a 10th extension of time request with the court. With respect to the opening brief, the request contained language that was substantially similar to all of the preceding requests filed during the previous eight months. With respect to the habeas corpus investigation, the request simply restated the same language Mr. Boisseau had used previously representing that he was continuing the investigation and had researchedthreeofthe potentiallegal issues. Based on this request, Mr. Abrahamson concluded by his own account, that Mr. Boisseau had madenoprogress on the case since June of 1995, a matter of eight months. (Exhibit 1, Declaration of Dan Abrahamson.) 62. Mr. Abrahamson left CAP shortly thereafter to pursue employment elsewhere. During his entire tenure at CAP, Mr. Abrahamson saw no evidence Mr. Boisseau had engaged in any meaningful habeas corpus investigation. In spite of Mr. Boisseau’s repeated promises to provide Mr. Abrahamson or CAP with requested materials, Mr. Abrahamson saw no evidence of any record gathering, no witness interview notes, no drafts of issues, issue outlines, witness lists, chronologies, or any other materials or working documents that would have been used by competent counselin conducting the kind of habeas corpus investigation required by this Court. Based upon his discussions with Mr. Boisseau and Mr, Boisseau’s own representations to the court, Mr. Abrahamson concludedthat Mr. Boisseau’s serious domestic problems may have been the reason Mr. Boisseau failed to make anyprogress on the habeas corpusinvestigation in this case. (Exhibit 1, Declaration of Dan Abrahamson.) 63. After Mr. Abrahamson left CAP, the task of advising and assisting Mr. Boisseau fell to Kathryn Andrews. Ms. Andrewshadseveral communications with Mr. Boisseau attemptingto obtain materials and urging Mr. Boisseau to prepare the basic documents required for a habeas corpus investigation. After these efforts met with repeated frustration, Ms. Andrews finally began compiling her own habeascorpusissueslist and attempted to create life history chronology from the materials in the record andin the few materials she was eventually able to obtain from Mr. Boisseau. Ms. Andrews advised Mr. Boisseau that no petition could be prepared or filed until an investigation had been completed and urged Mr. Boisseau to begin the investigation by gathering releases, documents, and preparing the working materials the investigation required. 64. Subsequently, Ms. Andrews learned that Mr. Boisseau had retained an investigator, HarveyYarborough, who apparentlyconducted a few __ preliminarywitness interviews prior to 1997. Becauselittle or norecord gathering had been done and noneof the working documents required for investigation had yet been prepared, these interviews were premature. No reports of these interviews were ever madeor passed on to Mr. Boisseau or to CAP. 65. Finally, in 1997, Mr. Boisseau completely halted all further investigation of the case. According to this Court’s staff, Mr. Boisseau submitted a confidential claim for reimbursement ofhabeas corpus expenses in the amountof $4,600 in 1997. Petitioner has no accessto the claim and does not know howthis money wasspent, but is informed and believes that most ofthis money wasspent for interviews by Mr. Yarborough. Petitioner requests that this court take judicial notice of this claim and any others Mr. Boisseau mayhavefiled, including any materials submitted in substantiation of the claim, pursuant to Evidence Code section 452, subdivision (d). 66. Petitioner is also informed and believes that CAP was required to submit to this Court confidential reports regarding the progress of appointed counsel in capital cases. Petitioner has no access to these confidential reports, but requests that this court take judicial notice of the reports or portions ofreports which pertain to Mr. Boisseau’s handling ofthis case, pursuant to Evidence Code section 452, subdivision (d). 67. The foregoing facts, together with additional information to be presented following investigation, adequate funding,discovery,the use ofthis Court’s. process, and evidentiary hearing, establish that petitioner’s habeas corpus counsel abandoned him during the post-conviction stage of the representation and therefore establishes good cause for any substantial delay in the presentation of any claim or claimsin this petition. 68. In addition, the petition alleges facts which “establish that a fundamental miscarriage ofjustice occurred as a result of the proceedings leading to the conviction and/or sentence.” (Jn re Clark, supra, 5 Cal.. 4" at 797.) Furthermore, the petition alleges facts which establish that petitioner is actually innocentofthe crimeor crimes ofwhich heor she wasconvicted, and that the death penalty was imposed by a sentencing authority that had such a grossly misleading profile of the petitioner before it that, absent the trial error or omission, no reasonable judge or jury would have imposed a sentence ofdeath. (Jbid.) Accordingly, the petition falls within one or more exceptions to the timeliness requirements. 69. Finally, apart from the foregoing analysis, petitioner further submits that the claimsin this petition may not be held to be prejudicially delayed because petitioner has not unreasonably delayed in filing this petition, the state has suffered no prejudice from anydelayin filing, and even ifthere had been such delayorprejudice, the petition is premised on grounds of which petitioner could not have known bythe exercise of reasonable diligence. (See, e.g., Harris v. Pulley (9" Cir. 1988) 885 F.2d 1354, 1365- 1367.) Asset forth in greater detail in this petition, including but not limited to Claims 1 and 8, the state suppressed material evidence favorable to the defenseand introducedfalse evidence,and the existence ofthis evidence was not discoverable by reasonable diligence. REQUEST FOR DISCOVERY AND EVIDENTIARY HEARING 70. The facts set forth in each claim listed hereafter establish a primafacie basis forrelief. 71. If any of the facts set forth in this petition are disputed by respondent, petitioner requests an evidentiary hearing so that the factual -disputes may be resolved. After petitioner has been afforded discovery-and the disclosure of material evidence by the state, the use of this Court’s subpoena power, and adequate funding for investigation and experts, petitioner requests an opportunity to supplement or amendthispetition. 72. To the extent that the facts set forth in this petition could not reasonably have been knownto petitioner’strial counsel or the prosecution, such facts constitute newly discovered evidence which casts fundamental doubt on the accuracyandreliability of the proceedings and underminesthe prosecution’s case against petitioner such that his rights to due process and a fair trial have been violated and collateral relief is required. 73. Petitioner has had no access to discovery or this Court’s subpoena powerand has been denied the funding neededto developfully and present the facts supporting each claim. Accordingly, complete evidencein support of the claims maynotbe presently obtainable. Nevertheless, the evidence set out below adequately supports each claim and justifies the issuance of an order to show cause andthe rights and protections which attend the issuance of an order to show cause. 74. Petitioner alleges the following facts, among others to be presented followinga fair opportunity for further investigation, discovery, and an evidentiary hearing, in support of his claimsforrelief. CLAIMS FOR RELIEF 75. Summary of Facts. At about 5:00 a..m. on the morning of December8, 1986, six people were shot and killed in a dilapidated crack- housein an industrial neighborhood in East Oakland. The victims included four adults and two infant children. The owner and operator of the crack- house, Barbara Mabrey, escaped uninjured. She and her son, StaceyMabrey, later testified at trial that they were in the house and witnessed or heard at least part of the shooting incident. (RT 4125-4127, 4270-4275, 4438.) 76. Petitioner and his developmentally disabled girlfriend, Rita Mae Lewis, were found a few blocks awayat the homeofpetitioner’s cousin, Beverly Jermany, and were arrested for the crimes later that morning. Petitioner, who wasbleeding from a gunshot woundto the leg, and Lewis, who had minorinjuries, were taken to Highland Hospital for treatment. Petitioner washeld there for the next month underclose police supervision. (RT 4624, 4644, 4676.) 77. In January, 1987, petitioner was taken to Alameda County jail and immediatelyplacedinthe administrative segregation unit reserved solely for inmates who had committeddisciplinary infractionsin the jail. Sheriff's deputieslater claimed petitioner had been housedin the “ad seg” unit for his own protection. However, from the beginningofhis incarceration petitioner wassubjected to a panoply of disciplinary restrictions, including the denial of visitation rights, limited access to media, andillegal disciplinary diets. (See Claim 5.) 78. Sensational media coverage during the weeks and months following the killings described the incidentas “the worst mass-murderin Oakland history.” Reporters delved into petitioner’s background and 28 discovered that he had a substantial criminal record and a record of disciplinary problemsin juvenile and adult correctionalfacilities. Reports circulating in Sobrante Park, a dangerous, drug-infested neighborhoodin East Oakland not far from the crack-house where the shootings took place, indicated that petitioner was mentally ill. One newspaper headline speculated, “Maybe He’s Too Crazy to be Gassed.” (See Claims 38 and 53.) 79. Underintense media pressure because ofpetitioner’s record and the graphic circumstances of the crime, the Alameda County District Attorney’s office opted to seek the death penalty for the killings. James Anderson,headofthe office’s special circumstancesunit, was assignedto the case. Anderson, whose nickname was “Mad Dog,” took such relish in obtaining death verdicts that he had devoted one wall of his office to photographsofall the men he had placed on Death Row. Anderson arranged for the case to be assigned to Judge Stanley Golde. (CT 1787-1797, 2124; see also, Exhibit 6, Declaration of Thomas Broome.) 80. Petitioner wasinitially represented by veteran defense attorney Thomas Broomeandhis associate, Robert Cross. Both men quickly came to the conclusion that petitioner was mentally ill and retained a clinical psychologist, Dr. William Pierce, to evaluate petitioner’s mental health. However, Pierce was only able to meet with petitioner briefly on two occasionsbecausepetitioner became convinced the meeting room wasbeing electronically monitored and guards were outside the door listening. This odd belief and other similar delusions convinced Pierce that petitioner was psychotic and suffered from a persecutory type of delusional disorder. Pierce also notedthat petitioner exhibited signs ofimpulsivity, perseveration, and other symptomsthat wouldlater be identified as organic brain damage. 29 Pierce concludedthatpetitionerwas not competentto standtrial. (Exhibit 22, Declaration of William Pierce, Ph.D.) 81. At a proceeding prior to the preliminary examination, Broome moved for a competency hearing,citing the stresses caused to petitioner by the harsh conditions ofhis confinement. The court denied the motion, and the two lawyers continued to representpetitioner as the case moved throughthe preliminary stage and into the Superior Court. (See Claims2, 19, and 22.) 82. Throughoutthis pretrial phase,petitionerfiled a large numberof pro per motions and lawsuits. Thesefilings, including motions to haveall judges and lawyersin Alameda County disqualified from working on his case due to an alleged conspiracy against petitioner, further demonstrated petitioner’s paranoia anddelusions. Finally, in a Superior Court proceeding, petitioner came to believe that a small humorousdoll on the clerk’s desk bearinga sign reading ““You’re in Contempt ofClerk!” had been placedthere specifically to humiliate and intimidate him. He insisted that his attorney object to the doll on due process grounds, and when Broomerefused, petitioner filed a Marsden motion to have Broome removedfrom thecase. To Broome’ssurprise, the court granted the motion. (See Claims 2 and 19; Exhibit 6, Declaration of Thomas Broome.) 83. Broomewasreplaced by SpencerStrellis, Judge Golde’s former law partner, and AlexanderSelvin,a formerdistrict attorney whohadrecently gone into private practice as a defense attorney. Strellis also quickly came to the conclusion that petitioner was mentallyill and retained a psychiatrist, Dr. Samuel Benson,to evaluatepetitioner. Like Pierce before him, Benson also determined that petitioner was not competentto standtrial becauseofhis 30 delusional beliefs. (Exhibit 30, Declaration of Spéncer Strellis; Exhibit 3, Declaration of Samuel Benson, M.D.) 84. Petitioner, convinced his lawyers were working against him,filed a Faretta motion prior to trial seeking to fire his lawyers and represent himselfat trial. Attorney Strellis tactfully commentedthat after the Faretta proceedings were concluded,the court mightwishto “look into” competency proceedingsor even consider a plea of not guilt by reason ofinsanity. The court wasalso concernedthat petitioner might not be competentto represent himselfand therefore appointed a psychiatrist, Dr. Joseph Satten, to evaluate petitioner. However, petitioner refused to see Dr. Satten, and the court therefore did not obtain a mental health evaluation before ruling on the motion. (See Claims2, 4, and 19.) 85. However, although Judge Golde had no professional opinion before him, he determined that petitioner was too mentallyill to represent himself. Reciting froma longlist ofstatements madebypetitioner evidencing what the court described as petitioner’s “paranoid distrust,” the court ultimately concludedthat petitioner “does not appreciate the extent ofhis disability.” The court found that petitioner lacked the mental capacity to waive counsel. Remarkably, in spite of counsel’s earlier recommendation and his ownfindings regarding petitioner’s mental problems, Judge Golde never ordered a competency hearing. (See Claims 2 and 19.) 86. As the case moved into the jury selection phase, it quickly became evident that petitioner’s paranoia and impulsivity would pose extraordinary problemsattrial. Convinced his own attorneys were part of a conspiracy against him,petitioner repeatedly made his own objections,filed his own motions, and was unable to restrain himself, even in front of 31 prospective jurors. Instead of declaring a doubt regarding \petitioner’s competence and ordering competency proceedings, the court devised and unilaterally imposed an astonishing form ofhybrid representation upon the defense. Overpetitioner’s objections, the court announcedthat henceforth and throughoutthe trial petitioner would be permitted to make any motions he wished on Fridays, but that his attorneys would represent him on the other four days ofthe week. (Se Claims2, 3, 19, and 20.) 87. From the beginning,this plan, apparently devised in an attempt to placate petitioner, instead created chaos within the defense. Lackingtrust in his attorneys, and believing the court had given him some measure of control over his case, petitioner continued to make motions and objections throughout the week. The court compoundedthe problem byruling on these motions some of the time and refusing to rule at other times, without any - apparent pattern and without regard to the day of the week. Inevitably, becauseofhis paranoid delusions, petitioner began to have disputes with his counselin open court aboutthe best strategy to take. Althoughhis attorneys had been putting on a defense that suggested petitioner was guilty ofa lesser offense than first-degree murder, petitioner insisted on taking the stand and presenting an innocence defense. This tactical dispute, a predictable by- product of the court’s hybrid representation order and petitioner’s severe mental illness, doomed petitioner’s defense. (See Claims 3 and 20.) 88. Counsel, who clearly had no enthusiasm for the case to begin with, lost any remaining interest in defending petitioner after the hybrid representation order removed what little ability they had to control petitioner’s impulsive outbursts and objections. From the very beginning of thetrial, they madeit clear to the jurors that they were merely going through 32 the motions. Lead counsel even began his opening statementat the guilt phase by informingthejury,“I’m not very goodat this.” Then he proceeded to prove it. (RT 3885-3887; see Claim 29; Exhibit 8, Declaration ofJoseph Cruz; Exhibit 35, Declaration of Bernard Wells.) 89. Having donelittle investigation or preparation, counsel attempted to put on what they apparently considered to be an intoxication defense. — However,they were unable to produce anysolid evidence of intoxication. A urine sample taken at the hospital at the time petitioner was admitted shortly after the shootings showed evidence of alcohol, cocaine, and morphine in petitioner’s system, but no attempt had been madeto determine the quantities of these drugs. Blood samples taken from petitioner on admission to the hospital were also not quantitatively tested, and the defense therefore had no proofofthe degree to whichpetitioner was underthe influence ofthese drugs at the time of the offenses. (See Claims 8 and 25.) 90. Although petitioner’s intoxication and mental state were the central focus oftheir defense, petitioner’s counsel did only a cursory attempt to discover what had happenedto the sample ofpetitioner’s blood which could have revealed the quantities of intoxicants in his system. Had they looked harder, theywould have discoveredthat althoughpolice officers were awarethat the blood would be crucial, potentially exculpatory evidence, and although they also knewthatthe hospital destroyed fluid samples after seven days, the Oaklandpolice waited until eight daysafter the blood wascollected to obtain a search warrantforit, and ten days before they collected the blood samples from the hospital. Moreover,the police also mishandled the blood. Although the samples were supposedlybookedinto the police property room on December 18, the property slip did not describe the evidence, and no 33 property officer ever signed for it. Moreover, oneofthe test-tubes ofblood supposedly bookedinto the evidence on December18 had label on it which bore the date of December 19, the day after the property wassupposedly seized. Although their own expert witnesses remarkedon the peculiarity that no quantitative analysis had been done, defense counsel simply let the matter drop without any investigation. (See Claims 8 and 25.) 91. At the trial the prosecutor presented several witnesses who knew petitioner and had contact with him in the daysor hours priorto thekillings. Two of these witnesses, Barbara Mabrey and her son, Stacey Mabrey, testified that they had been sleeping in the back of the crack-house when petitioner and Rita Mae Lewis entered and began shooting the other occupants. Barbara Mabreytestified that she had escaped out the back door after the shooting started. Stacey Mabreytestified that he saw petitioner in the hallway with a gun heard him calling out the name of Stacey’s brother, Chuckie, as he searched through the rooms. Staceytestified that he retreated to his room and hid in the closet until petitioner and Lewis left the house. (See Claim 1.) 92. However, the jury never heard the truth— that Stacey Mabrey perjured himself. At the time of the shootings, Stacey Mabrey was not actually in the houseat all but was instead down the block. He decided to testify in an effort to please the district attorney’s office and to avoid prosecution for a numberofcrimes he himself had committed. Despite his clear-cut obligations under Brady v. Marylandandits progenyto turn over exculpatory and impeachment evidence to the defense, the prosecutor suppressed evidence ofthedeal with Stacey Mabrey. Although Mabrey was arrested five times for 16 different offenses committed between the 34 preliminary hearing andthetrial alone, and although the prosecution had dropped all charges or declined to file charges on all but one of these offenses, the prosecution hid this information from the defense. (See Claim 1.) 93. Indeed, on the morning Mabreywastotestify, the prosecutor was informedby oneofthe officers who wasalsotestifying that day that Mabrey was “arrestable” for four bank robberies. The prosecutorinstructed the officer not to arrest Mabrey until after he had finished testifying and did not inform the defense of this arrangement. The prosecutoralso did not inform the defense that agents of the district attorney’s officer had gone to the Mabreyresidence, made cash payments to both Barbara and Stacey Mabrey at the time they came to prepare them to testify at trial, and drove the witnesses to and from the courthouse each day they were to appear. (See Claim 1.) 94. The overzealous prosecutor, eager for anotherpelt for his office wall, also coached five witnesses, including Stacey Mabrey, not to say or even suggestthat petitioner was mentallyill, drunk, or on drugsatthe time of the incident. Thus,althoughall five witnesses had either made statements to the police or testified in the preliminary hearing that petitioner was “crazy” or on drugs shortly before the shootings, all five witnesses denied having made such statements in their testimony at the guilt phase and eveninsisted that petitioner was not “crazy.” (See Claims 1 and 21.) 95. Saddled with inept counsel and faced with a prosecutor and police force willing to destroy or manufacture evidencein orderto obtain a conviction, petitioner had little chance for a favorable verdict. Moreover, throughoutthe trial spectators shouted at the already tense jurors to “kill 35 him.” At the end of the guilt phase, the judge gave the jurors a host of incomprehensible, prejudicial, extemporaneousjuryinstructions, and thejury retired to begin their deliberations. After asking for read-backs of the testimonyofthe perjured witnesses, the jury returned with six counts offirst degree murder and the special circumstance ofmultiple murder. (Exhibit 11, Declaration ofJoanne Gonzales; Exhibit 33, Declaration of Minnie Welch; see Claims 35, 43, 49, 56, 57, 60.) 96. Defense counsel were, if possible, even more ineffectual in the penaltyphase than they hadbeeninthe guilt phase. Althoughthe prosecution presented a parade ofwitnesses in aggravation— primarily law enforcement officers who had altercations with petitioner in jail or prison— the defense failed to competently cross-examine these witnesses regarding petitioner’s mental illness, presented no social history witnesses in mitigation, and relied solely on Dr. Pierce and Dr. Bensonfor their entire penalty phase defense. However, petitioner’s paranoia and delusionthat all communications were being monitored, coupled with counsel’s ineffectiveness in failing to adequately investigate petitioner’s mental impairments and social history, prevented these doctors from settling on a coherent explanation ofpetitioner’s condition. (See Claims2, 19, 29, 30, and 33.) 97. During his closing argument, the prosecutorridiculed the defense and called for petitioner’s blood. In an argument which far exceeded the boundaries ofprosecutorial propriety, Anderson disparagedpetitioner and his attorneys and experts and demanded petitioner’s death so that the infant victims could confront him in the afterlife and ask him, “Why, Moochie, why?” With little defense effort madeto savehis life, petitioner once again had little hope for a life verdict. The jurors, who had privately heard 36 prejudicial information aboutpetitioner from thebailiffthroughout the case, quickly returned a verdict of death. (See Claim 9, 10, 11, and 13.) 98. Because his defense attorneys performed so ineptly, the jury never heard that petitioner’s mental illness was the product of profound, debilitating brain damage whichaffects the orbitofrontalarea ofpetitioner’s brain and mostofhis frontal lobes. This brain damageis the product of a combination of horrifying abuse, inflicted by petitioner’s father when petitioner wasin utero andin infancy, and prenatal and childhood exposure to such neurotoxicants as lead, mercury, and other heavymetals. (Exhibit 10, Declaration of Karen B. Froming, Ph.D.; see Claim 18.) 99. The jurynever heardthat petitioner’s brain damage wasoflong- standing, that he had beenplacedin classesfor the emotionally disturbed as early as kindergarten. The jury also did not hear that petitioner’s brain damageis so extreme that neuropsychological tests ofmemory place him in only the first percentile. Because he recalls so little of what he experiences and whathesees around him,he is unable to process information accurately and explains the “holes” in his memory with confabulations and conspiracy theories. He lacks the capacity to control his impulses, fixates on ideas or concepts and cannotshift offthem, cannot discern important from unimportant details, and cannot comprehendthe intricacies ofnormal human relationships. Because he cannot grasp or process the information he receives, he cannot think or act in a rational manner. (Exhibit 10, Declaration of Karen B. Froming, Ph.D.; see Claim 18.) 100. As occurs with distressing frequency in death penalty cases, wherethe stakesare the highest, petitioner’s trial was a travesty in which the prosecution’s falsehoods were never exposed or even challenged, and the 37 truth about petitioner was never presented. The writ should issueto correct this miscarriage of justice and permit petitioner to be tried fairly and defended by competent counsel. Claim 1: Brady Error — Prosecution Misconduct — Withholding of Impeachment Evidence Regarding Payment and Other Favorable Treatment Given to Barbara and Stacey Mabrey A. Petitioner’s conviction and sentence of death are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, 16, and 17 of the California Constitution because the prosecution suppressed impeachment evidence relating to key prosecution witnesses. It is reasonably probable that the outcome would have been different had the evidence been disclosed. Specifically, the prosecution withheld evidence that its star witnesses, Barbara and Stacey Mabrey, had received substantial benefits, including financial consideration and favorable treatment from the prosecution, in exchangefor their testimony. Both these witnesses received cash payments delivered by employeesof the district attorney’s office to the Mabrey’s residenceat the time these two employees arrived to prepare these witnesses to testify in petitioner’s case and to drive the Mabreys to the courthouse to testify. In addition to withholdingthis startling fact, the prosecution did not inform the defense that betweenthe preliminary examination andthetrial the prosecution had dropped chargesor declined to press chargesfive times when Stacey Mabreywasarrested on total of at least 16 separate felony charges. Moreover,the prosecutor, James Anderson, withheld information that on the morning of the day Stacey Mabrey wastotestify in petitioner’s case, the prosecutor had learned that a warrant had been issued for Stacey Mabreys’ 38 arrest for a series ofbank robberies. The prosecutor had himself instructed police officers not to arrest Stacey Mabrey for these offenses until he had finished testifying. The prosecution also coached witnesses to alter earlier statements or testimony regarding petitioner’s mental state and concealed information that Stacey Maybrey, a purported eyewitnessto the crimes, was in fact not present when the crimes occurred. The suppression of all this --evidence deprivedpetitioner ofhis federal andstate constitutional rights-to due process,the right to confront and cross-examine adverse witnesses, the effective assistance of counsel, a fair andreliable determination ofguilt and penalty,trial by an unbiasedtribunal,trial by jury, anda fairtrial. B. The following United States Supreme Court decisions, inter alia, in effect at the time the errors occurred, are presented in support of this claim: Brady v. Maryland (1963) 373 U.S. 83 (withholding of evidence favorable to accused violates due process); Giglio v. United States (1972) 405 U.S. 150 (Brady doctrine includes impeachmentevidenceas well as exculpatory evidence); United States v. Bagley (1985) 473 U.S. 667 (same); United States v. Agurs (1976) 427 U.S. 97 (Brady rules apply to evidence which would affect the outcome on penalty as well as guilt issues); Mooney v. Holohan (1935) 294 U.S. 103 (prosecutor’s nondisclosure of knowingly perjured testimonyviolated due process); Napuev. Illinois (1959) 360 U.S. 264 (due process violated by false testimony regardless of whether prosecutorsolicited it or merely allowed it to go uncorrected); Miller v. Pate (1967) 386 U.S. 1 (14% Amendmentcannottolerate prosecution’s knowing presentation of false evidence) Alcorta v. Texas (1957) 355 U.S. 28 (due processviolated whenprosecutorfailed to correct misleading impressionleft 39 by witness’s testimony); DeMarco v. United States (1974) 415 U.S. 449 (if plea bargain madepriorto testimony, reversal of conviction required under Giglio and Napue); Donnelly v. DeChristoforo (1974) 416 U.S. 637 (false evidenceincludes introduction of specific misleading evidence important to government’s case); Pyle v. Kansas (1942) 317 U.S. 213 (knowing use of perjured testimonyanddeliberate suppression offavorable testimonyrequires reversal); Jmbler v. Pachtman (1976) 424 U.S. 409 (obligation ofprosecution to deal fairly in disclosing information and correcting misinformation continues after conviction); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly confront adversarial evidence); Douglas v. Alabama (1965) 380 U.S. 415 (right to confront includes right to cross-examine adverse witnesses); Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause guarantees right to impeach credibility of adverse witness with proof of his prior crimes); Powell v. Alabama (1932) 287 U.S. 45 (indigent capital defendant has right to have effective counsel appointed and to be heard through counsel); McMannv. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counselis right to effective assistance ofcounsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showing that counsel’s actsfell outside the range ofreasonable competence, coupled with showing ofprejudice, compels reversal; prejudice shownif there is a reasonable probability, less than a preponderance,that counsel’s errors affected the outcome;theseprinciples apply equally to guilt and sentencing phasesof capitaltrial); United States 40 v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendment violated, and prejudice need not be shown, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentenced on basis of unreliable information); Beck v. Alabama (1980) 447 U.S. 625 (Eighth Amendmentalso requires heightened reliability in guilt determination in capital cases);Hicks v. Oklahoma.(1979) 447 U.S. 343 (federal due process claim in state-created right). C. The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiary hearing,are presented in support of this claim: 1. In support of this claim, petitioner incorporates by reference Claims2, 4, 5, 19, 23, 24, 47, 48, 77, and 78. 2. On multiple occasions between the killings on December8, 1986, andthetrial in petitioner’s case, Caucasian plainclothes detectives or employeesofthe district attorneys office made cash payments to Barbara and Stacey Mabreyat the Mabrey’s residence on 82"! Avenue between Bancroft and MacArthur Boulevard in Oakland. These men also prepared Stacey Mabrey for his testimony at the time at least one of these payments was made. In addition, the men drove Barbara and Stacey Mabreyto and from court on the days they testified. (Exhibit 2, Declaration of Troy Barnes.) 3. OnNovember18, 1987, during the preliminary examination, the prosecution revealed that Stacey* had been arrested for a violent assault on ®8To avoid confusion, petitioner will occasionally refer to Stacey and Barbara Mabreybytheirfirst names. No disrespect is intended. 41 Terry Savage,a friend ofRita Lewis, petitioner’s codefendant. (CT 1345.) The prosecution revealed that Staceyhad beenarrested for the Savage battery on May10, 1987, but was released and never prosecuted. The prosecution provided a copy ofthe police report to the defense attorney, Thomas Broome. . (CT 1348-1349.) The court ruled that the defense was entitled on the basis of this information to inquire about bias during its cross-examination of Stacey Mabrey. (RT 1347.) Spencer Strellis, Broome’s successor as petitioner’s counsel, was aware of this information at the timeoftrial. (RT 4192.) 4. Trial counsel repeatedly requested and received assurance from the prosecutorthat this was the only informationthe prosecution was required to disclose with regard to Mabrey. For example, the court asked lead counsel whetherthere was “Any discovery you don’t have, Mr. Strellis?” Counsel replied, “I’m not aware of any Brady material. God knowsif there is any I wantit.” (RT 1795.) The court stated that it would interrogate the district attorney again to see if any discovery requirements had not been complied with: “Because this is a continuing order.” (RT 1798.) Subsequently, counsel again confirmed his understanding that he had “an ongoing Brady motion and that any Brady materials will be turned over...” (RT 3762.) Counsel indicated that he would be “outraged”ifany such materials were not disclosed. (RT 3762.) 5. Inspite ofthe court’s unmistakable instructions to ensure than all Brady material was disclosed, the prosecutor proceeded to withhold material impeachmentevidence favorable to the defense. Moreover,it is readily apparentthat the suppressionofthis critical evidence wasnot merely inadvertent, but intentional and in bad faith. The prosecution did disclose 42 Stacey’s single assault incident to the defense during the preliminary examination. However, the prosecution never disclosed that Stacey was arrested numerous times between the conclusion of the preliminary examination and the commencement of petitioner’s trial, or that the prosecution had declined to prosecute him for any of these offenses in exchangeforhis testimonyatpetitioner’s trial. During the period betweenthe preliminary hearing andthetrial in thiscase, StaceyMabreybecameaone- man crime wave, yet he suffered few,if any, consequences for his repeated involvement in drug,firearm, theft, and even bank robbery cases. 6. On October 13, 1988, Stacey Mabrey wasarrested for burglary in San Leandro. However, no charges wereeverfiled for this offense, and discovery providedto the defensein the case of another defendant (though not in this case) revealedthat no reasonfor the decision not to press charges was provided. (Exhibit 45 through 52.) 7. On November 21, 1988, slightly more than one month later, Stacey wasarrested and charged for possession of a controlled substance in violation ofHealth and Safety Codesection 11350 and possessionwith intent to sell a controlled substance in violation ofHealth and Safety Code section 11351. These charges included allegations that he had been armed with a firearm atthe time ofthe offenses, in violation ofPenal Code section 12025. Thefirearm with which Stacey was armed appearsto have been an Uzi-style, Tech 9 machinepistol. Although bail wasinitially set at $25,000, Stacey was suddenly released and no formal complaint was ever filed. According to subsequent discovery provided in the case of another defendant, no reason wasever provided for the decision notto file on the possession with intentto 43 sell or the firearm charges. The simple possession charge was dismissed. (Exhibits 45 through 52; Exhibit 2, Declaration of Troy Barnes.) 8. On March5, 1989, Stacey was again arrested and charged with between four and ten counts offorgery and one or two countsofgrandtheft.° Onceagain, no formal complaint waseverfiled for these offenses. Instead, all counts were dismissed on July 14, 1989, about two monthsafter Stacey testified for the prosecutionin petitioner’s trial. (Exhibits 45 through 52.) 9. On March 27, 1989, Stacey wasagain arrested, this time for three felonies: one count ofburglary and two counts of forgery. On July 14, 1989, two monthsafter testifying for the prosecutionin petitioner’strial, he pleaded guilty to one misdemeanor forgery and the remaining counts were dismissed. (Exhibits 45 through 52.) 10. On May 18, 1989, the day hetestified at petitioner’strial, Stacey wasarrested and charged with four counts of robbery. Discovery providedto another defendantin abank robberycase— thoughagainnot to the defense in this case— indicated that nearly a month and a halfprior to Stacey’s testimony in petitioner’s case, local and federal law enforcementofficials investigating a series of four bank robberies committed by masked men armed with shotgunsand explosive devices had focusedtheir investigation on Stacey Mabreyand another man, Troy Barnes. On April 4, 1989, Oakland police learned that a shotgun usedin the robberies had been kept at Stacey’s apartment. On May 17, the day before Stacey’strial testimony, police learned that Stacey’s car matchedthe vehicle used in the robbery of one of the banks on March 2, 1989. Finally, at 10:30 p.m. on the evening ofMay 17, the night before Stacey’strial testimony, police obtained a search warrant */ Two different documents provide different counts forthis arrest. 44 for Stacey’s home,served the warrant, searched the residence, and recovered evidence connecting Stacey to the bank robberies— includingcoin rolls taken by the robbers. (Exhibits 45 through 52.) 11. The following morning--Thursday, May18, 1989--at 8:30 a.m., Oakland Police Sergeant Raphael Delgadillo, who was to testify in petitioner’s case that morning, informed deputy district attorney James Anderson, the prosecutor in petitioner’s case, that Stacey Mabrey was “arrestable” for the four bank robberies. Anderson instructed Delgadillo to wait to arrest Stacey until after he testifiedin petitioner’s case later that day. (Exhibits 45 through 52.) 12. That afternoon at approximately 2:15 p.m., Stacey was sworn as a witness andtestified in petitioner’s case. Stacey providedcritical testimony regarding the incidents leading up to the December8, 1986 and eyewitness testimony to the killings themselves. Stacey testified that petitioner had been involvedin a series of incidents with the Mabrey family in the monthspriorto the killings. Stacey testified that petitioner had been dating his sister, Dellane Mabrey, during this period. (RT 4111.) Hetestified that at 3:00 a.m. on the morning ofOctober 29, 1986, he was awakened when Dellane screamed. He woke up and sawpetitionerin the hallwaycarrying a .45 caliber pistol. (RT 4113.) He told Stacey “don’t do anything.” (RT 4114.) Stacey said petitioner then pointed the gun at Stacey’s brother, Damell Mabrey. (RT 4114.) Later, he slapped Dellane in the face. (RT 4115.) Petitioner was arrested for this incident. 45 13. Staceytestified that subsequently, on December7, 1986,his car washit by acar driven by Vanessa Walker.'° (RT 4118-4119.) A car in whichpetitioner, Dolores Walker, and two males, “Billythe Kid” and William Henderson wereriding drove up to the scene. (RT 4119.) Petitioner got out ofthe car with a pistol in his hand and pistol-whipped Stacey’s friend Perry. (RT 4120.) Petitioner also punched William before leaving with "Billy the Kid" and Dolores. (RT 4121-4122.) As heleft, petitioner kicked Dolores out of the moving car, saying “something about a dog.” (RT 4122). 14. Stacey testified that he went to bed that nightat 10:00 p.m.. Hesaid he was awakenedin the early morning hoursby the soundofseveral gunshots being fired inside the house. (RT 4125.) He testified that he walked into the kitchen and saw petitioner leaving his sister’s room and walking into the hallway. Stacey said petitioner was holding an Uzi semi- automatic machine gun. (RT 4126-4127.) Stacey also saw Rita Lewis holding a .38 revolver. (RT 4127-4128.) 15. Stacey said he stepped back into his bedroom andputonhis shoes, intending to leave through the back door. (RT 4129.) Instead, he testified, petitioner cameinto his room,still holding the Uzi, and turned on the light. (RT 4129.) Stacey testified that he hid in the closet and overheard petitioner say “Where’s Chuck,”a reference to Stacey’s 16-year-old brother. (RT 4130.) Stacey said petitioner then turned offthe light and left the room, and he heard Lewis saying “Comeon, Moochie. Let’s go.” (RT 4131-4132.) Stacey said he then left out the back door ofthe house and wentto his car. (RT 4132.) Hetestified that he then heard five more gunshots coming from Vanessa Walker and Dolores Walker were unrelated to Catherine Walker, one of the murdervictims. 46 the house and saw petitioner and Lewis comeoutthe front door. (RT 4132.) Accordingto Stacey, petitioner was limping and fell downas he reached the front gate, so Rita Lewis anda third person helped him into a car, which then drove away. (RT 4133.) 16. On cross-examination, Stacey specifically denied having received anything in exchangefor his testimony: DEFENSE COUNSEL:Haveyou beenoffered anybenefits whatsoeverfrom the District Attorney’s Office in Alameda County, and I don’t necessarily mean this gentleman here but any district attorney in Alameda County, that would have benefitted you after these events and before your testimony here today? MABREY:No. DEFENSE COUNSEL: So far as you know you have received no benefits whatsoeverin exchangeoras result of yourtestifying here today? MABREY:No,I haven’t. (RT 4184.) 17. Stacey finished his testimony shortly after 4:00 p.m. As he left the courtroom, he was placed underarrest by Sergeant Delgadillo and Sergeant Brock, and was charged with four counts ofrobbery in connection with the four bank robberies. However, Stacey was released from custody almost immediately, pursuant to Penal Code section 849, subdivision (b)(1), on the supposed groundsthat the arresting officer was convinced there was insufficient evidence to charge him for the robberies. (Exhibits 45 through 52.) 47 18. On Monday, May 22, 1989, only four daysafter his testimony, Stacey Mabrey wasagain arrested, this time for receiving stolen property. Onceagain, no complaint wasfiled, and once again the reason for the failure to prosecute was alleged to have been a lack of sufficient evidence. (Exhibits 45 through 52.) 19. Also on May 22, 1989, the next court day after her son, Stacey, had finished testifying, Barbara Mabreywascalled as a prosecution witness. (RT 4194.) As her son had done, Barbara also testified that petitioner and her family had seriousdifficulties with each other during the monthsbefore the shooting. Barbara said she had metpetitioner in early 1986 (RT 4196, 4197), but that her problems with petitioner intensified over the last few months before the murders. Barbara’s daughter, Dellane, was dating petitioner (RT 4010) and claimed that petitioner was Dexter's father. (RT 4198.) 20. Barbara said that she and petitioner had an argument over ~ Dellane in September, 1986. In this argument, Barbara told petitioner to stay away from Dellane. (RT 4199.) According to Barbara,petitioner then broke into the house at gunpoint and took Dexter away from Barbara on October9, 1986, shortly after Dexter was born. (RT 4200.) Dellane and her infant daughter Valencia (the product ofDellane’s relationship with another man, Leslie Morgan), went with petitioner and were gone for three days. (RT 4200, 4201.) 21. A few days later, when Barbara was going to thestore, petitioner drove upto her andspatat her from the car window,yelling "bitch, you are dead." (RT 4203.) Petitioner followed her home,striking her in the knee with his car as shetried to flee into her home and laughingashe didit. 48 (RT 4204-4206) Barbara claimedthat petitioner confronted her again at a neighborhood market on October 20, 1986, throwing liquid into herface. (RT 4209-4210.) She said that petitioner cursed at her, knocked her down and kicked her several times as she lay on the ground. (RT 4210, 4211.) Barbara said petitioner then escaped from the police on his motorcycle. (RT 4211-4214.) 22... Barbaraalso confirmed many of the details of Stacey’s testimonyregardingthe incidentofOctober 29, 1986. Shesaid thatpetitioner had entered the Mabrey houseabout3:00 o'clock in the morning with friend called Kennyand confronted Leslie Morgan and Dellane, slappingherin the face. (RT 4214-4216, 4217.) Petitioner pointedthe pistol at Barbara,telling her not to get near him,andsaid that she “better not go to court andtestify against him or his people” or else they were going to take care ofher. Barbarasaidpetitioner threatened to shoother armsofffirst and then herlegs and said “I’m going to makeyou die slow.” (RT 4217.) Hethen pointedthe gun at Leslie Morgan, whofled in his underwear. (RT 4218.) Petitioner pointed a .45 caliber pistol towards thefloor as he left Dellane's room. (RT 4113.) He told Darnell Mabrey “don't do anything”as he pointed the gunin Darnell's direction. (RT 4219.) 23. Petitioner was arrested for the October 29th incident and wrote Barbara a letter from jail requesting that she drop the charges. (RT 4219, 4221.) He was eventually released on bail. Barbara testified that on December6, 1986, petitioner came to her house and apologized. (RT 4222, 4341.) She said petitioner also brought his two puppies and played with Dexter. (RT 4223.) One ofthe puppies, which had beenplacedin the yard, wasmissing and petitioner angrilybegan accusing Darnell, Sean Mabrey, and 49 Steve Early of taking the dog. (RT 4223, 4224, 4225, 4342.) Denying petitioner’s accusation,Early left in his car with petitioner close behind. (RT 4225.) Petitioner, carrying a gun in his waist band, shot through Early's back window as he drove off, all the while saying “you stole my dogs, you motherfucker.” (RT 4226.) Healso said, as he was leaving, that “You niggers better find my dog or youare all going to die.” (RT 4226.) | 24. Barbaratestified that, on December 7, 1986, the day after the dog incident, petitioner defendant and Rita Lewis, defendant's girlfriend, went to the Mabrey house and asked Barbara Mabreyto not go to court on his cases involving her and talking about the dogs. (RT 4228, 4229, 4346.) Barbaraalso confirmedthe details ofthe incident following the car accident later that evening whenpetitioner pistol-whipped Stacey's friend, Perry, and punchedWilliam Hendersonbefore leaving with “Billythe Kid”and Dolores. (RT 4232.) Barbara said before petitioner drove off, he shouted that “you Stone City niggers better get my dog or somebody's goingto die.”'' (RT 4233, 4357.) 25. Like her son, Stacey, Barbaratestified that she too was an eyewitness to the killings. She said that in the early morning hours of December8, 1986, she woke up to gunshots and heard Dellane screaming “no, Moochie, don't.” (RT 4235.) Barbara saw Rita pointing a gun andtelling defendantto get out of the way. (RT 4235.) Rita had a pistol in her hands and Barbara heard more gunfire before she escaped out of the house by the rear, running alongside the house onto PearmainStreet,jumping over a fence "Stone City" refers to the Stonehurst District in Oakland, California. (RT 4233). 50 and knocking on herneighbor's doorto call the police. (RT 4237, 4240, 4242, 4243.) 26. As noted previously, the prosecution was awarebutdid not disclose to the defense that Barbara and Stacey Mabreywere both been given cash payments by law enforcementofficials at the time they were being prepared to testify in petitioner’s case. (Exhibit 2, Declaration of Troy Barnes.) The prosecution wasalso aware,but did not inform the defense,that Stacey Mabrey hadbeengiven consistently favorable treatment in numerous cases in whichthe prosecution hadfailed to file charges against Stacey even though he had become a one-man crime wave. UnderBrady andits progeny (see cases cited, supra), as well as venerable California case law, the fact that a witness has been given benefits or favorable treatment in another criminal case in exchangefor his or her testimonyis material, relevant and admissibleat trial to show bias or motive to fabricate testimony. (Peoplev. Pantages (1931) 212 Cal. 237, 258; People v. Phillips (1985) 41 Cal.3d 29, 45.) Evidence that a prosecution witness has received benefits in exchange for his testimony seriously underminesthat witness’s credibility. (Singh v. Prunty (9" Cir, 1998) 142 F.3d 1157.) Accordingly, the evidence of the assault on Savage, the payments and other considerations given to the Mabreys, and the numerousotherpretrial felony arrests wasall admissible on the subject of bias and motive to fabricate. 27. The suppressed evidence was material because it is reasonably probable that the result of the proceeding would have been different had the evidence been disclosed. (United States v. Bagley (1985) 473 U.S. 667.) A reasonable probability does not require a showing rising to the level of a preponderance of the evidence, but merely a probability 51 sufficient to undermine confidence in the outcome. (/d., at pp. 682, 685.) Oncethe evidence has been shown to be material, the error is not subject to harmless error review. (United States v. Agurs (1976) 427 US. 97, 112; Kyles v. Whitley (1995) 514 U.S. 419.) 28. The suppressed evidencein this case wasclearly material. It would have severely undercut the credibility of both Barbara and Stacey Mabrey-— testimony which wentto the very heart of the prosecution’s case. Between them,Stacey and Barbara provided the most powerful evidence the prosecution presentedtying petitionerto the crimes, and their testimony also provided the jury with virtually the entire prosecution story of the events whichled up to the shootings. Indeed, this evidence was such a potentpart ofthe prosecution’scase that the prosecutor waswilling to violate a standing court order, as well as petitioner’s federal constitutional rights, in order to keepit secret from the defense. 29. The materiality of the evidence is underscored by the prosecutor’s heavy reliance on the testimonyofthese two witnesses during his opening and closing arguments at the guilt phase, not only to prove the facts of the case but also to establish such critical elements of his case as intent, premeditation and deliberation, and motive. (RT 3877-3878, 5480, 5490-5491, 5494, 5512, 5520, 5522, 5557.) Prosecutor Anderson relied entirely upon the Mabrey’s testimony for evidence he described as petitioner’s statement of “intent” to kill the victims— the alleged threat that “you Stone City niggers better get my dog or somebody’s going to die, you all dead, or somethinglike that.” (RT 5490-5491.) He relied at extraordinary length on the numerousincidents to which Barbara Mabreyhadtestified as “circumstances attending the act” which demonstrated petitioner’s intent, 52 | includingthe liquorstore incident on October 20 andthepistol display in the Mabreyhouse on October 29. (RT 5494-5497.) Hefurther relied on Barbara Mabrey’s testimonyto claim that the motive for the killings was’petitioner’s supposeddesire for revenge against her. (RT 5522.) He also comparedthe credibility of Stacey’s testimony favorably to that of the defense mental health experts. (RT 5520.) In addition,in his closing summationatthe guilt phase, Anderson improperly soughtto elicit sympathy for Barbara Mabrey, noting that she had no familyleft as a result of the killings. (RT 5557.) 30. The revelation that the Mabreys had essentially been bribed in exchange for providing critical eyewitness testimony would have devastated the prosecution’s case. Both had received cash payments from law enforcement officials, and Stacey had effectively been given carte blanche to commit as many crimes as he wished from the preliminary examination throughthetrial without fear ofprosecution. Stacey thus had a powerful motive to testify in a manner which wouldplease the prosecution, and Barbara wassimilarly motivated not only by the cash payments from the prosecution, but also by her maternal desire to protect her son from prosecution.(See, e.g., People v. Ruthford (1975) 14 Cal.4th 399, 405.) Had the information been revealed, the credibility of these two witnesses would have been demolished, and the prosecution’s case would have been shaken to its foundations. 31. Althoughit is clear from the facts regarding his contacts with Officer Delgadillo and others that prosecutorAnderson wasawareofbenefits given to Stacey Mabrey, petitioner’s claim is not dependent upon the prosecutor’s personal involvement. Indeed, ifany law enforcement employee made these payments or provided other benefits to Stacey or Barbara in 53 exchangefor their testimony or exchanged lenient treatment to Stacey in exchange for the testimony of either Stacey or Barbara, the conduct is imputed to the prosecutor and petitioner is entitled to relief. ' (Giglio v. United States, supra, 405 U.S., at p. 154; People v. Kassim (1997) 56 Cal.App.4th 1360, 1385-1386.) 32. The materiality ofthe suppressed evidence andthe prejudicial effect ofits suppression are also underscoredby thefact that thejurors asked to have Stacey and Barbara Mabrey’s testimony read back during the guilt phase deliberations. (RT 5640.) This fact indicates how critical and influential the jury believed this evidence was. (RT 5640.) 33. Accordingly, but for the suppression of this information,the jury would havereturned a verdict more favorable to the defenseat the guilt phase. In addition, because the death verdictat the penalty phaserelied upon Mabrey’sguilt-phase testimony, and becausethe prosecutorrelied uponit in his closing argumentat the penalty phase (see infra), the jury would have returned a life verdict at the penalty phase if this startling, material information had been provided to the defense. 34. Furthermore, it was due process error under Napuev.Illinois for the prosecution to have failedto correct Mabrey’s testimony that he had not received anybenefits in exchangefor his testimony. The prosecution was aware ofthe bribery and Mabrey’s astonishing history of contemporaneous arrests, and it is simply not credible that the prosecution would decline to press charges against a witness in a murdercase who had himselfcommitted a feloniousassault against one ofthe codefendant’s relatives, followed by 13 other felonies in the space of seven monthsjust prior to the commencement oftrial, unless there was a quidpro quo connection betweenthis favorable 54 treatment and the testimony of the witness. The prosecution had a duty to correct the misleading impressionleft by Stacey’s denial that he had received substantial benefits in exchangefor his testimony, andreliefmust therefore be granted. 35. Moreover, the prosecutor withheld material exculpatory evidence favorable to the defense and suborned perjury by inducing several - witnesses to alter their previous statements and testimonyto the effect that petitioner was mentally ill or high on drugs and alcoholat the time of the crimes. Stacey Mabreytold police he believed petitioner was “wacked out on heroin and cocaine,” but at trial testified that he had not said this “to my knowledge.” (RT 4186.) Barbara Mabrey, whotestified at the preliminary hearing that petitioner was “crazy,” changedherstory attrial and adamantly denied that she had eversaid any such thing. Instead, shestated that “I never thought he was crazy. Heis just plain evil.” (RT 4286-4287, 4402-4403.) Barbara Mabrey’s story also changed from herpolice statement ofDecember 7, when she said that petitioner was high on drugs. Leslie Morgan also avoided testifying that petitioner’s behavior had ever suggested mental illness. When asked whether petitioner had behaved as “a crazy, violent guy,” Morgantestified only that, “he liked to hurt people.” (RT 4488.) Angela Payton repeatedly insisted on cross-examination that petitioner was not crazy and denied that a friend had eversaid that petitioner was crazy “because the man is not crazy.” (RT 4555.) Asked again if she believed petitioner was crazy, she stated, ‘““No heis not,” and thenreiterated, “That man is not crazy.” (RT 4556.) Finally, Beverly Jermanytestified that when she saw petitioner on the morning ofthe homicides,petitioner did not appear to be high on drugs, a statement whichflies in the face ofthe truth, which was 55 thatpetitioner was intoxicated on a combination of alcohol, cocaine, and morphine whenhearrived at her homeshortly after the crimes. (RT 4782- 4783; Exhibit 18, Declaration of Rita Lewis.) 36. It is transparently obviousthat these witnesses were coached to avoid saying anything onthe stand that wouldindicate that petitioner was either mentally ill or on drugs in order to deprive petitioner of a mental defense which would have produceda not guilty verdict or a verdict with a reduced degree or form of homicide. In addition,all these witnesses knew petitioner well, and it was universally known in the Sobrante Park neighborhood of Oakland that petitioner was mentally ill. (Exhibit 6, Declaration ofThomas Broome; Exhibit 26, Declaration ofKonolus Smith; Exhibit 36, Declaration of Billy Williams; Exhibit 7, Declaration of Robert Cross.) Accordingly, even apart from their inconsistent prior statements,it is apparent that all these witnesses knew andbelieved that petitioner was mentally ill. The fact that one witness changedhis or her story on such a point might be explained away, but thefact thatfive prosecution witnessesall avoided making statements they had previously made or which conflicted with the facts on these issues indicates that the prosecution coached the witnesses. 37. Coaching witnesses to change their testimony constitutes not merely the suppression of material evidence favorable to the defense within the meaning of Brady doctrine, but also the subornation of perjury, a violation ofPenal Code section 127. The elementsofthe the crime of subornation of perjury consist of: a corrupt agreementto testify falsely; proofthat perjury has in fact been committed; the statements ofthe perjurer were material; and evidence that such statements were willfully made with knowledgeasto the falsity thereof. Moreover, one whoprocures anotherto 56 commit perjury must knowthatthe perjurer's statementsare false. All these elements are present here. 38. The evidence was material not only because it would have provided the defense with evidence which would have defeated the mental state elements of first degree murder, but also because it would have provided powerful evidence in mitigation at the penalty phase. The materiality of the evidence is also underscored by the fact that thejury requested read-backs of the testimony of four of the five witnesses listed above: Stacey and Barbara Mabrey, Leslie Morgan, and Angela Payton. (RT 5640.) Moreover,as indicated previously, the prosecutor relied extensively upon the testimony of these witnessesin his closing arguments at both the guilt and penalty phases. For the foregoing reasons,it is at least reasonably probable that a more favorable result would have been reached had the evidence not been withheld. 39. In addition, it was error under Napue, surpa, for the prosecution not to have corrected testimony the prosecution knewto befalse. 40. Finally, the prosecution withheld evidence that Stacey Mabrey wasnotactually presentin the houseat the time ofthe killings, and therefore affirmatively presented false evidence that he was present. (Exhibit 2, Declaration of Troy Barnes.) It is readily apparent that the prosecution coachedthis witness and his mother, made cash payments to them, came to their residenceto prepare their testimony, drove them to and from court, and obtained favorable treatment for Stacey Mabrey in connection with his many other criminal cases. (Exhibit 2, Declaration of Troy Barnes; Exhibits 45 through 52.) The prosecution wasaccordingly aware ofboth the importance of Stacey’s testimonyandthe needto ensure thathe testified he was actually 57 present whenhe wasinfact not in the house atall and not a percipient witness to the crimes themselves. The prosecution therefore had a duty notto present this false testimony but to correct the testimony once it had been given. (Napuev. Illinois (1959) 360 U.S. 264.) 41. This evidence was material because it would have demolished Stacey’s testimony regarding his version of the events which took place inside the Mabrey house on the early morning of December 8, 1986. In addition, this evidence also would have underminedthecredibility ofStacey testimony regarding the incidents of October through December of 1986 regarding petitioner’s other conduct to which Stacey Mabreytestified. Materiality is again underscored by the prosecutor’s heavy reliance on Stacey’s testimonyin closing argument, and by the jury’s request for a read- backofthis testimony. 42. It is at least reasonably probable that a more favorable result would have been obtained in absence of the error. As indicated, Stacey Mabrey’s testimony wasa vital component of the prosecution’s guilt and penalty phase case. It comprised a large part ofthe prosecutor’s argument, and the jurors requested that this testimony be read back during their deliberations at the guilt phase. Moreover, Stacey Mabrey’s testimony regarding the events ofthe morning ofDecember8, 1986, were incorporated into the factors in aggravation pursuant to Penal Code section 190.2, subdivision (a). D. The facts pertaining to each ofthese errors, in violation of the Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, establish a reasonable 58 | probability that the outcome ofthe trial would have been different if the suppressed information had been disclosed to the defense. A “reasonable probability” of a different outcome is shown when the government’s withholding of evidence “undermines confidence in the outcome.” (U.S.v. Bagley, supra, 473 U.S. 667, 678.) Claim 2: Judicial Error--Failing to Order aDetermination of Petitioner’s Competence; Trial While Mentally Incompetentin Fact A. Petitioner’s conviction and sentence of death are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, 16, and 17 of the California Constitution because the trial judge failed to order a competency evaluation and hearing at numerouspoints during the pretrial, guilt, penalty, and post- trial proceedings even though substantial evidence of petitioner’s incompetence wasrepeatedly presented to the court. Moreover, petitioner was actually incompetent throughoutthe pretrial, guilt, penalty, and post-trial phasesofthe case and certainly would have been found incompetentto stand trial or be sentenced. Thus, the court’s failure to order a competency evaluation and hearing subjected petitioner to a trial while he was incompetent. The court’s errors deprived petitioner ofhis federal andstate constitutionalrights to due process oflaw, equal protection, confrontation, the assistance ofcounsel, conflict-free counsel, a fair and reliable determination ofguilt and penalty,trial only when mentally competent, a determination by a tribunal ofmental competence,trial by an unbiasedtribunal, and a fairtrial. 59 B. The following United States Supreme Court decisions,inter alia, in effect at the time the errors occurred, are presented in support ofthis claim: Dusky v. United States (1960) 362 U.S. 402 (defendantis incompetent to standtrial if he lacks “sufficient present ability to consult with his lawyer with a reasonable degree ofrational understanding”or “a rational as wellas factual understanding of the proceedings against him”) Pate v. Robinson (1966) 383 U.S. 375 (failure to observe procedures designed to assure defendant will not be tried or convicted while incompetent violates due process and right to fair trial); Drope v. Missouri (1975) 420 U.S. 162 (defendant’s conductafter arraignment, such as conductin court orin jail, maytrigger competency proceedings); Akev. Oklahoma (1985) 470 U.S. 68 (defendant entitled to expert assistance, including mental health expert assistance, to prepare for andtestify at trial); Pointer v. Texas, 380 U.S. 400 (1965) (confrontation clause provides criminal defendantright to directly confront adversarial evidence; Loven v. Kentucky, 488 U.S. 227 (1988) (confrontation clause violation where defendant not permitted to cross- examine complainant); Gardnerv. Florida, 430 U.S. 439 (1977) (due process violation in capital proceeding where petitioner sentenced on basis of unreliable information); Beck v. Alabama (1980) 447 U.S. 625 (Eighth Amendment also requires heightened reliability in guilt determination in capital cases); Hicks v. Oklahoma, 447 U.S. 343 (1979) (federal due process claim in state-created right). C. The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiaryhearing, are presentedin support ofthis claim: 60 1. Petitioner incorporates by referenceasif fully set forth herein the facts and law set forth in Claims4, 5, 18, 19, 23, 24, 47, 48, 77, and 78. 2. The conviction of a person while legally incompetent is a violation of federal due process. (Pate v. Robinson (1966) 383 U.S. 375.) A criminal defendant is incompetentto betried, adjudge, or sentenced if, as a result of a mental disease or defect, he lacks “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” or “a rational as well as factual understanding of the proceedings against him.” (Dusky v. United States (1960) 362 U.S. 402; see also, Pen. Code §1368.) A defendant lacks a rational understanding required for competency to stand trial if his mental condition precludes him from perceiving accurately, interpreting and/orresponding to the world around him. (Lafferty v. Cook (10" Cir. 1991) 949 F.2d 1546,cert. den. 112 S.Ct. 1942 (1992).) 3. When a “bona fide doubt” or substantial evidence of a defendant’s competence exists, the court must sua sponte suspend proceedings and conduct a hearing into competenceevenifthe defense does not request one. (Pate v. Robinson (1966) 383 U.S. 375, 385; Drope v. Missouri (1975) 420 U.S. 162, 172-173; Hernandez v. Yist (9" Cir. 1991) 930 F.3d 714, 716.) 4. In spite of substantial evidence that petitioner was not mentally competent to proceed with trial, including the court’s own statements regarding its view ofpetitioner’s incompetency andpetitioner’s own motion for a competency hearing, the court failed to order a competency determination pursuantto Penal Codesection 1368. The court was aware of substantial evidence that, because of mentalillness or defect, petitioner was incapable of understanding the nature of the proceedings against him or of 61 assisting in his defense. Once such substantial evidence became apparent, a bona fide doubt as to his competence existed and competency proceedings - were required. (Pate v. Robinson (1966) 383 U.S. 375, 385; People v. Pennington (1967) 66 Cal.2d 508, 518; Pen. Code §1368.) 5. The court was aware that petitioner’s previous attorneys, Thomas BroomeandRobert Cross, had made a competence motionprior to the preliminary examination, citing thestress under whichpetitioner labored as a result ofextraordinarily harsh conditions ofhis confinementin the county jail and the fact that petitioner was unableto assist his counselin a rational manner. (Exhibit 6, Declaration ofThomas Broome;Exhibit7, Declaration of Robert Cross; Exhibit 12, Declaration ofDavid Irving; Exhibit 13, Exhibit of Dwight Jackson.) These conditions, and their impact upon petitioner’s deteriorating mental condition, are described inmore detail in Claim 5, which is incorporated by reference asiffully set forth herein. The court was aware that these harsh conditions of confinement continued unabated during the period they represented petitioner, because counsel complainedto the court about these conditions and their detrimental effect upon petitioner’s mental state. (See, e.g., RT 640-641, 2404-2407, 3060-3033, 3723-3730.) 6. The court also was aware or should have been aware that petitioner had a longstanding reputation within thejuvenile and adultjustice system in Alameda County for being mentally ill. (Exhibit 6, Declaration of Thomas Broome; Exhibit 7, Declaration of Robert Cross.) Moreover, numerouswitnesses had madeprior statementsortestified at the preliminary examinationthat petitioner was “crazy”andthat this reputation was common knowledge in the East Oakland neighborhoodsin which he wasraised and lived. 62 7. The judge also was aware that the court had experienced great difficulty in obtaining counselforpetitioner becauseofpetitioner’s reputation within the legal community for being extremelyparanoid and, consequently, difficult to deal with. (Exhibit 30, Declaration of SpencerStrellis.) As the court itself later stated (RT 77-79), the court was also awareofpetitioner’s numerous pro per motions, petitions, and other filings, many of which reflectedhis intellectual deficits, paranoid and delusional thoughtcontent, and impulsive and perseverative tendencies. The judge also was aware that petitioner had made a numberofMarsden motions on groundsthat wereat best unusual and at worst bizarre. The judge also was awarethat petitioner had soughtto disqualify the entire Alameda County Municipal and Superior Court bench from presiding overhispretrial andtrial proceedings,and that he had further soughtto disqualify all members ofthe Alameda Countybar from serving as his counsel. The theory in both ofthe later motions wasthat the parties petitioner sought to disqualify were engaged in a vast conspiracy against him. 8. Moreover, even if the judge had been unawareofsubstantial evidenceofpetitioner’s incompetencepriorto his assignmentto the case, he certainly became aware of it in the fall of 1988, months prior to the commencementoftrial, when petitioner movedto represent himself pursuant to Faretta v. California (1975) 422 U.S. 806. When the motion came before the judge on November 9, 1988, the judge gave petitioner a Faretta questionnaire to fill out that evening in his jail cell, (RT 18-19; see California Judges Benchbook, Criminal Pretrial Proceedings (CJER/CEB 1991) §1.49.) On Wednesday, November16, 1988, the court continued the Faretta motion to Monday, November21, 1988. (RT 44). Thetrial court 63 indicated that it would considerthe record pertainingto petitioner’s previous Marsden motions in evaluating petitioner’s motion to proceed as his own attorney. (RT 50-54). Thetrial court appointed Dr. Joseph Sattén, pursuant to Evidence Code section 730, to evaluate petitioner on the sole issue “‘whether he had the mental capacity and could waivehis constitutional right to counsel with a realization of the probable risks and consequencesofhis action.” (RT 59). The court then continued the Faretta proceedingsuntil the following Monday. (RT 60.) 9. However, on Thursday, November17, 1988, petitioner appeared in court with counsel to litigate issues related to petitioner’s conditions of confinement. (RT 63-64.) Petitioner began the proceedings by moving to havehis attorneys sit in the jury box on the grounds of conflict of interest. (RT 64.) He then asked for appointment ofnew counselto represent him “not only through these proceedingsbutalso through anyproceedings concerning my 1368 motion that the Court is addressing to.” (RT 66.) The court stated that it had no 1368 motion beforeit, and petitioner respondedthatit was his understanding that the court had ordered a competencyhearing the previous day. (RT 66.) The court stated that it had ordered a psychiatric examination solely on the question of “whether or not you have the mental capacity to waive yourright to counsel and proceedin pro per.” (RT 66.) 10. Petitioner then requested that he be permitted to retain his own psychiatric experts and asked for a three-week continuanceto permit them to examine him. (RT 68-69.) Petitioner further requested “a full-blowntrial” on the issue of his competenceto stand trial. (RT 70.) Counsel did not join in the competence motionbutindicatedthat “once the Faretta motion is dealt with, then the issue of whether a 1368 is appropriate or not is an issue that 64 need be looked at, the issue of whether a plea of not guilty by reason of insanity oughtbe enteredor not[is] an issue should be looked at.” (RT 71.) 11. Accordingly, the trial judge was awareat this point that trial counsel and his predecessors as counsel entertained not only a substantial doubt regarding petitioner’s competence to proceed with trial, but also a doubtasto petitioner’s sanity. The court must accord great consideration to - the opinion ofdefense counsel regarding hisclient’s competence because “an expressed doubt in that regard by one with ‘the closest contact with the defendant,’ is unquestionably a factor to be considered”in deciding whether competency proceedings are required. (Drope v. Missouri, supra, 420 U.S. at p. 177, n. 13.) 12. On November 21, 1986, the trial court denied petitioner’s motion to represent himself. (RT 75-85). The court determined that the petitioner was not mentally competent to waive counsel and represent himself. The court stated that petitioner’s “mental condition in the Court’s opinion precludesrealistic assessmentofthe need for assistance and risk of waiving counsel.” The court notedthat petitioner had repeatedly alleged that conspiracies against him had been formed by variousparties within the judicial system,asserting at varioustimesthat the court, the district attorney, the defense attorneys and formerattorneys, the police, the public defender’s office, and others had conspired against him. The court noted that petitioner had allegedthat the district attorney had falsified records, that the sheriff's department had falsified the ballistics report, that jail officials were monitoring interviews with psychologists by placing listening devices in the room,that petitioner “engagesin verbaldisplays and interrupts andinterferes with the conductofthe courtroom proceedings,”that he accusedthebailiffof 65 tampering with his papers, and that he had askedhis attorneysto sit in the jury box. (RT 77.) The court further recognizededthat petitioner had made a numberofmotions “which I am reluctantto describeas frivolous but make really no sense.” The court particularly noted petitioner’s motion to recuse the entire Alameda County Municipal and Superior Court bench, his motion to renew peremptory challenges each day, and his motion to investigate the victims on the ground of perjury. (RT 78-79.) The court also cited petitioner’s own repeated assertions ofmentalincapacity, suchasthe factthat he had asserted on November 18" that he was unable to proceed with his Faretta or other motions becauseofstress, the fact that on October 4 he had informed the court he was “at a total mental breakdown” and accused the judgeofcausing him “mentalstress”and“psychological, mental strain.” (RT 79.) The court recognized that petitioner had himselfassertedeither present insanity or incompetencetostand trial under Penal Code section 1368, and that he had requested counselin a trailing matter after being permitted to represent himself. (RT 79-80, 82-83.) The court then found as follows: I find Mr. Welchis a defendant who doesnot appreciate the extent of his own disability and, therefore, cannot be fully aware ofthe risk of self-representation. I find the disability of Mr. Welch significantly impairs the capacity to function in a courtroom. I further find that one ofthe defendant's reasonshe wishesto dispense with defense attorney is a paranoid distrust of everyone connected with thejudicial system. This is further evidence to this Court that he lacks the mental capacity to truly waive his right to counsel. Further, the defendant's history of improper if not irrational behavior in speaking in the courtroom in the 66 Marsdenhearing, 995 hearing further indicates doubtto this Court that he has the mental capacity to waive counsel. (RT 84-85). 13. The trial court reiterated that petitioner had failed in his showing that he was competent to represent himself and waive counsel, stating: Youhavefailed in your showing, andI have decidedthat a defendantfacing the potential death sentence requires the assistance of competent counsel. You do not have the mental capacity to waive. (RT 86). 14. The court’s own findingsat this point clearly showed the court was not merely aware of substantial evidence of incompetence, but had also concluded that petitioner was not actually competent. Accordingly, a competency proceeding was compelled as a matter of due process under Penal Code section 1368, Dusky v. United States (1960) 362 U.S. 402, and Pate v. Robinson (1966) 383 U.S. 375. 15. Although the court should have ordered competency proceedingsat the time of the Faretta hearing, the court also should have ordered competencyproceedings at manyotherpoints duringthetrial when substantial evidenceofpetitioner’s incompetence becameevident. These pointsinclude, but are not limited to, the following: (1) when petitioner complained of the lack ofadequate mental health care (RT 643-645); (2) whenpetitioner alleged 67 that a fellow inmate, Michael Willis, had been called the victims’ families and stirring up trouble (RT 647); (3) when healleged that the sheriffs deputies had been going throughthe legal papersin his cell while petitioner wasin court (RT 762-763); (4) whenpetitioneralleged that the sheriff's department was monitoring attorney-client discussions (RT 1572); (5) when petitioner again questioned his own mental competence (RT 1949); (6) when the court reiterated that petitioner was incompetentto represent himself(RT 2269);(7) when petitioner requested discovery of information regarding Willis, the alleged informant (RT 2404-2407); (8) when petitioner complained that sheriff's deputies in the jail were harassing and insulting him andtrying to provoke him into committing violent acts (RT 3060-3063); (9) when petitioner became distraught over one of the court’s rulings, used profanity in addressing the court, and allegedly urinated in the “well,” a stairwell which connected the courtroom with thejury deliberation room and holdingcells on the next floor (RT 3151, 3157-3158, 3171); (10) when the court was so perplexed bypetitioner’s commentsin court thatit had to ask defense counsel if they had “any idea what he’stalking about?” (RT 3222-3223); (11) when petitioner explained that on the previous day he had been incompetent and incoherent, requested a continuance for medical care, and complained that he wassupposedto haveseen a psychiatrist but could not because the deputies 68 "were monitoring the interview room (RT 3723-3730); (12) when petitioner was unable to control himself, could not stop talking, hadto be removed from the courtroom; and was overheardbythejurorsyelling after he was removed (RT 4582-4583); (13) when petitioner made legally improper motions and turned to face the courtroom wall when apparently addressing the court (RT 4932); (14) whenpetitioner again lost control, acted irrationally, spoke incoherently, had to be removedfrom the courtroom, poundedonthe wall of the “well,” and again urinatedin the well (RT 4953-4965, 4985); (15) when petitioner insisted on taking the stand (RT 5000); (16) whenpetitioner complained that he could not understand the proceedings and did not understand whythe defense was impeaching its own witness (RT 5261); (17) whenpetitionerinterrupted the court’s instructions to thejurors regardingre- reading testimonyby objectingto ex parte communicationswith thejury (RT 5628); (18) when petitioner made statements that were so incomprehensible that the court could not understand whathe wassaying (RT 5915); (19) when petitioner apparently decided notto present mitigating evidence (RT 5916- 5919); (20) whenpetitioner lost self-control and had to leave the courtroom during the testimony of a defense mental health expert (RT 5950); and (21) when Dr. Benson revealed in testimony that he was unable to interview petitionerbecausepetitionerbelieved the interview room was buggedandthat 69 everything they said would be monitored and reportedto thedistrict attorney (RT 6005). 16. Where,as here,a trial court is aware of substantial evidence ofincompetence yet declines to hold a competencyhearing and proceedsto try and convict the defendant, the trial court’s error is reversible perse. (People v. Pennington, supra, 66 Cal.2d at p. 511.) Furthermore,a trial held when a defendantis “mentally incompetent in fact” is an act in excess of jurisdiction and a legal nullity. Such trial, and any judgmentor sentence resulted from it, may be successfully challenged by extraordinary writ. (Jn re Dennis (1959) 51 Cal.2d 666.) 17. Petitioner was mentally incompetent in fact, and histrial, judgment, and sentenceare a legal nullity. Had a competency hearing been orderedbythe court, all proceedings would have been halted andpetitioner would have been committed to a state mental hospital. (Pen. Code §1370.) 18. Prior to and duringpetitioner’strial, petitioner was examined by two mental health professionals retained by the defense: Dr. William Pierce, a psychologist; and Dr. Samuel Benson,a psychiatrist. Both ofthese mental health professionals concluded that petitioner was mentally incompetent in fact. 70 | 19. Dr. Pierce was retained byThomas Broome,petitioner’s prior counsel, and asked to conduct a psychological evaluation of Mr. Welch for three purposes:1) to generate a psychological profile that would be relevant to assessing and presenting any mental health defenses; 2) to prepare for the penalty phaseif the case should proceed to sentencing; and 3) to determine ifpetitioner was competentto aid and assist counsel. Subsequently, when the court replaced Mr. Broome with SpencerStrellis, Dr. Pierce continued to advise the defense. (Exhibit 22, Declaration of William Pierce, Ph.D.) 20. Dr. Pierce conductedclinical interviewsofpetitionerprior to trial, in 1987 and 1988. He also reviewed relevant information about petitioner’s social andpsychological history, reviewed documentsrelevant to the charges againstpetitioner and excerptsoftrial transcripts, consulted with counsel, and consulted with Dr. Benson. Followingthis evaluation, Dr. Pierce concludedthat petitioner was not competentto aid andassist counsel due to the nature, severity, and effect of the multiple mental impairments from which he suffers. Dr. Pierce informedpetitioner’s trial counselthat, in his opinion, petitioner was incompetentto aid andassist counsel. (Exhibit 22, Declaration of William Pierce, Ph.D.) 21. Dr. Pierce concluded that petitioner suffers from a constellation of symptoms that significantly impair his ability to think 71 rationally and logically and to understand events around him. He believed that petitioner experienced paranoid and grandiose delusions, that are a hallmark of psychotic thinking, and that petitioner was unable to monitor, modulate, or control his impulses in a mannerthat allow him to considerthe consequences of his actions. Pierce felt that petitioner demonstrated tangential thinking, impaired insight, bizarre behavior, and illogical and disordered thinking. Healso felt petitioner was preoccupied and obsessed with irrational and delusional beliefs that compromisedhis reality testing throughout the course of the proceedings against him. (Exhibit 22, Declaration of William Pierce, Ph.D.) 22. Dr. Pierce believed that petitioner’s delusions were pervasive and affected every aspect ofhis thinking relating to the charges against him, his relationship with defense counsel, the role ofthe court, the motives ofthe prosecution and presidingjudges, his understandingofthe law andfactsin his case, the relevancy ofevidence,and hisability to participate meaningfully in courtroom proceedings and act in his own best interests. Dr. Pierce also determinedthat due to his multiple mental impairments,petitioner was unable to comprehend andfollow basic rules that govern courtroom proceedings and attorney-client relationships. Petitioner was unable to differentiate between harmful and helpful information, appreciate strategic considerations that 72 routinely develop during the course of a criminaltrial, to view and weigh evidence against himselfrealistically, to understand the consequences of decisions he made,to keep pace with courtroom proceedings, and to conduct himself appropriately. (Exhibit 22, Declaration of William Pierce, Ph.D.) 23. In Dr. Pierce’s view, petitioner’s mental impairments dominatedhis behavior and actions throughoutthe courseofthe proceedings against him. Petitioner’s paranoid and grandiose thinking prevented him from recognizing that his defense attorneys were acting in his best interests. He believed, despite evidence to the contrary, that he was the victim of an overarching conspiracy aimedat denying him basic constitutional rights. He viewedall developments, events, relationships, and proceedingsagainst the backdrop of a conspiracy and was unable to think rationally. He believed that his defense attorneys, the presiding judge, prosecuting attorney, courtroom personnel, law enforcement, counsel for his co- defendant, and state forensic experts were part of the conspiracy. His paranoid delusions about the conspiracy against him resulted in Mr. Welch’s repeated motions to dismiss counsel and represent himself, to disqualify thejudges assigned to his case, and to replace the district attorneyprosecuting his case. (Exhibit 22, Declaration of William Pierce, Ph.D.) 73 24. Mr. Welch also demonstrated bizarre behavior overwhich he hadlittle or no control. Hefelt he was being druggedand his food wasbeing poisoned. Heurinated in the stairwell, shouted obscenities, professed to be knowledgeable in the law, inserted irrelevant and at times unintelligible comments during courtroom proceedings, and interrupted defense and prosecution witnesses. He was unableto control his emotional responsesto stressfulsituations andhadrepeated outbursts during courtroom proceedings. He misperceived reality and interpreted neutral and helpful actions as harmful. He could not heed warnings by the court and was removed from court on numerousoccasions. He thoughthis confidential communications with his attorney and mentalhealth experts were being monitored, despite a court order specifically prohibiting jail staff from monitoring his communications. He requested that the court seize all evidencein his case and turn it over to the U.S. Marshall so that the Department ofJustice could investigate the conspiracy against him. He movedto disqualifyjudges, the entire bench in Alameda County, and the district attorney’s office because they were persecuting him. (Exhibit 22, Declaration of William Pierce, Ph.D.) 25. Dr. Pierce also found that petitioner was unable to communicate and to process information rationally. His thinking was 74 tangential, perseverative, confused, and at times, concrete. Petitioner was unable to movefrom one topic to another and persisted in repeating the same thought, even after the thought had been clearly rejected by others. He was unable to discern significant from insignificant facts, especially as they related to his defense. He had no insight or awareness of his mental impairments. His ideas and strategies were not groundedinreality and, at times, were absurd. Oftentimes, his statements were nonsensical. For these reasons, Dr. Pierce concludedthat petitioner was unable to understand the proceedings or to assist counsel ina rational mannerin the defense of his case, and wastherefore incompetentto stand trial. (Exhibit 22, Declaration of William Pierce, Ph.D.) 26. Dr. Samuel Benson,the psychiatrist retained by Mr. Strellis to evaluate petitioner, was asked by petitioner’s counsel to conduct a comprehensive psychiatric evaluation ofMr. Welchin orderto determine Mr. Welch’s competencyto standtrial, his mentalstatusat the timeofthe offense, and the presenceofstatutory and non statutory mitigating factors. conducted five clinical interviews of petitioner in 1989. He also reviewed school records, juvenile court records, adult criminal history, prison records, excerpts of transcripts of the preliminary hearing and trial proceedings showing petitioner’s behavior during trial, a factual summary of events 75 surroundingthe offense, police and sheriffreports, and hospital records, and consulted with petitioner’s counsel and Dr. Pierce. 27. Dr. Benson foundthatpetitionermetthe diagnostic criteria for serious mental disorders, including delusional paranoid disorder (paranoid type) and substance abuse disorder. He also exhibited learning disabilities, speecharticulation disabilities, and symptoms of impulsivity and lack of controlthat are characteristic ofneurologic deficits, commonlyreferredto as brain damage. (Exhibit 3, Declaration ofSamuel Benson, M.D.) Dr. Benson determinedthat petitioner was not mentally competentto standtrial. 28. Dr. Benson determinedthat the pervasive andpersistent nature of petitioner’s mental illness robbed him of the ability to participate meaningfully in the proceedings againsthim,to assist his attorneysin his own defense, and to understandrationally and factually the charges against him. In Dr. Benson’s view, the most prominent feature of petitioner’s mental disease washis delusional thoughtprocess that extended into every aspect of his life and incorporated his relationships and perceptions of himself and others. Petitioner was obsessed and preoccupied with paranoid and grandiose delusionsthat revolved around a universal conspiracy against him. He showedgreat vigilance concerning the possible implication of every action, word, or deed andits particular relevance to the universal conspiracy 76 against him. Petitioner was also excessively rigid about every beliefhe held, even whenit was contrary to clear evidence. Petitioner’s mental disorder invaded core aspects of his thinking including his ability to appraise, to evaluate, to forecast, and to plan. It resulted in bizarre,irrational, illogical, self defeating and nonsensical behavior throughoutthe course ofhistrial. (Exhibit 3, Declaration of Samuel Benson, M.D.) 29. Dr. Benson discoveredthat petitioner’s persecutory delusions were elaborate andreflected a series ofconnected themesofbeing conspired against, spied upon, poisoned and drugged, maliciously maligned, threatened, harassed, and obstructed. His delusions caused him to believe that he was being malevolently treated even when others respondedto him neutrally or favorably and to believe that minorslights represented major threats to his well being. He was unable to differentiate between significant and insignificant facts or perceived threats and reality. He had noinsight into his delusions and was not aware that his behavior was the result of mental impairments. (Exhibit 3, Declaration of Samuel Benson, M.D.) 30. Dr. Benson believedthat petitioner’s symptom complex was compoundedby his compromisedintellectual functioning and his severely impaired ability to control his behavior and respond appropriately to events around him. Atthe time Dr. Benson evaluated petitioner, he did not have 77 benefit of of neuropsychological testing that would have shed light on the presence, severity and effect of neurologic deficits that contributed to petitioner’s impulsivity, buthe strongly suspectedthat his mental impairments were organic in nature. (Exhibit 3, Declaration of Samuel Benson, M.D.) 31. Dr. Benson also observedpetitioner’s bizarre, unpredictable, and confused behavior in the courtroom. Henoted thatpetitioner urinated in the stairwell outside the courtroom, shouted obscenities, interrupted proceedings,paced, talked to the wall, laughed inappropriately, and stood or sat at random intervals. It became obvious to Dr. Bensonthat petitioner lacked theability to understandthe rules ofthe court and to conduct himself in a mannerbefittingjudicial proceedings. He believed all participants in the trial— including thejudge, defense counsel, defense witnesses, prosecution witnesses,bailiff, spectators, jurors, media representatives, and courtroom personnel — werepart of a larger conspiracy against him. Hebelieved he was being drugged and his food was being poisoned. He attempted to represent himself, dismiss his counsel, disqualify the judge and prosecutor, cross examine defense witnesses, and introduce inadmissible evidence without understanding the consequencesofhis actions. His understanding of the law was odd,irrational andillogical. He was unable to understand and follow instructions of the court and his counsel and to acceptrules of the 78 court that were contrary to his idiosyncratic notions of the law. He was unable to comprehend his counsel’s strategic considerations and viewed counsel’s actionsonly in the contextofhis delusions. (Exhibit 3, Declaration ofDr. Samuel Benson.) 32. Dr. Benson’s calculusofpetitioner’s inability to aid andassist counsel took into account petitioner’s presentation during his clinical interviews with him, petitioner’s behavior in court, his relationship with counsel as well as counsel’s efforts to accommodatepetitioner’s concerns, and the nature ofpetitioner’s longstanding mental disease. Dr. Benson found that petitioner lacked the capacity to makejudgments and decisions aboutthe charges and proceedings against him independently of his delusions. His ability to appraise the legal defenses available to him was decimated byhis unshakable delusion that the entire judicial system was part of a larger conspiracy against him. He was unable to managehis behaviorin court. His delusions distorted and definedhis relationship with his counsel. He was not able to appraise the roles of various participants and believed they wereall participating in the conspiracy against him. Whenheagreedto onestrategy or course ofaction, he was unableto adhere to the agreement. His delusions caused him to become overwhelmed with suspicion, obsessive thoughts of 79 betrayal and intense emotions. (Exhibit 3, Declaration of Dr. Samuel Benson.) 33. Dr. Bensonalso ascertainedthat petitioner could not foresee or comprehend the likely outcome of his disruptive behavior on those occasions whenhewasunable to control his outbursts in court in the presence of the jury. He lacked the capacity to confront appropriately and challenge realistically prosecution witnesses and often confused defense witnesses with prosecution witnesses. Dr. Benson believed that petitioner’s persistent pattern of erratic behaviorin court reflected his mental deficits rather than volitional choices. His significant brain damageacted synergistically with his mental disorder when proceedings focused on events that were part ofhis delusional system. He becamedistraught, agitated, and confused when the court or other participants (including his defense counsel) were unable to view an eventor fact in the same delusional frame of reference as he. He obsessed and perseverated on his delusional interpretations of events and facts and lackedthe ability to abandon a defeated idea in order to move on to more relevant topics. (Exhibit 3, Declaration of Dr. Samuel Benson.) 34. The contemporaneousopinionsofDr. Pierce and Dr. Benson regarding petitioner’s condition have been confirmedby recently performed neuropsychological testing, which reveals that petitioner suffers from 80 substantial organic impairmentsaffecting the frontal lobes of his brain. In testing conducted overfive separate days between Marchand June, 2002,Dr. Karen Froming administered intelligence and neuropsychological tests, including a complete Halstead-Reitan battery, and concluded that petitioner has an IQ ofonly 78, which by itselfwould place him in the borderline range of intelligence. However, Dr. Froming determinedthat petitioner’s frontal lobe impairments have left him with severely limited memory functions’” and equally severe learning disabilities which she found “have grave consequences for his appreciation of courtroom events and demeanor.” (Exhibit 3, Declaration of Dr. Karen Froming.) 35. Dr. Froming foundthat petitioner “exhibits severe impairments in attention” andthat “these impairmentsinvolve both his ability to maintain attention, select what matters to attend to, and payattention to two things at once.” Dr. Froming also found that petitioner also has problemsin both verbal and nonverbal memory and “requires repetition to encode even a marginal amountofinformation.” In her conclusion, Dr. Fromingstated that: Mr. Welch’s behavioral regulation, as assessed by rapid complex motortasks, is impaired. He has defective smell '2/ On the Wechsler Memory Scales, tests of verbal and visuo- spatial memory,petitioner’s performance was so woefulthat his scores consistently placed him in onlythe first or second percentile. 81 identification, indicating orbitofrontal impairments. Impairmentsin this area also underlie behavioral control. He perseverates on details he does recall or his own idiosyncratic recollection ofmaterial. Based on transcript review as well as previous doctor’s reports, these deficits were clearly present in Mr. Welch’s courtroom behavior. (Exhibit 10, Declaration of Dr. Karen Froming.) 36. Petitioner’s organic brain impairments may stem from a combination of (1) head trauma suffered prenatally, in infancy, and in childhood as the result of physical abuse inflicted upon petitioner and his mother bypetitioner’s father, and (2) handprenatal and life-long exposure to neurotoxicants. (Exhibit 21, Declaration ofSarah Perrine; see also Claim 22 and associated exhibits.) 37. |The contemporaneousopinion of Dr. Pierce and Dr. Benson is further supported by a recent psychiatric evaluation performed by Pablo Stewart, M.D. Dr. Stewart met with petitioner at San Quentin State Prison in June, 2002, and foundpetitioner to be “suspicious, paranoid and delusional.” Dr. Stewart noted that petitioner attempted to measureall questions against his delusional frame of reference, which expanded to incorporate all exchanges, considerations, and topics of the interview. Petitioner demonstrated ideas of reference, pressured speech, intrusive thoughts and inappropriate affect, laughing loudly at insignificant and non-humorous comments and becoming upset at benign questions. Petitioner was preoccupied with ideas ofreference about an event that occurred in histrial in 1989 when a court reporter or clerk had a desk ornamentthatpetitioner believed had special meaning to him and his case. Oncepetitioner began describing the ornament, a kind ofdoll, he perseverated on the subject and could not move on to discuss another event or subject. According to 82 petitioner, the ornament wasproofthat a global conspiracylinked his 1989 trial to earlier charges against him in the same county, that courtroom personneldiscussedhis case outside the courtroom,thatthe courtanddistrict attorney wereprejudicedagainstpetitioner, and that his own defense attorney participated in a conspiracy against him. Petitioner was not able to answer questions about other matters or to change subjects. Petitioner became increasingly anxiousashe discussedthe special meaningofthe doll to hislife and wasobsessed with explainingit to Dr. Stewart. (Exhibit 28, Declaration of Pablo Stewart, M.D.) 38. Dr. Stewart foundthat petitioner’s responsesto his questions reflected grandiose and persecutory delusions. Petitioner believed he had garnered enemiesbecauseofhis stature as an independentthinkerwho would not bend to those in power. He believed that a far reaching conspiracy controlled all events related to his case in and out of courts. Petitioner interpreted current events on death row, actions of the guards, and relationships with his attorneys as part of the ongoing conspiracy and was vigilant to any detail that supported his delusion. (Exhibit 28, Declaration of Pablo Stewart, M.D.) 39. In Dr. Stewart’s view, petitioner’s concentration and attention were grossly impaired. He was not able to focus on any aspect of the interview for more than a few seconds or minutes before returning to his ideas of reference. Intrusive thoughts of the doll interrupted his responses and he was extremely distractible. His thinking wastangential. Petitionerwas hyper-vigilant and respondedto any intervening factor such as noises coming from outside the interview room. Judgmentandinsight were impaired with no recognitionthathis beliefs were delusional, idiosyncratic,or irrational. He 83 had no ability to recognize that his thought process wasillogical and attempted to debate nonsensical topics. (Exhibit 28, Declaration of Pablo Stewart, M.D.) , 40. Dr. Stewart concluded that petitioner’s mental illness and neurologic deficits were serious and longstanding. Dr. Stewart found that petitioner’s delusional thoughts constitute realityto him,andhe has noinsight into the nature and severity of his mental impairments. Dr. Stewart found that petitioner’s mental impairments formedthe core basisofhis bizarre and idiosyncratic understanding ofrelationships with others. Petitioner is unable to think rationally, logically, and sensibly. Fear, anxiety, suspicion, and paranoia inform his thought process. Compromisedintellectual functioning and brain damagelimit andrestrict his ability to understand events around him. Global paranoia intrudesinto his assessment and responseto daily tasks and interactions, leaving him unable to comprehendrationally the motives of others. Dr. Stewart formed the opinionthat petitioner’s behaviorat the time of the offenses was the product of a mosaic of mental impairmentsthat included limited intellect, neurologic deficits, disordered thinking, and delusional disorders. (Exhibit 28, Declaration of Pablo Stewart, M.D.) 41. The findings of Drs. Froming and Stewart provide further support for the contemporaneousconclusions ofDr. Pierce and Dr. Benson that at the timeoftrial, petitioner was not mentally competent. Accordingly, the court’s failure to order a competence proceeding sua sponte not only violated the procedural requirements of Pate v. Robinson and Penal Code sections 1368 et seq., but also subjectedpetitionerto a trial while he was not competentto proceed,in violation of his federal constitutional rightto trial only when competent. Because a person maynotbetried, convicted, or 84 punished while incompetent, this error is prejudicial per se. (Patev. Robinson, supra, 383 U.S. 375.) 42. In addition, while no showingofprejudice is required under Pate and its progeny, trial of petitioner while factually incompetent was extraordinarily prejudicial to the outcome in his case. Petitioner’s impulsivity, perseveration, delusions, and other frontal lobe symptoms contributed substantially to the chaos caused by the court’s imposition of a bizarre form ofhybrid representation, preventedpetitioner from cooperating with and assisting counsel in his own defense, and permitted him to be depicted in an unfavorable light before the finder offact. 43. Trial of petitioner while incompetent wasalso prejudicial because the prosecutor exploited the supposed lack of evidence of mental illness in his closing argumentsat the guilt and penalty phases, on which the jury relied in reachingtheir verdicts, and whichpetitioner incorporates herein by reference. At the conclusionofthe guilt phase, the prosecutor arguedthat petitioner was “not delusional” (RT 5520), and arguedthat petitioner was “rational and clear” on the basis of his cross-examination during the guilt phase. (RT 5564-5564, 5567.) At the conclusion ofthe penalty phase, the prosecutor also improperly minimized the impact of any mental defense, arguing that “Mr. Welch would haveto have an IQ oftwo and be a zombieto excuse his acts by a mental defense.” (RT 6123.) 44. The court’s errorin failing to order a competencyproceeding sua sponteviolated his rights under the Eighth and Fourteenth Amendments and the requested relief is required. 85 D. Eachofthese errors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentstothe United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 3: Judicial Error--Petitioner’s Rights Were Violated by the Court’s Imposition on the Defense of an Unworkable Form of Hybrid Representation. | A. Petitioner’s conviction and sentence of death are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, 16, and 17 of the California Constitution because he was deprived of due process, equal protection, the right to counsel, effective assistance ofcounsel, and a reliable determination of guilt and penalty during thepretrial, guilt, penalty, and sentencing phases of his trial when the court unilaterally imposed upon the defense a hybrid form oflegal representation permitting petitioner to represent himselfat times but requiring him to speak only through counselat others. The court initially stated that it would permit petitioner to make motionson Fridays but require that he be represented by counsel during the other days of the week. However, this procedure was quickly abandoned, and throughout the proceedingsthe court alternatelyheard orrefused to hear petitioner’s motions and objections virtually at random. This bizarre form of hybrid legal representation, and its chaotic and inconsistent enforcement by the court, contradicted the court’s ruling denying petitioner’s Faretta motion,interfered with the attorney-client relationship, undermined defense counselbydepriving 86 them of control of the case, rendered the defense utterly chaotic, confused petitioner and his counsel with respect to who wasactually representing petitioner, and encouragedpetitioner to attempt to participateas his own counsel throughoutthe case, thereby prejudicing petitioner’scase. B. The following United States Supreme Court decisions, interalia, in effect at the time the errors occurred, are presented in support ofthis claim: Powell v. Alabama (1932) 287 U.S. 45 (indigent capital defendanthasright to have effective counsel appointed and to be heard through counsel); McMannv. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (right to effective counsel appliesatall phasesofcapital trial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendmentviolated, and prejudice need not be shown,if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed whencounsellabors underconflict of interest); Hill v. Lockhart (1985) 474 U.S. 52 (Strickland standards apply to representation provided prior to trial, such as during plea proceedings); Faretta v. California (1975) 422 U.S. 806 (defendant has Sixth Amendmentright to self-representation); McKaskle v. Wiggins (1984) 465 U.S. 168 (core of Faretta right is the right to control the defense presented to the jury, and appointmentofstandby counsel cannotbe permitted to underminethis right); Maine v. Moulton (1985) 474 U.S. 159 (after arraignment, accused has Sixth Amendmentright to speak through “medium”ofcounsel; governmentmaynot interfere with that right); Perry v. Leeke (1989) 488 U.S. 272 (government 87 maynotinterfere with defendant’s right to counsel); Geders v. United States (1976) 425 U.S. 80 (same); Massiah v. United States (1964) 377 U.S. 201 (same); Jn re Murchison (1955) 349 U.S. 133 (any procedure which would offer temptation to average man asajudge to skew balance betweenstate and accused denies due processtothe latter); Liteky v. United States (1994) 510 U.S. 540 (judicial bias establishedby showing ofdeep-seated favoritism even ifno extrajudicial source offavoritism is shown); Taylor v. Hayes (1974) 418 U.S. 488 (judge may becomeso embroiled in controversyat trial he can no longer maintain balance between accused and state and should recuse himself); Mayberry v. Pennsylvania (1972) 400 U.S. 455 (Gudge whois repeatedly vilified by defendant duringtrial becomes involvedin a running controversy and maylose impartiality); Ake v. Oklahoma (1985) 470 U.S. 68 (defendant entitled to expert assistance, including mental health expert assistance, to prepare for and testify at trial) Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentenced on basis of unreliable information); Beck v. Alabama (1980) 447 U.S. 625 (Eighth Amendmentalso requires heightenedreliability in guilt determination in capital cases); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right). C. Thespecific facts supporting this claim, among others to be developed after adequate funding, discovery, investigation, and an evidentiary hearing, are as follows: 1. Petitioner incorporates by referenceas if fully set forth herein the facts and law set forth in Claims 2, 4, 5, 19, 20, 28, 34, and 41. 88 2. On Wednesday, November 23, 1988, prior to the commencement of jury selection and in spite of its earlier denial of petitioner’s Faretta motion, the court announcedthat it would henceforth require a unique and astonishing form of hybrid representation permitting petitioner to represent himself in court at some times but through counselat others. The court told petitioner that “[dJuring the course ofthetrial the conductofthe trial will be performed bytheattorneys. In addition, I’m going to provide that every Friday, probably from eleven to eleven-thirty until the afternoon, depending upon thesize ofmy calendar,I will reserve it to you to makeany additional motion you may want to make.” 3. Although petitioner himself objected that this plan was unacceptable, his counsel failed to object to, and acquiesced in, this remarkable form ofrepresentation. (RT 156.) From that point on, the court arbitrarily either recognized or refused to recognize petitioner as counsel, sometimesruling on his motionsor objections and sometimesrefusing to do so, without regard to the day of the week. The court’s procedure created utter chaos in the defense, leaving petitioner and his counsel to present . conflicting defenses and confusing them with regard to who wasin control of the defense. 4. Moments after issuing the ruling that petitioner would be recognized only on Fridays, and in spite of the fact that this was a Wednesday, the accepted petitioner’s handwritten pro per motion for a continuance and denied it, thereby contradicting the court’s ruling ofthat morning andindicating that the court would sometimespermitpetitioner to represent himself on days other than Fridays. (RT 162.) The court then permittedpetitioner to renew his motion“to participate in the presentation of 89 this defense,”but contradicteditselfonce again by reiterating that petitioner would only be heard in court on Fridays and would otherwise be permitted to speak only through counsel. (RT 164-165.) . 5. That afternoon, the court again advised petitioner he would be heard only through counsel and refused to rule on petitioner’s objection to admission of evidence in the form oftranscripts. (RT 183-184.) When petitioner attempted to withdraw his in limine motion, the court informed petitioner he lacked standing to address the court and stated that the court would not pay any attention to anything he had to say. (RT 185-186.) 6. On the morning of Tuesday, November 29, petitioner again requestedleave to withdrawhis in limine motion,and this time the court ruled on the motion, denying it. (RT 187.) However, whenpetitioner attemptedto support his motion with additional case law, the court refused to hear petitioner and stated that he could not “participate in the conductofthetrial except on Fridays.” (RT 187-188.) Petitioner then objected to the use of transcripts as evidence, and the court declinedto rule on this objection. (RT 188.) 7. That afternoon,petitioner asked to address the court and was permitted to object at length to what he perceived to be his counsel’s ineffectiveness and the denial ofhis Sixth Amendmentrights. The court then refused to give petitioner the right to speak except on Fridays. (RT 206.) However, the court then permitted petitioner to state his objection in full, speak again at length on the issue, citing two federal cases, and argue prejudice from counsel’s perceived deficiencies. (RT 207.) The court then cut him offandstated that petitioner could make such a motionin writing and the court would rule onit on Friday. (RT 208.) 90 8. On the afternoon of Wednesday, January 11, 1989, the court permitted petitioner to speak regarding errors madein a supplemental points and authorities filed by counsel regarding a motion to suppress evidence. (RT 877-879.) 9. On Tuesday, January 17, the court permitted petitioner to speak at length, objecting to what petitioner viewedas extensive security in ~ the courtroom andthepotentialprejudicial impactthis might have on his case. (RT 976-978.) At the conclusionofpetitioner’s presentation, the court asked petitioner, “What is your motion?” (RT 978.) Petitioner stated that the security being imposed in the case was excessive, and the court ruled that “Your motion to decrease the security is denied. There will be twobailiffs in the courtroom andplainclothes in the audience.” (RT 979.) 10. Petitioner then moved for an order that his shackles be removed before he entered the stairwell leading to the court, to ensurethat jurors whoalso used that stairwell would not see him in a shackled condition. (RT 979.) The court declined to so order, ruling that “They will be removed before you cometo court, not — they can transport whatever waythey feel security requires. Myonly requirementis when you comeinto the courtroom you will not be shackled.” With respect to the dangerthat jurors might see him in shackles outside the courtroom,the court ruled, “We will work that out.” (RT 980.) 11. Petitioner then filed a written motion to strike the special circumstancesand written points and authorities. (RT 980-981.) The court read the motion and authorities and permitted petitioner to address the motion. Whenpetitioner submitted the matter, the court ruled that “Your motion to strike the special circumstance is denied.” (RT 981.) When 91 petitioner attempted to reopen the matter, arguing that the court lacked sufficient factual informationto rule at this point, the court reiterated that the motion had been denied. (RT 982.) 12.. Petitioner then asked to address the change of venue motion, and the court stated “That will be argued tomorrow morning.” (RT 982.) Petitioner then requested that he be permitted to be presentin the courtroom before prospective jurors were admitted to the court. (RT 985.) The court granted the request. (RT 985-986.) Petitioner then movedthat bailiff John Dimsdale be replaced due to prior altercations petitioner had with Dimsdale. The court denied petitioner’s motion. (RT 986.) Petitioner then askedthat the court admonishthebailiffnot to stand immediatelybehind petitionerwhen he addressed his counsel. The court stated “I'll handle the bailiff without your request.” (RT 987.) The court then twice askedpetitioner if“You have anything else?” Petitioner replied that he would not have anything else until he had reviewed the change of venue motion. The court stated that “We'll argue tomorrow.” (RT 988.) 13. Atthis point the prosecutorinterjected that he had understood the court had deniedpetitioner co-counselstatus, and the court confirmedthat ““That’s correct.” (RT 989.) The prosecutor objected that “we seem to be wasting an awfullot oftime hearing his motions.” The court explainedthat petitioner had been unable to make his motions the preceding Friday due to counsel’s absence, and the court had therefore permitted him to make motions today instead. (RT 989.) In the future, the court said, petitioner would be permitted to make motions every Friday afternoon. (RT 990.) The prosecutor, though not defense counsel, objected to this procedure, and the court overruled the prosecutor’s objection. (RT 990.) 92 14. On the morning of Thursday, January 19, petitioner asked to address the court and the court refused, stating that “questions can be done this afternoon. There are no questions from youthis morning.” (RT 1052.) Whenpetitionersaid, “Excuse me, yourhonor,” the court abruptlyresponded, “Don’t excuse me. You’re not to say anything.” (RT 1052.) Petitioner complained aboutthe fact that he was being brought into the courtroomin shackles and asked to be unshackled before he was broughtinto court. (RT 1053. Healso asked that he not be requiredto sit in shacklesin a holding cell for two hoursprior to court each day. (RT 1053.) Petitioner then asked ‘the court to explain how manyjurors would be voir dired each day, and the court stated “two in the morning, four in the afternoon, except for this afternoon. This afternoon I’m reserving for you to make your motionsthatI normally wouldlet you do Friday; but I can’t do it this afternoon, so you can do thatthis afternoon.” (RT 1054-1055.) Petitioner then asked that the court voir dire more jurors per day in order to ensurehis rightto a fair and speedy trial, and the court stated, “Your motion is denied. Your motion is denied.” (RT 1055.) 15. On Monday, January 30, petitioner moved to have the jury venire panel dismissed becauseits fairness had not been reviewed bythejury commissioner.'* The court denied the motion. (RT 1351.) Petitioner also challenged the jury on the groundsthat the court would not allow counselto inquireintojury bias based on the extensive media coverageofthe case. The court also denied this motion. (RT 1352.) 'Petitioner’s reference to the Sixth Amendmentand the due process and equal protection clauses indicates that he was attempting to challenge the jury venire on the groundsthat the panel did not constitute a representative cross-section of the community. 93 16. On Wednesday, February 1, the court permitted petitioner to address the court at length to complain about many ofthe court’s rulings regarding voir dire and to request that the court dismiss his attorneys and appoint prior counsel, Thomas Broome,to defend him. (RT 1472-1474.) The court stated that “the record will indicate your remarks,” and when petitioner attempted to expand on his remarks, the court added that “you already made your record.” (RT 1474.) 17. On Friday, February 3, the court permitted petitioner to make “any motions you want to make,” and petitioner began by objecting that his lead counsel wasnotpresent. Hestated that he wasentitled to be represented by both counsel and would not proceed unless they were present. The court therefore put the matter over until Monday, February 6. (RT 1538-1541.) 18. On Monday, February 6, the court conductedvoir dire and then permitted petitioner to make several motions and reserved ruling until petitioner wasfinished. Petitioner first asked that prospective juror Randy Pennington be excused on the grounds of prejudice. (RT 1564-1567.) Petitioner then renewed his Marsden motion and requestedthat prior counsel Thomas Broomebepermitted to represent him instead ofMr.Strellis and Mr. Selvin. (RT 1567.) Petitioner also requested that the sheriff be ordered to return confiscated legal books. (RT 1569.) Petitioner then asked for a court order to prevent the sheriff's department from monitoring attorney-client interviews. (RT 1572.) Petitioner asked for a continuance to permit him to appear telephonically in federal court for a hearing on February 8 regarding his civil suit against the sheriff regarding conditions of confinement. (RT 1572.) Petitioner then asked for a copy of the minute orderinstructing the sheriffto treat him like any otherprisonerfor visitation purposes. (RT 1575.) 94 The court then denied the motion regarding juror Pennington, denied the motion to replace counsel with attorney Broome,instructed defense counsel to investigate to determine whetherpetitioner wasto be heard telephonically in federal court, and ordered the clerk to provide petitioner with a copy ofthe minute order. (RT 1575.) 19. On the morning of Tuesday, February 21, the court told petitioner he would not be allowed to make any motionsuntil the afternoon session. (RT 1840.) However, before the morning session had ended, petitioner movedto inspect the records of the jury commissioner and to challenge the composition of the venire panel. He also objected to the dismissal for cause of prospective juror Betty Meyer and other jurors who had expressed an unwillingnessto serve as jury foreman. (RT 1854.) The court denied both motions. (RT 1855.) 20. Atthe beginning ofthe afternoonsession,petitioner asked that the record reflect why he was not permitted to file motions the previous “Thursday or Friday, the normal day for me to file my motions” and why motions had been continuedto this date. (RT 1856.) The court explained that there had been ajudges’ criminal seminar in Montereyandthat the court had beenobligedto lecture there. (RT 1856.) Petitioner complainedthathis family had attempted to comeandfile motions with the clerk but had been informedthat the clerk wouldno longer accept motionsfrompetitioner unless the court and counsel had reviewed them first. (RT 1857.) The court then askedpetitionerto sit down andstated that he could file his motionsafterjury selection had been completed for the day. (RT 1857.) Petitioner then renewedhis motionto dismissthejurypanel, and the court denied the motion. 95 (RT 1858.) Petitioner then made a Marsden motion, and proceedings were suspended for a hearing on the issue. (RT 1858, 1860-1868.) 21. At the conclusion of the day’s voir dire proceedings, petitioner objected that a black juror had been excused and then requested that the court rule on a motion for change of venue. (RT 1911-1912.) The court stated that “If I have to rule now, your motion is denied.” (RT 1913.) 22. Onthe morning ofWednesday, February 22, petitioner asked to address the court and the court stated it would consider his motionsat 2:00 p.m. (RT 1915.) Petitioner then noted that he had several motions pending, and the court respondedthat the motionshad been timelymade and would be ruled uponat 2:00 p.m. (RT 1915-1916.) Petitioner asked to be heard “at this particular time,” and the court ordered him removed from thecourtroom. (RT 1916. 23. During the afternoon session, petitioner returned to the courtroom. He movedto prevent the court from piping the proceedingsinto his cell through speakers when he was removedfrom the courtroom because he did not want other defendants to overhear the proceedings. (RT 1942.) The court explained that the law required that petitioner “be able to hear through electronic devices,” and petitioner stated, ““Well, I’m waiving that right.” The court stated “I am not permitting you to waive that right,” and petitioner repeated,“I waivethat right.” (RT 1943.) Counsel then joined in the waiver, andthe court again stated it would notallow the defense to waive the right. (RT 1944-1945.) 24. On the morning of Monday, February 27, petitioner objected that his motions had not been heard the preceding Friday andstated for the record his understanding that his motions were to be heard the following day. 96 The court replied that it had continuedpetitioner’s motions to this morning, and the confused petitioner replied that “my understanding was Tuesday. Since last time it was continued to Tuesday I thoughtit went to another Tuesday.” (RT 1970-1971.) Petitioner then movedfor a mistrial on the groundsthat he had been subjectedto “restraints”in court and also requested again that he be permitted to inspect the jury commissioner’s records and to challenge the composition ofthejury. (RT 1971-1972.) The court denied the motion to challenge the jury composition, but otherwise did not rule on petitioner’s remaining motions. (RT 1972.) 25. During the afternoonsession, petitioner again movedfor a mistrial. This time he clarified that the restraint of which he complained occurred whenhe was removed from court bythe bailiffs, who took him by both arms and prevented him from gathering his legal papers. (RT 1998.) The court.denied petitioner’s motion. (RT 1999.) Petitioner read into the record several authorities on excessive use of force. (RT 2000-2001.) Petitioner then renewed his request that the jury panel be dismissed, and the court again denied the motion. (RT 2002-2003.) 26. Later that morning petitioner renewedhis earlier motion for funding for expert assistance, and the court responded that it could not properly hear the motion and that counsel already had money for experts. (RT 2054.) 27. On Wednesday, March1, petitioner movedfor a mistrial on the basis of the improper excuse of a juror for cause, and the court denied the motion. (RT 2186.) Petitioner then made a Wheeler motion, alleging improper systematic exclusion of jurors on the basis of race. (RT 2188.) The court again denied the motion. (RT 2188.) Petitioner then objected to 97 the fact that the prosecutor referred to the weapon allegedly used in the commissionofthe offenses during voir dire, and the court noted the objection for the record. (RT 2189.) . 28. On Tuesday, March 7, petitioner requested discovery of documents pertaining to a grievance matter in the jail. (RT 2405.) The court first stated that it lacked jurisdiction over the matter, and then denied the motion. (RT 2406.) Petitioner again moved for discovery of information regarding Michael Willis, the alleged jail informant, and the court again denied the motion. (RT 2407-2408.) 29. On Monday, March 13, petitioner again objected to the composition of the jury and was permitted to address the court at length regarding whether the draw was random. (RT 2578-2579.) The court denied the motion. (RT 2580.) Petitioner then again moved to dismiss the entire jury panel, and the court denied this motion as well. (RT 2582.) 30. On Monday, March 20,petitioner objected to the dismissal of a juror, and the court noted the objection for the record. (RT 2765.) When all the jurors had been dismissed for the day, petitioner objected to the dismissal of another juror and the court again noted the objection for the record. (RT 2759.) Petitioner then addressed the court at length regarding what healleged to be the sheriff’s violations of an earlier court order permitting him access to newspapersubscriptions, and the court referred the matter to defense counselfor investigation. (RT 2760-2764.) Petitioner then asked for an evidentiary hearing regarding the dismissal of a juror, and the court denied the motion. (RT 2764-2765.) Petitioner then addressed the court at length regarding what he believed were ex parte contacts between the court and counsel in chambers. The court deniedthat petitioner’s case was 98 being discussed in chambers. (RT 2765-2768.) Petitioner then made a Marsden motion,a hearing was held, and the motion was denied. (RT 2768- 2769.) 31. On Wednesday, March 22, petitioner made a continuing objection to the adequacyofvoir dire on death-qualification issues, and the court noted the objection for the record. (RT 2874.) Petitioner then made several objections regarding the voir dire process, objected that his counsel were not making adequate objections, asked that a particular juror be excused, and askedthe court to dismiss his counsel. (RT 2876-2878.) The court denied all these motions. (RT 2878.) 32. Later that afternoon, the defense offered to stipulate the to excuse of a juror for financial hardship, and petitioner himself stipulated. (RT 2905.) Counsel then asked to put two brief matters on the record, and the prosecutor also asked to place matters on the record. (RT 2906.) Petitioner then stated, “First of all . . .” and the court told him, “Youjust be still.” Petitioner then stated, “I thought I’m runningthis,” and the court told him he wasnot. (RT 2906.) 33. On Tuesday, April 4, petitioner objected to physical and psychological abuse he had suffered from Deputy Dennis Higgins. The court stated the grievance could notbefiled in court, but then directed petitioner to provide his complaint to counselso that counsel couldfile it. (RT 3060- 3063.) | 34. On Monday, April 10, petitioner objected to his attorneys referring to the ages of the child victims during voir dire. (RT 3233-3234.) The court denied the motion. (RT 3235.) 99 35. On Thursday, April 13, petitioner complained about harassmentby the deputies whotransported him to and from the courtroom. (RT 3313-3314.) The court issued an order that the transporting deputies werenotto discuss the case with petitioner. (RT 3314.) 36. On Monday, April 24, petitioner complainedthat his attorney wasnot informing prospective jurors that it was improperto consider future dangerousness. (RT 3508-3509.) The court then askedpetitioner if he was challenging a juror for cause, and petitioner replied that he was. (RT 3509- 3510.) The court then denied the motion. (RT 3510.) 37. On Monday, May8,petitioner explained to the court that he had been assaulted by three sheriff's deputies on the way to court that morning and had suffered several injuries. Petitioner asked the court for an orderthat he be taken to Highland Hospital to medical treatment. (RT 3704.) He further asked for an evidentiary hearing regarding the incident that morning. (RT 3705.) The court granted the request for medical treatment by jail medicalstaff, but denied the request to be treated at Highland Hospital. (RT 3705.) Petitioner then requested a continuance,and the court deniedthis motion. (RT 3707.) That afternoon he again requested a continuance to compose himself, and the court again denied the request. (RT 3711.) 38. On Tuesday, May9, petitioner again moved for a continuance on groundsofhis own mental incompetence,and the court denied the motion. (RT 3725.) Petitioner addressed the court at length regarding his inability to speak to psychiatrists in a private setting, and once again moved for a continuance. (RT 2729.) The court again denied the motion. (RT 3729.) 39. That afternoon,petitioner complainedat length regarding his treatmentby sheriff's deputies. (RT 3782-3783.) Counsel then asked for an 100 orderinstructing the deputies not to discuss the case with petitioner, and the court denied the motion. (RT 3783-3784.) The court did order the deputies to permit petitioner time to assemble his legal papers before leaving court following each day’s proceedings. (RT 3785.) The court then reviewed petitioner’s motion to exclude evidence, stated it did not understand petitioner’s first two points, and denied the remaining two requests, which had sought to exclude expert prosecution testimony regarding ballistic evidence and soughta hearing on the point. (RT 3786.) The court permitted petitioner to continue speaking regarding anumberofmaters. Finally, petitioner offered to make a showing regarding a change of venue motion and the court respondedthat petitioner was not “going to make a showing of anything.” The court stated that ““You’re not your own lawyer.” (RT 3790.) Petitioner then asked whenit would be appropriate for him to make a showing regarding his challenge to the jury panel. The court stated that, “Tomorrow you proceed with any evidence you wish andI will makethe ruling.” (RT 3794.) The following colloquy took place: DEFENDANT:So whatI’m saying,ifI’m correct, because I’m kind ofconfused, you’re saying I can’t rule—- commenton the challenge to the jury — COURT: You can’t commenton anything. DEFENDANT:— change of venue-- change ofvenue. — but you’re saying I can’t state the grounds for the dismissal of the jury panel, challengeto the jury panel? . COURT:I didn’t say that ay all. I’m saying you don’t say anything. That’s why you have a lawyer. I let you talk just because I’m trying to be morethan fair to you. You haveno standingto even talk in this court. You’re not the attorney. I’m telling you the only thing 101 remaining tomorrowis the challengeto thejurypanel, afterwhich we will commencegetting the jury Monday.” (RT 3794-3795.) 40. The following day, Thursday, May 11, petitioner attempted to discuss the statistical information pertaining to the jury composition issue. In spite of the court’s statement of the previous day assuring petitioner he would be permitted to resent any evidence he wished,the court repeatedly cut him off. Petitioner objected that “I can’t properlymake the motion —“ andthe court stopped him,stating ““You’re not making anything. Your lawyersare. I got newsfor you.” (RT 3803.) After that, petitioner repeatedly attempted to discuss the issue, and the court consistently refused to permit him to speak. (RT 3804-3809.) 41. That afternoon, petitioner moved to dismiss the case on the groundsofprosecution and police misconduct, alleging that the deputies had taken his jury selection notes when he was removed from the court earlier. (RT 3816.) The court denied the motion. (RT 3816.) Petitioner then attempted to renew his change of venue motion and the court refused to permit him to do so. (RT 3818.) Petitioner asked that the recordreflect the race ofall jurors who had been dismissed during voir dire, and the court found this inappropriate. (RT 3820.) | 42. On Monday, May 15, during the “Big Spin”portionofthe jury selection proceedings, petitioner requested additional peremptorychallenges and the court denied the motion. (RT 3841.) Subsequently, petitioner’s counsel noted for the record that petitioner had objected to the fact that counselfailed to use all 20 ofthe peremptory challenges to which the defense wasentitled and also notedthat petitioner wanted a Wheeler motion brought. 102 (RT 3847.) Petitioner then addressed the court at length on thejury challenge issue. (RT 3847-3848.) The court permitted the district attorney to state reasons for excusing African-American jurors, and the court then ruled that petitioner had not made a prima facie case for a Wheeler challenge. (RT 3849.) 43. On Tuesday, May 16, the first day of trial with the jury present, petitioner objected when People’s Exhibit-5 (a crime scene videotape) was presented, stating that “the defense is stipulating” to the location where the guns were located but not that petitioner ever possessed them. (RT 3874.) The court told petitioner not to “force me to throw you out” and deniedthe stipulation. (RT 3875.) Petitioner then asked to have the monitor which wasplaying the videotape turned to an angle at which he could see it, and the court ordered him removed from the courtroom. (RT 3875- 3876.) 44. That afternoon, again in the presence ofthe jury, petitioner objected to his earlier removal from the courtroom andstated he had a right to be present at every stage f the proceedings. The court agreed,“as long as you follow the rules of court.” (RT 3900.) Petitioner continued to address the court on this subject and asked that he not be ejected and returnedto the courtroom repeatedly. The court then instructed the prosecutor to continue presenting evidence. (RT 3900.) 45. After the jury was excused for the day, petitioner moved to havejuror Howard McGeedismissed from the jury, stating that he attempted to use a peremptory challenge. (RT 3953.) The court told petitioner that “you don’t exercise peremptories. Your lawyers do.” (RT 3953.) Petitioner then attempted to challenge McGee for cause, and the court denied the 103 motion. (RT 3954.) Petitioner also argued at length that he had been improperlyprevented from challengingjuror SandraWilliams byperemptory. (RT 3955.) Petitioner moved fora mistrial, and the court denied the motion. 46. On Wednesday, May17, petitioner moved to sequester the jury and have them admonishednot to read newspapers. The court denied the motion to sequester, but stated that he would admonish the jury after each recess. (RT 3959.) . 47. On Monday, May22,petitioner requested a recess during the middle of his counsel’s cross-examination of a witness on the groundsthat one ofthe jurors had been asleep for ten minutes. (RT 4361.) The court did not rule on the motion butinstructed petitionerto “bestill.” (RT 4361.) 48. On Wednesday, May 24, prior to the jury’s admission to the courtroom,petitioner movedfordismissal on the groundsthat the prosecution had suborned perjury from the preceding three witnesses. (RT 4525.) Petitioner also requested a mistrial on the grounds of prosecutorial misconduct and for witness Leslie Morgan’s identification of codefendant Rita Mae Lewis. The court denied these motions. (RT 4525-4526.) Petitioner then again requested that attorneys Thomas Broome and Robert Cross be substituted for his current counsel. (RT 4527.) The court denied this motion. (RT 4527.) Subsequently,in frontofthejury, petitioner offered to stipulate regarding the Uzi found by OfficerNewman Ng. (RT 4581.) The court ignored the request. Petitioner then asked if his attorneys would be permitted to cross examineasto the witness’s previousarrest and guilty plea. (RT 4582.) The court had petitioner removed from the court. (RT 4582.) 49. On Thursday, May 25, petitioner objected before the jury that a question by the prosecutor called for a conclusion by the witness. (RT 104 4829.) The court admonishedpetitioner not to object, and petitioner stated his understanding that“I have a right to be heard through counselor through person (sic) when I’m in court.” (RT 4829.) The court stated this was not true andinstructed the prosecutor to continue. Whenthe prosecutor again asked the question,petitioner again objected that the prosecutor’s question called for a conclusion. (RT 4830.) When the court admonished him notto “act like a— don’t besilly,” petitioner stated that “I have the right to exercise my, defend myselfin person or through counsel.” (RT 4830.) The court did not correct petitioner, but simply stated, “Please, sir.’ The prosecutor continued. (RT 4830.) 50. On the morning ofThursday, June1, out ofthe presence ofthe jury, petitioner requested that the court “stop insulting me andtrying to humiliate me.” (RT 4930.) Petitioner then moved for a mistrial on the ground that he had been unable to confront and cross-examine his codefendant, Rita Mae Lewis,and becauseofprejudicial pretrial publicity. (RT 4931-4933.) The court denied the motion. (RT 4935.) Petitioner then movedfor an acquittal under Penal Code section 1118.1. (RT 4936.) When defense counsel interjected, suggesting that the court hear petitioner’s presentation butdefer ruling until all the prosecution’s evidence wasin,the court responded that “he doesn’t have any right to make this motion,” but added “ifyou want to makeit, you mightas well finish it now.” (RT 4937.) Petitioner arguedat great length that the evidence was insufficient andthat the prosecution hadpresented perjured testimony. (RT 4938-4940.) The court denied the motion. (RT 4940.) 51. That afternoon, out of the presence ofthe jury, as the parties were reviewing matters the prosecutor had movedinto evidence,petitioner 105 strenuously objected to what he perceived to be the court’s bias andhostility toward him and movedfor a mistrial. (RT 4956.) The court denied the motion. (RT 4956.) Petitioner lost control and the court instructed the bailiffs to place him in shackles. Petitioner continued to address the court and protestedthat his lawyers “ain’t putting on no defenseatall. My defense. This is not my defense.” (RT 4959.) Petitioner repeatedly asked to leave the courtroom, and the court would not permit him to do so. (RT 4959.) 52. On Friday, June 2, out of the presence of the jury, defense counsel sought to call Rita Mae Lewis andpetitioner strenuously objected. (RT 4978.) The court ruled that “your lawyercalled her, and I can’t stop him from calling her.” (RT 4978.) Defense counsel explained that he wascalling Lewis overhis client’s objection. (RT 4979.) Petitioner then objected to the witness on the grounds of Evidence Codesection 352, and the court denied the motion. (RT 4980.) Lewis declined to answer any questions on Fifth Amendmentgrounds. (RT 4981.) Petitioner then objected at length to the court permitting counsel to call witnesses in his behalf when he disagreed with counsel’s decision. Petitioner again attempted to invokehis rights under Faretta and stated that the defense counsel wasputting on was“totally not my defense.” (RT 4984.) The court stated that based “uponall the evidence and your conduct, that’s denied.” (RT 4985.) 53. On Monday, June5, petitioner asked that he be permitted to be the first defense witness. (RT 4986.) The court instructed petitioner to confer with his counsel. Petitioner did so, and his counsel requested a continuanceuntil the afternoon. (RT 5000-5001.) Petitioner objected to the continuance, and petitioner took the stand asthe first defense witness. (RT 5001.) Petitioner asked to be permitted to testify in a narrative fashion, and 106 the court denied the motion. (RT 5002.) Petitioner then asked to have independentcounsel, rather than his own counsel, appointed to examine him. The court denied this motion. (RT 5002.) , 54. On Tuesday, June 6, during defense direct examination of witness William Henderson, petitioner objected to his own defense attorney impeaching the witness. (RT 5261.) --55.— On Wednesday, June 7; petitioner’s counsel stated he had-no other witnesses,andpetitioner objected. He stated he wantedto call several witnesses, including his own physician from Highland Hospital. (RT 5467.) The court denied the motion. (RT 5467.) Counselthen rested, and petitioner continuedto arguethat he had not been permittedto presenta firearms expert. (RT 5468-5469.) Petitioner then moved to have his counsel dismissed and requested permission to present his own witnesses. (RT 5470.) The court denied the motion. (RT 5470.) Petitioner continuedto protest that this was “not my defense,” and the court ordered him removed from the courtroom. (RT 5471.) 56. That afternoon, in the middle of the prosecutor’s guilt-phase summation, petitioner moved for a mistrial. (RT 5488.) His motion was denied and he was removed from the courtroom. (RT 5488.) 57. On Tuesday, June 13, petitioner again objected during the prosecutor’s closing argument to the prosecutor’s use of victim impact argument. (RT 5556.) He was once again removefrom the courtroom. (RT 5556.) 58. That afternoon,petitioner asked for five minutesto address the court regarding jury instructions, and the court granted the request. (RT 5602.) Requested that the court instruct the jury on voluntary manslaughter 107 as a lesser included offense, specifically requesting that the court read CALJIC No. 8.42. (RT 5602.) Petitioner also requested instructions on provocation, CALJIC No.8.73, and witnessidentification, CALJIC No.2.91. The court denied the motions. 59. Onthe morning ofWednesday, June 14, petitioner objected to ex parte communications between the court and the jurors and to any communications with jurors outside his presence. (RT 5628.) The court declined to entertain the motion. (RT 5628.) 60. Later that morning, petitioner objected to the court taking judicial notice ofits records regarding his prior convictions and movedtoset aside the jury verdict. (RT 5677.) The court held this matter in abeyance, stating the court would “take that up after the court session today.” (RT 5677.) Petitioner then presented a written motion and objected to the lack of apreliminaryhearing regarding the validity ofhis prior convictions before the evidence was presented to the jury. (RT 5678.) The court permitted petitioner to file the written motion andstated that petitioner “can make any motions you wantat 4 o’clock after we finish today’s session.” (RT 5678.) 61. After the lunch break, out ofthe presence ofthejury, petitioner argued his motion to set aside the jury verdict. The court stated that it had read the motion over the noon hour. Petitioner then movedto challenge the judge for cause and to have the motion to set aside the verdict heard before a different court. The court denied this motion and also denied the motion to set aside the verdict. (RT 5723-5724.) Petitioner then objected to prosecutorial misconductin argumenton the groundsthatthe prosecutor had improperly arguedthat petitioner would be unableto adjust to life in prison. Petitioner also objected that the prosecutor had violated the gag order 108 imposedby the court on contact with the media by the parties. (RT 5724- 5725.) Petitioner moved for dismissal and also requested sanctions on the prosecutor. (RT 5726.) The court stated that it would “handle the prosecutor.” (RT 5726.) 62. On Wednesday, July 5, petitioner requested that the court provide him with new regulations adopted by the AlamedaCounty Superior Court pertaining to plea bargains, and the court instructed counsel to provide that documentto petitioner. (RT 5915-5916.) Petitioner then stated that he did not plan to present mitigating evidence and requested that counsel not present such evidence either. (RT 5916.) Counsel stated that his understandingofthe case law wasthat he wasto present mitigation evidence even overhis client’s objections, and that he therefore intendedto put on two witnessesin mitigation over his client’s wishes. (RT 5917.) Petitioner then requested a reasonable doubt instruction with respect to uncharged misconduct evidence admitted in aggravation. (RT 5918.) The court agreed to give that instruction. (RT 5918.) Petitioner further requested an instructionstating that in weighing mitigation versus aggravation, thejurywas to consider the “quality” of the evidence rather than “quantity” of the circumstances. (RT 5919.) The court also agreed to give this instruction. (RT 5919.) Petitioner then objected to anypsychiatric evidenceinmitigation. (RT 5919.) The court stated that it would permit defense counsel to present “medical” testimony in mitigation. (RT 5919.) 63. On Thursday, July 6,in the jury’s presence, defense counsel soughtto rest the penalty phase case,and petitioner asked the court whether he wasentitled to testify under the law. The court respondedthat he was, and 109 petitioner requested a 24-hour continuanceto decide whetherto testify. (RT 6105-6106.) The court denied the motion. (RT 6107.) 64. On Monday, July 10, out of the jury’s presence, the court askedpetitioner if he had decided whetheror not he wishedtotestify. (RT 6108.) Petitioner, understandably confused, stated that he thoughtthe court had given him “five minutes previous to make upthis decision, so I didn’t never makeit up.” (RT 6108.) The court then ordered counselto proceed with closing arguments. (RT 6108.) Petitioner then movedto havethe court reporter, James Lee, replaced with another reporter, Rose Pitts, because he believed Mr. Lee wasnot reporting all occurrences which took place in the courtroom. (RT 6109.) The court denied the motion. (RT 6110.) 65. That afternoon,petitioner objected more than onceto his own counsel’s closing argument. (RT 6189, 6191-6192.) The court declined to rule on the objection and instructed petitioner he had no standing to make a statement. (RT 6189, 6192.) 66. On Tuesday, July 11, out of the jury’s presence, petitioner objected to his lack ofparticipation in the jury instruction conferences and lack ofnotice regarding whichinstructions would be given. (RT 6203.) The court stated that petitioner had no right to participate in such discussions. (RT 6203.) Subsequently, before the jury, petitioner objected to an instruction on the elements of assault with force likely to produce great bodily injury, which concerned an alleged assault bypetitioner upon his wife, Terry Welch. (RT 6213.) The court stated that petitioner would be removed from the courtroomifhe made anyfurther interruptions, and petitioner replied “T don’t think the court has to threaten me every timeI state an objection for 110 the record.” (RT 6213.) The court ordered petitioner removed from the courtroom. (RT 6213.) 67. On the afternoon of Wednesday, July 12, after the jury retumedits verdict fixing the punishmentat death, petitioner requested a sentencing death at the earliest possible time. (RT 6231.) Over counsel’s request to be permitted until Septemberto investigate andprepare documents, _ the court granted petitioner’s request and set sentencingfor two weekslater. (RT 6231-6232.) 68. On Tuesday, July 25, petitioner appeared for sentencing and objected to being required to wear jail clothing in court. (RT 6234.) His objection was noted for the record. (RT 6234.) Petitioner then objected to the probation report and requested it be removed from his file. The court declined to rule on this request. (RT 6235-6236.) Petitioner objected to his counsel’s argumentthat he was mentally ill. (RT 6237.) When counsel had completed his remarks, petitioner asked whether thetrailing assault case would be dismissed. (RT 6238.) The prosecutor agreed to dismiss the assault case, as well as a number of misdemeanor counts. (RT 6239.) Petitioner then objected that he had not received fair trial. (RT 6239.) Petitioner requested a recess to be permitted to review the probation report, and the court denied the motion. (RT 6241-6242.) 69. Later, when the court was formally pronouncing sentence, the court asked whetherthere was any legal cause why the judgmentshould not be pronounce,andpetitionerstated that“I have been denied ofmyrightto say and control my own destiny where mylife is at stake.”(RT 6267.) The court made no commentin response,but instead proceededto pronouncesentence. 111 | 70. As the foregoing discussion demonstrates, the court’s unilateral decision to impose a form ofhybrid representation upon the defense resulted in chaos, confusion,tactical conflicts, trial delays, and left petitioner and his counsel unable to determine whenpetitionerwas being representedby counsel and when he wasrepresenting himself. This system of hybrid representationproved extraordinarilyprejudicial, particularlywhenpetitioner took the stand and presenteda defensetotally in conflict with that presented bydefense counsel, and when counsel presented a penaltyphase defensewith which he disagreed. The court’s hybrid representation plan directly resulted in petitioner’s conviction forsix countsoffirst degree murder and subsequent sentence of death. | D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/orFourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 4: Judicial Error--Denial of Self-Representation A. Petitioner’s conviction and sentenceofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution because the trial court deniedpetitioner’s motion to represent himselfon the basis that petitioner was not competent to do so. This was based solely upon the court’s belief without either professional evaluations or a competency hearing. This denial ofself-representation, and the bases upon whichit was 112 predicated, abridged petitioner’s rights to a fair trial; adequate assistance of counsel; self representation; an adequate competency determination; due process of law in the determination itself and to due process andfair trial rights regarding the unlawful, heightened standard of competency to waive counsel employedbythe court; and further denied petitioner’s right to a trial judge who was unbiased and conducted the proceedings with not only fairness, but an appearance of fairness; and the right to fair and reliable - capital proceedings and sentence. B. The following United States Supreme Court decisions, interalia, in effect at the time the error occurred, are presented in support of this claim: Faretta v. California (1975) 422 U.S. 806 (criminal defendant has constitutionally protected right under Sixth and Fourteenth Amendments to waive counsel and represent himself); McKaskle v. Wiggins (1984) 465 U.S. 168 (constitutional right to selfrepresentation); Dusky v. UnitedStates (1960) 362 U.S. 402 (per curiam) (standard of competency); and see Godinez v. Moran (1993) 509 U.S. 389; Chandler v. Florida (1981) 449 U.S. 560 (highly publicized criminaltrial presents risk of compromisingrightto fair trial); Shepard v. Maxwell (1966) 384 U.S. 333 (external publicity and circumstances deprive defendantrightoffair trial); Estes v. Texas (1965) 381 U.S. 532 (prejudice presumed wheresignificant media on court proceedings duringtrial); Rideau v. Louisiana (1963) 373 U.S. 723 (prejudice presumed due to crucial pretrial publicity); Batson v, Kentucky (1986) 476 U.S. 79 (prosecutor’s use of peremptory challenges violation of equal protection); Caldwell v. Mississippi (1985) 472 U.S. 320 (prosecutorial misconduct); Mattox v. United States (1892) 146 U.S. 40 (fundamental right to impartial 113 jury): United States v. Burr (1807) 25 Fed. Cas. 25, no. 14,692b CCD.Va. (fundamentalrightto fair and impartialtribunal); Jn reMurchison(1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Gardnerv. Florida (1977) 430 U.S. 439 (due processviolation in capital proceeding); Godfrey v. Georgia (1980) 446 U.S: 420 (Eighth Amendmentrequires higher degree ofscrutiny in capital proceedings); Beck v. Alabama (1980) 447 U.S. 625 (constitutional requirements in capital proceeding apply to guilt phase); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created right); and including Apprendiv. New Jersey (2000) 530 U.S. 466 Gury must determine truths of sentencing factors.) C. The following ‘facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support of this claim: 1. Petitioner incorporates by referenceasiffully set further herein all facts and law set forth under Claims 2, 4, 5, 18, 19, and regarding petitioner’s lack of competency. 2. Insupport ofthis claim, petitioner incorporates by reference as iffully set forth herein the facts and law set forth in Claims 18 through 33, 68, | 3. Insupport ofthis claim, petitioner incorporates by reference as and 69 regarding ineffective assistance of counsel. if fully set forth herein the facts and laws set forth in Claims 47 and 48 regarding deprivation of the right to competent expert assistance. 4. Insupport ofthis claim, petitioner incorporates by referenceall claims regarding judicial bias, judicial misconductanderror, as if fully set 114 forth herein the facts and law set forth in closing Claims 2 through 4, 34 through 54, and 56 through 67. 5. Petitioner madea pretrial motion to represent himself several times during thetrial, and did so at the earliest possible time. Asearly as October 3, 1988,at a pretrial hearing three and one-half months before the start ofjury selection,petitioner indicated that he wished to represent himself. (CT 2003, RT 5.) The next day, October 24, 1988, petitioner’s motion for self representation was continuedto the trial department. (CT 2018, RT 11, 29, 39.) On October 24, 1988, all matters were continued to November7, 1988. (CT 2065, RT 20.) On November7, 1988, the matter was continued to November8, 1988 due to peremptory challenge, pursuant to Code ofCivil Proceduresection 170.6, to the Honorable Michael E. Ballachey. (CT 2110.) On November8, 1988, the Honorable Martin M. Pulich continuedpetitioner’s motion for self representation to the trial court for November 9, 1988. (CT 2117, 2120-2123, RT 52, 56-57, 89.) 6. The matter came beforetrial judge, the Honorable Stanley Golde on November9, 1988. In the afternoon session,petitioner was given a Faretta questionnaireto fill out that eveningin his jail cell." 7. At the next court appearance, petitioner’s counselonly briefly alluded to the Faretta motion. Hestated that he was in the uncomfortable position of not knowing whether to speak onpetitioner’s behalf. (RT 34.) The next day, November 16, 1988, the court continued the Faretta motion until Monday, November 21, 1988. (RT 44.) Thetrial court indicated that '‘Neither the record on appeal nor the Superior court file contain a Faretta questionaire completed bypetitioner. 115 it would considerpreviousMarsden motionsin evaluating petitioner’s motion to proceed as his own counsel. (RT 50-54.) 8. Also on November16, 1988,the trial court appointed Dr. Joseph Satten, pursuant to Evidence Code section 730, to evaluate petitioner on the sole issue of “whether he had the mental capacity and could waive his constitutional right to counsel with a realization of the probable risks and consequencesofhis actions.” (RT 59.) Petitioner requested that he be entitled to retain his own personal experts to observe him, and further stated that he believed these were in a 1368 proceedings. (RT 68.) The court gave him only two days to hire his own experts, refused to grant petitioner a continuance for his own experts, and definitively determined that the “competency” matter would be heard Monday.Petitioner’s inquiries and the court’s denials are reflected in the following colloquy: DEFENDANT: I’m going to request that I be entitled to retain my own personal experts to observe me, Your Honor. THE COURT: Go ahead and hire them. DEFENDANT: Huh? Before the proceedings that scheduled for Monday — I believe that’s what, five days away. THE COURT: The matter’s on Monday for me to decide whether or not you should represent yourself. DEFENDANT: I’m going to request that that hearing be delayed, Your Honor, and ask for a_ three-week 116 continuance on that motion, Your Honor. It’s in order that I can retain my own examine — psychiatrists to examine me, Your Honor. I’m entitled — THE COURT: I hired Dr. Satten at the Court’s expense to examine you. Yourmotion for continuance on the Faretta will be denied. I’m going to decide it Monday morning. DEFENDANT: Not to the Faretta, Your Honor. Myrequest that — is that I be able to retain my own psychiatrists, experts to examine me and notaccept the experts of the Court. THE COURT: Your motion to have your own experts is denied. (RT 68-69.) Bythis time, the attorney-client relationship had deteriorated to the point wherepetitioner wished to havehis defense attorneyssit in thejury box because oftheir perceived conflict of interest. (RT 64.) 9. Petitioner wished to have a “full-blown trial” on the issue of whether he was competentto stand trial or competent to waive his right to assistance ofcounsel. (RT 70.) He requested a jury trial on his competency. (RT 72.) The court denied this request. (RT 72-73.) 10. On November21, 1986, trial court denied petitioner’s motion to represent himself. (RT 75-85.) The court determinedthat the petitioner 117 was not mentally competent to waive counsel and represent himself. The court stated: Mr. Welchis a defendant who doesnot appreciate the extent ofhis own disability and, therefore, cannot be fully aware of the risk of self-representation. I find the disability of Mr. Welch significantly impairs the capacity to function in a courtroom. I further find that one ofthe defendant’s reasons he wishesto dispense with defense attorney is a paranoid distrust of everyone connected with the judicial system. This is further evidence to this Court that he lacks the mental capacity to truly waivehis right to counsel. Further, the defendant’s history of improper if not irrational behavior in speaking in the courtroom in the Marsdenhearing, 995 hearing further indicates doubt to this Court that he has the mental capacity to waive counsel. (RT 84-85.) 11. The court sharply underscored andreiterated that petitioner was not competent to represent himself or make a waiver. It made the following legal finding: You havefailed in your showing, and I have decided that a defendant facing the potential death sentence requires the assistance ofcompetent counsel. You do not have the mental capacity to waive. (RT 86.) 12. The court considered the documentsin thefile, took notice of the Marsden hearing before Judge Ballachey, the proceedings before Judge Pulich, and furtherparts ofthe transcript in Case No. 87170, an assault with a deadly weapon and burglary matter which trailed the instant case. 118 Specifically, the court reasoned that the ability to waive must be deemed to embody some minimalability to present a personal competent defense, and determined that petitioner did not have that ability. The court found that petitioner’s mental condition precluded a realistic assessment ofthe need for assistance andrisk of waiving counsel. (RT 96.) Thus, the court held that petitioner lacked the capacity to waive counsel, yet nonetheless found petitioner capable of actually standing trial. (RT 75.) . 13. A criminal defendant who is competentto standtrial has a constitutionally protected right, under the Sixth and FourteenthAmendments, to waive the right to counsel and represent himself. (Faretta v. California, supra, 422 U.S. 806; accord McKaskle v. Wiggins (1984) 465 U.S. 168.) The Constitution requires that defendants be made aware ofthe “dangers and disadvantagesofself-representation so that the record will establish that he knowswhatheis doing and his choice is made with his eyes open.” (Faretta v. California, supra, 422 U.S. 806 at 835.) This standard for competence to stand trial or to waive the right to assistance of counsel is the same. The United States Supreme Court has specifically rejected “the notion that competenceto plead guilty or to waivethe right to counsel must be measured by standardthatis higher than (or evendifferent from) the Dusky standard.” (Godinez v. Moran (1993) 509 U.S.389, 399.) The standard for competence to stand trial is whether defendant has “sufficient present ability to consult with his lawyer and a reasonable degree of rational understanding” and has “a rational as well as factual understanding ofthe proceedingsagainst him.” (Dusky v. United States, supra, 362 U.S.at p. 403.) 119 14. The standard for competencyto standtrialis not different from the standard for competency to represent oneself. (Peoplev. Hightower (1996) 41 Cal.App. 4th 1108.) 15. Itis logically and legally inconsistentthat petitioner was found mentallyincompetent to represent himselfand mentallyincompetent to waive, butthat this incompetencedid noteven trigger a competencyhearing. Where petitioner’s competence is in question, self-representation is nullified. However, if it is legally determined, pursuant to the United States Constitution, that petitioner was fully competent and there was no needfor a competencyhearing, then he was competentto represent himself. (Faretta v. California, supra, 422 U.S. 806.) Underthese circumstances,petitioner was competent to waive counsel andhis ability to serve as counselin a criminal proceeding should not have been questioned. 16. Petitioner was extremely unhappy with his defense counsel. He made numerous motionsto relieve trial counsel, both pretrial and during trial, pursuant to People v. Marsden (1970) 2 Cal.3d 118. (RT 89-90, 208, 289, 890-895, 1433, 1567, 157, 1672, 1859, 2269, 2278, 3279, 3454, 3657, 3766, 3957, 4527, 4943, 4959, 4984, 5002, 5372, 5470, 5666, 5916, 6267.) There were 16 Marsden hearingsor oral motions, during whichthe conflicts, disagreementsandpetitioner’s displeasure with his defense counselwereset forth. (RT Misc. Vol. 1 Page 8, RT 396-406, 890-895, 1433-1436, 1860- 1868, 2769, 3456-3459, 3658-3664, 3768-3779, 3958, 4527, 4943-4950, 5002, 5372-5378, 5470.) 17. Petitioner complainedattrial that the defense being put on was not his defense. (See, e.g., RT 4959 (“This is not my defense.”); 4984 (defense not putting on his defense); 5002 (lost trust in his counsel); 5471 120 (defense presented attrial wasnot his defense); 5666 (petitioner cannot put on anyless a defense than his counsel); 6267 (petitioner denied right to any sane control of his destiny).) Petitioner repeatedly made objections to his counsel’s presentation of evidenceat both the guilt and penalty phase. His removalfrom the courtroom bythetrialjudge was moreoften than not based on his frustration with the defense counsel. (RT 146-147, 191, 210-21 1, 1918, 3712, 3881, 4527, 4582, 4844, 4954, 4957-4960, 5659, 5950.) It was unequivocally clear that petitioner wished to conduct his own defense, and that his counsel was presenting a defense which he believed wasnotin his best interest. 18. Ifit is legally found petitioner was fully competent to stand trial and such competencydid not trigger a competencyhearing, then under the United States Constitution the denial of his motion to represent himself was a violation of petitioner’s constitutional right to a fair trial and due processoflaw,the rightto a trial judge who was unbiased and conductedthe proceedingswith notonly fairness but an appearanceoffairness, and the right to fair and reliable capital proceedings and sentence to deny his motion for self-representation. This error is exacerbated because the denial affected both the guilt and penalty phases of a capital case at which petitioner was ultimately sentenced to death. D. Eachofthese errors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or FourteenthAmendmentsto the United States Constitution,individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. 121 Claim 5: Prejudicial and Egregious Mistreatmentof Petitioner While Incarcerated A. Petitioner’s conviction and sentenceofdeath are violations ofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution because petitioner wassubjectto violent physical and outrageous psychological abuse while incarcerated in the North County Jail awaiting and duringthetrial in this case. This ongoing treatment of petitioner violated his constitutional rights to a fair trial; due process; a trial judge who was unbiased and conducted the proceedings with not only fairness, but an appearance of fairness; a fair and reliable capital proceeding; and his right to protection against cruel and unusual punishment during confinement. Thetrial judge’s repeated failures to correct this were additional constitutional errors. The impactthis treatment had on petitioner’s mental state before and duringtrial egregiously and prejudicially affected the case, thereby mandating issuance ofthe writ. B. The following United States Supreme Court decisions,inter alia, in effect at the time the error occurred, are presented in support of this claim: Hutto v. Finney (1978) 437 U.S. 678 (confinementin prisonorin an isolation cell is form of punishment subject to scrutiny under Eighth Amendment standards); Whitley v. Albers (1986) 475 U.S. 312 (wantoninfliction ofpain constitutes cruel and unusual punishment); Wolffv. McDonnell (1974) 418 U.S. 539 (Fifth and Fourteenth Amendments prohibit government from depriving inmateoflife, liberty, property without due process of law); Dent v. West Virginia (1889) 129 U.S. 114 (due process clause is designed to 122 protect individual against arbitrary government action); Estelle v. Gamble (1976) 429 U.S.97 (deliberate indifference ofprison officials to prisoner’s injury orillness may constitute cruel and unusual punishment); Daniels v. Williams (1986) 474 U.S. 327 (due process violation where prisonersuffers personal injury orloss ofproperty whereprison officials acted oppressively or abusively); City ofRevere v. Massachusetts General Hospital (1983) 463 U.S. 239 (pretrial detainees must receive at least standard ofmedicalcare to which prisoners are entitled — due process clause imposes affirmative obligation on state); Drope v. Missouri (1975) 420 U.S. 162 (due process violation for court’s failure to makeinquiry into petitioner’s competency and failure to give adequate weightto pretrial showing of behavior); Pate v. Robinson (1966) 383 U.S. 375 (due process violation for failure to conduct competency hearing); Dusky v. United States (1960) 362 U.S. 402 (er | curiam)(trial court must determine whetherpetitionerhas sufficient present ability to consult with attorney in reasonable degree of rational understanding); /n reMurchison (1955) 349 U.S. 133 (Constitution mandates both actual impartiality and appearance of impartiality); Taylor v. Hayes (1974) 418 U.S. 488 (impartialitywhere conduct duringtrial has left personal stings; Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding wherepetitioner sentence partially based on unreliable information); Gregg v. Georgia (1976) 428 U.S. 153 (higher degree of reliability ofcapital proceedings); Lockett v. Ohio (1978) 438 U.S. 586, 606- 07 (plurality opinion) (right to present mitigating evidenceis constitutionally protected); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendment right to due process and Sixth 123 Amendment right to trial by jury entitle criminal defendant to a jury determination that heis guilty ofevery elementofthe crime with whichis he charged, beyond areasonable doubt-— labeling as “sentencing factor” does not negatethis right). C. The following facts, among others, to be developed after adequate funding, discovery, investigation, and an evidentiaryhearing,are presented in support of this claim: 1. After petitioner’s arrest in this case he wasincarcerated in the Alameda County North County Jail. There, he was subjected to brutal physical assaults and beatings. 2. On December16, 1987 an altercation between petitioner and a deputy, while petitioner was being movedto the staging area, was recorded onAlamedaCounty Sheriff’s Department (ACSD)EventFormNo. 87-19933 as a 243(b) Battery Against a Peace Officer. However, when petitioner returnedto court, his attorneyBroomeinformedthe court that petitioner “had been beaten up and was bloody when he cameinto the courtroom” on the previous day. (RT Misc. Vol. 1 at 21.) Petitioner was x-rayed for a broken rib, and had multiple abrasionsonhis face and bruiseson his ribs. (RT Misc. Vol. 1 at 6-7.) Only a few dayslater, the court determined that a competency hearing on petitioner’s competenceto stand trial would not occur. The court was on noticeofthe wealth ofphysicalinjuriesthatpetitioner sustainedat the hands of the Alameda County Sheriffs. 3. On April 13, 1989 petitioner stated to the court that he was being harassed by an Alameda County sheriff’s deputy, who wasputting his fingers in petitioner’s face and calling him a “baby killer.” The court 124 respondedthatit would orderthe transportingsheriffs “not to discuss anything aboutthis case or any of the allegations.” (RT 3313-3314.) 4. Petitioner was beaten by three deputies on his wayto court on May8, 1989. He received bruises andscratchesonhis face, and his legs and back were hurt. He requested a hearingonthe incidentand askedifthe court had authority to send him to Highland Hospital for an examination. The court responded thatit did have the authority, but would not so order. (RT 3704- 3707.) 5. Petitioner objected to a Sergeant Herbert making comments about petitioner’s mother during recess. Defense counsel asked for a court order that no sheriff's deputy talk to petitioner except during the normal course of business. The court refused to make an orderandstated: “I don’t understand yourclient, incidentally.” (RT 3780-3784). 6. Petitioner was extensively put on disciplinary diets by the staff ofthe North County Jail. These “disciplinary diets” were ostensibly utilized as punishmentfor disciplinary infractions. These include, but are not limited to the following: 1. On November4, 1987, petitioner received 3 days ofa disciplinary diet. 2. On December 22, 1987, petitioner received 3 days of a disciplinary diet. 3. On December27, 1987, petitioner received 3 days of a disciplinary diet. 4. On January 18, 1988, petitioner received 3 days of a disciplinary diet. 125 10. 11. 12. 13. 14. 15. 16. 17. On January 19, 1988, petitioner received 3 days of a disciplinary diet. . On April 2, 1988, petitioner received 3 days of a disciplinary diet. On April 12, 1988, petitioner received 3 days of a disciplinary diet. On April 13, 1988, petitioner received 3 days of a disciplinary diet. On August 13, 1988, petitioner.received 3 days of a disciplinary diet. On August 14, 1988, petitioner received 3 days of a disciplinary diet. On September 23, 1988,petitioner received 3 days of a disciplinary diet. Again on September 23, 1988, petitioner received 3 days of a disciplinary diet. On October 9, 1988, petitioner received 3 days of a disciplinary diet. On December24, 1988, petitioner received 3 days of disciplinary diet. On January 15, 1989, petitioner received 3 days of a disciplinary diet. | On May 22, 1989, petitioner received 3 days of a disciplinary diet. On May 30, 1989, petitioner received 3 days of a disciplinary diet. 126 7. The Alameda County Jail Disciplinary Regulationsstate that authorization ofmedical staff is required before imposinga disciplinary diet on an inmate, “to insure [sic] that there are no medical implications in imposing the diet.” (Exhibit 84, Alameda County Jail Disciplinary Regulations, May 1987.) On 17 separate occasions, petitioner was punished with a disciplinary diet. However, no medical staff approved the initial imposition ofany disciplinary diet imposed on petitioner, in direet violation of the Alameda County Jail Disciplinary Regulations. 8. Further, the Disciplinary Regulationsstate that the disciplinary diet“shall not be continued for more than seventy-two (72) hours without the written approval of a physician.” (/bid.) Onat least four separate occasions, petitioner was sentenced to a three-daydisciplinary diet in two consecutive disciplinary periodsoftime, resulting in six days ofdisciplinary diet. The disciplinary diet consisted of two slices of bread, a piece of meat loaf, and water, twice a day. No medicalstaffeverprovided the requisite approval for the prolonged,disciplinary diet imposed uponpetitioner. Again, the Alameda County Sheriff's Department/North County Jail contravened their own internal regulations. 9. Disciplinary diets are considered highly damaging to incarcerated individuals, and in instances have been found unlawful and unconstitutional. There was significant testimony on the record from law enforcement officers about the non-use, mis-use and prohibitions on this prejudicial deprivation. On November30, 1988 Captain Steven Lawrence, DepartmentofCorrections, Sacramento,testified to an incident where he was the correctional lieutenant assigned to Soledad. Petitioner’s counsel asked him if they’d ever had a disciplinary diet. Captain Lawrence responded,“I 127 don’t think they ever —I don’t know. I don’t think theyuse that any more. I don’t think that it’s ever been used.” (RT 279.) 10. On June 28, 1989 Sergeant Anthony Lee of San Quentin testified that a disciplinary dietis “a hard substancediet of things that [the prisoner] can’t throw,things that — and it has to be ordered by a doctor.” He further stated, “I’ve been thereten years, and I’ve neverseenthat.” (RT 4833- 5834 (emphasis added).) 11. On June 28, 1989 Captain Steven Lawrence, DOC Sacramento, testified regarding the disciplinary diet. He stated, “Asfar as I know,that’s by the wayside now. We don’t do disciplinary diets.” (RT 5865-5866.) 12. Petitioner’s counsel was very concerned about the use of disciplinary diets and the impact upon petitioner. The court, however, expressly refused to inquire further as to this putative and egregious form of punishment. MR. STRELLIS: You don’t want to know what is a disciplinary diet? THE COURT:Correct... I may want to know,but I’m not going to develop this with you. I may ask him later .. . (RT 569.) The court never renewed any inquiry about this form ofpunishment, or its impact upon the physical or mental well-being ofpetitioner. 13. On numerous occasions, petitioner’s legal materials were either confiscated, purposely placed out of order or otherwise disturbed, by sheriff's deputies and other law enforcement personnel: a. On November2, 1987, petitioner’s counsel stated: 128 Even in this courtroom when he has come in to this courtroom on motions that the atmosphere makes it impossible for him to think, that he has not been able to do some things that he wants to do with his legal papers and even persons have gonein to his legal papers and, shall we say, changedor rearrangedtheir general condition suchthat he has problemsrelocating things. And certainly all ofthis goesto the coercion and duresshe has been underduring the past few months (CT 780-781.) b. On December 17, 1987 petitionerstated,inter alia, to the court that, “the sheriff department is confiscating my legal materials, Your Honor...” (RT Misc. Vol. 1 at p. 20.) c. On November9, 1988 petitioner stated to the judge, “They torn up my few legal files and my folder. I have myfolderright now, as you Can see is torn up and misarranged, my papers.” (RT 3.) d. On December1, 1987, petitioner requested a restraining order to prohibit sheriff's deputies from “interfering and searching mycell and my legal materials or any other of the kind out of the presence of the defendant.” (CT 1666-1667.) e. On January 9, 1989, petitioner made the following request: DEFENDANT: I wanted to request the Court order the sheriff's department to stop searching mycells, my legal papers, my legalfiles because every timeI look at the legal files it’s statements that’s been within — received and transcribed by the District Attorney’s Office been changed, rearranged... THE COURT:I will order the sheriffnot to go through your papers. 129 (RT 790-791.) f. However,three dayslater, petitioner told the court: And after I again returned from court proceedingsyesterday, again mylegal materials has been rambled through and has been ongoing problem since I’ve been in the North County Jail facility, Your Honor. (RT 941.) 14. Petitionerwas denied normalvisitation rights from the time of his arrest up to the time ofvoir dire. In fact, it required court orders in order for petitioner to receive the visits which all prisoners are allowed: a. On August 26, 1987 Judge Moore grantedpetitioner’s request for regular visits. (CT 489.) b. On December1, 1987 Judge Walsh orally ordered that petitioner was“entitled to the visitation rights ofany people whoareentitled to them in the North County Jail, no more, no less.” (CT 1622.) c. On October 3, 1988 the petitioner said that he had not had any contact with family or friends, and his counsel agreed that there had been no visits. Petitioner further stated: Two years I’ve been imprisoned by Alameda County Sheriff's Departmentwithoutvisits and contacts with my family. I’m ata total mental breakdownat this point in time in these proceedings. (RT Misc. Vol. 2 at pp. 4-5 and p.7.) d. On November 21, 1988 petitioner stated that his visits were “on and off again for the last two years.” Judge Golde ordered petitioner to have the samevisitation rights “‘as any other prisoner in North County Jail.” (RT 98-99.) 130 e. On November 23, 1988 petitioner again brought up visitation. The court responded that the petitioner had the samevisiting privileges “that every other prisoner in your situation gets.” (RT 161.) 15. Numerous complaints and requests were madeto stop the official abuse, mistreatment, physical and mental injury to petitioner, and direct interference with his relationship with his counsel: a. On June 23, 1987 petitioner’s counsel Broome requested relieffrom restriction ofpetitioner only being permitted one hour ofexercise a day, and onlybeing allowed clothesthat did notfit. Judge Parrilli informed Broomethat he needed to contact the North County Jail with the request. (CT 491.) Judge Parrilli refused to act on that request. b. On September 18, 1987 petitioner’s counsel Broome asked the court to restrain the sheriff's department from restricting petitioner’s diet between that date and a requested hearing on the excessive, putative and egregiousdiscipline exacted on petitioner. The court refused to restrain the sheriff's departmentfrom restricting petitioner’s diet because,it stated, a court does not have jurisdiction over a sheriff's department. (CT 765-767.) c. On September 30, 1987 petitioner’s counsel Broome informed the court that he had requested petitioner’s chains to be removed during attorney-client interviewsin jail. He felt that it was impossible to conduct an adequate attorney-client interview orrelationship while petitioner wasso heavily shackled. He was informedby thesheriffs deputies, “No, by order of the sergeant these chainsare to stay on him at all times.” (CT 716.) 16. ‘Thetrial court’s failure.to promptly ensure the immediate abatementofthe physical, mental and emotional abuseofpetitioner, andall 131 unconstitutional conduct by state actors within Alameda County, violated petitioner’s rights to a fair trial; protection from cruel and unusual punishment;a trial judge who was unbiased and conducted theproceedings with notonly fairness, but an appearanceoffairness. Thetrial court’s further failure to take this treatment into accountandto act accordingly also violated petitioner’srightto fairtrial; due process of law; and a trial judge who was unbiased and conducted the proceedings with no only fairness, but an appearance offairness. 17. Petitioner was severely prejudiced throughout the guilt and penalty phasesby these errors. (Exhibit 2, Declaration of Samuel Benson; Exhibit 30, Declaration of Spencer Strellis.) Further, these errors were particularly egregiousin view ofthe heightened requirementforreliability in a capital proceeding, where death is the potential punishmentandthe oneto which petitioner was in fact sentenced. Accordingly, the requested relief should be granted. D. Eacherrorin violation of the Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution,individuallyand/or collectively, had a substantial and injuriouseffector influence in determining the jury’s verdict. Claim 6: Juror Misconduct: Private Communications by Bailiff to Jurors of Material, Extrinsic Evidence A. Petitioner’s conviction and sentenceofdeath areviolationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution because 132 during the courseofthe trial, and prior to both the guilt and penalty verdicts, the bailiff communicated crucial, extrinsic information to the jurors. This information included statements regardingpetitioner’s alleged urinationin the well ofthe courtroom and material communicationsthatpetitionerwas violent and had threatened witnessesin his proceeding. Noneofthis information had ever been proffered or admitted in open court. It was material both to petitioner’s guilt and penalty, and thereby constituted error mandating reversal. These errors prejudicially impacted petitioner’s rights to an impartial jury;a fair trial; rights guaranteed by the confrontation clause; due process;the right to a trial judge and court personnel whoare unbiased; and the right to fair and reliable capital proceedings and sentence. B. The following United States Supreme Court decisions,inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Mattox v. United States (1892) 146 U.S.40 (bailiff’s communication with a _ Juror in a capital case fundamental error mandating reversal); Parker v. Gladden (1966) 385 U.S. 363 (bailiffs subjective statement on defendant’s guilt to ajuror violated right to impartialjurynecessitating reversal ofmurder conviction); Turner v. Louisiana (1965) 379 U.S. 466 (trial by jury constitutionallymandates that evidence developed against criminal defendant shall not be extrinsic); Jrwin v. Dowd (1961) 366 U.S. 717 (right to jury trial guaranteesfair trial by a panel of impartial, “indifferent” jurors); Estelle v. Williams (1976) 425 U.S. 501 (unacceptable constitutional risk presented when impermissible factors comeintoplay in the courtroom); Chandlerv. Florida (1981) 449 U.S. 560 (highly publicized criminaltrial presents risk of compromising rightto fair trial); Sheppard v. Maxwell (1966) 384 U.S. 333 133 (external publicity and circumstances deprive defendantrightof fairtrial); Estes v. Texas (1965) 381 U.S. 532 (prejudice presumed where significant media on court proceedings duringtrial); Rideau v. Louisiana (1963) 373 U.S. 723 (prejudice presumed dueto crucialpretrial publicity); Batson v. Kentucky (1986) 476 U.S. 79 (prosecutor’s use of peremptory challenges violation of equal protection); Caldwell v. Mississippi (1985) 472 U.S. 320 (prosecutorial misconduct); UnitedStates v. Burr (1807) 25 Fed. Cas. 25, no. 14,692b CCD.Va. (fundamental right to fair and impartial tribunal); Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentence partially based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Beck v. Alabama (1980) 447 U.S. 625 (constitutional requirements in capital proceeding apply to guilt phase); Hicks v. Oklahoma ~ (1979) 447 U.S. 343 (federal due process claim in state-created right); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendmentrightto trial byjury entitle criminal defendant to a jury determination that he is guilty of every elementofthe crime with whichis he charged, beyond a reasonable doubt — labeling as “sentencing factor” does not negate this right). C. The following facts, among others to be developed after adequate funding,discovery, investigation, and an evidentiaryhearing, are presented in support ofthis claim: 134 1. During the trial, the jurors developed a uniquely close unconstitutional relationship with the bailiff. (Exhibit 8, Declaration of Joseph Cruz; Exhibit 11, Declaration of Joanne Gonzales; Exhibit 35, Declaration of Bernard Wells.) 2. Thebailiff, whom the prosecutor recognized in his closing argumentas, “Mr. Dimsdale, the.coffee making bailiff and your friend” (RT 6137) took it upon himselfto communicateprejudicial, material, out-of-court “evidence”to the jurors duringthe trial. Alternatejuror Bernard Wells, who waspresent throughoutthe trial and deliberations, declared: The bailifffed somejurors information thatfocused on what a bad man Mr. Welch was. He said that Mr. Welch was threatening witnesses and that even though there were more witnesses against him, some refusedto testify because they were too scared ofMr. Welch. On one occasion, the bailiff told us that one of the prosecution witnesses had specifically been threatened and that something might happento the witness. Sure enough, during his testimony, from the back of the room came a sudden, loud noise that madeall of us startle and look over. It turned to be nothing but an excellent indicator ofhow muchinfluencethe bailiff had over us and our fear. The bailiff also told us that Mr. Welch urinatedin the stairwell on the way to andfrom court. The bailiffactually showed us where he urinated. We knew this was the route Mr. Welch took becausethebailiff told us that he was housed above the court room and wasbrought down to the court room. Once, during the guilt phase, I saw Mr. Welch surrounded by guards being escorted to and from the court room, dressed in his court clothes with shackle on his hands and legs. I remember Mr. Welch cradled paperwork he carried in front ofhm in his shackled hands. I guess they took his shacklesoffonce he got into the court room. During trial, we also learned, either from the newspapersor from the bailiff, that the police hadto fly Barbara Mabreyin totestify 135 because she wasso afraid that Mr. Welch wasgoing to kill her that she refused to live in the area. (Exhibit 35, Declaration ofBernard Wells at p. 2. (emphasis added.) 3. The bailiffs communication of prejudicial, extrinsic evidence and impact that evidence had uponthe jurors, also has been attested to by juror Joseph Cruz: Contributing to thejurors’fear ofMr. Welch was thefact that we learnedfrom the bailiff that witnesses in the case had been threatened, which contributed to the tense atmosphere in the court room. For example,the bailiff told us about threats made to a specific witness. While that witness wastestifying, a loud, bang-like noise came from the back of the court room. Because we were expecting something to happen weall startled and looked to the back. It turned out to be nothing, but we did talk aboutthe noise. I started to become concerned about my ownsafety, and used to keep an eye out on my wayto and from the car. I thought about possible connections Mr. Welch hadto the outside world. (Exhibit 8, Declaration of Joseph Cruzat p.2 (emphasis added.) 4. For over 100 years, the United States Supreme Court has consistently held that such receipt of extrinsic information in a criminal proceeding is prejudicial error compelling reversal. Nowhere is the prohibition against this out-of-court communication morestrictly enforced than in a capital case. As the Supreme Court held in 1892, where they reversed a conviction due to such communication: It is vital in a capital case, that the jury should pass uponthe case free from external causes tending to disturb the exercise of deliberate and unbiased judgment. Nor can any 136 groundofsuspicion that the administration ofjustice has been interfered with be tolerated. (Mattox v. United States, supra, 146 U.S.at p. 150.) 5. The unauthorized, extrinsic communication is prejudicial, requiring reversal, even if only one juror became awareofthe prejudicial information. (See Parker v. Gladden, supra, 385 U.S.at p. 366 (a defendant is “entitled to be tried by 12, not 9, or even 10, impartial and unprejudiced jurors.”); (Lawson v. Borg (9Cir. 1995) 60 F.3d 608, 612) (“Even a single juror’s improperly influenced vote deprives the defendantofan unprejudiced, unanimousverdict.”); see also (Jeffries v. Wood (9" Cir. 1997) 114 F.3d 1494 (en banc)(cert. den.) 522 U.S. 1007) (granting habeasrelief, vacating death sentence and aggravated murder conviction because onejuror informed another juror that defendant had a criminal record).) 6. In Parker v. Gladden, supra, 385 U.S. 363, the United States Supreme Court held that a bailiff’s comments to a juror, which were more innocuousthan thosein the presentcase, violated the Sixth Amendment and thereby granted the defendant, convicted of murder, a newtrial. The rights underscored by the United States Supreme Court command the sameresult in the instant case. Webelieve that the statements of the bailiff to the jurors are controlled by the command of the Sixth Amendment, made applicable to the States through the Due Process Clause ofthe Fourteenth Amendment. It guarantees that “the accused shall enjoy the right toa... trial, by an impartial jury . . . [and] be confronted with the witnesses against him...” As we said in Turner v. Louisiana, 379 U.S. 466, 472-473 (1965), “the evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the 137 defendant’s right ofconfrontation, ofcross-examination, and of counsel.” Here there is dispute neither as to what the bailiff, an officer ofthe State, said nor that when hesaidit he was not subjected to confrontation, cross-examinationorother safeguards guaranteed to the petitioner. Rather, his expressions were “private talk,” tending to reach the jury by “outside influence.” Patterson v. Colorado, 205 U.S. 454, 462 (1907). We have followed the “undeviating rule,” Shepard v. Maxwell, 384 U.S. 333, 351 (1966),that the rights of confrontation and cross-examination are among the fundamental requirements of a constitutionally fair trial. Kirby v. United States, 174 U.S. 47, 55, 56 (1899); In re Oliver, 333 U.S. 257, 273 (1948); Pointer v. Texas, 380 U.S. 400 (1965). (Parker v. Gladden, supra, 385 U.S.at pp.365-366.) 7. The extrinsic communication here had an immediate, demonstrable impact on the jurors who heardit. It made them deeply afraid of petitioner. (Exhibit 35, Declaration of Bernard Wells; Exhibit 8, Declaration ofJoseph Cruz.) It made them afraidofbeingin the courtroom. It made them afraid to walk to their cars. (Exhibit 11, Declaration ofJoanne Gonzales.) Significantly, the bailiff’s secretive, unsubstantiated “facts” aboutpetitioner’s alleged threats directly supplied a material element in both the guilt and penalty arguments ofthe prosecution’s case. (RT 5569.) In his penalty phase closing argument, the prosecutor repeatedly warned the jurors that ifthey did not sendthis petitioner to death, he would commit hypothetical violent acts. (RT 6138-6142.) He further directed the jury that they “have a responsibility for those other persons who mayormaynot deserve Moochie Welch.” (RT 6138.) He argued that it was necessary to impose death, because: 138 You give him life without parole and everytime [sic] he goesto the yard for exercise, you give him life without parole, everytime [sic] he is escorted to the shower or to have a visit you are going to have hundreds of Harry Lords and Roy Gowins. Do you want that on your conscience? A vicious killer of six who is dangerous to this day, even by both his witnesses. Whohates authority figures. Who will come into a ~~ contact with guardsandothersfor the rest ofhis life if you give him that benefit, if you excuse his conduct and not give him the death penalty. There will be hundreds and more DeputyLordswith brokenribs and hundreds morecorrectional officer Gowinswith feces in the face andsplit skulls. (RT 6139.) 8. The bailiffs unconstitutional communication was not an isolated incident. Rather, in this case the bailiff had a uniquely close relationship with thejury throughoutthetrial. The bailifftook the jurors out to eat and to shop during the deliberations. Thebailiff also drove the jurors to Pier 1 Imports,“so the women could get some shopping done while the men sat around andtalked.” (Exhibit 35, Declaration of Bernard Wells,at p. 4.) Juror Cruz declared, ““A few times the bailiff took us in a van to restaurants outside the vicinity ofthe courthouse. I rememberweate at the Gingerbread House and Mexicali Rose in Alameda. Eventhe alternates were included with us, ate with us, and joined in our discussions.” (Exhibit 8, Declaration of Joseph Cruz at p. 3.) 9. The personalrelationship betweenthe bailiffand thejurors even extendedto the bailiffs family. JurorJoanne Gonzales declared,“I recall the bailiffwas expecting a baby. During a two-hourlunchbreak, wejurors threw 139 him a baby shower. His wife waspresent as well.” (Exhibit 11, Declaration of Joanne Gonzales.) 10. There were other unique circumstances contributing to the constitutional error and prejudice in this case. Jurors provided information about the case to other jurors, based upon newspapers they read about the case during the trial. As alternate juror Bernard Wells stated: The information provided by the bailiff and the newspapersjurors read during the trial about this casereally made a numberofjurors think badly ofMr. Welch. Not long after we started hearing all ofthis information duringthe guilt phase testimony, some of the jurors started saying that Mr. Welch wasthreatening them. (Exhibit 35, Declaration of Bernard Wells at p. 3.) This receipt of extrinsic evidence from the media during trial was corroborated by juror Joseph Cruz. “Because there was so muchpress, it washard notto read anythingin the papers. Stuff did end up comingin from the newspapers.” (Exhibit 8, Declaration of Joseph Cruz at p.3.) Bernard Wells underscored the impact and import ofthis extrinsic informationin the deliberations. “The information wereceived outside the courtroom became the main focus of our deliberations.” (Exhibit 35, Declaration of Bernard Wells at pp. 2-3.) 11. Mr. Wells, an alternate, was present during those deliberations. (Id. at p. 1.) There were,in fact, four alternate jurors who potentially acted as jurors in determining the appropriate verdicts. In fact, juror Cruz referenced alternate juror Wells as “One juror, who had an activepart in the deliberations”. (Exhibit 8, Declaration of Joseph Cruz at p.1.) 140 12. The communication andreceipt ofmaterial, extrinsic evidence denied petitioner his rights to a fair trial; impartial tribunal; confrontation clause rights; due process; and a fair and reliable capital proceeding and sentencing determination. D. Each oftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution,individually and/or collectively, had a substantial and injurious effect or influence in determiningthe jury’s verdict. Claim 7: Prejudicial Courtroom Atmosphere A. Petitioner’s conviction and sentence ofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution because throughout the trial the jury was exposed on an almost daily basis to the shouts of spectators in the courtroom clamoring for the jury to execute petitioner. This heated, vengeful atmosphere influencedthejury’s verdict and prejudicially denied petitioner’s rights to an impartial jury;a fairtrial; rights guaranteed bythe confrontation clause; due process; the right to an unbiased trialjudge; and theright to fair and reliable capital proceedings and sentence. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support of this claim: Mattox v. United States (1892) 146 U.S. 40 (bailiffs communication with a juror in a capital case fundamental error mandating reversal); Parkerv. 141 Gladden (1966) 385 U.S. 363 (bailiff’s subjective statement on defendant’s guilt to ajurorviolatedright to impartialjury necessitating reversal ofmurder conviction); Turner v. Louisiana (1965) 379 U.S. 466 (trial by jury constitutionallymandates that evidence developed against criminal defendant shall not be extrinsic); Jrwin v. Dowd (1961) 366 U.S. 717 (right to jury trial guaranteesfair trial by a panel of impartial, “indifferent” jurors); Estelle v. Williams (1976) 425 U.S. 501 (unacceptable constitutional risk presented whenimpermissible factors comeinto play in the courtroom); Chandlerv. Florida (1981) 449 U.S. 560 (highly publicized criminaltrial presents risk of compromisingrightto fair trial); Sheppard v. Maxwell (1966) 384 U.S. 333 (external publicity and circumstances deprive defendantrightoffair trial); Estes v. Texas (1965) 381 U.S. 532 (prejudice presumed where significant media on court proceedings duringtrial); Rideau v. Louisiana (1963) 373 U.S. 723 (prejudice presumed dueto crucial pretrial publicity); Batson v. Kentucky (1986) 476 U.S. 79 (prosecutor’s use of peremptory challenges violation of equal protection); Caldwell v. Mississippi (1985) 472 U.S. 320 (prosecutorial misconduct); UnitedStates v. Burr (1807) 25 Fed. Cas. 25, no. 14,692b CCD. Va. (fundamental right to fair and impartial tribunal); Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentence partially based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Beck v. Alabama (1980) 447 U.S. 625 (constitutional requirementsin capital proceeding applyto guilt phase); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); and 142 including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendmentrightto trial byjury entitle criminal defendant to a jury determination that heis guilty of every elementofthe crime with whichis he charged, beyond a reasonable doubt — labeling as “sentencing factor” does not negatethisright). - C.— Fhe following facts,among others to be developed after adequate funding, discovery, investigation, and an evidentiaryhearing, are presented in support ofthis claim: l. Prior to and during petitioner’s trial, there was extensive publicity regarding whatthe prosecutor,in his opening guilt phase argument, called a trial “about a day ofinfamy . . : Oakland’s day of infamy, December 8, 1986, 45 years and one dayafter the attack on Pearl Harbor.” (RT 3870.) (See RT 5478,closing guilt phase argument.) The publicity at the time ofthis case was similarly inflammatory. In support of this claim, petitioner incorporates by reference Claim 53, Failure to Change Venue. 2. There were a numberofextrinsic influenceson thejurors during both the guilt and penalty phases, and some of these caused the jurors to actually feel threatened. Becauseofextrinsic information communicated to the jurors by the bailiff the jurors believed there could be violence in the courtroom. Onejuror wasso afraid she askedthe bailiff to walk herto the parking lot. (Exhibit 8, Declaration of Joseph Cruz at p.3; Exhibit 35, Declaration of Bernard Wells at p. 3; Exhibit 11, Declaration of Joanne Gonzales.) 3. It was within this environmentthejury was exposed to repeated, prejudicial outbursts by spectators. According to juror Joanne Gonzales: 143 During the trial, there were many, many loud outbursts by courtroom spectators, all of whom hated David. They yelled such things as “The jury is going to make you fry!” It was quite distracting, and happenedjust about every day. (Exhibit 11, Declaration of Joanne Gonzales.) 4. The United States Supreme Court and the United States Court ofAppeals for the Ninth Circuit have reaffirmed the longstanding right ofa criminal defendant to be tried in an atmosphere undisturbed by public passion. (Irwin v. Down (1961) 366 U.S. 717, 728.) . The highest Court has instructed that: The right to jury trial guarantees to the criminally accuseda fair trial bya panelofimpartial, ‘indifferent’ jurors. The failure to accord an accuseda fair hearing violates even the minimal standards of due process.” . . . “In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection ofthe defendant’s right ofconfrontation, ofcross- examination, and of counsel.” (Turner v. Louisiana, supra, 379 U.S.at p. 472-473 quoting Irvin v. Dowd, supra 366 U.S. at p. 722.) (See Norris v. Risley (9" Cir. 1989) 878 F.2d 1178 (reversing denial of writ of habeas corpus wherepetitioner’s right to fair trial was jeopardized by spectators wearing Women Against Rapebuttons.) 5. The atmospherein petitioner’s courtroom created by the daily taunts and prejudicial outbursts of spectators constituted reversible error. The constitutional safeguardsrelating to the integrity of the criminal process attend every stage of a criminal proceeding,starting with arrest and culminating witha trial“in a courtroom presided overby ajudge.” (Rideau v. Louisiana 144 (1963) 373 U.S. 723, 727.) There can be no doubt that they embrace the fundamental conception ofa fair trial, and that they exclude influence or domination byeither a hostile or friendly mob. There is no room at any stage ofjudicial proceedings for such intervention; mob law is the very antithesis of due process. (Cox v. Louisiana (1965) 379 U.S. 559,at p. 562.) 6. In petitioner’s case, there was an unacceptable risk of impermissible factors coming into play, due to the spectators’ repeated outbursts within the forum in whichpetitioner’s life was at stake. Indeed, one juror declaredthat this volatile environmentwasrelentless and“distracting.” These circumstances were “so inherently prejudicial as to pose an unacceptable threat” to petitioner’s right to a fair trial. (Holbrook v. Flynn (1986) 475 U.S. 560, 572.) At a minimum,this assaultive barrage dissuaded thejury from their constitutionallymandated duty. This error wasprejudicial and denied petitioner’s rights to an impartial jury; a fair trial; rights guaranteed by the confrontation clause; due process;the right to a trialjudge and court personnel whoare unbiased; and the rightto fair and reliable capital proceedings and sentence. D. Each oftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. 145 Claim 8: State Misconduct — Tampering With Exculpatory Forensic Evidence A. Petitioner’s conviction and sentence of death are in violation of the © Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, 16, and 17 of the California Constitution because the prosecution suppressed, destroyed, tampered with, and failed to preserve evidence the materiality and exculpatory nature of which wasapparent before its destruction, and which petitioner would have been unable to obtain by other means. The prosecution suppressed, destroyed, tampered with, and/or failed to preserve blood drawn from petitioner at the time of his admission to Highland Hospital on December8, 1986, which had not been subjected to a quantitative analysis, and which would have showedthat petitioner was intoxicated on alcohol, cocaine, and morphineto such a degree that he could not have formed and did notactually form the mental states required for first degree murder. The suppression, destruction, tampering, andfailure to preserve this evidence also constituted prosecutorial misconduct. The state’s misconduct regarding this evidence deprived petitioner of his federal and state constitutional rights to due process, the right to confront and cross-examine adverse witnesses, the effective assistance of counsel, a fair and reliable determinationofguilt and penalty, trial by an unbiased tribunal, trial by jury, and fairtrial. | B. The following United States Supreme Court decisions, inter alia, in effect at the time the errors occurred, are presented in support ofthis claim: Arizona v. Youngblood (1988) 488 U.S. 51 (state’s bad faith failure to preserve material evidenceviolates due process); Brady v. Maryland (1963) 146 373 U.S. 83 (withholding of evidence favorable to accused violates due process); California v. Trombetta (1984) 467 U.S. 479 (state’s duty to preserve evidence); Giglio v. United States (1972) 405 U.S. 150 (Brady doctrine includes impeachmentevidence as well as exculpatory evidence); United States v. Bagley (1985) 473 U.S. 667 (same); United States v. Agurs (1976) 427 U.S. 97 (Brady rules apply to evidence which would affect the outcome on penalty as well as guilt issues); Mooney v. Holohan (1935) 294 U.S. 103 (prosecutor’s nondisclosure of knowingly perjured testimony violated due process); Napue v. Illinois (1959) 360 U.S. 264 (due process violated by false testimony regardless of whether prosecutorsolicited it or merely allowedit to go uncorrected); Miller v. Pate (1967) 386 U.S. 1 (14% Amendmentcannottolerate prosecution’s knowing presentation of false evidence) Alcorta v. Texas (1957) 355 U.S. 28 (due process violated when prosecutor failed to correct misleading impression left by witness’s testimony); DeMarco v. United States (1974) 415 U.S. 449 (if plea bargain made prior to testimony, reversal of conviction required under Giglio and Napue); Donnelly v. DeChristoforo (1974) 416 U.S. 637 (false evidence includes introduction of specific misleading evidence important to government’s case); Pyle v. Kansas (1942) 317 U.S. 213 (knowing use of perjured testimony anddeliberate suppression offavorable testimonyrequires reversal); Imbler v. Pachtman (1976) 424U.S. 409 (obligation ofprosecution to deal fairly in disclosing information and correcting misinformation continues after conviction); Berger v. United States (1935) 295 U.S. 78 (prosecutor shall not use improper methods to produce a wrongful conviction); Pointer v. Texas, 380 U.S. 400 (1965) (confrontation clause provides criminal] defendantright to directly confront adversarial evidence); 147 Douglas v. Alabama (1965) 380 U.S. 415 (right to confront includesright to cross-examine adverse witnesses); Gardnerv. Florida, 430 U.S. 439 (1977) ) (due process violation in capital proceeding wherepetitioner sentenced on basis of unreliable information); Beck v. Alabama (1980) 447 U.S. 625 (EighthAmendmentalso requiresheightenedreliability in guilt determination in capital cases); Hicks v. Oklahoma, 447 U.S. 343 (1979) (federal due process claim in state-created right). C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support of this claim: 1. Petitioner incorporates by referenceasif fully set forth herein the facts and law included in Claims1, 9 through 17, 21 and 25. 2. The killings in this case took place at approximately 5 a.m. on the morning ofDecember8, 1986. Petitioner was shotin the leg during the incident and wastaken to the homeofhis cousin, Beverly Jermany, where he lay on a bed for the next several hours as his co-defendant, Rita Lewis, attemptedto treat him for his wounds. Police surroundedthe house, arrested petitionerat 1:30 p.m. and Lewis,andtookpetitioner to Highland Hospitalfor treatment. | 3. Upon admission to the hospital, at approximately 2:00 p.m., samples of blood and urine were taken from petitioner as part of standard admission procedures. The blood sample waskept underrefrigeration bythe hospital. The urine sample wassentto the hospital’s off-site laboratory for a trauma drug screen to determine whetherit contained drugs ofabuse. The urine sample tested positive for alcohol, cocaine, and morphine,but notest 148 wasperformedto determine the quantities ofthese drugs in the sample. Over the next several weeks, more blood samples were taken from petitioner, and these too were preserved. , 4. Eight days later, on December 16, 1986, Oakland Police Sergeant Pete Peterson telephoned Highland Hospital, confirmed that the hospital had the blood sample takenat petitioner’s admission, and prepared a search warrantaffidavit stating that the police needed to obtain the blood in orderto test it for the presence ofdrugs and alcohol and to match the blood against forensic evidence samples taken from the sceneofthe killings. Two days later, on December18, Peterson served the search warrant on Highland Hospital staff, returned with several stoppered tubes of blood, and booked this evidence into the property room. (RT 5153-5160.) However, contrary to departmental procedures, the property slip Peterson prepared failed to describe the tubes and wasnotsigned by a receiving property room officer, the person whoresponsible for the preservation of evidence. 5. Peterson did not take the blood to the county forensic laboratory, International Clinical Laboratories, for analysis until January 13, 1987, more than a month after the killings. (Exhibit 27, Declaration ofJudy Stewart.) Peterson turned overthree tubes which werelabeled as having been obtained from petitioner, but none were dated December8", the day of the incident and petitioner’s admission to the hospital. One tube had nodate, another was dated December 14", and the third was dated Dec. 19" - one full day after Sgt. Peterson seized the blood. These samples were evaluated and foundto be either negative and/or inadequate in volumeor solubility for testing. (/bid.) Records of the Institute of Forensic Sciencesestablish that 149 no other analysis of petitioner’s blood was attempted or performed at the ordered of the Oakland Police Department. 6. Priorto trial, the defense requested discovery of all evidence relating to the testing of petitioner’s blood. These requests were granted. (CT 545-546.) 7. At trial, Sergeant Peterson was asked to explain the facts surrounding the seizure ofthe blood evidence. Hestated that he had kept a typewritten log of his activity, referred to his log, and confirmed that the hospital had taken blood and urine samples from petitioner on December8, 1987. He stated that he had obtained a search warrant and picked the samples up on December18, 1986, and then took the samples to the Oakland Police Department property section. He stated that both a quantitative and qualitative analysis were ordered by the hospital on December8, but that on December19, he had received only a qualitative analysis. (RT 5153-5160.) Shortly thereafter, Dr. Paul Herrmann,a forensic pathologistand director of International Clinical Laboratories, which performedthe analysis on the blood samples, confirmedthat“There is no record ofany quantitative tests” having been performed on the blood. (RT 5343.) 8. Because of the lack of any quantitative testing on the blood, petitioner’s defense counsel were unableto present any evidence ofwhether petitioner’s formation of the mental states required for first degree murder wasaffected by drugs and alcohol at the time ofthe killings. Dr. Fred Rosenthal, an expert witness called by the defenseto testify regarding the effects of drugs and alcohol on cognition, was only able to speak generally about the effects of drugs and alcohol but was unable to apply this , information to petitioner’s case. Rosenthaltestified that the absence of a 150 quantitative analysis was highly unusual. “Itis strange but the laboratory did not do an evaluation that gave those values,” he said. “All they gave was whether there was a presenceor absence ofthis material.” (RT 5246.) 9. The prosecutorcapitalized on the lack ofa quantitative analysis of the blood and contendedthat petitioner was unimpairedat the time ofthe killings. For example, during the testimony of defense exprt Dr. William Pierce, counsel asked the expert whether the effectsofintoxication further- aggravatedpetitioner’s existing mental impairments. The prosecutor objected that there was no evidenceofintoxication at the time of the killings, and the court sustained the objection and intervened to convert the form of defense counsel’s question into a hypothetical. (RT 5971-5972.) In addition, the prosecutorrelied heavily on the absence of a quantitative analysis in his closing argument to the jury. The prosecutor dismissed Dr. Rosenthal’s testimony as “meaningless.” The defense theory of intoxication was incredible, he argued: ... because there were no facts upon which he could possibly base any opinion on any other thing but one simple piece of paper, Defendant’sI, and thatis a lab report saying that ethanolacetone, the results ofalcohol metabolizing in the body wasin the urine, cocaine waspresent in the urine. Morphine waspresent in the urine. He can give no opinion other than it might have affected. It might. Well, the sky might fall too. (RT 5519.) 10. The prosecutor continued his attack on Dr. Rosenthal’s testimony and the weaknessofthe defense intoxication contentionsatlength, noting that the defense had not given Rosenthal copies of the police reports detailing petitioner’s alleged actions, and excoriated the expert as “a paid 151 defense witness” whohad “a long history of working for the defense only.” (RT 5520.) 11. The prosecutor continued to capitalize on the lack of a quantitative analysis on rebuttal, arguing that although defense counsel had obtained testimony from other witnesses suggesting that petitioner was high on drugsat 9:00 p.m.on the night ofDecember7, there was no evidence that petitioner was intoxicatedat the time ofthe killings “eight plus hours”later, and that petitioner’s cousin hadtestified that he did not appear to be high whenhearrived at her house between 5:00 and 6:00 a.m. (RT 5557-5558.) . 12. The prosecutor also exploited this weakness in the defense case in his penalty closing, implying that the defense had apparently abandonedtheintoxication defense becauseit did not produce Dr. Rosenthal again in the penalty phase and instead relied upon two other mental health professionals for testimony about petitioner’s mentalillness. 13. However, it is now clear that the prosecution and otherstate actors involvedin this case engagedin the bad faith suppression, destruction, tampering, and failure to preserve critical and material-exculpatory forensic evidencein a deliberate attempt to prejudice petitioner’s guilt and penalty phase defense. A review ofthe actionsofthe police in this case rendersthis conclusion inescapable. 14. Law enforcementofficers are trained in the collection and preservation of evidence, as well as the metabolism and excretion of drugs. Police sergeants, such as Sergeant Peterson, are far more experienced and highly trained in than beat officers.'* Police officers are also aware ofthe '5/ Sergeant Peterson is now the Chiefof Police in Clayton, California. 152 policies ofhospitals in theirjurisdiction regarding the retention ofsamples of physiologic fluids. Oakland police officers are aware that in Alameda County, it is hospital policy to destroy blood and fluid samples within seven days following their collection. Accordingly, an investigator committed to understanding and documenting the actual blood levels of psychotropic substances present in an individual would have obtained a search warrant ___immediately toseize bodily fluids taken by a hospital on admission. (Exhibit 34, Declaration of William Welch.) 15. In addition, several factors unique to this case madeit particularly obviousto any professionalofficer that fluid samples had to be collected immediately. The scene ofthe killings was a well-known crack house where drugs wereactually present, and those residing at and visiting the house were regularly under the influence of crack cocaine. Moreover, petitioner was well known to law enforcement officers, and had been previously arrested on drug-related charges. He was a notorious repeat offender, arrested for an apparently crack-related killing in a notorious crack house in one of the most notoriously drug-infested neighborhoodsin East Oakland. 16. Moreover, this was not just another crime or even another homicide case, but a multiple homicide case repeatedly described in the media and bythe prosecutor himselfas “the biggest mass-murdercasein the history ofOakland.” Homicides involving multiple victims, especially those involving children,are closely supervised bythe police departmenthierarchy, up to and including the Chief of Police. The department would and did devote extraordinary departmental resources the investigation and required officers like Sergeant Peterson to focus their full attention and care to the 153 case. If ever there was a murder investigation which would have been done properly and “by the book,”it was this one. 17. In addition, the police were actually aware of medical information indicating that petitioner was underthe influence of drugs and alcohol. A qualitative urine screen donebythe hospital on December8 had tested positive for metabolites of alcohol, cocaine, and morphine. Furthermore, hospital records indicate that the intake medical staff smelled alcohol on petitioner’s breath at the time ofhis admissionto the hospital. The police, who keptpetitioner underheightenedsecurityat the hospital, regularly monitored his condition and were awareofall information concerning his condition, and therefore knew these facts. In fact, there is a note in the hospital’s records instructing staff to inform the policeofall events. 18. For the foregoing reasons, any neophyte police cadet would have recognizedthat it was imperative to immediatelyobtain andpreserve the fluid samples as evidence. However, SergeantPeterson, an experienced and highly trained police investigator, did not even begin work on the search warrantaffidavit until December16, eight dayslaterthan the collection ofthe samplesby the hospital, and one day after any competent officer would have knownthat the samples had been destroyed. He then did not then actually serve the warrant on the hospital until two days later, on December 18, at which time he collected three tubes of blood which had allegedly been collected from petitioner. 19. The department’s transparentbadfaith in failing to obfain and preserve this evidence is even more clearly demonstrated by the highly suspiciousdetails surroundingits collection. Despite the fact that this was the biggest mass-murderin Oakland history, the property log is shockingly 154 incomplete. Sergeant Peterson did not describe the tubes of blood on the property sheet, a clear violation of established departmental procedures. Moreinexplicablestill is the fact that no property officer ever signed for the evidence, another violation of procedure which effectively destroyed the chain of custody ofthis obviously critical evidence. 20. Still more astonishing is the fact that although evidence --technicians had requested the blood specifically to test-it for drugs and alcoholandto type and matchit to stains foundat the crime scene, Peterson did not actually deliver the blood to the lab until January 13, more than a month after the incident. Atthis time, one ofthese tubes bore no date atall, and another— incredibly- was dated December /9-— the day after Peterson claimedto havecollected the blood. 21.. Suppression, destruction, tampering, mishandling, and failure to preservethis evidenceviolated petitioner’s constitutional rights in several respects. Suppression of the evidence was a clear Brady violation andis attributable to the prosecution even if the defense cannotestablish that the prosecutor was himself awareofthe actionsofother state actors. (Brady v. Maryland (1963) 373 U.S. 83; Napue v. Illinois (1959) 360 U.S. 264.) Moreover,it is a federal and state due process violation for the policeto fail in bad faith to obtain and preserve material evidence the exculpatory value of which was apparent before the evidence was destroyed, and whichis of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. (Arizona v. Youngblood (1988) 488 U.S. 51; People v. Cooper (1991) 53 Cal.3d 771, 810.) 22. In addition, the suppression of this evidence constituted prosecutorial misconduct. (Berger v. United States (1935) 295 U.S. 78 155 (prosecutor shall not use improper methods to produce a wrongful conviction). The misconduct was prejudicial under any standard of review becauseit deprived petitioner ofa defense;i.e., that by reasonofintoxication he wasincapable ofand did not actually form the mental states required for first degree murder. D. Thefacts pertaining to each ofthese errors, in violation of the Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, establish a reasonable probability that the outcome ofthe trial would have been differentif the suppressed information had been disclosed to the defense. A “reasonable probability” of a different outcome is shown when the government’s withholding of evidence “undermines confidencein the outcome.” (U.S.v. Bagley, supra, 473 U.S. 667, 678.) No harmless error analysis may be applied. Moreover, each oftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendments to the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 9: Prosecutorial Misconduct--Prosecutor’s Prejudicial Invocation of God’s Authority and Consequences for Failure to Impose Death Penalty A. Petitioner’s sentence of death are violations of the First, Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and article I, sections 7, 15, 16 and 17 ofthe California Constitution because the prosecutorspecifically invoked numerouspassagesfrom the Old Testament, 156 informed the jury there wasreligious sanctioning for the death penalty, and directed the jurors that the child victims would meetothers in an afterlife. This outrageous argument, urging the jury to impose the sentenceofdeath under threat of religious sanctions, weight of moral guilt, and warning of meeting victimsin an afterlife violated numerous fundamental constitutional rights. Specifically, it violated the establishment clause of the First Amendment; petitioner’s rights to due process; the right to the fair and reliable capital sentencing determination (which channels the sentencer’s discretion by clear and objective standardsthat provide specific and detailed guidance,and that make the processfor imposing the death penalty rationally reviewable); the right to a fair trial; the right to an impartial jury; 2" confrontation clauserights. B. The following United States Supreme Court cases,interalia, in effect at the time the error occurred, are presented in support of this claim: Lynch v. Donnelly (1984) 465 U.S. 687-688 (O’Connor, J., concurring) (the establishmentclause ofthe First Amendmentrequirescourts to bevigilant in guarding against religious argument — whenstate actor invoked Biblical teachings to persuade a jury there is, at the very least, an appearanceofstate endorsement of those teachings); United States v. Tucker (1972) 404 U.S. 443 (due process required that defendant not be sentenced on basis of misinformation ofconstitutional magnitude); Jn reMurchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S.455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conductduringtrial has left personal stings); Berger v. United States 157 (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly confront adversarial evidence; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross- exam regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (due processviolation in capital proceeding where petitioner sentence partially based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendment requires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptible to an interpretation that removedprosecution’s burden ofproving element ofintent beyond a reasonable doubt); Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every element ofthe crime with which defendantis charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjuryconsiderationoffacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannot be concluded from giving effect to finding of lesser offense); Johnson v. Mississippi (1988) 486 U.S. 578 (Eighth Amendment limits use of unreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 U.S. 607 (completeness in supplemental instruction constitutionallyrequired); Estelle v. Smith (1981) 158 451 U.S. 454 (gravity of decision made at penalty phase mandatesstate’s adherenceto constitutional guarantees); Berger v. United States (1935) 295 U.S. 78 (prosecutor shall not use improper methods to produce a wrongful conviction); Napue v. Illinois (1959) 360 U.S. 264 (reversible error for prosecution to introduce false testimony); Caldwell v. Mississippi (1985) 472 U.S. 320 (constitutionally impermissible to risk death sentence on determination madeby sentencer whohas been misled on responsibility for determining appropriateness of defendant’s death); Lockett v. Ohio (1978) 438 U.S. 586, 606-07 (plurality opinion)(right to present mitigating evidence is constitutionally protected); Skipper v. South Carolina (1986) 476 U.S.1 (sentencershall not be precluded from considering as a mitigating factor, any aspect of defendant’s character or record and circumstances of offense proffered); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendmentright to trial byjury entitle criminal defendantto ajury determinationthatheis guilty ofevery elementofthe crime with whichis he charged, beyond a reasonable doubt — labeling as “sentencing factor” does not negate this right). C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support of this claim: 1. Atthe close ofthe penalty phase trial, the prosecutor argued to the jury the death penalty was required by religious sanctions. He urged the jury: Now, Ladies and Gentlemen, there is historical and religious sanctionfor the death penalty also. I’m going to indicate onethingforyou lestyou get apang ofconscience. 159 You arejurors in this case andyou were selected to render an opinionas to the appropriatepenalty. Don’tforgetthat. An opinion. You are not the grim reaper executioners. You are not going to be over there at San Quentin dropping pellets, strapping people in. That is not your function. You are a juror and you are to advise the court whatis the appropriate penalty. Andas| indicated, there is religious sactioning [sic] for the death penalty and it goesall the way back to the Old Testament. In chapter 21 in Exodus, Verse 12. “He that smiteth a man,so thathedie, shall be surelyput to death.” Chapter 24 ofthe book ofLeviticus, the same thing. “And he that killeth any man shall surely beput to death.” That is Verse 17. Verse 21. “Andhethat killeth a beast, he shall restore it. Andhethat killeth a man, he shall beput to death.” (RT 6140, emphasis added.) 2. Petitioner objected to this argument. (RT 6140.) Notwithstanding that objection, the prosecutor continued with hisreligious invocations: It comes up again in the Book of Numbers, Chapter 35, verse 16. “If”, “and if he smite him an instrument of iron, so that he die, he is a murderer. The murderershall surely be put to death.” I wonderifpeople who were writing those thingsin the old days were writing about, even comprehending smiting him with a piece of iron. I wonderif they even thought of that (indicating). (RT 6141.) 3. The prosecutor then explained what would happen to the children in an afterlife, and what those children would be doing: 160 Ladies and Gentlemen, rememberthis: In another time in a different world as we know it now Mr. Welchis going to confront four-year-old Dwayne Walker and two-year-old Valencia Mabrey again andno,they are not goingto be the same torn, bloody and ravaged children that Moochieleft back in Decemberof *86. No. They will not be wearing the same bloody baby clothing that you see before you in People’s 79 and 87. They are not going to look like this when Moochie confronts them again. Take a good look. This is how Mr. Welchleft these two children. Norwill they have the torn open headsthat destroyed their brains that Mr. Welch did to them in ’86. No. Whenheconfronts them again they are going to be whole. When they see Moochie again they will be whole. Therewill be no disfiguring again and they will look at him and beforethe final witnesses they will say but two words, two words. Why, Moochie? That is what they say. And Ladies and Gentlemen,if ever a case called for the imposition of a death penalty, this is it. You should show no mercyto this miserable, miserable violent thug sociopath. (RT 6141-6142.) 5. The constitutional purpose of closing argumentis to explain to the jury what it has to decide, and what evidenceisrelevantto its decision. The prosecutor’s argument undermined this purpose. Argument urging the jury to decide matters based upon factors other than those instructed is improperand unlawful. (Pen. Codesection 190 et seq; Chandler v. Florida 161 (1981) 449 U.S. 560, 574 (“Trial courts must be especially vigilant to guard against anyimpairmentofthe defendant’sright to a verdict based solelyupon the evidence and the relevant law’).) The prosecutor’s invocations of religious sanctioning for the death penalty, urging the jury not have a “pang ofconscience,” and invokingavision ofthe murderedchildrenin an afterlife appealed to bias, passion and prejudice. All of these are proscribed, un- enumerated, and unconstitutional factors to be considered in aggravation. The prosecutor’s argumentin this capital case was particularly prejudicial because the Eighth Amendment mandates the death penalty only be constitutionally imposed when the jury makesfindings under a sentencing schemethat carefully focuses the jury on the specific factorsit is to consider in reachingthat verdict. (Sandovalv. Calderon (9" Cir. 2000) 241 F.3d 765; Godfrey v. Georgia, supra, 446 U.S. at p. 420, 428.) “Delegation of the ultimate responsibility for imposing the sentence to divine authority underminesthejury’s role in the sentencing process.” (Sandoval v. Calderon, supra, 24] F 3d at p. 777, citing Caldwell v. Mississippi, supra, 472 U.S. at 330.) 6. The prosecutor’s invocation of God, urging the jury to heed religious sanctionsforthe death penalty, and informing that others would meet the victims in an afterlife was also a violation ofthe First Amendmentto the United States Constitution. The establishment clause mandates courts “be especially vigilant in guarding against religious argument. When the state invokes Biblical teachings to persuadea jury, thereis, at the very least, the appearance of state endorsement of those teachings.” (Sandoval v. Claderone, supra, 241 F 3d. at pp. 777-778; see Lemon v. Kurtzman (1971) 403 U.S. 602 (clear delineation between church and stated mandated by 162 fundamental constitutional principles).) “For these reasons, religious arguments have been condemnedbyvirtually every federal and state court to considertheir challenge.” Sandoval v. Claderone, supra, 241 F 3d. at 777 citing cases.) In the instant case, the prosecutor’s argument was a direct invocation ofdivine authority to sway the jury’s verdict. Petitioner objected to the argument and such objections went completely unheeded bythe court. --(RT 6140-6141.) The prosecutorspecifically invoked“‘eligious sanction for the death penalty .. . Lest you get a pang of conscience.” This was an outrageous misdirection ofthejurors’ constitutional duties. The prosecutor’s quotation offour specific sections from the Bible could not reasonably have been misconstrued. The prosecutor continued with his specific, religious version ofphysical and mentalretribution and consequencesbyinforming the jury that, four-year-old Dwayne Walker and two-year-old Valencia Morgan would be “whole”in an afterlife: Thus, “{i]n another time in a different world”theywould see others “‘and before thefinal witnessesthey will say but two words, two words. Why, Moochie? That is what they will say.” (RT 6141-6142.) These statements were unequivocally directed to persuade the jury to imposedeath by appealingto passion, prejudice, fear and moralguilt. The prosecutorclearly informedthatifthey did not imposethe death penalty, if they had “pang[s] of conscience,” they would be violating tenets of the Bible, and would be seeing, in another time and another world, these two victims, “before the final witnesses.” (RT 6141.) 7. Additionally, the prosecutor selected a jury that primarily had religious scruples, which fit neatly into his closing argument. Whenit had not already been established that jurors were religious, the prosecutor specifically queried to obtain this information.(See, e.g., RT 1092 (voir dire 163 by Andersonofjuror Grace Estarija); RT 2683 (voir dire by Anderson of juror Joseph Cruz); RT 2784 (voir dire by Anderson of juror Howard McGee); RT 1523 (voir dire by Anderson ofalternatejuror Bernard Wells).) 8. The persuasive effort to sway the jury bythreatof religious sanction, guilt, and with attempt to obviate a potential “pang ofconscience” misled the jury to such an extent that this error is reversible perse. (Commonwealth v. Chambers (Pa. 1991) 599 A.2d 630; Note, BarringFoul Blows: An Argumentfor a Per Se Reversible Error Rulefor Prosecutor’s Use of Religious Arguments in the Sentencing Phase in Capital Cases (1997) 50 Vand. L. Rev. 1335.) At a very minimum, the prosecutor’s arguments, standing alonein the context of the prosecutor’s argumentas a whole,did not constitute harmlesserror on habeas review. (See Sandovalv. Calderone, supra, 241 F.3d 765, cert. den. (2001) (granting habeasrelief from death sentence, petitioner denied fair penalty trial by prosecutor’s closing argument invoking divine authority and paraphrasing well-known Biblical passages). Brecht v. Abrahamson (1993) 507 U.S. 619; ( Jeffries v. Wood (9" Cir. 1997) 114 F.3d 1494, 1499 (en banc) (“Where, a conscientious judge is in grave doubtas to the harmlessnessofan error, the erroris not harmless andrelief should be granted.”).) 9. Petitioner incorporates by reference Claims 1, 8 through 17, and 21. Petitioner specifically re-asserts and re-alleges the supportingfacts establishing the prosecutor’s bias and prejudice. (See Exhibit 43, Peoplev. Johnny Lee Barnes; Motion to Precludethe District Attorney from Seeking the Death Penalty; Declarations ofAlfred J. Brandi and Charles M. Denton.) 10. The prosecution’s argumentin the penalty phase of this capital case denied petitioner’s rights to a fair andreliable capital sentencing 164 determination; an impartialjury; due process;a fair trial; rights guaranteed by the First Amendment to the United States Constitution, particularly the Establishment Clause; and confrontation clause rights. These errors were highly prejudicial, warranting the relief requested D. Each errorin violation of the First and/or Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendments to the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 10: Prosecutorial Misconduct--Unconstitutional and Shocking Interaction in Court With Petitioner and Prejudicial Comments on Petitioner During Trial A. Petitioner’s conviction and sentence ofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and Article I, Sections 7, 15, 16 and 17 ofthe California Constitution because throughoutthe trial, the prosecutor acted in a shocking and outrageous manner, calling petitioner names and deliberately provoking altercations. Further, in both the guilt and penalty phase arguments, the prosecutor personally attacked petitioner, called him names, and argued suchvindictive, personal, provokingattacks on petitioner as aggravating factors. These acts of outrageous conduct and comment, individually and/or cumulatively, significantly prejudiced petitioner’s case. By deliberately provoking petitioner, the prosecutioncapitalized on petitioner’s mental state and conduct to persuade the jury to convict petitioner and sentence him to death. The personal attacks also were unconstitutional and prejudicial misconduct, 165 because they misled and misdirected the jury’s attention from its mandated function. These errors, individually and cumulatively, deniedpetitioner his rights to due process;a fair trial; a fair and impartial jury; all confrontation rights to adequately confront andrebut accusations ofwitnessesagainst him; and his right toa fair, reliable and impartial capitaltrial and capital sentencing proceeding. B. The following United States Supreme Court cases, interalia, in effect at the time the error occurred, are presented in support ofthis claim: United ‘States v. Tucker (1972) 404 U.S. 443 (due process required that defendant not be sentencedon basis ofmisinformation ofconstitutional magnitude); Jn reMurchison (1955) 349 U.S. 133(Constitution mandates actual impartiality and appearanceof impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conductduringtrial hasleft personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribingall judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly confront adversarial evidence; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendantnot permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross-exam regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentence partially 166 based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree ofscrutinyin capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptible to an interpretation that removed prosecution’s burden ofproving element ofintent beyond a reasonable doubt; Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every element of the crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjuryconsiderationoffacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannot be concluded from givingeffectto findingoflesser offense); Johnsonv. Mississippi (1988) 486U.S.578 (Eighth Amendmentlimits use ofunreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 USS. 607(completeness in supplemental instruction constitutionally required); Estelle v. Smith (1981) 451 U.S. 454 (gravity of decision madeat penalty phase mandatesstate’s adherenceto constitutional guarantees); Berger v. UnitedStates (1935) 295 U.S. 78 (prosecutor shall not use improper methods to produce a wrongful conviction); Napue v. Illinois (1959) 360 U.S. 264 (reversible error for prosecution to introduce false testimony); Caldwell v. Mississippi (1985) 472 U.S. 320 (constitutionally impermissibleto risk death sentence on determination made by sentencer who has been misled on responsibility for determining appropriateness ofdefendant’s death); Lockett v. Ohio (1978) 438 U.S. 586, 606-07 (plurality opinion) (right to present mitigating evidenceis constitutionally protected); Skipper v. South Carolina (1986) 476 U.S. 1 (sentencer shall not be precluded from considering as a 167 mitigating factor, any aspect of defendant’s character or record and circumstancesofoffense proffered); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendmentright to trial by jury entitle criminal defendant to a jury determination that he is guilty ofevery elementofthe crime with whichis he charged, beyonda reasonable doubt-— labeling as “sentencing factor” does not negate this right). C. The following facts, among others, are presentedin support ofthis claim after adequate funding,discovery, investigation, and an evidentiary hearing: 1. Early in the case, prosecutor Anderson engaged in conduct with petitioner which was both outrageous and provocative. Petitioner had requested information on the jury regarding constitutionality of the jury composition. (RT 1964.) The prosecutorreplied, “I’m just going on record it will be a cold dayin hell before I give him anything.” (RT 1966.) 2. During voirdire, petitioner, who wasauthorized to participate in hybrid representation,stated, “I’d like to make an objectionfor the record, Your Honor. The Court did not make it unmistakably clear that [the last juror] couldn’t vote to impose the death penalty.” The prosecutor, wholly unnecessarily, entered this discussion with provocative and derogatory comments on petitioner: “I’m going to object to my questioning being interrupted bythis clown here.” (RT 2897.) Petitioner the objected to being called a clown bytheprosecutor, and the court interruptedpetitionersaying, “No,you are not to speak whenthejuror’s here. Otherwise, you’re going to be removed.” (RT 2898.) 168 3. That same day, during a break in voir dire, petitioner’s counsel informed the court that he had matters he would like to put on record. Petitioner, who had been authorized to perform in a hybrid representation, informed the court: “First of all . . .” (RT 2906.) The court told him to be still. The colloquy would have endedthere, but for the wholly unauthorized, unconstitutional and provocative, denigrating statements bythe prosecution. This colloquy occurred as follows: MR. ANDERSON: THE COURT: MR.STRELLIS: THE COURT: MR. ANDERSON: DEFENDANT: THE COURT: DEFENDANT: THE COURT: MR.STRELLIS: 169 You're afool. Mr.Strellis, proceed, please. Thank you very much. This morning as to juror — I don’t know the number, but I don’t know the name. Mrs. Goins. You're a punk. I went like this here; and theyall over me, Your Honor. You just be — both of you just stop I didn’t move at all out of my chair. They all over me. What kind of atmospherethis is I got to be in. Just keep your mouth shut. Mr. Strellis, I can’t hear you. I’m nottalking. DEFENDANT: It’s just not for the district attorney to sit here and insult me and haveall these different sheriffdepartments(sic) in here thinking I’m fixing to overreact toward him. Hegot all the protection; and he goes, shoots off the handle and says whatever he wants. The Court frowns down on me, and he just keep on abusing me, saying it’s all my kind. He steadily mouthingoff. MR. ANDERSON: I don’t need protection from you. (RT 2906-2907, emphasis added.) 4. The prosecutor continuedhis vitriolic and personalattacks on petitionerin his guilt phase statementsto thejury. In showingpicturesofone victim to the jurors, the prosecutor argued:“Here is onepicture ofan ugly, ugly first degree murder committed by an ugly, ugly human being.” (RT 5568.) (See United States v. Schuler (9" Cir. 1987) 813 F.2d 978 (prosecutor’s comment on defendant’s laughter during testimony was reversible error because comment improperly put defendant’s character at issue and impugnedconstitutionalrights); United States v. Francis (6" Cir. 1999) 130 F.3d 546 (reversible error where prosecutor called petitioner “a liar” and “con man.”).) 5. During the penalty phase, the prosecutor urged the jury to sentencepetitioner to death on the following: . 170 Thereis really no redeeming quality that anyone can find in Mr. Welch,in hislife, or in his lifestyle. He has led a life replete with violence not related to any mental defect or disease, for truly he is a sociopath, a miserable thug who hates people, pure and simple. (RT 6112.) Mr. Welch would haveto have an IQ oftwo and be a zombie to excuse his acts by a mental defense. (RT 6123.) And, Ladies and Gentlemen, if a case ever called for the imposition ofthe death penalty, this is it, you should show no mercyto this miserable, miserable violent thug sociopath. (RT 6142) You will be asked to find mercy in your heart for this bloodthirsty assassin of the weak and the innocent. (RT 6143.) In Oakland December8, 1986, Duane Walker and Valencia Mabrey[sic] lost the chance to grow up because of David Moochie Welch, the coward of the county. (Ibid,) 6. These goading, derogatory comments on petitioner were designedto elicit a response from him and such response wasutilized as an improper factor in aggravation. (RT 6136-6137.) Additionally, the prosecutor’s improperjury remarks wholly misled the jury. The duty of the Jury in the penalty phase of a capital case is statutorily prescribed. (Pen. Code §190.2.) Neither this statute, nor the United States constitution, permit 171 consideration ofpersonaldiatribesofthe petitioner bythe prosecutorto serve as legitimate factors in aggravation. (Id.; Gregg v. Georgia (1976) 428 U.S. 153 (Eighth Amendment requires adequately channeled andreliable capital sentencing — higher degree of reliability required than in non-capital proceeding); Caldwell, supra (due process violation for prosecutor to misdirect the jury’s determination); and see Hicks v. Oklahoma (1979) 447 U.S. 343 (state created right gives rise to federal due process claim.)) 7. These provocative comments on petitioner’s character both elicited the prejudicial response they were designedto get, and prejudicially misled the jury as to its role and the proper considerations in sentencing the petitioner to death. Theseerrors, singularly and cumulatively, prejudicially deniedpetitionerhis rights to a fair and reliable capital sentencing proceeding; a fair and reliable capital trial; due process; an impartial jury; and were a violation of petitioner’s fundamental confrontation right, because the prosecutor assumed the role ofbeing a witness against petitioner, providing subjective beliefs and opinions which otherwise had not been admitted into evidence. 8. Petitioner incorporates by reference Claims 1, 8 through 17, and 21. Petitioner specifically re-asserts and re-alleges the supporting facts establishing the prosecutor’s bias and prejudice. (Exhibit 32, People v. Johnny Lee Barnes; Motionto Precludethe District Attorney from Seeking the Death Penalty.) | D. Eacherrorin violation of the Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentstothe United States Constitution, individually and/or 172 collectively, had a substantial and injuriouseffect or influence in determining the jury’s verdict. Claim 11: Prosecutorial Misconduct--Prejudicial Introduction of Egregious, Extrinsic Evidence in Closing Argument A. Petitioner’s conviction and sentence ofdeath are violationsofthe Fifth, - Sixth, Eighth and Fourteenth Amendmentsto theUnited States Constitution and Article I, Sections 7, 15, 16 and 17 ofthe California Constitution because during his closing argument, the prosecutor introduced evidence which had never formallybeen introducedin court, or openly told to the jury, regarding petitioner’s conduct while the jurors were not present; 1.e., urinating in the well of the courtroom. Petitioner did not have the opportunity to explain, rebut or denythis surprise evidence introduced by the prosecution. Further, this act, and other information given at the same time in the prosecutor’s closing statement, wasutilized as an unlawfulfactor in aggravation in support of the sentence of death. This extrinsic, untested information in the prosecutor’s closing argumentin this capital case violated petitioner’s right to due process; to fair, reliable and adequately channeledcapital sentencing proceeding;to fairtrial; to all confrontation clause rights; to fair tribunal; and the right to trialjudge who wasunbiased and conductedthe proceedings with not only fairness, but an appearanceoffairness. B. The following United States Supreme Court cases, interalia, in effect at the time the error occurred, are presented in support ofthis claim: United States v. Tucker (1972) 404 U.S. 443 (due process required that defendant not be sentencedonbasis ofmisinformation ofconstitutional magnitude);Jn reMurchison (1955) 349 U.S. 133(Constitution mandatesactual impartiality 173 and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conduct duringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribingall judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process| mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly confront adversarial evidence; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendantnot permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross-exam regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentence partially based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degreeofscrutinyin capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptible to an interpretation that removed prosecution’s burden ofproving element ofintent beyond a reasonable doubt; Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every element of the crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosedindependentjury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannot be concluded from giving effect to finding oflesser offense); Johnson v. Mississippi (1988) 174 486 U.S. 578 (Eighth Amendmentlimitsuse ofunreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 U.S. 607 (completenessin supplementalinstruction constitutionally required); Estelle v. Smith (1981) 451 U.S. 454 (gravity of decision made at penalty phase mandatesstate’s adherenceto constitutional guarantees); Berger v. United States (1935) 295 U.S. 78 (prosecutor shall not use improper methods to ‘produce a wrongful conviction); Napue v. Illinois (1959) 360 U.S. 264 (reversible error for prosecution to introduce false testimony); Caldwell v. Mississippi (1985) 472 U.S. 320 (constitutionally impermissible to risk death sentence on determination made by sentencer who has been misled on responsibility for determining appropriateness ofdefendant’s death); Lockett v. Ohio (1978) 438 U.S. 586, 606-07 (plurality opinion) (right to present mitigating evidenceis constitutionallyprotected); Skipper v. South Carolina (1986) 476 U.S. 1 (sentencer shall not be precluded from considering as a mitigating factor, any aspect of defendant’s character or record and circumstancesof offense proffered); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendmentright to trial by jury entitle criminal defendant to a jury determinationthat he is guilty ofevery elementofthe crime with which is he charged, beyond a reasonable doubt— labeling as “sentencing factor” does not negate this right). C. The following facts, among others, are presented in support ofthis claim after adequate funding, discovery, investigation, and an evidentiary hearing: 1. The prosecution explainedto the jury what aggravating factors it had before it to support the decision to impose death: 175 Now,ifthere was nothingelse that I have shown in the penalty phase, the crimes themselves in the guilt phase are enough for me to be asking for the death penalty for Mr. Welch. Yet we haveproven many others [sic]factors in aggravation.' (RT 6117, emphasis added.) Amongthose other factors in aggravation,the prosecutorlisted the following: We’vealso heard testimony duringthe particular trial the defendant liked to urinate in the well and urinate in the fitting room at J.C. Penny’s when apprehendedforshoplifting. Isn’t it real cute? See how he handles his waste products. (RT 6118.) 2. This argument deliberately and falsely informed thejury that urinatingin the well andin thefitting room at J.C. Penny’s were aggravating factors to be considered in the jury’s sentencing decision. This was an egregiouserror, particularly because this evidence wasnotintroducedin the prosecution’s case in chiefpursuant to permissible factors. (People v. Boyd (1987) 38 Cal.3d 762, 775; Zant v. Stevens (1983) 462 U.S. 862.) 3. This error, both asa violation of state law, and as a violation of the United States Constitution, was highly prejudicial and was part of a pattern ofpersistent and pronounced misconducton behalfofthe prosecutor in this case. (Donnelly v. DeChristoforo (1974) 416 U.S. 637.) 4. The prosecutor’s introductionofpetitioner’s allegedly having urinated in the well further violated petitioner’s right to confrontation guaranteed by the Sixth Amendmentto the United States Constitution. In informing the jury ofpetitioner’s previously alleged conduct, the prosecutor 176 himselfbecameawitness againstpetitioner that, because this information was given bythe prosecution in the closing statementin the penalty phaseofthis case, petitioner had no opportunity to rebut, deny, explain or otherwise cross- examine regarding possible bias, prejudice or any other factor which would undermine the veracity of the information. Oldenv. Kentucky (1988) 488 U.S. 227, 231 (per curiam); Davis v. Alaska, 415 U.S. at 316-317 (confrontation clause violations when noexamination of adverse witness.); see Gardner v. Florida (1977) 430 U.S. 439 (no due process in capital sentencing proceeding where petitioner sentenced to death on basis of information whichhe had no opportunity to rebut, to deny or explain.) 5. Injecting this information regardingpetitioner’s conductinto the prosecutor’s closing argument, wholly violatedthe petitioner’s fundamental rights guaranteed by the Sixth Amendment. ““The evidence developed’ against a defendantshall come from the witness stand . . . where there was full judicial protection of the defendant’s right of confrontation, of cross- examination . . .” Parker v. Gladden quoting Turner v. Louisiana 379 U.S. at 472-473. Here, there was never “evidence” admitted, developed, confrontedor cross-examined regardingpetitioner’s alleged urinationin the well of the courtroom. This act was particularly crucial in the jury’s deliberations because they passed this well on their way to the jury room. The only time this “evidence” had been told to the jury was by the unauthorized, private communication by the bailiff. (See Exhibit 8, Declaration ofJoseph Cruz.) However, the record doesnotindicate anyway that the prosecutor could have known that the jurors were told about petitioner’s alleged, out-of-court conduct, unless he had been in private communicationswith the bailiff. Petitioner incorporates by reference Claim 177 51 “Pattern ofEx Parte Contact bythe Court with Counsel,” in support ofthis claim. Petitioner further alleges that this claim incorporated byreference, the information set forth in this section, and the record in this case further substantiate the claim of prosecutorial misconduct regarding ex parte contacts, misuse and introduction of prejudicial, extrinsic evidence. 6. This evidence additionally was prejudicial and damaging because petitioner was not given the opportunity to utilize his conduct of alleged urination in the well as a factor in mitigation. However, both of petitioner’s experts available in the penalty phase andtestifying there in his behalf, did not believe he was competent to stand trial. Further, Dr. Samuel Bensonbelieved that a significant amountofpetitioner’s conduct during the trial was evidence ofmental illness, which could have and should have been used as essential mitigating evidence. (Exhibit The jury was required to consider and weigh such mitigating evidence, had petitioner had the opportunity to present it. (See Skipper v. South Carolina, 476 U.S.at 4; Hitchcock v. Dugger, 41 U.S.at 394.) (sentencer may not refuse to consider or be precluded from considering any relevant mitigating evidence.) 7. Petitioner incorporates by reference Claims1, 8 through 17, and 21. Petitioner specifically re-asserts and re-alleges the supporting facts establishing the prosecutor’s bias and prejudice. (Exhibit 32, People v. Johnny Lee Barnes; Motion to Preclude the District Attorney from Seeking the Death Penalty.) | D. Eacherror in violation of the Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or 178 collectively, had a substantial and injuriouseffect or influence in determining the jury’s verdict. Claim 12: Prosecutorial Misconduct--Prosecutor’s Prejudicial Misdirecting Jury to: “Advise” the Court; Serve as the “Conscience of This Community”; and Impose a Sentence of Death to Prevent Hypothetical, Future Acts A. Petitioner’s sentence ofdeath is a violation ofthe Fifth, Sixth, Eighthand Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, 16 and 17 of the California Constitution because the prosecutor improperly urged the jury to sentence the petitioner to death by informing the jury that their duty wasonly to render an opinion and “advise the court.” This violated petitioner’s rights to a fair andreliable sentencing determination;a fair trial; due process; the right to constitutionally adequate review ofthe sentencing determination;andtherightto a trialjudge who was unbiased and conducted the proceedings with not only fairness, but also an appearanceoffairness. B. The following United States Supreme Court cases,inter alia, in effect at the time the error occurred, are presented in support of this claim: United States v. Tucker (1972) 404 U.S. 443 (due process required that defendant not be sentencedonbasis ofmisinformation ofconstitutional magnitude); Jn reMurchison (1955) 349 U.S. 133(Constitution mandatesactual impartiality and appearanceofimpartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conduct duringtrial has left personalstings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribingall 179 judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly confront adversarial evidence; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendantnot permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross-exam regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding wherepetitioner sentencepartially based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree ofscrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptible to an interpretation that removedprosecution’s burden ofproving elementofintent beyond a reasonable doubt; Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every element of the crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannot be concluded from givingeffect to finding oflesser offense); Johnson v. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use ofunreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 U.S. 607 (completeness in supplemental instruction constitutionally required); Estelle v. Smith (1981) 451 U.S. 454 (gravity of decision made at penalty phase 180 mandatesstate’s adherence to constitutional guarantees); Berger v. United States (1935) 295 U.S. 78 (prosecutor shall not use improper methods to produce a wrongful conviction); Napue v. Illinois (1959) 360 U.S. 264 (reversible error for prosecution to introduce false testimony); Caldwell v. Mississippi (1985) 472 U.S. 320 (constitutionally impermissible to risk death sentence on determination made by sentencer who has been misled on responsibility for determining appropriateness ofdefendant’s death); Lockett v. Ohio (1978) 438 U.S. 586, 606-07 (plurality opinion) (right to present mitigating evidenceis constitutionally protected); Skipper v. South Carolina (1986) 476 U.S. 1 (sentencer shall not be precluded from considering as a mitigating factor, any aspect of defendant’s character or record and circumstances of offense proffered); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendment right to trial by jury entitle criminal defendant to a jury determinationthatheis guilty ofevery elementofthe crime with whichis he charged, beyond a reasonable doubt — labelingas ‘sentencing factor” does not negate this right). C. The following facts, among others to be developed after adequate funding,discovery, investigation, and an evidentiary hearing, are presentedin support of this claim : 1. The prosecutor informed the jury that it was its function to advise the court aboutthe appropriate penalty. (RT 6140.) Specifically, the prosecutor argued: You are thejurors in this case and you wereselected to render an opinion as to the appropriate penalty. Don’t forget that. An opinion. You are not the grim reaper executioners. You are not 181 going to be over there at San Quentin droppingpellets, strapping people in. That is not yourfunction. You are ajuror andyou are to advise the court what is the appropriate penalty. And as I indicated, there is religious sactioning [sic] for the death penalty andit goes all the way back to the Old Testament. (RT 6140, emphasis added.) 2. A death verdict may notrest in the determination made by a jury which has been misledaffirmatively to believe their responsibility for determining the sentence rests elsewhere. (Caldwell v. Mississippi (1985) 472 U.S. at 328-329; see also Romano v. Oklahoma(1984) 114 S.Ct. 2004.) The United States Supreme Court clearly stated in Caldwell,that “state induced suggestions that the sentencing jury may shift its sense of responsibility” violates the Eighth Amendmentand invalidates a death sentence returned underthat influence. (/d. at 330.) (See People v. Milner (1980) 45 Cal.3d 227,257 (error where prosecutortoldjurors, in summation, that they did not bear personal responsibility for imposing the penalty); People v. Farmer (1989) 47 Cal.3d 888, 929 (error where prosecutor, during argumentto the jury, declared “whether or not defendant should live or die wasdecidedbythe voters ofthe state when they passedthe death penalty law and all thejury decides is whetherthe aggravating circumstancesoutweighthe mitigating circumstances.”); 3. Here, the error was exacerbated by the prosecution’s urging the jury that theywere voting as the “conscience ofthis community”. He argued: You 12 are the conscienceofthis community. And I ask you should this community, should our community show any mercy, compassion or sympathy to those who slaughter and butcher babies and their mothers? Should we? Should we really? I’m urging you to say no. Enough is enough. 182 (RT 6144, emphasis added.) The jurors are not the conscience of the community, andit is not their duty to be the “conscience”ofthe community. Urging such duty is prejudicially misleading and egregious. Caldwell, supra; Viereck v. United States (1943) 318 U.S. 236, 247 (prosecutor’s statements suggesting that others were relying on thejurors for protection compromised rightto a fairtrial.) 4. The prosecution’s directive to the juryto serve as “the conscience of this community” purposefully was underscored by his next argument, mandating their responsibility for preventing petitioner’s hypothetical future dangerousness: Suppose he get [sic] one of his sodomy urges. There is a young inmate there whohefeels he lookspretty good, orifhe tells another inmate you have two minutes on deciding which wayyou are going to have sex with me. You do have a responsibility to those other persons who may or may not deserve Moochie Welch. (RT 6138, emphasis added.) 5. The prosecution repeatedly urged the jury, and accordingly misdirected them,to vote for death so that the individual members would not have potential, hypothetical acts by petitioner “on your conscience.” (RT 6193.) The prosecutor appealed to the jury’s guilt, passions and prejudices: Yougive him life without parole and every time[sic] he goes to the yard for exercise, you give him life without parole, every time [sic] he is escorted to the showeror to havea visit you are going to have hundreds of Harry Lords and Roy Gowins. Do you want that on your conscience? A vicious killer of six who is dangerousto this day, even by both his witnesses. Who hates authority figures. Who will come into contact with guards and othersfor the 183 rest ofhis life ifyou give him that benefit, ifyou excuse his conduct and not give him the death penalty. There will be hundreds and more Deputy Lords with broken ribs and hundreds more correctional officer Gowins with feces in theface andsplit skulls. Death row is the only place for him and in your hearts you know thatis true. (RT 6139-6140, emphasis added.) 6. These willful comments prejudicially tainted and misdirected the jury’s determination of the appropriate sentence. (Berger v. United States, 295 U.S. 84; Penry v. Lynaugh (1989) 492 U.S. 302, 326-327 (right to reliable sentencing determination violated where prosecutorial comments impedejurors’ full consideration ofmitigating evidence.)) Further, directing the jury that there duty was to “advise” prejudicially violated the Eighth Amendment requirementofreliability. (Caldwell, 472 U.S.at 341.) 7. Petitioner incorporates by reference Claims1, 8 through 17, and 21. Petitioner specifically re-asserts and re-alleges the supporting facts establishing the prosecutor’s bias and prejudice. (See Exhibit 43, People v. Johnny Lee Barnes; Motionto Preclude the District Attorney from Seeking the Death Penalty.) D. Eacherrorin violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injuriouseffect or influence in determining the jury’s verdict. 184 Claim 13: Prosecutorial Misconduct — Overt and Prejudicial Violation of Court Order A. Petitioner’s conviction and sentenceofdeath are violations ofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and Article I, Sections 7, 15, 16 and 17 ofthe California Constitutionbecause the prosecutorwillfully and repeatedly violated a gag order not to discussthe - ——-case--with the-media. —The -prosecutor made. egregious -and prejudicial comments aboutpetitioner and his case at the close of the guilt phase and prior to the penalty phase and penalty phase determinations. This overt, highly prejudicial conductviolated petitioner’s due process rights; right toa fair andreliable capital proceeding;the right to a fair trial; due process of law; andthe right to an impartial jury whichis not influenced or misled by improperevidence, argumentsor instructions. B. Thefollowing United States Supreme Court cases,interalia, in effect at the timethe error occurred, are presented in support of this claim: United States v. Tucker (1972) 404 U.S. 443 (due process required that defendant not be sentenced onbasis ofmisinformation of constitutional magnitude); Jn re Murchison (1955) 349 U.S. 133(Constitution mandatesactualimpartiality and appearanceofimpartiality); Mayberry v. Pennsylvania (1971) 400 US. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conductduringtrial has left personalstings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribingall judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly confront adversarial 185 evidence; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendantnot permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross-exam regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (due processviolation in capital proceeding where petitioner sentenge partially based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree ofscrutinyin capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptible to an interpretation that removed prosecution’s burden ofproving elementofintent beyond a reasonable doubt; Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every element of the crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjury considerationoffacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannot be concluded from giving effect to findingoflesser offense); Johnson v. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use ofunreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 USS. 607(completeness in supplemental instruction constitutionally required); Estelle v. Smith (1981) 451 U.S. 454 (gravity of decision madeat penalty phase mandatesstate’s adherenceto constitutional guarantees); Bergerv. UnitedStates (1935) 295 U.S.78 (prosecutor shall not use improper methods to produce a wrongful conviction); Napuev.Illinois (1959) 360 U.S. 264 186 (reversible error for prosecution to introduce false testimony); Caldwellv. Mississippi (1985) 472 U.S. 320 (constitutionally impermissible to risk death sentence on determination made by sentencer who has been misled on responsibility for determining appropriatenessofdefendant’s death); Lockett v. Ohio (1978) 438 U.S. 586, 606-07 (plurality opinion) (right to present mitigating evidenceis constitutionally protected); Skipper v. South Carolina (1986) 476 U.S. 1 (sentencer shall not be precluded fromconsidering as a mitigating factor, any aspect of defendant’s character or record and circumstancesof offense proffered); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendmentright to trial by jury entitle criminal defendant to a jury determinationthat heis guilty ofevery elementofthe crime with whichis he charged, beyond a reasonable doubt— labelingas “sentencingfactor” does not negate this right). C. Thefollowing facts, amongothers, are presented in support ofthis claim after adequate funding, discovery, investigation, and an evidentiary hearing: 1. In support of this claim,petitioner incorporates by referenceall claims ofprosecutorial misconduct: Claims 8 through 17. 2. There were specific instances throughout the guilt and penalty phase where the court willfully and wholly failed to control prosecutorial conduct which deprived petitioner’s rights. See C1, supra. 3. This conductincluded, but wasnotlimited to the prosecutor’s willful and repeated violation of the court-imposed gag orderspecifically prohibiting contact with or comments to the media throughoutthetrial and penalty phase of the case. The court issued this unequivocal order at the 187 inception ofthetrial, and at no point was suchorder withdrawn. (RT 37, 36.) The court expressly informed the prosecutor, “You are not to open your mouth, except in court.” (RT 37.) The prosecutor, however, didviolate that gag order, repeatedly. Petitioner specifically objected to these continuing violations: I’m going to also request, it was my understanding we had a gag order in this court and it applied to both counsel and the prosecution. Numerous times the prosecution made statements to the newspaperreporters. He thinks he is above the law and he don’t have to abide by this gag order. I didn’t understand the court to makeanytype of limitations or time periods on how longthis gag order was goingto be in effect, Your Honor, and I’m saying, I’m saying now that concerning him makingall these statementsand stuff outside ofthe court, I think it is totally unfair, Your Honor. I think it is again, it goes to showthat the prosecutionis going to go to any means beyondlimits to try to get a conviction and if that means grandstanding up before the newspaper media, he didn’t have no comments whatsoeverto say about my motion to vacate the verdict right here in open court. Hehasto go outside the courtroom and discuss with newspaperreporters. I think it is totally inappropriate. (RT 5725-5726.) | 4. Petitioner further requested there be sometype ofsanctions for overt and continuingviolationofthe court order. The court responded,“I will handle the prosecutor.” (RT 5726.) However, the court did nothing to sanction the prosecutor, and continued to refuse throughoutthe penaltyphase to admonishthejury to refrain from viewing any media,listening to radio or reading newspapers regarding the case. (RT 5748, 5769, 5802, 6026, 6076, 6220-6235.) This gag order wasviolated at a crucial time in petitioner’s case; 1.¢., after the guilty verdict and before the penalty phase and shortly prior to the penalty phase deliberations where petitioner was sentenced to 188 death. Ina front pagearticle in the Oakland Tribune ofJune 20, 1989, both defense attorneysStrellis and Selvin “declined to commentafterthe verdict, citing a gag order imposed by Golde on participants in the case.” The prosecutor, however, had no such scruples ofcomplying with an absolute and unqualified court order. Instead, the paper reported: Andersonsaid he knew of“no basis” for Welch’s remark about jury tamperingandcalledit “‘a figment ofhis imagination.” “This is “a manwho’s just been convicted ofsixfirsts and aspecial circumstance, and so what’she got to lose by making wild claims.” (Exhibit 39, Newspaper Articles re: Gag Order.) Only one day before the penalty phase started, Anderson again violated the gag order in an interview with the Oakland Tribune. There, he stated as follows: Prosecutor James Andersonsaidfor the past year he has spent 95 percent of his time on the Welch case. “That’s the nature of the beast — Oakland’s largest mass murder,” Anderson said. “For probably thecity’s most heinouscase, I don’t think 95 percent was undeserved,” he added. ((Exhibit 39, NewspaperArticles re: Gag Order.) The prosecutionfurtherviolated the gag orderin express,prejudicial statements to the San Francisco Chronicle the dayafter the guilty verdict. Onthe June 20, 1989 issue of that paper, Andersonstated: Prosecutor Jim Anderson later said he was “elated” by the verdict. “Children were killed,” Anderson said. “I’m sure the jury feels the same way about child murderers and mass murderersasI do.” . (Exhibit 39, NewspaperArticles re: Gag Order.) 189 After the verdict was read, petitioner informed Judge Goldethat he believed that there had been “jury tampering” during the proceeding. Anderson informedthe paper as follows: “Anderson called the allegation a ‘figment of David Welch’s imagination”. (Id.) 6. Thetrial judge’s failure to control proceedings which were highly prejudicial to petitioner stand the courseofthetrial. During voir dire, petitioner asked the court on several occasionsfor information on a potential informant who was highly prejudicing petitioner’s case. That informant, Michael Willis, was allegedly communicating with victims’ families in the matter. (RT 2407.) The court denied the motion as premature, and further stated that it did not have sufficient information to determine whether the grievance about potential informers in county jail in petitioner’s case, contacting actual witnesses for the prosecution, “properly lies in this court or the federal court or someother court.” (/bid.) The Superior Court does have jurisdiction over this discovery, which wasparticularly crucial in a capital case. (See e.g. Cal. Const., art. VI, §10.) On May 8, 1989, petitioner told the court that on the way to court he wasattacked by three sheriff's deputies, that he wasinjured and had bruises andscratcheson his face, andhis legs and back were hurt. He requested to go to Highland Hospital to be examined by a physician. The court stated its unilateral understanding that petitioner refused to go to court. However, petitioner asked for a hearing on what occurred and howtheseinjuries were received. Petitioner specifically asked the court if it had sufficient authority to order he be taken to Highland Hospital. Petitioner was concerned about the hostility and prejudice exhibited bythe North CountyJail doctors. Regarding the request to be taken 190 to Highland Hospital andthe authority to do so, the court responded, “That’s right, I have enough authority, but I’m not.” (RT 3707.) 7. The jury was not admonishedto refrain from viewing media, listening to radio or reading newspaperarticles aboutthis case in between the guilt and penalty phases, or during the penalty phase. RT 5659 (jury excused for a four days — no admonishment regarding media priorto jury being excused); RT 5802 (court recesses for the day — no admonishmentto juryregarding media); RT 5889(recess with no prior admonishment aboutthe media); RT 5914 (Gury takes substantial recess for July 4" holiday — no admonishment about media prior to recess); RT 6026 (recess until next morning — no admonishmentabout media prior to recess); RT 6076 (recess — no prior admonishment about the media); RT 6145 (recess at close of prosecution’s closing argument — no admonishmentnotto discussthecase, and no admonishment about the media); RT 6200-6201 (close of defense counsel’s closing, jury recesseduntil the next day— no admonishments about the media; RT 6223-6225 (at close of instructions, court does not admonish jurors not to view mediaduring deliberations.)) Further, the jury had ample opportunity to read outside material, including the newspapers in which the prosecutor madethese highly prejudicial comments about petitioner. The Jury wasnot in session from the timeofthe guilt phase verdict on Monday, June 19, 1989, until one weeklater, Monday, June 26, 1989, whenthe penalty phase began. From theclose ofthe guilt phase on Monday, June 19, 1989, to the penalty phase verdict on Wednesday, July 12, 1989, a period of 23 days elapsed. 8. Petitioner incorporates by reference Claims1, 6 through 17, and 21. Petitioner specifically re-asserts and re-alleges the supporting facts 191 establishing the prosecutor’s bias and prejudice. (See Exhibit 43, People v. Johnny Lee Barnes; Motionto Precludethe District Attorney from Seeking the Death Penalty.) D. Eacherror in violation of the Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individuallyand/or collectively, had a substantial andinjuriouseffector influencein determining the jury’s verdict. Claim 14: Prosecutorial Misconduct--Improperly Urging Jury’s Comparison of Petitioner to Ramon Salcido A. Petitioner’s conviction and sentence ofdeath are violations ofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and article I, sections 7, 15, 16 and 17 ofthe California Constitution because the prosecutor implored thejury to findpetitioner guilty on six countsoffirst degree murder, and that the special circumstance was true, by directly comparing convicted mass murderer Ramon Salcido andpetitioner. This prejudicial misleading of the jury deniedpetitioner his right to due process; fair trial; impartial tribunal; and a fair and reliable capital determination. B. The following United States Supreme Court cases,inter alia, in effect at the time the error occurred, are presented in support ofthis claim: United States v. Tucker (1972) 404 U.S. 443 (due process required that defendant not be sentenced onbasis ofmisinformation ofconstitutional magnitude); Jn reMurchison (1955) 349 U.S. 133(Constitution mandatesactual impartiality and appearanceof impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 192 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488(impartiality where conduct duringtrial has left personalstings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly confront adversarial evidence; Loven v. Kentucky (1988) 488 U.S. 227 (confrontationclause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross-exam regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (due processviolation in capital proceeding wherepetitioner sentencepartially based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree ofscrutinyin capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptible to an interpretation that removedprosecution’s burden ofproving elementofintent beyond a reasonable doubt; Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every element of the crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjury considerationoffacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannot be concluded from giving effectto finding oflesser offense); Johnson v. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use ofunreliable aggravating factors 193 in death decisions); Bollenbach v. United States (1946) 326 U.S. 607(completeness in supplemental instruction constitutionally required); Estelle v. Smith (1981) 451 U.S. 454 (gravity of decision madeat penalty phase mandatesstate’s adherenceto constitutional guarantees); Berger v. United States (1935) 295 U.S. 78 (prosecutorshall not use improper methods to produce a wrongful conviction); Napue v. Illinois (1959) 360 U.S. 264 (reversible error for prosecution to introduce false testimony); Caldwellv. Mississippi (1985) 472 U.S. 320 (constitutionally impermissible to risk death ‘Sentence on determination made by sentencer who has been misled on responsibility for determining appropriateness ofdefendant’s death); Lockett v. Ohio (1978) 438 U.S. 586, 606-07 (plurality opinion) (right to present mitigating evidenceis constitutionally protected); Skipper v. South Carolina (1986) 476 U.S. 1 (sentencer shall not be precluded from considering as a mitigating factor, any aspect of defendant’s character or record and circumstancesofoffense proffered); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendment right to trial by jury entitle criminal defendant to a jury determinationthat he is guilty ofevery elementofthe crime with whichis he charged, beyond a reasonable doubt-— labeling as “sentencing factor” does not negate thisright). C. The following facts, amongothers, are presented in support ofthis claim after adequate funding, discovery, investigation, and an evidentiary hearing: 1. Inhis closing arguments,the prosecutor concludedby imploring the jury to send a messageto others by convicting petitioner guilty on six 194 counts offirst degree murderandfind that the special circumstanceis true. Specifically, the prosecutor urged: MR. ANDERSON: Ladies and Gentlemen, by returning verdicts of guilty of six counts offirst degree murder and that the special circumstance is true, you can send a message to the Ramon Salcidos and David.Welchesof the world. MR. STRELLIS: I’m goingto object to this, Your Honor, and — MR. ANDERSON: The massacre ofbabies, children and other innocents of this world will not be tolerated and I just pray that you will do the right thing and follow your oath. (RT 5569.) 2. These remarks were unduly inflammatory. “A prosecutor shall not make remarks whichso inflamethe jury.” (People v. Haskett (1982) 30 Cal.3d 841, 863-866; People v. Morales (1989) 48 Cal.3d 527, 571-572.) Nor is it proper for an argument to appeal to the jury’s passions and prejudices. (People v. Fields (1983) 35 Cal.3d 329, 362-363.) 3. At the time of this case, Ramon Salcido was considered a notorious mass murderer, and his case was well knownthroughoutthestate. Thus, the comparison ofRamon Salcido to petitioner was a direct appeal to the jury’s passions and prejudices. This unduly inflammatory argument 195 deniedpetitioner a fair trial. It diverted the jury’s attention from its proper role and invited an irrational response. 4. Petitioner incorporates by reference Claims1, 6 through 17, and 21. Petitioner specifically re-asserts and re-alleges the supporting facts establishing the prosecutor’s bias and prejudice. (See Exhibit 43 ,Peoplev. Johnny Lee Barnes; Motion to Preclude the District Attorney from Seeking the Death Penalty.) D. Eacherrorin violation of the Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendments to the United States Constitution,individually and/or collectively, had a substantial and injuriouseffect or influence in determining the jury’s verdict. Claim 15: Prosecutorial Misconduct and Judicial Error (Batson) A. Petitioner’s conviction and sentenceofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution because the prosecutor used peremptory challengesto strike three African-American jurors from the jury, and one African-American from the poolofalternates. This use of peremptory challenges, to which petitioner and his counsel objected, violated petitioner’s constitutional guarantees ofequal protection; due process of law;fair trial; an impartial tribunal; and a fair and reliable capital proceeding and sentencing determination. 196 B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support of this claim: Batson v. Kentucky (1986) 476 U.S. 79 (prosecutor’s use of peremptory challenges violation ofequal protection); Caldwell v. Mississippi (1985) 472 U.S. 320 (prosecutorial misconduct); Mattox v. United States (1892) 146 U.S. 40 (fundamental right to impartialjury): United States v. Burr (1807) 25 —Fed.Cas.25,-no. 14,692bCCD.Va.-(fundamentalrighttofairimpartial. tribunal); Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Gardner v. Florida (1977) 430 U.S. 439 (due processviolation in capital proceeding); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Beck v. Alabama (1980) 447 U.S. 625 (constitutional requirements in capital proceeding apply to guilt phase); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created right); and including Apprendi v. NewJersey (2000) 530 U.S. 466 (Jury must determinefacts relevant to sentencing factors.). C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support of this claim: 1. Petitioner incorporates by reference Claim 51 regarding ex parte communication. 2. Petitioner incorporates by reference 9 through 17 regarding prosecutorial misconduct. These are incorporated in support of the claim independently and individually, as well as collectively, as establishing a 197 pattern and practice of unconstitutional actions and behavior by the prosecution andthe office of the prosecuting attorney in petitioner’s case. 3. The prosecutor used peremptory challenges to strike three African-Americanjurors from the panel. Petitioner, laterjoined by counsel, objectedto the prosecution’s use ofthese peremptory challenges. (RT 3837, 2713, 3850, 2738, 3932, 3851-3852, 3406.) The prosecutor later used an additional peremptory challengeto strike a African-American alternatejuror. (RT 3406, 3852.) | 4. Thetrialjudge foundthat petitioner had not established a prima facie case ofpurposeful discrimination, despite the fact that the prosecutor had exercised three of his 11 peremptory challenges on African-American jurors. (RT 3849,3853.) The court votedthat three African-Americanjurors remained on the jury. (RT 3849.) | 5. Petitioner objected, based on the rule of People v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky, supra, 476 U.S. 79. Under the procedure adopted by the California Supreme Court in Wheeler, the burden of showing that a peremptory challenge is not based on groupbias doesnot shift to the prosecutor until a prima facie case of such bias has been made. Oncesuch a prima facie case has been made, the prosecutor must articulate a race-neutral explanationrelatedto the case,i.e., “specific bias” as opposed to “group bias” for each of the challenged jurors. Improper exercise of peremptory challenges violates article I, section 16 of the California Constitution (People v. Turner (1986) 42 Cal.3d 711, 716), as well as the equalprotection clause of the United States Constitution. Batson v. Kentucky, supra, 476 U.S. 79. 198 6. The explanation offered by the prosecutor must be based on something otherthan race and cannot be merely a generalassertion that denies a discriminatory motive, or claims goodfaith in individual selection. The prosecution’s explanation must be clear and reasonably specific , and set forth legitimate reasonsfor challenges, all of which mustbe related to the particular case to be tried. (Jbid.) The trial court is then required to ~~ determine whetherthe petitioner carried his burdenofproving successful — discrimination. Batson v. Kentucky (Id), 476 U.S.at 98. 7. The prosecution acted unconstitutionally in challenging the African-American jurors and the trial court abused its discretion in determining that petitioner had failed to state a prima facie case for discrimination. The facts and circumstancesofthis case establish that Ms. LaDonnaYoung,Mr. Gerald Green, Ms. Teresa HuyghuesandMr.Carl Artis were all challenged because of their race. The fact that three of the 11 challenges exercised by the prosecutor directed at African-American jurors establishes a primafacie case ofdiscrimination. (RT 3849.) Moreover, the prosecutorlater exercised a peremptory challenge to an African-American alternate. 8. The record did not establish any non-race-related reasons why the prosecutor might wantto excuse these four jurors. All of these jurors supportedthe death penalty. They evidenced no hostility to the prosecution, and ifanything, were pro-prosecutionin orientation. Moreover, noneofthe stated reasons for striking the jurors were supported by the record, further manifesting a clear pattern of discrimination. | 9. Throughoutjury selection, the prosecutor showedabias against African-Americanjurors. The prosecutorearlier had challenged an African- 199 American woman,Ms. Jamie Griffen, solely because shefailed to disclose a misdemeanorarrest. (RT 3041, 3055.) Another African-American juror, Mr. Donald Hall, was successfully challenged because he did not mention a misdemeanor driving under the influence conviction. (RT 3203.) Additionally, five African-Americanjurors were successfully challengedfor causes by the prosecution for their purported reservations about the death penalty: Ms. Dorris Grady, Ms. Sheila Murry, Ms. Dorothy Parks, Ms. Dorothy Chambers, and Mr. Willie Turner. (RT 2027, 2275, 2755, 3298, 3536.) 10. The prosecutor’s rationale for challenging the four African- Americanjurors wasclearly pretextual. Ms. Young, an unemployed clerical worker, had noreservations about imposing the death penalty ifappropriate. (RT 2714-2715, 2717-2791, 2721-2722.) She graduated from college and lived with her fiancee who wasstudying to be an electrician. (RT 2722, 2724.) The prosecutor’s stated reason for striking her as ajuror was the fact that she had a child and was living with a man. Thus, according to the prosecutor, she had a credibility problem. Rather, the record clearly points outthat she had no children and wasliving with her fiancee. (RT 2724.) Ms. Young’s family consistedonly ofher sister, mother and grandmother. (RT 2724.) 11. The prosecution’s reasons for challenging Mr. Green was similarly constitutionally infirm. The pretext for the challenge wasthat this prospective juror purportedly had severe death penalty reservations. (RT 3851.) In fact, Mr. Green had no problem imposing the death penalty in appropriate circumstances, and sostated on voirdire. (RT 2740, 2742-2743, 2746.) He worked for the City and County of San Francisco Planning 200 Department. (RT 2739.) He was, however, strongly opposed to assault weapons. This fact would only have helped the prosecution. (RT 2752.) 12. Ms. Teresa Huyghues wasa nurse living on Highland Avenue in East Oakland. She stated on voir dire that she could vote for the death penalty. (RT 2932, 2933-3937.) She had a 31-year-old daughter and a 17- year-old granddaughter whom she had raised. (RT 2738.) She answered all questions with direct answers and did not appear to havedifficulty,on the record, following the court questioning. The prosecutionstatedthe reason for challenging her was that she wasnot a staunch believerofthe death penalty and hadnot been following the court’s questioning. (RT 3851.) However, Ms. Huyghuesneverhesitated in her answerthat she could vote to impose death in the appropriate case, and answeredall questionsput to her by the court, defense counsel and prosecution directly and succinctly. 13. Prospective juror Carl Artis answered that if the evidence supported the death penalty he could imposeit. (RT 3409-3412.) Mr. Artis later explained that any initial hesitancy he may have hadto the question regarding the death penalty was because he thought the question asked was whetherhe could actually be the executioner. (RT 3412.) This is reasonable, considering the question as it was posed to Mr.Artis. 14. The prosecution’s reasons for striking Ms. Young, Ms. Huyghues, Mr. Green and Mr. Artis were pretextual and masked a race-based challenge. The office of the prosecution, and this specific prosecutor, have a pronounced history of racism. (See Exhibit 43 ,People v. Johnny Lee Barnes; Motion to Preclude the District Attorney from Seeking the Death Penalty.) Race-based peremptory strikes were part of a pattern andpractice ofthe Alameda CountyDistrict Attorney’s office andthis prosecutor’s office. 201 15. The prosecutor’s peremptory challenges of theses four African-Americanjurors denied petitioner’s constitutional rights, including but not limited to the right to equal protection under the law. The stated reasons for exercising the peremptory challenges to these four African- American jurors were pre-textual and masked the prosecutor’s race-based purpose. These four jurors were stricken because they were African- American. 16. Thetrial court’s acceptance of the prosecutor’s reasons for striking these jurors was compoundconstitutional error. Thetrial court’s rationale manifested an unreliability and bias which does not conform with requisite fundamental guarantees. These guarantees include, but are not limited to, the rights to due process of law,a fair trial, a fair tribunal and particularly, a fair tribunal whenthetrial judge is not only unbiased but also conducts the proceedings with fairness and an appearance of fairness. Furthermore, excusing these fourjurors deniedpetitionerhis right to reliable capital proceeding in a case in which he ultimately faced death as the punishment. 17. These errors were unconstitutionally prejudicial to petitioner’s case. He was foundguilty onall counts (RT 5648-5658) and sentencedto be executed by a jury from which three African-American jurors had been carefully excluded on the basis of race. The constitution forbids striking even onejuroron the basis ofrace. (United States v. Vasquez-Lopez (9" Cir. 1994) 22 F. 3d. 900, 902.) (RT 6268.) D. Eachoftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/orFourteenth Amendmentsto the United States Constitution, individually 202 and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 16: Brady Error--Penalty Phase Impact of Prosecution Suppression of Material Evidence. A. Petitioner’s conviction and sentence of death are in violation of the Fifth, Sixth, Eighth andFourteenth Amendments to the United States Constitution and article I, sections 7, 15, 16, and 17 of the California Constitution because the prosecution suppressed, distroyed, tampered with and failed to preserve material evidence favorable to petitioner and it is reasonably probable that a more favorable result would have been obtained in the penalty phase had the evidence been disclosed. The suppression of this evidence deprivedpetitionerofhis federal and state constitutional rights to due process,the right to confront and cross-examine adversewitnesses, the effective assistance of counsel, a fair and reliable determination ofguilt and penalty, trial by an unbiasedtribunal,trial by jury, and a fairtrial. B. The following United States Supreme Court decisions, inter alia, in effect at the time the errors occurred, are presented in support ofthis claim: Brady v. Maryland (1963) 373 U.S. 83 (withholding of evidence favorable to accused violates due process); Giglio v. United States (1972) 405 U.S. 150 (Brady doctrine includes impeachmentevidenceas well as exculpatory evidence); United States v. Bagley (1985) 473 U.S. 667 (same); United States v. Agurs (1976) 427 U.S. 97 (Brady rules apply to evidence which would affect the outcome on penalty as well as guilt issues); Mooney v. Holohan (1935) 294 U.S. 103 (prosecutor’s nondisclosure of knowingly 203 perjured testimony violated due process); Napuev. Illinois (1959) 360 U.S. 264 (due process violated by false testimony regardless of whether prosecutorsolicited it or merely allowedit to go uncorrected); Miller v. Pate (1967) 386 U.S. 1 (14" Amendmentcannot tolerate prosecution’s knowing presentation of false evidence) Alcorta v. Texas (1957) 355 U.S. 28 (due processviolated when prosecutor failed to correct misleading impressionleft by witness’s testimony); DeMarco v. United States (1974) 415 U.S. 449 (if plea bargain madepriorto testimony, reversal of conviction required under Giglio and Napue); Donnelly v. DeChristoforo (1974) 416 U.S. 637 (false evidence includesintroduction of specific misleading evidence importantto government’s case); Pyle v. Kansas (1942) 317 U.S. 213 (knowing use of perjured testimonyand deliberate suppressionoffavorable testimonyrequires reversal); Imblerv. Pachtman (1976) 424 U.S. 409 (obligation ofprosecution to deal fairly in disclosing information and correcting misinformation continues after conviction); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly confront adversarial evidence); Douglas v. Alabama (1965) 380 U.S. 415 (right to confront includes right to cross-examine adverse witnesses); Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause guarantees right to impeach credibility of adverse witness with proof of his prior crimes); Powell v. Alabama (1932) 287 U.S. 45 (indigent capital defendant has right to have effective counsel appointed and to be heard through counsel); McMannv. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutionalright to counselis right to effective assistance ofcounsel); Strickland v. Washington (1984) 466 204 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showingthat counsel’sacts fell outside the range ofreasonable competence, coupled with showingofprejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance,that counsel’s errors affected the outcome;these principles apply equally to guilt and sentencing phasesofcapital trial); United States _v. Cronic (1984) 466. U.S. 648, 659 (Sixth Amendment violated, and prejudice need not be shown, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentenced on basis of unreliable information); Beck v. Alabama (1980) 447 U.S. 625 (Eighth Amendmentalso requires heightenedreliability in guilt determination in capital cases); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right). C. The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiaryhearing,are presented in support ofthis claim: 1. Petitioner incorporates by referenceasif fully set forth herein the facts and law alleged in support of Claim 1, 8 and 24. 2. Asset forth in greater detail in Claim 1, supra, the prosecution suppressed material evidence of substantial benefits provided to prosecution witnesses StaceyMabrey and Barbara Mabreyin exchangefortheirtestimony at trial. The prosecution also suppressed evidencethat it had induced five witnessesto changetheir earlier statements or testify falsely with respect to whethertheykneworbelievedpetitioner was mentally ill, and whether he was 205 intoxicated by alcoholand drugsat the time ofthe killings. Furthermore,the prosecution suppressed evidence that Stacey Mabrey was not presentat the time ofthe killing, and that his testimonystataing he wasapercipient witness to these events wasfalse. As set forth in Calim 8, the state also suppressed, destroyed, tampered with, or failed to preserve crucial forensic evidence. This evidence wasall favorable to the defense. 3. The suppressed evidence was material not only at the guilt phase, as set forth in Claims 1 and8, but also in the penalty phase. The suppression ofevidencefavorable to the accused bythe prosecution violates due process where the evidence is material either to guilt or punishment, irrespective ofthe good or bad faith ofthe prosecution. (Brady v. Maryland, supra, 373 U.S. 83, 87.) The suppressed Maybrey evidence was material because the testimony of these witnesses provided the facts relevant to “circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances foundto be true.” (Pen. Code §190.3, subd. (a)), and these matters were in turn considered by the jury at the penalty phase in determining the appropriate penalty. The materiality ofthis evidence is underscored by the prosecutor’s reliance on it in his closing argumentat the penalty phase (RT 6113-6114, 6115-6117, 6133), and thejury’s request that the testimonyofthese witnesses be read back duringthe guilt phase deliberations —an indication ofthe critical nature of the evidenceto the guilt phase verdict. The blood evidence was critical because it would haveestablished that petitioner was so intoxicated and impaired at the time of the offenses that the jury should have been permitted to considerthis fact in mitigation. It is at least reasonablyprobable 206 that a more favorable result would have been obtainedif the evidence had been disclosed. D. Thefacts pertaining to each of these errors, in violation of the Fifth and/or Sixth and/or Eighth and/orFourteenth Amendmentstothe United States Constitution, individually and/or collectively, establish a reasonable _probability that heoutcomeof trialwould havebeendifferentthe - suppressed information had been disclosed to the defense. A “reasonable probability” of a different outcome is shown when the government’s withholding of evidence “undermines confidence in the outcome.” (U.S. v. Bagley, supra, 473 U.S. 667, 678.) No harmless error analysis may be applied. Claim 17— Cumulative Error — Prosecutorial Misconduct A. Petitioner’s conviction and sentence of death violate the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and Article I, Sections 7, 15, 16 and 17 ofthe California Constitution because the cumulative effect ofthe prosecutorial misconductallegedin this petition and in petitioner’s direct appeal deprived petitioner of his federal constitutional rights, including, butnot limited to, his rights to due process of law, equal protection, confrontation, the effective assistance ofcounsel, andtheright to reliable capital proceedings and sentence. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: 207 Taylor v. Kentucky (1978) 436 U.S. 478, 487, and fn. 15 (cumulative effect of errors may violate due process); Berger v. United States (1935) 295 U.S. 78 (prosecutor shall not use improper methods to produce a wrongful conviction); Napue v. Illinois (1959) 360 U.S. 264 (reversible error for prosecution to introduce false testimony); Caldwell v. Mississippi (1985) 472 U.S. 320 (constitutionally impermissible to risk death sentence on determination madeby sentencer whohasbeen misled on responsibility for determining appropriateness ofdefendant’s death); Strickland v. Washington (1984) 466 U.S. 668 (criminal defendant hasright to effective assistance of counselat all stages ofproceedings); Brady v. Maryland (1963) 373 U.S. 83 (withholding ofevidencefavorable to accused violates due process); Pointer v. Texas, (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly confront adversarial evidence; Gardnerv. Florida, (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentencedonbasis ofunreliable information); Godfrey v. Georgia, (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Hicks v. Oklahoma, (1979) 447 U.S. 343 (federal due process claim in state-createdright). C. The following facts, among others to be discovered after adequate funding,discovery, investigation, and an evidentiary hearing,are presented in support of this claim: 1. Petitioner incorporates asif fully set forth herein all facts and law set forth in all Claims 1, 8 through 17, and 21. 2. Inthis petition andin the briefing on direct appeal, petitioner has set forth separate post-conviction claims and arguments regarding the 208 numerous instances of prosecutorial misconduct which occurred in the pretrial, guilt, penalty, and post-trial phases ofthis case, and he submitsthat each oneofthese errors independently compels reversal of the judgment or alternative post-convictionrelief. 3. A habeas corpuspetitioneris entitled to relief ifthe cumulative effect of prosecutorial misconduct materially affected his conviction or sentence. (United States v. Sanchez (9" Cir. 1999) 176 F.3d 1214,1225; United States v. Christophe (9thCir. 1987) 833 F.2d 1296, 1301; see also, Taylor v. Kentucky (1978) 436 U.S. 478, 487, and fn. 15 [due process violated by cumulative effect of error].) 4. Petitioner submits that the many instances of prosecutorial misconduct in this case require reversal both individually and because of their cumulative impact. As explainedin detail in the separate claims and arguments ontheseissues,the errorsin this case individually and collectively violated federal constitutional guarantees underthe Fifth, Sixth, Eighth, and Fourteenth Amendments. 5. The combined effect of the prosecutor’s misconduct was prejudicial because it is more probable than not that the misconduct materially affected the verdict. (United States v. Sanchez (9" Cir. 1999) 176 F.3d 1214, 1225.) For example, the prosecutor’s suppression of material evidence deprived the defense of the means with which to demolish the credibility ofcritical prosecuti0on witnesses. His persistent provocation and taunting of petitioner contributed to petitioner’s mental deterioration and decompensationattrial in front of the jury. Furthermore, his egregious and unconscionable appealsto passion andprejudice throughoutclosing argument 209 at both the guilt and penalty phases rendered the verdict and sentence unreliable. Accordingly, relief must be granted. D. Each error in violation of the Fifth and/or Sixth and/or Eighth and/or FourteenthAmendmentsto the United States Constitution, individuallyand/or collectively, had a substantial and injuriouseffect or influencein determining the jury’s verdict. Claim 18: Ineffective Assistance — Failure to Competently Investigate andPresent Social History A. Petitioner’s conviction and sentence ofdeath are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 7, 15, 16, and 17 of the California Constitution because he wasdeprivedofthe effective assistance of counsel during the pretrial, guilt, penalty, and sentencing phasesofhistrial whenhis trial counsel failed to competently investigate and present petitioner’s compelling social history of abuse, organic impairment, mental illness, and emotional disturbance. Counsel’s unprofessional errors deprived petitioner of his federal and state constitutional rights to the assistance of counsel, conflict-free counsel, confrontation, due processof law,a fair and reliable determination of guilt and penalty, trial only when mentally competent, a determination by a tribunal of mental competence, trial by an unbiased tribunal, trial by jury, and a fairtrial. 210 B. The following United States Supreme Court decisions, inter alia, in effect at the time the errors occurred, are presented in support ofthis claim: Powell v. Alabama (1932) 287 U.S.45 (indigent capital defendanthas right to have effective counsel appointed and to be heard through counsel); McMannv. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668(counsel has duty toconduct reasonable investigation; under Sixth and Fourteenth Amendments, a showing that counsel’s acts fell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome; these principles apply equally to guilt and sentencing phasesofcapitaltrial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendmentviolated, and prejudice need not be shown, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed when counsellabors under conflictofinterest); Hill v. Lockhart (1985) 474 U.S. 52 (Strickland standards apply to representation providedpriorto trial, such as during plea proceedings); Woodson v. North Carolina (1976) 428 U.S. 280 (capital jury must be permitted to consider character ofoffender and circumstancesofcrime in determining appropriate punishment); Lockett v. Ohio (1978) 438 U.S. 586 (Gury maynot be precluded from considering any aspect of capital defendant’s character or record ‘in mitigation); Eddings v. Oklahoma (1982) 455 U.S. 104 (evidence of defendant’s troubled family background, abuse, and mental and emotional disturbanceis “particularly relevant” mitigating evidencein capital case);Ake 211 v. Oklahoma (1985) 470 U.S. 68 (defendant entitled to expert assistance, including mental health expert assistance, to prepare for andtestify attrial); Pointer v. Texas, 380 U.S. 400 (1965) (confrontation clause provides criminal defendantright to directly confront adversarial evidence; Loven v. Kentucky, 488 U.S. 227 (1988) (confrontation clause violation where defendantnot permitted to cross-examine complainant); Gardnerv. Florida, 430 U.S. 439 (1977) (due process violation in capital proceeding where petitioner sentenced on basis of unreliable information); Beck v. Alabama (1980) 447 U.S. 625 (Eighth Amendmentalso requires heightenedreliability in guilt determination in capital cases); Hicks v. Oklahoma, 447 U.S. 343 (1979) (federal due process claim in state-createdright). C. The following facts, among others to be developed after adequate funding, discovery,investigation, and an evidentiaryhearing, are presentedin support ofthis claim: 1. Petitioner incorporates by referenceasif fully set forth herein the facts and law alleged in support ofClaims 2, 4, 5, 19, 23, 24, 47, 48, 77, and 78. 2. Trial counsel’s investigationinto petitioner’s social history was woefully inadequate. Counsel failed to interview or have an investigator interview virtually any ofpetitioner’s former teachers or educators, friends, relatives, neighbors, or persons with whom petitioner came in contact in institutions or the courts. Counsel’s files reveal no notes of any such interviews. Counselalsofailed to obtain important documentary evidence, including, but not limited to, building departmentrecordspertaining to the homein which petitioner’s family lived when he was born. 212 3. Hadtrial counsel conducted an even minimally competent investigation, theywould have discoveredandpresentedthe following social history: . (a) A mosaic ofneurologic deficits, serious mentalillness, severe deprivation, and chronic maltreatment shaped Mr. Welch’s understanding of the world in which he lived. Mr. Welch is the second of _three-children bornto-African American parents-who migrated toOakland, California, area from rural Alabamain the decade after World War II. In 1932, Mr. Welch’s father, Dave Welch,Jr., was born at homein Loxley, Alabama,to 37 year old Dave Welch and 19 year old Ollie Jackson. (Exhibit ...» David Welch, Jr. Birth Certificate.) Dave Welch, Mr. Welch’s paternal grandfather, spenthislife working as a chipperforturpentine,abackbreaking job that broughtlittle pay. Two yearslater, in 1934, Mr. Welch’s mother, MinnieBell Millender, was born in Monroe County, Alabama,to parents who were farmers (Exhibit 98, Minnie Bell Millender Birth Certificate.) (b) Both parents had only elementary school education and were unskilled. Mr. Welch’sfatherleft schoolafter the eighth grade, moved to Mobile, and held a series ofjobs in the late 1940's for earned him less than $700 annually, barely enough to survive (Exhibit 95, David Welch,Jr. Social Security Records.) Hejoined the U.S. Army, wherehe served as a corporal, and was discharged in December, 1953. Meantime, Mr. Welch’s mother worked in a shrimpplant in Pascagoula, Mississippi, and earned $25.00 in 1954. She earned a few more dollars working for Clinton Cheramie in Cut Off, Louisiana, before leaving Alabama with her family and migrating to California in the hopes of a better life than the neo-slavery conditions Page -213- African-Americansfaced in rural, southern Alabama. (Exhibit 101, Minnie Welch Social Security Records.) (c) Although Minnie and David escaped the Jim Crow laws and the daily denial of basic human rights faced by African-Americans in Alabama,their lives were marked by turmoil. Mr. Welch’s parents metin Oakland and married March 10, 1956, in Reno, Nevada,at the Ministry ofthe Gospel. (Exhibit 99, Welch Marriage Certificate.) Within a few months, on October 1, 1956, Mr. Welch’soldersister, Cathie Diane Welch, was born at Herrick Memorial Hospital in Oakland, California. (Exhibit 106, Cathie Diane Welch Birth Certificate.) Her father was a construction worker who could barely support his small, but growing family. (d) The Welch’s rented an apartment at 5848 Fremont Street, an old home divided into small, barely inhabitable apartmentunits. The family lived in the apartment until after Mr. Welch and his younger brother, Dwight, were born. The apartmentbuilding’s ownerwas cited bythe sanitation departmentfor health, safety, and sanitation violations. Built in 1890, a subsequent conversionaltered the use to a four-unit apartment house but the building wasbeingillegally occupied as a six-unit apartment house. The building wasin a state ofill repair with “heavy cockroach and rodent infestation,” “defective plumbing,” improperly vented gas appliances, “unapproved wiring throughoutthe building (manyviolations),” inadequate “ventilation” in numerous rooms with no windows, and “ceiling leaks.” (Exhibit..., Building Inspection Records, 5848 Fremont.) An aunt whovisited the apartment recollected that it was “in a very run down downstairs Page -214- apartmentin a house on FremontStreet. The place where they lived was very dirty and falling apart. There were holes in the walls and ceilings and the paint was peeling from the walls.” (Exhibit 21, Declaration ofSarah Perrine; Exhibit 53, Building Inspection Records, 5848 Fremont.) (e) Life inside the apartment wasas bleak as the building’s appearance. Minnie and David had a miserable and violent marriage. David “was a very heavy drinker” who “wasalready aggressive with Minnie.” A familymemberthoughtthat“[l]iquor made David, cruel.” David beat Minnie “and rendered her helpless to defend herself, once backing “her into the bedroom. .. witha chair.” David beatMinnie often when she was pregnant with David and Dwight. Minnie fled to her aunts house for protection and they witnessed the bruises on her arms and face and black eyes. Mr. Welch wasborn March 21, 1958, at Herrick Memorial Hospital (Exhibit 111, David Welch III Birth Certificate). Mr. Welch’s father wasstill a construction laborer. (Exhibit 21, Declaration of Sarah Perrine.) (f) Developmental difficulties and delays plagued Mr. Welch from birth. One ofhis aunts rememberedthat, “when David was born, he wassickly, and had to have a ventilator in his room to help him breathe. Ashe grewolder, he continued to have problemswith his breathing. He also always had sensitive skin, and rashed easily. When he began talking, he spoke with a speech impedimentthat lasted for several years.” Mr. Welch’s brother, Dwight Chenier Welch, was born March 12, 1959, not quite a year after Mr. Welch. (Exhibit 118, Dwight Chenier Welch Birth Certificate.) Minnie’s sister reported that, “What money David[]did bring home he used Page -215- on himselfto support his drinking habit. As a result, Minnie and the children were always hungry,and alwaysverythin.” Familymembers were concerned about David’s development from an early age and wondered if he was mentally retarded. An aunt reported he wasfearful ofbenign things such as food, he slept an unusual amount, banged his head, was incontinent, and was very emotional. (Exhibit 21, Declaration of Sarah Perrine.) (g) The family of five continuedto live in the unsafe and unsanitary apartment on Fremont until 1961, when they scraped together enoughto put a down paymenton a small homecosting $13,000 in Sobrante Park. Mr. Welch’s father relied on a G.I. Loan for financing. (h) Mr. Welch’s father earned a meager $4,000 annually, but did not make those earnings available to the family for its well being. For example, he “usedto go out drinkingall ofthe time. On weekendnights, before he left, David, Jr., used to give Minnie little money. Then,after he wasdrunk,he returnedto the apartmentvery drunk, and demandedhis money back.” Minnie begged moneyfrom herrelatives to buy food forthe children. An alcoholic given to unpredictable assaults on his family, Mr. Welch’s father withheld moneyfor basic daily needs ofhis family. Byall accounts, he imposed harsh and cruel punishmentat will on Mr. Welch and Minnie. (Exhibit 21, Declaration of Sarah Perrine.) (i) After Minnie gavebirth to her three children, she was “very sickly, and was suffering from depression.” Manytimes, the children did not have enoughto eat and went hungry. In 1961, Minnie’s depression Page -216- was so severe she was unable to care for the children at all. Her sisters rescued Minnie and droverher and the children to Alabamatotheir mother’s home wherethey could be safe from abuse at the hands ofDavid and where Minnie could recuperate and regain her strength. Alabamarelatives were shocked at the emaciated condition of Minnie and the children. Minnie’s mother nursed the family back to health. Unfortunately, David found the family and forced them to return to Oakland with him. (Exhibit 21, Declaration of Sarah Perrine.) (j) Mr. Welch, his mother, and his siblings lived in an atmosphereofchaos, neglect, and fear imposed on the family by David. Mr. Welch’s father beat Mr. Welch and his mother frequently, threatened tokill them, held them captive, and starved them for extended periods of time. David beat Minnie without regard to the presence of the children, who witnessed the repeatedlife-threatening attacks. Minnie’s family wascalled to the home on morethan one occasion when David attemptedto kill Minnie, attacking herwith knives, spraining and twisting her arms, and threatening her with shooting. (k) Although Mr. Welch’s mother was unable to protect herselfor any ofher children, Mr. Welch wasespecially targeted byhis father for the greatest abuse. Relatives speculated that David targeted Mr. Welch because he did not look as muchlike his father as the other children. David beat Mr. Welch with belts, extension cords, and “anything he got his hands on.” He beat David for minorinfractions such as “‘spilling something in the refrigerator” or getting wet when he played in the creek. (Exhibit 21, Declaration of Sarah Perrine) Page -217- (1) Mr. Welch andhissiblings respondedto the beatings and abuse in a manner characteristic of children who survive prolonged trauma. Relatives described them as “nervous” and “anxious kids whocrieda lot.” Mr. Welch grew withdrawn, avoided being around other children, trembled when he becameupset, and failed at basic social relationships. was the most afraid of his father. Mr. Welchtriedto be invisible aroundhis father in an unsuccessful effort to avoid beatings. Hetried to stay in roomsin the house where his father would not see him. When David attacked Mr. Welch, Mr. Welch did not cry or scream for help. David denied Mr. Welch small pleasures that he gave the other children. David allowed Mr. Welch’s siblings to watch television, but beat Mr. Welch for watchingtelevision. David ridiculed, degraded, and cursed Mr. Welch, humiliating him in front of family and peers. (Exhibit 21, Declaration of Sarah Perrine.) (m) His father and mother separated and divorced, but his father returned to the homeat will and continued his physical and mental assault on Mr. Welch and his mother throughout Mr. Welch’s adolescence. Mr. Welch’s mother workedsteadilybut her employment opportunities were severely limited by herdeteriorating mental health. She was overwhelmedby the demands of parenting a child like David whohad special psychiatric needsand beat him severely for behavior over which he had nocontrol. (n) Mr. Welch responded to maltreatment in a pattern characteristic of: children who have survived chronic exposure to life threatening abuse. His responses werealtered by his underlying neurologic deficits which distorted his perception ofhis environment andintensified his maladaptive behavior. He became hypervigilant to threats of harm but was Page -218- ‘unable to distinguish real threats from misperceived threats. He was suspicious and fearful of routine occurrences and mistrusted the motives of others — even those who attemptedto assist him. He was preoccupied with safety and unable to attend to the normal tasks children and adolescents address during development. He also began to exhibit traits of obsessive compulsive behavior. He refused to use the school restroom and returned hometo use the bathroom. He becameincontinentwhenhe wasanxious, over stimulated, and distressed. (0) Maltreatment at home, combined with underlying neurologic deficits, eroded Mr. Welch’s ability to keep pace with his peers academically. He experienced developmental delays in academic performancethat were noted byhis teachers but never addressed effectively in special educationor services provided to the child. His first grade teacher commentedthat his basic social perceptions were retarded as he had “no one to one concept,” was “[o]verstimulated by group”activities and gave “up easily.” He “adjusted some” in the second semester of kindergarten. He performed in the lowest quartile in the first grade and was enrolled in a speech therapy class for defects in articulation. He had learningdifficulties, washyperactive and immaturefor his chronological age, and waschronically ill. He demonstrated problems with impulsivity, but he struggled “to control himself” in the second grade. His performance was extremely low in the second gradeandhescoredin the fourth percentile in reading. His reading skills continued to lag behind his peers in the third grade. Like manybrain damagedchildren, David’s thinking inflexible and rigid, leading teachers to Page -219- concludehe was“stubborn or pouty.” (Exhibit 112, Oakland Unified School. District Records.) (p) Manifestations of serious neurologic deficits are evident in his erratic performance and behavior at school. Academic achievement testing placed him in the lowerthird ofhis class in the fourth grade, and he wastransferredto a different elementaryschool without explanation. (Exhibit ..., Oakland Unified School District Records.) A friend described Mr. Welch’s academic experiences: “Even in kindergarten, David wasin special classes for children with emotional and behavior problems. I remember David had a classmatein the classes for children with special needs whose name wasJason Mitchell. I last saw Jason about one year ago. He was a patient in the lockdown psychiatric unit of a hospital in San Leandro, California.” (Exhibit 26, Declaration of Konolus Smith.) (q) Initially Mr. Welch’s teachers at the new elementary school reported they had “no problem”getting along with Mr. Welch,but he wassubsequently suspendedfor“insubordination” whenMr. Welch “took off and hid” following areprimand. (Exhibit ..., Oakland Unified SchoolDistrict Records.) School wasa threatening environment for Mr. Welch, who was frequently punished for behavior caused by his mental deficits. A friend reported, “During the time wewerein school, the teachers and administration practiced corporal punishment. Backthen,they disciplined us in waysthat today would send them to jail. They dugtheir finger nails into our arms,hit our handswith rulers,and spankeduswith their handsandwithother objects. Mr. Schmidt, one of our teachers, used a switch he called ‘Mr. Black.’ To Page -220- discipline us, Mr. Schmidt used to make us grab onto the sides of our desk, lean over and take the beatings. He hit us with Mr. Black repeatedly despite the tears and screams, andhehit us in the same spot. While this kind of physical discipline generally quieted the rest of us, it only made David lose control of himself even more.” (Exhibit 26, Declaration of Konolus Smith.) _ .....(t) .. School records showthat.a teacher inflicted-corporal punishment on Mr. Welchand that Mr. Welch attemptedtostrike the teacher, aresponsethat suggests he was extremely disturbed. However, bythe second semester, his teacher commented, “David seemsto be adjusting nicely to myself and the class. I am pleased to have him as a student.” Within a relatively short time frame, the same teacher described Mr. Welch’s behavior as “deplorable.” This pattern oferratic and unpredictable behavioral changes continuesto the present day. (Exhibit 112, Oakland Unified School District Records.) (s) Standardizedtesting in the sixth grade placed Mr. Welch at least two gradelevels below his peers. His IQ was measuredat 78,falling within the borderline range ofmental retardation. By the eighth grade, Mr. Welch no longer maintained pace with his peers and received morefailing grades than passing. Hefailed miserably in public schools, transferred between public high schools, continuation schools, and county juvenile agencies and schools, and was unable to learn basic lessons of social relationships. (Exhibit 112, Oakland Unified School District Records.) (t) Mr. Welch wasill-equipped and unable to weather the normal turmoil and upheaval of adolescence. Ashe enteredhis early teens, Page -221- his alcoholic father continued to hold sway over the home through brutality andintimidation, even though he and Mr. Welch’s mother were divorced. The senior Mr. Welch found work as a merchant seaman and was assigned to tankers that carried supplies to the war in Viet Nam. His employers reprimanded him for drinking himself into an alcoholic coma. When he returned to the mainland, he continued his excessive drinking, withheld financial support for the family, beat mother and sonalike, and threatened to kill them. Mrs. Welch had to work an increasing numberofhours to support her family, and one teacher noted that the Welch home had no supervision. Mr. Welch began to use alcohol andillicit drugs in an effort to quell his intense emotional response to the helplessness he experienced at home,at school and in the community. (u) The community ofSobrante Park offeredlittle resources or protection to children in unsafe homes. Law enforcementserved to keep the children confined to the neighborhood, and white and Latino youth in nearbycommunities attacked children from Sobrante Parkwho ventured away from their communities. A friend reported, “[O]ften our plans to go to the mall or movie in San Leandro got derailed because we were kept alwayby the white children in San Leandro who did not wantusin their neighborhood.” Mr. Welch’s era of youth in Sobrante fended for themselves in the neighborhood surrounded by factories, metal recycling plants, and construction sites for fast expanding mass transportation. (Exhibit 26, Declaration of Konolus Smith.) Page -222- (v) Mr. Welch andhis peers swam in the polluted stream that ran through their neighborhood, played in burned out and abandoned buildings, and were on guard against assaults by older youth andtransients. Children whoplayedin the stream developed a hostofreactionsto the toxins in the polluted water. Another child who played in the stream, reported: “Fences have been constructed to keep childrenoutofthe polluted waterways we usedto playin.Adults andteachersin the neighborhood have developed programsto combat drug use among children. When we were growing up, these kindsofsafeguards were notin place. Also,scientists are now studying East Oakland, and documenting what I have known fora long time, that Sobrante Park hasa higherdeathrate, a higher diseaserate, ahigher addiction rate, and a higher injury andinfectionrate that the rest ofAlameda County.” A friend who grew up in Sobrante Park observed: “Fences have been constructed to keep children outof the polluted waterways weusedto play in. Adults and teachers in the neighborhood have developed programs to combatdrug use among children. When wewere growingup, these kinds of safeguards were not in place. Also, scientists are now studying East Oakland, and documenting whatI have knownfor long time, that Sobrante Park has higherdeathrate, a higher diseaserate, a higher addiction rate, and a higher injury and infection rate that the rest ofAlameda County.” (Exhibit 26, Declaration of Konolus Smith.) (w) Children in the community were injured and killed as a result of the unsafe physical environment and the absence of decent recreational opportunities. A long time resident of Sobrante Park described howthe children occupiedtheir time: “ The only street in and out oftown is Page -223- Edes Avenue, which connects to Acalanes Avenue. Just about every inch ofEdes Avenue hadindustry onit, and there werediesel trucks comingin and out of there all day picking up and unloading whatever it was they were transporting. There were wrecking yards, metal storage, machineries, a GM plant, and there was usually chemical smells in the air. Until we werein our early teens, there wasnoreal park in Sobrante Park. Where the park is now stood some buildings. When wewerelittle, those buildings housed a dry cleaners, a grocery store and a five and dime store. Then, when I wasstill in elementary school, one ofthe neighborhood family’s got mad and burned the buildings down. They stood abandoned for years, until our close friend James Miles waskilled. James was in between my age and David’s age. Whenhewasaboutfifteen years old, we wereall playing togethertrying to leap onto diesel trucks passing in and out on Edes. Jameslost his balance and got caught in the wheels of the truck. The truck went severalstreets before he realized what happened, and we watched James get crushed to death.” (Exhibit 26, Declaration of Konolus Smith.) (x) Withno community support for safe activities, children created their own waysofentertaining themselves, accordingto one observer, whoreported,“Because there wasnota lot for children to do, we spent most ofourtime playingbytherailroadtracksthat ran through our neighborhood, jumpingboxcars, chasingrabbits in “Rabbitsville,” which was wherethe city wasadding onto the airport. Wealso spent lot oftime playinginall ofthe construction going on in our neighborhood. Whenwe werelittle, workers were building BART- which runs about half a football field north of Acalanes, the freeway, which runs abouthalf a football field south of Edes, Page -224- and the airport, which is below the freeway.” (Exhibit 26, Declaration of Konolus Smith.) (y) Mr. Welch’s peers, older by only a few years, weresent to Viet Nam and returned injured or dead, were killed by each other at an alarmingrate, and fell victim to drug and alcohol addiction at an early age. Community violence colored Mr. Welch’s view oflife outside his violent home, and he became-ever more vigilant to potential danger. He armed himselfwith guns,initially to protect himselffrom hisfather’s frequentthreats to shoot, maim,andkill him and his motherbut eventually to protect himself from real and delusional threats. (z) Peers, neighbors, family, and friends recognized that Mr. Welch was mentally ill. They described his bizarre andirrational behavior and learnednot to enter into prolonged conversations with him becauseofhis inability to respond appropriately. He over interpreted words and phrases, was hyperalert to any verbal slight, and read special meaning in events. He often made no sensein his conversations and becameeasily agitated when others could not understand him. Despite episodic andirrational behavior, neighbors reported that he also madeevery effort to help and protectfriends. Hewasarrested for a series of relatively minor violations suchas stealing wine and disturbing the peace. His unpredictable behaviorescalated as he became older and increasingly paranoid. He wasarrested for offenses that wererootedin his paranoid delusions, such as shooting at perceived enemies, and placedin juvenile facilities. Page -225- (aa) Mr. Welch respondedto the structure and security of juvenile facilities in a remarkably positive manner. Juvenile authorities reported that Mr. Welch “has shown a dramatic change in his behavior at Juvenile Hall. He is now considered to be a model detainee. He is cooperative about following staff instructions and unit rules andis getting along well with his peers. David has recently demonstratedthat heis capable of making a good adjustment in a secure and highly structured setting.” Despite the recommendation that Mr. Welch be housedin a highly structured setting, Mr. Welch wassent to youth camps, where he was housedandfed in group settings. As an adult, Mr. Welch continuedto be confined, fed and transported in loosely structured environments at the California Youth Authority. Absent structure and security, Mr. Welch’s delusional thought processes were unmediated and dominatedhis actions. He wasreturned to his community in 1977 when he was 19 years old. (Exhibit ..., Alameda County Juvenile Court Records.) (bb) Mental impairments formedthe basis ofhis bizarre and idiosyncratic understanding ofrelationships with others as a young adult. Mr. Welch wasperceivedby people in the community to be “weird” and “crazy” as his behavior escalated into confrontations with friends and law enforcement. (Exhibit ..., Declaration of Rita Lewis). He wasarrested and charged with series ofassaultive offenses and was imprisoned in countyjail and the state prison system. A close friend reported that, “David was a very paranoid person. He never understood people’s intentions. He always believed people were out to get him. For example, David had terrible memory, and when he could not remember things, he came to accusatory Page -226- conclusions about what he could not remember.” He showedtraits of obsessive compulsive behavior and, according to a friend, “needed routines, and he needed to be able to stick to his routines.” This same friend recollected that, “[e]ven though David was unable to understand mostjokes, he loved to laugh, and always had a loud, wonderful, joyful laugh,childlike laugh.” (Exhibit 26, Declaration of Konolus Smith.) (cc) The only really positive event in Mr. Welch’slife came with the birth ofhis son, whom hetreasured. In 1981, his son, David Esco Welch IV, was born to him and Terri Yvonne West; they married in 1984. (Exhibit .... David Welch IV Birth Certificate, Exhibit ..., Welch Marriage Certificate). For the next five years, Mr. Welch’s behavior continued to be controlled by deeply-seated mistrust of others, delusions of grandiosity and persecution, and his hyperalertness to any perceived threat of danger. His neurologic deficits caused him to be unable to understand, modulate, or control his intense emotional responses to confusing and frightening events. His use of drugs and alcohol was an unsuccessfuleffort to self medicate the confusion and paranoia he experienced. He consumed lethal quantities of illicit drugs and alcohol, stopping only when he lost consciousness. His erratic behavior led to numerous arrests, convictions, and confinement in jails and state prisons, which he incorporated into his delusional frame of reference. By the time of his arrest for the current offenses, Mr. Welch lived in a delusional world that had invaded every domainofhislife. Page -227- (dd) Throughout his adult life, petitioner’s inability to understand, modulate, or control his emotional responses to stimuli have resulted in his repeated arrest and incarceration for a variety of offenses. During these periods of incarceration he has been subjected to persistent, nightmarish abuseat the handsofother inmatesand custodial personnel, who uniformly haveeitherfailed to recognize or have intentionally exploited Mr. Welch’s neurologic and memory deficits to their own ends. Becausehis impairmentsrenderhim incapable ofcomprehending or complying with a host of custodial regulations, petitioner has been repeatedly beaten, subjected to disciplinary diets, and been denied basic privileges accorded to other prisoners. He has also been degraded, humiliated, and raped by other prisoners. Unable to formulate a strategy to adapt to these conditions, and compelled to view the world through a lens ofparanoid delusion,petitioner had responded by lashing out at those whom he perceives to be his tormentors. His impulsive reactions haveled to petitioner’s placement in administrative segregation units and further deprivations of privileges. However,petitioner’s impairments have left him incapable of learning from these experiences or modulating his behavior, further contributing to his deteriorating mental condition. 4. Itis at least reasonably probable that a more favorable outcome would have been obtainedat petitioner’s trial, penalty trial, and sentencing but for counsel’s unprofessionalfailure to investigate, procure, and present the foregoing social history information. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984) 466 U.S. 668.) The failure to obtain and present a social history left the defense with only the two mental health experts to Page -228- testify about petitioner’s mental problems. However, withouta socialhistory, thejury wasleft without anyexplanation ofhowpetitioner’s mental problems werereflected in his daily life. Moreover,the jury was never presented with sympathetic information regarding petitioner’s backgroundofcharacter, the very material competent defense counsel are expected to present in the penalty phase ofa capitaltrial. (See, e.g., Williams v. Taylor (2001) 529 U.S. 362,and casescited therein.) D. Each ofthese errors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 19: Ineffective Assistance of Counsel--Failure to Move for Competence Determination A. Petitioner’s conviction and sentence of death are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, 16, and 17 of the California Constitution because he was deprived ofthe effective assistance of counsel during thepretrial, guilt, penalty, and sentencing phasesofhis trial when his trial counsel unprofessionally and inexplicably failed to move for a determination of petitioner’s competence when they became aware of substantial evidence ofhis incompetence. Counsel’s repeated, persistent, and unprofessional errors deprived petitioner of his federal and state constitutional rights to the assistance of counsel, conflict-free counsel, confrontation, due process of law, equal protection, a fair and reliable Page -229- determination of guilt and penalty, trial only when mentally competent, a determination by a tribunal of mental competence, trial by an unbiased tribunal, anda fairtrial. B. The following United States Supreme Court decisions,inter alia, in effect at the time the errors occurred, are presented in support ofthis claim: Powell v. Alabama (1932) 287 U.S. 45 (indigent capital defendanthasright to have effective counsel appointed and to be heard through counsel); McMannv. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutionalright to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showingthat counsel’sacts fell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome; these principles apply equally to guilt and sentencing phases of capitaltrial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendmentviolated, and prejudice need not be shown, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed when counsellabors underconflict of interest); Hill v. Lockhart (1985) 474 U.S. 52 (Strickland standards apply to representation provided priorto trial, such as during plea proceedings); Dusky v. United States (1960) 362 U.S. 402 (defendantis incompetent to standtrial ifhe lacks “sufficient presentability to consult with his lawyer with a reasonable degree ofrational understanding”or“a rational as well as factual understanding of Page -230- the proceedings against him”) Pate v. Robinson (1966) 383 U.S.375 (failure to observe procedures designed to assure defendant will not be tried or convicted while incompetent violates due process andright to fair trial); Drope v. Missouri (1975) 420 U.S. 162 (defendant’s conduct after arraignment, such as conduct in court or in jail, may trigger competency proceedings); Ake v. Oklahoma (1985) 470 U.S. 68 (defendantentitled to expertassistance,includingmental health expert assistance,to prepare for and testify at trial); Pointer v. Texas, (1965), 380 U.S. 400 (confrontation clause provides criminal defendantright to directly confront adversarial evidence; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentenced on basis of unreliable information); Beck v. Alabama (1980) 447 U.S. 625 (Eighth Amendmentalso requiresheightenedreliability in guilt determination in capital cases); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-createdright). C. The following facts, among others to be developed after adequate funding, discovery,investigation, and an evidentiary hearing,are presented in support of this claim: 1. In spite ofrepeatedindications that petitioner was not mentally competent to proceed with trial, including the court’s own statements regarding its view ofpetitioner’s incompetency and petitioner’s own motion for a competency hearing, counsel failed to move for a competency determination pursuant to Penal Codesection 1368. Page -231- 2. Petitioner’s trial counsel, Spencer Strellis and Alexander Selvin, were awareor should have been aware that petitioner’s previous attorneys, Thomas Broome and Robert Cross, had made a competence motionprior to the preliminary examination,citing the stress under whichpetitioner labored as a result of the extraordinarily harsh conditions of his confinementin the county jail and the fact that petitioner was unable to assist his counsel in a rational manner. (Ct-778-783; exhibits) Counsel were awarethat these harsh conditions of confinement continued unabated during the period they represented petitioner, and themselves complained to the court about these conditions and their detrimental effect upon petitioner’s mental state. (See e.g. RT 640-641, 2404-2407, 3060-3033, 3723-3730.) 3. Counsel were also aware or should have been awarethat petitioner had a longstanding reputation within thejuvenile andadultjustice system in Alameda County for being mentally ill. (Exhibit 6, Declaration of Thomas Broome; Exhibit 7, Declaration of Robert Cross.) Moreover, numerous witnesses made statements or testified at the preliminary examinationthat petitioner was “crazy”and that this reputation was common knowledge in the East Oakland neighborhoods in which he wasraised and lived. 4. To the extent that counsel were aware of the foregoing information andfailed to act upon it by moving for a psychiatric evaluation and competence determination, they were ineffective as counsel To the extent counsel were unaware of the foregoing information, they were ineffective for failing to investigate petitioner’s background and personal history to discover this information. Page -232- 5. Counsel were specifically aware of the fact that the trial court had experiencedgreatdifficulty in obtaining counselfor petitioner because of petitioner’s reputation within the legal community for being extremely paranoid and, consequently,difficult to deal with. (Exhibit 30, Declaration of SpencerStrellis). Counsel were also specifically aware that petitioner had “serious mental problems” and had “grave doubts about his ability to -cooperate with anylawyer.”(Exhibit 30,DeclarationSpencer Strellis) Not long after he began to represent petitioner, it became obviousto Mr. Strellis that petitioner was not competentto assist counsel in any meaningful way. (Exhibit 30, Declaration of SpencerStrellis) 6. After trial counsel began to represent petitioner in January, 1988, they became aware of numerousfacts indicating petitioner’s lack of competence. Petitioner moved to represent himself in the Superior Court, pursuant to Faretta v. California (1975) 422 U.S. 806, on October 3, 1988. Following numerous continuances, the matter came before thetrial judge, HonorableStanley P. Golde, on November9, 1988. In the afternoonsession, defendant wasgiven aFaretta questionnaireto fill out that evening in hisjail cell. (RT 18-19.) At the next court appearance, on November15, 1988, only a brief mention of the pending Faretta motion was madeby lead defense counsel, SpencerStrellis, who stated that until the issue was decided he was “in the uncomfortable position ofnot knowing whetherornot I’m to speak on his [petitioner’s] behalf.” (RT 34.) 7. The next day, Wednesday, November 16, 1988, the trial court continued the Faretta motion to Monday, November 21, 1988. (RT 44.) The trial court did indicate, however, that it was going to consider the previous Marsden motions in evaluating defendant's motion to proceed as his own Page -233- attorney. (RT 50-54). Thetrial court appointed Dr. Joseph Satten, pursuant to EvidenceCode section 730, to evaluate defendant on the sole issue © “whetherhe had the mental capacity and could waive his constitutional right to counsel with a realization of the probable risks and consequencesofhis action.”!° (RT 59.) The court then continued the Faretta proceedingsuntil the following Monday. (RT 60.) | 8. However, on Thursday, November 17, 1988, petitioner again appeared in court with counsel to litigate issues related to petitioner’s conditions ofconfinement. (RT 63-64.) Petitioner began the proceedings by moving to have his attorneyssit in the jury box on groundsofconflict of interest. (RT 64.) He then asked for appointmentofnew counselto represent him “not only through these proceedingsbut also through any proceedings concerning my 1368 motion that the Court is addressing to.” (RT 66.) The court stated that it had no 1368 motionbeforeit, and petitioner respondedthat it was his understanding that the court had ordered a competencyhearing the previous day. (RT 66.) The court stated that it had ordered a psychiatric examination solely on the question of “whether or not you have the mental capacity to waive yourright to counsel and proceedin pro per.” (RT 66.) 9. Petitioner then requested that he be permitted to retain his own psychiatric experts andaskedfor a three-week continuance to permit them to examine him. (RT 68-69.) Petitioner further requested “a full-blowntrial” on the issue ofhis competenceto standtrial. (RT 70.) Counseldid notjoin 'SDr. Satten was unable to interview petitioner. However, he has now reviewedthe transcripts and concludedonthis basis that a competency proceeding would have been warrented. (Exhibit 24, Declaration of Joseph Satten, M.D.) Page -234- in the competence motion butstated that “once the Faretta motionis dealt with, then the issue of whether a 1368 is appropriate or not is an issue that need be looked at, the issue of whether a plea ofnot guilty by reason of insanity ought be entered, or not an issue, should be looked at.” (RT 71.) 10. On November 21, 1986,the trial court denied petitioner’s motion to represent himself. (RT 75-85.) The court determined that the petitioner was not mentallycompetent to waive counsel and represent himself. The court stated that petitioner’s “mental condition in the Court’s opinion precludesrealistic assessmentofthe need for assistance and risk of waiving counsel.” The court notedthat petitioner had repeatedly alleged that conspiracies against him had been formed by various parties within the judicial system, asserting at varioustimesthat the court, the district attorney, his defense attorneys and former attorneys,the police, the public defender’s office, and others had conspired against him. The Court notedpetitioner alleged the district attorney hadfalsified records,the sheriff's department had falsified the ballistics report,jail officials were monitoringhis interviews with psychologists byplacing listening devicesin the room,petitioner “engagesin verbal displays and interrupts and interferes with the conduct of the courtroom proceedings,” petitioner accused the bailiffoftampering with his papers, and asked his attorneys to sit in the jury box. (RT 77.) The Court further noted that petitioner had made a number of motions “which I am reluctant to describe as frivolous but make really no sense.” The Court particularly notedpetitioner’s motion to recuse the entire Alameda County Municipal and Superior Court bench, his motion to renew peremptory challenges each day,and his motionto investigate the victims on the ground of perjury. (RT 78-79.) The court also cited petitioner’s own repeated Page -235- assertions ofmentalincapacity, such as the fact that he asserted on November 18 he was unable to proceed with his Faretta or other motions because of stress, and that on October 4 he informed the court he was“at a total mental breakdown” and accused the judge of causing him “mental stress” and “psychological, mental strain.” (RT 79.) The court noted that petitioner himselfasserted either present insanity or incompetence to standtrial under Penal Code section 1368, and requested counselin a trailing matter after being permitted to represent himself. (RT 79-80, 82-83.) The court then found asfollows: I find Mr. Welch is a defendant who does not appreciate the extent of his own disability and, therefore, cannot be fully aware of the risk of self-representation. I find the disability ofMr. Welch significantly impairs the capacity to function in a courtroom. I further find that one of the defendant's reasons he wishesto dispense with defense attorney is a paranoid distrust of everyone connected with the judicial system. This is further evidence to this Court that he lacks the mental capacity to truly waivehis right to counsel. Further, the defendant's history of improper if not irrational behavior in speaking in the courtroom in the Marsdenhearing, 995 hearing further indicates doubt to this Court that he has the mental capacity to waive counsel. (RT 84-85.) Page -236- 11. Thetrial court then reiterated that defendanthad failed in his showing that he was competent to represent himself and waive counsel, stating: You havefailed in your showing, and I have decided that a defendant facing the potential death sentence requires the assistance of competent counsel. You do not have the mental capacity to waive. Oe (RT 86.) 12. Trial counsel performed ineffectively by failing to make competence motionsat numerouspoints during the Faretta hearing. Counsel should have moved for a competency determination as soon as the court appointed a psychiatrist, Dr. Satten, to examine petitioner to determine whether he was competent to waive counsel. (RT 59.) Counsel also performedineffectively in failing to move for a competency determination whenpetitioner stated he understood the Satten appointment as a 1368 proceeding, and whenpetitioner asked to retain his own experts and have a “full-blown” 1368 proceeding. (RT 66-70.) Furthermore, counsel also should have moved for a competency hearing whenpetitioner requested a continuance to permit his experts to examine him and asked that the proceedings be terminated until his competency had beenestablished. (RT 74.) Counsel also performedineffectively in half-heartedly suggested that 1368 proceedingsshould be “lookedat” at some pointin the future, after the Faretta issue had been resolved, whenpetitioner’s present competence to proceed atall was clearly in question. (RT 71.) The most egregious example of counsel’s ineffectiveness occurred when they failed to move for a Page -237- competence examination and hearing when the court itself found that petitioner suffered from such sever mentaldisabilities andparanoia he lacked the mental capacity to waive counsel. (RT 84-86.) 13. Although counsel’s failure to move for competency proceedingsat the time ofthe Faretta hearing was most inexplicable, counsel also performed ineffectively by failing to move for competence evaluations at many other times during subsequent proceedings. Counselerredin failing to request a competence determination whenpetitioner: (1) complained of lack of adequate mentalhealth care (RT 643-645); (2) alleged that a fellow inmate, Michael Willis, had been calling the victims’ families andstirring up trouble (RT 647); (3) alleged that the sheriff's deputies had been going through the legal papersin his cell while petitioner was in court (RT 762- 763); (4) alleged that the sheriffs department was monitoring attorney-client discussions (RT 1572); (5) again questioned his own mental competence (RT 1949); (6) when petitioner requested discovery of information regarding Willis, the alleged informant (RT 2404-2407); (7) complained thatsheriff's deputiesin thejail were harassingandinsulting him andtryingtoprovoke him into committing violent acts (RT 3060-3063); (8) becamedistraught over one ofthe court’s rulings, used profanity in addressing the court, andallegedly urinated in the “well,” a stairwell which connected the courtroom withthejury deliberation room andholding cells on the next floor (RT 3151, 3157-3158, 3171); (9) explained that on the previous day he had been incompetent and incoherent, requested a continuanceformedical care, and complained that he wassupposedto haveseen a psychiatrist but could not because the deputies were monitoring the interview room (RT 3723-3730); (10) was unable to control himself, could not stop talking, had to be removed from the Page -238- courtroom;and wasoverheard bythejurors yelling after he was removed (RT 4582-4583); (11) made legally improper motions and turned to face the courtroom wall when apparently addressing the court (RT 4932); (12) again lost control, acted irrationally, spoke incoherently, had to be removed from the courtroom, pounded on the wall ofthe “well,” and again urinated in the well (RT 4953-4965, 4985); (13) insisted on taking the stand (RT 5000); (14) complained that he could not understand the proceedings and did not understand whythe defense was impeachingits own witness (RT 5261); (15) interruptedthe court’s instructionsto thejurors regardingre-reading testimony by objecting to ex parte communicationswith the jury (RT 5628); (16) made statements that were so incomprehensible that the court could not understand what he was saying (RT 5915); (17) apparently decided not to present mitigating evidence (RT 5916-5919); (18) lost self-control and had to leave the courtroom during the testimony of a defense mental health expert (RT 5950); counselalso erred in failing to request a competency determination when Dr. Benson (19) revealed in testimonythat he was unable to interview petitioner becausepetitioner believed the interview roomwas buggedandthat everything they said would be monitoredandreportedto the district attorney (RT 6009-6010); (20) the court reiterated that petitioner was incompetentto represent himself (RT 2269); (21) and was so perplexed by petitioner’s commentsin court that it had to ask defense counselif they had “any idea what he’s talking about?” (RT 3222-3223); 14. Counsel had nostrategic reasonsfor these repeated failuresto movefor a competency determination. (Exhibit 30, Declaration of Spencer Strellis M.D..) Counsel believed throughout the case that petitioner was incompetent and possibly insane, that he lackedthe ability to cooperate or Page -239- assist in his own defense,that he lacked the abilityto control himself, and that he suffered from irrational, paranoidfixations or obsessions. (Jbid.) Counsel wantedto have petitioner examinedbyapsychiatrist in the hopethat he could present a defense of not guilty by reason of insanity. (/bid.) However, counsel was unable to do so becausethe roomatthejail in which psychiatric interviews took place was monitored. (/bid.) Although he notedto the court that the issue ofpetitioner’s competence should be examinedoncetheFaretta issue had been resolved, counsel failed to actually make a competence motion thereafter and lacked any strategic reason for not doing so. (/bid.) 15. Counsels’ unprofessional errors in failing to move for competency determinations pursuant to Penal Code section 1368 prejudiced petitioner by subjecting him to a trial while he was not competentto proceed, prevented him from cooperating with and assisting counsel in his own defense, and permitted him to be depicted in an unfavorable light before the finder of fact, thereby creating at least a reasonable probability that the outcome would have been more favorable to petitioner in the absence of errors. 16. Petitioner hereby incorporates by referenceas if fully set forth herein the facts and law set forth in Claims 2, 4, 5, 22, 23, 24, and 33. D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Page -240- Claim 20: Ineffective Assistance of Counsel -- Acquiescing in and Failing to Object toa Hybrid Form ofLegal Representation Devised by the Court A. _ Petitioner’s conviction and sentence of death are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, 16, and 17 of the California Constitutionbecause he-was deprived ofthe effective assistance of counsel during the pretrial, guilt, penalty, and sentencingphasesofhistrial whenhis trial counsel unprofessionally acquiescedin and failed to object to a hybrid form of legal representation, unilaterally imposed uponthe defense by the court, permitting petitioner to represent himselfat times but requiring him to speak only through counselat others. Thecourt initially stated that it would permit petitioner to make motions on Fridays but require that he be represented by counsel during the other days of the week. However,this procedure wasquickly abandoned,and throughoutthe proceedings the court alternately heard or refused to hear petitioner’s motions and objections virtually at random. This bizarre form ofhybrid legal representation, andits chaotic and inconsistent enforcementby the court, contradicted the court’s ruling denying petitioner’sFaretta motion,interfered with the attorney-client relationship, undermined defense counselbydepriving them ofcontrolofthe case, renderedthe defense utterly chaotic, confusedpetitionerand his counsel with respect to who was actually representing petitioner, and encouraged petitioner to attempt to participate as his own counsel throughoutthe case, thereby prejudicing petitioner’s case. Page -241- B. The following United States Supreme Court decisions, interalia, in effect at the time the errors occurred, are presented in support ofthis claim: Powell v. Alabama (1932) 287 U.S. 45(indigentcapital defendant has right to have effective counsel appointed and to be heard through counsel); McMannv. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showing that counsel’s actsfell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome;these principles apply equally to guilt and sentencing phasesofcapital trial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendmentviolated, and prejudice need not be shown,if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed when counsel labors under conflict ofinterest); Hill v. Lockhart (1985) 474 U.S. 52 (Strickland standardsapply to representation provided prior to trial, such as during plea proceedings); Faretta v. California (1975) 422 U.S. 806 (defendant has Sixth Amendmentright to self-representation); McKaskle v. Wiggins (1984) 465 U.S. 168 (core of Faretta right is the right to control the defense presented to the jury, and appointmentofstandby counsel cannot be permitted to underminethisright); Mainev. Moulton (1985) 474 U.S. 159 (after arraignment, accused has Sixth Amendmentright to speak through “medium”ofcounsel; government maynot interfere with that right); Perry v. Leeke (1989) 488 U.S. 272 (government Page -242- maynotinterfere with defendant’sright to counsel); Geders v. United States (1976) 425 U.S. 80 (same); Massiah v. United States (1964) 377 U.S. 201 (same); Ake v. Oklahoma (1985) 470 U.S. 68 (defendant entitled to expert assistance, including mental health expert assistance, to prepare for and testify at trial) Gardner v. Florida, 430 U.S. 439 (1977) (due process violation in capital proceeding where petitioner sentenced on basis of ~-unreliable- information);Beck -vAlabama (1980) 447-U:S. 625{Eighth Amendmentalso requires heightened reliability in guilt determination in capital cases); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right). C. The specific facts supporting this subclaim, among others to be developed after adequate funding, discovery, investigation, and an evidentiary hearing, are as follows: 1. Petitioner incorporatesasif fully set forth herein the facts and law set forth in Claim 3. 2. On Wednesday, November 23, 1988, prior to the commencement of jury selection and in spite of its earlier denial of petitioner’s Faretta motion, the court announced that it would henceforth require a unique andastonishing form of hybrid representation permitting petitioner to represent himself in court at some times but through counselat others. The court told petitioner that “{d]uring the course of the trial the conductofthetrial will be performedbytheattorneys. In addition, I’m going to provide that every Friday, probably from eleven to eleven-thirty until the afternoon, depending uponthe size ofmy calendar,I will reserveit to you to makeany additional motion you may want to make.” Page -243- 3. Although petitioner himself objected that this plan was unacceptable, his counsel failed to object to, and acquiesced in, this remarkable form ofrepresentation. (RT 156.) From that point on, the court arbitrarily either recognized or refused to recognize petitioner as counsel, sometimesruling on his motionsor objections and sometimesrefusing to do so, without regard to the day of the week. The court’s procedure created utter chaos in the defense, leaving petitioner and his counsel to present conflicting defenses and confusing them with regard to who wasin control of the defense. 4. Momentsafter issuing the ruling that petitioner would be recognized only on Fridays, and in spite of the fact that this was a Wednesday, the accepted petitioner’s handwritten pro per motion for a continuance and denied it, thereby contradicting the court’s ruling ofthat morning andindicating that the court would sometimespermit petitioner to represent himself on days other than Fridays. (RT 162.) The court then permitted petitioner to renew his motion“to participate in the presentation of this defense,” but contradicted itself once again byreiterating that petitioner would only be heard in court on Fridays and would otherwise be permitted to speak only through counsel. (RT 164-165.) 5. That afternoon, the court again advised petitioner he would be heard only through counsel and refusedto rule on petitioner’s objection to admission of evidence in the form oftranscripts. (RT 183-184.) When petitioner attempted to withdraw his in limine motion, the court informed petitioner he lacked standing to address the court and stated that the court would not pay any attention to anything he had to say. (RT 185-186.) Page -244- 6. On the morning of Tuesday, November29,petitioner again requested leave to withdrawhis in limine motion,and this time the court ruled on the motion, denying it. (RT 187.) However, whenpetitioner attempted to support his motion with additional case law, the court refused to hear petitioner and stated that he could not “participate in the conductofthetrial except on Fridays.” (RT 187-188.) Petitioner then objected to the use of . -transcripts.asevidence,andthe-court declinedtorule on-thisobjection. (RT 188.) 7. That afternoon, petitioner asked to address the court and was permitted to object at length to what he perceived to be his counsel’s ineffectiveness andthe denial ofhis Sixth Amendmentrights. The court then refused to give petitioner the right to speak except on Fridays. (RT 206.) However, the court then permitted petitioner to state his objection in full, speak again at length on the issue, citing two federal cases, and argue prejudice from counsel’s perceived deficiencies. (RT 207.) The court then cut him offandstated that petitioner could make such a motion in writing and the court wouldrule onit on Friday. (RT 208.) 8. On the afternoon of Wednesday, January 11, 1989, the court permitted petitioner to speak regarding errors madein a supplemental points and authorities filed by counsel regarding a motion to suppress evidence. (RT 877-879.) 9. On Tuesday, January 17, the court permitted petitioner to speak at length, objecting to whatpetitioner viewed as extensive security in the courtroom andthe potential prejudicial impactthis might haveon his case. (RT 976-978.) At the conclusion ofpetitioner’s presentation, the court asked petitioner, “What is your motion?” (RT 978.) Petitioner stated that the Page -245- security being imposed in the case was excessive, and the court ruled that “Your motion to decrease the security is denied. There will be twobailiffs in the courtroom and plainclothes in the audience.” (RT 979.) , 10. Petitioner then moved for an order that his shackles be removed before he entered the stairwell leading to the court, to ensure that jurors whoalso usedthat stairwell would not see him in a shackled condition. (RT 979.) The court declined to so order, ruling that “They will be removed before you come to court, not — they can transport whatever waytheyfeel security requires. Myonly requirementis when you comeinto the courtroom youwill not be shackled.” With respect to the danger that jurors might see him in shackles outside the courtroom,the court ruled, “We will work that out.” (RT 980.) 11. Petitioner then filed a written motion to strike the special circumstances and written points and authorities. (RT 980-981.) The court read the motion and authorities and permitted petitioner to address the motion. When petitioner submitted the matter, the court ruled that “Your motion to strike the special circumstance is denied.” (RT 981.) When petitioner attempted to reopen the matter, arguing that the court lacked sufficient factual information to rule at this point, the court reiterated that the motion had been denied. (RT 982.) 12. Petitioner then asked to address the change of venue motion, and the court stated “That will be argued tomorrow morning.” (RT 982.) Petitioner then requested that he be permitted to be present in the courtroom before prospective jurors were admitted to the court. (RT 985.) The court granted the request. (RT 985-986.) Petitioner then movedthatbailiffJohn Dimsdale be replaced dueto prioraltercationspetitioner had with Dimsdale. Page -246- The court denied petitioner’s motion. (RT 986.) Petitioner then askedthat the court admonishthebailiffnot to stand immediatelybehindpetitionerwhen he addressed his counsel. The court stated “I’ll handle the bailiff without your request.” (RT 987.) The court then twice askedpetitionerif“You have anything else?” Petitioner replied that he would not have anything else until he had reviewed the change of venue motion. The court stated that ““We’ll __argue tomorrow.” (RT 988.) — _ . Co 13. Atthis point the prosecutor interjected that he had understood the court had deniedpetitioner co-counselstatus, and the court confirmedthat “That’s correct.” (RT 989.) The prosecutor objected that “we seem to be wasting an awfullot oftime hearing his motions.” The court explained that petitioner had been unable to makehis motions the preceding Friday due to counsel’s absence,and the court had therefore permitted him to make motions today instead. (RT 989.) In the future,the court said, petitioner would be permitted to make motions every Friday afternoon. (RT 990.) The prosecutor, though not defense counsel, objected to this procedure, and the court overruled the prosecutor’s objection. (RT 990.) 14. On the morning of Thursday, January 19,petitioner asked to address the court and the court refused, stating that “questions can be done this afternoon. There are no questions from you this morning.” (RT 1052.) Whenpetitionersaid, “Excuse me,yourhonor,”the court abruptlyresponded, “Don’t excuse me. You’re not to say anything.” (RT 1052.) Petitioner complained about the fact that he was being broughtinto the courtroom in shackles and askedto be unshackled before he wasbroughtinto court. (RT 1053. Healso asked that he notbe requiredto sit in shackles in a holding cell for two hoursprior to court each day. (RT 1053.) Petitioner then asked Page -247- the court to explain how manyjurors would be voir dired each day, and the court stated “two in the morning, four in the afternoon, except for this afternoon. This afternoon I’m reserving for you to make your motionsthat I normally would let you do Friday; but I can’t do it this afternoon, so you can do that this afternoon.” (RT 1054-1055.) Petitioner then asked that the court voir dire more jurors per day in order to ensurehis rightto a fair and speedy trial, and the court stated, “Your motionis denied. Your motion is denied.” (RT 1055.) 15. On Monday, January 30, petitioner moved to have the jury venire panel dismissed becauseits fairness had not been reviewedbythejury commissioner.'’ The court denied the motion. (RT 1351.) Petitioner also challenged the jury on the groundsthat the court would not allow counsel to inquire intojury bias based on the extensive media coverage ofthe case. The court also denied this motion. (RT 1352.) 16. On Wednesday, February 1, the court permitted petitioner to address the court at length to complain about many of the court’s rulings regarding voir dire and to request that the court dismiss his attorneys and appoint prior counsel, Thomas Broome, to defend him. (RT 1472-1474.) The court stated that “the record will indicate your remarks,” and when petitioner attempted to expand on his remarks, the court added that “you already made your record.” (RT 1474.) '’Petitioner’s reference to the Sixth Amendmentand the due process and equal protection clauses indicates that he was attempting to challenge the jury venire on the groundsthat the panel did not constitute a representative cross-section of the community. Page -248- 17. On Friday, February 3, the court permitted petitioner to make “any motions you want to make,” and petitioner began by objecting that his lead counsel wasnotpresent. He stated that he wasentitled to berepresented by both counsel and would not proceed unless they were present. The court therefore put the matter over until Monday, February 6. (RT 1538-1541.) 18. On Monday, February 6, the court conductedvoir dire and then permittedpetitioner to-make several-motions and. reserved-ruling until petitioner wasfinished. Petitioner first asked that prospective juror Randy Pennington be excused on the grounds of prejudice. (RT 1564-1567.) Petitioner then renewed his Marsden motion andrequestedthat prior counsel Thomas Broome be permitted to represent him instead ofMr. Strellis and Mr. Selvin. (RT 1567.) Petitioner also requested that the sheriff be ordered to return confiscated legal books. (RT 1569.) Petitioner then asked for a court order to prevent the sheriff's department from monitoring attorney-client interviews. (RT 1572.) Petitioner asked for a continuance to permit him to appear telephonically in federal court for a hearing on February 8 regarding his civil suit against the sheriff regarding conditions of confinement. (RT 1572.) Petitioner then asked for a copy of the minuteorderinstructing the sheriffto treat him like any otherprisonerforvisitation purposes. (RT 1575.) The court then denied the motion regarding juror Pennington, denied the motion to replace counsel with attorney Broome,instructed defense counsel to investigate to determine whetherpetitioner wasto be heard telephonically in federal court, and orderedthe clerk to providepetitioner with a copy ofthe minute order. (RT 1575.) 19. On the morning of Tuesday, February 21, the court told petitioner he would not be allowed to make any motionsuntil the afternoon Page -249- session. (RT 1840.) However, before the morning session had ended, petitioner moved to inspect the records of the jury commissioner and to challenge the composition of the venire panel. He also objected to the dismissal for cause of prospective juror Betty Meyer and other jurors who had expressed an unwillingness to serve as jury foreman. (RT 1854.) The court denied both motions. (RT 1855.) 20. At the beginning ofthe afternoonsession,petitioner asked that the record reflect why he wasnot permitted to file motions the previous “Thursday or Friday, the normal day for me to file my motions” and why motions had been continuedto this date. (RT 1856.) The court explained that there had been ajudges’ criminal seminar in Montereyandthat the court had been obligedto lecture there. (RT 1856.) Petitioner complainedthat his family had attempted to come andfile motions with the clerk but had been informedthat the clerk would no longer accept motionsfrom petitionerunless the court and counsel had reviewed them first. (RT 1857.) The court then askedpetitionerto sit down andstated thathe couldfile his motionsafterjury selection had been completed for the day. (RT 1857.) Petitioner then renewedhis motion to dismissthejurypanel, and the court denied the motion. (RT 1858.) Petitioner then made a Marsden motion, and proceedings were suspendedfor a hearing on the issue. (RT 1858, 1860-1868.) 21. At the conclusion of the day’s voir dire proceedings, petitioner objected that a black juror had been excused and then requested that the court rule on a motion for change of venue. (RT 1911-1912.) The court stated that “If I have to rule now,your motion is denied.” (RT 1913.) 22. On the morning ofWednesday, February 22,petitioner asked to addressthe court and the court stated it would consider his motionsat 2:00 Page -250- p.m. (RT 1915.) Petitioner then noted that he had several motions pending, and the court respondedthat the motions had been timely made and would be tuled upon at 2:00 p.m. (RT 1915-1916.) Petitioner asked to be heard “at this particular time,” and the court ordered him removedfrom the courtroom. (RT 1916. 23. During the afternoon session, petitioner returned to the courtroom. He movedto preventthe court from piping the proceedingsinto - his cell through speakers when he was removedfrom the courtroom because he did not want other defendants to overhear the proceedings. (RT 1942.) The court explained that the law required that petitioner “be able to hear through electronic devices,” and petitioner stated, “Well, I’m waiving that right.” The court stated “I am not permitting you to waive that right,” and petitioner repeated,“I waive that right.” (RT 1943.) Counselthenjoined in the waiver, and the court again stated it would not allow the defense to waive the right. (RT 1944-1945.) 24. On the morning of Monday, February 27, petitioner objected that his motions had not been heard the preceding Friday and stated for the record his understanding that his motions wereto be heardthe following day. The court replied that it had continuedpetitioner’s motions to this morning, and the confused petitioner replied that “my understanding was Tuesday. Since last time it was continued to Tuesday I thought it went to another Tuesday.” (RT 1970-1971.) Petitioner then moved for a mistrial on the groundsthat he had been subjectedto “restraints”in court and also requested again that he be permitted to inspect the jury commissioner’s records and to challenge the composition ofthejury. (RT 1971-1972.) The court denied the Page -251- motion to challenge the jury composition, but otherwise did not rule on petitioner’s remaining motions. (RT 1972.) 25. During the afternoon session, petitioner again moved for a mistrial. This time he clarified that the restraint of which he complained occurred when he was removedfrom court bythebailiffs, who took him by both arms and prevented him from gathering his legal papers. (RT 1998.) The court denied petitioner’s motion. (RT 1999.) Petitioner read into the record several authorities on excessive use of force. (RT 2000-2001.) Petitioner then renewedhis requestthat the jury panel be dismissed, and the court again denied the motion. (RT 2002-2003.) 26. Later that morning petitioner renewedhis earlier motion for funding for expert assistance, and the court responded that it could not properly hear the motion and that counsel already had moneyfor experts. (RT 2054.) | | 27. On Wednesday, March1, petitioner moved fora mistrial on the basis of the improper excuse ofa juror for cause, and the court denied the motion. (RT 2186.) Petitioner then made a Wheeler motion, alleging improper systematic exclusion ofjurors on the basis of race. (RT 2188.) The court again denied the motion. (RT 2188.) Petitioner then objected to the fact that the prosecutor referred to the weapon allegedly used in the commissionofthe offenses during voirdire, and the court noted the objection for the record. (RT 2189.) 28. On Tuesday, March 7, petitioner requested discovery of documentspertaining to a grievance matterin thejail. (RT 2405.) The court first stated that it lacked jurisdiction over the matter, and then denied the motion. (RT 2406.) Petitioner again moved for discovery of information Page -252- regarding Michael Willis, the alleged jail informant, and the court again denied the motion. (RT 2407-2408.) 29. On Monday, March 13, petitioner again objected to the composition of the jury and was permitted to address the court at length regarding whetherthe draw was random. (RT 2578-2579.) The court denied the motion. (RT 2580.) Petitioner then again movedto dismiss the entire _ __ jury panel, and the court denied this motionas well. (RT 2582.) _ 30. On Monday, March20,petitioner objectedto the dismissal of a juror, andthe court noted the objection for the record. (RT 2765.) When all the jurors had been dismissed for the day, petitioner objected to the dismissal of another juror and the court again noted the objection for the record. (RT 2759.) Petitioner then addressed the court at length regarding what he alleged to be the sheriffs violations of an earlier court order permitting him access to newspapersubscriptions, andthe court referred the matter to defense counsel for investigation. (RT 2760-2764.) Petitioner then asked for an evidentiary hearing regarding the dismissalof a juror, and the court denied the motion. (RT 2764-2765.) Petitioner then addressed the court at length regarding what he believed were ex parte contacts betweenthe court and counsel in chambers. The court deniedthat petitioner’s case was being discussed in chambers. (RT 2765-2768.) Petitioner then made a Marsden motion,a hearing was held, and the motion was denied. (RT 2768- 2769.) 31. On Wednesday, March 22, petitioner made a continuing objection to the adequacyofvoir dire on death-qualification issues, and the court noted the objection for the record. (RT 2874.) Petitioner then made several objections regarding the voir dire process, objected that his counsel Page -253- were not making adequate objections, asked that a particular juror be excused, and asked the court to dismiss his counsel. (RT 2876-2878.) The court denied all these motions. (RT 2878.) | 32. Later that afternoon, the defense offered to stipulate the to excuse of a juror for financial hardship, and petitioner himself stipulated. (RT 2905.) Counsel then asked to put two brief matters on the record, and the prosecutor also asked to place matters on the record. (RT 2906.) Petitioner then stated, “First of all .. .” and the court told him, ““You just be still.” Petitioner then stated, “I thought I’m runningthis,” and the court told him he wasnot. (RT 2906.) 33. On Tuesday, April 4, petitioner objected to physical and psychological abuse he had suffered from Deputy Dennis Higgins. The court stated the grievance could notbe filed in court, but then directed petitioner to provide his complaint to counsel so that counsel could file it. (RT 3060- 3063.) 34. On Monday, April 10, petitioner objected to his attorneys referring to the ages of the child victims during voir dire. (RT 3233-3234.) The court denied the motion. (RT 3235.) 35. On Thursday, April 13, petitioner complained about harassmentby the deputies who transported him to and from the courtroom. (RT 3313-3314.) The court issued an order that the transporting deputies werenotto discuss the case with petitioner. (RT 3314.) 36. On Monday, April 24, petitioner complainedthat his attorney was not informing prospective jurorsthat it was improperto considerfuture dangerousness. (RT 3508-3509.) The court then asked petitioner if he was Page -254- challenging a juror for cause, and petitioner replied that he was. (RT 3509- 3510.) The court then denied the motion. (RT 3510.) 37. On Monday,May8,petitioner explained to the court that he had been assaulted by three sheriff's deputies on the way to court that morning and hadsuffered several injuries. Petitioner asked the court for an order that he be taken to Highland Hospital to medical treatment. (RT 3704.) ___—.._.— — ~—-He_further askedfor_an evidentiary_hearing regarding the incident that. - morning. (RT 3705.) The court granted the request for medical treatment by jail medical staff, but denied the requestto be treated at Highland Hospital. (RT 3705.) Petitioner then requested a continuance, and the court deniedthis motion. (RT 3707.) That afternoon he again requested a continuance to compose himself, and the court again denied the request. (RT 3711.) 38. On Tuesday, May9, petitioner again movedfor a continuance on groundsofhis own mental incompetence,andthe court denied the motion. (RT 3725.) Petitioner addressed the court at length regarding his inability to speak to psychiatrists in a private setting, and once again moved for a continuance. (RT 2729.) The court again denied the motion. (RT 3729.) 39. That afternoon, petitioner complainedat length regarding his treatmentby sheriff's deputies. (RT 3782-3783.) Counsel then asked for an orderinstructing the deputies not to discuss the case with petitioner, and the court denied the motion. (RT 3783-3784.) The court did order the deputies to permit petitioner time to assemble his legal papers before leaving court following each day’s proceedings. (RT 3785.) The court then reviewed petitioner’s motion to exclude evidence, stated it did not understand petitioner’s first two points, and denied the remaining two requests, which had sought to exclude expert prosecution testimony regarding ballistic evidence Page -255- and sought a hearing on the point. (RT 3786.) The court permitted petitioner to continue speaking regarding a numberofmaters. Finally,petitioner offered to make a showing regarding a change of venue motion and the court respondedthat petitioner was not “going to make a showing of anything.” The court stated that “You’re not your own lawyer.” (RT 3790.) Petitioner then asked whenit would be appropriate forhim to make a showing regarding his challenge to the jury panel. The court stated that, “Tomorrow you proceed with any evidence you wish and I will makethe ruling.” (RT 3794.) The following colloquy took place: DEFENDANT: COURT: DEFENDANT: COURT: Page -256- So what I’m saying, if I’m correct, because I’m kind of confused, you’re saying I can’t rule— commenton the challenge ‘to the jury - You can’t commenton anything. — change of venue -- change of venue. — but you’re saying I can’t state the grounds for the dismissal of the jury panel, challenge to the jury panel? I didn’t say that ay all. I’m saying you don’t say anything. That’s why you have a lawyer. I let you talk just because I’m trying to be more than fair to you. You havenostanding to even talk in this court. You’re not the attorney. I’m telling you the only thing remaining tomorrowis the challengeto the jury panel, after which we will commence getting the jury Monday.” (RT 3794-3795.) 40. The following day, Thursday, May11, petitioner attempted to discuss the statistical information pertaining to the jury composition issue. In spite of the court’s statement of the previous day assuring petitioner he ~ wouldbepermittedtoresentanyevidencehewished, thecourtrepeatedlycut _ him off. Petitioner objected that “I can’t properlymake the motion —“ and the court stopped him,stating ““You’re not making anything. Your lawyersare. I got newsfor you.” (RT 3803.) After that, petitioner repeatedly attempted to discuss the issue, and the court consistently refused to permit him to speak. (RT 3804-3809.) 41. That afternoon, petitioner moved to dismiss the case on the groundsofprosecution and police misconduct,alleging that the deputies had taken his jury selection notes when he was removedfrom the court earlier. (RT 3816.) The court denied the motion. (RT 3816.) Petitioner then attempted to renew his change of venue motion andthe court refused to permit him to do so. (RT 3818.) Petitioner asked that the record reflect the race of all jurors who had been dismissed during voir dire, and the court found this inappropriate. (RT 3820.) 42. On Monday, May15, during the “Big Spin”portion ofthe jury selection proceedings, petitioner requested additional peremptorychallenges and the court denied the motion. (RT 3841.) Subsequently, petitioner’s counsel noted for the record that petitioner had objected to the fact that counselfailed to use all 20 ofthe peremptory challenges to which the defense wasentitled and also noted that petitioner wanted a Wheeler motion brought. Page -257- (RT 3847.) Petitioner then addressedthe court at length on thejury challenge issue. (RT 3847-3848.) The court permitted the district attorney to state reasons for excusing African-American jurors, and the court then ruled that petitioner had not made a primafacie case for a Wheeler challenge. (RT 3849.) 43. On Tuesday, May 16, the first day of trial with the jury present, petitioner objected when People’s Exhibit 5 (a crime scene videotape) was presented, stating that “the defense is stipulating” to the location where the guns werelocated but not that petitioner ever possessed them. (RT 3874.) The court told petitioner not to “force me to throw you out” and deniedthe stipulation. (RT 3875.) Petitioner then askedto havethe monitor which wasplaying the videotape turnedto an angle at which he could see it, and the court ordered him removedfrom the courtroom. (RT 3875- 3876.) 44. That afternoon, again in the presence ofthe jury, petitioner objected to his earlier removal from the courtroom andstated he had a right to be present at every stage f the proceedings. The court agreed,“as long as you follow the rules of court.” (RT 3900.) Petitioner continued to address the court on this subject and asked that he not be ejected and returnedto the courtroom repeatedly. The court then instructed the prosecutor to continue presenting evidence. (RT 3900.) 45. After the jury was excusedfor the day, petitioner moved to havejuror Howard McGeedismissed from thejury, stating that he attempted to use a peremptory challenge. (RT 3953.) Thecourt told petitioner that “you don’t exercise peremptories. Your lawyers do.” (RT 3953.) Petitioner then attempted to challenge McGee for cause, and the court denied the Page -258- motion. (RT 3954.) Petitioner also argued at length that he had been improperlyprevented from challengingjuror Sandra Williams byperemptory. (RT 3955.) Petitioner moved for a mistrial, and the court deniedthe motion. 46. On Wednesday, May 17,petitioner moved to sequester the jury and have them admonishednot to read newspapers. The court denied the motion to sequester, but stated that he would admonishthejury after each Fecess. (RT-3959.) - 7 = 47. On Monday, May22,petitioner requested a recess during the middle of his counsel’s cross-examination of a witness on the groundsthat one ofthe jurors had been asleep for ten minutes. (RT 4361.) The court did not rule on the motion but instructedpetitionerto “bestill.” (RT 4361.) 48. On Wednesday, May 24,prior to the jury’s admission to the courtroom,petitionermoved for dismissal on the groundsthat the prosecution had suborned perjury from the preceding three witnesses. (RT 4525.) Petitioner also requested a mistrial on the grounds of prosecutorial misconduct and for witness Leslie Morgan’s identification of codefendant Rita Mae Lewis. The court denied these motions. (RT 4525-4526.) Petitioner then again requested that attorneys Thomas Broome and Robert Cross be substituted for his current counsel. (RT 4527.) The court denied this motion. (RT 4527.) Subsequently,in frontofthejury, petitioner offered to stipulate regarding the Uzi found by OfficerNewman Ng. (RT 4581.) The court ignored the request. Petitioner then asked if his attorneys would be permitted to cross examineasto the witness’s previousarrestandguiltyplea. (RT 4582.) The court had petitioner removed from the court. (RT 4582.) 49. On Thursday, May25,petitioner objected beforethe jury that a question by the prosecutor called for a conclusion by the witness. (RT Page -259- 4829.) The court admonishedpetitioner not to object, and petitioner stated his understandingthat“I have a right to be heard through counsel or through person (sic) when I’m in court.” (RT 4829.) The court stated this was not true and instructed the prosecutor to continue. Whenthe prosecutor again asked the question,petitioner again objected that the prosecutor’s question called for a conclusion. (RT 4830.) When the court admonished him notto “act like a— don’t besilly,”petitioner stated that “I have the right to exercise my, defend myself in person or through counsel.” (RT 4830.) The court did not correct petitioner, but simply stated, “Please, sir.” The prosecutor continued. (RT 4830.) 50. On the morning ofThursday, June1, out ofthe presenceofthe jury, petitioner requested that the court “stop insulting me andtrying to humiliate me.” (RT 4930.) Petitioner then moved for a mistrial on the ground that he had been unable to confront and cross-examine his codefendant, Rita Mae Lewis, and becauseofprejudicialpretrial publicity. (RT 4931-4933.) The court denied the motion. (RT 4935.) Petitioner then moved for an acquittal under Penal Codesection 1118.1. (RT 4936.) When defense counsel interjected, suggesting that the court hear petitioner’s presentation but defer ruling until all the prosecution’s evidence wasin, the court responded that “he doesn’t have any right to make this motion,” but added “ifyou want to makeit, you mightas wellfinish it now.” (RT 4937.) Petitioner arguedat great length that the evidence wasinsufficient andthat the prosecution had presented perjured testimony. (RT 4938-4940.) The court denied the motion. (RT 4940.) 51. That afternoon, out of the presence ofthe jury, as the parties were reviewing matters the prosecutor had movedinto evidence,petitioner Page -260- strenuously objected to whathe perceivedto be the court’s bias and hostility toward him and moved for a mistrial. (RT 4956.) The court denied the motion. (RT 4956.) Petitioner lost control and the court instructed the bailiffs to place him in shackles. Petitioner continued to address the court and protested that his lawyers “ain’t putting on no defense at all. My defense. This is not my defense.” (RT 4959.) Petitioner repeatedly asked to leave the courtroom, andthe courtwould not permithimtodo so. (RT 4959.) _ 52. On Friday, June 2, out of the presence of the jury, defense counsel soughtto call Rita Mae Lewisandpetitioner strenuously objected. (RT 4978.) The court ruled that “‘your lawyer called her, and I can’t stop him from calling her.” (RT 4978.) Defense counsel explainedthat he was calling Lewis overhis client’s objection. (RT 4979.) Petitioner then objected to the witness on the grounds of Evidence Code section 352, and the court denied the motion. (RT 4980.) Lewis declined to answer any questions on Fifth Amendment grounds. (RT 4981.) Petitioner then objected at length to the court permitting counsel to call witnesses in his behalf when he disagreed with counsel’s decision. Petitioner again attempted to invokehis rights under Faretta and stated that the defense counsel was putting on was“totally not my defense.” (RT 4984.) The court stated that based “upon all the evidence and your conduct, that’s denied.” (RT 4985.) 53. On Monday, June 5, petitioner asked that he be permitted to be the first defense witness. (RT 4986.) The court instructed petitioner to confer with his counsel. Petitioner did so, and his counsel requested a continuance until the afternoon. (RT 5000-5001.) Petitioner objected to the continuance, andpetitioner took the stand as the first defense witness. (RT 5001.) Petitioner asked to be permittedto testify in a narrative fashion, and Page -261- the court denied the motion. (RT 5002.) Petitioner then asked to have independent counsel, rather than his own counsel, appointed to examine him. The court denied this motion. (RT 5002.) 54. On Tuesday, June 6, during defense direct examination of witness William Henderson,petitioner objected to his own defenseattorney impeaching the witness. (RT 5261.) 55. On Wednesday, June 7, petitioner’s counsel stated he had no other witnesses, and petitioner objected. He stated he wantedto call several witnesses, including his own physician from Highland Hospital. (RT 5467.) The court denied the motion. (RT 5467.) Counselthen rested, andpetitioner continuedto arguethat he had not been permitted to presenta firearmsexpert. (RT 5468-5469.) Petitioner then moved to have his counsel dismissed and requested permission to present his own witnesses. (RT 5470.) The court denied the motion. (RT 5470.) Petitioner continuedto protest that this was “not my defense,” and the court ordered him removed from the courtroom. (RT 5471.) | 56. That afternoon,in the middle of the prosecutor’s guilt-phase summation, petitioner moved for a mistrial. (RT 5488.) His motion was denied and he was removed from the courtroom. (RT 5488.) 57. On Tuesday, June 13, petitioner again objected during the prosecutor’s closing argument to the prosecutor’s use of victim impact argument. (RT 5556.) He was once again remove from the courtroom. (RT 5556.) 58. That afternoon,petitioner asked for five minutesto address the court regarding jury instructions, and the court granted the request. (RT 5602.) Requested that the court instruct the jury on voluntary manslaughter Page -262- as a lesser included offense, specifically requesting that the court read CALJIC No. 8.42. (RT 5602.) Petitioner also requested instructions on provocation, CALJIC No.8.73, and witness identification, CALJIC No.2.91. The court denied the motions. 59. On the morning ofWednesday, June 14,petitioner objectedto ex parte communications between the court and the jurors and to any - communications-withjurors outside-his presence. (RT 5628.) The court declined to entertain the motion. (RT 5628.) 60. Later that morning, petitioner objected to the court taking judicial notice ofits records regardinghis prior convictions and movedto set aside the jury verdict. (RT 5677.) The court held this matter in abeyance, stating the court would “take that up after the court session today.” (RT 5677.) Petitioner then presented a written motion and objectedto the lack of apreliminaryhearing regardingthe validity ofhis prior convictions before the evidence was presented to the jury. (RT 5678.) The court permitted petitionerto file the written motion andstated that petitioner “can make any motions you wantat 4 o’clock after we finish today’s session.” (RT 5678.) 61. After the lunch break,out ofthe presence ofthejury, petitioner argued his motion to set aside the jury verdict. The court stated that it had read the motion overthe noon hour. Petitioner then movedto challenge the judge for cause andto have the motionto set aside the verdict heard before a different court. The court denied this motion and also denied the motion to set aside the verdict. (RT 5723-5724.) Petitioner then objected to prosecutorial misconduct in argumenton the groundsthat the prosecutor had improperly argued that petitioner would be unableto adjustto life in prison. Petitioner also objected that the prosecutor had violated the gag order Page -263- imposed bythe court on contact with the media by the parties. (RT 5724- 5725.) Petitioner moved for dismissal and also requested sanctions on the prosecutor. (RT 5726.) The court stated that it would “handle the prosecutor.” (RT 5726.) 62. On Wednesday, July 5, petitioner requested that the court provide him with new regulations adopted by the Alameda County Superior Court pertaining to plea bargains, and the court instructed counsel to provide that documentto petitioner. (RT 5915-5916.) Petitioner then stated that he did not plan to present mitigating evidence and requested that counsel not present such evidence either. (RT 5916.) Counsel stated that his understanding ofthe case law wasthat he wasto present mitigation evidence even overhis client’s objections, and that he therefore intended to put on two witnessesin mitigation overhis client’s wishes. (RT 5917.) Petitioner then requested a reasonable doubt instruction with respect to uncharged misconduct evidence admitted in aggravation. (RT 591 8.) The court agreed to give that instruction. (RT 5918.) Petitioner further requested an instructionstating that in weighing mitigation versus aggravation, thejurywas to consider the “quality” of the evidence rather than “quantity” of the circumstances. (RT 5919.) The court also agreed to give this instruction. (RT 5919.) Petitioner then objected to anypsychiatric evidencein mitigation. (RT 5919.) The court stated that it would permit defense counselto present “medical” testimony in mitigation. (RT 5919.) 63. On Thursday, July 6, in the jury’s presence, defense counsel soughtto rest the penalty phasecase, and petitioner asked the court whether he wasentitled to testify under the law. The court respondedthat he was, and Page -264- petitioner requested a 24-hour continuance to decide whetherto testify. (RT 6105-6106.) The court denied the motion. (RT 6107.) 64. On Monday,July 10, out of the jury’s presence, the court asked petitioner if he had decided whether or not he wishedto testify. (RT 6108.) Petitioner, understandably confused, stated that he thought the court had given him “five minutes previous to make upthis decision, so I didn’t _ never make it up.” (RT 6108.)The court then ordered-counsel to-proceed with closing arguments. (RT 6108.) Petitioner then movedto have the court reporter, James Lee, replaced with another reporter, Rose Pitts, because he believed Mr. Lee wasnot reporting all occurrences which took place in the courtroom. (RT 6109.) The court denied the motion. (RT 6110.) 65. That afternoon,petitioner objected more than onceto his own counsel’s closing argument. (RT 6189, 6191-6192.) The court declined to rule on the objection andinstructedpetitioner he had no standing to make a statement. (RT 6189, 6192.) 66. On Tuesday,July 11, out of the jury’s presence,petitioner objected to his lack of participation in the jury instruction conferences and lack ofnotice regarding which instructions would be given. (RT 6203.) The court stated that petitioner had noright to participate in such discussions. (RT 6203.) Subsequently, before the jury, petitioner objected to an instruction on the elements of assault with force likely to produce great bodily injury, which concernedan alleged assault bypetitioner uponhis wife, Terry Welch. (RT 6213.) The court stated that petitioner would be removed from the courtroom ifhe made anyfurtherinterruptions, and petitioner replied “I don’t think the court has to threaten me every time I state an objection for Page -265- the record.” (RT 6213.) The court ordered petitioner removed from the courtroom. (RT 6213.) | 67. On the afternoon of Wednesday, July 12, after the jury returned its verdict fixing the punishment at death, petitioner requested a sentencing death at the earliest possible time. (RT 6231.) Over counsel’s request to be permitted until Septemberto investigate and prepare documents, the court granted petitioner’s request and set sentencing for two weekslater. (RT 6231-6232.) 68. On Tuesday, July 25, petitioner appeared for sentencing and objected to being required to wear jail clothing in court. (RT 6234.) His objection was noted for the record. (RT 6234.) Petitioner then objected to the probation report and requested it be removedfrom his file. The court declinedto rule on this request. (RT 6235-6236.) Petitioner objected to his counsel’s argumentthat he was mentallyill. (RT 6237.) When counsel had completed his remarks, petitioner asked whetherthe trailing assault case would be dismissed. (RT 6238.) The prosecutor agreed to dismiss the assault case, as well as a number of misdemeanor counts. (RT 6239.) Petitioner then objected that he had not received a fair trial. (RT 6239.) Petitioner requested a recess to be permitted to review the probation report, and the court denied the motion. (RT 6241-6242.) 69. Later, when the court was formally pronouncing sentence, the court asked whetherthere was any legal cause why the judgment should not be pronounce,andpetitionerstated that “I have been denied ofmyrightto say and control my own destiny where mylife is at stake.”’(RT 6267.) The court made no commentin response,but instead proceeded to pronouncesentence. Page -266- 70. As the foregoing discussion demonstrates, the court’s unilateral decision to impose a form ofhybrid representation uponthe defense resulted in chaos, confusion,tactical conflicts,trial delays, and léft petitioner and his counsel unable to determine whenpetitioner wasbeing represented by counsel and when he wasrepresenting himself. It was trial counsel’s responsibility to object to this hybrid form of representation and to exercise _ _control over the defense. In failing to do so, counsel wasineffective. 71. It is at least reasonably probable that a more favorable outcome would have been obtainedat both the guilt and penalty phases but for counsel’s unprofessionalfailure to object and acquiescencein the court’s hybrid representation plan. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694.) The hybrid representation plan thoroughly undermined the defense, producing chaos and encouraging the brain-damaged petitioner to act out to his own detriment. Counsel’s incompetence proved extraordinarilyprejudicial both whenpetitionertook the stand and presented a defense totally in conflict with that presented by defense counsel, and when counselpresented a penalty phase defense with which petitioner adamantly disagreed. Trial counsel hadnostrategic reason for failing to object to the court’s imposition ofhybrid representation upon the defense. (Exhibit 30, Declaration of Spencer Strellis) Accordingly, counsel fell below the standard of reasonable competence with devastatingly prejudicial results to petitioner’s case. D. Eachoftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually Page -267- and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 21: Ineffective Assistance of Counsel — Failure to Competently Investigate and Present Impeachment Evidence Regarding Prosecution Witnesses A. Petitioner’s conviction and sentence of death are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, 16, and 17 of the California Constitution because he was deprivedofthe effective assistance of counsel during the pretrial, guilt, penalty, and sentencing phases of his trial when counselfailed to competently investigate and present impeachment evidence attacking the credibility ofprosecution witnesses. Counsel’s unprofessional errors deprived petitioner of his federal and state constitutional rights to the assistance ofcounsel, conflict-free counsel, confrontation, due processoflaw, a fair andreliable determination ofguilt and penalty,trial onlywhenmentally competent, a determination bya tribunal of mental competence,trial by an unbiasedtribunal,trial byjury, and fairtrial. B. The following United States Supreme Court decisions, inter alia, in effect at the time the errors occurred, are presented in support ofthis claim: Powell v. Alabama (1932) 287 U.S. 45 (indigent capital defendanthas right to have effective counsel appointed and to be heard through counsel); McMannv. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutionalright to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable Page -268- investigation; under Sixth and Fourteenth Amendments, a showingthat counsel’sacts fell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if ‘there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome;these principles apply equally to guilt and sentencing phasesofcapital trial); United States v. Cronic (1984) 466 U.S. 648, 659 (SixthAmendmentviolated, and-prejudice need not be shown,ifcounsel- entirely fails to subject the prosecution's case to meaningful adversarial testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed when counsel labors underconflict of interest); Hill v. Lockhart (1985) 474 U.S. 52 (Strickland standards apply to representation providedpriorto trial, such as during plea proceedings); Brady v. Maryland (1963) 373 U.S. 83 (withholding of evidence favorable to accused violates due process); Giglio v. United States (1972) 405 U.S. 150 (Brady doctrine includes impeachment evidence as well as exculpatory evidence); United States v. Bagley (1985) 473 U.S. 667 (same); United States v. Agurs (1976) 427 U.S. 97 (Brady rules apply to evidence which would affect the outcome on penalty as well as guilt issues); Mooney v. Holohan (1935) 294 U.S. 103 (prosecutor’s nondisclosure of knowingly perjured testimony violated due process); Napue v. Illinois (1959) 360 U.S. 264 (due process violated by false testimony regardless of whether prosecutor solicited it or merely allowed it to go uncorrected); Miller v. Pate (1967) 386 U.S. 1 (Fourteenth Amendmentcannot tolerate prosecution’s knowing presentation of false evidence) Alcorta v. Texas (1957) 355 U.S. 28 (due process violated when prosecutor failed to correct misleading impression left by witness’s testimony); DeMarco v. United States (1974) 415 U.S. 449 (if plea bargain Page -269- made prior to testimony, reversal of conviction required under Giglio and Napue); Donnelly v. DeChristoforo (1974) 416 U.S. 637 (false evidence includes introduction of specific misleading evidence important to government’s case); Pyle v. Kansas (1942) 317 U.S. 213 (knowing use of: perjured testimonyanddeliberate suppression offavorable testimonyrequires reversal); Imbler v. Pachtman (1976) 424 U.S. 409 (obligation ofprosecution to deal fairly in disclosing information and correcting misinformation continues after conviction); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clauseprovidescriminal defendantright to directly confront adversarial evidence); Douglas v. Alabama (1965) 380 U.S. 415 (right to confront includes right to cross-examine adverse witnesses); Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause guarantees right to impeach credibility of adverse witness with proof of his prior crimes); Gardnerv. - Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentenced on basis of unreliable information); Beck v. Alabama(1980) 447 U.S. 625 (Eighth Amendmentalso requires heightened reliability in guilt determination in capital cases); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created right). C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support ofthis claim: 1. Petitioner incorporates by referenceas if fully set forth herein the facts and law alleged in support of Claim 1. Page -270- 2. Trial counsel was ineffective in failing to perform any investigation into the criminal backgroundsof the prosecution witnesses. Counsel only learned that prosecution witness Stacey Mabreyhad once been arrested for assault becausethis arrest was disclosedbydistrict attorney John Stark in the transcript of the preliminary examination. Had counsel merely gone to the public counter of the clerk’s office and requested Mabrey’s —publiccounselwouldhavediscoveredthat:(1) Mabreyhad alengthy history of criminal arrests and convictions; (2) had been arrested on five occasions for at least 16 separate felonies between the conclusion of the preliminary examination and the commencementofpetitioner’s trial; and (3) the prosecution had declined to prosecute him for any of these offenses, apparently in exchangeforhis testimonyatpetitioner’s trial. This information indicates that Mabrey received extraordinarily favorable treatment in exchange for his testimony, and that he had a compelling motive for attempting to please the prosecution. 3. Counsel also performed deficiently in failing to research available public records regarding the criminal background of any other prosecution witnesses to determine whether any of them had any felony arrests or convictions which could have been used to impeach their credibility. (Exhibit 30, Declaration of SpencerStrellis.) 4. In addition, counsel was ineffective in failing to present evidence ofwhich he was aware--that Stacey Mabreyhad been provided with substantial benefits, consisting of favorable treatment bythe prosecution in anothercase, in exchangefor his testimony. Attrial, Mabreytestified for the prosecution that he waspresentin the houseat the time ofthe killings, saw petitioner in the hallway with a gun, heard gunshots, and narrowly escaped Page -271- being killed himself by hiding in a closet. On cross-examination, Mabrey denied having received anything in exchangefor his testimony: DEFENSE COUNSEL: Have you beenoffered any benefits whatsoever from the District Attorney’s Office in Alameda County, and I don’t necessarilymean this gentleman here but any district attorney in Alameda County, that would have benefitted you after these events and before your testimony here today? MABREY: No. DEFENSE COUNSEL: So far as you know you have received no benefits whatsoever in exchange or as a result of yourtestifying here today? MABREY: No, I haven’t. (RT 4184.) 5. After Mabrey and the jurors had been excused from the courtroom, counsel madean offer of proof that Mabrey “was arrested for a feloniousassault upon Rita Lewis’ brother andhavingsatinjail, was released without charges four days later.” (RT 4192.) Counsel stated that he “acquired the information from reading the preliminary examination where [Deputy District Attorney John] Stark suggested it might be required as a consideration pursuant to the law.” (RT 4192.) However, counsel never used this favorable treatment in exchangefor testimony evidenceto impeach Page -272- Stacey Mabreyduringtrial, and thejury therefore never learned that Mabrey received this consideration for his testimony. 6. Under venerable California case law, the fact that a witness has been given benefits or favorable treatment in another criminal case in exchangeforhis or her testimonyis relevant and admissibleattrial to show bias or motive to fabricate testimony. (People v. Pantages (1931) 212 Cal. 237,258; Peoplev. Phillips (1985)41Cal.3d29,45.) Accordingly,in failing to inform the jury of this favorable treatment, counsel wasineffective. 7. Itis at least reasonably probable that a more favorable outcome would have been obtained by the defense had counsel performedeffectively in investigating and presenting this information to the jury. Evidence that Mabreywasreceiving substantial benefits from the prosecution in exchange for his testimony, and therefore had a powerful motiveto try to please the prosecution, would have severely undercut Mabrey’s credibility and caused the jury to view the prosecution’s case with doubt and skepticism. In addition, Mabrey’s testimony wasparticularly importantto the prosecution’s case—a fact established both bythe prosecutor’s reliance on this testimony in his closing argumentat both the guilt and penalty phases (RT 3877-3878, 5480, 5490-5491, 5494, 5512, 5520, 5522, 5557) and bythefact thatthejury requested this testimony be read back during guilt phase deliberations (RT 5640). In failing to investigate, discover, and presentthis information to the jury in the form ofcross-examination impeachment, counselwasprejudicially ineffective. D. Each oftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually Page -273- and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 22: Ineffective Assistance of Counsel --Failing to Adequately Investigate and Challenge the ConditionsofPetitioner’s Confinement in the County Jail A. Petitioner’s conviction and sentence of death are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, 16, and 17 of the California Constitution because he wasdeprived ofthe effective assistance of counsel duringthe pretrial, guilt, penalty, and sentencing phasesofhis trial when his trial counsel unprofessionally and inexplicably failed to investigate and challenge the conditions of petitioner’s confinement in the county jail. Counsel’s unprofessional errors deprived petitioner of his federal and state constitutional rights to the assistance of counsel, conflict-free counsel, confrontation, due process of law, a fair and reliable determination of guilt and penalty,trial onlywhen mentally competent, a determination bytribunal of mental competence,trial by an unbiased tribunal, anda fair trial. B. The following United States Supreme Court decisions, inter alia, in effect at the time the errors occurred, are presented in support of this claim: Powell v. Alabama (1932) 287 U.S. 45 (indigent capital defendant has right to have effective counsel appointed and to be heard through counsel); McMann vy. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable Page -274- investigation; under Sixth and Fourteenth Amendments, a showing that counsel’sactsfell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome;theseprinciples apply equally to guilt and sentencing phasesofcapital trial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendment-violated, and prejudice need not be shown, if counsel — - entirely fails to subject the prosecution's case to meaningful adversarial testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed when counsellabors underconflict ofinterest); Hill v. Lockhart (1985) 474 U.S. 52 (Strickland standards apply to representation providedpriorto trial, such as during plea proceedings); Dusky v. United States (1960) 362 U.S. 402 (defendantis incompetentto standtrial ifhe lacks “sufficient presentability to consult with his lawyer with a reasonable degree ofrational understanding”or “‘a rational as well as factual understanding of the proceedingsagainst him”) Pate v. Robinson (1966) 383 U.S. 375(failure to observe procedures designed to assure defendant will not be tried or convicted while incompetent violates due process andrightto fairtrial); Drope v. Missouri (1975) 420 U.S. 162 (defendant’s conduct after arraignment, such as conduct in court orin jail, may trigger competency proceedings); Ake v. Oklahoma (1985) 470 U.S. 68 (defendantentitled to expert assistance, including mentalhealth expert assistance, to prepare for and testify at trial); Pointer v. Texas, (1965) 380 U.S. 400 (confrontation clause provides criminal defendantrightto directly confront adversarial evidence; Loven v. Kentucky, (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Gardnerv. Page -275- Florida (1977) 430 U.S. 439 (due processviolation in capital proceeding where petitioner sentenced on basis of unreliable information); Beck v. Alabama(1980) 447 U.S. 625 (Eighth Amendmentalso requires heightened reliability in guilt determination in capital cases); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-createdright). C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support ofthis claim: 1. Petitioner incorporates by referenceasif fully set forth herein the facts and law alleged in support of Claim 2, 5, 18, 19, 24, 27, 28, 30,31, 46, 47, 48, 49, 50, 51, and 78. 2. Counsel were aware that petitioner was being subjected to unfairly harsh and inhumaneconditions ofconfinement from the time ofhis arrest through the conclusionoftrial. Petitioner repeatedlycomplained on the record that the conditions under which he washoused in AlamedaCountyJail subjected him to unduestress andaffected his competence and mental health throughoutthe trial. Petitioner complainedthat he wasrepeatedlyphysically, verbally, and psychologically abused by sheriff's deputies while being held in jail or while being transported to and from court. (RT 1-3, 3060-3063, 3313-3314, 3704-3707, 3723-3730, 3780-3784.) He objected that he had been placedin disciplinary unit from the beginning ofhis confinement; had been subjected to unfairrestrictions ofphonecalls,visitation with his family, and accessto legal materials; had been given inadequate medical and mental health care and inadequateclothing; had been placed on disciplinary diets; and had received other undeservedly harsh treatment; all ofwhich interfered Page -276- with his ability to prepare for andparticipate at trial. (RT 60-61, 98, 160- 162, 209-211, 390-393, 567-569, 578-579, 640-641, 643-645 756.) 3. Petitioner also objected on the recordthat during periods when he wasnotpresent in court, the proceedings were broadcast over speakers into his cell at a volume and mannerwhich enabledother inmatesofthejail to overhear. (RT 209-211, 384, 387, 1942-1946.) He objected that another — — —.......jnmate-orinmates had been enlisted-as.a prosecutioninformant as-well-as had- beencalling the families ofthe alleged victimstostir up troublefor petitioner and his friends andrelatives. (RT 647-648, 2404-2407.) He objected thathis legal papers and other materials in his cell had been searched, confiscated, and disrupted. (RT 791-795, 940-941.) He also objected that the sheriff's department was monitoring his conversationswith his counsel and with mental health professionals retained by the defense. (RT 1572.) 4. Defense counsel, the prosecution,the sheriff's department, and the sheriff’s deputies andbailiffs were aware that petitioner was mentallyill, yet the sheriffcontinued to subject him to stressful and inhumane conditions which exacerbatedhis illness and interfered with his ability to participate rationally in his own defense. (Exhibit 6, Declaration of Thomas Broome; Exhibit 30, Declaration of SpencerStrellis; Exhibit 7, Declaration ofRobert Cross.) In addition, the prosecutorhimselftaunted and intentionallyprovoked petitioner in order to encourage him to engage in negative behavior in the courtroom. (RT 1965-1969.) 5. Counsel, the prosecution, the sheriff's department, and its deputies were awarethat disciplinary diets were unconstitutional,illegal, and inappropriate and that they were likely to have a detrimental effect on the mentalstate of petitioner. (RT 279, 5833-5834, 5865-5866.) Page -277- 6. Counsel, the prosecution, the sheriff's department, and its deputies were also aware that the conditions of confinement to which petitioner was subjected were harsh, unfair, stressful to petitioner, and detrimentally affected his ability to prepare, assist, or participate rationally in his own defense. (RT 1-3, 60-61, 98, 160-162, 209-211, 382, 387, 390- 393, 1572.) 7. A minimally competent investigation would have shown that petitioner wasin fact assaulted and beaten by guards on numerousoccasions. (Exhibit 12, Declaration ofDavid Irving; Exhibit 13, Declaration ofDwight Jackson; Exhibit 31, Declaration of AllenTurk.) 8. A person already suffering from mental impairments and illnesses will decompensate further when subjected to unusually harsh conditions ofconfinement. (T. Kupers, Prison Madness: The MentalHealth Crisis Behind Bars and What We Must Do About It (Jossey-Bass, 1999; Exhibit 28, Declaration of Pablo Stewart) 9. Although defense counsel made perfunctory objections regarding petitioner’s conditions of confinement, these objectionsfailed to describe more than a small portion of the abuse to which petitioner was subjected in jail. Indeed, counseldid little more than pass on to the court a few of petitioner’s objections without conducting any substantial investigation. Counseldid not interview otherprisonersorsheriff's deputies to develop the factual basis to substantiate petitioner’s claims of abuse. (Exhibit 12, Declaration of David Irving; Exhibit 13, Declaration Dwight Johnson.) 10. It is at least reasonably probable that a more favorable result would have been obtained but for counsel’s unprofessional errors. A Page -278- reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S.at p. 694.) An adequate investigation would have provided factual support for and compelled the court to hold a competency hearing at whichpetitioner would have been found incompetent. (Exhibit 22, Declaration of William Pierce, Ph.D.; Exhibit 3, Samuel Benson, M.D.) Petitioner would then not have been ~~ tried-andwouldnothavebeenguilty, andinsteadreceived the mental health treatment he so desperately required. D. Each ofthese errors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentstothe United States Constitution,individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. . Claim 23: Ineffective Assistance of Counsel — Failure to Competently Investigate and Present Mental Health Evidence A. Petitioner’s conviction and sentence of death are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, 16, and 17 of the California Constitution because he wasdeprived ofthe effective assistance of counsel during the pretrial, guilt, penalty, and sentencing phases ofhis trial when his trial counsel failed to competently investigate and present mental health evidencein his defense. Counsel’s unprofessional errors deprived petitioner of his federal and state constitutional rights to the assistance of counsel, conflict-free counsel, confrontation, due process of law, equal protection, a Page -279- fair and reliable determination ofguilt and penalty,trial only when mentally competent, a determination by a tribunal of mental competence,trial by an unbiasedtribunal, and fairtrial. B. The following United States Supreme Court decisions, inter alia, in effect atthe time the errors occurred, are presented in support ofthis claim: Powell v. Alabama (1932) 287 U.S.45 (indigent capital defendant has right to have effective counsel appointed and to be heard through counsel); McMannv. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showing that counsel’sacts fell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome;these principles apply equally to guilt and sentencing phasesofcapital trial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendmentviolated, and prejudice need not be shown, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed whencounsellabors underconflict of interest); Hill v. Lockhart (1985) 474 U.S. 52 (Strickland standards apply to representation providedpriorto trial, such as during plea proceedings); Dusky v. United States (1960) 362 U.S. 402 (defendantis incompetentto standtrial ifhe lacks “sufficient present abilityto consult with his lawyer with a reasonable degree of rational understanding”or“a rational as well as factual understanding of Page -280- the proceedings against him”) Pate v. Robinson (1966) 383 U.S. 375 (failure to observe procedures designed to assure defendant will not be tried or convicted while incompetent violates due process and right to fair trial); Drope v. Missouri (1975) 420 U.S. 162 (defendant’s conduct after arraignment, such as conduct in court orin jail, may trigger competency proceedings); Ake v. Oklahoma (1985) 470 U.S. 68 (defendantentitled to -—— —-—expert assistance,includingmentalhealthexpertassistance,topreparefor—— — ——_—_—. testify at trial); Pointer v. Texas 380 U.S. 400 (1965) (confrontation clause providescriminal defendantright to directly confront adversarial evidence); Loven v. Kentucky488 U.S. 227 (1988) (confrontation clause violation where defendantnot permitted to cross-examine complainant); Gardnerv. Florida 430 U.S. 439 (1977) (due process violation in capital proceeding where petitioner sentenced on basis of unreliable information); Beck v. Alabama (1980) 447 U.S. 625 (Eighth Amendmentalso requires heightenedreliability in guilt determination in capital cases); Hicks v. Oklahoma 447 U.S. 343 (1979) (federal due process claim in state-created right). C. The following facts, among others to be.developed after adequate funding, discovery, investigation, and an evidentiary hearing, are presented in support ofthis claim: 1. Petitioner incorporates by referenceasif fully set forth herein the facts and law set forth in Claims2, 4, 5, 18, 19, 22, 24, 27 through 31, 33, 47 and 48. 2. Petitioner has suffered throughouthis life from a constellation of symptomswhich have long been recognizedasindicators ofthe presence Page -281- of frontal lobe brain damage, including impulsivity, perseveration, and profound memory deficits. 3. From the verybeginning oftheir representation, petitioner’s trial counsel were awareofpetitioner’s symptomsandtheir impactonhisability to assist in his own defense. Thomas Broome,petitioner’s counsel at the preliminary examination and during early Superior Court proceedings, had known petitioner from Broome’s previouscareer as a probation officer and knewthat petitioner “had a reputation throughout the criminaljustice system for being severely mentallyill.” (Exhibit 6, Declaration ofThomas Broome.) Broomealso found it “often impossible to obtain [petitioner’s] assistance becauseofhis paranoia andinability to focus on the issues.” (Jbid.) Broome found it extremely difficult to work with petitioner due to his paranoia, delusions, memoryproblems,perseveration, impulsivity, and lack ofinsight. (bid.) Broome thought petitioner’s problems were also aggravated by beatings administered byguardsat the countyjail. (/bid.) Broome concluded that petitioner was incompetent to stand trial and moved for competency proceedings, but the motion was denied. (/bid.) 4. Broome’s co-counsel, Robert Cross, also agreed with Broome’s assessmentthat petitioner was incompetent to standtrial due to his mental illness. (Exhibit 7, Declaration of Robert Cross.) Cross felt that as he and Broome began working on the case, it becameclear that “something was mentally wrong” with petitioner. (/bid.) Cross noted that the facts of the crimes were bizarre of themselves. Moreover, as word leaked out in the African-American community in East Oakland, where both Cross and petitioner lived, that Cross wasrepresenting petitioner, manypeople from the Page -282- neighborhoodapproached Crosstotell him that petitionerwas widelyknown for being mentally ill. (/bid.) Cross recalls that: in our discussions with Mr. Welch,he often thought and spokein irrational ways. When wetriedto talk to him about the case in order to develop a theory of defense, Mr. Welch focused ontrivial, irrelevant details and we could not get him to payattention to larger, more important matters. He read cases he ——. - -~obtained from-the-library-or-from us and became ~~ fixated on issues or motions heread about, even ifthey were completely irrelevant to his case, and we were unable to get him to focus on assisting us. He also seemed incapable ofhelping us with the factual details of the case. Wefrequentlytried to get him to explain what had happenedatthe scene of the homicides and he wasableto discuss someofthe incidents which led up to the killings. However, it was clear from the beginning that there were substantial holes in his memory. (Exhibit 7, Declaration of Robert Cross.) 5. Broome and Crossretained a psychologist, Dr. William Pierce, to examinepetitioner, and Pierce determined thatpetitioner was incompetent to stand trial. (Exhibit 22, Declaration of William Piece, Ph.D.; Exhibit 6, Declaration of Thomas Broome; Exhibit 7, Declaration of Robert Cross.) 6. Subsequently, in early 1988, SpencerStrellis was appointed to replace Broomeaslead counsel, and Alexander Selvin eventually became associate counsel. Strellis too believed that petitioner was mentally incompetentto assist his counselor to standtrial. (Exhibit 30, Declaration of SpencerStrellis.) In addition, Strellis retained a psychiatrist, Dr. Samuel Benson, to examine petitioner. Bensonvisited petitioner on five occasions Page -283- and also concluded petitioner was incompetent to stand trial. (Exhibit 3, Declaration of Samuel Benson, M.D.) 7. In spite of lay and professional agreementthatpetitioner was mentally ill, counsel failed to perform the basic investigation necessary to identify the cause ofpetitioner’s symptomsor determine the etiology ofhis impairments. Although petitioner himself requested psychiatric assistance and evaluation many times prior to trial, counsel did not retain a neuropsychologist to perform testing that would have identified the damage. Counselalso failed to gather publicly available documents or conductbasic social history interviews of family and friends to obtain information that would have permitted his experts to prepare a coherent and persuasive explanation of petitioner’s behaviorfor the jury. 8. Asset forth in more detail in Claim 18, which is incorporated by referenceasiffully set forth herein, this information was freely and easily available. Briefly, this information would have shownthatpetitioner’s brain damage mayhaveresulted in part from both the brutal, persistent physical abuse he suffered at the hands of his father in utero and throughout his childhoodas well as other head traumahe suffered throughouthis life. In addition, readily available information would have shownthatpetitioner suffered diffuse brain damageastheresult ofin utero andlife-long neurotoxin exposure. 9. Petitioner was exposed to neurotoxins on a regular basis in his childhood, which was a majorcontributing factorto the diffuse brain damage identified by Dr. Karen Froming. (Exhibit 10, Declaration ofKaren Bronk Froming,Ph.D.) A neurotoxin is a chemical substance that causes adverse effects on the structure or functioning ofthe central and/or peripheral nervous Page -284- system. Exposure during one’s childhood is even more physically devastating than adulthood. From infancy through adolescence, children experience rapid growth and development, especially for the nervous system, the lungs, the reproductive organs and the immune system. The permanent structures of these organs are established in childhood. (Exhibit 55.) 10. Additionally, vital connections betweencells are established duringthe developmental stage-of-organs.-These-delicate-developmental-——- processes in children mayeasily and irreversibly be disrupted by toxic environmental substances. Dueto thefact that a child's internal systems are immature, their ability to neutralize and rid their bodies of certain toxics is reduced. Hence, “if cells in the developing brain are destroyed by lead, mercury,or other neurotoxic chemicals,or ifvital connections between nerve cells fail to form, the damageis likely to be permanentandirreversible. This maymean lossofintelligence and alteration ofnormal behavior.” (Exhibits. 55, 56, 66.) 11. Trial counsel failed to investigate or recognize the significance of neurotoxin exposure and therefore failed to adequately investigate, prepare, and present evidence of exposureandits toxic effects on petitioner. This evidence would have beenrelevantto the following legal issues, among others: (1) petitioner’s mentalstate at the time of the crimes (sanity, intent to kill, premeditation and deliberation, intent to inflict great bodily injury); | (2) petitioner’s long term mental functioning and disabilities (bearing on mentalstate at the time of the crime, and evidence in mitigation of penalty); Page -285- (3) petitioner’s competenceto stand trial; and (4) petitioner’s social and cultural history as evidencein mitigation ofpenalty. 12. The following facts demonstrate that petitioner was prejudiced by counsel’s unreasonablefailure to investigate petitioner’s neurotoxin exposure andits effects, and to employ experts andpresent evidence on these facts in support of the legal issues noted above. 13. While pregnant with petitioner, his mother, Minnie, lived in a house contaminated with lead-basedpaint. Built in approximately 1890,this housereceived a multitude ofseriousviolations from mid-1957until it was officially declared a nuisance and ordered demolished in 1969. In addition to being heavily infested with cockroaches and rodents during Mrs. Welch’s pregnancy, there were 41 other seriousviolations where repairwas demanded and never completed by the landlord. Among other incidents of disrepair, many walls andotherstructures were crumbling. Petitioner spent his infancy in this house and lived there until the family moved in 1961. (Exhibit 53.) 14. Spendingtimein areas whereleaded paints have been used and are deteriorating has long been acknowledgedas a methodoflead exposure. Lead paint wasnot even bannedforuse in the United States until 1973—one gram ofsuchpaint contains 500 mgoflead, or 20,000 times the permissible intake fora child. Aspaint ages,it chalks, flakes, and powders, and becomes part of the household dust—this process became tremendously amplified at 5848 Fremont because nearlyall wall surfaces, both indoors and outdoors were deteriorating. Dueto the fact that the placenta is an imperfect barrier between the mother andfetus for lead and other heavy metals, petitioner was exposedto lead in utero. The placentaltransfer oflead beginsasearlyas the Page -286-_ . 12th week of gestation and continues throughout fetal development. Lead exposure in utero, even at low-levels, has been shown to cause neurologic impairment. Neurological deficits include a diminution in ‘nerve cell developmentin the cerebral cortex, IQ reduction, behavioral problems and a specific reduction in the nerve cell size in the optic nerve. It also impairs motorskill developmentandalters the level andutilization ofimportant brain chemicals such as dopamine, serotonin, and norepinephrine. A 1943-study showedthat children exposed to lead made unsatisfactory progress in school due to sensory motordeficits, short attention span, and behavioral disorders. (Exhibits 56; 57 at pp. 4, 7-8; 58 at pp. 715-24, 728, 731-33; 59 at pp. 1-2; 61 at pp. 6-10; 63 at pp. 1-2.) 15. Petitioner’s exposure to lead continued throughouthis infancy via his mother’s breast milk as well asliving in a dilapidated house. Due to the fact that there is an increased and sustained mobilization of maternal skeletal lead during lactation, breast milk is a known pathway for lead exposure. Petitioner was also now living and breathing in an 1890 house cited for deteriorating walls and ceilings with inadequate ventilation. It is well-documentedthat older, poorly maintained houses, with dust and chips from deteriorating lead paint falling into window wells, rooms, and into the soil at the base of the house, is a prime source of lead exposure. Lead exposure impacts the newly born particularly severely becauseit is a time of rapid developmentofthe central nervous system. (Exhibits 56; 57 at pp. 7-9; 60 at p. 1; 62 at p. 1; 63 at pp. 1-2.) 16. In 1959, right after petitioner turned one, his childhood home ”was again cited with 13 “Emergency Hazards.” Despite these egregious violations, his parents did not move from the house until petitioner was 3 Page -287- yearsold, so his lead exposure continued unabated. Dueto the fact that the walls andceilings in the house were decaying and crumbling,petitioner’s lead exposure was high. Crawling around onthefloorsin his infancy, petitioner ingested lead by placing his hands, toys and other objects and dust, soil, and/or flaking paint on those objects into his mouth. Because children's gastrointestinal tracts absorb 50% of ingested lead compared to adult absorption of 10-15%, lead ingested through hand-to-mouth behavioris an exposure source ofsignificant concern. (Exhibits 56; 57 at p. 4; 58 at p. 728; 60; 62; 63 at p. 4.) 17. Petitioner wasalso likely exposed (both in utero andin early childhood) to lead from drinking water. His house wasbuilt in the 1890’s and wasvery poorly maintained. Because plumbinginstalled before 1940is likely to contain lead, lead-contaminated drinking water is commonly a problem in old houses. This is especially true because petitioner’s 1890 house wasspecifically cited for defective interior and exterior plumbing in 1957. (Exhibits 56; 58 at pp. 729-30; 63 atp. 2.) 18. Whenpetitioner was 3 years old he moved to an area of Oakland notoriousfor its overwhelming amountofheavy industry, wherehis neurotoxin exposure continued. In the early 1960's and 1970's, during his youth, there was a pervasive and unregulated use oftoxins in industry. The National Environmental Policy Act, the nation’s first major environmental legislation, as well as the Environmental Protection Agency (EPA)werenot even in existence until 1969. Both the Clean Air and Clean Water Acts, the first two pieces of national legislation enacted by Congress in response to growing public concern for serious and widespreadpollution, were not passed until the early 1970's. Accordingly, it was not until virtually the end of Page -288- Welch’s childhood that anyone even began considering the regulation of toxins. As a markerit is useful to consider that DDT, an extremely hazardous pesticide, was not even bannedin the U.S. until Welch was 12 years old. 19. San Leandro Creek, which begins at Lake Chabotand terminates into San Leandro Bay,runs3 blocksfrom petitioner’s residence. This creek —— —— —-—~—waspetitioner’schildhoodlocation—he played,collectedlizardsand ~ other plants and animals, and swam in this creek on a daily basis during the 1960’s and 1970’s. His motherstated that petitioner came home “soaking wet”all the time from swimmingin the creek. (Exhibit 33, Declaration of Minnie Welch.) Atthe time petitioner played in San Leandro Creekit existed in its natural condition and wasfully accessibleat all times. San Leandro Creek is no longer accessible and has been directed into a lined concrete channelforat least 2 miles surroundingpetitioner’s neighborhood. (Exhibit 126.) Additionally, there are immense impenetrable gates enclosing the concrete channel throughout petitioner’s neighborhood, serving to further dissuade any contact with the water. 20. The watershed that San Leandro Creek is contained within traces the creek from Lake Chabot to San Leandro Bay. Atits widest, the watershedis about 2 miles across. In the 1960's and 70's all storm drains fed directly into the creek, causing anypollutants that wentinto the street within the watershed to wash into San Leandro Creek. (See watershed details on Exhibit 126; Exhibit 15, Declaration ofKeith Kelson.) It is well-documented that, especially in the time period of petitioner’s youth, many businesses would establish direct connections to storm drains as a wastewater disposal method. (Exhibit 83.) Furthermore, the toxins problems associated with Page -289- storm drain pollution in Alameda County creeks has been recognizedfor a considerable amountof time. For example, in 1987 the Alameda County Task Force was specifically formed in order develop a solution to the storm waterpollution problem plaguing the county. (Exhibits 64, 67 at p. ES 1.) 21. There are over 950 suspected neurotoxicants. Hundreds of these neurotoxicants are strongly associated with industry. It has long been established that exposure to industrial chemicals can damage the nervous system, resulting in irreparable brain damage. Not only is there a concern with direct washinginto or disposal from industry into the storm drains, thus the creek, but industrial and residential areas themselves are highly impervious surfaces. Impervious surfaces, such the area petitioner grew-up in, preventthe infiltration ofrainwater and, consequently, cause a tremendous amount of pollutant loadings to the storm water. The main storm water pollutants ofconcern identified in the creeks ofAlameda County include the following: organophosphate pesticides (diazinon and chlorpyrifos), organochlorine pesticides (DDT,chlordane anddieldrin), copper,lead, zinc, mercury, polycyclic aromatic hydrocarbons (PAHs), and polychlorinated biphenyls (PCBs). Exposure to any, all or a combination of these toxins would have had an adverse impact on the petitioner. The storm water pollutants identified as being of concern in Alameda County creeks are virtually all neurotoxins (Exhibits 67 at p. ES 1-2; 12 ; 13; 64 at pp. 3-5, 4-14, 5-11, 6-3): 22. Organophosphate pesticides are a group of closely related pesticides that affect functioning of the nervous system. Substantial toxicologic evidence has shown that repeated low-level exposure to organophosphate pesticides may affect neurodevelopment and growth in Page -290- developing animals. In particular, samplings and analysis have shown that both upper and lower San Leandro Creek contain diazinonat levels higher than those that would causeacute toxicity to C. dubia. (Exhibits 68-70.) 23. Organochlorine pesticides biodegrade slowly and are highly lipid-soluble, hence they tend to accumulate with repetitive exposure, hence the duration oftoxicity may be prolonged. Organochlorinepesticides act as _ . neurotoxinsinterferingwith transmissionof erveimpulses, especially — —— —_____- in the brain, resulting in CNS stimulation. (Exhibit 71 at p.2.) 24. Copper, lead, zinc and mercury areall heavy metals (elements having atomic weights between 63.546 and 200.590, and a specific gravity greater than 4.0). The neurotoxic effects ofheavymetals, especially lead and mercury, are well-known. Due to the widespread poisoning of Japanese fisherman andtheir families in the 1950's as a result of consumption of methyl mercury contaminated fish, we have known aboutthe toxicity of mercury for a long time. A primary route of exposure to mercury is through transport into surface waters. Because methyl mercury is a neurotoxin (particularly toxic to the developing nervous system), unborn fetuses and young children are especially susceptible to mercury's toxic effects. Because it is easily vaporized, air around chlorine-alkali plants, smelters, municipal incinerators, sewage treatment plants and even contaminated soils may contain increased levels ofmercury. Primary amongits over 3000 industrial uses are catalysts and pigments, cells for caustic soda and chlorine production, fungicides, metal plating, solder, tanning and dyeing, textile production, use in boilers/turbines for electricity generation, paints and pesticides. Simple research would have demonstratedthatpetitioner played Page -291- daily in a creek and breathed the air constantly in a neighborhoodrife with industries known for using methyl mercury. (Exhibits 72, 73.) 25. Polycyclic aromatic hydrocarbons (PAHs), a known skin or sense organ toxicant, are a group of over 100 different chemicals that are formed during the incomplete burningofcoal, oil and gas, garbage, or other organic substances. Some PAHsare manufactured andare foundin coaltar, crudeoil, creosote, roofing tar, dyes, plastics, and pesticides. PAHs enter water through discharges from industrial and wastewater treatmentplants. One common method a person can be exposed to PAHs is by coming in contact with air, water, or soil near hazardouswastesites, an event petitioner did on daily basis as a child. (Exhibits 74, 75.) 26. Polychlorinated biphenyls (PCBs), a developmental toxicant as well as neurotoxin,enterthe air, water, and soil during their manufacture, use, anddisposal; from accidentalspills and leaks duringtheirtransport; and from leaksor fires in products containing PCBs. PCBscan also be released into the environment from hazardous wastesites; illegal or improper disposal of industrial wastes and leaks from old electrical transformers. (Exhibits 76, 77.) 27. There are 6 sites on the Comprehensive Environmental Response, Compensation and Liability Information Systems (CERCLIS)at an equalor higher elevation than petitioner’s home and the creek (meaning the movement is headed in the direction of the house/creek). These are hazardous waste sites that have been reported to the U.S. Environmental Protection Act (hereinafter “EPA”) states, municipalities, private companies and private persons, pursuant to Section 103 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Page -292- CERCLA, commonly known as Superfund, was enacted by Congress on December11, 1980. This law created a tax on the chemical and petroleum industries and provided broad Federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment. (Exhibit 54.) 28. There are an additional 12 CERCLIS hazardous wastesites contamination has been removed,ordid not require Federal Superfund Action or to be placed on the National Priorities List. (Exhibit 54.) 29. There are 3 CORRACTSsites within 2 miles of petitioner’s home. CORRACTSis a list of handlers with Resource Conservation and Recovery Act (RCRA) Corrective Action Activity, meaning thesearesites that generate, store, treat, or dispose ofhazardous wastethat have had to take corrective action forspills or other mishandling. (Exhibit 54.) — designated“NoFurtherRemedialActionPlanned.”Thesesitesthe — ~ 30. There are 92 sites on the RCRA database,ali within 1.25 miles | of petitioner’s home. This database includes selected information onsites that generate, store, treat, or dispose of hazardous waste as defined by the Act. The source ofthis database is the U.S. EPA. (Exhibit 54.) 31. The Emergency Response Notification System (hereinafter “ERNS”) records and stores information on reported releases of oil and hazardous substances. The source of this database is the U.S. EPA. There are 27 sites on the ERNS database, all of which are within 1 mile of petitioner’s home. (Exhibit 54.) 32. There are 8 sites on the California Department of Toxic Substances Control’s Annual Workplan (hereinafter “AWP”) database. The Page -293- _AWP identifies known hazardous substance Sites targeted for cleanup. (Exhibit 54.) 33. The Cal-Sites database contains both known and potential hazardous substance sites. There are 47 sites listed on the Cal-Sites database. (Exhibit 54.) 34. There are 31 sites on the California Hazardous Material Incident Report System (hereinafter “CHMIRS”) database. CHMIRS contains information on reported hazardous material incidents, i.e. accidental releases or spills. (Exhibit 54.) 35. CORTESEidentifies public drinking water wells with detectable levels of contamination, hazardous substance sites selected for remedial action,sites withknown toxic material identified through the abandonedsite assessmentprogram,sites with Underground Leaking Storage Tanks (USTs) having a reportable release, and all solid waste disposalfacilities from which there is a known migration. The source is the California Environmental Protection Agency/Office of Emergency Information. There are 261 sites within 2 milesofpetitioner’s home on the CORTESEdatabase. (Exhibit 54.) 36. Notify 65 records containfacility notifications about any release that could impact drinking water and thereby expose the public to a health risk. The data comes from the State Water Resources Control Board’s Proposition 65 database. There are 27 sites within 2 miles ofpetitioner’s homeonthe Notify 65 database. (Exhibit 54.) 37. There are 6 solid waste disposal facilities and landfill sites within 1.5 miles of petitioner’s childhood home. (Exhibit 54.) Page -294- 38. There are 241 incident reports of leaking underground storage tanks within 1.5 miles ofpetitioner’s childhood home. (Exhibit 54.) 39. There are 65 Underground Storage Tanks (USTs) registered within 1.25 milesofpetitioner’s home. USTsstore petroleum or hazardous substances that can harm the environment and human health if the USTs release their stored contents. USTsare regulated under Subtitle I of RCRA. ~~~Additionally,activeand inactive USTs within 1.25 milesof = — a petitioner’s home. (Exhibits 54; 78 at p. 1). 40. The Toxic Chemical Release Inventory System identified a site within 1 mileofpetitioner’s childhood homethatreleases toxic chemicals to the air, water, and land in reportable quantities. (Exhibit 54.) 50. There are 7 dry cleanerrelated facilities with EPA ID numbers within 1.25 miles of petitioner’s childhood home. These dry cleaners are regulated because they use perc (perchloroethylene)astheir cleaning solvent, a highly toxic carcinogen that has been shownto have harmfuleffects on the nervoussystem andall major organs. (Exhibit 54.) 51. The California Regional Water Quality Control Board runs the Spills, Leaks, Investigations and Cleanups (SLIC) program. There are 37 SLIC sites within the San Leandro Creek watershed. Sites in the SLIC program are generally small to medium-sized industrial sites with non-fuel contamination. (Exhibits 54; 79.) 52. HAZNETcollects data from copies of hazardous waste manifests received by the Department of Toxic Substances Control. There are 326 HAZNETsites within 1.25 milesofpetitioner’s home. (Exhibit 54.) Page -295- 53. Air, water, andsoil pollutants caused by construction ofthe Bay Area Rapid Transit (hereinafter “BART”) subway. Construction of the Oakland portion began in January, 1966, when petitioner was 8 years old. Not only does BARTrun within % mileofpetitioner’s home,it crosses San Leandro Creek, so there was clearly somedisruptionofthe creek in that time. Construction went on for many years—by early 1971, 10 test prototype transit cars were being operated on the Fremontline (the line which runsby petitioner’s home) in a round-the-clock program to prove out the new design before it went into full-scale production. (Exhibit 80.) 54. Pollutants caused by thevariousrailroad tracks which surround and run within 4 mileofpetitioner’s home. Notonly is there a concern with the tracks themselves, including rail dust contamination, but also with possible leaks or other contamination coming from loadsonthe cars passing by. Approximately % of a mile from petitioner’s house, and upstream from the closest area where he could have playedin the creek, the railroad tracks pass over San Leandro Creek. (Exhibit 126.) 55. Contamination caused by both the building of the Oakland Colesium and the massive airport expansionthat occurred within a few miles of petitioner’s home in the early 1960’s. Construction of the Oakland- Alameda County Coliseum began in 1962 and continued until the fall of 1966. Two hugecraters were dug into the ground for the Coliseum and Arena. In the early 1960’s the Port of Oakland was conducting. a $17,5000.000 expansion of Metropolitan Oakland International Airport, including a new 10,000 foot runway. (Exhibits 81, 82.) 56. Petitioner’s exposure to neurotoxins,andits irreversibleeffects, became obvious from hisearliest school days. Lead in particular is related Page -296- to delayed mental development, lowerIQ, speech and language handicaps, poor attention span, and behavioral problems, all of which petitioner demonstrated. In kindergarten petitioner was placedinto a special group for the emotionally handicapped and had learning difficulties and conceptual problems. Hislearning difficulties and behavioral problems were also noted in the first grade, where he was labeled “hyperactive” and “immature.” In ___firstgrade he wasadministered the MetropolitanReadinessone ofthe== most frequently used measures of learning readinessat the kindergarten and first grade level, on which hescoredin the bottom 25" percentile. At 6 years old he was diagnosed with a speech handicap. Onhis second standardized test, administered in the second grade, he scoredin the bottom 4" percentile for reading. His delayed mental development, poor attention Span and behavioral problems continued throughout his schoolyears. Throughout elementary school teachers negatively noted petitioner’s behavior: “deplorable behavior,” “insolence behavior,”“pouts, stubborn.” In the sixth grade he was administered a portion ofthe Lorge-ThorndikeIntelligence Test on whichhe achieveda verbalIQ of78, whichis far below average. Studies have shownthat lead-exposed children have lower IQ scores particularly on verbal scales. In addition to receiving an exceedingly low score on the IQ test he wasgiven,petitioner consistently earned negative grades and achieved extremely low scoresin all verbal areas. His fifth grade teacher specifically listed “Reading Comprehension”in the “Learning Difficulties” section of petitioner’s report card. (Exhibits 58 at pp.716-19, 731-33; 63 at pp. 1, 4; 112, David Welch Oakland Public School Records.) 57. Petitioner played in the sanitary sewer throughout his childhood. Pursuant to its sewer easement, the city of Oakland placed a 4 Page-297- foot wide manhole cover, to provide access to the main sewer,in petitioner’s backyard. This access existed throughoutpetitioner’s childhood. Heoften removed the manhole cover and climbed down the short built-in ladder to play in the water below. At the bottom ofthe ladder is what appears to be a small creek, which maintainsa constant flow ofwater. In addition to the main flow (containing the waste ofat least 100 houses and/or businesses), at this access there are 2 smaller sewer mains perpetually flowing, which feed the discharge from all houses on his side of La Prendainto the big main. The water petitioner often played incontains anything disposed of in more than 100 houses and/or businessesin the area. This includes anything flushed in toilets orwashed downbathtubsor sinks. Additionally, in the 1960's and 70's storm water run-offand groundwater often seepedinto the sewermains. This problem was well-documented,and in the mid-1990's the city undertook an extensive project, installing sliplines into the clay pipes in order to stop the ground and storm waterinfiltration. Hence, petitioner’s creek exposure to toxins already notedaspresent in the storm and ground water were amplified. Besides exposure to human waste flushed downthetoilets ofmore than 100 homesand/or businesses, as well as contaminated storm and ground water, petitioner played in the myriad ofhazardous chemicals poured downall ofthe sinks and drains. To name a few, this would likely include bleach,paint, hydrofluoric acid, varnishes, lye, hair treatment chemicals, solvents, disinfectants and pesticides. The fact that petitioner frequented the main sewer as a playground throughout his childhood is especially dangerous considering the fact that developing children are much more vulnerable to environmental health threats than adults. (Exhibits 55, 56.) Page -298- 58. Asa result of long-term, repetitive and excessive exposure to neurotoxic chemicals petitioner has suffered neurological damage. These effects mayhave been exacerbated by other neurological damagesuffered by petitioner, and the chemical exposure may have contributed to other neurological symptomsexhibited bypetitioner. 59. Petitioner’s neurologic impairments compromised his mental functioning to the degree that he had littleawareness of his actions or of alternative causes ofaction. Theinhibition ofpetitioner’s neural controls due to toxic chemical exposure and other sources of impairment cause him to " behave impulsively and to perseverate, and further impair his memory, consciousness, and other essential brain functions. The nature of the neurologic response precludeda rational awarenessofor conformance with the requirementofthe law. 60. Counsel’s failure to investigate, consult expert and lay witnesses, and present evidence regarding petitioner’s organic impairments, history exposure of head trauma, and exposure to neurotoxicants was unreasonable, and counsel had no legitimate strategic reasons for these omissions. 61. Counsel’s unprofessional errors in failing to competently investigate and present a mental defense subjectedpetitionerto a trial while he was not competent to proceed, in violation of his federal constitutional right to trial only when competent. Because a person maynotbetried, convicted, or punished while incompetent, this error is prejudicial per se. (Pate v. Robinson (1966) 383 U.S. 375.) 62. In addition, it is at least reasonably probable that a more favorable result would have been obtained but for counsel’s unprofessional Page -299- errors. (Strickland v. Washington (1984) 466 U.S. 668.) Petitioner’s behaviorat the time of the crime wasaffected by his neurological damage due to chemical exposure, and this evidence would have supported defenses to guilt. The facts set forth above are also powerful evidence in mitigation, and would have providedthejury with a compellingbasis for returninga life sentence. 63. Counsel’s failure to investigate deprived petitioner’s mental health experts of adequate data and social history information t9 present to thejury to prove that petitioner had suffered throughouthis life from organic brain damage. This evidence would have provided defense counsel with the essential component missing from their case— a cogent and credible mental defense which at a minimum would have defeated the prosecution’s contention that petitioner premeditated and deliberated the crimes. In addition, this testimony would have explainedto the jury petitioner’s bizarre outbursts, permitted the defense to portray him in a more sympatheticlight, and mitigated the prejudice which resulted from petitioner’s impulsive behavior in the courtroom. 64. Counsel’s failure to adequately investigate and present a coherent mental defense was also prejudicial because the prosecutor exploited the lack of evidence ofmental illness or impairmentin his closing argumentsat the guilt and penalty phases, on whichthejury relied in reaching their verdicts. At the conclusionofthe guilt phase, the prosecutor argued on the basis of his cross-examination ofpetitioner during the guilt phase that petitioner was “not delusional” (RT 5520), but was instead “rational and clear” (RT 5564-5564, 5567.) At the conclusion of the penalty phase, the prosecutor also exploited the lack of persuasive mental health evidence, Page -300- ridiculing the defense mental health experts and arguing that “Mr. Welch would have to have an IQ of two and by a zombie to excusehis acts by a mental defense.” (RT 6123.) D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually ___and/orcollectively,hadsubstantialinjuriouseffect_orin== determining the jury’s verdict. Claim 24: Ineffective Assistance of Counsel--Failure to Move for a Private Psychiatric Examination of Petitioner A. Petitioner’s conviction and sentence of death are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, 16, and 17 of the California Constitution because he wasdeprivedofthe effective assistance of counsel duringthepretrial, guilt, penalty, and sentencing phasesofhis trial when his trial counsel unprofessionally and inexplicably failed to move for a psychiatric examination of petitioner by a defense psychiatrist under circumstances in which petitioner would have been assured of the confidentiality of the interview. Counsel’s failure to do so deprived petitioner of his federal and state constitutional rights to the assistance of counsel, confrontation, due processoflaw, a fair and reliable determination ofguilt and penalty,trial only when mentally competent, a determination by a tribunal ofmental competence,trial by an unbiasedtribunal, anda fairtrial. Page -301- B. The following United States Supreme Court decisions, inter alia, in effect at the time the errors occurred, are presented in support ofthis claim: Powell v. Alabama (1932) 287 U.S. 45 (indigent capital defendant hasright to have effective counsel appointed and to be heard through counsel); McMannv.Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showing that counsel’sacts fell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome;theseprinciples apply equally to guilt and sentencing phases ofcapital trial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendmentviolated, and prejudice need not be shown,if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing); Hill v. Lockhart (1985) 474 U.S. 52 (Strickland standardsapply to representation providedpriorto trial, such as during plea proceedings); Dusky v. United States (1960) 362 U.S. 402 (defendantis incompetentto standtrial if he lacks “sufficient present ability to consult with his lawyer with a reasonable degree ofrational understanding”or“a rational as well as factual understanding ofthe proceedings against him”) Pate v. Robinson (1966) 383 U.S. 375 (failure to observe procedures designedto assure defendantwill not be tried or convicted while incompetentviolates due process andrightto fair trial); Drope v. Missouri (1975) 420 U.S. 162 (defendant’s conductafter arraignment, such as conduct in court or in jail, may trigger competency proceedings); Ake v. Oklahoma (1985) 470 U.S. 68 (defendantentitled to Page -302- expert assistance, including mental health expert assistance, to prepare for and testify at trial); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantrightto directly confront adversarial evidence; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Gardnerv. Florida, 430 U.S. 439 (1977) (due process violation in capital proceeding where _____ ____..______ petitionerse tenced_onbasis unreliable information);Beckv.Alabama————________— (1980) 447 U.S. 625 (Eighth Amendmentalso requires heightenedreliability in guilt determination in capital cases); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right). C. The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiaryhearing,are presented in support of this claim: 1. Petitioner incorporates by referenceasif fully set forth herein all the facts and law alleged in Claims 2 through 5, 18, 19, and 20. 2. Counsel were aware that petitioner repeatedly requested appointment of defense psychiatric experts to determine his competence to stand trial and assist the defense at the guilt and penalty phases. (RT 68-69, 2054, 3723-3730, 3733.) Counsel was also awarethat petitioner declined to speak with the court-appointed psychiatrist, Dr. Joseph Satten, or discuss defense mental health experts on the grounds that the conditions under which the interviews were conductedat the jail were not private and therefore the confidentiality of these communications wasnot assured. (RT 67-69, 2054, 3723-3730, 3733, 5921, 6009-6010.) Counsel were also aware that these concerns were legitimate. Counsel themselves noted on the record that Page -303- deputies stood immediately outside the doors of the interview room and looked in the window to monitorthe interview, over the objections of both petitioner and mental health experts. (RT 3723-3727.) Counsel werealso aware that petitioner’s papers were repeatedly searched by the sheriff’s department and that he was continually harassed by sheriff's deputies. (RT 791-795, 940-941, 3060-3063, 3704-3707.) Accordingly, it was incompetent of counsel to fail to move for appointment of an independent defense psychiatric expert to evaluate petitioner’s competence, and/or to movefor an order requiring that evaluation and interviewsbyother defense mental health experts be conducted in private so that the confidentiality of the interviews could be assured. 3. It is at least reasonably probable that a more favorable result would have been obtained but for counsel’s unprofessional errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, (1984) 466 U.S.at p. 668, 694.) Counsel’s unprofessionalerrors were profoundlyprejudicial. Because the privacy of the evaluations was not assured, the Court’s expert was prevented from evaluating petitioners competence and the defense mental health experts were also hindered in the efforts to assess his competence. Instead, guilt phase, defense counsel chose to present an expert who had never examined or even metpetitioner (RT 5388-5389) and therefore had no information or opinion regarding his mental state-a fact the prosecutor exploited at length in his closing argument. (RT 5520-5521.) These defense experts were unable to settle on a coherent psychiatric diagnosis, and instead offered alternative differential diagnoses. (RT 5921, 5936-5938, 6050-6051.) This failure created an obvious and extraordinarily damaging weaknessin the Page -304- defense case, because questions regarding petitioner’s mental state were critical both to the guilt and penalty phase outcomes. Moreover, the prosecutor exploited this weaknessat length in his closing arguments at both phases, subjected the defense mental health expertsto ridicule. (RT 6123- 6136.) Accordingly, counsel’s unprofessionalerrors in failing to request defense experts and private interview conditions so prejudiced petitioner’s case as to alter the outcome, andrelief is required. 7 4. Counsel had nostrategic reason for their failure to seek further psychiatric expert assistance or request private conditions interview condition. (Exhibit 30, Declaration of SpencerStrellis) D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or FourteenthAmendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 25: Ineffective Assistance of Counsel--Failure to Challenge Loss or Destruction of Forensic Evidence A. Petitioner’s conviction and sentence of death violate the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution becausetrial counsel performed ineffectively by failing to challenge, by means of a Trombetta or Youngblood motion, the prosecution’s loss or destruction of crucial forensic evidence. Counsel’s unprofessional errors violated Page -305- petitioner’s rightsto a fair trial, due process of law, the effective assistance of counsel, and therightto reliable capital proceedings and sentencing. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Powell v. Alabama (1932) 287 U.S. 45 (indigent capital defendanthasright to have effective counsel appointed and to be heard through counsel); McMannv.Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showing that counsel’sacts fell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome; these principles apply equally to guilt and sentencing phasesofcapital trial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendment violated, and prejudice need not be shown, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed when counsel labors under conflict of interest); California v. Trombetta (1984) 467 U.S. 479; Arizona v. Youngblood (1988) 488 U.S. 51 (bad faith destruction ofmaterial evidence by prosecution); Ake v. Oklahoma (1985) 470 U.S. 68 (defendantentitled to expert assistance, including mental health expert assistance, to prepare for and testify attrial); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly confront adversarial evidence; Gardnerv. Florida Page -306- (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentencedon basisofunreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequireshigher degree ofscrutiny in capital proceedings); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created right); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (jury to determine sentencing factors). C. The following facts, among others, to be presented after adequate funding, discovery, investigation, and an evidentiaryhearing are presented in support ofthis claim: 1. Petitioner incorporatesasiffully set forth herein all facts and law set forth in Claims8 and 24. 2. Counsel performed inadequatelyin failing to investigate, cross- examine, andimpeachprosecution witnesses and/orpresent defense witnesses regarding the prosecution’s bad faith suppression, destruction, tampering, and/or failure to preserve crucial forensic evidence favorableto the defense. 3. As set forth in more detail in Claims 8 and 24, which are incorporated by reference herein, the prosecution and the Oakland Police Departmentacted in bad faith in suppressing, destroying, tampering with, and/or failing to preserve blood samples taken from petitioner at the time of his admission to Highland Hospital. Because of the circumstances of the crimes andother facts ofwhich police were aware, the exculpatory nature of the evidence wasapparent before its destruction, and it was apparentthat petitioner would have been unable to obtain this crucial evidence by other meansif the evidence wasdestroyed bythe police. Page -307- 4. Underfederal and state law, both today andatthe timeoftrial, the bad faith destruction or failure to preserve evidence under these circumstancesconstitutes a due processviolation. (California v. Trombetta, supra, 467 U.S. 479; Arizona v. Youngblood, supra, 488 U.S. 51; Peoplev. Hitch (1974) 12 Cal.3d 641.) It is incumbent upon defense counsel to investigate and challenge bad faith conduct by state actors and to seek sanctions, up to andincludingdismissalofthe charges, for destructionofthis evidence. Sucha challenge, commonlyknown asa Trombetta or Youngblood motion,or, in California, as a Hitch/Trombetta motion, should be brought priorto trial. (See, e.g., Cal. Criminal Law and Procedure (5Ed. 2000) §11.24, California Continuing Education of the Bar.) . 5. Trial counsel wasineffective in failing to make this motion prior to trial. Such a motion would have been meritorious and would haveresulted in either outright dismissal with prejudice, or, at a minimum, appropriate sanctionssuchas limiting the charged offenses to manslaughter or second- degree murder. Counsel also should have objected on Brady and prosecutorial misconduct grounds. 6. It is at least reasonably probable that the outcome would have been more favorable to petitioner but for counsel’s unprofessionalerror. (Strickland v. Washington, supra, 466 U.S. 668.) A reasonable probability is a probability sufficient to undermine confidencein the outcome, but need notrise to the level ofa preponderanceofthe evidence. (/bid.) As set forth in more detail in Claims 8 and 24, the lack of a quantitative analysis of petitioner’s blood eliminated a potent voluntary intoxication defense and rendered the presentation of his expert witness, Dr. Fred Rosenthal, ineffectual. The lack of this analysis not only deprived petitioner of a Page -308- voluntary intoxication defense and persuasive mitigation evidence, but also permitted the prosecutorto argue that petitioner had not been impaired by drugsor alcoholat the time ofthe offense. The prosecutor capitalized on the lack ofa quantitative analysis throughouthis closing arguments atthe guilt and penalty phases. This tactic obviously worked, resulting in verdicts of first degree premeditated murderon all six counts— verdicts that would have ___ _________ beenimpossible had petitioner been shown to be unconscious due to - voluntary intoxication. (People v. Graham (1969) 71 Cal.2d 303, 316-317.) D. Each oftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution,individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 26: Ineffective Assistance ofCounsel--Jury Selection Proceedings A. Petitioner’s conviction and sentence of death violate the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution becausetrial counsel performed ineffectively during the jury selection phaseofthetrial, thereby prejudicing petitioner’s defense at both the guilt and penalty phases of the trial. Specifically, counsel performed ineffectively in failing to competently voir dire prospective jurors regarding exposure to both prejudicial pretrial publicity and/or prejudicial comments emanating from another prospectivejuror (who providedotherjurors with manydetails ofthe case.) Counsel also performed incompetently by failing to object when the Page -309- trial judge excused four prospective jurors who were not “automatic life” jurors and whostated on voir dire they could have voted to impose death. Counsel performed incompetently by failing to object whenthetrial judge, sua sponte, took time andeffort to “rehabilitate” prospectivejurors who were clearly “automatic death” jurors (one such prospective juror wasSeated and voted to sentencepetitioner to death.) The unconstitutional excusing ofthe jurors andthe partial and unreliable context within whichthesejudicial errors occurredviolated petitioner’s rights to the effective assistance of counsel, a fair trial, due process, an impartial tribunal, a trial judge who was unbiased and conducted the proceedingsnotonlywith fairness,but also an appearance of fairness,andreliable capital proceedings and sentencing. B. The following United States Supreme Court decisions,inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Powell v. Alabama (1932) 287 U.S. 45 (indigent capital defendant hasright to have effective counsel appointed and to be heard through counsel); McMannv. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showing that counsel’sacts fell outside the range ofreasonable competence, coupled with showing ofprejudice, compels reversal; prejudice shown if there isa reasonable probability, less than a preponderance, that counsel’s errors affected the outcome;theseprinciples apply equally to guilt and sentencing phasesofcapital trial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendmentviolated, and prejudice need not be shown, if counsel Page -310- entirely fails to subject the prosecution's case to meaningful adversarial testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed when counsellabors underconflict ofinterest); Hill v. Lockhart (1985) 474 U.S. 52 (Strickland standardsapplyto representation providedpriorto trial, such as during plea proceedings); Wainwright v. Witt (1985) 469 U.S. 424 and Witherspoon v. Illinois (1968) 391 U.S. 510 (automatic-lifeand automatic-death jurors may be excludedbased on their views); Irvin v. Dowd (1959) 359 U.S. 394 (pretrial publicity can so prejudice a panelthatthejurors voir dire responsesthat they can be impartial cannot be believed); Chandler v. Florida (1981) 449 U.S. 560 (highly publicized criminaltrial presents risk of compromising rightto fair trial); Patton v. Yount (1984) 467 U.S. 1025 (same); Shepard v. Maxwell (1966) 384 U.S. 333 (same); Rideau v. Louisiana (1963) 373 U.S. 723 (prejudice presumeddueto crucialpretrial publicity); Estes v. Texas (1965) 381 U.S. 532 (prejudice presumed wheresignificant media on court proceedings during trial); Caldwell v. Mississippi (1985) 472 U.S. 320 (prosecutorial misconduct); Mattox v. United States (1892) 146 U.S. 40 (fundamentalright to impartial jury): United States v. Burr (1807) 25 Fed. Cas. 25, no. 14,692b CCD.Va. (fundamentalrightto fair and impartialtribunal); In re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Gardner v. Florida 430 U.S. 439 (1977) (due processviolation in capital proceeding where petitioner sentenced on basis of unreliable information); Beck v. Alabama (1980) 447 U.S. 625 (Eighth Amendmentalso requires heightened reliability in guilt determination in capital cases); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-createdright). Page -311- C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presentedin support of this claim: 1. Petitioner herebyincorporatesasiffully set forth herein the facts and law setforth in Claims 38, 40, 52, 53, and78. 2. Althoughtrial counsel were awarethatpretrial publicity in this case was extensive and highly prejudicial, and that the jury pool was overwhelmingly and negatively influenced by media coverage, counsel performedineffectively in failing to adequately voir dire prospective jurors with regard to their exposureto pretrial publicity. 3. Prior to petitioner’s trial, he requested a change of venue. (RT 993.) This motion was renewedafter voir dire ofthe prospective jurors. (RT 3715, 3717.) Thetrial court denied the motion, finding that petitioner could get a fair trial in Alameda County. (RT 1051, 3717.) 4. Petitioner introduced the testimony of Joie B. Hubbert, venue specialist, who testified that 65 percent of the eligible jury in Alameda County recognized the case, and 78 percent of these polled individuals prejudgedthe petitioneras guilty. (RT 998, 1007, 1009, 1011, 1015.) Of those who were aware of the case and who read Alameda County, San Francisco or San Jose newspapers,91 percent prejudgedpetitioneras guilty. (RT 1011.) The venuespecialist found that the approximately 80 percent prejudgmentrate was amongthehighest in all her cases. (RT 1037.) 5. Indenying the motion to change venuethe court recognizedthat there was “sensationalism” to the nature and extent of news coverage, “particularly in the last six months.” (RT 1049-1050.) Despite these admissions,thetrial judge held the nature and extent of news coverage was Page -312- not inflammatory, Alameda County wasa large county, and the status of petitioner and victims wasnot such to warrant a change ofvenue. (RT 1049- 1051.) With respectto the final factor, the court reasoned,“I’m not trying to belittle the lives of these people taken, but they really do not fall into that status ofthe victim they’re concerned about.” RT 1050. The court reviewed the materials of the jury venue expert andstated: “Frankly, I am impressed — — withtherecognitionfactor withthatdoesme.”The— ——-——_—___- court reasoned that the venue expert did not concludethat petitioner could notget a fair trial. However, as she expressly stated in her testimony,her role of the expert, as that of all venue experts, was not to form a specific conclusion butrather to conducta scientific survey which wouldset forth the facts upon which the venue decision should reasonably be predicated. (RT 1009-1015.) 6. On this basis, the court denied the motion for a change ofvenue. The court, however, informed defense counsel it was possible that the motion would be renewed after voir dire. Significantly, the court expressly and explicitly informed counsel and petitioner as to what the court’s conduct would be during this voir dire: However, at some point we are going to conductthe voirdire ofjurors. AndIthinkprobably aproper question at least in part would be what extent, ifany, publicity has upon them; and I will ask that question to them. (RT 1051, emphasis added.) Notwithstandingthetrial judge’s express representation, this crucial issue was not fully explored. In fact, of the 82 jurors who subsequently qualified on voirdire, the trial judge asked only two ifthey had heard or read anything about the case. (RT 1070, 2998.) Page -313- 7. In spite of the fact trial counsel was aware ofthis background prior to the commencementof voir dire, counsel consistently failed to adequately inquire whetherjurors had been influenced by anything they read or heard about the case. Counsel’s error was compounded whenit was learned during jury selection one of the prospective jurors, who had read extensively aboutthe case, freely discussed the facts and her opinions about the case with other prospective jurors. Prospective juror John Banducci revealed during his voir dire questioning that one of the other jurors had explained to him and one other juror, a schoolteacher, “whatever went on regarding the house and everything and the gentleman cominginto the home with an Uzi machine gun.” (RT 1295.) Banducci had heard aboutthe case on television, and the juror with whom he spoke obviously knew much more than he did. Counsel performedineffectively in not immediately calling for a hearing regarding the extent to which the jury pool had been exposed to prejudicial information from the jurororjurors in question. Moreover, even after this discovery, counsel consistently failed to adequately inquire on voir dire into the impactofpretrial publicity and the dissemination ofinformation among the prospective jurors. (RT 1292-1304.) 8. When counsel made inquiries into media exposure, counsel usually let the matter drop after a single question. For example, counsel asked juror Grace Estarija whether she had “heard anything aboutthis case, read anything in the newspapersor anything?” Estarija said no, and counsel dropped the matter. Counsel failed to inquire into radio andtelevision exposure, the methods by which a majority of people get their news. (RT 1070.) Page -314- 9. Counsel’s voir dire ofjuror Virgie Williams on media exposure was also wholly inadequate. Counsel asked no questions about what newspapersorotherpublications Williams read, whattelevision programsshe watched, what radio programs or Stations she listened to, or whether she had heard any otherjurors discussing the case during the voir dire process. (RT 2335.) Counsel simply relied on Williams’initial statement that she had not _ aboutthecase.ss oe 10. Similarly, counsel failed to inquire adequately into juror Joanna Gonzales’ knowledge of the case. Gonzales’ only comment onthe subject was “I don’t rememberit.” (RT 2424.) However, she then added, “I may have and just ...” (RT 2426, emphasis added.) In spite of this ambiguous response, counsel failed to ask any further questions about Gonzales’ television, radio, or newspaper habits and also failed to inquire whether Gonzalez received any information from other jurors. (RT 2419-2432.) 11. During the voir dire ofjuror David Larson, Larson revealedthat he had “a dim recollection at the time ofhearing a radio, a radio report about the killings.” (RT 2544.) In spite ofthis revelation, counsel madeno further inquiries into exactly what the juror had heard, whether he read the newspapers or watchedtelevision, what his reading and media habits were, or whether he had heard any information aboutthe case from other jurors. (RT 2544-2547.) 12. Inthe case ofjuror Sally Jessie, counsel asked only whether she had “heard anything” about the case before coming into court two weeks previously. Jessie said no. (RT 2553.) Counselagain failed to pursuethis answer with more specific questioning about newspapers,television, radio, and exposure to information passed on by other jurors and other sources. Page -315- Counsel’s omission wasparticularly egregiousin this case in light ofthe fact that Jessie was a long-time paralegal employedbya law firm and waslikely to have been exposedto legal newspapers and magazines and the inevitable office chat that accompaniesa notoriouscase. 13. Equally remarkable was counsel’s failure to inquire in detail aboutpretrial publicity in the case ofjuror Joseph Cruz. Cruz revealedthat he had read about the case in the papers before he came to court. When asked whether he had read anything in the last two weeks,he said “there hasn’t been any” coverage. (RT 2668.) Cruz told counselthat he read the Oakland Tribune. Counsel’sfailure to ask morespecifically what Cruz knew about the case wasextraordinary in view ofthe fact that Cruz was a regular reader of Oakland’s only daily newspaper, a newspaper which hadcarried numerouslurid stories about the case. 14. Counsel’s performancein the voir dire ofjuror Howard McGee wasalso inadequate, both because of counsel’s inadequate questioning on McGee’s exposure to media and information from otherjurors, and because McGeesostrongly favored the death penalty he should have been excused on the basis of his views, yet counsel failed to so move. (RT 2779-2780, 2783.) 15. Shortly after the voir dire ofMcGee, counsel again learned that members of the jury pool had disseminated information about the case to other prospectivejurors with potentially devastating effect. Prospectivejuror Etta Goins informed the court and counselthat onthe first day she attended court with the other 90jurors in her group, she walkedto the parking lot with one ofthe otherprospectivejurors and asked whenthe killings in the case had occurred. The otherjuror informedherthatthe killings took place in 1987 in Page -316- East Oakland, and “the guy” had killed two children and four adults. (RT 2837.) Once again, counselfailed to movefora hearing to determine whether the entire pool of which Ms. Goins was a member had been prejudiced by extrinsic information. More remarkably, counsel continuedto fail to inquire about contacts with other jurors in subsequentvoirdire. 16. Moments later, in the voir dire of alternate juror Sandra Williams, Ms. Williams revealed that she had also been exposed to information transmitted by anotherjuror, who had read aboutthe case in the papers, recalled that the incidents occurred in 1987, and knew that “there were murders and children involved.” (RT 2865-2866.) Counselstill made no motion to further investigate the degree of prejudice arising from the extrinsic information presented by otherjurors. 17. Subsequently, prospectivejuror RaymondVelascotestified that a few of the jurors had talked about whatthey had readin the paper. (RT 3151.) Counsel was by now aware of evidence that numerous jurors had overheard others talking about the case and what they had read in the newspapersbefore coming to court. However, counselstill failed to movefor an evidentiary hearing or further investigation on the issue. 18. Later, prospective juror Yao Zhutestified that “I just feel that I’ve seen the person somewhere before.” (RT 3222.) She furtherstated,“I mean a lot of other people have seen him too. Maybeit was on TV, but I don’t knowthe person.” (RT 3221-3222.) Incredibly, counsel’s reaction to this statement was simply, “Okay.” (RT 3222.) Counselfailed to inquire further regarding whatthisjuror recalled aboutthe case, whatthe otherjurors had said or seen, how manyother jurors had been discussing the case, or whenthese discussions took place. Page -317- 19. It is at least reasonably probable that a more favorable result would have been obtainedbut for counsel’sdeficient performanceduring the Jury selection proceedings. (Strickland v. Washington, supra, 466 U.S.at p. 668.) The prejudicial impact from counsel’s deficient performance became apparent when the court took up the change ofvenue motion, on whichit had deferred ruling until after the conclusionofthe voir dire process. Counsel’s failure to question the witnesses regarding their exposure to pretrial media accounts permitted the prosecutor to ridicule as “fatally flawed” the jury expert’s conclusion regarding the large percentage of people who were familiar with the case and had prejudgedpetitioner guilty. The prosecutor pointed out that only a small percentage ofthe jury poolactually recognized the case. The judge also noted that he had counted only 29 jurors out ofthe total pool of 284 jurors who stated that they had somerecollection of the case. (RT 3714-3715.) The court then pronounceditself“satisfied beyond any doubt”that the case wasnot“affected by adverse publicity.” (RT 3717.) 20. In fact, the low number ofjurors who recognized the caseis attributable not to the jurors’ lack of interest in current affairs, as the court appearedto believe (RT 3715), but rather to counsel’s inadequate voirdire. Counsel maynot simply ask if a juror has “heard anything” about a case and rely upon a juror’s negative response. It is commonplace for jurors to honestly believe they have never heard about a case only to discoverlater that they were familiar with many ofthe most prejudicial details and simply forgot them over time. Accordingly,it is incumbent upon counselto inquire in depth on voir dire into the media habits of each individual juror to determine whetherthejuror has been exposedto sensational media accounts. Page -318- 21. As this Court has stated, “{I]n an antagonistic atmosphere interior‘there will remain the problem ofobtaining accurate answers on voir dire — is the jury consciously or subconsciously harboring prejudice against the accusedresulting from widespread newscoveragein the community?’” (Main v. Superior Court (1968) 68 Cal.3d 375, 380.) Even whenall selected jurors claim the ability to sit impartially, such a claim is, of course, not conclusive. _. _ Questioned on voir dire as to the effect of the media’s evidentiary disclosures, one prospective juror may deny or admit prejudgment. One mayfalsely deny both knowledge andprejudice for the sake ofa place on the jury. An honest juror may admit knowledgeortentative prejudgmentandfind himselfexcluded. Manywill sincerely try to set aside their preconceptions and give assurance of impartiality, yet unconsciouslybendto the influenceofinitialiimpressionsgained from the news media. . . Authoritative decisions now recognizethe lack of realism inherentin expectations that jurors can insulate their verdict frominadmissible knowledge. Whenprejudicial publicity has been injected into jurors’ consciousness, the courts do notgive dispositive effect to jurors’ assurances of impartiality. To expect a juror to confess prejudice is not always a reliable practice. A juror can be completely honest in denying prejudice. In the words of Alexander Pope, “All looks yellow to thejaundiced eye.’ In addition, there is the dangerin anywell publicized case that the very process ofvoirdire, withits repeated questions aboutpublicity andprejudice,will tend to prejudice thejury. Listening to otherjurors’ comments andobserving the widespread press and community involvement in the case, the jurors are likely to develop a bias even if they did not harbor one before the commencementofvoir dire. (Corona v. Superior Court (1972) 24 Cal.App.3d 872,881.) 22. Counsel’s failure to inquire aboutpretrial media exposure or information obtained from other jurors was not motivated by anytactical Page -319- concerns. Indeed, on a few occasions, counsel did ask whether jurors had read aboutthe case in the newspapers and, if so, which newspapers. (See, e.g., RT 2166.) Counsel was capable of performing competently, but in a majority of instances during this voir dire, failed to do so through inadvertence, lack of preparation, or indolence. Asa result, petitioner was deprived ofhis constitutionalrights to effective assistance ofcounsel and an impartial jury, and relief must be granted. 23. Counsel performed ineffectively by waiting until well into the voir dire process to request jurors be admonished notto discuss, read about, or otherwise be exposed to media accounts about the case. (RT 1502.) Petitioner hereby incorporatesas iffully set further herein the laws and facts set fourth by Claim 38. 24. Althoughthepetitioner is African-American, counsel failed to ask questions designedto assess the viewsofindividualjurors, particularly white jurors, regarding race issues. Counsel did inquire of an African- Americanjuror whetherthatjuror would makedecisionson the merits or on the basis of race. (RT 1519-1520.) Accordingly, counsel had notactical reason for asking such questionsofwhite jurors. Counsel’s performancein this regard not only constituted ineffective assistance but also contributed to tensions between counselandpetitioner and deprivedpetitionerofa fair and impartial jury. 25. It is at least reasonably probable that a more favorable verdict would have been obtained but for counsel’s deficient performancein failing to inquire regardingracial viewsduringjury selection proceedings. Empirical evidence showsthat race is a significant factor in Alameda County death penalty prosecutions and convictions. Page -320- 26. Statistics compiled by the California DepartmentofCorrections demonstrate a marked disparity in the numberand proportion of African- Americans convicted and sentenced to death in Alameda County. As of January 1, 2001, there were 35 inmates on Death Row in California as a result of convictions and death sentences imposed in the Alameda County Superior Court. Ofthose 35 inmates, 18 were African-Americans, 11 were Caucasians,three wereHispanic,was NativeAmerican,two_were. listed as “Other.” (Exhibit 42, California CDC Condemned Inmate List, January 2001, Alameda County.) Thus, 51.4% ofall persons sentenced to death in Alameda County and currently awaiting execution are African- Americans. However, according to statistics compiled by the California Department of Finance based upon data from the 2000 census, African- Americans comprise only 18% of the population of Alameda County. (Exhibit 41, Alameda County Race/Ethnic Report.) Thus, Alameda County juries, in combination with the charging and trying practices ofthe Alameda County District Attorney’s office, have imposed death sentences upon African-American defendants at a rate more than three times higher than would be expected based upon the percentage of African-Americans in the county. Accordingly, it was incumbent upon counsel to be particularly attuned to indications of racial bias amongthe jurors undergoing voirdire. Instead, counsel asked no questions designed to developthis issue. D. Eachoftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Page -321- Claim 27: Ineffective Assistance of Counsel — Failure to Competently Confront and Respondto Prosecution Case in Aggravation. A. Petitioner’s conviction and sentence of death violate the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 7, 15, 16 and 17 ofthe California Constitution becausehis trial counsel performedineffectively during the penalty phase ofpetitioner’s trial in failing to competently confront and respondto the prosecution’s case in aggravation. Counsel’s unprofessional errors violated petitioner’s rights to a fair trial, due process of law, confrontation, the effective assistance of counsel, an impartialjury,trial only while competent, the rightto a trialjudge who was unbiased and conducted the proceedingsnotonly with fairness but also with an appearance of fairness, and the right to reliable capital proceeding and sentence. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Powell v. Alabama (1932) 287 U.S. 45 (indigent capital defendanthasright to have effective counsel appointed and to be heard through counsel); McMann vy.Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showing that counsel’sacts fell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome;these principles apply equally to guilt and sentencing Page -322- phasesofcapital trial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendmentviolated, and prejudice need not be shown, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed when counsellabors under conflict of interest); (Dusky v. United States (1960) 362 U.S. 402 (defendant is incompetentto standtrial __ _. _if helacks “sufficient. present abilityto consultwith hislawyer witha reasonable degreeofrational understanding”or “a rational as well as factual understanding ofthe proceedings against him”) Pate v. Robinson (1966) 383 U.S. 375 (failure to observe procedures designed to assure defendantwill not be tried or convicted while incompetentviolates due process and rightto fair trial); Drope v. Missouri (1975) 420 U.S. 162 (defendant’s conduct after arraignment, such as conduct in court or in jail, may trigger competency proceedings); Ake v. Oklahoma (1985) 470 U.S. 68 (defendantentitled to expert assistance, including mental health expert assistance, to prepare for and testify at trial); Estelle v. Williams (1976) 425 U.S. 501; In re Murchison, (1955) 349 U.S. 133 (due process mandates impartial judge — both actual impartiality and appearance of impartiality constitutional violation); Mayberry v. Pennsylvania, (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conduct during trial has left personal stings); Berger v. United States, (1921) 255 U.S. 22 (constitutional mandate prescribing all judicial bias); Tumey v. Ohio, (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas, (1965) 380 U.S. 400 (confrontation clause providescriminal defendant right to directly confront adversarial evidence; Gardnerv. Florida, (1977) 430 U.S. 439 (due processviolation in capital proceeding wherepetitioner Page -323- sentenced onbasis of unreliable information); Godfrey v. Georgia, (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degreeofscrutinyin capital proceedings); Taylor v. Kentucky (1978) 436 U.S. 478 (cumulative effect of errors may violate due process); Hicks v. Oklahoma, (1979) 447 U.S. 343 (federal due processclaim in state-created right); and including Apprendi v. New Jersey, (2000) 530 U.S. 466. | C. The following facts, among others, are presented in support ofthis claim, after adequate funding, discovery, investigation, and an evidentiary hearing: 1. Petitioner incorporatesbyreferenceasiffully set forth herein the facts and law setforth in Claims 2 through 5 and 9 through 24.) 2. Counsel performed deficiently in failing to adequately investigate, cross-examine, or impeachprosecutionwitnesses throughout the penalty phase. Specifically, counsel failed to ask any of the prosecution witnesses questions designedtoelicit information about petitioner’s mental state or reputation for mentalillness during the incidents used in aggravation. Althoughpetitioner had a reputation throughoutthe criminal justice system in Alameda County for being mentallyill (Exhibit 6, Declaration ofThomas Broome), and although many ofthe prosecution’s witnesses were law enforcementofficers in the county, counselfailed to investigate or interview these witnesses, ascertain their knowledgeofpetitioner’s mentalillness, or ask any questions regardingpetitioner’s confused, delusional mental state during any of the incidents to which these witnessestestified. Counsel’s unprofessional and deficient performance allowed a parade ofprejudicial, Page -324- violent conduct to go unchallenged and unexplained, to the overwhelming prejudice of petitioner’s case. 3. For example, counsel failed to investigate, interview or competently cross-examine Oakland Police Officer Rosemary Dixon, who testified that petitioner had verbally abused herat the counter ofthe records departmentofthe Oakland Police main station, and then assaulted her as she _ ___. __..___attempted_to_apprehend_him._Oncross-examination,-counsel_asked-the - witness to repeat all of the most prejudicial facts already elicited by the prosecutor without ever inquiring about petitioner’s perseveration, impulsivity, paranoia, persecutory symptoms, or any other characteristic consistent with his mental impairments. (RT 5688-5701.) In fact, counsel actually elicited information harmfulto petitioner, not onlyreemphasizing the violenceofthe alleged attack on Dixonbutalso permitting the witness to add the unhelpful allegation that petitioner was “using profanity throughout”the incident. (RT 5700.) 4. Counsel also failed to investigate, interview, or competently cross-examine prosecution witness Juanell Turner, a formergirlfriend of petitioner, whom theprosecutoralleged had been sodomizedbypetitioner in 1980 petitioner. (RT 5702-5703.) Turner was a reluctant witness for the prosecution whostated she did not rememberpetitioner ever giving her an ultimatum about having sex with him. (RT 5705.) Petitioner objected that Turner had consented to have sex with him, and Turner herself did not contradict him but continued toinsist that she did not remember what had happenedten years earlier. (RT 5710.) Therefore, the prosecutor waslimited to reading questionsand answersfrom her testimonyat a preliminaryhearing held nine years earlier. (RT 5710-5719.) Page -325- 5. Although Turner wasplainly sympathetic to petitioner and, on the basis ofher previous romantic relationship with petitioner, would have been able to provide substantial, credible mitigating evidence regardingpetitioner’s long-standing mental illness, counsel was unable to ask these questions because they had made noeffort to interview her in advanceoftrial. Petitioner’s counsel therefore was left to resort to the preliminary hearing transcript from 1980,just as the prosecutor had done,to establish that Turner had been asked whetherpetitioner was crazy and hadreplied, “Um-hum. A woman beater.” (RT 5719.) Obviously,thisill-prepared, thoughtless attempt to introduce evidence ofpetitioner’s mental illness through Turner’sprior testimonywashardlymitigating. Since the prosecutorhad not introduced any evidence that petitioner had beaten Turner, her testimony— elicited by petitioner’s own counsel— prejudiced petitioner’s case. 6. Similarly, petitioner’s counselfailed to investigate, interview, or competentlyor cross-examine prosecution witness Faye McPhersonregarding the incident in whichpetitioner as ajuvenile allegedly fired a shotgun into a window of her home. Counselfailed to elicit mitigating testimony from McPherson regarding petitioner’s delusional mental state. Counsel’s omission is particularly inexplicable in view of the fact that McPherson’s testimony makesit clear that she had knownpetitioner for eleven years and wasfondofhim,testified for the prosecution only reluctantly, and actually soughtto help petitioner. (See, e.g., RT 5731-5732, 5736.) Moreover,as they had done with RosemaryDixon, counsel’s cross-examination ofthis witness only made matters worse,eliciting such damaging information as whether or not the witness knewthat petitioner “was going around bashinginhisfather’s car [windows].” (RT 5737.) Onceagain, instead of mitigating the alleged Page -326- offense, counsel’s inept performanceactually resulted in the introduction of additional aggravating evidence. 7. Petitioner’s counsel also performed incompetently in failing to | investigate, interview or competently cross-examine San Francisco Police Officers Daniel McDonaghandJeffreyLindbergh and HighwayPatrol Officer Robert Barbero. Theseofficers testified for the prosecution regarding an . — alleged -high-speed_pursuit_of petitioner_as_herod _his_motorcycleonthe——-——. ——_. —— freeway and in the neighborhood of San Bruno and Silver Avenues in San Francisco in 1979, when petitioner was twenty years old. Once again, counselfailed to ask any questions regarding petitioner’s mental state at the time ofthe incident, in spite of the fact that petitioner appeared to havefled the police in terror over what was nothing more than a potential speeding ticket, and even though Lindberghtestified that petitioner’s actionsat the time “didn’t seem to makea lot ofsense.” (RT 5767.) With respect to McDonagh, counsel’s entire inept cross-examination consisted ofthree questions which merely asked the officer to repeat his damaging direct testimony that petitioner had led police on a 15-minute, high-speed chase. Counsel asked whether the chase had been “reminiscent ofsomething you see in the movie (sic), like, one ofthese things.” (RT 5759.) Whenthe witness answeredthat the chase wasnotlike a movie because “‘you don’t now howit is going to end,” counsel actually endorsed this prejudicial remark, stating “That is correct, that is correct,” and mercifully ended his cross-examination. (RT 5759.) In the case of Lindbergh, counsel’s brief cross-examination, which covers half a page of transcript, emphasized that it had taken four police officers and, apparently, a kick to the groin to subdue petitioner— hardly helpful information for the defense. (RT 5767.) In the case of Barbero, Page -327- counsel simply had the witness repeat his damaging testimony and sat down. (RT 5896-5899.) 8. Had counsel conducted an adequate investigation, counsel would have discovered that the foregoing incident resulted from and was a manifestation of petitioner’s profound paranoia and persecutory delusions. Petitioner’s childhood friend and neighbor, Billy Williams, could have described forthe juryanotherclosely similar incident in whichpetitioner was riding his motorcycle, saw police officers approaching, and wassoafraid of them that he leaped from the moving motorcycle and ran away. Thepolice, who knewpetitioner previously, were not chasing or looking for him, but instead laughed as he ran awayandcalled a tow-truck for his motorcycle. Williams, who knew petitioner well, knew that this incident was simply a result ofpetitioner’s paranoid delusions. Petitioner’s counselwasineffective in failing to investigate, discover, and present this evidence in mitigation. (Exhibit 36, Declaration of Billy Williams.) 9. Counsel’s failure to investigate, interview, or competently cross- examine Deputy Sheriff Jack Cessna was also deficient. Cessna related details ofan alleged fight between petitioner anda cellmate in 1985. Counsel again asked no questions going to petitioner’s mentalstate or illness, asked the odd and unhelpful question whether the deputy would characterize what he had seen as “‘a fight between two inmates,” and had no further questions. (RT 5777.) As the witness was about to leave the stand, counselfinally asked a helpful question and elicited the answer that did not know which inmate hadstarted the fight. (RT 5777.) Thefact that this questioning came as an afterthought after the witness had been excused demonstrates counsel’s sloth and lack of preparation. Page -328- 11. Counsel similarly failed to investigate, interview, or competentlycross-examine Deputy SheriffRaymond Bernauer, whotestified that petitioner had been involvedin a fight while locked in the back of a van with other prisoners while being transported from North County Jail to the main jail in Santa Rita. Once again, counselfailed to ask any questions regarding petitioner’s delusional mental state at the time of this incident, emphasizedthatpetitioner was“on topoftheotherfellow,”andelicitedonly =§== = st that Bernauer did not know whostarted the fight. (RT 5788.) 12. Counselalso failed to investigate, interview, or competently cross-examine Deputy Charles Utvick, whotestified regarding an incident which occurred in North County Jail on December17, 1987, more than a year after the killings for which petitioner was on trial. (RT 5789.) In the incident, as related by Deputy Utvick,petitioner waslate getting ready to go to court, was orderedout of his cell by another deputy, attacked Deputy Utvick, and was then restrained by four deputies. Counsel’s cross- examination once again consisted of having the witness repeat all of the details pertaining to petitioner’s alleged obstreperous and violent behavior and concluded, ineptly, with the question “And so far as you can tell there was no reason whatsoeverfor this behavior.” (RT 5801.) 13. Counsel not only failed to ask questions designedto elicit information aboutpetitioner’s delusional, paranoid mentalstate, butfailed to investigate or present evidence throughor in response to this witness, and other jail personnel presented as prosecution witnesses, regarding the harassmentandmistreatmentpetitioner receivedin thejail while awaitingtrial and the wayin whichthis mistreatmentcontributedto his deteriorating mental state. These appalling conditions havebeenset forth in more detail in Claim Page -329- 5, which petitionerincorporatesas iffully set forth herein. Instead, counsel’s questioning, andtheparticularly prejudicial final question,left the jury with the impression that petitioner’s violent behavior was simply inexplicable. 14. Counsel similarly performed deficiently during the cross- examination of San Quentin Prison Correctional Sergeant AnthonyDarryl Lee, whotestified that petitioner assaulted him in 1982 after Leestrip- searchedpetitioner in preparation to transport him from a holdingcell to the visiting room. Counsel again failed to investigate or ask any questions regarding petitioner’s delusional mental state apart from a single question designedto elicit the answerthat petitioner was in a bad mood. (RT 5826.) Counselalso performed ineffectively in failing to object to the prosecutor’s questioning of this witness regarding the prison’s supposed inability to discipline prisoners with life without parole sentences who assault guards— a thinly veiled attempt to introduce evidenceofpetitioner’s supposed future dangerousness. (RT 5833.) At a minimum,petitioner should have repaired the damage by using redirect examination of this witness to point out that prisoners who assault guardsare placed in administrative segregation, aharsh and bleak existence. 15. Counsel performed ineffectively in failing to investigate, interview, or adequately cross-examine San Quentin Prison Guard Sam Luzadas, whotestified that he was present in 1982 whenpetitioner assaulted his wife, Terry Welch, during a prison visit. Again, counsel elicited no information regarding petitioner’s delusional mentalstate at the time of the incident, but instead asked the prejudicial question whetheris wastrue that petitioner“for no reason at all” assaulted his wife. (RT 5848.) Once again, petitioner’s counselleft thejurywith the impressionthatpetitioner’s behavior Page -330- was inexplicable. Counselalso failed to adequately investigate this incident and did not even bother to interview petitioner’s wife to see whether there wasavailable mitigation evidence which could have been presented. 16. Counsel performed ineffectively in failing to investigate, interview, or competently cross-examine San Quentin prison guard Steve Lawrence, whotestified that petitioner once spat in his face following an _.informal disciplinaryhearing.5859.)Onceagaincounselfailedtoask =. -— — - - any questionsregarding petitioner’s delusional, persecutorymentalstate, and again counselfailed to respond to the prosecutor’s thinly veiled questioning regarding future dangerousness with objections or contrary evidence explaining the true conditions under which life-without-parole inmateslive. (RT 5852-5857.) 17. Counsel also performedineffectively in failing to investigate, interview, or competently cross-examine Soledad Prison guard Roy Wade Gowin, whotestified that while petitioner was being held in the Secure Housing Unit at Soledad in 19 , he threw fecal matter from hiscell toilet at Gowin andlater struck Gowin with the free end ofa pair ofhandcuffs which were cuffed to his wrist. (RT 5876-5879.) Counsel once againfailed to ask any questions aboutpetitioner’s delusional, persecutory mentalstate. 18. Counsel’s also performed ineffectively in failing to investigate, interview, and competently cross-examination former Deputy Sheriff Harry Lord, whotestified that he and petitioner had gotten into a fight at the old Alameda County Jail in Santa Rita known as “Greystone.” Although Lord hadtestified that the incident was set off when petitioner responded to an innocuous and apparently friendly greeting with an obviously paranoid, suspicious, and delusional response, counsel asked no questions aimed at Page -331- uncovering information regarding petitioner’s mental state or persecutory delusions. (RT 5909.) 19. Although the prosecution had used its own witnesses to suggest that if given a sentenceoflife without parole petitioner would be pampered with a life of “television, canteen, and cosmetics” and other privileges (RT 5833), and that he would be protected by federal law from any discipline evenifhe assaulted guards, defense counsel failed to present any competing evidenceto explain to the jury that a life without parole sentence isin fact a brutal, harsh, and unremitting punishment. Counsel failed to present any expert witness regarding the conditions ofconfinement petitioner would have faced if given an LWOPsentence,or the effects such a sentence would be likely to have on a person with his mental impairments andillnesses. (T. Kupers, Prison Madness, supra; Exhibit 40, Special Report re Mental Health and Treatment ofInmates and Probationers, July 1999.) In failing to present this evidence, petitioner’s counsel were woefully ineffective and failed to subject the prosecution’s case to a meaningful adversarial testing. 20. But for counsel’s unprofessionalerrors in failing to confront the prosecution’s case in aggravation,it is at least reasonably probable that a more favorable penalty verdict would have been obtained by the defense. (Strickland v. Washington (1984) 466 U.S. 668.) Someofthe prejudice from counsel’s ineffectivenessin failing to confront the prosecution penaltyphase case has been discussed above. However, any doubt with respect to the question ofprejudice is resolved by reference to the prosecutor’s argument, which focused extensively on the parade of aggravating evidence the prosecutor had presented andthe failure of the defense to respondto that evidence. Page -332- 21. The prosecutor opened his argument by noting that the jury could consider in aggravation the “presence or absence ofcriminal activity by the defendant other than the crimes for which he stands convicted and which involve the use or attempted use of force and violence.” (RT 6114.) The prosecutor also noted that the jury could consider the “presence or absenceofanyprior felony convictionsother than the crimes for which he has _.. — — ____.___beentriedconvictedfor(sic)proceeding.”(RT6114.)He. - - then remarkedthat “You got him for nine. He hasthree priors which I have provide by the court documentsin this particular phase ofthe trial.” (RT 6114.) 22. The prosecutor then specifically pointedto the three prior felony convictions:“the attacks on Deputy HarryLord and RosemaryDixon,andthe third was receiving stolen property.” (RT 6117.) He then maintainedthat “We’ve proven many, many other crimes of violence committed by the defendant.” The prosecutor pointed to the shotgun fired into Faye McPherson’s house,noting that petitioner had been only 16 at the time—a fact the prosecutor seemed to view as aggravating. He then described the motorcycle chase incident involving Officer Barbero, and the assault on Rosemary Dixon,the prison assault on petitioner’s wife. (RT 6117-6118.) 23. The prosecutor reservedspecial vitriol for the Gowin incident. Finally, we’ve proved the utterly vulgar and disgusting attack on Correctional Officer RoyGowin, whogota facefull ofthe defendant’s liquid feces and then wasstruck with handcuffs in the head while he wasat Soledad in addition to being bitten by him on the kidneyarea. We’ve also heard testimony during the particular trial the defendant liked to urinate in the well and urinate in the fitting room at J.C. Penney’s when apprehendedforshoplifting. Isn’t it real cute? See how he handleshis waste products. Page -333- (RT 6118.) 24. The prosecutor then listed the “six other batteries on peace officers— Officer McDonagh,Inspector Lindbergh, Deputy Utvick, Sergeant AnthonyLee, and Captain Lawrence.” (RT 6118.) He then wentinto detail recanting the alleged battery of petitioner’s wife and the Juanell Turner incident. (RT 6118-6119.) Finally, the prosecutor noted that “‘we’ve also proven three other batteries, to juvenile counselor Mark Johnson and two other inmatesthat the defendant workedoverastestified to by deputy sheriffs Jack Cessna and Ray Bernauer. (RT 6122.) 25. The prosecutor summed upthis portion of his argument by contending that on the basis of the evidence in aggravation the jury could concludethat petitioner was “a true sociopath.” (RT 6122.) He stated that “the real issue here” wasthat: ... this horrible person has earned the death penalty. And for you not to give him death is to jeopardize the health and safety ofany guards,visitors, social workers, inmatesor clergy who may comeint o contact with him ifheis given life without the possibility of parole. (RT 6137.) 26. The prosecutor further argued at length on the basis of the evidencein aggravationthat petitioner would always pose a dangerto others in prison if he were permittedto live. You give him life without parole and every time he goes to the yard for exercise, you give him life without parole, every time he is escorted to the shower or to have a visit you. are going to have hundreds of Harry Lords and Roy Gowins. Do you want that on your conscience? Page -334- A viciouskiller of six who is dangerousto this day, even by both his witnesses. Who hates authority figures. Whowill comeinto contact with guards and othersfor the rest ofhis life ifyou give him that benefit, if you excuse his conduct and not give him the death penalty. There will be hundreds and more DeputyLordswith brokenribs and hundreds morecorrectional officer Gowins with feces in the face and split skulls. Death Rowisthe only place for him and in your hearts you knowthatis true. (RT 6139-6140.) 27. In view ofthe prosecutor’s heavy reliance on the aggravating evidence, counsel’s deficient performance in failing to cross-examine, challenge, or respond to the testimony of these witnesses madeit at least reasonably probablethata life verdict would have resulted but for counsel’s incompetence. D. Eachoftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict Claim 28: Ineffective Assistance of Counsel — Pretrial Proceedings A. Petitioner’s conviction and sentenceofdeath are violations ofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and article I, sections 7, 15, 16 and 17 ofthe California Constitution because trial counsel performedineffectively throughoutthe pretrial phaseofthe case. In addition to counsel’s other pretrial errors already alleged in this section, Page -335- counsel failed to object to judicial or government misconduct, failed to object to improper expert questioning, failed to move to strike special circumstances, failed to make an adequaterecord,andfailed to object to and evenparticipated in ex parte proceedingsduringthepretrial phase ofthe case. Counsel’s unprofessionalerrors violated petitioner’s rights to the effective assistance ofcounsel,a fairtrial, a fair and impartial jury, due process,right to confrontwitnesses and evidence against him,the rightto trialjudge who was unbiased and conducted the proceedings with not only fairness but an appearance offairness,andtheright to fair and reliable capital proceedings and a fair and reliable sentence. B. The following United States Supreme Court decisions, interalia, in effect at the time the error occurred,are presented in support ofthis claim: Powell v. Alabama (1932) 287 U.S. 45 (indigentcapital defendanthasright to have effective counsel appointed and to be heard through counsel); McMannv. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showing that counsel’s acts fell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome;these principles apply equally to guilt and sentencing phasesof capital trial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendmentviolated, and prejudice need not be shown, if counsel entirely fails to subject the prosecution's case to meaningful adversarial Page -336- testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed when counsellabors underconflict of interest); Hill v. Lockhart (1985) 414 U.S. 52 (Strickland standards apply to representation provided prior to trial, such as during plea proceedings); Faretta v. California (1975) 422 U.S. 806 (criminal defendant has constitutionally protected right under Sixth and FourteenthAmendmentsto waive counsel and - represent himself);McKasklev. Wiggins(1984)465 U.S.168(constitutional. — — ——— — right to selfrepresentation); Dusky v. United States (1960) 362 U.S. 402 (per curiam) (standard of competencyfor pleading guilty is same as competency for standingtrial); and see Godinez v. Moran (1993) 509 U.S. 389; Caldwell v. Mississippi (1985) 472 U.S. 320 (prosecutorial misconduct); Pate v. Robinson (1966) 383 U.S. 375 (failure to observe procedures designed to assure defendantwill not be tried or convicted while incompetentviolates due process and right to fair trial); Drope v. Missouri (1975) 420 U.S. 162 (defendant’s conduct after arraignment, such as conductin court orin jail, maytrigger competency proceedings); Ake v. Oklahoma (1985) 470 U.S. 68 (defendant entitled to expert assistance, including mental health expert assistance, to preparefor andtestify at trial); Mattox v. United States (1892) 146 U.S. 40 (fundamentalright to impartial jury): United States v. Burr, (1807) 25 Fed. Cas. 25, no. 14,692b CCD.Va. (fundamental right to fair and impartial tribunal); Jn re Murchison, (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Eddings v. Oklahoma (1982) 455 U.S. 104 (jury mustconsider all relevant mitigating evidence in a capital case); Skipper v. South Carolina (1986) 476 U.S. 1 (sentencershal] not be precluded from considering as a mitigating factor, any aspect of defendant’s character or record and any circumstancesofoffense Page -337- proffered); Griffin v. Illinois (1956) 351 U.S. 12 (due process guarantees criminal appellant a record of proceedings adequate to permit effective appellate review); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentenced on basis of unreliable information); Beck v. Alabama (1980) 447 U.S. 625 (Eighth Amendmentalso requires heightenedreliability in guilt determination in capital cases); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); and including Apprendi v. New Jersey (2000) 530 U.S. 466. | C. The following facts, among others, are presented in support of this claim, together with others to be developed after adequate funding, discovery, investigation, and an evidentiary hearing: 1. Petitioner incorporatesasif fully set forth herein the facts and law set forth in Claims 2 through 5, 18 through 23, and 61. 2. Petitioner made a Faretta motion prior to trial and the court foundthat petitioner was competentto standtrial. However,the court stated an incorrect legal principle upon which it based its ruling on petitioner’s Faretta motion: The question the Court has to decide is whether the defendant has the mental capacity to waive his constitutional right to counsel without a realization of the probable risks and the consequencesofhis action. The ability to waive must further be deemed to embody some minimal ability to present a personal competent defense. Ifunable to present such effective defense the defendant would lack capacityto stand trial without benefit of counsel even though the Court finds, and this Court does find, that he is capable of actually standingtrial. Page -338- (RT 75.) 3. The foregoing statement wasincorrect as a matter of law. The standard for competence to stand trial is the same as the standard for competenceto represent oneselfat trial. (Dusky v. United States (1960) 362 U.S. 402; People v. Welch (1999) 20 Cal.4th 701.) In failing to object to this incorrect statement oflaw, counsel were ineffective. Counsel weresimilarly ineffective whentheyfailed to objectto the court’srulingthatpetitioner was not competent to represent himself. (RT 79-86.) It is at least reasonably probable that a more favorable outcome would have been obtained but for counsel’s unprofessional errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694.) Had counsel objected, requested a hearing on the issue, and briefed the matter, the court would not have ruled improperly or unilaterally imposed on the defense an unprecedented form of hybrid representation whichlayat the heart ofthe majority ofthe othererrors which occurredattrial. 4. Counsel also performed incompetently in failing to request a continuance, adequately investigate, or object when the court reviewedpapers petitioner had submitted in a pending civil matter and announced that petitioner“is well able to present his case withoutthe assistance ofcounsel.” (RT 762-763.) Counsel should have pointed out the irreconcilable inconsistency between this ruling and the court’s earlier ruling finding petitioner incompetent to represent himself. Counsel’s deficiency in this respect prejudiced petitioners case and deprived him ofhis rightto self- representation. It is at least reasonably probable that a more favorable outcome would have been obtained but for counsel’s unprofessional errors. Page -339- (Strickland v. Washington (1984) 466 U.S. 668, 694.) Had the inconsistency been broughtto the court’s attentionit is at least reasonablyprobable that the trial court would have held a competence hearing or permitted petitioner to proceed as his own counsel. Either way, petitioner would not have been subjected to trial while incompetent or the bizarre system of hybrid representation inflicted upon the defense bythetrial court. 5. Counsel also performed ineffectively in failing to object to judicial misconduct and bias whenthe court refused to rule on petitioner’s oral motion fora continuancebystating that “No oral motions are accepted in this court.” (RT 97.) In fact, the court continued to accept and ruleon oral motions throughout thepretrial, guilt, penalty, and post-trial phases of the case. It is at least reasonably probable that a more favorable outcome would have been obtained but for counsel’s unprofessionalerrorin failing to object to this ruling. (Strickland v. Washington (1984) 466 U.S. 668, 694.) Counsel’s ineffectiveness in failing to object to this improperruling andits inconsistent enforcementcontributed to the tensions betweenpetitioner and the court and betweenpetitioner and his counsel and exacerbated the chaos resulting from the court’s hybrid representation decision. 6. Counsel also performedineffectively in failing to move for a continuance or investigate more fully petitioner’s treatment in the jail, particularly whenpetitioner objected to the lack ofadequate medical care he receivedin the jail. (RT 578-579, 643-645.) A continuance was required to permit an investigation into petitioner’s treatment, and to secure him proper medical attention. It is at least reasonably probable that a more favorable outcome would have been obtained but for counsel’s unprofessionalerror in failing to investigate or move for a continuance.(Strickland v. Washington Page -340- (1984) 466 U.S. 668, 694.) As set forth in more detail in Claim, petitioner’s medical condition and treatment in jail undermined his competence and contributed to his deteriorating mentalstate throughoutthetrial? Moreover, counsel’s failure to take action to alleviate the problem contributed to the chaosin the defense brought about bythe court’s hybrid representation ruling. 7. Similarly, counsel performedineffectivelybyfailingtorequest __ acontinuance, investigate, and objectto the prison’s continuing imposition of illegal disciplinary diets on petitioner. Counsel stood back and permitted petitionerto litigate this issue himself instead oftaking the lead. (RT 640- 641.) It is at least reasonably probable that a more favorable outcome would have been obtained butfor counsel’s unprofessionalerrorin failing to object, investigate, ormove for a continuance.(Strickland v. Washington (1984) 466 U.S. 668, 694.) Asset forth more fully in Claims, whichare incorporated by reference asif fully set forth herein, this error contributed to the tensions between petitioner and his counsel brought on by the hybrid representation ruling, and also contributedto petitioner’s deteriorating mentalstate. 8. Counsel performeddeficiently in failing to request a continuance, adequately investigate, and object to the harassmentofpetitioner by inmate Michael Willis, a sheriff's trustee and informantincarceratedin the county jail, who contacted the homicide victims’ family members in an apparent attempt to prejudice petitioner’s case.It is at least reasonably probablethat a more favorable outcome would have been obtained but for counsel’s unprofessional error in failing to object, investigate, or move for a continuance.(Strickland v. Washington (1984) 466 U.S. 668, 694.) Willis’ activities contributed to petitioner’s deteriorating mental state and lack of Page -341- competence, and counsel’s failure to take action to alleviate the problem contributed to the chaos in the defense brought about by the court’s hybrid representation ruling. (RT 647.) 9. Counsel performed deficiently in failing to request a continuance, adequately investigate, and object to governmental misconduct when counsel learned that the sheriff's department was going through and rearranging petitioner’s legal papersin his cell while he was in court. (RT 791-795.) At a minimum, counsel should have requested that petitioner be housed in a different unit due to the harassment andunfair treatmenthereceivedin the jail. Counsel’s failure was compounded whenfurther searchesofpetitioner’s legal materials were conducted the following day, despite the court’s order not to conduct such searches. (RT 940-941.) It is at least reasonably probable that a more favorable outcome would have been obtained but for counsel’s unprofessionalerrorin failing to object, investigate or move for a continuance. (Strickland v. Washington (1984) 466 U.S. 668, 694.) Counsel’s failure to act in petitioner’s behalfprejudiced his case and contributed both to the chaoswithin the defense broughton bythe hybrid representation ruling and to petitioner’s deteriorating mentalstate. 10. Counsel wasineffective in failing to moveto strike special circumstances, abdicatingtheir role to petitioner, who wasleft to file his own motion. Counsel should have investigated, researched, prepared, andfiled a motion for this purpose. Because the court ruled on a motion prepared by a person previously ruled to be incompetent, counsel’s failure deprived petitionernot only ofhis right to effective assistance of counsel, but also his rights to due processoflaw,a reliable determinationofguilt and penalty, and a fair trial. It is also at least reasonably probable that a more favorable Page -342- outcome would have been obtainedbut for counsel’s unprofessional error in failing to object, investigate, research, prepare and ormovefor acontinuance to strike special circumstances. (Strickland v. Washington (1984) 466 U.S. 668, 694.) Counsel’s failure to act on petitioner’s behalfprejudiced his case and contributed both to the chaoswithin the defense brought on bythe hybrid representation ruling andto petitioner’s deteriorating mentalstate. 11. Forthe reasonsset forth in Claim, counsel performeddeficiently whentheyacquiesced and failed to object to the court’s improperrestrictions with respect to the definitions of aggravating and mitigating circumstances. Counsel had notactical purpose for this failing because they themselves questioned the propriety of the court’s ruling. It is at least reasonably probable that a more favorable outcome would have been obtained but for counsel’s unprofessionalerrorin failing to object . (Strickland v. Washington (1984) 466 U.S. 668, 694.) For reasons set forth more fully in Claim 61, which petitioner incorporates by reference as if fully set forth herein, counsel’s ineffectiveness in this regard resulted in the jury receiving an inaccurate and improper explanation oncritical legal principles. 12. Petitioner’s counsel performed deficiently in failing to make a record ofobsceneverbalabuseinflicted uponpetitioner by the prosecutor on April 6, 1989. (RT 3157-3158, 3171.) It is at least reasonably probable that a more favorable outcome would have been obtained but for counsel’s unprofessionalerrorin failing to makethis record. (Strickland v. Washington (1984) 466 U.S. 668, 694.) Counsel’s failure to make a record of the appalling language used by the prosecutor deprived petitioner of a reversal for prosecutorial misconduct. Page -343- 13. In addition, as set forth in more detail in Claims 28 and 51, whichpetitioner incorporates by referenceasiffully set forth herein, counsel similarly performed deficiently in failing to make an adequate record during the pretrial phase, participating in ex parte proceedingsin a capital case, and failing to object to ex parte proceedings counsel knew or suspected were taking place between the court and the prosecutor. (Exhibit 30, Declaration of Spencer Strellis; see also, Exhibit 6, Declaration of Thomas Broome; Exhibit 7, Declaration of Robert Cross.) It is at least reasonably probable that a more favorable outcome would have been obtained but for counsel’s unprofessional error in failing to make an adequate record. (Stricklandv. Washington (1984) 466 U.S. 668, 694.) Counsel’s deficient performance in this regard was prejudicial for the reasons set forth in more detail in Claim. 14. Finally, if no individual error ofcounsel set forth in this section and in the incorporated claims is sufficient to compel relief, petitioner submits that the cumulative effect of these errors constituted ineffective assistance of counsel which resulted in prejudice to his case because those errors, taken together, deprived petitioner of a fair and impartial jury,trial only while competent, effective assistance of counsel, due process, equal protection, and a reliable determination of guilt and penalty. (Taylorv. Kentucky (1978) 436 U.S. 478 [cumulative effect of errors may violate due process]; Mak v. Blodgett (9" Cir. 1992) 970 F.2d 614, 622.) [same] It is at least reasonably probable that a more favorable outcome would have been obtained but for the cumulative effect of counsel’s unprofessional errors during the pretrial phase. (Strickland v. Washington (1984) 466 U.S. 668, 694.) Page -344- D. Eachoftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution,individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 29: Ineffective Assistance of Counsel--Guilt Phase Errors A. Petitioner’s conviction and sentence of death violate the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution because his trial counsel performedineffectively during the guilt phase ofpetitioner’strial in numerousrespects. Counsel’s unprofessionalerrors violated petitioner’s rightsto a fair trial, due process of law, the effective assistance of counsel, trial only while competent, an impartialjury, the rightto a trialjudge who was unbiased and conducted the proceedingsnot only with fairness but also with an appearanceoffairness, and the right to reliable capital proceedings and sentencing. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support of this claim: Powell v. Alabama (1932) 287 U.S. 45 (indigent capital defendanthasright to have effective counsel appointed and to be heard through counsel); McMann vy.Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counsel is right to effective assistance of counsel); Strickland y. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showing that Page -345- counsel’s acts fell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome; these principles apply equally to guilt and sentencing phasesofcapital trial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendmentviolated, and prejudice need not be shown,if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed whencounsellabors underconflict of interest); Dusky v. United States (1960) 362 U.S. 402 (defendantis incompetentto standtrial if he lacks “sufficient present ability to consult with his lawyer with a reasonable degree ofrational understanding”or “a rational as well as factual understanding ofthe proceedingsagainst him.”) Pate v. Robinson (1966) 383 U.S. 375 (failure to observe procedures designedto assure defendantwill not be tried or convicted while incompetentviolates due process andrightto fair trial); Drope v. Missouri (1975) 420 U.S. 162 (defendant’s conduct after arraignment, such as conduct in court or in jail, may trigger competency proceedings); Ake v. Oklahoma (1985) 470 U.S. 68 (defendant entitled to expert assistance, including mental health expert assistance, to prepare forand testify at trial); Estelle v. Williams (1976) 425 U.S. 501; In re Murchison (1955) 349 U.S. 133 (due process mandates impartial judge — both actual impartiality and appearance of impartiality constitutional violation); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conduct duringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate prescribing all judicial bias); Tumey v. Ohio Page -346- (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointerv. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly confront adversarial evidence; Gardnerv. F.lorida, (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentenced on basis ofunreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Hicks v. Oklahoma(1979)-447 US. 343(federaldue process claim in state-created right); Taylor v. Kentucky (1978) 436 U.S. 478 (cumulative effect of errors may violate due process); and Apprendi v. New Jersey (2000) 530 U.S. 466. C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support ofthis claim: 1. Petitioner incorporatesasiffully set forth herein all facts and law set forth in Claims1, 8 through 17, 25, 37 through 40, and 56 through65. 2. Counselfailed to competently investigate, cross-examine, or impeach prosecution witnesses on a numberof crucial issues, particularly those issuesrelated to petitioner’s mental state. As set forth in more detail in Claims 1 and 21, counselfailed to cross-examine and impeach numerous prosecution witnesses-- including Barbara Mabrey (RT 4402-4403), Stacey Mabrey (RT 4186-4187), Leslie Morgan (RT 4488), Angela Payton (RT 4555-4559), and Beverly Jermany (RT 4782-4783, 4790-4805)-- regarding changesin theirprevious statements ortestimonyas to whetherpetitionerwas or had a reputation for being an abuser of drugsor alcohol, mentally ill or “ce 9crazy. Page -347- 3. Counselwasalso deficient in failing to elicit in more detail from these witnesses regarding petitioner’s conductorreputation for conduct which wasconsistent with his severe frontal lobe deficits, including but notlimited to his memory problems, perseveration, impulsivity, delusions, and other symptomsof frontal lobe impairments. Counsel also failed to adequately investigate, cross-examine, or impeach these witnesses regarding their character for truthfulnessor their ability to perceive and accuratelyrelate incidents they claimed to have seen. 4. Counsel’s failures in this regard were particularly prejudicial in view ofthe fact that the prosecutor specifically relied on this testimony to arguethat petitioner was not drunk or on drugsat the time ofthe killings. (RT 5558-5559; see People v. Woodard (1979) 23 Cal.3d 329, 341 (prosecutor’s reliance on erroneously admitted evidence in argument demonstrates prejudice of error).) Moreover, the jury heavily relied upon this testimony. Their reliance is aptly demonstrated by the fact that the jury requested that the testimony ofAngela Payton, Barbara Mabrey, and Leslie Morgan be read back during guilt phase deliberations. (RT 5629-5631, 5640-5641; see People v. Williams (1971) 22 Cal.App.3d 34, 38-40 (request for read-back indicative of close case and prejudice).) Accordingly, it is at least reasonably probable that a more favorable result would have been obtained but for counsel’s unprofessional errors in cross-examining and impeaching these witnesses. A reasonable probability is a probability sufficient to undermine confidencein the outcome.(Strickland v. Washington, supra, 466 USS.at p., 694.) 5. Lead counsel also performed incompetently in his opening statement, a woeful performance occupyingless than two pagesoftranscript Page -348- in which counsel began bystating “I’m not very goodat this” and proceeded to apologizeforhis client and for the shocking pictures whichthejury would have to view. (RT 3885-3887.) Counselimplicitly argued against his client, thereby prejudicing petitioner’s case. (People v. Williams (1997) 16 Cal.4th 153, 265 (argument which concedes guilt, withdrawsa crucial defense, or relies on illegal defense is ineffective and requires reversal).) It is at least --feasonably probablethat a more favorableresultwould havebeenreached—— ———— but for counsel’s unprofessional concession of guilt. (Strickland v. Washington, supra, 466 U.S.at p. 694.) 6. Counsel performed inadequatelyin failing to object to, request a continuance, conduct voir dire, and investigate the fact that jurors were asleep during substantial portions of the guilt phase trial. (RT 4361.) Counsel’s error deprivedpetitionerofa reliable determination of guilt and penalty as well as the rightto a trial byjury, an impartialjury, anda fairtrial. (Cf. United States v. Springfield (1987) 829 F.2d 860, 864 (sleeping juror doesn’t require reversal ifjuror missed only insubstantial portion of trial).) It is at least reasonably probable that a more favorable result would have been reached but for counsel’s unprofessional failure to object on these grounds andrequestahearing to determinethe portionsofthetrial the jurors missed. (Strickland v. Washington, supra, 466 U.S.at p. 694.) 7. Counsel performed ineffectively in failing to investigate or providetheir expert witness, Dr. Fred Rosenthal, with adequate information. Counsel failed to prepare Dr. Rosenthal for adequate testimony, or adequately examine him with regard to petitioner’s mentalstate. Although petitioner suffers from extraordinary and debilitating organic impairments, counselfailed to investigate, discover, or provide this expert with adequate Page -349- information to permit him to discoverthis fact. Additionally, counsel failed to competently prepare or examine Dr. Rosenthal regarding the interaction betweenpetitioner’s organic impairments and other mentalillnesses on the one hand,and the combination ofalcohol, morphine, and cocaine, which was foundin his system upon admission to Highland Hospital only hoursafter the incident. The evidence which counsel should have discovered and presented through this witnessis set forth in detail in Exhibit 1, Declaration ofKaren Froming, Ph.D., whichpetitioner incorporates byreference asiffully set forth herein. . 8. Dr. Rosenthaltestified that he had never examined or spoken to petitioner and knew only generally about the case. (RT 5388-5389.) Thus, the only information he offered was aboutthe effects ofdrugs and alcohol on people generally, which he could not apply to petitioner because the defense had no information regarding the quantities ofthese substancesin petitioner’s system at the time of the killings or the nature and extent of his mental impairments. Poor preparationofthis witnessalso resulted in an exceedingly poor explanation for the jury of brain functions, an incomprehensible and apparently facetious explanation ofthe distinction between mindandbrain, and an inadequate and ineffective explanation of how any of the Dr. Rosenthal’s testimony related to petitioner or his conduct. Counsel also performedineffectively in asking the witness several questions about a case in which the witness hadtestified withoutfirst acquainting the witness with the case by showing hima transcript, resulting in the witness stating he did not recall testifying in the case at all. This error demonstrates that counsel failed to review with the witness whathis testimony wasto coverin advance. Page -350- 9. It is at least reasonably probable that a more favorable result would have been reached but for counsel’s unprofessional failure to investigate, provide this witness with information, prepare thiswitness to testify, and examine this witness during the guilt phase. (Strickland v. Washington, supra, 466 U.S.at p. 694.) Theerrors in counsel’s performance in connection with this witness were especially prejudicial in light ofthe fact at length in his argument to the jury. (RT 5519-5520; see People v. Woodard, supra, 23 Cal.3d at p. 341.) 10. Counsel failed to adequately object to pervasive prosecutorial misconduct in closing argumentor to obtain a sufficient remedy for the misconduct. Counsel did not object during the closing argumentitself, but waited until after thejury had departed until they objected to the argumentas an appeal to passion and prejudice. (RT 5600.) Although the court gave a passion andprejudice instruction,it did not go to the procescutor’s argument and wasthereforeinsufficientto vitiate the error. (RT 5571-5572. Moreover, counseldid not object to a variety of other misconduct in argument, such as the prosecutor’s introduction offacts not in evidence to explain the presence of alcohol, cocaine, and morphinein petitioner’s system shortly after the killings. (RT 5521.) A complete discussion of the misconduct in the prosecutor’s argument to which counsel should have objected, and the prejudice resulting from that argument, is set forth in Claims 9 through 14. For the reasonsset forth in that claim, it is at least reasonably probable that a more favorable result would have been reached but for counsel’s unprofessional failure to object to the prosecutor’s egregious misconduct in arguent. (Strickland v. Washington, supra, 466 U.S.at p. 694.) Page -351- 11. Counsel failed to competently representpetitioner in connection with jury instructionsat the guilt phase. Counsel did not request or obtain instructions on voluntary manslaughteras a lesser included offense in all six counts, even though petitioner himself requested such instructions. (RT 5602.) Counsel also failed to object to numerousinstructional errors committed by the court. Furthermore, councel failed to make a record ofthe jury instruction conference. These errors and the prejudice resulting from them havebeenset forth in greater detail in Claims 35, 43, 56 through 65. Counsel’s unprofessional errors deprived petitioner of due process, an impartial jury, and a reliable determination of guilt and penalty. For the reasonsset forth in the foregoingclaims,it is at least reasonably probablethat a more favorable result would have been obtained but for counsel’s unprofessionalerrors in failing to request proper instructions or object to improper ones. (Strickland v. Washington, supra, 466 U.S.at p. 694.) 12. Counsel failed to object to judicial bias expressed in the presence of the jury. For example, counsel did not object when the court instructedthejury that petitioner“refused to obey” the court’s directions and that this was“upsetting to the court.” (RT 5572.) Counsel’s failure to object was prejudicial for the reasons set forth in Claim 57. The court berated petitioner in front of the jury at other points during the guilt phase without objection from counsel, oncetelling petitioner“You have someunderstanding at some point in yourlife. Now just bestill.” (RT 56528.) Counsel’s unprofessionalerrors deprivedpetitioner ofhis rightto trial before a tribunal which wasimpartial and hadthe appearanceofimpartiality. For the reasons set forth in the foregoingclaim,it is at least reasonably probable that a more favorable result would have been obtained but for counsel’s unprofessional Page -352- errors in failing to request proper instructions or object to improper ones. (Strickland v. Washington, supra, 466 U.S.at p. 694.) 13. Counsel further performed abysmally during a closing argument that wasineffective from start to finish. For example, counselentirely failed to explain that petitioner’s behavior wasnot underhis own volition or control and even suggested that his behavior was beyond understanding,stating, “My -—_—.—— —~¢hent-is-a-gentleman-who,for-whatever-reason, does-not-evoke warm and sympathetic feelings and that stuff.” (RT 5535.) Counsel rambled on aimlessly at times,at one point telling the jury a pointless, irrelevant story about how he had cooked hamburgers and hot dogsfor a child’s swim meet over the preceding weekend and how important this kind of effort was in instilling values in the young. 14. Counsel wasso ill-prepared for his closing argument that he could not even keep the namesof his own expert witnessesstraight, at one point calling a forensic expert “Dr. Rogers”until co-counsel corrected him, explaining that the doctor’s last name was “Herrmann.” Counsel’s flippant response was “Herrmann. What the hell. One pathologist is just like another.” (RT 5539.) Momentslater, counsel again forgot the doctor’s name, this time calling him “Hymer,” until co-counsel again corrected him. (RT 5540-5541.) 15. Counsel’s closing argumentwasso deficientthat he periodically appearedto be arguing against his ownclient and undercutting his own case for a reduced form or degree ofhomicide. For instance, counsel stated “It’s fairly clear what we have here is a madman, and I’m nottalking in legal terms.” (RT 5545.) Counsel’s explanation ofhow petitioner’s intoxication affected his culpability was incredibly ineffective: Page -353- Now,myclient, the evidence shows, may well have had somealcoholic beverages. He may well have had somedrugs. So what about those? The judgeis goingto tell you,I don’t like it but this is what the judgeis going totell you so hangin with me for another few minutes and J’1l shut up and youwill be done with me, hopefully, but listen to this because it is important... (RT 5546-5547.) 16. It is at least reasonably probable that a more favorableresult would have been obtained but for counsel’s unprofessional errors in closing argument. (Stricklandv. Washington, supra, 466 U.S.at p. 694.) 17. Counsel’s ineffectivenessinthe guilt phase was exacerbated by counsel’s ineffectiveness in the pretrial phase, which carried over to and infected the jury’s guilt phase determination. Specific instances and the prejudice resulting from them— particularly counsel’s unprofessional errors in failing to object to hybrid representation or request a competence determination at specific points during the guilt phase--are set forth in more detail in Claims 18 through 33, which are incorporatedbyreferenceasiffully set forth herein.It is at least reasonably probable that a more favorableresult would have been obtained but for counsel’s unprofessionalerrors set forth in the above referenced claims. (Strickland v. Washington, supra, 466 U.S.at p. 694.) 18. To the extent that any of counsel’s unprofessional errors during the guilt phase were notprejudicial individually, these errors, in combination with all other such errors occurring duringthe guilt phase, were prejudicial in their cumulative effect. (Taylor v. Kentucky, supra, 436 U.S. at p. 478 (cumulative effect of errors may violate due process); Mak v. Blodgett (9* Cir. 1992) 970 F.2d 614, 622.) Page -354- D. Eachoftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution,individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 30: Ineffective Assistance of Counsel--Deficient Performance Throughout the Penalty Phase A. Petitioner’s conviction and sentence of death violate the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution because his trial counsel performedineffectively during the penalty phaseofpetitioner’s trial in numerous respects. Counsel’s unprofessional errors violated petitioner’s rights to a fair trial, due process of law, confrontation, the effective assistance ofcounsel,trial only while competent, an impartial jury,| the right to a trialjudge who wasunbiased and conductedthe proceedingsnot only with fairness but also with an appearanceof fairness, and the right to reliable capital proceedings and sentencing. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Powell v. Alabama (1932) 287 U.S. 45 (indigent capital defendanthas right _ to have effective counsel appointed and to be heard through counsel); McMannv. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showing that Page -355- counsel’sactsfell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome; these principles apply equally to guilt and sentencing phasesofcapital trial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendmentviolated, and prejudice need not be shown,if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing); Cuyler v. Sullivan (1980) 446 U.S.335 (prejudice from ineffective assistance presumed when counsellabors underconflict of interest); Dusky v. United States (1960) 362 U.S. 402 (defendantis incompetentto standtrial if he lacks “sufficient present ability to consult with his lawyer with a reasonable degree ofrational understanding”or“a rationalas well as factual understanding ofthe proceedings against him”) Pate v. Robinson (1966) 383 U.S. 375 (failure to observe procedures designedto assure defendantwill not be tried or convicted while incompetentviolates due process andrightto fair trial); Drope v. Missouri (1975) 420 U.S. 162 (defendant’s conduct after alraignment, such as conductin court or in jail, may trigger competency proceedings); Ake v. Oklahoma (1985) 470 U.S. 68 (defendantentitled to expert assistance, including mental health expert assistance, to prepare for and testify at trial); Estelle v. Williams (1976) 425 U.S. 501; In re Murchison (1955) 349 U.S. 133 (due process mandates impartial judge — both actual impartiality and appearance of impartiality constitutional violation); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conduct duringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate prescribing all judicial bias); Tumey v. Ohio Page -356- (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly confront adversarial evidence; Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentencedonbasisofunreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital ~proceedings); Taylor Kentucky (1978) 436US. 478 (cumulativeeffectof errors may violate due process); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); and Apprendi v. New Jersey, (2000) 530 U.S. 466 Gury must make determination of sentencing factors). C. The following facts, among others, are presented in support of this claim, after adequate funding, discovery, investigation, and an evidentiary hearing: 1. For the purposes of this claim, petitioner incorporates by referenceas if fully set forth herein the facts and law set forth in Claims3, 9 through 14, 20, and 57 through 65. 2. Counsel failed to adequately investigate, interview witnesses, or prepare for the penalty phaseofthe trial and therefore failed to request an evidentiary hearing regarding the validity andreliability ofpetitioner’s prior convictions .as required under the Eighth Amendmentand the Fifth and Fourteenth Amendments due processclauses. Instead, petitioner was forced to make this request himself. 3. It is at least reasonably probable that a more positive result would have been obtained but for counsel’s unprofessional error. A Page -357- reasonable probability is a probability sufficient to undermine confidence in the outcome, and need not rise to a preponderance of the evidence. (Stricklandv. Washington, supra, 446 U.S. 668.) Counsel’s errors resulted in both the introduction ofunreliable aggravating evidence andthefailure to subject the prosecution’s case to a meaningfultesting. In addition, counsel’s failure to act on petitioner’s behalfexacerbated the prejudice created by the court’s hybrid representation order and counsel’s unprofessional acquiescence in that order. 4. Counsel’s opening statement at the penalty phase wasalso woefully inadequate, occupying only a pageoftranscript. Counsel merely stated he would present two mental health expert witnesses to testify in connection with mitigating factors (d) and (h). (Pen. Code,§ 190.3, subd. (d) and (h).) Counsel then completed his opening statement as follows: I’m not goingto try now to paraphrase whatthey are going to say. That would be kind of dumb. Youare goingto hear it as soon as I shut up. So without further ado, we willstart out calling the first doctor. (RT 5921.) 5. The foregoing eloquently demonstrates the lack of effort counsel put into petitioner’s defense. Moreover,it is at least reasonably probable that a more positive result would have been obtained but for counsel’s unprofessional, indolent effort. (Strickland v. Washington, supra, 446 U.S. 668.) Although an opening statementis designedto serve as a “roadmap”for the entire defense case, counsel’s inept opening statementin the instant case left thejurywithout anyunderstanding ofwhatevidencethe defense intended to present or how the two experts would fit into that overall picture. Page -358- 6. This wasineffective. As Seventh Circuit Chief Judge Richard Posner recently wrote: Ofcourse to the extent that opening statements accurately forecast the courseofthetrial, the impression they makeon the jury is more likely to be confirmed than contradicted by the evidence. It does not follow that jurors “tune out” after the opening statements, thinking they have heard the evidence.If _—thatweremostwouldbesubmittedjuries.on_—=» stipulated facts. There is no doubt about the importance of opening statementsin providing the jury with a roadmapto the often confusing presentation of evidence that is characteristic of the Anglo-American trial--some witnesses testify only to links in an elaborate chain the end ofwhichis not visible from their testimony, witnesses are often called out of order to accommodatetheir schedules, and the smooth developmentof each side's case is interrupted by cross-examination. (Hydrite Chem. Co. v. CalumetLubricants Co. (7" Cir. 1995) 47 F.3d 887, 891-892.) 7. Counsel also performed deficiently in failing to object to extremely prejudicial error when the court informed the jury that petitioner had declined to appear for a session ofthe proceedings at which Dr. William Pierce wasto testify. The facts, law, and prejudice resulting from the court’s statement has been set forth more fully in Claim 57, which petitioner incorporatesby referenceasiffully set forth herein. It is at least reasonably probable that a more positive result would have been obtained but for counsel’s unprofessional failure to object. (Strickland v. Washington, supra, 446 U.S. 668.) The court’s explanationto the jury that it could only compelpetitioner’s attendance by“forcing, gagging, and shackling” was bad Page -359- enough. (RT 5961.) However, the court continuedtoinstruct the jury thatit could take this fact into consideration in makingits penalty determination: WhenJohn [the bailiff] went up to get him today to get him to come down for the session, he refused to come down and wouldnotleave his cell. It would require forcing, gagging and shackling to get him down. I’m notgoingto do that. The law permits him to be upin hiscell ifhe doesn’t wantto hear it . . . Again,if there is a ruckus, he will leave him back up. And again, Ladies and Gentlemen, you can’t be biased against the _ defendant because ofthis. You are obviously goingtotakeit into consideration, the doctor’s commentonit, but you haveto do it in terms of what the evidence shows. (RT 5961.) 8. Counsel also performeddeficiently in failing to object or request a continuance whenthe court refusedto allow petitioner sufficient time to consider whetheror not he wishedtotestify at the penalty phase. As set forth in more detail in Claim 36, whichpetitioner incorporates by referenceas if fully set forth herein, petitioner asked the court on Thursday,July 6, whether he hada rightto testify at the penalty phase. The court stated that he had this right, and petitioner then requested a continuance to decide whetherhe wished to do so. The court denied the request and told petitioner he could either testify then or not at all. Petitioner then again requested a 24-hour continuanceto makeuphis mind,andthe court denied the request, telling the jury the defense had rested. (RT 6106-6107.) 9. However, on the morningofthe next court day, Monday, July 10, the court unexpectedly askedpetitioner if he had decided whether ornot to testify. The stunnedpetitioner responded, “I thought Your Honor gave me five minutes previousto makeupthis decision,so I didn’t never makeit up.” Page -360- (RT 6108.) The court then stated that “the matter will stand rested,” and requested that counsel begin their arguments. 10. Counsel should have strenuously objected on both of the forgoing dates to the court’s arbitrary, capricious and cruel denial of petitioner’s basic right to due process.Petitioner wasentitled to be heard, and counsel shamefully allowed the court to run roughshod overhis rights, thereby depriving him ofdue process and reliable determination of penalty. 11. ‘It is at least reasonably probable that a more positive result would have been obtained but for counsel’s unprofessional failure to object. (Strickland v. Washington, supra 446 U.S. 668.) The court’s action prejudiced petitioner by depriving him ofhis right to allocution--his right to be heardin his own defense before punishment. (Zaylor v. Hayes, supra, 418 U.S. at 498 quoting Groppi v. Leslie (1972) 404 U.S. 496, 502.) It also deprivedpetitionerofthe opportunityto express remorseforthe killings. The fact that petitioner did not do so wasnotedin aggravationinthe presentencing report and contributed to the court’s decision to deny the modification and newtrial motions and sentence him to death. Althoughpetitioner appearsto have expressed remorsein the media, this was not taken into consideration by the probation department. (Exhibit _, Presentencing Report, p.__.) 12. Counsel was perhaps mostdeficient in failing to object to the prosecutor’s outrageous, egregious misconductin closing argument. As set forth in greater detail in Claims 9 through 14, which petitioner incorporates by referenceasiffully set forth herein, the prosecutor not only exceeded, but utterly demolishedall standards ofprosecutorial deportmentandfair play in persistently and intentionally appealing to the passions and prejudicesofthe jurors. This wasparticularly well illustrated in his disgraceful prediction of Page -361- a retributive meeting petitioner would havein the afterlife with the infant victims. (RT 6141.) Counsel should have been on their feet shouting objections at this vengeful fantasy. Instead, they sat by silently, gathering dust like potted plants. For the reasonsset forth in Claims 9 through 14,it is at least reasonably probable that a more positive result would have been obtained but for counsel’s unprofessional failure to object. (Strickland v. Washington, supra 446 U.S.668.) | 13. Counsel also performed abysmallyin their closing penalty phase arguments. Counsel never provided the jury with a coherent explanation of whatpetitioner’s mental problems were, nor howtheyaffected his ability to function. Instead, both counsel in separate arguments contended that petitioner was “crazy”and “mentally ill.” Counsel’s argument madeclear, however,that counsel actuallyhad no independentevidentiarysupport forthis proposition. As noted in Claim 23, the defense experts did not have sufficient information from counsel or other sources to reach a coherent diagnosisofpetitioner’s mentalillness. Accordingly, lead counsel argued that the jury should simplyinfer that petitioner was mentally ill on the basis of their commonsense,as an “old neighboracrossthe fence thing,” because petitioner had attacked a police woman onthethird floor of a policestation (RT 6181.) Counsel’s argumentleft the jury with noability to evaluate the sort of individualized characteristics relevant to their life or death determination. 14. Counsel wasalso ineffective in improperly basing his closing argumentonreligion. Counsel argued that underancient Jewish and Christian law, the death penalty wasto be sparingly imposed: Page -362- Underthe ancient Jewish law before a person could be condemnedto death for murder, there had to be not one but two witnesses. And, in addition, at least one of those witnesses must have said to the man or woman at the time of the homicide, do you understandthe gravity ofwhatyou are doing? Do you appreciate this act? That is the old hermetic law. Andthe courts that administered this law was the Sombic [sic].'= And the Rabbi said if once in a hundred years a son’s head should sentence someone to death, it would be characterized as a bloody son’s heaven. Thatis in fact what Godsaid at the same time he said render to Caesar those things that are his and leave to God those thingsthat are his. (RT 6178.) 15. Counsel also made an improper appealto religious beliefs later in his argument, noting that “mercy” is something “God showsto a sinner.” Hethen added,“I thoughtwe were supposedto try to emulate God, not ignore him. (RT 6198-6199.) He also read a list of famous quotations on the topic ofmercy, including “earthly powerdoth then show likest God’s when mercy season[s] justice.” (RT 6199) (a quote from Shakespeare’s Merchant of -Venice), and“God’s grace was not a confusion ofpower moving towardsthe perfection of man. There was a forgiveness of sins needed newly in each moment.” (RT 6200.) 16. Counsel at times underminedpetitioner’s case by appearing to ask thejury to have sympathy with him for the awkwardposition in which his client had placed him: '8 Counsel apparently meantto refer to the Sanhedrin, the supreme religious body in ancient Palestine. | Page -363- This is a strange case. In all my years I have never had a case where I suddenly have been thrusted in this almost schizophrenic position. Where muchofwhat I can say or can’t say has been dictated for me. Most of myclients let me say and do whatI consider to be appropriate. (RT 6185.) 17. Counsel inappropriately used profanity in argument, once describing the prosecutor’s argumentas “bullshit.” (RT 6186.) This slip of the tongue was not merely unprofessional, but also offensive to manyjurors and certainly not persuasive in convincing the jury to optforlife. 18. It is at least reasonably probable that if counsel had argued competently, a more positive result would have been obtained. (Strickland v. Washington, supra 446 U.S. 668.) Counsel’s lackadaisical performance prejudiced petitioner’s case, conveying to the jurors the obviousfactthat counsel had no passion—or even much interest—in defending petitioner. (Exhibit 8, Declaration of Joseph Cruz; Exhibit 35, Declaration of Bernard Wells.) Giventhat petitioner’s lawyers had no enthusiasm for the case,failed to explain petitioner’s behavior, and put forward no convincing reason to spare petitioner’s life, the jurors saw no reason whythey shouldfightfor his life either and returned a verdict ofdeath. 19. Counsel also performed ineffectively in failing to object to numerous incorrect instructions, many of which the court gave extemporaneously. Thespecific instructions to which counsel should have objected are set forth in Claims 57 through 65, which are incorporated by referenceasiffully set forth herein. Counsel also performed ineffectively in failing to make a record ofthejury instruction conference andin conducting this proceeding in camera without petitioner’s presence. Because of the Page -364- court’s highly improper, extemporaneousapproachtojury instructions,it is at least reasonablyprobablethatifcounsel hadperformed competentlyduring the jury instruction conference a more positive result wouldhave been obtained. (Strickland v. Washington, supra 446 U.S. 668.) 20. Finally, ifno individualerror ofcounselset forth in this section and in Claims 18 through 33is sufficient to compelrelief, petitioner submits - — — ——thatthecumulativeeffecttheseerrorsconstitutedineffectiveassistance- counsel which resulted in prejudice to his case because thoseerrors, taken together, deprived petitioner of a fair and impartial jury, trial only while competent, effective assistance ofcounsel, due process, equal protection, and a reliable determination ofpenalty. (Taylor v. Kentucky, supra 436 U.S. 478 (cumulative effect of errors may violate due process); Mak v. Blodgett (9" Cir. 1992) 970 F.2d 614, 622.) It is at least reasonably probable that a more favorable outcome would have been obtained but for the cumulative effect of counsel’s unprofessional errors during the penalty phase. (Strickland v. Washington, supra 466 U.S.at p. 694.) D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 31: Ineffective Assistance ofCounsel During the Post-Trial Phase A. Petitioner’s conviction and sentence of death violate the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and Page -365- article I, sections 7, 15, 16 and 17 ofthe California Constitution because his counsel were ineffective in their representation of petitioner during the sentencing and post-trial proceedings. Counsel failed to adequately investigate or prepare for the newtrial, verdict modification, or sentencing proceedings, therebyresulting in an unfairand unreliable sentence. Counsel’s deficient performanceviolated petitioner’srightsto a fairtrial, dueprocess; a trial judge who was unbiased and conducted the proceedings with both fairness and an appearance offairness; anda fair andreliable sentence. B. The following United States Supreme Court decisions,inter alia, in effect at the time the error occurred, are presented in support of this claim: Powell v. Alabama (1932) 287 U.S. 45 (indigent capital defendanthas right to have effective counsel appointed and to be heard through counsel): McMannv. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showingthat counsel’s acts fell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome;these principles apply equally to guilt and sentencing phasesofcapitaltrial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendmentviolated, and prejudice need not be shown,if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed whencounsel labors underconflict of interest); Hill v. Page -366- Lockhart (1985) 474 U.S. 52 (Strickland standards apply to representation providedpriorto trial, such as during plea proceedings); United States v. Tucker (1972) 404 U.S. 443 (due process required that defendant not be sentenced on basis of misinformation of constitutional magnitude); Jn re Murchison (1955) 349 U.S. 133 (due process mandates impartial judge—both actual impartiality and appearanceofimpartiality constitutionally required); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality — lacking); Taylor v. Hayes, 418 U.S. 488 (1974) (impartiality where conduct duringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate prescribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant rightto directly confront adversarial evidence); United States v. Burr (1807) 25 Fed. Cas. 25, no. 14,692b CCD. Va. (fundamental right to fair and impartial tribunal); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequireshigher degreeofscrutiny in capital proceedings); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim instate- created right); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (jury must determinetruth of sentencing factors.) C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support of this claim: 1. Petitioner incorporatesasif fully set forth herein the facts and law set forth in Claims 6, 7, 8, 37, 44, 45, 51, 54, 66. Page -367- 2. Counsel performed deficiently in failing to present mitigating evidence to the probation department for inclusion in the pre-sentencing report. The report contained no information regarding petitioner’s mental state at the time of the crimes or at the time of any of the incidents introduced as aggravating circumstances. It was counsel’s responsibility to prepare andpresent such information. Counselalso failed to challenge any ofthe negative information in the pre-sentencing report or inform petitioner that such a report was being prepared so that he could present such information himself. (RT 6241-6266; Exhibit, Presentencing Report.) Counselfailed to object to judicial bias anderrorsin the court’s findingsat sentencing, in particular, but not limited to, the court’s failure to consider petitioner’s mentalstate at the time ofthe offenses and during the incidents whichwereintroduced in aggravationat the penaltyphase. (RT 6241-6266.) 3. Counsel failed to present to the probation department any compelling mitigating evidence ofpetitioner’s organic impairments and mental disease available at the timeof trial, This material is set forth in greater detail in Claims 2, 18, 19, 23, and 24, which are hereby incorporatedasif fully set forth herein, together with supporting exhibits and declarations. 4. Such evidenceis mitigating as a matter of law and should have been presented. California Rules of Court, rule 4.423(b) (formerly rule 423(b)) states that circumstancesin mitigation to be consideredat sentencing include “facts relating to the defendant, includingthefact that . . . (2) [t]he defendant wassuffering from a mentalorphysical condition that significantly reduced culpability for the crime.” (Cal. Rules of Court, rule 4.423 (b)(2).) 5. Instead of presenting the available, potent mitigating evidence, counsel submitted nothing at all. The pre-sentencing report states that “a Page -368- written statement was requested on July 12, 1989 forusein this report. As of July 20, 1989, nothing has been received.” (Exhibit, Presentencing Report, p. 8.) Not only did counselfail to submit a written statement, they failed to ask the probation departmentto solicit letters of reference. (Jbid., atp. 11.) Instead, counsel weakly asserted at the sentencinghearing that they had been unableto provide material duetopetitioner’s refusal to waive time - — ——for-sentencing. (RT 6240-6241.)—Counsel’sattempttolaythe blame on ~ petitioner wasa transparent coverfor their own indolence. Thefactthat only two weeks passed between the verdict and sentencing did not prevent the district attorney from presenting a statementin aggravation. (Exhibit _, Presentencing Report, p. 8 and attachment.) It also does not explain why counsel failed to.ask the probation departmentto solicit reference letters. Moreover, counsel’s duty to perform with reasonable competence cannot be made contingent upon a defendant’s agreement to waivea constitutional or statutory right. 6. Counsel permitted the numerousprejudicial misstatements and mis-characterizationsoffact continued in the pre-sentencingreport to stand uncorrected. Among numerousothererrors, the report misstated the maiden name of petitioner’s mother (Exhibit __, Pre-sentencing Report, p. 8); described petitioner’s behavior as “antisocial,” a pejorative term also implying a personality disorder with whichpetitioner was never diagnosed (ibid., and id, at p. 13); stated that petitioner was not married, when he was not only married but also a father (id., at p. 9; Exhibit 113, Marriage Certificate of David Esco Welch and Terry Yvonne West); stated that petitioner was armed with two weaponsatthe time of the offense, when in fact his codefendant, Rita Lewis, carried the revolver and used it to shoot Page -369- petitioner (id., at p. 11; Exhibit 18, Declaration ofRita Lewis); andstated that the crimes were “planned” and demonstrated “sophistication,” when theywere in fact spontaneous and impulsive (id, at pp. 11-12). Even a cursory investigation and an hour’s drafting effort would have permitted counselto prepare a statement correcting these falsehoods and inaccuracies. 7. Counsel’s performance in this regard constituted a complete abdication of their responsibility to petitioner and resulted in a complete breakdown in the adversary process, compelling reliefwithout a showing of prejudice. (United States v. Cronic, supra, 466 U.S. at p. 648, 659.) However, counsel’s incompetence wasalso manifestly prejudicial. Because ofcounsel’s incompetence, the probation report falsly concluded,falsely, that “there are no circumstances in mitigation in this matter.” On the contrary, petitioner’s mental defects and diseases, his horrific childhood and upbringing, his lifelong neurotoxicant exposure, and other factors set forth herein byincorporation,all provided powerful evidence in mitigation. 8. In addition, counsel’s incompetent performance permitted the court to erroneously conclude there wasno proofofintoxication that would have interfered with petitioner’s ability to premeditate and deliberate the killings. The court also failed to find that petitioner’s conduct resulted from or was mitigated byhis manymental impairments, andmadenofindingsatall regarding petitioner’s mental state during the uncharged conduct. Counsel’s failure to competentlyprepare and present mental health evidence duringthis phaseofthe trial also permitted the court to “frankly suspect” the mental health professional’s testimony that petitioner was acting underthe influence of an emotional disturbance, could not appreciate the criminality of his Page -370- ’ conduct, could not conform his conductto the requirements of law, and was impaired by drugsoralcoholat the time of the crimes. (RT 6253.) 9. It is at least reasonably probable that a more favorable result would have been obtained if counsel had conducted an adequate investigation, submitted materials in mitigation, and corrected the numerous errors in the report. (Strickland v. Washington, supra, 466 U.S.at p. 668, — ————-——--§94-)— Moreover, counsel’sincompetence rendered-petitioner’s sentence ~ unreliable within the meaning of the Eighth Amendment. (Godfrey v. Georgia, supra,446 U.S. 420.) 10. Counsel performed deficiently in failing to adequately investigate and prepare for the new trial motion and verdict modification proceedings. In particular, counsel failed to conduct juror interviews which would haverevealed the misconductset forth in moredetail in Claims6, 7, and 8, which are incorporated by reference as if fully set forth herein. Counsel once again feebly attempted to place the blame onpetitioner for: refusing to waive time for sentencing. (RT 6240-6242.) However, counsel’s Sixth Amendment duty to perform competently is not contingent upon petitioner’s agreementto waive a constitutionalor statutory right. Moreover, counsel appears to have basedtheir failure to investigate on a fundamental misunderstanding ofthe law. Counsel indicated they believed they could not conductjuror interviews withoutfirst obtaining permission or information from the court. (RT 6240.) In fact, the law permits counsel to conductjuror interviewsat any time. (CodeCiv.Proc. § 206.) 11. It is at least reasonably probable that a more favorable result would have been obtained but for counsel’s unprofessionalerrors. Ifcounsel had conducted juror interviews, they would have discovered the juror Page -371- misconductdescribed in detail in Claims 6,7, and 8, which are incorporated by reference as if fully set forth herein. In addition, if counsel had investigated and prepared for the newtrial motion and verdict modification proceedings, theywouldhavediscovered, presented, and competentlyargued the many matters in mitigation presentedin this petition, including, but not limited to, the matters set forth in Claims 3, 7, 44, 46, 51, 54, and 56. Had counsel performed competently, there is at least a reasonable probability that the court would have granted a newtrial motion, modified the Verdict, and sentenced petitioner to life without the possibility of parole. A reasonable probability is aprobability sufficient to undermine confidenceinthe outcome, and need not rise to a preponderance of the evidence. (Strickland vy. Washington, supra, 446 U.S. 668.) 12. Ifno error of counselin the new trial, verdict modification, or sentencing proceedings wasprejudicial individually, the cumulative effect of all counsel’s errors wasprejudicial. (Taylor v. Kentucky (1978) 436 U.S. 478.) D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentstothe United States Constitution, individually and/orcollectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 32: Ineffective Assistance of Counsel--Failure to Object to Prosecutorial Misconduct A. Petitioner’s conviction and sentence of death are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Page -372- Constitution and Article I, Sections 7, 15, 16, and 17 of the California Constitution because he was deprivedof the effective assistance of counsel duringthe pretrial, guilt, penalty, and sentencing phasesofhis trial whenhis trial counsel failed to object to repeated and egregious incidents of prosecutorial misconduct, Counsel’s unprofessional errors deprived petitioner of his federal and state constitutional rights to the assistance of ~~ ~~eounsel,conflict-freecounsel; confrontation,due process of law, equal protection, a fair and reliable determination of guilt and penalty, a determination by a tribunal of mental competence, trial by an unbiased tribunal,trial by jury, and a fair trial. B. The following United States Supreme Court decisions, inter alia, in effect at the time the errors occurred, are presented in support ofthis claim: Powell v. Alabama (1932) 287 U.S. 45 (indigent capital defendant hasright to have effective counsel appointed and to be heard through counsel); McMannv. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutionalright to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showing that counsel’s acts fell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome; these principles apply equally to guilt and sentencing phases of capital trial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendmentviolated, and prejudice need not be shown, if counsel entirely fails to subject the prosecution's case to meaningful adversarial Page -373- testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed whencounsellabors underconflict of interest); Hill v. Lockhart (1985) 474 U.S. 52 (Strickland standards apply to representation providedpriorto trial, such as during plea proceedings); Pointer v. Texas 380 U.S. 400 (1965) (confrontation clause provides criminal defendantright to directly confront adversarial evidence); Caldwell v. Mississippi (1985) 472 -U.S. 320 (prosecutorial misconduct); Berger v. United States (1935) 295 U.S. 78 (prosecutor shall not use improper methods to produce a wrongful conviction); Mattox v. United States (1892) 146 U.S. 40 (fundamental right to impartial jury): United States v. Burr (1807) 25 Fed. Cas. 25, no. 14,692b CCD.Va.(fundamental right to fair and impartial tribunal); In re Murchison (1955) 349 U.S. 133 (constitution mandates actual impartiality and appearanceof impartiality); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding); Beck v. Alabama (1980) 447 U.S. 625 (Eighth Amendment also requires heightened reliability in guilt determination in capital cases); Hicks v. Oklahoma 447 U.S. 343 (1979) (federal due process claim in state-created right). C. The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiaryhearing,are presented in support ofthis claim: 1. Petitioner incorporatesasiffully set forth herein the facts and law set forth in Claims 8 through 17. 2. In his closing argument at the penalty phase, the prosecutor repeatedly committed serious misconductin invokingreligious authority and a vengeful fantasy about a meeting in the afterlife when the child victims Page -374- would confrontpetitioner. Counsel mildly objected to theinitial invocation of religion but failed to object to the prosecutor’s appalling demand for retribution. Counsel also failed to call for a mistrial. In so doing, counsel wasineffective. This claim is further supported by the facts and lawset forth in Claim 9. 3. Counsel also performed incompetently by failing to object and demand a mistrial when the prosecutor introduced prejudicial extrinsic evidence in closing argumentto the effect that petitioner had urinated in the A court’s “well,” the stairwell which connected the court to the jury assembly room and holding cell. This claim is further supported bythe facts and law set forth in Claim 11. 4. Counsel further performedineffectively by failing to object and demand a mistrial when the prosecutorfalsely informed thejury that their duty was only to render an opinion and “advise” the court regarding the appropriate sentence. This claim is further supported by the facts and law set forth in Claim 12. 5. Counsel also performed deficiently by failing to object and request a mistrial when the prosecutor committed misconduct in closing argument by comparing petitioner to Ramon Salcido, whose case was notorious throughoutthestate ofCalifornia at the time oftrial. This claim is further supported by the facts and law set forth in Claim 14. 6. It is at least reasonably probable that a more favorable outcome would have resulted but for counsel’s unprofessionalerrors in failing to object to the prosecutor’s inflammatory closing argument. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984) 466 U.S. 668.) The prosecutor’s argument Page -375- raised highly improper matters in a naked appealto passion, prejudice, and improperconsiderations whichdistracted thejury from their constitutionally required evaluation ofpetitioner’s character and background andresultedin a death verdict rather than a verdict oflife withoutparole. 7. Counsel also performedineffectively in failing to object to the prosecutor’s flagrant violation of a gag order imposed bythe court prior to trial. The prosecutor repeatedly violated the gag order and was even quoted in several newspapersduring the break between the guilt and penalty phases discussing the extraordinary cost of the trial and exulting overthe guilt verdict. These comments were profoundly prejudicial and influential to the Jury. This claim is further supportedby the facts andlaw set forth in Claim 13. There is at least a reasonable probability that the outcome of the proceedings would have been more favorable but for counsel’s unprofessional errors. The jurors were exposed to newspapers throughout this period becausethe trial court had not issued an admonition to avoid media. 8. Counsel performed ineffectively in failing to object to the prosecutor’sflagrant subornation ofperjury. Counsel’s unprofessionalerrors prejudiced petitioner because thereis at least a reasonable probability that the outcomeofthe proceedings. This claim is further supported bythe facts and law set forth in Claim 1. 9. Counsel performed ineffectively by engaging in ex parte contacts with Judge Golde. Counsel also performedineffectively in failing to object to such contacts by the prosecution. (Exhibit _, Declaration of Spencer Strellis.) This claim is further supported by the facts and law set forth in Claim 51. Counsel’s unprofessional errors prejudiced petitioner because Page -376- thereis at least a reasonable probability that the outcomeofthe proceedings would have been more favorable to petitioner in the absenceofthe errors. D. Eachoftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendments to the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 33 — Ineffective Assistance of Counsel — Cumulative Error A. Petitioner’s conviction and sentence of death violate the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution because the cumulativeeffect ofthe ineffective assistance ofcounselerrors allegedin this petition and in petitioner’s direct appeal deprived him of his federal constitutionalrights, including, but not limitedto, his rights to due process of law, equal protection, confrontation, the effective assistance ofcounsel, and the right to reliable capital proceedings and sentencing. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Taylor v. Kentucky (1978) 436 U.S. 478, 487, and fn. 15 (cumulative effect of errors may violate due process); Strickland v. Washington (1984) 466 U.S. 668 (criminal defendant hasright to effective assistance ofcounselatall stages ofproceedings); Brady v. Maryland (1963) 373 U.S. 83 (withholding of evidence favorable to accused violates due process); Pointer v. Texas Page -377- (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly confront adversarial evidence; Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding wheré petitioner sentenced onbasis ofunreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right). C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support ofthis claim: 1. Petitioner incorporatesasiffully set forth herein all facts and law set forth in all Claims 18 through 33in thispetition. 2. In this petition and in the briefing on direct appeal, petitioner has set forth separate post-conviction claims and arguments regarding the numerousinstancesofineffective assistance ofcounsel which occurredin the pretrial, guilt, penalty, and post-trial phases ofthis case, and he submitsthat each oneofthese errors independently compels reversal ofthe judgment or alternative post-convictionrelief. 3. A habeas corpuspetitioner may prove he has suffered ineffective assistance of counsel based on the cumulative effect oferrors. (Wade v. Calderon (9" Cir. 1994) 29 F.3d 1312, 1319; see also, Taylor v. Kentucky, supra, 436 U.S.at p. 478, 487, and fn. 15 (due process violated by cumulative effect of error).) The judgment or sentence must be overturned if“multiple deficiencies have the cumulative effect of denying a fair trial to the petitioner . . .” (Ewing v. Williams (9 Cir, 1979) 596 F.2d 391, 396.) Page -378- 4. Petitioner submits that the many instances of ineffective assistance of counsel in this case require reversal both individually and because of their cumulative impact. As explained in detail in the separate claims and argumentson theseissues, the errors in this case individually and collectively violated federal constitutional guarantees underthe Fifth, Sixth, Eighth, and Fourteenth Amendments. —. —_..____._5._.Thecombinedeffect-of counsels’errors-wasprejudicialbecause-— — it is at least reasonably probable that the outcome would have been more favorable to petitioner but for the cumulative effect of counsels’ unprofessional errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. 668.) D. Theseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, give rise to a reasonable probability of a more favorable outcomein the absenceof the error and are moreoverprejudicial under any standard of review. Claim 34: Judicial Bias--Misconduct--Failure to Control Proceedings A. Petitioner’s conviction and sentenceofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution because the trial judge failed to control the prosecution’s continuing and outrageous misconduct; failed to curtail prosecutor’s violations ofcourt orders; failed to utilize the powerofthe court to ensurepetitioner’s rights; and manifested a Page -379- distinct prosecutorial bias throughout the proceedings. Theseerrors highly prejudiced petitioner’s guilt and sentencing proceedings, and violated petitioner’s rights to a trial judge who was unbiased and conducted the proceedings with not only fairness, but an appearanceoffairness; impartial jury; due process; equal protection; a fair trial; and the right to fair and reliable capital proceedings. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates both actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartialitywhere conductduringtrial hasleft personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartialtribunal); Ungarv. Sarafite (1964) 376 U.S. 575 (Constitution mandatesthattrialjudge not onlybe free ofactualbias but also that there be no appearanceofbias); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly andfairly confront adversarial evidence); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentence partially based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); In re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every elementofthe crime with which defendantis charged); Hicks v. Oklahoma (1979) 447 US. Page -380- 343 (federal due processclaim in state-created right); Eddings v. Oklahoma (1982) 455 U.S. 104 (jury must consider all relevant mitigating evidence in a capital case); Skipper v. South Carolina (1986) 476 U.S.1 (sentencer shall not be precluded from considering as a mitigating factor, any aspect of defendant’s characteror record and circumstancesofoffense proffered); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth -——to-duerightbyjury. - — - - entitle criminal defendant to a jury determination that he is guilty of every elementofthe crime with which is he charged, beyond a reasonable doubt — labeling as “sentencing factor” does not negate this right). C. The following facts, among others, to be developed after adequate funding, discovery, investigation, and an evidentiaryhearing, are presented in support of this claim: 1. In support of this claim, petitioner incorporates by reference Claims 8 through 17. 2. There were specific instances throughout the guilt and penalty phase wherethe court willfully failed to control prosecutorial conduct which deprivedpetitioner’s rights. This conductincluded, but wasnotlimited to the prosecutor’s continual repeated violations of the court-imposed gag order specificallyprohibiting contact with or commentsto the mediathroughout the trial and penalty phase of the case. The court issued this unequivocal order at the inception ofthe trial, which at no point was withdrawn. (RT 37, 36.) The court expressly informed the prosecutor, “You are not to open your mouth, exceptin court.” (RT 37.) The prosecutor, however,did violate that Page -381- gag order, repeatedly. Petitioner specifically objected to the prosecutor’s constant violations: I’m goingto also request, it wasmyunderstanding wehad a gag order in this court and it applied to both counsel and the prosecution. Numeroustimesthe prosecution made statementsto the newspaperreporters. He thinks he is above the law and he don’t have to abide by this gag order. I didn’t understand the court to make any type of limitations or time periods on how long this gag order was goingto be in effect, Your Honor, and I’m saying,I’m saying now that concerning him makingall these statements andstuff outside of the court, I think it is totally unfair, Your Honor. I think it is again, it goes to show that the prosecution is going to go to any means beyondlimits to try to get a conviction and ifthat means grandstanding up before the newspapermedia, he didn’t have no comments whatsoever to say about my motion to vacate the verdict right here in open court. He has to go outside the courtroom and discuss with newspaperreporters. I think it is totally inappropriate. (RT 5725-5726.) 4. Furthermore,petitioner requested sanctions be imposedfor the overt and continuing violations. The court responded, “I will handle the prosecutor.” (RT 5726.) The court, however, did nothing to sanction the prosecutor, and throughoutthe penaltyphase continued to refuse to admonish the jury to refrain from viewingor listening to any media regardingthecase. (RT 5748, 5769, 5802, 6026, 6076, 6220-6235.) The gag order was violated at criticaljuncturesin petitioner’s case;i.e., after the guilty verdict and before the penalty phase as well as shortly prior to the penalty phase deliberations where petitioner was sentenced to death. In a June 20, 1989, front page article in the Oakland Tribune, both defense attorneys “declined to comment Page -382- after the verdict, citing a gag order imposed by Golde on participants in the case.” The prosecutor, however, had no such scruples: Andersonsaid he knewof“nobasis” for Welch’s remark about jury tampering and called it “a figment of his imagination.” This is a man who’s just been convicted of six firsts and a special circumstance, and so what’s he got to lose by making wild claims.” ——. — (ExhibitNewspaperArticles re:GagOrder.) With onlyone dayremaining before the penaltyphase wasset to begin, Anderson violated the gag order in an interview with the Oakland Tribune: Prosecutor James Andersonsaid for the past year he has spent 95 percentofhis time on the Welch case. “That’s the nature of the beast - Oakland’s largest mass murder,” Anderson said. “For probably the city’s most heinouscase, I don’t think 95 percent was undeserved,” he added. (Exhibit 39, NewspaperArticles re: Gag Order.) Additionally, the prosecutor violated the gag order in express, prejudicial statements to the San Francisco Chronicle the day after the guilty verdict. In the June 20, 1989 issue of that paper, Anderson is quoted: Prosecutor Jim Anderson later said he was “elated” by the verdict. “Children were killed,” Anderson said. “I’m sure the jury feels the same way about child murderers and mass murderersas I do.” (Exhibit 39, NewspaperArticles re: Gag Order.) After the verdict was read, petitioner informed Judge Golde he believed there had been“jurytampering” during the proceeding.s Anderson informed the paper as follows: “Andersoncalled the allegation a ‘figment of David Welch’s imagination’.” (/bid.) Page -383- 5. Thetrialjudge’sfailures to control proceedingshighlyprejudicial to petitioner infuse the entire trial. On several occasions, during voir dire, petitioner asked the court for information on a potential informant who was highly prejudicing petitioner’s case. That informant, Michael Willis, was allegedly communicating with victims’ families. (RT 2407.) The court denied the motion as premature, and stated it did not have sufficient information to determine whether the grievance about potential county jail informers contacting witnessesforthe prosecution,“properlyliesin this court or the federal court or some other court.” (/bid.) The Superior Court have jurisdiction over this discovery, particularly crucial in a capital case. (See e.g. Cal. Const., art. VI, §10.) On May8, 1989,petitioner told the court that on the wayto court he was attacked and injured by three sheriff's deputies, had bruises and scratches on his face, and his legs and back were hurt. He requested to be examined by a physician at Highland Hospital. The court respondedbystatingits unilateral understanding that petitioner refused to go to court. Petitioner asked for a hearing to determine what occurred and how these injuries were received. Petitioner specifically asked the court if it had sufficient authority to order he be taken to Highland Hospital. Petitioner was concerned about hostility and prejudice exhibited by North County Jail doctors. Regarding the request to be taken to Highland Hospital, and the authorityto do so, the court responded, “That’sright, I have enoughauthority, but I’m not.” (RT 3707.) 6. Petitioner incorporates by reference Claims 34 through 45. 7. The court’s failure to control the proceedings in a non-partial mannerandthetrial judge’s express and manifest bias against petitioner and in favor of the prosecution in its rulings, orders, and nonfeasance, Page -384- prejudicially denied petitioner’s rightto a fair trial; to a neutral and impartial judge whoexhibited not only fairness, but the appearanceoffairness;his right to due process; an impartial jury; and fair and reliable capital proceedings. D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively,had asubstantialand injurious effect or influencein determining the jury’s verdict. Claim 35: Judicial Bias: Unconstitutional Instruction Precluding Requisite Consideration of Testimony A. Petitioner’s conviction and sentence ofdeath violate ofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and article I, sections 7, 15, 16 and 17 ofthe California Constitution because the trial court, in its formal instructions, concerning inconsistent statements and disbelief of a witness’s testimony, limited such consideration to a single witness. This sua sponte and unlawfuldeviation from thepattern instructions unconstitutionally and prejudicially foreclosed thejury’s consideration ofthe untrustworthiness of prosecution witness’s testimony in violation of the confrontation clause, shifted the burden of proof in violation of the due processclause, and rendered the guilt and penalty determinationsunreliable. B. The following United States Supreme Court cases,inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Jn re Murchison (1955) 349 U.S. 133 (constitution mandates both actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania Page -385- (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartialitywhere conduct duringtrial has left personal stings; Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where notimelycross-examinations regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occurthroughintroduction ofhearsay); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentenced on basis of unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degreeofscrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptible to an interpretation that removedprosecution’s burdenofproving elementofintent beyond a reasonable doubt; Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyonda reasonable doubt every element ofthe crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independent jury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created right); Bollenbach v. United States (1946) 326 U.S. 607 (completeness in supplemental instruction constitutionallyrequired); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (jury must determine facts on which sentence is based); Duncan v. Louisiana (1968) 391 U.S. 145 Gury reasonable doubt requirements); Nebraska Press Association v. Stewart (1976) 427 U.S. 539 Gudges have a constitutional responsibility to protect the right to an impartial jury and assuringfairtrial.) Page -386- C. The following facts, amongothers,are presentedin support ofthis claim after adequate funding, discovery, investigation, and an evidentiary hearing: 1. Willie Henderson wasoneofonly 17 witnesses who testified for the defense during the guilt phase. (RT 5246-5426.) 2. Atthe conclusionofthe guilt phase, the court gave the following instructions: Now,Ladies and Gentlemen, we had evidence that on some formeroccasion a witness madeastatement or statements that were inconsistent or consistent with his testimony at this trial. Now,this may be considered by you not only for the purpose of testing the credibility of the witness, the believability, but, again, as evidence ofthe truth ofthe facts stated by the witness on such formeroccasion. (RT 5578.) 3. The court then instructed thejury regarding inconsistent statement and witnesses whoclaimednotto recall events as followed: Now,in addition,ifyou disbelieve a witness’ testimony —Here, I’m talking about Willie Henderson. If you disbelieve a witness’ testimony that he no longer remembersa certain event, such testimonyis inconsistent with the prior statement or statements by him wherein he described the events. (RT 5578, emphasis added.) Page -387- 4. Byits terms, the court’s instruction waslimited soley to Willie Henderson, a defense witness. However,the prosecution presented witnesses in its case in chiefwho clearly had made a statement or statements that were inconsistent with their earlier statements. These included, but were not limited to, key prosecution witnesses: Stacey Mabrey, (RT 4109-4194); Barbara Mabrey, (RT 4195-4407); Leslie Morgan (RT 4437-4527); Angela Payton (RT 4528-4564); Beverly Jermany (RT 4763-4805.) 5. The prior inconsistent statements were crucial evidence in underminingthe credibility of these prosecution witnesses, with regard to a fundamental element ofthe offense — petitioner’s mens rea. (RT 5480-5481, 5490-5493, 5495, 5506-5508, 5510-5512, 5558.) 6. Directing the jury that disbeliefabout a witness’s testimony was only in relation to petitioner’s witness “Willie Henderson,” the court conclusively directed and precluded the jury from considering the prior inconsistent statements of prosecution witnesses as evidence of lack of credibility. Petitioner had no opportunity to refute, explain or deny the express directive by the judge that a basis for a negative influence of credibility applied only to this specific witness for the defendant. This instruction shifted the burdenofproofand lessened the prosecution’s burden of proving every fact beyond a reasonable doubt, because it implicitly directed thejury notto considerprior inconsistent statements in evaluating the credibility of the prosecution witnesses. prosecution. The institution also underminedthe reliability of these capital proceedings. 7. By directing the jury to considerprior consistent statements only in assessing the credibility ofa witness, and byfailing to then mention any of the witnesses for the prosecution, the judge evidenced clear and egregious Page -388- bias towards the defendant and partiality toward the prosecution. This unfairness and appearance of unfairness were manifest constitutionalerror. 8. The error was highly prejudicial to petitioner’s case for the reasonsset forth above. Additionally, the error wasparticularly prejudicial because: (1) the jury requested read backs of the testimony ofthe five prosecution witnesses listed above, and therefore relied heavily on the _ _ _..._testimonywitnesses;and(2)because the prosecutor devoteda — —.§ substantial portion ofhis argumentto a discussionofthis testimony. Further, he was foundguilty on all counts, following the testimony of the witnesses, supra and the prosecution’s use of this testimony to petitioner’s unconstitutional detriment. D. Eacherrorin violation ofthe Fifth and/or Sixth and/or Eighth and/or FourteenthAmendmentstothe United States Constitution,individually and/or collectively, had a substantial and injuriouseffect or influence in determining the jury’s verdict. Claim 36: Judicial Error--Bias: Denial of Allocution Rights-- Fundamental Constitutional Violation and Judicial Bias/Error A. Petitioner’s conviction and sentenceofdeath areviolationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and Article I, Sections 7, 15, 16 and 17 ofthe California Constitution because the petitioner was effectively denied the fundamental right to addressthejury priorto its deliberationsin the penalty phase ofhis capital case. This denial ofthe opportunity to be heard, whichis a fundamentalright andparticularly crucial in the context of determining whether to impose a death sentence, Page -389- abridged petitioner’s right to due processoflaw;toa fair trial; to trialjudge who wasunbiased and conductedthe proceedingswith not only fairness,but an appearanceoffairness; to an impartialjury; and the rightto reliable capital proceedingsand sentence. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presentedin support ofthis claim: United States v. Burr (1807) 25 Fed. Cas. 25, no. 14,692b CCD. Va. (recognize fundamentalrightto fair trial/impartial tribunal); Mattox v. United States (1892) 146 U.S. 40(fundamentalrightto fair trial/impartial tribunal); Parker v. Gladden (1966) 385 U.S. 363 (fundamental right to fair trial/impartial tribunal); Estelle v.Williams (1976) 425 U.S. 501 (fundamental right to fair trial/impartial tribunal); Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (denial of allocution in imposing sentence abridgement of core fundamental right — denial of such rights further constitutes unconstitutional appearance ofimpartiality); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly confront adversarial evidence; Coy v. Iowa (1988) 487 U.S. 1012; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation wherenotimely cross-exam regardingpossible Page -390- bias and prejudice); Ohio. v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardnerv. Florida (1977) 430 U.S. 439 (due processviolation in capital proceeding wherepetitioner sentenced on basis of unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 _... ..... ___(denial ueinstructionsusceptibleaninterpretationthat. removed prosecution’s burden of proving element of intent beyond a reasonable doubt; Jn re Winship (1970) 397 U.S. 358 (due process clause requires governmentprove beyonda reasonable doubt every element ofthe crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independent jury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannot be concluded from giving effect to finding of lesser offense); and including Johnson v. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use ofunreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 U.S. 607 (completeness in supplementalinstruction constitutionally required); Estelle v. Smith (1981) 451 U.S. 454 (gravity of decision made at penalty phase mandatesstate’s adherence to constitutional guarantees); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (jury to decide facts relevant to sentencing determination.). Page -391- C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support ofthis claim: , 1. The United States Supreme Court has “stated time and again that reasonable notice of a charge and an opportunity to be heard in defense before punishmentis imposed ‘are basic to our system ofjurisprudence’.” (Taylor v. Hayes, 418 U.S. at 498 (quoting Groppi v. Leslie (1972) 404 U.S. 496, 502) (emphasis added.) 2. The Eighth Amendment to the United States Constitution guaranteesthat, in the penalty phase of a capital case, a criminal defendant be permitted the right to present any and all relevant mitigating evidence. A trial court’s actual or functional curtailment of this presentation on petitioner’s behalf requires reversal of a sentence of death. Thetrial court must permit the sentencerto hear, consider and givefull effect to all relevant mitigating evidence amidstall such mitigating evidence. (See Hitchcockv. Dugger(1987) 481 U.S. 393, 394 (“‘Sentencer maynot refuse to consider or be precluded from considering any relevant mitigating evidence.”); accord Skipper v. South Carolina (1986) 476 U.S. 1, 4; Eddings v. Oklahoma (1982) 455 U.S. 104, 110; Lockett v. Ohio (1978) 438 U.S. 586, 606-607 (plurality opinion)(right to present mitigating evidence is constitutionally protected).) The right to present mitigating evidence may not be precluded either bya state statute or by a trial judge. (Eddings, 455 U.S.at 113.) 3. Exclusion ofrelevant mitigating evidence further violates the due process clause by denying petitioner a fair trial on the issue ofpunishment, and such exclusion cannotbejustified by state’s evidentiary and procedural rules. (Green v. Georgia (1979) 442 U.S. 95, 97 (per curiam).) Page -392- 4. Fundamental due process further mandatesthat care be taken and procedures utilized to ensure notice and an opportunity to be heard in proceedingsin whichincarcerationis a potential punishment. “Due process cannot be measured in minutes and hours or dollars and cents.” [The petitioner’s]“liberty is valuable and mustbe seen as within the protection of the Fourteenth Amendment.” (Taylor, supra, at 500; Morrissey v. Brewer (1972) 408 U.S. 471, 482. _ 5. The right to due process and the opportunity to be heard are underscored and heightened in a capital penalty phase proceeding. Here, petitioner’s life was at stake, and where a penalty of death is faced the Constitution compels heightened reliability. (See Lowenfield v. Phillips (1988) 484 U.S. 231, 238-239 (“Qualitative difference between death and other penalties calls for greater degree ofreliability when the death sentence is imposed”). 6. Where the trial court’s attitude shows evidence of some appearance of bias, these constitutional mandates are amplified. (See Mayberry v. Pennsylvania (1971) 400 U.S. 455 at 465 (Constitution requires thatjudge “maintain the calm detachment necessary fora fair adjudication”)). The Supreme Court hasconsistently recognizedthata trialjudge maynotbe actually biased, but may have an appearance ofbias as a result of the continuing provocation by a criminal defendant. The United States Constitution, however, requires that the trial judge “hold the balance nice, clear and true betweenthe state and the accused . .” (Tumey v. Ohio (1927) | 273 U.S. 510, 532.) In makingthis ultimatejudgmentthe inquirymustnot be whetherthere wasactualbias on respondent’s part, but also whetherthere was “such a likelihood ofbias or an appearanceofbiasthat thejudge was unable Page -393- to hold the balance between vindicatingthe interests ofthe court and the interest of the accused.” (Ungarv. Sarafite (1964) 376 U.S. 575, 588.) “Such a stringent rule may sometimesbar trialjudges who have no actual bias and who would do their very best to weightthe scales of justice equally between contending parties,” but due process requires no less. (Jn re Murchison (1955) 394 U.S. 133, 136.) (Taylor v. Hayes 411 U.S.at p. 501.) 7. Each and every constitutional error set forth in Section Cl through C5 ofthis Claim occurred,individually andcollectively, in thetrial court’s denial ofpetitioner’s right to allocution in the penalty phaseofhis capital case. At the conclusion of the penalty phase, but prior to deliberations by the jury, to determine whetheror not petitioner should be sentencedto death, petitioner inquired whether he hadtheright to take the stand to address the jury. The following colloquy ensued: DEFENDANT: Well, excuse me, Your Honor. THE COURT: The admitted order of commitment. DEFENDANT: I have one. THE COURT: Hang on. Youhavefive minutes to go. You can last. DEFENDANT: I want to knowright now am entitled underthe law to testify? THE COURT: Yes,sir. DEFENDANT: In my mitigation stuff right now? THE COURT: Yes. Yes. DEFENDANT: I’m going to request right now a continuanceso I can evaluate andfigure out if I wantto testify. Page -394- THE COURT: No. Ifyou wantto testify you can proceed right now or your attorneyis going to rest. What is your pleasure? MR. STRELLIS: I have already rested. If he wants to testify he has a rightto testify. THE COURT: Absolutely. Do you wantto take the stand? DEFENDANT: I’m requesting a 24-hour continuance, Your Honor. I thinkI m _ THE COURT: Your motion is denied. All right, Ladies and Gentlemen. That will complete the testimony. Whatis left will be the arguments of the attorneys and my instructionsofthe law. (RT 6106-6107.) 8. Thus, the court specifically denied petitioner’s motion, forced him to makethis decision on the spot and accordingly deniedhisrightto speak. This ruling wholly and unjustly deprived petitioner his constitutional rights to allocution. 9. The next dayoftrial, the court asked petitioner if he wanted to testify. (RT 6108.) Understandably confused since he had been unequivocally prohibited from addressing the jury, petitioner stated that he understoodthe court had ruled he could nottestify. Ratherthan correctinghis previouserror, the trial judge again foreclosed petitioner from making this decision or addressing the jury in the penalty phaseofhis capital case. This is evidencedin the following colloquy: THE COURT: Mr. Welch, have you decided whether or not you’re goingto testify? Page -395- DEFENDANT: I thought — I thought — I thought Your Honor gave me five minutes previous to make up this decision, so J didn’t never makeit up. THE COURT: All right. We’re ready to proceed with the arguments. DEFENDANT: I didn’t know the Court was going to let me renew — THE COURT: The matter will stand rested. DEFENDANT: I don’t think—I don’t understand, YourHonor.I thought you were asking if I was readytotestify. THE COURT: Never mind. Let’s just proceed. Call the jury down. (RT 6108.) 10. By foreclosing petitioner from testifying in the penalty phase of his capitalcase, the trial court denied petitioner his constitutionalrights to a fair trial, due process of law, an impartial jury, a trial judge who was unbiased and conducted the proceedings with not only fairness, but an appearanceoffairness, his Fifth Amendmentrightto testify in his own behalf, and the right to reliable capital proceedings and sentence. 11. Petitioner incorporates by referenceas if fully set farther herin the facts and law set further by Claims. D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/orFourteenth Amendmentsto the United States Constitution,individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Page -396- Claim 37: Judicial Bias--Court’s Unconstitutional DenialofPetitioner’s Opportunity to Review Probation Report A. Petitioner’s conviction and sentenceofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution because the court specifically refused to permit petitioner any opportunity to read, review,refute, deny or correct in the probation report any way. This report wasrelied upon by the court in its ruling on the automatic motion for modification of the sentence. The denial of petitioner’s right to review the report violated his right to a trial judge who wasunbiased and conducted the proceedings with not only fairness, but an appearanceoffairness;a fairtrial; due process of law; confrontation rights; and the right to fair and reliable capital proceedings and sentence. B. The following United States Supreme Court decisions,interalia, in effect at the time the error occurred, are presented in support of this claim: United States v. Tucker (1972) 404 U.S. 443 (due process required that defendant not be sentenced on basis of misinformation of constitutional magnitude); Jn re Murchison (1955) 349 U.S. 133(Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conductduringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribingall judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause providescriminal defendant right Page -397- to directly confront adversarial evidence); Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross- examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation whereno timelycross-exam litigation regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentence partially based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial ofdue process where instruction susceptible to an interpretation that removed prosecution’s burden of proving element of intent beyond a reasonable doubt; In re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyonda reasonable doubt every elementofthe crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independent jury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannotbe precluded from giving effect to finding of lesser offense); Johnsonv. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use ofunreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 U.S. 607 (completeness in supplemental instruction constitutionally required); Estelle v. Smith (1981) 451 U.S. 454 (gravity of decision madeat penalty phase mandatesstate’s adherenceto constitutional guarantees); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendmentright to Page -398- trial byjury entitle criminal defendantto ajury determination thatheis guilty ofevery element ofthe crime with whichis he charged, beyond a reasonable doubt — labeling as “sentencing factor” does not negatethis right). C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support of this claim: _ 1. On July 25, 1989, the court reconvened following imposition of the jury decision to impose death as the appropriate punishment. Petitioner was unclear whether sentence was going tobe imposed on that day, or whether the would be allowedto raise severallegal issues prior to imposition ofthe sentence. (RT 6235.) Thecourt stated that the attorneys would speak then petitioner would be permitted to speak if he wished, and then the sentence would be pronounced. (Jbid.) 2. The judge then stated the matter in the case ofPeople v. Welch was on for “report and sentence”andstated: “The courtis in receipt ofthe probation report.” (RT 3265, emphasis added.) Petitionerthenstated, “I’m going to request, YourHonor,that[the probation report] be removed frommy file, and the court not considerit before any sentencing at this time.” (RT 6236.) Defense counsel then raised the issue of reduction of penalty, focusing on a general argument regarding petitioner’s mental health. (RT 6235-6238.) 3. The court stated once again “The court has read and considered the report of the probation officer.” Petitioner then again specifically requested as follows: Page -399- I think I’m entitled —I’m going to request we take a recess, so I can have a chanceto review the probation recommendation since nobody never told me about a probation report. (RT 6241.) Thetrial judge then ruled on petitioner’s request: “No, sir, you do not have the right to do that.” (/bid.) Petitioner asked again: “You say you’re not going to allow me enoughtimeto read the probation report?” The court again madeit clear that petitioner did not have the right to read the report and would not be permittedto read the report on which the sentence of death was being imposed. In-reply to petitioner’s last question, the court answered: “That’s correct.” (RT6242.) 4. A statutory sentencing schemeis constitutionally infirm unless it effectively channels the sentencer’s discretion. Thus, the sentencing process and the scheme that follows must provide “clear and objective standards; specific and detailed guidance and an opportunity for rational review ofthe process of imposing a sentence a death. (Godfrey v. Georgia, supra , 446 U.S.at p. 428.) Further, the sentencing review scheme cannot lawfully preclude consideration of evidence in mitigation. (Lockett v. Ohio (1978) 438 U.S. 586; Eddings v. Oklahoma (1982) 455 U.S. 104; Mills v. Maryland, supra, (1988) 486 U.S. 367) By refusing the petitioner not only to challenge and correct, but even review the probation report, upon which this sentencing determination was made,thejudge precludedits own proper consideration of mitigating evidence, did not follow clear and objective standards, and did not undertake the requisite rational review, process for imposing a sentence ofdeath. 5. Byrefusing petitioner the opportunity to review or challenge any of the information contained in the probation report in its ruling on the Page -400- modification of the verdict of death to life without possibility of parol, the court arbitrarily, capriciously, unconstitutionally and unlawfully denied petitioner’s right to confrontation to witnesses against him, and particularly to due process of law. (Gardner v. Florida, supra, 430 U.S. 439) This denial of rights was no less severe because the judge, not the jury, was the final arbiter on the sentence of death. (Eddings v. Oklahoma, supra, 455 _"__ ___ ___U,S.-104;MaynardCartwright(1988)456,360.) D. Eachoftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/orcollectively, had a substantial and injurious effect or influence in the judgementand sentencing and wereprejudicial under any standard ofreview. Claim 38: Judicial Bias--Failure to Control Juror’s Access to Media and Failure to Admonish Jurors Regarding the Extensive Pre-Trial, Trial and Penalty Phase Publicity A. Petitioner’s conviction and sentence ofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and Article I, Sections 7, 15, 16 and 17 ofthe California Constitution because there was extensive pretrial publicity and extensive media coverage of petitioner during the guilt and penalty phases of his case. At petitioner’s request, thetrialjudge imposed a gag order on counsel throughoutthe entire guilt and penalty phase. However, both prosecution and defense counsel violated the gag order, and the prosecution specifically commented on significant aspects of petitioner’s case prior to the penalty phase. Notwithstanding this extensive, highly prejudicial publicity during the voir dire, guilt phase and penalty phase ofpetitioner’s case, the trial judge failed Page -401- to admonishtojurors to refrain from reading newspapers,listening to radios or viewing television regarding petitioner’s case, and furtherfailed to do so in spite of a continuing objection by defense counsel that such admonitions occur. Thetrialjudge attenuated the import and weight ofany admonishment he did make which would have directed the jury to properly performingits crucial function. These omissions and commissionsviolated petitioner’s right to a trial judge who was unbiased and conducted the proceedings with not only fairness, but an appearance of fairness; fair trial; due process; an impartial tribunal; and a fair and reliable capital guilt and penalty determination. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred,are presentedin support ofthis claim: Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates both actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartialitywhere conductduringtrial has left personal stings; Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Ungar v. Sarafite (1964) 376 U.S. 575 (Constitution mandatesthattrialjudge not only befree ofactualbias but also that there be no appearance ofbias); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause providescriminal defendantright to directly andfairly confront adversarial evidence); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentence partially based on unreliable information); Godfrey v. Georgia (1980) 446 Page -402- U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); In re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every elementofthe crime with which defendantis charged); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Eddings v. Oklahoma (1982) 455 U.S. 104 Gury must considerall relevant mitigating evidence in a capital case); Skipper v. South Carolina (1986) 476 U.S. 1 (sentencershall not be precluded from considering as a mitigating factor, any aspect of defendant’s character or record and circumstances of offense proffered); Duncan v. Louisiana (1968) 391 U.S. 145 (jury trial fundamental right); Wainwright v. Witt (1985) 469 U.S. 424 (constitutional standard re: excusing jurors); Nebraska Press Association v. Stewart (1976) 427 U.S. 539 (judges have responsibility of protecting fundamental right to an impartial jury to ensure defendantreceivesa fair trial); Remmer v. United States (1954) 347 U.S.227 (jury tampering and unapproved private communication presumptively prejudicial, and court is to investigate jurors exposed to extraneousinfluences to determine prejudicial impact); Shepard v. Maxwell (1966) 384 U.S. 333 Gury deliberations must be based on evidence in open court, not on external publicity); Chandler v. Florida (1981) 449 U.S. 560 (any highly publicized criminaltrial presents risk of compromisingright to fair trial); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendmentright to trial byjury entitle criminal defendantto ajury determinationthathe is guilty ofevery elementofthe crime with whichis he charged, beyond a reasonable doubt — labeling as “sentencing factor” does not negate this right). Page -403- C. The following facts, among others, are presented in support of this claim, after adequate funding, discovery, investigation, and an evidentiary hearing: . 1. There was wide-spread media coverage on petitioner’s case from the time that the crimes occurred. Petitioner incorporates by reference Claim 53. 2. This publicity throughoutthe trial was prejudicial. Numerous articles appeared in the Oakland Tribune and San Francisco Chronicle regarding petitioner and the crimes. (CT 296-381.) 3. From the inception ofthetrial, the court imposed a gag order on the prosecution and defense counsel. (RT 34-35.); (RT 37: “The lawyers are gagged”... Court informs both counsel: “You’re not allowed to open your mouth except in court.”); (RT 56 (gag orderreiterated). The prosecution, however, openly violated this gag order, potentially on several different occasions. (See, e.g., RT 5725.) Petitioner strenuously objected to this - violation and specifically noted the prejudicial impact of the prosecution’s comments in the media. (RT 5725-5726.) 4. Anextensive article appeared in the May 15, 1989 edition of the Oakland Tribune regarding petitioner. Counselfor petitioner requested that the jury be polled to find out which ofthem readthe article that appeared on that date. The court stated it was not necessary to poll the jury because he had told them not to read the newspaper. This is oneofthe few timesthat the court actually did instruct the jury not to read a specific article. These instructions soon went by the wayside, and his malfeasance continued throughout the remainderofthetrial. Page -404- 5. On May 17, 1989 petitioner put on the record that he wanted to request the jury to be sequestered about recent news media publication, and particularly the news media ofthat morning, which wasthefirst daythejurors were sworn. Thecourt denied the motion to be sequestered. Specifically, the _ trialjudge stated: “I have alreadyadmonished them,andI will admonish them each recess.” (RT 3949.) On that sameday, the judge admonished the jury _ aboutthe publicity ofthat day,butspecificallyswayedfrombeing==_ concerned with any other publicity. The judge instructed: There wasan article in the paper and I don’t think there will be one tomorrow because I don’t see the press here. So again, you are admonished,ofcourse, not to discuss the case among yourselves, with anyoneelse, nor let anyone to talk to you about it. You, of course, are to make no decisions until all the evidence, arguments, andinstructions. And,further, you are not to read any articles. Andif you see anything on T.V. you just turn the station. (RT 4031.) 6. There were almostno further admonishments regarding the media at any other recess in the entire trial. Petitioner’s counsel requested that jurors who were not excused be admonished bythe court not to discuss the case or read anything about the case “because we’re not going to voir dire them again.” Counsel further stated: ““There’s likely to be morepublicity as wego forward.” This was a standing requestby counselStrellis. (RT 1502.) Defense counselStrellis particularly urged that the court so instruct,“given the fact that we’re getting slightly more publicity in this case than in the average situation . . .” (RT 3997.) 7. Notwithstandingthetrialjudge’s own proclamation that he would admonish the jurors at every recess to refrain from viewing publicity and Page -405- media, and notwithstanding the ongoing request by counsel and objections by petitioner, or the acknowledgment that there was more publicity, as thetrial continuedthetrialjudge did not issue anyfurtherinstructionson this matter. (RT 3845 (noadmonishmentaboutmedia); RT4321 (no admonishmentsprior to recess regarding media); RT 4367 (no admonishments prior to recess regarding media); RT 4424 (no admonishmentsprior to recess regarding media); RT 4521 (no admonishmentsprior to recess regarding media); RT 4647 (no admonishmentspriorto recess regarding media); RT4760 (weekend recess— no admonishments regarding mediaprior to recess); RT 4866 (recess fora day—no admonishments regarding media prior to recess); RT4760 (jury recessed for Memorial Day weekend — no admonishmentregarding media prior to recess); RT 4813 (no admonishments prior to recess regarding media); RT 4929 (court adjourns for three days following the close of prosecution’s case — no admonishment regarding media); RT 5329 (no admonishments prior to recess regarding media); RT 5423-5424 (no admonishmentsprior to recess regarding media); RT 5442 (court adjourned from Wednesdayuntil following Monday—no admonishmentregarding media prior to adjournment); RT 5551-5552 (court adjourns — no admonishment regarding media prior to adjournment); RT 5625 (at close of instructions, court does not admonishjurors not to view media during deliberations); RT 5659 (jury excused for a week — no admonishmentregarding mediapriorto jury being excused); RT 5802 (court recesses for the day— no admonishment tojury regarding media); RT 5889 (recess with no prior admonishmentabout the media); RT 5914 (jury takes substantial recess for July 4" holiday — no admonishment about media prior to recess); RT 6026 (recess until next morning — no admonishmentabout media prior to recess); RT 6076 (recess Page -406- — no prior admonishment about the media); RT 6145 (recess at close of prosecution’s closing argument — no admonishmentnotto discussthe case, and no admonishmentabout the media); RT 6200-6201 (close of defense counsel’s closing, jury recessed until the next day—no admonishments about the media.)) 8. Thetrial judges’ willful refusal to admonish jurors not to view prejudicial to petitioner. First, it reflected the wholesale bias ofthetrial judge. Further, it permitted the jurors to obtain information aboutthe case. Such information could well have been obtained immediately prior to and directly impacted both the guilt and penalty phase deliberations. The court stated to the entire jury: You’re going to hear at the end of every session what we call an admonition. I’m going to admonish you. It is not really an admonition,it just makes good sense. And the admonition is as follows: that is, you’re instructed not to discuss the case among yourselves, with anyoneelse, or let anybody else talk to you aboutit. (RT 3844.) Legally, an admonition is an admonition, and violation of it is prejudicial and egregious, particularly where petitioner’s life was at stake. By saying that it was just a statement that made “good sense” the judge severely curtailed the import and impact of that what little he did warn the jury not to do. Evenin this discussion ofadmonition, however, the court did not even mention not viewing television, listening to the radio, or reading newspapersduringthetrial. 9. These omissions and commissionsbythetrialjudge prejudicially deniedpetitioner the right to a trial judge who was unbiased and conducted Page -407- the proceedingswith not only fairness, but an appearanceoffairness;the right to an impartial tribunal; and due process. D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution,individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 39: Judicial Bias - Misconduct: Prejudicial Orders Regarding Petitioner’s Testimony and Orders Favoring Prosecution Witnesses A. Petitioner’s conviction and sentenceofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution because, over strenuous objection of defense counsel, and without a hearing on petitioner’s competency, the trial judge ordered petitioner to take the stand. The court did so notwithstanding its earlier ruling that petitioner was incompetentto represent himself. Further, the trial judge curtailed crucial defense questioning of prosecution witnesses. These errors, interalia, manifested the trial judge’s overt and prejudicial bias, denied petitioner’s right to a trial judge who wasunbiased and conducted the proceedings with not only faimess, but an appearanceof fairness; a fair trial; an impartial tribunal; due process; and fair and reliable guilt and penalty phase determination. B. The following United States Supreme Court decisions, interalia, in effect at the time the error occurred, are presented in support ofthis claim: Jn Page -408- re Murchison (1955) 349 U.S. 133 (Constitution mandates both actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartialitywhere conduct duringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due —__—processmandatesimpartial tribunal);Ungarv. Sarafite(1964)U.S.575 — — — ——_— (Constitution mandatesthat trialjudge not only befree ofactual bias but also that there be no appearance ofbias); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly and fairly confront adversarial evidence); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentence partially based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); In re Winship (1970) 397 U.S. 358 (due process clause requires governmentprove beyond a reasonable doubt every element of the . crime with which defendantis charged); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created right); Eddings v. Oklahoma (1982) 455 U.S. 104 Gury must considerall relevant mitigating evidence in a capital case); Skipper v. South Carolina (1986) 476 U.S.1 (sentencershall not be precluded from considering as a mitigating factor any aspect of defendant’s character or record and circumstances of offense proffered); Fisher v. United States (1976) 425 U.S. 391 (Fifth Amendment protects a person against being incriminated by his own compelled, testimonial communications); and includingApprendi v. NewJersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendmentright to Page -409- trial byjury entitle criminal defendant to ajury determinationthat he is guilty ofevery element ofthe crime with whichis he charged, beyond a reasonable doubt — labeling as “sentencing factor” does not negate this right). C. The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiaryhearing are presentedin support ofthis claim,: 1. Thetrial judge found petitioner incompetent to represent himself. Hespecifically held: I find Mr. Welch is a defendant who doesnotappreciate the extent ofhis own disability and, therefore, cannot be fully aware oftherisk ofself-representation. I find the disability of Mr. Welchsignificantly impairs the capacity to function in a courtroom. You havefailed in your showing,and I have decidedthat a defendant facing the potential death sentence requires the assistance of competent counsel. You do not have the mental capacity to waive. Mr. Strellis and Mr. Selvin are your attorneys. (RT 84-86.) 2. At the close of petitioner’s case in the guilt phase ofhistrial, petitioner’s counsel informedthecourt that his client had made a request and wisheda brief recess to discuss whetherornotto take the standto testify in his own behalf. (RT 4999-5000.) Petitioner stated he was prepared to proceed “with the cross-examination of the accused and the prosecution in this matter, Your Honor; and I’m suggesting that we proceedat this time period.” (Id.) ' Page -410- 3. Petitioner’s counsel again suggested a recess, the least amount required considering the gravity ofthe decision petitioner was making. This was underscoredbythe express languageofpetitioner’s stated request, which referenced cross-examinationofthe accused andprosecution. This statement makesclear that petitioner was not aware of the risks or consequences involvedin his spontaneousdecisionto take the stand. This critical decision was subsequent to the day petitioner urinated inthe wellandengagedinother== conduct that cast serious doubt on whether he was competentto standtrial. Petitioner incorporates by reference Claims 2 and 19. 4. Following those few minutes, petitioner’s counsel stated, “I have a real problem and I would ask that we stand over until 2:00 o’clock.” The court responded,“No.” Mr.Strellis again asked,“Well, I’m making arequest for the record that we go over until 2:00 o’clock . . . I think it’s very important that we go over.” The court stated petitioner was ready to proceed even ifhis counsel was not. The court then directed petitioner to immediately “Take the stand.” (RT 5000-5001.) Ordering petitioner to take the stand, despite defense counsel’s request for a brief, several-hour continuance, was highlyprejudicial to petitioner’s case. Petitioner’s testimonywasrelied upon and consistently underscored in the prosecution’s closing argument. (RT 5497, 5500-5501, 5563-5564, 5567.) The jury did in fact convict petitioner on all counts and sentence him to be executed. (RT 5648-5666, 6227-6229, 6268.) 5. Soon thereafter, the trial judge refused to permit defense counsel to question witness Roko Lucin whether or not drugs were taken at the Mabrey house. This information wasclearly both relevant and critical to petitioner’s case in chief. The court twice sustained the prosecutor’s Page -411- objectionsto this line ofquestioning. Defense counselthen asked,“Ifnothing else, it goes to the issue of credibility.” The court again sustained the objection. Petitioner’s counsel then asked,“Wasanyoneelse getting high at the time?” Again, Anderson objected, and again the court sustained the objection. (RT 5232; see also RT 5405-5406 (court again sustains prosecution’s objections to questions posed by defense counsel regarding effects ofdrugs or alcohol on a pre-existing psychiatric condition).) Thetrail judge’s pro-prosecution actions manifested his bias and highly prejudiced petitioner’s case. These constitutionalerrors prejudicially denied petitioner his rights to an unbiased tribunal; a trial judge who was unbiased and conducted the proceedings with not only fairness, but an appearance of fairness; an impartial jury; due process; the prohibition against self- incrimination;andfair andreliable capital guilt and sentencing determinations. D. Eachoftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 40: Judicial Bias-- Prejudicial Curtailment and Inadequate Voir Dire A. Petitioner’s conviction and sentence ofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution because the trial judge failed to adequately voir dire jurors who had been exposed to extrinsic evidence. Further, the trial court curtailed voir dire ofprospective Page -412- jurors, preventing petitioner from ascertaining bias, and ensuring a pro- prosecution bias within the jury. These errors prejudicially impacted petitioner’s case and deniedhisright to a trial judge who was unbiased and conducted the proceedings with not only fairness, but an appearance of fairness; fair trial; due process; a fair and impartial tribunal; and a fair and reliable capital proceeding. B. The following United States Supreme Court decisions, interalia, in effect at the time the error occurred,are presented in support ofthis claim: Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates both actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (mpartialitywhere conductduringtrial has left personal stings; Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Mattox v. United States (1892) 146 U.S. 40 (fundamental rightto fair and impartial tribunal); Parker v. Gladden (1966) 385 U.S. 363; Ungar v. Sarafite (1964) 376 U.S. 575 (Constitution mandatesthattrial judge not only be free ofactual bias but also that there be no appearanceofbias); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly and fairly confront adversarial evidence); Gardnerv. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding wherepetitioner sentencepartially based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Jn re Winship (1970) 397 U.S. 358 (due process clause requires governmentprove Page -413- beyond a reasonable doubt every elementofthe crime with which defendant is charged); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Eddings v. Oklahoma (1982) 455 US. 104 Gury mustconsiderall relevant mitigating evidence in a capital case); Skipperv. South Carolina (1986) 476 U.S. 1 (sentencer shall not be precluded from considering as a mitigating factor, any aspect of defendant’s character or record and circumstancesofoffense proffered); Duncan v. Louisiana (1968) 391 U.S. 145 (Gury trial fundamental right); Wainwright v. Witt (1985) 469 U.S. 424 (constitutional standard re: excusingjurors); Nebraska PressAssoc. v. Stewart (1976) 427 U.S. 539 (judges have responsibility of protecting fundamental right to an impartial jury to ensure defendant receives a fair trial); Remmer v.. United States (1954) 347 U.S. 227 Gury tampering and unapproved private communication presumptivelyprejudicial, and court is to investigate jurors exposed to extraneousinfluences to determine prejudicial impact); and including Apprendi v. New Jersey (2000) 530 U.S. 466 - (Fourteenth Amendmentright to due process and Sixth Amendmentright to trial byjury entitle criminal defendant to ajury determinationthathe is guilty ofevery elementofthe crime with whichis he charged, beyond a reasonable doubt — labeling elementas “‘sentencing factor’’ doesnot negatethisright). C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support of this claim: 1. During voirdire, it became apparent that prospective jurors (in at least two groups of 90 prospective jurors) had prior crucial information Page -414- about this case and communicated this information to other prospective jurors. Cora Staten, a prospectivejuroron thefirst panel of90, Stated on voir dire that she did not remember anything aboutpetitioner’s case. (RT 1263.) However, defense lead counselStrellis elicited the following information from prospective juror John Banducci, who was voir dired shortly after Mrs. Staten: ~~MR.STRELLIS: Incidentally, have you— ever read anything about this case in the papers? MR.BANDUCCI: I didn’t~I wastrying to rememberthe first day we were here about hearing anything about this or reading. Notuntil someoneout there explained to me — one of the ladies — that what the actual story was, and rememberseeing it on the news but not until today. MR. ’‘STRELLIS: Somelady out there this afternoon MR. BANDUCCI: Yeah. MR. STRELLIS: —told you aboutit? Doyou recall what she told you? MR. BANDUCCI: She said — went through the case and just more orless said that the people that — or whatever went on regarding the house and everything and the gentleman cominginto the home with an Uzi machine gun and something to do with the mother left through the window. She was very — wasn’t very explicit about the whole thing. Page -415- MR. STRELLIS: She knew somedetails? MR. BANDUCCI: Yes. (RT 1294-1295.) 2. A discussion between Mr. Banducci, defense counsel, the prosecution and the court established that the prospective juror who had spoken to Mr. Banducci was Cora Staten. (RT 1294.) Of the 90 people comprising that first panel of prospective jurors, Grace Estarija, Carol Hayward and TimothyParkerwere eventually seated asjurors; Bernard Wells wasselected as an alternate juror. | 3. There were 82 people voir dired on the second panel of prospective jurors. On March 22, 1989, Etta Goins, a nurse who worked for North County Jail, wasthe first prospectivejuror to be voir dired. Associate counsel Selvin asked her if she had heard or read anything aboutthe case: MISS GOINS: I didn’t rememberuntil thefirst day that I was summoned, and when wegot out, I was walkingto the parkinglot, and I asked this lady that was with me — she was oneofthe prospective jurors. And I said: When did this happen because, you know, it was so gross. Seemed like I would have remembered. MR.SELVIN: Yes. MISS GOINS: Andshesaid it was back in °87. MR.SELVIN: That’s correct. MISS GOINS: Said it happened in East Oakland. She said the guy killed two kids and four adults. Page -416- (RT 2837.) 4. Although Mr. Selvin attempted to ask Miss Goins about the identity of the prospective juror she had talked to, the court cut him off without explanation and the woman’s identity was not established. (RT 2846.) Later that day, prospective juror Sandra‘Williams was questioned __abouther prior knowledgeofthe case: MR.SELVIN: I was wondering whether you have heard anything aboutthat? MISS WILLIAMS: No, not until the lady — thefirst lady that you interviewed wassitting in the waiting room, andshe told mea little aboutit. She wastalking aboutit wasin the papers in ’87 I think she said. That’s the first that I knewaboutit MR.SELVIN: She had mentionedthat she had read aboutthis case in the newspaper? MISS WILLIAMS:(Nodshead.) MR.SELVIN: What else do you rememberthat . she told you about the case? MISS WILLIAMS: Just that there were murders and children involved... (RT 2865-2866.) 5. Miss Williams later becamean alternate juror who wasin the jury room during deliberations. The “first lady that you interviewed” Page -417- referenced by Miss Williams was Etta Goins, who worked as a nurse at North County Jail and had a conversation regarding petitioner’s case with an unknown,prospective juror. Of the 8] remaining prospective jurors in the second panel, Richard Mignola, Kim Secrease, Virgie Williams, Joanne Gonzales, Joseph Cruz, Howard McGee and Yvonne McGrewwereseated as jurors; Brent Patterson and David Larson were alternate jurors. 6. Thus, there wereat least 180 prospective jurors who may have been exposedto extrinsic, prejudicial information regarding petitioner. Under these circumstances,the trial court was required to inquire and specifically ascertain whether or not prospective jurors were contacted by other prospectivejurors, had discussions with other prospectivejurors, or gleaned any information from other prospective jurors. Remmer v. United States, supra, 347 U.S. 227.) Despite ample evidence indicating a need for such inquiry, the trial court neverdidthis. 7. Petitioner stated he thought further voir dire was required to ascertain whether or not Mrs. Staten discussed the issue with prospective jurors. (RT 1377.) The court, however, declined to do so. Petitioner further objected that he felt the court had made gestures to counsel indicating that questions concerning previous news media accounts of the crime would be an inappropriate topic for voir dire. In fact, petitioner made a motion regarding this which the court denied. (RT 1378-1379). 8. On a numberof occasions, the court went out of its way to restrict crucial defense voir dire regarding thejuror’s knowledgeofextrinsic information. Prospectivejuror Leona Roumphstated that she heard and read about the case. As Mr. Selvin continuedto probe into what she knew about the co-defendant, the prosecutor objected and the court stated, “Mr. Selvin, Page -418- I’mnot going to let you go into that.” (RT 1685-1688.) Prospective juror Robert Brannan also read aboutthe case, and as Mr.Strellis began inquiring as to what facts he knew,the court stated: THE COURT: You’re not going to ask that question. MR.STRELLIS: Just for the record, you asked menotto. THE COURT: Sure have. MR. STRELLIS: Or ordered me. (RT 1713-1719.) 9. Mr.Strellis specifically insisted that there were more questions he wanted to ask regarding prospective juror Etta Goins’ knowledge of crucial elementsofthe case, gleaned from another prospective juror. All of this wasprior, extrinsic evidence which couldwellprejudiciallytaint thejury. (Remmerv. United States, supra, 347 U.S. 227; Mattox v. United States, supra, 146 U.S. 40; Parker v. Gladden, supra, 385 U.S. 363, see also Jeffries v. Wood (9" Cir. 1997) 114 F.3d 1484 (en banc), cert. denied, (1997) 522 U.S. 1007 (prejudicial extrinsic information imparted from one juror to another regarding defendant’s prior convictions mandatedreversal ofsentence and aggravated murder conviction).) Defense counsel wanted to ask prospective juror Goins whether she knew the nameofthejuror whotold her about the case, as well as the race of the juror who told her. The court curtailed this line of inquiry. At the sametime, petitioner and his counsel asked that alternate juror Sandra Williams be excused“based on thefactthat she has far too much familiarity with a variety of players in thislittle Page -419- melodrama.” The court denied both of petitioner’s motions. (RT 2912- 2913.) Later, Mr. Strellis renewed the challenge to potential juror Cora Staten, and wished to probe both her knowledge about the case and with whomshe spoke. The court stated, “I don’t think we have to go that far.” The court then denied a change of venue. (RT 3718.) 10. The unconstitutional conduct of the trial judge prejudicially impacted this case by creating a pro-prosecution jury, which ultimately convicted petitioner and sentenced himto death. (RT 5648-5656, 6227-6229, 6268.) These prejudicial errors denied petitioner’s rights to a fairtrial; an impartial tribunal; a trial judge who was unbiased and conducted the proceedings with not only fairness, but an appearance of fairness; due process;and the rightto a fair andreliable capital proceeding. D. Each oftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/orFourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. California Constitution becausethe trial judge made numerousdisparaging comments on petitioner’s character and conduct. Additionally, some ofthese disparaging comments were made by the trial judge in the context of prejudicially violated petitioner’s right to due process; to a trial judge who instructions to the jury. By so commenting andinstructing, the trial judge was unbiased and conducted the proceedings with not only fairness, but an appearanceoffairness;to an impartialtribunal;to a fair trial; and to a fair and reliable capital proceeding. Page -420- B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates both actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conduct duringtrial has left personal stings),Bergerv.UnitedStates(1921)255U.S.22(constitutionalmandate=2=*~=~CS~S~S proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Ungarv. Sarafite (1964) 376 U.S. 575 (Constitution mandatesthattrialjudge not only befree ofactual biasbutalso that there be no appearanceof bias); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantrightto directly andfairly confront adversarial evidence); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentence partially based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degreeofscrutiny in capital proceedings); Jn re Winship (1970) 397 U.S. 358 (due process clause requires governmentprove beyond a reasonable doubt every element of the crime with which defendantis charged); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Eddings v. Oklahoma (1982) 455 U.S. 104 Gury mustconsiderall relevant mitigating evidence in a capital case); Skipper v. South Carolina (1986) 476 U.S. 1 (sentencershall not be precluded from considering as a mitigating factor, any aspect of defendant’s character or record and circumstancesofoffenseproffered); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendmentrighttotrial byjury Page -421- entitle criminal defendant to a jury determination that he is guilty of every elementofthe crime with which is he charged, beyond a reasonable doubt — labeling as “sentencing factor” does not negatethis right). C. The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiaryhearing,are presented in support of this claim: 1. The Constitution of the United States mandatesthata trial judge not only be free of actual bias, but also that there be no appearanceofbias. (Ungar v. Sarafite (1964) 376 U.S. 575,588; Taylor v. Hayes (1974) 418 U.S. 488, 501.) Although such a rule may sometimes bar judges who have no actualbias “due process requires noless.” (Id.; In re Murchison (1955) 349 U.S. 133, 136.) Where,as here, such bias hasinfiltrated the proceeding reversal of both the sentence and conviction is required. (Berger v. United States, supra; People v. McNeer (1935)8 Cal.App. 2d 767.) In McNeer, this court reversedan order of conviction because the judge called the groaning from the defendant “‘theatricalism” and, after the defendant had been found sane,the trial judgesaid that he was “malingeringor faking.” The conviction was not savedbythe judgetelling the jury to disregard his remarks. 2. Here, the judge made consistent disparaging remarksto the petitioner throughoutthe trial. Such comments, completely unbefittinga trial judge in a capital case, demonstrate exceptional and unconstitutional bias towardspetitioner. 3. Throughout the proceedings, Judge Golde made specific, denigrating and partial comments to or about petitioner. At one point, petitioner indicated that he wanted the motion in limine withdrawn. Histrial Page -422- attorney stated that he felt the motion in limine would be beneficial and that he felt petitioner’s concerns regarding the motionin liminedid not necessitate withdrawing of this motion. This wasa tactical, strategic disagreement between counselandclient, but also a decision ofhis counsel. (RT192-193.) However, the court took this opportunity to make a biased and disparaging commentaboutpetitioner, therebymanifesting the court’s lack ofimpartiality. not cooperate, to stop the proceeding.” (RT 193.) 4. During voir dire, there was a colloquy betweenpetitioner and the court. Petitioner stated that he was specifically concerned about his mental state during trial. The court, however, again manifested overt biasbystating whatit believed the petitioner’s mentalstate to be: DEFENDANT: I’m -— I’m_ questioning my own competency. THE COURT: No, I feel you’re competent. I think you’re deliberately attempting to thwart thetrial. I think you’re competent as can be. You’re engaging in fraud and charade in an attempt to stop thetrial. (RT 1949-1950.) 5. The judge’s bias was further demonstrated through the personal affront that he took from petitioner’s innocuous and, in some cases, substantiated comments and observations. One example of such bias occurred whenpetitioner inquired why the court had curtailed an area of inquiry. Thejudgestated, “The court felt you were very insulting to the court ... the only reason the court was insulted, Mr. Welch, when youindicated when I excused a woman because she was Japanese. I don’t care about this at all.” (RT 2216.) However, the issue of racial bias wasa crucial area of Page -423- inquiry, not only with regard to prosecutorial misconduct, but with regard to judicial misconduct as well. Petitioner incorporates by reference Claims 9 through 14, 16, 33, 37, 39, 45, 48, 49, 50, 51, 55 and 78. . 6. Thetrial judge’s biased comments to and aboutpetitioner and particularly on his mental state, which wasat issue, continued throughout the trial. Petitioner attempted to explain to the court that on a previous day he was incompetent and incoherent when he was broughtbackto court. Thetrial judge stated:“No, you are just vicious and mean and causingtrouble.” (RT 3724.) That same day, petitioner, again pleaded with the court that he be given the opportunity for an adequate, independentpsychiatric evaluation,in a forum in which an adequate evaluation could take place. The court instead again responded with derogatory and biased observations ofpetitioner’s conduct. This is evidenced in the following colloquy: DEFENDANT: I’m going to ask I receive psychiatric evaluation. That’s what I’m asking. I —I believe I’m so upset, I am so humiliated — THE COURT: I believe that you’re deliberately trying to continue the case andstallit. (RT 3728.) Again, petitioner expressed doubt about his own mental state and ability to perceive. He informedthe court, “I don’t feel like I’m competent. I don’t know what’s going on in the proceedings.” (RT 3729.) Instead of treating this with any type of neutral response, the court inserted its own subjective point ofview whichdirectly squaredwith that ofthe prosecution’s. Specifically, the court informedpetitioner, “You’re competent, cunning, and wily.” (RT 3729.) | Page -424- 7. The judicial bias and disparaging remarks aboutpetitioner were express and put directly to and before the jury. This occurred in sarcastic comments to petitioner including, but not limited to the trial judge’s admonishing petitioner not to comment on the evidence. Petitioner then pointed out that a screen was pointed the wrong way,and that spectators were unableto see it. The court responded,in frontofthe jury, “Your concern for —spectatorsfills heart.” (RT3875-3876.) Itfurtherevidencedin specific directives and instructions to the jury, which were objected to by petitioner and/or his counsel. Laterin thetrial, the jurors apparently heard something outside the court. The court, sua sponte, stated: THE COURT: This is not unusual. It’s not unusual. He’s yelling.” MR. STRELLIS: Your Honor, what happens speaks for itself. THE COURT: You bestill. MR. STRELLIS: Maymyobjection be noted for the record? THE COURT: Yourobjection is noted. Don’t you start blurting out. (RT 4583.) The court then discussed petitioner’s behaviorto the jurors: I want to apologize twice, once for the delay this morning. . . And, secondly, I’m going to apologize for Mr. Welch. AsI told you in the beginning. . . I shall have him come down, ask him if he wishesto participate in the trial, behave, and follow the rules. If he does, he’s welcomehere. If not, we may haveto have a repetition of what occurred. (RT 4593.) Page -425- 8. During the actualinstructionsto the jury in the guilt phase, the court specifically directed thejury that petitioner wasable to restrain himself and that his conductin the courtroom waspurposeful: Now, ladies and Gentlemen, we have seen Mr. Welch absent himselffrom the court. I want you to understand that we wanted him in court. We set down certain rules. He refused to obey them,andI knowthatis upsetting to you. It’s, in candor, upsetting to me. (RT 5572.) 9. These errors, individually and cumulatively, significantly prejudiced petitioner’s case. The judge was overtly biased towards petitioner, and the jury could not help being influencedbythis bias, since it wasnotonly continuous but also came in the form ofinstructions. Further, the trial judge’s bias manifesteditselfnot only in these overt comments, but also in highlypartial rulingsin favor ofthe prosecution and againstpetitioner; curtailment of constitutionally required voir dire; instructions which prejudiced voir dire; and leniency towardsovert, continuing and substantial prosecutorial misconduct. D. Eachofthese errors, in violation of the Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendments to the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 42: Judicial Misconduct--Abdication of Duty--Misguiding and Leaving Jury During Deliberations A. Petitioner’s conviction and sentence ofdeath are violations ofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution Page -426- and article I, sections 7, 15, 16 and 17 ofthe California Constitution because the trial judge left the court for the last two days of the guilty verdict deliberations, turned his courtroom overto another judge, and informedthe jury that the otherjudge would not wantto give them instructions aboutthe law. Nonetheless, he permitted the jurors to continue deliberations. This wholesale abdication of duty, not only permitting butalso directing the jury to deliberate without having ajudge to whichit could turn forlegal guidance, violated petitioner’s constitutional rights, including: the rightto a fair trial; right to be tried byan impartialjury; the right to an impartialtribunal; the right to a trial judge who was unbiased and conducted the proceedings with not only fairness, but an appearanceoffairness; due process;and therightto fair and reliable capital proceedings and sentence. B. The following United States Supreme Court cases,interalia, in effect at the time the error occurred, are presented in support ofthis claim: In re Murchison (1955) 349 U.S. 133 (Constitution mandates both actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartialitywhere conduct duringtrial has left personal stings; Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation wherenotimelycross-examregarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardnerv. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding Page -427- wherepetitioner sentenced on basis of unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial ofdue process whereinstruction susceptible to an interpretation that removed prosecution’s burden of proving element of intent beyond a reasonable doubt); Jn re Winship (1970) 397 U.S. 358 (due processclause requires government prove beyond a reasonable doubt every elementofthe crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independent jury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created right); Bollenbach v. United States (1946) 326 U.S. 607 (completenessin supplemental instruction constitutionallyrequired); and including Apprendi v. New Jersey (2000) 530 U.S. 466; Duncan v. Louisiana (1968) 391 U.S. 145 (right to both trial and impartial jury conferred to prevent oppression by the government); Nebraska Press Association v. Stewart (1976) 427 U.S. 539 (judges have a constitutional responsibility to protect the right to an impartial jury andassuringfairtrial). C. The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiaryhearing, are presented in support of this claim: 1. On Thursday, June 15, 1989 the jury was deliberating the guilt phaseverdict ofpetitioner. On that day, Judge Golde informedthe jury that he would not be in court the following day. Rather than releasing them from deliberations for the day he would be absent, the judge asked the jury to decide if they wished to keep deliberating in his absence. (RT 5645.) Page -428- 2. The foreman forthe jury stated that the jurors did want to keep deliberating, notwithstanding the judge’s absence. Judge Golde informed them that there would be another judge “who could take the verdict from you.” He then instructed the that with respect to the substitute judge: In terms of the law, he probably wouldn’t want to instruct you as to the law. ~ But in termsofreceivinga verdict, he can do that. © (RT 5646) (emphasis added.) The jury did continue deliberating through the entire day of Friday, notwithstanding Judge Golde’s absence, and notwithstandingthe directive not to ask the substitutejudge for instructions“as to the law” which “he probably wouldn’t wantto instruct”. 3. These proceedings and this abdication of constitutionally mandated duty to direct and guide the jury, occurred whenneitherpetitioner nor his counsel were present. (RT 5646.) Neither petitioner nor his counsel had anyidea this wasoccurring, and therefore had no opportunity to object to this unconstitutional procedure. They had no idea that Judge Golde informedthejury that the substitute judge wouldnot wantto instruct the jury as to the law, thereby leaving the jury unconstitutionally adrift. (RT 5645- 564.). 4. Thejury apparently did reconvene and deliberate for the working day when the judge was absent. At 2:21 p.m.on the afternoon of June 16, 1989 the petitioner and counsel werenotpresent. At that time,the substitute judge introduced himselfto thejury and such introduction occurredat the end of the day oftheir deliberations. His entire colloquy with the jury was as follows: Page -429- THE COURT: And my name is Judge Delucchi. I’m standing in for Judge Golde. Myunderstanding is you folks want to go homethis afternoon until Monday? JUROR NO. 9, MR. PARKER: Yes. THE COURT: Let me just admonish you you’re not to discuss this case among yourselves or with any other people or to form or express any opinion aboutths caseuntil all 12 jurors are present in the courtroom and — in the jury room, and then you can begin yourdeliberationsat that time but not until all 12 jurors are present. Have a nice weekend. (RT 5647.) 5. Duringthe final guilt phase deliberations in this capital case, the jury wasleft to function on its own. Thejurors did not know whothejudge was duringtheir final deliberations, as he did not introduce himselfuntil the close of that day. They were only informed and directed that the substitute judge would not want to answerquestions of law. Therefore, any questions of law could not be answered. At 10:47 a.m. on June 17, 1989, the jury found petitioner guilty on all counts. (RT 5648-5658.) 6. This unreliable and unconstitutional deliberation violated petitioner’s right to a fair trial; an impartial tribunal: to reliability in a capital proceeding; and to due processoflaw. D. Eacherrorin violation of the Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantialand injuriouseffectorinfluence in determining the jury’s verdict. Page -430- Claim 43: Judicial Misconduct--Instructional Error-—Unconstitutionally Precluding Jurors’ Consideration ofEntire Testimony (Angela Payton) A. Petitioner’s conviction and sentence ofdeath are violative of the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution because the court, over defense objection, refused to read back the entire testimony ofkeyprosecutionwitnessAngelaPayton. The jurors specifically asked for a statement from the witness’s testimony, but the court ruled that there was no obligation for the jury toread the entire testimony. This preclusion unconstitutionally impacted thejury’s deliberation,in violation ofpetitioner’s _ Tights to a fair trial; impartial judge, impartial jury, requisite degree of reliability in a capital proceeding, dueprocess, the right ofconfrontation; and the rightto a fair and reliable capital defense. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Mills v. Maryland(1988) 486 U.S. 367 (death penalty invalid wherejurymay have believedthat findings ofmitigating circumstances must be unanimous); Eddings v. Oklahoma (1982) 455 U.S. 104 (jury must considerall relevant mitigating evidence in a capital case); Skipper v. South Carolina (1986) 476 U.S. 1 (sentencer shall not be precluded from considering as a mitigating factor, any aspect of defendant’s character or record and any circumstances of offense proffered); In re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conduct duringtrial Page -431- has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandateproscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly confront adversarial evidence; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross- examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross-exam regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentence partially based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutinyin capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial ofdue process whereinstruction susceptible to an interpretation that removed prosecution’s burden of proving element of intent beyond a reasonable doubt; Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every elementofthe crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independent jury considerationoffacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannot be concluded from giving effect to finding of lesser offense); Johnsonv. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use of unreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 U.S. 607 (completeness in supplemental instruction constitutionally required); Apprendi v. New Jersey (2000) 530 U.S. 466 Page -432- (Fourteenth Amendmentright to due process and Sixth Amendmentright to trial byjury entitle criminal defendanttoajury determinationthatheis guilty ofevery element ofthe crime with whichis he charged, beyond a reasonable doubt-labeling as “sentencing factor” does not negate thisright). C. The following facts, among others to be developed after adequate TS ing, discovery, investigation, and an evidentiaryhearing,are presentedin support of this claim: 1. During guilt phase deliberations the jurors specifically requested the re-reading of testimony. One ofthose requests wasfor the testimony of prosecution witness Angela Payton. (RT 5629. ) Specifically, the foreman requested: The passage I believe we are concerned with concerns the statement that David Welch allegedly made at Walker’s house to Angela Payton. Shetestified to that. (RT 5629-5630.) The court, counseland petitioner then discussed what information the jury was referencing. Prosecutor Andersonstated to the court that he could “pinpoint” the testimony. Petitioner objected to the prosecution’s involvement in this search and read-back to the jury. (RT 5629-5630.) 2. The court clerk then apparently read onlythe direct testimony of Angela Payton to the jury. The record states: “The direct examination of Angela Payton, page 4528,line 18, through page 4539, line 27, was read.” (RT 5630.) None of this read-back testimony was reported or recorded. (Ibid.) Page -433- 3. The defense counsel strenuously objected to reading back only the direct testimony, and expressly requested that the cross-examination regarding that specific issue be read as well. The court repeatedly denied this request. (RT 5633-5634.) The pertinent colloquy between counsel and the court on the matter occurred as follows: MR.STRELLIS: THE COURT: MR.SELVIN: THE COURT: MR. SELVIN: THE COURT: MR. SELVIN: Andthe last point I will leave to Mr. Selvin because he raised it. And that has to do with whether or not we should read the cross- examination as well as the direct examination. Let meseetheir note, please. They want Angela Payton’s statement to Mr. Landswick. That didn’t coverit. So, therefore, theywanted —I had him readher statement. Upon the completion ofthe cross, they said they hadall that they wanted. You may say whatever you want for the record, Mr. Selvin. Yes. I’m going to haveto find it, Your Honor. There was cross-examination with respect to Miss Payton’s testimony about whatshe said that Mr. Welch had stated when he came backto Sherrie’s house. Perhaps over the noon hour — If you have a particular thing you want, I can ask the jury if they want it. We can discussit then. ] think if they ask for the statement,it’s my understanding of the law that means the direct with respect to that statement plus the cross- examination. They asked for a certain — they didn’t ask for that at all, Mr. Selvin. They asked for the ' material given to Mr. Landswick, which I gave. Yes, Your Honor. Page -434- THE COURT: That didn’t cover it, so we decided to read Angela Payton. Upon the completion of the direct, as we were going to take our noonrecess, the juror says that’s the point we’re concerned with. There’s no obligation to have the jury to read [sic] the entire testimony. However, ifyou wantto do something overthe lunch hour,that’s - fine. In the meantime, we’ll be in recess. (RT 5633-5634.) 4. There was no record as to what occurred during the lunch hour. The record indicates that defense counsel objected, but the judge’s original ruling, precluding reading of the cross-examination testimony, followed. Accordingly, only the direct testimony of one of the prosecution’s star witnesses wasre-readto thejury duringtheir deliberations. (RT 5648-5656.) 5. The testimony ofAngela Payton wascrucialto the prosecution’s case. In his opening statementat the close ofthe presentation ofevidenceat the guilt phase, the prosecution specifically underscored Angela Payton’s testimony and the statements contained therein, which werethe subject matter of the jury’s deliberation inquiry: Angela Paytontestified next. She talks about the statement of the defendant at the time after the accident when he was getting ready to leave. You will recall that. “Ill be back and everybodyin this”, profanity used, “houseis going to be dead”. She saw him later at 12:30 in the morning after he told Dolores what he was going to do. Andifyou will recall what he said around 12:30, Dolores came aroundandsaid,“Thereis going to be someshit happening tonight”. We heard from Beverly Jermany, the cousin of the defendant and shetestified to the arrival of Moochie and the woman she did not knowat 5 a.m. , 5 a.m., around 5 a.m. on the morning of Decemberthe 8". Page -435- (RT 5481.) Shetestified about how Moochie wasdraggedin because he was wounded and Rita told that there was an accidental shooting. She accidentally shot David Welch in theleg. It was strange, and whatshe thoughtstrange, nobody wanted medical attention. Nobody. In fact, Moochie askedfor her to call a cab at that point, and she decidedto get the child out ofthe house and worried about her being an accomplice by nottelling anybody and went and sought out Officer Stevens and asked him whatshe should do and becamesuspicious when nobody wanted medical attention, and of coursethat led to the seige [sic] at 2116 103™ Avenue. 6. The prosecution further underscored Angela Payton’s testimony in his closing argumentin the penalty phase of the case. He utilized this testimonynot only for the statementsshe allegedly heardthe petitioner make that night but also to undermine the credibility of petitioner’s expert witnesses. At the penalty phase the prosecution argued: Here is some more voodoo. “Question: Okay. Doctor, when Mr. Welch made the commentin frontofothersthat whenthe police are gone hewill be back and kill everybodyin the house, what did thatindicate to you? Answer:I, I don’t know. It is taken out of context.” This guy is getting paid the bug bucks. Heis a psychiatrist and he doesn’t know what that meant? “It is out of context.” Well, I'll tell you what, Angela Payton, the one who probably hasn’t ever seen a collegein herlife, knew that when Moochie said he would be back and kill everybody in the house, she generally stayed in the house. She had no trouble knowing what Moochie meant because she didn’t stay in the Page -436- housethat night. But the $5,000 man says,“It was taken out of context”. Come on. Give me a break. Give me a break. (RT 6133.) 7. The cross-examination testimony, which should have been but wasnot re-read to thejury, explicitly and repeatedly impeachedthe testimony ofAngela Payton. (RT 4540-4563.) This occurred,inter alia, through prior ~ Inconsistent statements to the police and the district attorney. (RT 4541.) Angela Payton’s statement to Mr. Landswick, which was the precise information the jury requested, was reviewedin detail. Her statement to Mr. Landswick wascrucial to petitioner’s case because petitioner’s counsel elicited a change in her testimony from immediately after the offense to the time she took the witness stand. After the offense, she stated thatpetitioner has a specific look when he’s about to do something aberrant. That look is onethat he has whenheis “crazy”. (RT 4559.) Angela Payton did nottestify anything regardingpetitioner’s “crazy”state ofmindinthe prosecution’s case in chief, and it was only throughthis crucial cross-examinationthat the truth ofMs. Payton’s perceptions waselicited and presented to the jury. The area of cross-examination regarding statements to Landswick included the following colloquy: Q: And you saw him, you sawthat look in his eyes; right? A: Correct. Q: That look in his eyes which you havesaid time and time again Islike he is crazy; right? A: No,it was the look of violence. MR. ANDERSON:Objection, Your Honor. The statement of— Page -437- THE WITNESS: __ It was the look ofviolence. MR.SELVIN: Q. The look ofviolence? A: Yes, it was the look of violence. It wasn’t crazy. Q: Okay. Let me ask you this: Do you remembergiving the statement to Mr. Lanswick [sic]? That is the D.A.’s investigator. MR. ANDERSON: No. Not a D.A.’s investigator. MR. STRELLIS: D.A. MR.SELVIN: I’m sorry. Qa A D.A.. District attomey. I’m sorry. On the-- MR. ANDERSON:13". MR.SELVIN: Ofwhat, counsel? MR. ANDERSON:April 13th of 1987. MR. SELVIN: Q. Do you remembertalking to Mr. Lanswick[sic] of the District Attorney’s Office? A. Yes. Q. Andhe asked you some questions, and he asked you some questions about what happened on October 12th; right? A. Correct. Q. On October 12th, he asked you about whether you had seen David at that time when hedriving [sic] the car and trying to run down Barbara;right? A. Correct. Page -438- Q. And he asked you whatdid you see. And on line 11, you said to him — line 12, you saw him smiling; right? A. Correct. Q. Then Mr. Landswickasked you: (Reading) Okay. And you say hehas a certain posture whenhedriving[sic] that car? And you say, answer: Yeah, whenhe, uh — when he’s about ~~~to-dosomethinglike that, he = helikesquincheshiseyeballs, = looks at you, you know,crazy. (End reading) Didn’t you give that answer? A. Correct. (RT 4557-4559.) 8. It is well established that in giving additional instructions to a jury, particularly in response to inquiries from the jury, a court must be especially careful not to give an unbalanced charge. Where as here a jury has been unable to reach a decision onthe basisofall it has heard upuntil that time, the Constitution demands an exactingsensitivity on the part ofthe court to give an accurate and complete instruction. Bollenbach v. United States, 326 U.S. 607; United States v. Meadows, (5" Cir. 1979) 598 F.2d 984, 988. In Bollenbach, the United States Supreme Court reversed a criminal conviction because the trial court did not give this requisite, complete guidance upon requestfor re-instruction by thejury. “The place of importancethattrial byjury hasin our Bill ofRights” demandsnoless. (/d. at p. 615.) 9. The judge’s refusal to permit the jury to hear the crucial cross- examination ofAngela Payton washighlyprejudicialto petitioner. It clearly Page -439- and directly impacted both the guilt and penalty deliberations. The prosecutor specifically argued these statementsin support ofhis contentions that petitioner was guilty on all counts, and in support ofhis contention that death wasthe appropriate punishment. Thecourt did nothing to correct the misinformation provided in the direct testimony, which was expressly impeached in cross-examination. This error manifested the judge’s bias, partiality, and prejudicially deniedpetitionerhis rightstoa fair trial; impartial jury; due process; confrontation,and theright to areliable capital proceeding. D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution,individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 44; Judicial Error--Misconduct--Court’s Violation ofPenal Code Section 190.4 and Constitutional Guarantees in Modification ofSentence A. Petitioner’s conviction and sentenceofdeath areviolationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and Article I, Sections 7, 15, 16 and 17 ofthe California Constitution because the court improperly considered the probation officer’s report in ruling on the Penal Code Section 190.4 Automatic Motion for Modification of Sentence. This report in and ofitself was highly partial, unreliable, and prejudicial to petitioner. In so doing, the court violated California Penal Code Section 190.4(e) and violated the constitutional rights guaranteed to petitioner, includingrightto a fair trial; the right to a trial judge who was unbiased and conductedthe proceedingsnotonly with fairness, but with an appearance of Page -440- fairness; confrontation rights; due process oflaw and due process as violation ofa state-created right; and the rightto fair andreliable capital proceedings and sentence. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: _UnitedStates v. Tucker (1972) 404U.S. 443 (due process required that defendant not be sentenced on basis of misinformation of constitutional magnitude); Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and ‘appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455(constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488(impartialitywhere conductduringtrial has left personalstings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribingall judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly confront adversarial evidence; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross- examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross-exam regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occurthrough introduction of hearsay); Gardnerv. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentence partially based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial ofdue process whereinstruction susceptible to an interpretation that Page -441- removed prosecution’s burden of proving element of intent beyond a reasonable doubt; Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every elementofthe crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independent jury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannot be concludedfrom giving effect to finding of lesser offense); and including Johnson v. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use ofunreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 U.S. 607(completeness in - supplementalinstruction constitutionally required); Estelle v. Smith (1981) 451 U.S. 454 (gravity of decision made at penalty phase mandatesstate’s adherence to constitutional guarantees); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendmentright to trial by jury entitle criminal defendantto a jury determinationthat heis guilty ofevery element ofthe crime with whichis he charged, beyond a reasonable doubt— labeling as “sentencing factor” does not negate this right). C. The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiaryhearing, are presented in support ofthis claim: 1. Penal Code Section 190.4(e) provides that after the jury has rendered a verdict opposing the death penalty, court must rule on a convicted individual’s automatic motion for modification of sentence. Thetrial court is commandedas follows: Page -442- [T]he judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstancesreferred to in Section 190.3, and shall make a determination as to whetherthejury’s finding and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. (California Penal Code Section 190.4(e).) _~ ~ ~~ “2. ~The trial court failedtoproceedinthemannerrequiredby law== in denying petitioner’s automatic modification motion. Byits terms, Penal Code Section 190.4(e) limits the trial court’s review of the evidence to the same evidence before the jury. In this case, rather than limiting its review to the evidence received by the jury, the trial court specifically and expressly considered the probation officer’s report, prior to ruling on the automatic modificationmotion. Prior to ruling on the motion,the court stated that it was “in receipt of the probation report” and indicated later that it had read and considered the report of the probation officer in ruling upon the automatic modification motion. (RT 6235, 6236, 6256.) Page 14 of the probation report itself states: “I have read and considered the foregoing report” andis signed by Judge Stanley Golde in the Superior Court. 3. It is firmly established State law that the trial court should not consider the probation officer’s report prior to ruling on the automatic modification motion. (See People v. Wader, 5 Cal.4th 610, 665-666 (error to consider probation report); People v. Fauber (1992) 2 Cal.4th 972, 866 (“consideration ofthe probation report . .. before ruling on the application for modification is... error”).) This requirement is intended to ensure that the probation report does notinfluence the ruling on the automatic modification motion. (People v. Lewis (1990) 50 Cal.3d 262, 287.) Page -443- 4. The probation report was highly partial and prejudicial. In the probation officer’s report and recommendation, the probation officer expressly relied upon statements petitioner allegedly made to the media, withoutanyjustification thereof. (Exhibit___, Presentencing Report. ) The report sets forth the “circumstances in aggravation” and “circumstances in mitigation” as follows: Rule 421: Circumstances in Aggravation: (a)(1) The crimes involved extreme violence, great bodily harm,cruelty, viciousness and callousness. (a)(2) The defendant was armed with two weaponsatthe time of the commission ofthe offenses. (a)(3) The victims were particularly vulnerable in that the crime occurred at 4:30AM and most were asleep when they were killed. Two were young children and the remaining victims were cornered in a bedroom and killed or wounded. (a)(4) The crimes involved multiple victims, six murdered, two wounded. (a)(S) The defendant induced his girlfriend, Rita Lewis, to participate in the crime. (a)(8) The planning and sophistication ofthe offense indicates premeditation. (b)(1) The defendant has engagedin an almostlifelong pattern ofviolent conduct which indicates that he has been and continuesto be a serious dangerto society. (b)(2) The defendant’s prior convictions as an adult and adjudications ofcommissionofcrimesas ajuvenile are numerousandof increasing seriousness. (b)(3) The defendant hasserved prior prison terms. Rule 423: Circumstances in Mitigation There are no circumstances in mitigationthat apply in this matter. Rule 425: Circumstances Affecting Concurrent or Consecutive Sentences: (a)(2) The crimes involved separate acts of violence. (a)(4) The matter involved multiple victims (although charged as separate crimes). Page -444- (a)(5) The convictions for which sentencesare to be imposed are numerous. B. There are factors in aggravation listed above. There are no factors in mitigation. (Probation Report at 12-13.) This report wholly fails to reference anyofthe factors potentially in mitigation for petitioner, including but notlimited to the extensive testimony ofpsychologists andpsychiatrists in petitioner’s halfin the guilt and penalty phaseofthetrial. 5. Petitioner’s counsel did not submit any written statement for the preparation ofthe report. (Exhibit__, Presentencing Report, p. 8.) Petitioner wasdeniedtheright to review or commentonthe probation report bythetrial judge. (RT 6241-6242.) Further, petitioner incorporates by reference Claims 31,37, 45, 67 and 78.. 6. Theseerrors denied petitioner his constitutionalrights, including the right to a fair and reliable sentencing proceeding in the motion for modification ofsentence proceeding, Section 190.4; the right to due process in this proceeding; the right to due process oflaw for violation ofthe state- created right set forth in Section 190.4(e); the confrontation clause right for denying petitioner access to or opportunity to question the probation report; the Fifth Amendment right against self-incrimination for incorporating petitioner’s non-participation andas a consideration in aggravation; and the rightto a fairtrial. D. Eachoftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually Page -445- and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 45: Judicial Misconduct — Review Error: Constitutionally Erroneous Application of Penal Code Section 190.3 to Ruling on Automatic Modification Motion A. Petitioner’s conviction and sentenceofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution because the trial court did not consider, take into account and be guided by the aggravating and mitigating circumstancesreferredto in Section 190.3, didnot understand the statutory scheme, anddid not properlyre-weigh independently the evidence of aggravating and mitigating circumstances. These errors deniedpetitionerthe rightto a trial judge who was unbiased and conducted the proceedingswith notonlyfairness, but an appearanceoffairness;the right to fair and reliable capital proceedings and sentence; due process oflaw; due process of law encompassinga state-created right; anda fairtrial. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: United States v. Tucker (1972) 404 U.S. 443 (due process required that defendant not be sentenced on basis of misinformation of constitutional magnitude); Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conductduringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 Page -446- (constitutional mandate proscribingall judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly confront adversarial evidence; Coy v. lowa (1988) 487 U.S. 1012; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska examination regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur throughintroduction ofhearsay); Gardnerv. Florida (1977) 430 U.S. 439 (due processviolation in capital proceeding where petitioner sentenced on basis of unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendment requires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptible to an interpretation that removed prosecution’s burden ofproving elementofintent beyond a reasonable doubt); Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every element ofthe crime with which defendantis charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 Gurors cannot be concluded from giving effect to finding of lesser offense); Johnson v. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use of unreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 U.S. 607 (completeness in supplementalinstruction constitutionallyrequired); Estelle v. Smith (1981) 451 U.S. 454 (gravity of decision made at penalty phase mandatesstate’s Page -447- adherence to constitutional guarantees); and including Apprendi v. New Jersey (2000) 530 U.S. 466. C. The following facts, among others, to be developed after adequate funding, discovery,investigation, and an evidentiaryhearing,are presented in support ofthis claim: 1, The trial court did not properly apply Penal Code sections 190.3(d) or (h). Rather, the court used the substantial evidence of defendant’s pre-existing and longstanding mentalillness as an aggravating circumstance. Subdivision (d) of Penal Code section 190.3 requires review of the following factor: Whetheror not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. In a case eight years before petitioner’s, this Court recognized that Penal Codesection 190.3 “seemsto have incorporated mostofthe factorsset forth in the Model Penal Code.” (People v. Jackson (1980) 28 Cal.3d 264, 316.) | 2. Subdivision (d) of Penal Code section 190.3, is identical to Model Penal Code section 210.6, subdivision (4)(b). They identify the mitigating circumstanceasa fact that “the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.” The Model Penal Code commentary states: | [T]he Code recognized that, even where extreme emotional distress is not subject to reasonable explanation or excuse,it maybe weighedagainst the imposition ofthe capital sanction. Generally speaking, one who killed in a state of extreme Page -448- emotional disturbance is not as blameworthy as one who murders while in normalcontrolofhis faculties. (Model Penal Code & Commentaries, com. to § 210.6, p. 138.) Subdivision (h) of Penal Code 190.3 requires review of: Whetheror not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to _ conform equirementswas impairedas a result ofmentaldisease or defect, or the effect of intoxication. This subdivision sets forth a factor that can only be considered mitigating. Moreover, the lack of mitigation under factor (h) cannot be considered as aggravationsinceits absence “would not automaticallyrenderthe crime more offensive than any other murderof the same general character of people.” (People v. Davenport (1985) 41 Cal.3d 247, 289.) 3. In considering these factors, the trial court concluded that _ petitioner did not suffer from any “extreme mentalor emotional disturbance” and had the “capacity to appreciate the criminality of his conduct and conform his conductto the requirements ofthe law.” (RT 6251, 6252, 6255.) The court totally discountedthe substantial evidence ofintoxication and drug use. (RT 6252.) The court also totally discounted the testimony of the experts and the underlying data which showedpetitioner to be mentallyill. (RT 6253.) 4. It is clear that the court was not properly considering the substantial evidence regarding petitioner’s mental state introduced during the guilt and penalty phases. The court, in ruling on the motion to reduce the penalty, found petitioner was not mentally incapacitated, despite its earlier ruling that petitioner, by virtue of his mentalillness, was not competent to Page -449- waive his right to an attorney. (RT 75-77.) These rulings are entirely contradictory and cannot be reconciled. Therefore, the court arbitrarily ignored its own specific findings regarding petitioner’s lack of capacity in considering subdivisions (d) and (h). Instead, the court focused on petitioner’s conduct duringtrial. The court utilized such conductto support | its belief that petitioner feigned mental illness to stop the trial instead of finding such circumstancesto be evidenceofhis “incapacity to waive.” This erroneously, and unconstitutionallyturned the petitioner’s mentalillness into an aggravating circumstance. (RT 6253-6254.) 5. The court’s faulty interpretation of its mandatory duty in ruling on the modification motionviolated the constitutional commandsofthe Fifth, Sixth, Eighth andFourteenth Amendmentsto the UnitedStates Constitution, abridged the directives of pertinent California statutes, Code, Constitution, andthe death penalty schemeas awhole, and denied petitioner’s rights to due process, due processas a violation of the state-created right, a fair and reliable capital sentencing proceeding,a fairjudge, confrontation rights, and a fairtrial. D. Each oftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentstothe United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 46: Judicial Error--Prejudicial Shackling A. Petitioner’s conviction and sentence ofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, Page -450- and article I, sections 7, 15, 16 and 17 ofthe California Constitution because during thetrial the jury saw petitioner in shackles. This incident was highly prejudicial and impacted the decision to find petitioner guilty of the death- qualifying crimes charged. Permitting petitioner to appear in shackles violated his rights to a fair trial; due process of law; an impartial jury; the rightto a trial judge who was unbiased and conducted the proceedings with not only fairness, but also an appearanceoffairness; and therightto fair and reliable capital proceedings and sentence. B. The following United States Supreme Court decisions,inter alia, in effect at the time the error occurred, are presented in support of this claim: Estelle v. Williams (1976) 425 U.S. 501; In re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S.455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conductduringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400(confrontation clause provides criminal defendant right to directly confront adversarial evidence; Coy v. Iowa (1988) 487 U.S. 1012; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross- examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross-examination regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentencedon basis ofunreliable information); Godfrey v. Georgia Page -451- (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree ofscrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial ofdue process whereinstruction susceptible to an interpretation that removed prosecution’s burden of proving element of intent beyond a reasonable doubt); Jn re Winship (1970) 397 U.S. 358 (due process clause requires governmentprove beyonda reasonable doubt every elementofthe crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjury consideration of facts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannot be concluded from giving effect to finding of lesser offense); Johnson v. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use ofunreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 U.S. 607 (completeness in supplemental instruction constitutionally required); Estelle v. Smith (1981) 451 U.S. 454 (gravity ofdecision madeat penalty phase mandatesstate’s adherence to constitutional guarantees); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Jury must decide truth of sentencing factors.) C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support ofthis claim: 1. Petitioner was heavily shackled whenhe wasled to and from the courtroom. | 2. The jury room waslocated on the floor above the trial court wherepetitioner’s trial was taking place. The jury wasspecifically led past petitioner while he was heavily shackled during his transport from the Page -452- _case. courtroom and their movementsto the jury room. (Exhibit 8, Declaration of Joe Cruz; Exhibit 35, Declaration of Bernard Wells) 3. It wouldhave beenentirely possible for the jury and petitioner to have beenled throughthis area at separate times. However, from the record, it is apparent that no effort was madeto seperate the petitioner from the jury so that they would not see his heavy shackling during the guilt phase of his 4. No specific determination was madeas to the need to transport petitioner andjurors in amannerwhichpermittedjurors could clearly see and be impacted by petitioner’s shackling. There was no hearing conducted on this matter, and no finding as to why any compelling security risks required the jurors to pass petitioner on his way to and from court. See Rhoden v. Rowland (9" Cir. 1999) 172 F.3d 633 (abuse of discretion to shackle defendant before jury without proper determination as to security need for shackles — state bears high burden tojustify shackling.) 5. From the inceptionofhis case, there was a history of excessive, unwarranted andprejudicial security measures used on petitioner. During the pretrial proceedings of September 30, 1987, petitioner’s counsel stated: I’ve had situations where Mr. Welch hasactually been broughtto an interview room to interview with me, his lawyer, in chains. And I asked them, “Would youpleasetake the chains offofMr. Welch while weare in this locked room,”inside of those additional three locked, sliding doors that you need someoneto opento get through. And they say, “No, by order ofthe sergeant these chainsare to stay on him atall times.” (CT 716.) On December21, 1987, petitioner’s counsel requested the removal of his shackles for court appearances: Page -453- [W]e are going to ask that the shackles be removed every time he comesin court . . . He is the only person I know that comesinto this court shackled andthere is no apparentbasisfor it as far’as I know. (RT Misc. Vol. 1 at 24-25.) At the beginningofpetitioner’s trial, defense counsel requested: Your Honor, I would make a request that while myclient is in a cell upstairs on the 10" floor he not be shackled. That seemsa little bit of overkill once you got him in jail cell being also shackled. (RT 12-13.) 6. This viewing had a prejudicial impact on the jury duringthe guilt phase and guilt phase deliberations of the case. The jury’s viewing of petitioner in shackles reinforced and lent credence to the argument that petitioner would be dangerous,in the future prison settings if permitted to live. In addition, the shackling its self, and petitioner’s knowledgethat the jury had seen him in shackles, contributedto petitioner’s deteriorating metal state and decompensation. (Exhibit 8, Declaration ofJoe Cruz; Exhibit 35, Declaration of Bernard Wells.) D. Eachofthese errors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 47: Judicial Error--DenialofPetitioner’s Right to Expert Psychiatric, Psychological and Requisite Medical Assistance in the Guilt Phase A. Petitioner’s conviction and sentence ofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, Page -454- andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution because in the guilt phase the petitionerwas deniedcritical, psychiatric, psychological, and other medical experts to assist in the evaluation, preparation and presentation of the defense. This deprived petitioner of his rights to due process; a fair trial; an impartial jury; a trial judge who was unbiased and — conducted the proceedings with not only fairness, but an appearance of sentence. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Ake v. Oklahoma (1985) 470 U.S. 68 (constitutional right to competent, independent mentalhealth experts whowill assist in evaluation, preparation and presentation of defense); Hitchcock vy. Dugger (1987) 481 U.S. 393 (sentencer cannot be precluded from considering any relevant mitigating evidence; Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conductduringtrial has left personal stings; Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribingall judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendment requires higher degree of scrutiny in capital proceedings); Eddings v. Page -455- Oklahoma (1982) 455 U.S. 104 (sentencer must be able to hear and give effect to mitigating circumstances); Lockett v. Ohio (1978) 438 U.S. 586 (constitutional requirementthat sentencerhear, consider, and giveeffectto all relevant mitigating evidence); and including Apprendi v. NewJersey (2000) 530 U.S. 466 (jury must determine sentencing factors.) C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support of this claim: | 1. Prior to voir dire, petitioner made a motionto represent himself at trial. (RT 9-10, 17-18. At this time, petitioner’s competence even to stand trial was seriously in question. In support of this claim, petitioner incorporates by referenceall of the facts and lawset forth in Claim 2. 2. Several days thereafter, on November 16, 1988 the court, sua sponte, informed the petitioner it was appointing its own psychiatrist to examine petitioner. The court specifically stated as follows: Mr. Welch and Counsel, I just contacted Dr. Satten. It appears that in termsofinterpreting Faretta, an issue, the mainissue orthe sole issue really to be determined is whether the defendant has the mental capacity and could waivehis constitutional right to counsel with a realization of the probable risks and consequencesofhis action. Therefore, to assist the Court before the Court reaches its decision Monday, I’m appointing on the Court’s own motion pursuant to Section 730 of the Evidence Code Dr. Joseph Satten, S-a-t-t-i-n (sic) who is a psychiatrist, Mr. Welch. (RT 59.) 3. Thetrial court’s insistence on this non-neutral, psychiatric examination continued on the following day: Page -456- DEFENDANT: A competency hearing, wasn’t that my understanding yesterday, the Court has ordered a court psychiatrist? THE COURT: I have ordered a psychiatrist to examine you on the issue of whetheror not you have the mental capacity to waive your right to counsel and proceedin pro per. DEFENDANT: WhatPenal Codesection wasthat? It’s not 13 — THE COURT: That’s underthe law of the Faretta case. DEFENDANT: Your Honor, I’m going to argue that issue. THE COURT: You're not going to argue thatat all because we’re not hearing that. DEFENDANT: __ I’m goingto state — THE COURT: Mr. Welch,I’ve ordered the psychiatrist to see you. (RT 66-67.) 4. The court underscored the purpose and scope of the court- ordered examination by a court-ordered psychiatrist, and informedpetitioner of the court’s absolute decision: THE COURT: DEFENDANT: Mr. Welch,let’s makeit easy. I have a psychiatrist who is going to go to see you either Saturday or Sunday. You can talk to him or not. The choiceis up to you. I can’t force you to, but he’s going to be available at my request to talk to you, and that’s it. That’s that. It’s still 1368 proceedings, Your Honor. I’m going to request to reinvoke myright to 170.6 on that groundsI believe is separate and independent. Page -457- THE COURT: Your motion for peremptory challenge under 170.6 is denied. DEFENDANT: Your Honor, I’m going to state that I believe once the Court inquires about my mental capacity that all proceedings at that time are supposed to cease to my knowledge, Your Honor, and I shouldn’t be before the Court THE COURT: Your knowledgeis incorrect. (RT 67-68.) 5. Petitioner requested that he be given the timeto hire his own experts to observe him so that he would be able to have psychiatric assistance to conduct an appropriate examinationandassistin the evaluation, preparation, and presentation of a defense. Hespecifically requested such experts and a reasonable three-week continuance in order to obtain this assistance and permit the minimum timenecessary to conductthe evaluation and prepare materials. The trial court, however, adamantly refused to give petitioner the requisite minimum time for such evaluation, even though petitioner’s life was at stake in this proceeding. The court madeits ruling on November17th. The court stated that petitioner would have until Monday to hire, have an evaluation conducted by, and present the testimony of his experts. At best, petitioner had two working days to locate said experts, schedule the interviews and have the required evaluation conducted by the experts. In addition the experts would also been required to prepare their materials for presentation for hearing on Mondaymorning. This statement of the court wasoppressive, arbitrary, and capricious and deprivedpetitioner of his right to competentand expert assistance. The following colloquybetween Page -458- the trial judge and petitioner demonstratesthe trial court’s refusal to grant petitioner his constitutional right to adequate psychiatric assistance: DEFENDANT: I’m going to request that I be entitled to retain my own personal experts to observe me, Your Honor. THE COURT: Go ahead andhire them. —_—_——————DEFENDANT: —Huh?—Before—the—proceedings—that—scheduled—for Monday — I believe that’s what, five days away. THE COURT: The matter’s on Mondayfor meto decide whetheror not you should represent yourself. DEFENDANT: I’m going to request that that hearing be delayed, Your Honor, and ask for a three-week continuance on that motion, Your Honor. It’s in order that I can retain my own examine — psychiatrists to examine me, Your Honor. I’m entitled — THE COURT: I hired Dr. Satten at the Court’s expense to examine you. Your motion for continuance on the Faretta will be denied. I’m going to decide it Monday morning. DEFENDANT: Not to the Faretta, Your Honor. Myrequest that — that I be able to retain my own psychiatrists, experts to examine me and not accept the experts of the Court. THE COURT: Your motion to have your own experts is denied. (RT 68-69.) 6. Petitioner would not see the court-appointed psychiatrist, although he had specifically asked to see his own mental health expert regarding the issue of his competency. Withoutthe benefit of expert mental Page -459- health evaluation, the court heldits Faretta hearing on the following Monday and determined petitioner not mentally capable of self representation. However, the courtt refused to hold a hearing on the issue of petitioner’s competenceto standtrial. The actual findingsbythetrial court wereset forth in an order denying petitioner’s motion for self-representation: I find Mr. Welch is a defendant who doesnot appreciate the extent ofhis own disability and, therefore, cannot be fully aware ofthe risk of self-representation. I find the disability of Mr. Welch significantly impairs the capacity to function in a courtroom. (RT 84-85.) 7. Notwithstanding this finding, the court did not hold a competencyhearing,did notgrant petitioner even the minimumtime required to hire and permit his own psychiatrist to evaluate his mental health, and had no neutral psychiatric or psychological evaluations performedto aid the court prior to making its determination on petitioner’s motion for self- representation. 8. From the court’s own findings as well as the abundantrecord, it is clear that petitioner’s mental condition wasseriously in question. By restricting petitioner to only two days, to arrange and have evaluations performed,the court effectively foreclosed any opportunity he hadto obtain the psychiatric assistance. Furthermore,the denial ofexpert assistance which could aid petitioner in the preparation of defense, deprived him ofthe effective assistance of counsel. Absent a mental health expert’s report to the defense counsel, counsel could not adequately present material regarding petitioner’s competency. “The attorney must be free to make an informed judgmentwith respectto the best course for the defense, withoutthe inhibition of creating a potential governmentwitness.” (Smith v. McCormick (9" Cir. Page -460- 1990) 914 F.3d 1153, 1160.) Because Dr. Satten was both court-appointed and orderedto report to the court, there was no opportunity for petitioner to exercise this constitutional right. (Ake v Oklahoma, supra, 470 U.S. at pp. 83-84.) 9. Petitioner’s competency was fundamentalto his entire case. This is underscored not only by the case in chief presented by defense ; iti ughou ial and the sui generis hybrid representation unilaterally imposed uponthe defensebythetrial court. (RT 5921-6004 (mental health testimony of William D. Pierce, Ph.D.); RT 6005-6027, 6034-6103 (mental health testimony of Samuel Benson, Jr., M.D.); RT 5524-5552 (closing argument of defense counsel)). In further support ofthis claim,petitioner incorporates by referenceall ofthe facts and law set forth in Claims w and 19. The prosecution arguedthat petitioner’s mentalstate at trial was a reason the jury shouldfind petitioner guilty onall charges. (RT 5513, 5520, 5565.) 10. Throughout the proceedings petitioner consistently and continually requested, to see a psychiatrist with whom hefelt comfortable, in a prison setting which would foster confidentiality ofthose communications. ( Ake v. Oklahoma , supra, 470 U.S. at pp. 83-84; Smith v. McCormick, supra, 914 F.3d at pp. 1159-1160.) He requested such psychiatric assistance not only in connection with the hearing sua sponte called for and scheduled on unreasonably short notice by thetrial court, but also because he felt he wasnot getting the type ofassistancecritical to developing key aspects ofhis defense, including but not limited to the evaluation of his doubtful mental State during trial. (See, e.g, RT Misc. Vol. 1, proceedings of October 4, 1988, p. 12 (“I’m looking at you, Your Honor. I feel real uncomfortable, Page -461- Your Honor. I haven’t been able to talk to my psychologist. I feel intimidated every time I come in the courtroom.”); RT Misc. Vol. 3, proceedings ofNovember8, 1988, p. 400 (“I’m requesting that I be allowed to request my attorneys to appoint expert psychologists — psychiatrists ofmy preference that I could deal with instead of what the Court had donelast week.”).) 11. The physical and emotional abuse petitioner suffered at the hands of sheriff's deputies and North County Jail staff necessitated petitioner’s access to a neutral psychiatrist, psychologist and mental health expert. His mental state was a core element of the charged offenses, and significantly deteriorated throughouttrial, in part because ofthe abuse and effects of this abuse inflicted by state actors. (Exhibit 6, Declaration of Thomas Broome; Exhibit 30, Declaration of SpencerStrellis.) I’m going to also state that because — because of the Court’s clashing, my counsels clashing, and the sheriff deputies clashing out here in the jail, I haven’t been able to have the type of private communicationsthat I’m entitled to. I think it’s going to violate my right to have any expert get up there on that witness stand. I haven’t been able — psychologist testify on my behalf. Haven’t properly given me no meaningful therapyatall. (RT Misc. Vol. 3, proceedings of January 27, 1989, p. 3774.) 12. At the beginning of proceedings on May 8, 1989, petitioner stated: Before weget on the record this morning, I’m sure maybe the bailiffs already explained to you that there’s been an altercation this morning. I wasattacked bythree sheriffdeputies on my wayto court again this morning. I’ve got bruises on myface, scratches on myface. Mylegs and myneckis hurt. Page -462- AndI’m going to request that we continue this matter, give me — and request that the Court order that I be taken to Highland and be examined. , (RT 3704.) The court expressly denied petitioner access to competent, neutral psychiatric and mentalhealth experts regarding petitioner’s mental state. This is apparent in the court’s refusal to permitpetitioner toexamined= neutral doctors and other experts in a recognized hospitalfacility outside of North County Jail: DEFENDANT: I ask — the Court got proper, sufficient authority for me to be taken to Highland Hospital. THE COURT: __ That’sright. I have enough authority, but I’m not. I’m ordering you to see the doctor. (RT 3707.) 13. In fact, the trial judge not only orderedthat the medical report notbe confidential, he demandedthereport be provided directly to the court itself: DEFENDANT: [North County Jail staff] don’t give me sufficient treatment. They’ve intentionally neglected during numerous medical requests that I provide them to give any — any type of medical treatmentatall. THE COURT: I want the doctor to see him, and have the doctor submit a report to me. (RT 3707 emphasis added.) 14. ‘Thetrial court continually refused appointment of a neutral psychiatrist when petitioner’s mental state, during trial, was seriously in Page -463- question. (RT 3719-3724.) In one instance petitioner was thrown outofthe courtroom following an outburst. Petitioner had specifically informed the court that he was having difficulty attending the proceedings because he believed that he was incoherent and therebyclearly incapable ofassisting in his defense at that time: DEFENDANT: THE COURT: DEFENDANT: THE COURT: DEFENDANT: THE COURT: DEFENDANT: . . . I guess you could say I was incompetent, incoherent. No, you are just vicious and mean andcausingtrouble. I believe I was incompetent, incoherent, and gave the Court proper notice that my mentalfacilities [sic] was in question. I was emotionally hostile, and I have the Court notice of that and for my reason. For the Court to order me back downin this courtroom to try to make a spectacle ofmyself and somethinglike that there, I don’t believe it’s correct. I don’t think it’s proper. I think the Court as well is trying to prejudice the outcome of my criminal disposition in this matter as well as intentionally try to attempt to coerce — coerce the jury as well as — There’s no jury yet. — as well as — I’m talking about during the voir dire process, Your Honor,still pending. Those mattersstill pending. I don’t want to hear a speech. You have a motion to make, makeit,file it, put it in writing. I’m requesting a continuance — Page -464- THE COURT: DEFENDANT: THE COURT: DEFENDANT: THE COURT: DEFENDANT: THE COURT: DEFENDANT: THE COURT: DEFENDANT: THE COURT: DEFENDANT: Yourmotion for continuance is denied. — proper medicalfacility. I’m going — You don’t need a doctor. We will have one look at you this afternoon. I supposed to have a psychiatric as well on numerous occasions. I gave my counselnotice that on Thursday ~ psychiatrist jail-andw again refused adequate private — private patient-client communicationsand stuffby the sheriffdeputies looking straight through a window right down and watch my every reaction in the — in the interview room atthat particular time. You’re going to have the same interview room as any other prisoner. Well, I don’t know of any otherprisoner. You don’t have that; that’s your decision. I’m saying this is about the fourth or fifth time that countyjail officials have refused meproperpsychiatric evaluation. They haven’t refused you any psychiatric. When I sent the psychiatrist to see you, you won’t even see him. I haven’t—I’ve got my ownpsychiatrist. I requested my own expert be appointed. They already have one. This Court’s —I believe that’s my constitutionalright to defense experts and defense doctors to interview me andstuff. Page -465- THE COURT: DEFENDANT: THE COURT: DEFENDANT: THE COURT: DEFENDANT: THE COURT: DEFENDANT: You have your own. Nointerview from the prosecution’s experts or — Comeon. This is nonsense. Anyhow, Your Honor, I’m goingto further say that — Comeone.[sic] This is nonsense. I’m going — They havea psychiatrist. I’m not in here on request. I think I’ve been denied due process of access to my physicians, my doctors and stuff. I’m going to request that they be prohibited from testifying at any kind of proceeding or comein with reference to private and necessary communicationsor comein and testify on my behalf. I think the influence — hampered and tamperedwith, and I’m notgetting the proper type of psychiatric treatment. (RT 3724-3727.) 15. Thecourt askedpetitioner’s defense counsel to comment on the issue ofpetitioner being prevented from having an adequatefacility in which he could have the constitutionally mandated confidential and neutral psychiatric and medical expert evaluation: MR.STRELLIS: Wehave retained a psychiatrist to see Mr. Welch. Apparently at the last interview — if he says Thursday, I’m sure that’s the right day — the sheriff continually looked through the glass windows. The interviews, as J understand it, take place in a medical office. Page -466- The psychiatrist has told me he doesn’t need the guard to keep looking in. He is not concernedabout his welfare. He happens,as a matter ofincidental matter, to be someonebigger than Mr. Welch andis not worried. And — DEFENDANT: He was — that the looking in is very muchlikea lot ofthe guarding of Mr. Welch, overzealous and maybe done for very mixed motives. But it does — DEFENDANT: And I be in shackles. I was in shackles. THE COURT: I heard enough. That’sit. Let’s start with the testimony [sic]. (RT 3727-3728.) 16. Thecourtrefused to appointpetitioner a psychiatrist with whom he could speak on issues that went to the core of the case in chief for the defense in both the guilt and penalty phases. This refusal was expressly based uponthe court’s own, subjective beliefregarding petitioner’s conduct at trial: DEFENDANT: I’m requesting that I talk to my counsel, provide me adequate attention, that these proceedings cease, I can see my psychiatric — have my medicaltreatment. THE COURT: Never mind. Let’s proceed. (RT 3730.) Page -467- Defense counsel asked for a continuance,so that petitioner could see his own expert psychiatrist, rather than the court-appointed doctor, who was delivering his diagnosisdirectly to the court itself. The court stated,“I think [petitioner] — I don’t feel he’s emotionally upset. I think it’s a connive, attemptto delay the trial. Your motion is denied.” (RT 3733.) 17. The trial court’s denial of petitioner’s right to neutral psychiatric and other medical experts wholly and prejudicially abridged petitioner’s right to due process, a fair trial, and a fair and reliable capital sentencing proceeding. Thetrial judge’s overt bias, in ordering that the psychiatric and medical reports be directed. specifically to him, and specifically in predicating denial ofpetitioner’s right to such assistance on the judge’s ownsubjective opinions, further prejudiced petitioner’s case. These opinions were evidenced by the court’s comments throughout the case. (Taylor v. Hayes, supra, 418 U.S. 488; In re Murchison, supra, 349 U.S.at pp.136-139 (due process requires that judge possess neither actual or apparentbias).) 18. Thecourt’serrors in denying petitioner’s right to a psychiatrist, psychologist and crucial mental health experts, able to work with petitioner in a confidential setting, and permitted to report to petitioner and his counsel rather than directly to the court, individually and collectively, violated petitioner’s constitutional rights to due process of law,fair trial, fair and reliable capital sentencing proceedings,andthe rightto a trialjudge who was unbiased and conducted the proceedings with not only fairness but an appearance of fairness. For the reasons set forth above, the errors were extremely prejudicial. Page -468- D. Eachoftheseerrors, in violation of the Fifth and/or Sixth and/or Eighth and/or FourteenthAmendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 48: Judicial Error--Denial of Petitioner’s Right to Expert Psychiatric, Psychological and Requisite Medical Assistance in the Penalty Phase A. Petitioner’s conviction and sentenceofdeath are violations ofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution because in the penalty phase, the petitioner was denied crucial, psychiatric, psychological, and other medical experts to assist in the evaluation, preparation and presentation of his defense. This deprived petitioner ofhis right to due process;to a fair trial; to an impartial jury; to a trial judge who was unbiased and conducted the proceedings with not only fairness, but an appearance of fairness; and to fair and reliable capital proceeding and sentence. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support of this claim: Ake v. Oklahoma (1985) 470 U.S. 68 (constitutional right to competent, independent mental health experts whowill assist in evaluation, preparation and presentation of defense); Hitchcock v. Dugger (1987) 481 U.S. 393 (sentencer cannot be precluded from considering any relevant mitigating evidence); In re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Page -469- Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartialitywhere conduct duringtrial has left personal stings; Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendment requires higher degree of scrutiny in capital proceedings); Eddings v. Oklahoma (1982) 455 U.S. 104 (sentencer must be able to hear and give effect to mitigating circumstances); Lockett v. Ohio (1978) 438 U.S. 586 (constitutional requirementthat sentencer hear, consider, and giveeffectto all relevant mitigating evidence); and including Apprendi v. NewJersey (2000) 530 U.S. 466. C. The following facts, among others to be presented after adequate funding,discovery, investigation, and an evidentiaryhearing, are presented in support ofthis claim: 1, In support of this claim petitioner incorporates by reference Claim number47. 2. Denial of petitioner’s right to adequate, neutral, psychiatric, psychologicaland crucial mental health experts, who could assist in preparing his case in chief in the penalty phase, was particularly prejudicial. 3. After the denial of the assistance requested bypetitioner, it was impossibleto: Offer a well-informed expert’s opposing view, and thereby lose[] a significant opportunity to raise in the juror’s minds Page -470- questions aboutthe state’s proof of an aggravating factor. In such a circumstance, where the consequenceof error is so great, the relevance of responsive psychiatric testimony so evident, and the burden on the state so slim, due process requires access to psychiatric examination on relevant issues, to the testimony ofthe psychiatrist, and to the assistanceat the preparation of the sentencing phase. (Ake v. Oklahoma, supra, 470 U.S.at p. 84-85.) 4. Inthe penalty phase, two mentalhealth expertstestified on behalf of petitioner. Dr. William D. Pierce, (RT 5921-RT 6004), and Dr. Samuel Benson,Jr., (RT 6005-7000). 5. However, there were no mental health experts, including psychiatrists or psychologists, assisting petitioner in other areas ofhis case. Petitioner was denied his rights to a psychiatrist, psychologist and other mental health experts who could haveassisted him in preparing his defense with respect to his competencyattrial, his competencyto represent himself, and the egregiouseffects and impacts on his mentalhealth ofthe physical and psychological mistreatmentbysheriff'sjail guards and otherstaffat the North County Jail facility. Petitioner incorporates by reference Claim 5. 6. The prosecutionrelied on petitioner’s future dangerousnessas a significant aggravating factor in the sentencing phase. He argued: This defendant, this horrible person has earned the death penalty. And for you notto give him death is to jeopardize the health and safety of any guards, visitors, social workers, inmates or clergy who may comeinto contact with him if he is given life without the possibility of parole. Now,you think aboutthat. Supposingheis in the exercise yard with the other inmatesand he gets one of his sodomy urges again. Page -471- Suppose he gets one of his sodomy urges. There is a young inmate there who hefeels he looks pretty good,or if he tells another inmate you have two minutes on deciding which wayyouare going to have sex with me. You do havea responsibility to those other persons who may or may not deserve Moochie Welch. (RT 6137-6138.) A viciouskiller of six who is dangerous to this day, even by both his witnesses. Whohates authority figures. Who will comeinto contact with guards and others forthe rest ofhis life if you give him that benefit, if you excuse his conduct and not give him the death penalty. (RT 6139.) Death row is the only place for him and in your hearts you knowthatis true. (RT 6140.) And Ladies and Gentlemen, if ever a case called for the imposition ofa death penalty, this is it. You should show no mercyto this miserable, miserable violent thug sociopath. (RT 6142.) 7. The prejudice from this error further was exacerbatedbythetrial judge’s negative commentsonpetitioner’s conductin the courtroom, and the fact that these comments were given to the jury within the context of instruction to that jury: Ladies and Gentlemen. In the matter ofPeople versus Welch. The record will indicate the defendant is not present. The counsel are here and Ladies and Gentlemenofthe Jury are here. Page -472- Ladies and Gentlemen, I indicated to you that the defendant cannotstop the proceedingsby refusing to cometo court. When John went up to get him today to come down for the session, he refused to come down and would notleave his cell. It would require forcing, gagging and shackling to get him down. I’m notgoingto dothat. The law permits him to be upin his cell if he doesn’t want to hear it. The microphonewill be piped up andhe will find out what the testimony is. He can hear it upto thecell. After the next recess ifwe get a recess this afternoon, again the law admonishes me that I must again ask him to see if he wants to come back down to bring him down. (RT 5960-5961.) Now,underthe law, the defendant has right to be presentat all stages ofthe proceedings. On the other hand,ifhe chooses, he can absent himselfby refusal to obey the court rules. We have been over this many, manytimes. You are, frankly, the second panel who’s been broughtto court for possible voir dire examination. I’ll explain those terms to you in just a moment. I’m goingto ask you, and it maybe somewhatupsetting to you, that you have to afford the defendant all the rights granted to him by the law of the State of California and the United States of America. Thefact that he has absentedhimselfthis morning is not a novel or new experience. He will be back this afternoon. He will be back many times. Occasionally then he does chooseto absent himself. He obviously could not stop the trial because, otherwise, a defendant could refuse to come back. Theoretically, he could never betried. So whatwetry and at each recess the law requires that I have him down. I explain to him his legalrights, and I tell him ifhe wantsto sit Page -473- in court and obey the rules of court we would be delighted to have him. Ifyou do not do so, then he hasto be absented. (RT 1917-1918.) (emphasis added.) THE COURT: Ladies and Gentlemen, let me talk to you MR.STRELLIS: THE COURT: because you havethesituation occur. Now,a defendanthasa rightto be presentatall stages of the proceedings. However, a defendant is obligated to conduct himself in a manner asto not disrupt the orderly processofthetrial. Mr. Welch has evidencedin the trial a history throughoutvoir dire — Your Honor, I’m going to object to any statement about whathas not happenedinfront ofthe jury for the record. Fine. You just — Secondly, he has acted out by refusing — he did not — either notto sit at the table or changehis position, or he will not stop speaking. A defendant cannotstop the trial. In other words, Jim, the reporter, has to take down the testimony. IfI’m speaking or the lawyers are speaking or witnesses speaking and Mr. Welchinterrupts, there’s no way in the world the transcript can be taken down. AsI told you before, as a juror, you becomereally a judge. You decidethe facts. Now,there’s one quality every judge hasto have. You don’t have to be that smart. You don’t have to be that — you don’thaveto be that witty. But you do have to be patient. | And I beg you to please understand the proceeding and have patience becausethe law requires that at every recess I call Mr. Welch down. I have to ask him whetherornot he wishesto remainin thetrial. Ifhe will sit and follow the rules, we want him to beat histrial. Page -474- So, again, I’m going to have him come down.Ifhe acts out again, I appreciate your patience and understanding whatis going on. , Wehaveprovided Mr. Welch whois being kept in a facility whereby everything that’s said in the courtroom will be piped up to him, so whereheis located now he can hear all of the discussion. So, again, ladies and gentlemen, please bear in mind the attempt to remove him by me and the ultimate —____———— — — —— removal-was—only—done-when—he—was—interrupting-—-—-_—____— proceedings. A defendant cannot stop the case from goingto trial. (RT 3881-3883.) (emphasis added.) Now, Ladies and Gentlemen, we have seen Mr. Welch absent himselffrom this court. I want you to understand that we wanted him in court. We set downcertain rules. He refused to obey them, and I know that is upsetting to you. In candorit’s upsetting to me. (RT 5572.) 7. Had petitioner been granted his constitutionallyguaranteedright to neutral, psychiatric assistance when it was imperative during these proceedings, he may well have beenprepared andable to present a defense to the prosecution’s case in chief. The impact ofwhich was compounded by the judge’s sua sponte prejudicial and biased instructions. 8. Thetrial court’s denial of petitioner’s right to a psychiatrist, psychologist and other crucial mental health experts, in the penalty phase, violated petitioner’s constitutional rights to due processoflaw,fairtrial, fair and reliable capital sentencing proceeding,andtherightto a trial judge who was unbiased and conducted the proceedings with not only fairness but an appearanceoffairness. Page -475- D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/orFourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 49: Judicial Error--Trial Judge’s Introduction of Prejudicial, Extrinsic Information Regarding Petitioner’s Conduct A. Petitioner’s conviction and sentence ofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution because thetrialjudge specifically gave thejuryhighlyprejudicial information, which had not been admitted, tested or in any way deemedreliable, in open court, regarding petitioner’s conduct. This information went directly to both key elements of the offense and aggravating factors. This court’s egregious misconduct and/or reception of unreliable extrinsic evidence violated petitioner’s rights to a reliable capital proceeding and sentence determination; a fair trial; an impartial jury; the right to confront witnesses against him; confront evidence against him; due process oflaw; and particularly to trial judge who was unbiased and conducted the proceedings with not only fairness, but also an appearance offairness. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: United States v. Burr (1807) 25 Fed. Cas. 25, no. 14,692b CCD. Va. (fundamentalright to impartial tribunal); Mattox v. United States (1892) 146 U.S. 40 (fundamentalright to impartialtribunal); Jn reMurchison (1955) 349 Page -476- US. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes, (1974) 418 U.S. 488 (denial of allocution in imposing sentence abridgement of core fundamental right — denial of such rights further constitutes unconstitutional appearance of impartiality); Berger v. United States (1921) 255 U.S. 22 (constitutional ~—~nandateproscribing judicial bias);T meyv. Ohio U.S.510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400(confrontation clause provides criminal defendant right to directly confront adversarial evidence; Coy v. Jowa (1988) 487 U.S. 1012; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross- exam regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardnerv. Florida (1977) 430 U.S. 439 (due processviolation in capital proceeding where petitioner sentenced on basis of unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendment requires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptible to an interpretation that removed prosecution’s burden ofproving elementof intent beyond a reasonable doubt; Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every elementofthe crime with which defendantis charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjury considerationoffacts); Hicks vy. Oklahoma (1979) 447 U.S. Page -477- 343 (federal due process claim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannotbe concluded from giving effect to finding oflesser offense); and includingJohnsonv. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use of unreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 U.S. 607 (completeness in supplemental instruction constitutionallyrequired); Estelle v. Smith (1981) (451 U.S. 454 gravity of decision made at penalty phase mandatesstate’s adherence to constitutional guarantees); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Jury to determine facts relevant to sentencing factors.) C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support of this claim: 1. In support of this claim, petitioner incorporates by reference as if fully set for the herein Claim 50. On various occasions throughout the guilt and penalty phase, petitioner was absent from the courtroom. 2. Instead of admonishing the jury not to take these absencesinto consideration in deciding guilt or the appropriate penalty, the trial court improperly and prejudicially instructed the jury on the impact of these absences and the motivation behind them. Significantly, the judge consistently, and sua sponte, referred to petitioner’s “choosing”to actor not act in a certain manner, thereby informing the jury that petitioner had complete control over what he was doing. This informed the jury that petitioner specifically chose to disrupt the proceedings, to act out, and to becomeviolent. These were key elementsofthe offense to be proved bythe Page -478- prosecution. Moreover this instruction undermined the defense. The primary defenseset forth by defense counsel wasthatpetitioner did not have the requisite mental state to make rational choices. | 3. During voir dire, the court admonishedthe jury as follows: Now,underthe law, the defendant hasa right to be presentat all stages of the proceedings. On the other hand, ifhe chooses, he can absenthimselfby refusal to obey the court rules. We have been over this many, many times. Youare, frankly, the second panel who’sbeen broughtto court for possible voir dire examination. I’ll explain those termsto you in just a moment. I’m going to ask you, and it may be somewhatupsetting to you, that you have to afford the defendantall the rights granted to him by the law ofthe State of California and the United States of America. The fact that he has absented himselfthis morningis not a novel or new experience. He will be back this afternoon. He will be back many times. Occasionally then he does chooseto absent himself. He obviously could not stop the trial because, otherwise, a defendant could refuse to come back. Theoretically, he could never be tried. So whatwetry and at each recess the law requiresthat I have him down.I explain to him his legal rights, andI tell him ifhe wantsto sit in court and obey the rules of court we would be delighted to have him. Ifyou do not do so, then he has to be absented. (RT 1917-1918, emphasis added.) 4. Inthe guilt phase,thetrial judge informedthejury that it was not unusual that petitioner was raising his voice. (RT 4583.) Page -479- 5. Petitionerwas removedduring prosecution’s opening statement, for requestingto see the video being played during the opening. (RT 3876.) Thejudge notonly so removed the petitioner, but took it upon itselfto impart highlyprejudicial information to thejuryregarding petitioner’s conduct. The court explained: THE COURT: MR. STRELLIS: THE COURT: Ladies and gentlemen, let me talk to you because you havethe situation occur[sic]. Now,a defendant hasa right to be presentat all stages of the proceedings. However, a defendantis obligated to conduct himself in a manner as to not disrupt the orderly processofthetrial. Mr. Welch has evidenced in the trial a history throughout voir dire — Your Honor, I’m going to object to any statement about whathas not happenedin front ofthe jury for the record. Fine. You just — Secondly, he has acted out by refusing — he did not — eithernot to sit at the table or changehisposition, or he will not stop speaking. A defendant cannotstop thetrial. In other words, Jim, the reporter, has to take down the testimony. IfI’m speaking or the lawyers are speaking or witnesses speaking and Mr. Welchinterrupts, there’s no wayinthe world the transcript can be taken down. AsI told you before, as a juror, you becomereally a judge. You decidethe facts. Now,there’s one quality every judge has to have. You don’t haveto be that smart. You don’t haveto be Page -480- that — you don’t haveto be that witty. But you do have to be patient. AndI beg youto please understand the proceeding and havepatience because the law requiresthat at every recess I call Mr. Welch down. I have to ask him whetherornot he wishes to remain in the trial. Ifhe will sit and follow the rules, we want him to beathistrial. So, again,him= acts out again, I appreciate your patience and understanding whatis going on. Wehave provided Mr. Welch whois being kept in a facility whereby everything that’s said in the courtroom will be piped up to him, so where heis located now he can hear all of the discussion. So, again, ladies and gentlemen,please bear in mind the attempt to remove him by meandthe ultimate removal was only done when he wasinterrupting proceedings. A defendant cannot stop the case from goingto trial. (RT 3881-3883, emphasis added.) 6. Incredibly, during the closinginstructionsofthe guilt phase, the court advised the jury aboutpetitioner’s conductin such a waythatit clearly directed the jury to find that petitioner had a mentalstate capable offully volitional, premeditated and deliberated conduct. Further, in so instructing, the court informedthe jury petitioner’s conduct was“upsetting”to the trial judge himself. Specifically, the court instructed the jury as follows: Now, Ladies and Gentlemen, we have seen Mr. Welch absent himself from this court. I want you to understand that we wanted him in court. We set down certain rules. He refused to obey them, and I know thatis upsetting to you. In candorit’s upsetting to me. Page -481- (RT 5572, emphasis added.) 7. In the penalty phase, the trial judge not only specifically informedthejury ofhis opinion aboutpetitioner’s mental state and conduct, but actuallyprovidedthejurywith extrinsic evidence,the reliability ofwhich had never been tested in court. The judge instructed the jury that: Ladies and Gentlemen. In the matter ofPeople versus Welch. Therecord will indicate the defendantis not present. The counselare here and Ladies and Gentlemen ofthe Jury are here. | Ladies and Gentlemen, I indicated to you that the defendant cannotstop the proceedingsby refusing to come to court. When John went up to get him today to come down forthe session, he refused to come down and would not leave his cell. It would require forcing, gagging and shackling to get him down. I’m not goingto dothat. The law permits him to be upin his cell if he doesn’t want to hear it. The microphonewill be piped up and hewill find out what the testimony is. He can hear it up to the cell. After the next recess ifwe get a recessthis afternoon, again the law admonishes methat I must again ask him to see if he wants to come back downto bring him down. (RT 5960-5961.) 8. By informingthejury that there was no wayto controlpetitioner except by “forcing, gagging and shackling”petitioner, the court provided the jury with information which had not been admitted into evidence, and of which petitioner had no opportunity to cross-examine, deny, or test the reliability. 9. The Constitution ofthe United States mandatesthata trialjudge not only be free of actual bias but that there also be no appearanceofbias. (Ungarv. Sarafite (1964) 376 U.S. 575, 588; Taylor v. Hayes, supra, 418 Page -482- U.S. at p. 488, 501. Such a stringent rule may sometimesbar judges who have no actual bias. “Due process requires no less.” (Ibid.); In re Murchison (1955) 349 U.S. 133, 136; see Mayberry v. Pennsylvania, supra, 400 U.S. at p. 464. These sua sponte, ad hoc instructions regarding petitioner’s conduct were unequivocally prejudicial. The majority of them cameat a time whenthejudge was actually instructing thejury, and thejurors oO requiredfollowjudge’s instructions. guiltphase,judge’s instructions regarding petitioner’s willfulness and misconduct substantially supported the prosecution’s case in chief regarding premeditation and deliberation. Furthermore, they directlyunderminedpetitioner’s case in chief regarding the state of mind of which petitioner was capable. 10. Thus,these instructionsnotonly violated petitioner’s right to an impartialjudge, but also unconstitutionally deprived petitioner ofdue process of law undermined the defense and lessened the prosecution’s burden of proving the offense beyond a reasonable doubt. Sandstrom v. Montana, supra, 442 U.S. 510; In re Winship, supra, 397 U.S. 358.) 11. The penalty phase instructions were additionally egregious becausejury is expected to follow ajudge’s instructions. The petitioner, who was not even present when these instructions were given regarding his conduct, had no opportunity to cross-examine the judge, who turned himself into a key and crucial witness for the prosecution. Accordingly, petitioner’s confrontation clause rights were wholly violated by these outrageous instructions. Pointer v. Texas, supra, 380 U.S. 400; Loven v. Kentucky, supra, 488 U.S. 227; Davis v. Alaska, supra, 415 U.S. 308) 12. Additionally, thejudge’s spontaneous and egregiousinstructions violated petitioner’s due processrights in this capital proceeding wherehis Page -483- life was at stake. See, e.g., Gardner v. Florida, supra, 430 U.S. 439 (due process violation in capital proceeding where petitioner sentenced onbasis ofunreliable information).) Further, the Eighth Amendmentrequires a higher degree of scrutiny and reliability in capital proceedings. (Godfrey v. Georgia, supra, 446 U.S. 420.) There was no suchreliability in the trial judge’s unilateral and wholly unconstitutional instructions on petitioner’s conduct. 13. The judge’s instructions to the jury regarding petitioner’s conduct, bolstered the prosecution’s assertion and argument ‘regarding petitioner’s future dangerousness. In fact, this is exactlywhat the prosecution argued. This defendant, this horrible person has earned the death penalty. And for you not to give him deathis to jeopardize the health and safety of any guards, visitors, social workers, inmates or clergy who may comeinto contact with him ifheis given life without the possibility of parole. Now,you think aboutthat. Supposingheis in the exercise yard with the other inmates and he gets one of his sodomyurgesagain. Supposehe gets one ofhis sodomy urges. There is a young inmate there who hefeels he lookspretty good,orif hetells another inmate you have two minutes on deciding which way you are going to have sex with me. You do havea responsibility to those other persons who my or may not deserve Moochie Welch. (RT 6137-6138.) A viciouskiller of six who is dangerousto this day, even by both his witnesses. Who hates authority figures. Who will comeinto contact with guards andothersfortherest ofhislife Page -484- if you give him that benefit, if you excuse his conduct and not give him the death penalty. (RT 6139.) Death row is the only place for him andin your hearts you knowthatis true. (RT 6140.) And Ladies and Gentlemen, if ever a case called for the imposition of a death penalty, this is it. You should show no mercyto this miserable, miserable violent thug sociopath. (RT 6142.) 14. Thejudge’s unconstitutional instructions regarding petitioner’s conduct individually and cumulativelywere egregiousand highlyprejudicial to petitioner in both the guilt and penalty phase of his case. These instructions violated petitioner’s right to confront witnesses against him, confront adversarial information, the right to due process for reducing the prosecution’s burden of proving the element of intent beyond a reasonable doubt, the right to a fair and reliable sentencing determination,the right to a fair trial, the right to an impartialjury, and the right to an impartialjudge who was unbiased and conducted the proceedings not only with fairness, but an appearance offairness. D. Each oftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution,individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Page -485- Claim 50: Judicial Error — Petitioner’s Fundamental Right To Be Present was Violated By His Absence During Key Portions of the Trial A. Petitioner’s conviction and sentence ofdeath are violations ofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution because on numerousoccasionspetitionerwas notpresent in the courtroom during the trial. Further, he was unable to hear proceedings in the cell where he was held during those periods of absence, and many times wasejected from the courtroom simply forremarking on legal issues, which he was encouragedto do in the unique system of hybrid representation ordered bythetrial court. The right of any criminal defendant to be present, particularly in capital proceedings, implicates numerous, fundamentalrights. Petitioner’s absence prejudicially violated his rights to confront witnesses against him;a fairtrial; due process of law, an impartial jury; a trial judge who was unbiased and conducted the proceedings with not only fairness, but an appearance of fairness; andfair and reliable capital proceedings and sentence determination. B. The following United States Supreme Court decisions,inter alia, in effect at the time the error occurred, are presented in support of this claim: Illinois v. Allen (1934) 291 U.S. 97 (“Oneofthe mostbasic rights guaranteed by the confrontation clause is the accusedrightto be present in the courtroom at every state ofhistrial.”); Lee v. Illinois (1986) 476 U.S. 530 (right to confront witnesses court constitutional safeguard); Lewis v. UnitedStates 146 U.S. 370, 372 (“After indictment found, nothing shall be donein the absence ofthe prisoner.”); United States v. Gagnon (1985) 470 U.S. 522 (due process right to be presentattrial); Snyder v. Massachusetts (1934) 291 U.S. 97(due Page -486- processright to be presentat trial); Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conduct during trial has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio a1927) Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly confront adversarial evidence; Coy v. Jowa (1988) 487 U.S. 1012; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross-examination regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (due processviolation in capital proceeding wherepetitioner sentenced on basis ofunreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendment requires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptible to an interpretation that removed prosecution’s burden of proving element of intent beyond a reasonable doubt); In re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every element of the crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjury considerationoffacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created Page -487- right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannot be concluded from giving effectto finding oflesser offense); Johnson v. Mississippi (1988) 486 U.S. 578 (Eighth Amendment limits use ofunreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 U.S. 607 (completenessin supplemental instruction constitutionally required); Estelle v. Smith (1981) 451 U.S. 454 (gravity of decision made at penalty phase mandates state’s adherence to constitutional guarantees); and including Apprendi v. New Jersey, (2000) 530 U.S. 466 (Jury must decide truth of sentencing factors.) C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support ofthis claim: 1. Petitioner was absent from numerousproceedings throughouthis trial and sentencing. At no time did the trial court secure a waiver of petitioner’s right to be present at these proceedings. 2. Petitioner was either ejected from the courtroom or, on several occasions, absented himself during the trial. (RT 146-147, 210-211, 1858, 1917-1918, 3712, 3876, 4582, 4964-4965, 5472, 5489, 5557, 5659, 5950, 5960, 6213, 6229.) 3. Petitioner wished to be heard on issues he believed to be important, including numerouslegal objections. (RT 146-147, 165, 191, 647, 1915, 1917-1918, 2264, 3128, 3279, 3876, 4527, 4959, 4984, 5002, 5470- 5471, 5666, 5916, 5959, 6037, 6267.) Thetrial court specifically granted petitioner a unique form of “hybrid representation” wherein petitioner was expressly authorized to make legal motions once a week. However, the court Page -488- significantly expanded and encouragedpetitioner’s participationin trial, by ruling on numerousmotionspetitionermade whichhe presented on days other than Friday, the dayoriginally designated bythe court. Additionally, the court treated petitioner as ifhe was counsel manytimes duringthetrial. In support ofthis claim, petitioner incorporates by reference the entire claim on hybrid representation, Claim 3. Thus, althoughthetrialjudge repeatedly admonished 4953, 4959), at other timeshetreated petitioner andpetitioner’s motions as if they were made by counsel, and ruled on them accordingly. See, e.g., Claim 3. 4. Notwithstanding this authorization, petitioner was not present during at least several unreported, crucial chambers conferences. Thesetrial proceedings are documented in the settled statement and are reflected as follows: Supplement P, 9-9-94, 9-16-94, RT 1-11, Unreported Chambers Conferences of (1) November 9, 1988; (2) December 16, 1988; (3) January 4, 1989; (4) June 8, 1989; (5) June 29, 1989 (morning session); (6) June 29, 1989 (afternoon session); and (7) July 7, 1989. 5. One conference actually concerned the petitioner’s presence at trial and petitioner did not waive his presence at this conference. (RT 3-5 Settled Statement Supplement.) Twoothers dealt with crucial evidentiary matters. The conferences on June 8, 1989 and July 7, 1989 werein regard to the guilt and penalty phase instructions. Petitioner specifically objectedto not knowing what those instructions were and what wasagreed uponat the time they were issued to the jury. (RT 5603-5605, 6203.) Petitioner clearly Page -489- and concisely objected to his involuntary absence from those in chambers proceedings, on constitutional grounds: DEFENDANT: Onething I like to request, Your Honor. I want to say that I objected to any submitting to the jury instructions without my previous notice or awareness. I didn’t participate. THE COURT: You are not the lawyer of record. You do not participate. I am giving the instructions, not you. Your lawyeroffered oneinstruction whichIjust now refused. DEFENDANT: I’m quite awareofthat, but I think I have the night to participate in every critical stage of the prosecution. THE COURT: You do not have the right to participate. (RT 6203.) 6. The Sixth Amendmentto the United States Constitution provides that “‘in all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him.” A similar provision is contained in the California Constitution. Article I, section 15 providesthat “‘a defendant in a criminal cause hasthe right . . . to be confronted with the witnesses against the defendant.” The confrontation clause includesnotonly theright to confront witnesses but also the right to confront evidence. It is well established that“one ofthe mostbasic rights guaranteed by the confrontation clause is the accused’sright to be present in the courtroom at every stage of his trial.” (llinois v. Allen, supra, 397 U.S.at p. 338; Lee v. Illinois (1986) 476 U.S. 530 (right to confront witnesses court constitutional safeguard). In petitioner’s case, this constitutional safeguard is woefully lacking. While a disruptive defendant may, in unique, specific circumstances waive his night to be presentattrial, there is a vast difference between violently disruptive Page -490- conduct and that which is merely annoying, provocative or somewhat disruptive. (J/linois v. Allen, supra, 397 U.S. at p. 337; People v. Carroll, 140 Cal.App.3d 135, 142-143.) Petitionerwas repeatedlyadmonished in front of the jury to keep quiet, and was removed on several occasions during critical proceedings. However, petitioner was primarily acting in the role expressly and explicitly authorized bythe court,i.e., that encompassed within the hybrid representation system. Further, petitioner was mainly evidencing his frustration at not being able to participate in proceedings, which hefelt was crucial. Manyofhis objections and questions were specifically related to legal issues then at issue in to his trial. Accordingly, his removal only diminished his ability to aid in his defense. His right to confront the witnesses against him wasseverely prejudiced by his removal from the courtroom. 7. Petitioner’s absences further violated the due process clause of the Fourteenth Amendment. Therightto be presentattrial is “protected by the due processclause in somesituations where the defendantis not actually confronting witnesses or evidence against him.” (United States v. Gagnon, supra, 470 U.S. at p. 526.) Thus, the petitioner had a due processrightto be presentat his trial when his presence had “a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” Snyderv. Massachusetts, supra, 291 U.S. at p. 105-106. Petitioner was absent in many crucial stages of his own criminal proceeding, in which he was ultimately sentenced to death. 8. During petitioner’s guilt phase, an unreported discussion occurred at the bench between the court and counsel, following the issuance of unconstitutional reasonable doubtinstructions. Petitioner was not presentat Page -491- this conference and objected to the non-reporting. (RT 5607.) Petitioner incorporates by reference Claims 29 and 60asiffully set forth herein. 9. During voir dire, petitioner was ejected from the courtroom when the second jury was brought in. (RT 1916.) He was also removed whenthe court remarked on the renewed defense motion to change venue. (RT 3712, 3718.) The entire panel was given its preliminaryinstructions while petitioner was absent. It was very important, for petitioner to have been present during these timesin his trial. As Justice Cardozo stated, “If the accusedis permitted to be present at the examination ofjurors, .. . it will be in his power,ifpresent, to give advice or suggestion or even supercedehis lawyeraltogether and conduct the trial himself.” (Snyder v. Massachusetts, supra, 291 U.S.at p. 106. See Lane v. State (Fla. Dist. Ct. App. 1984) 459 So.2d 1145, 1146 (reversible error to exclude defendant from proceeding at which peremptory challenge is exercised); Shoultz v. State (Fla. 1958) 106 So.2d 424 (criminal defendant has right to an open, public trial, and to be presentat every stage of the proceeding. . . it is “reversible errorfor a trial judge to examine andpass uponthe qualification ofa swornjuror when such is done . . . not in the presence of the defendant.”).) Petitioner’s absence during thesecrucial periodsat trial regarding selection, impartiality andjury makeup wasconstitutionalerror. 10. Petitioner was excluded from proceedingsat which evidentiary hearings were discussed. (RT 146-147, 210-211.) These proceedings were in limine, regarding the admissibility ofaggravating circumstance evidence. “The defendant must be present . .. when any ruling is being considered on the admissibility of evidence.” (3 Charles E. Torcia, Wharton’s Criminal Procedure (13th ed. 1991) § 430,at p. 806.) Petitioner’s absence from this Page -492- critical periodin these capital proceedings wasparticularly egregious, in view of the prosecution’s use of this evidence in urging the jury to sentence petitioner to death. (RT 6117-6122.) . 11. Petitioner was absented from numerouscrucial proceedings which involvedthetaking oftestimonyanddiscussionoflegal and procedural issues. During the guilt phase, petitioner was absent during a portion of determinedto be the murder weapons. (RT 4582.) Petitioner was also absent during opening statements (RT 3876), the motions at the end of the prosecution’s case in chief (RT 4964), the motionsat the end ofthe defense case in chief(RT 5472), the prosecution’s closing argument andrebuttal (RT 5557), and the polling ofthe jury afterit returneda verdictin the guilt phase (RT 5657.) In the penalty phase, petitioner was absent during the testimony of the defense psychiatrist (RT 5950.), jury instructions (RT 5219), and the polling of the verdict after the return of the verdict of death (RT 6229). 12. The court attributed petitioner’s removal to his conductin court. However, as previously stated, much of that conduct was a result of petitioner’s frustration about both various legal positions by his counsel, whichhebelieved were notin his best interest, and the conduct of the court and prosecution. Moreover petitioner had been specifically granted the opportunity to partially represent himself, and act as counsel. Thus, it was not only confusing, but also wholly unlawfulfor the court to unilaterally and Capriciously reject petitioner at times when he acted in this authorized capacity. One such example occurredat a crucialstage in the penalty phase instructions to the jury. The court instructed on the crime of assault, to be considered in the jurors’ determination beyond a reasonable doubtas to an Page -493- aggravating factor. The court instructed the jury with respectto the alleged assault on petitioner’s wife, Terry Welch. Petitioner calmly objected to this instruction. The colloquy, and resultant non-consensual removalofpetitioner from the courtroom wasas follows: DEFENDANT: I’m going to object to that as a instruction, Your Honor. THE COURT: One moreinterruption and you’re going upstairs. In order to prove such crime — DEFENDANT: I don’t think the Court has to threaten me every time I state an objection for the record. THE COURT: Excuse me, Ladies and Gentlemen. I’ve got to have you get theseinstructions properly. Incidentally,I will have then [sic] typed up for you. Okay. Let’s go now. Let’s move. (The defendant is removed from the courtroom.) (RT 6213.) 13. Petitioner’s absence wasa violation of the due processclause because his absence interfered with his right to conduct a defense. It is impossible to effectivelyprovide a defense when yourclient is excluded from numerous proceedings. Petitioner could not meaningfully assist in his defense when he wasexcluded from proceedingsthat provided an important context for what transpired in his presence. “Theright to be present at his trial stems in part from the fact that by his physical presence the defendant can hear and see the proceedings . . . and can participate in the presentation ofhis rights.” (Bustamante v. Eyman, (9" Cir. 1972) 456 F.2d 269, 274-275. Page -494- 14. Petitioner was further constitutionally absent because he could not see or hear the proceedings in the cell to which he was removed. (RT 5605.) 15. Petitioner was also constructively absent due to incompetence during crucialportionsofhistrial, at which time he wasnotableto assist in his defense or confront the witnesses against him. Petitioner hereby 16. Petitioner’s absence violated law of the State of California. California’s Constitution specifically guarantees that a “defendant in a criminal causehasthe right . . . to be personally present with counsel.” (Cal. Const., art. V, §15.) The constitutionalright ofpresence hasbeenstatutorily implemented by the California legislature. At the time ofthe trial Penal Code section 977 subdivision (b) provided: In all cases in which a felony is charged, the accused must bepresent at arraignment, at the time ofplea, during the preliminary hearing, during thoseportionsofthetrial [at] which evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accusedshall be personally presentat all other proceedings unless he shall, with leave of the court execute in opencourt, a written waiver of his right to be personally present . . . The plain warning of Penal Code section 977 grants a defendantthe right to be “personally present at all other proceedings” absent a waiver. Such a ruleis particularly compelled in capital cases where thelegislature has explicitly forbidden proceeding with trial even with the voluntaryabsence of the defendant. (Cal. Pen. Code, § 1043, subd. (b)(2). Here, petitioner’s absence fromthe proceedings was never accomplished bythe waiverrequired by Penal Code section 977. Rather, he strenuously objected to not being presentatcritical portions of the proceedings. This violation ofpetitioner’s Page -495- right to be present accorded underthe California Constitution and Penal Code section 977 violated his procedural due processrights under the Fourteenth Amendment. Furthermore,this state law was intendedto protect the potential liberty interest guaranteeing federal due process; such guarantee was infringed upon by the continuous removal of petitioner from the courtroom in his capital proceedings. (Hicks v. Oklahoma, supra, 447 U.S. 343.) State law, and particularly Penal Code section 977, created a liberty interest in the petitionerto attend all court proceedings, including those involving issues of law. Petitioner was stripped ofthis liberty interest without any procedure comporting with due process. Rather, the state procedure of securing an explicit waiver was not followed. As a consequence, petitioner was denied his constitutionally guaranteedrights. 17. Therights violated by petitioner’s absence included, inter alia, the right to a reliable and fair capital proceeding and sentencing determination,the right to a fair trial, the right to confront witnesses against him,all confrontation clause rights, the right to an unbiased judge, and one whoconducted the proceeding with not only fairness, but an appearance of fairness, the right to an impartial jury, and the right to substantive and procedural due process of law. These were prejudicially violated by the court’s removal of petitioner from the courtroom. D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/orFourteenth Amendmentstothe United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Page -496- Claim 51: Judicial Error--Pattern ofEx Parte Contact by the Court with the Prosecutor and Counsel A. Petitioner’s conviction and sentence of death are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, 16, and 17 of the California Constitution because the court engagedin a pattern of ex parte contact with the prosecutor and, separately, with defense counsel, out of petitioner’s presence, therebypermitting him to betried and sentencedinpart on the basis of information he had no opportunity to confront or explain. This pattern of ex parte contact deprived petitioner of his federal and state constitutional rights to confrontation, personal presence, due process of law, equal protection,the effective assistance ofcounsel, conflict-free counsel, a fair and reliable determination ofguilt and penalty,trial by an unbiasedtribunal,trial by jury, and fair trial. B. The following United States Supreme Court decisions, inter alia, in effect at the time the errors occurred, are presented in support ofthis claim: Gardner v. Florida 430 U.S. 439 (1977) (due process violation in capital proceeding wherepetitioner sentenced on basis of information of which he wasnot aware and had no opportunity to confront); [/linois v. Allen (1970) 397 U.S. 337 (confrontation clause guaranteeofright to personal presence); United States v. Gagnon (1985) 470 U.S. 522 (due processright to personal presence); Pointer v. Texas 380 U.S. 400 (1965) (confrontation clause provides criminal defendantrightto directly confront adversarial evidence); Douglas v. Alabama (1965) 380 U.S. 415 (right to confront includesright to cross-examine adverse witnesses); Loven v. Kentucky 488 U.S. 227 (1988) Page -497- (confrontation clause violation where defendant not permitted to cross- examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause guaranteesright to impeachcredibility ofadverse witness with proof of his prior crimes); Beck v. Alabama (1980) 447 U.S. 625 (Eighth Amendmentrequires heightenedreliability in guilt determinationin capital cases); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showingthat counsel’sacts fell outside the range ofreasonable competence, coupled with showingofprejudice, compels reversal; prejudice shown ifthere is a reasonableprobability, less than a preponderance, that counsel’s errors affected the outcome;these principles apply equally to guilt and sentencing phases ofcapital trial); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed whencounsel labors underconflict of interest); Hill v. Lockhart (1985) 474 U.S. 52 (Strickland standards apply to representation providedpriorto trial, such as during plea proceedings); Hicks v. Oklahoma 447 U.S. 343 (1979) (federal due process claim in state-created right). C. The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiaryhearing, are presented in support ofthis claim: 1. Petitioner incorporates by referenceasiffully set forth herein the facts and law alleged in support of Claim 31. 2. Throughout thepretrial, guilt, penalty, and post-trial phases of this case, the trial judge engaged in a pattern of ex parte contacts and meetings with the prosecutor and, separately, with the defense attorneys. Page -498- (Exhibit 30, Declaration ofSpencerStrellis; Exhibit 6, Declaration ofThomas Broome; Exhibit 7, Declaration of Robert Cross.) Petitioner was excluded from these meetingsand wasnotinformedofthe contentofthe conversations. 3. Thetrial judge in this case, Stanley Golde, was a former law partner of defense counsel, Spencer Strellis, and a close friend of both prosecutor James Anderson andStrellis’s co-counsel, Alexander Selvin." Judge Goldeoperated veryinformally,and lawyers were inand outofhis chambersall the time drinking coffee and chatting. Accordingto Strellis, who had been Golde’s close friend for decades: Everybody spoke to Judge Golde off the record abouttheir cases, and that was true in this case as well. At the end of every day, Judge Golde told the lawyers to come into chambers,and we discussed the case. That was commonly done in those days. In addition, I had several private conversations with Judge Golde aboutthe case; and althoughI don’t know for a fact that Jim Anderson did too, I would be shockedifhe didn’t. That wasjust the nature ofJudge Golde’s chambers. (Exhibit 30, Declaration of SpencerStrellis.) 4. In addition,it is clear that the prosecutor had ex parte contact with the bailiff, who informed the prosecutor that the jury was aware petitioner had urinated in the “well,” the stairwell which connected the courtroom with both petitioner’s holding cell and the jury assembly room. The prosecutor remindedthejurors ofthis fact during the closing argument. 5. Inacriminal case, the accused has a Sixth Amendmentright to confront his accusers and the evidence against him. In addition, he has aright to be presentattrial, which is rooted in the confrontation clause of the Sixth '? When Selvin got married, Golde performed the ceremony. Page -499- Amendment and the due process clauses of the Fifth and Fourteenth Amendments. (Illinois v. Allen, supra, 397 U.S. 337; United States v. Gagnon, supra 470 U.S. at p. 526.) Moreover, in a capital case, the state must conduct its sentencing proceedings with an even hand. (Profitt v. Florida (1976) 428 U.S. 242, 250-253), and maynot sentence a defendantto death onthe basis ofinformation ofwhich he wasnotplaced on notice and to whichhe hasnot been given an opportunity to respond. (Gardnerv. Florida, supra, 430 U.S. 349.) 5. The errors were prejudicial because these ex parte contacts were influential in petitioner’s trial and sentencing. Petitioner believes that Judge Golde’s plan to impose upon the defense an unprecedented form of hybrid representation in order to placate petitioner was hatched in chambersout of petitioner’s presence and potentially out of the presence of his counsel. Moreover,the facts set forth in Claim 31, whichis incorporatedasiffully set forth herein, demonstrate that the prosecutor provided input into the sentencing process not provided by petitioner’s counsel. Petitioner also believes that the prosecutor both discussed sentencing issues with the trial judge ex parte, and improperly influenced the court in its ruling on the new trial and verdict modification motions put forth by the defense. 7. Because muchofthe factual predicate upon which this claim relies rests in the exclusive control ofthe prosecution,petitioner requests that he be afforded use of this Court’s subpoena power, provided adequate funding for investigation and experts, and granted an evidentiary hearing in order to develop this claim morefully. Page -500- D. Each ofthese errors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. To the extent that any errors included within this claim occurred following thejury’s verdict, the error is prejudicial under any standard ofreview. Claim 52: Judicial Error: Unconstitutional Venire and Panel--Excusing Jurors Who Were Not Clearly Pro-Life Without Parole A. Petitioner’s conviction and sentence ofdeath are violations ofthe Fifth,- Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and Article I, Sections 7, 15, 16. and 17 ofthe California Constitution because the trial judge excused four, prospective jurors who, were not “automatic life”jurors and whostated onvoir dire, that they could have voted to impose death. Further, the trial judge, sua sponte, took time and effort to “rehabilitate” prospective jurors who wereclearly “automatic death” jurors and ene such prospective juror was seated and voted to sentence petitioner to death. The unconstitutional excusing of the jurors and the partial and unreliable context within which these judicial errors occurred, violated petitioner’s right to fairtrail; due process; an impartial tribunal; a trialjudge who wasunbiased and conducted the proceedingswith not only fairness,but an appearance offairness; and theright to reliable capital proceedings and sentence. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Page -501- Wainwright v. Witt (1985) 469 U.S. 424 (constitutional standard re: excusing jurors); Duren v. Missouri (1979) 439 U.S. 357 (fair cross-section of the community representational requirement fundamental Sixth Amendment guarantee); Batson v. Kentucky (1986) 476 U.S. 79 (prosecutor’s use of peremptory challengesviolation of equal protection); United States v. Burr (1807) 25 Fed. Cas. 25, no. 14,692b CCD. Va. (fundamental right to a fair tribunal); Mattox v. United States (1892) 146 U.S. 40 (fundamental right to a fair tribunal); Parker v. Gladden (1966) 385 U.S. 363 (bailiffs subjective statement on defendant’s guilt to a juror violated right to impartial jury necessitating reversal of murder conviction); Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (denial of allocution in imposing sentence abridgement of core fundamental right — denial of such rights further constitutes unconstitutional appearance of impartiality); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); 7umey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly confront adversarial evidence; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross- examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross-exam regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where Page -502- petitioner sentence partially based on unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial ofdue process whereinstruction susceptible to an interpretation that removed prosecution’s burden of proving element of intent beyond a reasonable doubt; Jn re Winship (1970) 397 U.S. 358 (due process clause crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independent jury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S.343 (federal due processclaim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannot be.concluded from giving effect to finding of lesser offense); Johnson v. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use of unreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 U.S. 607 (completeness in supplemental instruction constitutionally required); Estelle v. Smith (1981) 451 U.S. 454 (gravity of decision madeat penalty phase mandatesstate’s adherenceto constitutional guarantees); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendmentright to trial byjury entitle criminal defendant to ajury determinationthat heis guilty ofevery elementofthe crime with whichis he charged, beyond a reasonable doubt — labeling as “sentencing factor” does not negate this right). C_ The following facts, amongothers,are presented in support ofthis claim, after adequate funding, discovery, investigation, and an evidentiary hearing: Page -503- 1. The judge excused 75 jurors during voir dire because of their pro-life responses. (RT 1062, 1064, 1093, 1143, 1234, 1278, 1310, 1326, 1397, 1425, 1442, 1468, 1469, 1478, 1488, 1501, 1532, 1533, 1563, 1580, 1595, 1598, 1611, 1695, 1837, 1853, 1899, 2027, 2051, 2128, 2180, 2228, 2275, 2277, 2301, 2506, 2508, 2528, 2622, 2702, 2755, 2851, 2897, 2924, 2931, 30;18, 3040, 3069, 3070, 3092, 3114, 3127, 3130, 3169, 3271, 3273, - 3288, 3296, 3298, 3328, 3340, 3341, 3380, 3384, 3427, 3475, 3526, 3536, 3549, 3552, 3571, 3608, 3631, 3695, 3701.) 2. Thecourt, however,liberally excused thesejurors withouttrying to rehabilitate those who gave an equivocal response. Ms. Dorris J. Grady, whenaskedifshe could vote to put somebodyto death, stated: “It would be the right decision, but I think it would be a hard decision.” (RT 2027.) Anotherjuror, Mr. Martin Gilens, was excused forbeingpro-life, even though whenaskedifhe could vote for the death penalty, he replied: “I suppose if I felt it was appropriate, yes.” (RT 3526.) Dr. Howard S. Gruber was excused only because he had reservations about the death penalty. (RT 3552.) Ms. Victoria Brown, when asked whether or not she could impose the death penalty, simplystated, “I’m not sure,” and was excused. (RT 2508.) 3. The court further unconstitutionally excused a juror after extensive voir dire by defense and prosecution evidencedthatthis juror was not automatic pro-life. (RT 2119-2128.) Prospective juror Patti Ahuna specifically testified: A. I don’t think I’m against the death penalty in all cases. Q. You do not think you’re against — A. I do not think I’m againstit across the boardin all cases. Page -504- Q. ‘In acase involving six murders, do you think you could ever vote to impose death? I’m not asking how you wouldvote. A. Yes, I think you could. You think you could? A. Right. {RTE 4191.9193 UNT 2IZinrzizz.) Nonetheless, the prosecution submitted and the court excused her pursuant to Wainwright v. Witt. Petitioner immediately objected to excusing this jury on these grounds: THE COURT: DEFENDANT: THE COURT: DEFENDANT: THE COURT: (RT 2128.) All right. I think I’m going to excuse you under Wainwright versus Witt. Thank you, Miss Ahuna. You’re excused, but you got to go back downstairsto the jury assembly room. Well, Your Honor, I’m going to object to that. Fine. Just — I don’t think — Just wait. Okay. The record will note your objection. Therecord will note your objection. 4. Thetrial judge, however, took pains to rehabilitate jurors who admitted they would always vote for death. Ms. Virgie Williams, who eventually sat on the jury, initially admitted that she would always vote for the death penalty. (RT 2316-2322.) After the judge sua sponte questioned Page -505- her further on her views, she stated she could consider both penalties. (RT 2322.) Ms. Joanna S. Collins was similarly questioned by the judge during her voir dire by defense counselStrellis: MR. STRELLIS: MS. COLLINS: MR. STRELLIS: MS. COLLINS: MR. STRELLIS: THE COURT: MS. COLLINS: THE COURT: MS. COLLINS: THE COURT: MS. COLLINS: _ (RT 3439-3440.) Assuming you find him guilty of the murders, find the aggravation outweighs the mitigation, am I havinga real trial; or do youreally knowin your heart ofhearts that while you’re goingto sit here through the second phase — If I- —your mind,in effect, would be made up? If] thoughtthat the aggravation outweighs the mitigation, I would vote for the death penalty. Okay. I’1l submit it, Your Honor. Well, no, no. Would you always vote for death? Could you listen to all the aggravation — I could - Wait. Listen to all the aggravation, mitigation, and then decide which punishment you feel -— you find appropriate? I’d listen, yes, before — In other words, there could be ten factors of aggravation and one of mitigation. If the mitigation appeals to you, you could vote for life without possibility of parole. Yes. 5. These jurors were excusedin violation of Wainwright v. Witt (1985) 469 U.S. 412 and Witherspoon v.Illinois (1968) 391 U.S. 510. The judge’s rehabilitation of these stringently pro-death jurors violated minimal due process requirementsoffairness and impartiality in imposing the verdict Page -506- and sentence of death. Their view substantially prevented or impaired the performanceoftheir duties in accordance with the instructions and their oaths. Witt, 469 U.S. at 424; People v. Gent (1987) 43 Cal.3d 739. 6. The judge’s unconstitutional exclusionofthese jurors who were not automatic pro-life, was part of a continuing pattern andpractice throughout thetrial of bias and prejudicial rulings and conduct against petitioner.supra. Petitioner ncorporatesreference Claims 34 through 45. 7. These jurors should not have been excused on Witherspoon and Witt grounds and their exclusion denied petitioner a fair trial. The court could not reasonablyhave concludedthatjurors Gilens, Gruber and Brown’s views on capital. punishment would “prevent or substantially impair the performanceoftheir duties asjurors in accordancewith theirinstructions and their oaths.” Witt at 424. Rather, thesejurors had an open mind regardingthe penalty determination. 8. This error is compoundedbythe factthatpetitioner was already being tried by ajury whichdid not constitutionally reflect the representative cross-section of the community. Petitioner made severalchallenges to the venire, and not several numerous challenges to the venire, claiming that African-Americans were under represented. (RT 1854, 1964, 1973, 2578, 2950-2951, 3093, 3804-3805.) The court, in denyingpetitioner’s challenges to the composition of the jury panel, took judicial notice of the census and determined that Blacks constituted 18.2 percent ofthe population ofAlameda County. (RT 3797.) However, of the 264 jurors called up to that point, 41 were Black, constituting only 15.4 percent ofthe venire. (RT 3799.) Given the low percentage onthe venire, the exclusion offive Blackjurorsfor their Page -507- pro-life responseshadaprejudicial impact upon available Blackjurors. (RT 2027, 2275, 3298, 3536.) The lack of meaningful attempt to question the jurors as to whetherthey could follow their instructions andtheir oaths had the individualand net effect ofreducing Blackjurors and denyingpetitioner a representative jury. 9. Excusing the jurors who were not automatic pro-life denied petitioner’s rights to due process,fair and reliable capital proceedings and sentence,a fairtrial, an impartialtribunal, confrontation clauserights, and his right to a trial judge who wasunbiased and conductedthe proceedings with not only fairness, but also an appearance offairness. D. Eachoftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/orFourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 53: Judicial Error: Failure to Change Venue A. Petitioner’s conviction and sentenceofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and Article I, Sections 7, 15, 16 and 17 ofthe California Constitution because the trial court denied petitioner’s request to change venue. The extensive prejudicialpretrial publicity and publicity duringtrial, and the circumstances ofthe trial itself compelled this venue changed to a forum wherepetitioner could havereceived a fair trial by an impartial tribunal. The decision not the change venueviolated petitioner’s rights to a fair trial; a fair and impartial Page -508- jury; dueprocess; right to confront witnesses and evidence against him; the rightto a trial judge who was unbiased and conductedthe proceedings with not only fairness, but an appearance offairness; and the right to fair and reliable capital proceedings and sentence. B. The following United States Supreme Court decisions, inter alia, in ; in su of this claim:— Chandler v. Florida (1981) 449 U.S. 560 (highly publicized criminaltrial presents risk ofcompromising rightto fair trial); Shepard v. Maxwell (1966) _384 U.S. 333 (external publicity and circumstances deprive defendantright offair trial); Estes v. Texas (1965) 381 U.S. 532 (prejudice presumed where significant media. on court proceedings duringtrial); Rideau v. Louisiana (1963) 373 U.S. 723 (prejudice presumed dueto crucial pretrial publicity); Batson v. Kentucky (1986) 476 U.S. 79 (prosecutor’s use of peremptory challengesviolation ofequal protection); Caldwell v. Mississippi (1985) 472 U.S. 320 (prosecutorial misconduct); Mattox v. United States (1892) 146 U.S. 40 (fundamentalright to impartial jury): United States v. Burr, (1807) 25 Fed. Cas. 25, no. 14,692b CCD. Va. (fundamental right to fair and impartial tribunal); Jn re Murchison, (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Gardnerv. Florida, (1977) 430 U.S. 439 (due process violation in capital proceeding wherepetitioner sentencepartiallybased on unreliable information); Godfrey v. Georgia, (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Beck v. Alabama, (1980) 447 U.S. 625 (constitutional requirements in capital proceeding applytoguiltphase); Hicks v. Oklahoma, (1979) 447 U.S. 343 (federal due process claim in state- Page -509- | created right); Parker v. Gladden (1966) 385 U.S. 363 (bailiff’s subjective statement on defendant’s guilt to a juror violated right to impartial jury necessitating reversal ofmurder conviction); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendmentrightto trial by jury entitle criminal defendant to.a jury determination that heis guilty ofevery elementofthe crime with whichis he charged, beyond reasonable doubt-— labeling as “sentencing factor” does not negatethis right). C. The following facts, among others, are presented in support ofthis claim, after adequate funding, discovery, investigation, and an evidentiary hearing: 1. Prior to petitioner’s trial, he requested a change of venue. (RT 993.) This motion was renewedafter voir dire ofthe prospectivejurors. (RT 3715, 3717.) The trial court denied the motion,finding that petitioner could get a fair trial in Alameda County. (RT 1051, 3717.) 2. Petitioner introduced the testimony of Joie B. Hubbert, venue specialist, who testified that 65 percent of the eligible jury in Alameda County recognized the case, and 78 percent of these polled individuals prejudged the petitioner asguilty. (RT 998, 1007, 1009, 1011, 1015.) Of those who were aware of the case and who read Alameda County, San Franciso or San Jose newspapers, 91 percent prejudgedpetitioner as guilty. (RT 1011.) The venue specialist found that approximately the 80 percent prejudgment rate was amongthe highestin all her cases. (RT 1037.) 3. Indenying the motion to change venue the court recognized that there was “sensationalism” to the nature and extent of news coverage, Page -510- “particularly in the last six months.” (RT 1049-1050.) Thetrial judge held that the nature and extent of the news coverage wasnotthat inflammatory however, and that Alameda County wasa large county, that the status of petitioner and victims was not such to warrant a change ofvenue. (RT 1049- 1051.) With respectto the final factor, the court reasoned: “I’m nottrying to belittle the lives of these people taken, but they really do notfall into that reviewed the materials of the jury venue expert andstated: “Frankly, I am impressed with the recognition factor. I agree with herthat that does concern me.” The court reasoned that the venue expert did not conclude that petitioner could notgeta fair trial. However, as she expressly stated in her testimony,herrole ofthe expert, as that ofall venue experts, was not to form a specific conclusion but rather to conduct a scientific survey which would set forth the facts upon which the venue decision should reasonably be predicated. (RT 1009-1015.) 4. Onthis basis, the court denied the motion for a change ofvenue. The court, however, informed the defense counsel it was possible that the motion would be renewedafter voir dire. Significantly, the court expressly and explicitly informed counsel andpetitioner as to what the court’s conduct would be during this voir dire: However, at some point we are going to conduct the voir dire of jurors. And I think probably a proper question at least in part would be whatextent, ifany, publicity has upon them; and I will ask that question to them. (RT 1051, emphasis added.) Petitioner’s counsel specifically requested the that the jurors not excused be admonishedby the court not to discuss the case or read anything Page -511- aboutit. He underscored that, “There’s likely to be more publicity as we go forward.” (RT 1502.) However, notwithstandingthetrial judge’s express representation, this crucial issue was notfully explored. In fact, of the 82 jurors who subsequently qualified on voirdire,the trialjudge asked onlytwo if they had heard or read anything about the case. (RT 1070, 2998.) 5. At the conclusion of primary voir dire, the court denied the renewed motion for a change of venue. The court reasoned: “It’s my understanding that your expert did not say we could notget a fairtrial, the statistics were inconclusive.” (RT 3716.) Thetrial judge further stated:“It is shocking that so few people have heardof[the case].” (RT 3717.) 6. Petitioner was denied the rightto a fair trial by trying the case in Alameda County. Petitioner’s motion for a change of venue should have been granted if it is determined that because of the dissemination of potentially prejudicial material, there was reasonable likelihood that in the absence of such a changeof venue,a fair trial cannot be had in the county. (Williams v. Superior Court (1983) 34 Cal.3d 585; Martinez v. Superior Court (1981) 29 Cal.3d 574, 579.) A “reasonable likelihood” requires a lesser standard of proof than “more probable than not”. A reasonable likelihood is determined by examinationofseveral factors: (1) The gravity of the nature ofthe crime; (2) the extent and natureofthe publicity; (3) the size and nature ofthe community;(4) status ofthe victim and (5) the status ofthe accused. (/d. at 595.) Here, the standard of reasonable likelihood was clearly met. | 7. Further, neither the court nor petitioner’s counsel adequately conducted voir dire or uncovered the actual knowledge of the prospective Page -512- jurors in this case. In support of his claim, petitioner incorporates by reference Claim 26. 8. Further, underlying the problem in this case is that voir dire is often ineffective in uncovering bias. “In an antagonistic atmosphere ‘there will remain the problem of obtaining accurate answerson voir dire — is the jury consciously or subconsciously harboring prejudice against the accused Superior Court (1968), 68 Cal.3d 375, 380.) Even where all the jurors selected claim the ability to sit impartially, such a claim is, of course, not conclusive. (People v. Tidwell (1970) 3 Cal.3d 82.) Questioned on voir dire as to the effect of the media’s evidentiary disclosures, one prospective juror may deny or admit prejudgment. One mayfalsely denyboth knowledge and prejudice for the sake of a place on the jury. An honest juror mayadmit knowledgeortentative prejudgmentandfind himself excluded. Many will sincerely try to set aside their preconceptions and give assurance of impartiality, yet unconsciously bend to the influence of initial impressions gained from the news media. . . Authoritative decisions now recognize the lack ofrealism inherentin expectationsthatjurors can insulate their verdict from inadmissible knowledge. When prejudicial publicity has been injected into jurors’ consciousness, the courts do not give dispositive effect to jurors’ assurances of impartiality. “To expect a juror to confess prejudiceis not alwaysa reliable practice. A juror can be completely honest in denying prejudice. In the words of Alexander Pope, ‘All looks yellow to the jaundiced eye.’” (Corona v. Superior Court (1972) 24 Cal.App 3d 872, 881.) 9. Thevoir dire in this case demonstrated this principle. Only 29 of the 264 jurors directly admitted to having heard of the case. (RT 3715, 1251-1252, 1263, 1295, 1303-1304, 1366, 1373, 1518, 1590, 1657, 1719, Page -513- 1774-1775, 1836, 1884, 1989, 2166, 2335, 2421, 2464, 2570, 2668, 2696, 2730, 2742, 2865, 2877, 2902, 2927, 3187, 3207, 3253, 3310, 3495, 3645.) However, the newspaper coverage was extensive and focused upon petitioner’s status as a mass murderer.Further,it is probably thatjurors who disclaimed any knowledge aboutthe case had earlier read or heard aboutit in the local media. 10. Petitioner showed,priorto voir dire, a reasonablelikelihoodthat a fair trial could not be had in Alameda County. The nature and the gravity of the offense, the nature and extent of the news coverage, the size of the community andthe status of petitioner in the community all pointed to the fact that the petitioner could notreceivea fair trial in Alameda County. This wasreputedto be a “mass murder” whichreceived extensive press coverage, andallegedly done by an ex-felon who had numerousprior encounters with law enforcement. Twoofthe victims were youngchildren. Voirdire in this case did not uncoverthe extentofthe prejudice andbias againstpetitioner, which was clearly shown by expert testimony and scientific polling techniques. 11. The pretrial publicity was highly prejudicial and, in fact, supplied the jurors with information they did not get duringthetrial. 12. At least one prospective juror, Cora Staten, knew significant information aboutthe case and informedotherjurors aboutthis. In fact, more than oneentire panel mayhave been apprized ofextrinsic information gleaned from the media. Defense counsel Strellis elicited the following from prospective juror John Banducci, a memberofthefirst jury panel, on voir dire: Page -514- MR. STRELLIS: MR. BANDUCCI: Incidentally, have you ever read anything aboutthis case in the papers? , I didn’t — I was trying to rememberthe first day we were here about hearing anything about this or reading. Not until someone out there explained to me — one of the ladies — that what the actual MR. STRELLIS: MR. BANDUCCI: MR. STRELLIS: MR. BANDUCCI: MR. STRELLIS: MR. BANDUCCI: (RT 1294-1295.) story-was, and remember seeingit on the newsbutnot until today. Some lady out there this afternoon — Yeah — told you aboutit? Do yourecall whatshe told you? Shesaid — went through the case and just moreorless said that the people that — or whatever went on regarding the house and everything and the gentleman coming into the home with an Uzi machine gun and something to do with the mother left through the window. She was very — wasn’t very explicit about the whole thing. She knew somedetails? Yes. A discussion between Mr. Banducci, defense counsel, the prosecution and the court established that the prospective juror who had spoken to Mr. Banducci was Cora Staten, who stated during her voir dire that she did not rememberanything about petitioner’s case. (RT 1263, 1294.) Of the 90 Page -515- people comprisingthatfirst panel ofprospectivejurors, Grace Estarija, Carol Hayward and TimothyParkerwere eventually seated asjurors; Bernard Wells was selected as an alternate juror. 13. There were 82 people voir dired on the second panel of prospective jurors. On March 22, 1989 Etta Goins, a nurse who worked for the North County Jail, was the first prospective juror to be voir dired. Defense counsel Selvin askedherifshe had heard or read anything aboutthe case: MISS GOINS: I didn’t rememberuntil the first day that I was summoned, and wenwegotout, I was walking to the parking lot, and I asked this lady that was with me — she was one of the prospective jurors. And I said: When did this happen because, you know, it was so gross. Seemed like I would have remembered. MR. SELVIN: Yes. MISS GOINS: And shesaid it was backin 87. MR.SELVIN: That’s correct. MISS GOINS: Said it happened in East Oakland. She said the guy killed two kids and four adults. (RT 2837.) Although defense counsel attempted to ask Miss Goins about the identity of the prospective juror she had talked to, the court cut him off without explanation and the woman’s identity was not established. (RT 2846.) Subsequently, prospective juror Sandra Williams was questioned aboutprior knowledgeofthe case: Page -516- MR. SELVIN: I was wondering whether you have heard anything about that? , MISS WILLIAMS: No,not until the lady — the first lady that you interviewed was sitting in the waiting room, and she told mea little aboutit. She wastalking aboutitwas “nyshe said. That’s the first that I knew aboutit MR.SELVIN: She had mentioned that she had read about this case in the newspaper? MISS WILLIAMS: (Nodshead.) MR. SELVIN: Whatelse do you remember that she told you about the case? MISS WILLIAMS: Just that there were murders and children involved .. . (RT 2865-2866.) Miss Williams later became an alternate juror who wasin the jury room during deliberations. The “first lady” interviewed that day and referenced by Miss Williams on voir dire was Etta Goins, who workedas a nurse at the North County Jail and had a conversation regardingpetitioner’s case with an unknown,prospective juror. Of the 81 remaining prospective jurorsin the second panel, Richard Mignola, Kim Secrease, Virgie Williams, Joanne Gonzales, Joseph Cruz, Howard McGee and Yvonne McGrew were seated as jurors; Brent Patterson and David Larson werealternate jurors. 14. Petitioner specifically requested that the trial court instruct jurors to refrain from reading or viewing any publicity duringthe trial. (RT 1502.) The trial court, however, refused to instruct the jury and in fact did Page -517- not admonishthejury duringthetrial, during the deliberation, in between the guilt and penalty phase, or during the penalty phase, not to look at any press or television. 15. The court issued an unequivocal gag orderat the inception ofthe trial, and at no point was such order withdrawn. (RT 36-37.) The court expressly informed the prosecutor, “You are not to open your mouth,except in court.” (RT 37.) The prosecutor, however, did violate that gag order, repeatedly. Following the guilty verdict, the prosecution gave extensive interviews. Petitioner specifically objected to these continuing violations: I’m going to also request, it was my understanding we had a gag orderin this court andit applied to both counsel and the prosecution. Numeroustimesthe prosecution madestatementsto the newspaperreporters. He thinks he is above the law and he don’t have to abide by this gag order. I didn’t understand the court to make anytype oflimitations or time periods on how long this gag order wasgoing to bein effect, Your Honor, and I’m saying,I’m saying now that concerning hmmakingall these statements and stuff outside of the court, I think it is totally unfair, Your Honor. I think it is again, it goes to show that the prosecution is going to go to any means beyondlimitsto try to get a conviction and ifthat means grandstanding up before the newspaper media, he didn’t have no comments whatsoeverto say about my motion to vacate the verdict right here in open court. He has to go outside the courtroom and discuss with newspaperreporters. I think it is totally inappropriate. (RT 5725-5726.) 16. During deliberations, the jurors, alternates and bailiff left the jury room,went out to meals and shopping, frequenting public places where there was extensive publicity about what was perceived as a notorious case Page -518- in that venue. (Exhibit 8, Declaration ofJoseph Cruz; Exhibit 11, Declaration of Joanne Gonzales; Exhibit 35, Declaration of Bernard Wells.) 17. Certain specific jurors were aware of and influenced by information in the media. (Exhibit , Declaration of Joseph Cruz.) 18. The commissions and omissionsbythetrialjudge, including but not limited to failure to admonish jurors regarding publicity throughout the incorporates by reference Claims 34 through 45. 19. The publicity in this case actually prejudiced individualjurors and/or so pervaded the proceedingsthat it raised a presumption of inherent prejudice. (Murphy v. Florida (1975) 421 U.S. 794; Shepard v. Maxwell (1986) 384 U.S. 333.) D. Eachofthese errors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 54: Judicial Error--Constitutionally Inadequate Record--Failure to Keep and ProvidePetitioner Transcripts of Significant Proceedings and Essential Elements of Record A. Petitioner’s conviction and sentence ofdeath are violations ofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution because ~ onnumerousoccasions separate proceedingsor conferencesin this case went unreported and/or non-transcribed in full, and cannot be recalled by the parties or adequately reconstructed by settled statement. This Page -519- constitutionally inadequate record deprived petitioner his rights to due process;a fair trial; fair and reliable capital sentencing determinations;and the right to an appearanceoffairness in the judge presiding over both the guilt and penalty phase proceedingsin his case. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support of this claim: Griffin v. Illinois (1956) 351 U.S. 12 (due process guarantees criminal appellant a record of proceedings adequate to permit effective appellate review); Draper v. Washington (1963) 372 U.S. 487 (due process guarantee); In re Murchison (1955) 349 U.S. 133 (Constitution mandates both actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conduct duringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly confront adversarial evidence); Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross-examination regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentence partially based on unreliable information); Godfrey v. Page -520- Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial ofdue process whereinstruction susceptible to an interpretation that removed prosecution’s burden of proving element of intent beyond a reasonable doubt); Jn re Winship (1970) 397 U.S. 358 (due process clause requires governmentprove beyonda reasonable doubt every elementof the crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independent jury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v. Alabama(1980) 447 U.S. 625 (jurors cannot be concludedfrom giving effect to finding of lesser offense); Johnsonv. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use of unreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 U.S. 607 (completeness in supplemental instruction constitutionally required); Estelle v. Smith (1981) 451 U.S. 454 (gravity of decision madeat penalty phase mandatesstate’s adherenceto constitutional guarantees); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Fourteenth Amendmentright to due process and Sixth Amendmentright to trial byjury entitle criminal defendant to ajury determinationthat heis guilty ofevery elementofthe crime with whichis he charged, beyond a reasonable doubt — labeling as “sentencing factor” does not negate this right). C. The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiary hearing,are presented in support of this claim: Page -521- 1. The right to a complete record in capital cases is now codified in Penal Codesections 190.6 through 190.9. These sections, enacted in 1996 and taking their current form on January 1, 1997, expressly provide that a capital defendantis entitled to have the “entire record” prepared andcertified for this Court to review. In capital case, the “entire record” consists of a complete transcript of al] proceedings in the trial court, including those conducted in chambers. (Pen. Code §§ 190.7, 190.9 subd. (a).) This case wastried prior to the enactmentofthese sections and rules and was thereby governed by former Penal Code §190.6 and former California Rules ofCourt, 39.5(c). Both of these provisionsalso require the “entire record.” Section 190.6, enacted in 1977, required this Court to decide the appeal within one hundredfifty days of certification of the “entire record” by the sentencing court. Rule 39.5 expressly required that “[w]hen a judgment of death has been rendered, the entire record shall be prepared.” The phrase “entire record” wasdefined to include the normalrecord specified in subdivision(a) of Rule 33; all items which are to be requested for inclusion in the record specified in subdivision (b) of Rule 33; any other paperor record filed or lodged with the Superior Court pertaining to the case including, but not limited to, transcripts ofproceedings in the municipalorjustice courts and; a transcript ofother proceedings recordedin the Superior Court pertaining to the trial of the case. Former Cal. Rules of Court, rule 39.5. Rule 33 considers a Reporter’s Transcriptof“the oral proceedings taken onthetrial of the cause, including motions in limine heard by the trial judge, jury instructions, andproceedingsatthe time ofsentencing, granting ofprobation, or other dispositional hearing, but excluding the voir dire of jurors and opening statements part of the normalrecord.” Page -522- 2. The right to an adequate appellate record is specifically guaranteedin capital cases bythe Eighth Amendment, which requires a record sufficientto ensurethere is no risk that the death sentence has been arbitrarily imposed. Thisis particularly true regarding omissions involving the appellate record. “Since the state must administer its capital sentencing procedures with an even hand,it is important that the record on appealdisclose to the air every case in which it imposed. [Otherwise, the] capital sentencing procedures wouldbe subject to the defects whichresulted in the holding of unconstitutionality.” (Furmanv. Georgia (1972) 408 U.S. 238; Gardnerv. Florida, supra, 430 U.S.at p.361.) 3. The United States Supreme Court has consistently underscored the crucial role the complete record in capital proceedings: If the state has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals forwhom death is an appropriate sanction and those for whom it is not. Spazianov. Florida, 468 U.S. 447, 460 (1984). The constitution prohibits the arbitrary orirrational imposition ofthe death penalty. Jd. at 466-467. We have emphasized repeatedly the crucial role of meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily orirrationally. See, e.g., Clemmons, supra at 749 (citing cases); Gregg v. Georgia, 428 U.S. 153 (1976) . . . It cannot be gainsaid that meaningful appellate review requiresthat the appellate court consider the defendant’s actual record. “What is important. . . iS an individualized determination onthebasis ofthe character ofthe individual and the circumstancesofthe crime.” Zandt v. Stephens, 462 U.S. 1862, 879 (1983). See also Clemmons, supra at 749, 752; Barkley v. Florida, 463 U.S. 939, 958 (1983) (plurality opinion). Parker v. Dugger (1991) 498 U.S. 308, 322, emphasis added) Page -523- 4. This Court and the United States Supreme Court have recognized the need for an adequate record as a constitutional requirement. Thus, the Sixth Amendment’s guarantee of competent counsel on appealimposes on that counsel both the obligation to brief all arguable issues (citing the appellate record and appropriate authority), and the preliminary obligation to ensure that there is an adequate record before the appellate court to resolve those issues. (People v. Barton (1978) 21 Cal.3d 513, 518-520.) Whenthe record is missing or incomplete, “counsel must see that the defect is remedied ... or counsel will fail to provide a competent level of advocacy. (/bid. at 520.) Further, the right to a meaningful review, and a commensurate record on appealis guaranteed in all criminal cases by the due process clauseofthe Fourteenth Amendment. (Griffin v. Illinois, supra, 351 U.S. 12; Draper v. Washington, supra, 372 U.S. 487.) A record which permits a meaningful and effective presentation of appellant’s claims is a “basic tool” for adequate appealin all criminal cases. (Britt v. North Carolina (1971) 404 U.S. 226, 227.) The Fourteenth Amendmentdue processclausealso protects the right of a criminal appellant to consistent application of procedural protections provided by state law. (Hicks v. Oklahoma, supra, 447 U.S. 343.) Such state guarantee is embodied in the provisions that were in effect at the time of petitioner’s trial sentencing and direct review. (Former Pen. Code, § 190.9; Cal. Rules of Court, rule 39.51; former Cal. Rules of the Court, rule 39.5.) 5. It was a standard practice and procedure in Judge Golde’s chambersat the time ofpetitioner’s trial and sentence to conduct substantial and important proceedings, notonly off record, but also ex parte. In support Page -524- of this, petitioner hereby incorporates by reference Claim 3, 20, 41 through 45, 50, and 51. 6. The inadequacyofthe recordis facially apparent. The example below is in relation to the penalty phase instructions. There simply is no record ofanyproceeding regardingthe decision as to whatinstructions should or should not be issued, and whatinstructions wereor werenot proffered by ae ; Hecti ‘sts-of tl tent-of the | proceeding. Instead, the prosecution, defense counsel, andjudgerelied upon recollection of other proceedings before Judge Golde, but could not specifically recollect what had happened: THE COURT: As to numberfour, this conference dealt with the Court’s interrogation of the parties to any proposed special instructions. Mr. Anderson. MR. ANDERSON: Yes,Your Honor. Having tried many casesin this court and know the Court’s habit and custom as to whatit doesat that particular phase of the trial and watching you talk to other attorneys at that particular phase ofthetrial, I think I could quote fairly accurately. We went into chambers. Yousaid ifyou gentlemen wantany special instructions, I want them in writing bywhateverdate you gave. And I’ve seen you do that innumerable times, so I know that wassaid at that particular point because of your habit in doing so. And I don’t know exactly what happened,ifcounseldid have anyspecial instructions or not, but I know that’s what you normally do and what you did doin this particular case. That was the extent of the conversation. THE COURT: Mr.Strellis. Page -525- MR. STRELLIS: THE COURT: MR.STRELLIS: THE COURT: MR. STRELLIS: THE COURT: I don’t recall ifwe —I talked to Mr. Selvin by the way, and neither of us recall submitting any special instructions. , We’re notthere yet. Atthis point, I ask you whether or not you were goingto file any special instructions, if you were to do it before we had the conference. WhatI am saying,neitherofus recall submitting any specialinstructions. I don’t believe there are anyin the record, and had at that time we said we weregoing to submit any, we would have doneit in writing. We both understand that. My guess is we had norequest for special instructions. Myrecollection is I ask you to put any special instructions in writing. Any ofthe general instructions I was not concerned about. Yeah. And I don’t— And that’s all this conference dealt with. (Supplemental TX P, Proceedings September 9, 1994, pp. 5-6.) 7. At another unreported conference, the court gave a sequence of penalty phaseinstructions: THE COURT: MR. ANDERSON: The other — we’ll go back to numberseven. This conference dealt with sequenceofjury instructions and if the defense seeks lesser includedinstructions of the People’s 190.3 evidence.It’s acts of violence. Mr. Anderson. Yes, Your Honor. I remember fairly well that you give your sequenceofpenalty phaseinstructionsin a certain way, you know,dealing with what segments you wantto give Page -526- them in. I remember you specifically mentioning the sequence ofhow you’re going to give them. And also whatI recall at this particular pointin time was, as the Court remembers, there was a lot of penalty phase evidence, including, you know, acts of violence and threatenedacts ofviolence such asthat one rape where wehadto read the transcriptofthat one girl who couldn’t testify and other crimes whichifstanding by themselves would be subject to having lesser -achidedj . . them} larj ‘al were they beingtried in a criminalcase standing alone. You posed a query, do you haveto give lesser included instructions on these. You threw it out for whatever thoughts we would have, and that’s what I recall at that particular time,that I do haveto give lesser included instructions of what crimes Mr. Anderson proved in the penalty phase. THE COURT: MY.Strellis. MR. STRELLIS: My recollection would be that, again, we discussed the proposed instructions, what you were going to give. We maywell have talked about whether you had to give necessarily includedinstructions. Hadyou chosenot to give anything thatI felt was appropriate, I would have submitted in writing such a request in order to preserve my record. I’m fully aware that’s something I would havehad to do. Myrecollection is there is no such thing in the record, which would lead meto believe I did not ask for anything special. THE COURT: The Court’s recollection concurs with counsel but with one other exception. What I did, I not only dealt with sequence ofjury instructions, I indicated to you whatinstructions I was going to give. MR. STRELLIS: The contents. Page-527- THE COURT: THE COURT: MR. STRELLIS: THE COURT: MR.BOISSEAU: THE COURT: I dictated the instructions verbatim to Jim. Every instruction I was going to give was dictated in the presence of you, Mr. Selvin and Mr. Anderson, Mr. Strellis. I then had them typed up. A copyofthose instructions were given to you before you argued. Before argument, I ask whether there were any objections, and the record will then reflect whether or not you made any objections. I can’t honestly recall whether you did or didn’t. Yes, those would haveto be in writing. All right. Jim, you’l] supplement the proposed settlement to show it not only dealt with sequence of jury instructions, but the actual text of the jury instructionswastotally and completely dictated to you, and copy ofthe instructions given to counselprior to argument, and we then before argument went on the record to see ifthere was any objection to the proposed instructionsI had dictated. I suspect you asked ifthere were any objections, and I said my understandingofthe law, the duty to instruct is yours, and they’re all deemed objected to, since I hate to havejudgestry to put mein the position ofapproving the instructions in advance. Myrecollection is you offered no objection. Whether you approvedor not, the transcript will say. All right. Jim, you’ll supplement the Proposed Settled Statement in that manner. Your Honor, can I at least ask questions for clarification? Mr.Strellis mentioned the fact that his position, all instructions were deemed objectedto. I’m sorry. I didn’t hear you. (Supplemental TX P, Proceedings September9, 1994,pp. 6-9.) Page -528- 7. The constitutional inadequacyofthe record, as well as the need for an adequate record, is evidencedin the vain attempts to reconstitute what did and did not occur. Nothing less than wholesale judicial error and constitutionally ineffective assistance of counsel are manifest by the in- chamberconferencesand failure to describe same. With respectto defense counsel’s position on objections to instructions, counsel stated at the settlement MR. STRELLIS: THE COURT: MR. STRELLIS: THE COURT: MR. STRELLIS: THE COURT: MR. BOISSEAU: THE COURT: MR. BOISSEAU: I probably misstated that. WhatI meant,it is my understanding ofthe law in the State of Californiathat the obligationto instructis thejudge’s and not mine and that therefore the judge cannot ask me do I approve of the instructions and somehow get my — However,I did ask you. You probably asked me, and I probablysaid much the same thing I’m saying. I may have. There were no objections to them. ButI did notspecifically object to anything, that is correct. Yeah. What your motive was, Mr. Strellis, I’m not concerned with. Ofcourse, I would askthat that part of the record also, Mr. Strellis’ — Whatpart? That Mr. Strellis has already said it’s Mr. Strellis’ belief that he doesn’t have to object to the instructions I suppose. Page -529- THE COURT: If he had any objections to the instructions, they would be shown in the record. My independent recollection, he did not object to the instructions. MR.STRELLIS: I would have objected to any instruction I found objectionable. I just am not ready to give my stamp of approval on the record to the instructions. THE COURT: Myrecollection is there was no objections. I also put that in the record. Myrecollection is he did not object. (Supplemental TX P, Proceedings September9, 1994, pp. 9-10.) 8. Anothercrucial area in which no record was made, kept, or given to petitioner on appeal concerned counsel and the judge’s decisions regarding petitioner’s presencein the courtroom. This issue, which occurred on the 22™ dayofthejury trial, was explained bythe prosecutionasfollows: MR. ANDERSON: Wetook a recess, and the court was — wentinto chambers and indicated to defense counsel, both Mr. Strellis and backup counsel, Mr.Selvin, that you’re not going to tolerate this kind of conduct, andeither if you can’t control yourclient, he will be banished, or words to that effect, to an upstairs holding cell. I believe I indicated I think he should be shackled and gagged, and the Court indicated it wasn’t going to do that. But, in any event,that conversation in chambersdealt with defense counseltotally controlling their client in the open court with no morescurrilous remarksbeing hurled and any other type of disruptive conduct or the Court would take matters into its own hands. MR. STRELLIS: From the context of the record, that seems absolutely correct. I mean there was an outburst on the record. We went into chambers. We came out. And Page -530- while I don’t recall the specific conversation,it seems to me that’s clearly what was done. THE COURT: The Court agrees. The Court doesrecall generally the conversation, which was what he was doing primarily, Mr. Anderson,wasstarting to yell out, wants to ask questions. This is the kind of thing he did. He didn’t fight or anything. He wasjust yelling. He was not violent in any way. THE COURT: I told Mr.Strellis he had two choices. Either he could controlhisclient or that I would send him upstairs and testimony would bepiped upto him. At somepoint during the trial he did. He was very upset becausehe didn’t wantthe otherprisoners to hear what wassaid. (Supplemental TX P, Proceedings September 9, 1994, pp. 3-5.) 9. It is apparentfrom the record thatother significant discussions and determinations,in accordancewith the habit and custom ofJudge Golde to conduct substantial proceedings in chambers and off-record, were not recorded, and such record wasnot availableto petitioner on appellate review. 10. The jurors specifically requested that substantial testimony of the prosecution’s key witnesses be re-read to them. (RT 5628-5634; RT 5639-5642.) The judge wasactually absent during someofthis crucialre- reading. The court stated, “There’s also a possibility that during the reading I may excuse myself for a few moments to take a couple of long distance calls that are being put through,but the reading will just go on. It is just no questions. Wewill just go on as if I were here.” (RT 5639.) Under these circumstances, the court reporter mayhavere-read portionsofthe testimony of Stacey Mabrey and Barbara Mabrey. (RT 5640.) Page -531- 11. There is absolutely no transcript or record of the words that were actually re-read to the jury. Rather, the record provides as follows: “(Page 4763,line 28, through page 4767, line 5, andpage 4790, lines 3 through 14 of the testimony of Beverly Jermany were read.); (Page 5199,lines 1 through 21, from the testimony ofTheodore Thomas Landswick wasread.)” . (RT 5629.) “(The direct examination ofAngela Payton, page 4528,line 18, through page 4539, line 27, was read.)” (RT 5630.) “(The following testimony of Stacey Mabrey wasread: Page 4125, line 18, through page 4136, line 10; page 4172, line 1 throughline 10; page 4172, line 21, through page 41 80,line 7; page 4182,line 5, through page 4183, line 11; page 4187, line 27, through page 4188, line 18; page 4189, line 21, through page 4190, line 21. The following testimony of Barbara Mabreywasread: Page 4227,line 2 through page 4244,line 26; page 4245,line 14, through page 4248,line 24; page 4344,line 7, through page 4348,line 11; page 4349,line 18, through page 4367, line 5.)” (RT 5639-5640.) “(The following testimony ofBarbara Mabrey wasread: Page 4372, line 22, through page 4374, line 27; page 4374,line 18 through page 4400, line 6; page 4405, line 11, through page 4406, line 1. The following testimony of Leslie Morgan was read: Page 4459,line 22, through page 4479,line 4; page 4502, line 28, through page 4515,line 4; page 4518,line 25, through page 4521, line 4; page 4522, line 1 through line 13.)” (RT 5641-5642.) Page -532- 12. Failure to record this read-back wasparticularly egregious because the jury required this clarification in order to determine whether or not petitioner wasguilty of first degree murder. There is absolutely no way oftelling what the jury was read. The judge’s absence from the courtroom manifests the acute prejudice suffered from the lack of record keeping in these capital proceedings. ~—_—__~{3____constitutionally failure to providepetitioner and this Court with an adequate record on review constituted errors in violation of petioner’s rights to a fair trial, due process of law, an impartial judge, adequate assistance of counsel, and both reliable proceedings and review in a capital case. These errors were highly prejudicial, particularly since the record is missing substantial proceedings and essential elements in both the guilt and penalty phases of petitioner’s case. D. Eachoftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution,individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 55: Insufficiency of Evidence — Insufficient Evidence of Premeditation and Deliberation to Sustain Conviction A. Petitioner’s conviction and sentenceofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution because the evidence in this case was insufficient to prove the elements of Page -533- premeditation and deliberation. The court’s failure to find the evidence insufficient violated petitioner’s rights to due process;a fair trial; the right to a trial judge who wasunbiasedand conductedthe proceedings with not only fairness, but an appearance offairness; right to confrontation; and theright to fair andreliable capital proceedings and sentence. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: United States v. Tucker (1972) 404 U.S. 443 (due process required that defendant not be sentenced on basis of misinformation of constitutional magnitude); In re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartialitywhere conduct duringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly confront adversarial evidence; Coy v. Iowa (1988) 487 U.S. 1012; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross- examination regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occurthrough introduction ofhearsay); Gardner v. Florida (1977) 430 U.S. 439 (due processviolation in capital proceeding where petitioner sentenced on basis of unreliable Page -534- information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendment requires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process whereinstruction susceptible to an interpretation that removed prosecution’s burden ofproving element ofintent beyond a reasonable doubt); Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable __________everycrime sCarella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 Gurors cannot be concluded from giving effectto finding of lesser offense); Johnson v. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use ofunreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 U.S. 607 (completeness in supplemental instruction constitutionally required); Estelle v. Smith (1981) 451 U.S. 454 (gravity of decision made at penalty phase mandatesstate’s adherence to constitutional guarantees); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Jury must determinetruth ofsentencingfactors.) C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support of this claim: 1. Petitioner movedfor ajudgmentofacquittal after the presentation ofthe prosecution’scase in chief. (RT 4936.) Although petitioner made the motion initially, defense counsel stated he would do so after the evidence was introduced. The parties discussion of the issue follows: Page -535- PETITIONER: MR. SELVIN: PETITIONER: MR. SELVIN: PETITIONER: MR. SELVIN: PETITIONER: MR.SELVIN: PETITIONER: MR. SELVIN: PETITIONER: MR. STRELLIS: Yes, Your Honor. I’m going to request a motion for acquittal, a direct motion for acquittal under Penal Code Section 1118.1 of the Penal code, Your Honor. I believe counsel, the prosecution has failed to make a sufficient — try me on sufficient — Mr. Welch — Excuse me. Mr. Welch — Counsel wait until I finish. Your Honor, because at some point — somepoint it’s a point. Mr. Welch,that motion will be made. Let’s get — finish the prosecution’scase, and that’s the proper time to make the motion. You can makethe motion,but let’s get — The prosecution hasrestedits case. No. The evidenceis not in, Your Honor. I don’t know about the evidence. That’s why we’re here today. I still stating for the record, Your Honor,I’m seeking a direct motion of acquittal under Penal Code Section 1118.1. Ifyou want to deem it timely at this particular time, that’s on the Court. Might I suggest to the Court that we hear the presentation now but that the Court rule onit at a timely time? Page -536- THE COURT: First of all, he doesn’t have any right to makethis motion. Ifyou want to makeit, you mightas well finish it now. You already started it, so why don’t you go ahead? (RT 4935-4937.) Thus, notwithstanding defense counsel’s objection that this motion was not timely, and the court’s statementthat petitioner should not beraising the motion,the court nonetheless not onlypermittedpetitioner to raise the motion himself, but also ruled on it conclusively. (RT 4937-4940.) 2. Atthe close ofpetitioner’s discussion on the motion for acquittal, his counsel again stated his belief that the appropriate time to make the motion wasafter the prosecution rested. (RT 4940.) The court nonetheless expressly ruled on petitioner’s motion,stating, “Motion denied.” (RT 4940.) It does not appear that this motion was made again at the close of the prosecution’s case. However, the court had before it a sufficient record to find that there wasinsufficient evidence premeditation and deliberation to sustain a conviction forfirst degree murder. 3. Indeterminingthe issue ofwhetherthere wassufficient evidence ofpremeditation, the court must determine whetherthere was evidenceof(1) petitioner’s planningactivity prior to the homicide; (2) his motive to kill as gleaned from his prior relationship or conduct with the victim; and (3) the manner of killing, from which may be inferred that petitioner had a preconceived design to kill. This Court “sustains verdicts of first degree murder typically when there is evidence ofall three types and otherwise requires at least extremely strong evidence of: (1) or evidence of (2) in conjunction with either (1) or (3).” (People v. Nicolaus (1991) 54 Cal.3d 551, 576 quoting People v. Anderson (1978) 70 Cal.2d 15, 27.) Page -537- 4. The evidencein this caseis insufficient to support petitioner’s convictionforfirst degree murderbaseduponpremeditation and deliberation. All the evidencepoints to an impulsive act with no advanced planningbythe petitioner. Petitioner wasin a highly agitated, delusional, and paranoidstate, obsessed with the loss of his puppy. (RT 4226, 4233, 4342, 4538, 4539.) Petitioner, who witnesses testified would do bizarre things (RT 4286), appeared underthe influence of drugs and alcohol. (RT 4187.) 5. Norcouldit be inferred from petitioner’s past relationship with the Mabreys that he had any motive to kill. His past relationship with Barbara Mabrey waspoorandhis relationship with Dellane Mabrey was troubled. However, the reported motive for killings in this case--the lost puppy--obsessed with the loss of his puppy, does not support an inference that there was any advanced planning or deliberation prior to the killing. Petitioner’s behavior was so irrational as to preclude any finding of deliberation. Further, it cannot be inferred from the mannerofthe killing that the murders were premeditated. There was no evidence of a preconceived plan;instead the evidence all pointed to impulsive acts committed without any prior consideration or weighing of alternatives. D. Each oftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/orFourteenth Amendmentsto the United States Constitution,individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Pagh3838- laim 56: Instructional Error--Improvised, Egregious Murder Instructions A. Petitioner’s conviction and sentenceofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution because the trial court issued numerousimprovised instructions. Theseinstructions, and first degree murder and manslaughter; specifically misguided thejury on deliberation, thereby prejudicially misleading the jury on the distinction between first and second degree murder; erroneouslyprevented thejury from returning a verdict of manslaughterif it found petitioner was intoxicated; failed to inform the jury that intoxication could negate premeditation and deliberation; andfailed to inform the jury that evidence that maynotsatisfy the requirements of manslaughter may nonetheless be considered on the questionoffirst or second degree murder. Theseerrors prejudiciallyviolated petitioner’s protection against self-incrimination; petitioner’s right to a fair trial; the right to a trial judge who was unbiased and conducted the proceedingswithnot onlyfairness, but an appearanceoffairness;petitioner’s right to be tried by an impartial jury; the right to fair and reliable capital proceedings and sentencing; the rights guaranteed bythe confrontation clause; right to due processinjury instructionsin a criminal proceeding;andthe right to the due process requirementallocating the burden to the prosecution of proof beyond a reasonable doubt. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Jn Pagt3939- reMurchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearanceofimpartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conduct duringtrial hasleft personalstings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribingall judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly confront adversarial evidence); Coy v. Jowa (1988) 487 U.S. 1012; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timelycross-exam regardingpossible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardnerv. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding wherepetitioner sentenced on basis of unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial ofdue process whereinstruction susceptible to an interpretation that removed prosecution’s burden of proving element of intent beyond a reasonable doubt; Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyonda reasonable doubt every element of the crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independent jury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 Pagh4640- (reversible errorin capital case notto instruct on lesser included offense); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Jury must decide facts relevant to sentencing factors.) C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presentedin 1. Thetrial court modified the CALJIC 8.11 definition of express malice by instructing that “Malice is express where there is manifested an intention to unlawfully kill a human being” and repeated“In other words, express malice is wherethe activity shows an intentto kill.” (RT 5589.) Further, the court explained,“Again, express malice is manifested an intention to unlawfully kill. The act,itself, the activity, itself, shows the intentto kill.” (RT 5589.) 2. This instruction wholly fails to distinguish between second degree murder and manslaughter. The judge’s improvisations focus on the lethal act without sufficient recognition of the accompanying subjective mental state. An “intent to kill” is not the same as an “intention unlawfully to kill.” (People v. Johnson (1989) 210 Cal.App.3d 870; People v. Van Ronk (1985) 171 Cal.App.3d 818, 823.) Defining express malice merely as an intent to kill, which is also an element of manslaughter, undermines the difference between the two crimes. The evidencein this caseofpetitioner’s intoxication at the time of the offense exacerbatedthis error. 3. Particularly, in the contextofthis case this instruction created an impermissible presumption of malice and unconstitutionally attenuated the state’s burden ofproof. Pagh4541- 4. Theseare very similar to the errors committed by Judge Golde in the cases ofPeople v. Lee (1979) 92 Cal..App.3d 707 and People v. Kelly (1980) 113 Cal.App.3d 1005. In Lee, the Court of Appeal held that it was compelled to reverse the conviction because of Judge Golde’s “erroneous extemporaneous commentand informal jury instructions.” People v. Lee, supra, 92 Cal. App. 3d.at 710. Judge Golde was reversed for almost identical error in People v. Kelly ,supra, 113 Cal.App.3d 1005. 5. Despite these reversals, Judge Golde committed substantially the same error in the present case. These errors deny petitioner’s rights guaranteed bythe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution. 6. Thetrial court’s erroneousinstruction on deliberation further blurred the distinction between first and second degree murder, and specifically misled the jury. In defining deliberation, the court elaborated as follows: In other words, Ladies and Gentlemen,a deliberate — deliberation means that you think aboutit. It’s a reasoning process. It can either be good or bad reasoning. You think of whatyou’re going to do before you doit instead ofacting upon a sudden impulse or something else which precludesthe idea of thought. (RT 5591.) 7. This elaboration on deliberation misled the jury in two respects. First, it blurred the distinction between first and second degree murder by makingfirst degree virtually tantamountto pre-formedintentto kill, whichis only second degree murder. Additionally,these instructions were misleading in this case where there was evidencethat petitioner’s “bad reasoning” was Pagh4342- the product of alcohol, cocaine, heroin or some other mental condition. Accordingly, this should have been considered as a defenseto the charge of deliberate murder, not evidence supportive ofthat charge. Premeditation and deliberation require substantially more reflection and comprehension ofthe character of the act than the mere amountof thought required to form the intent to kill. (People v. Van Ronk (1985) 171 Cal.App.3d 823; In re C-(1986)183Cal. App.3d 798(“the usedeliberate intention and malice aforethoughtis not synonymouswith the term deliberate as used in definingfirst degree murder.”).) 8. The constitutional violations emanating from this error were particularly egregiousin this case becausethere wassignificant evidencethat petitioner’s “bad reasoning” was a product of severe mental impairments and/or significant intoxication/substance effects. The instruction based on CALJIC 4.21 did not vitiate the error because,interalia, the jury was never instructed on which particular mental state it could consider evidence, and was not specifically instructed that it could consider this evidence to determine whetherpetitioner “deliberated.” Accordingly, the trial court’s erroneous instruction not only permitted, but also directed, the jury to consider such evidence as supporting the charge of deliberate murder. 9. Thejury was understandably confused andspecifically requested the following clarifications during its deliberations: JUROR NO. 9, MR. PARKER: I wonderifyou could explain to us again in the context of the difference between first and second degree the concept of deliberation, deliberate? (RT 5642.) Thetrial court’s clarifications compoundedthe constitutional errors already committed in the issuanceofthe first instructions. The court gave an Pagh4343- extemporaneousinstruction on whatit perceived as the difference between first and second degree murder. (RT 5642-5645.) The court states as follows: Whenyou deliberate, what you do, you think what you’re going to do before you do it. You don’t act on impulse. You act on reason. Now, your reasoning may be bad. Don’t have to have the reasoning ofa rocket scholar, but you have to reasonrather than act by impulse. It’s a process — it’s a thought process rather than an impulsiveact. It can be a good choice. It can be a bad choice. (RT 5645.) These instructions are wholly inadequate as a matter of law. 10. The trial court gave a modified version of CALJIC 4.21, directing the jury to consider intoxication on the question of whether the petitioner actually formed the necessary mental state which was an element of the crime. (RT 5598.) After admonishing the jury that no act committed by a person whilein state ofvoluntary intoxication by either drugsor alcohol is less criminal by reason of his having been in such condition, the court directed thejury in mandatorylanguage with the extemporaneous instruction: “You can’t go out and get drunk or shoot up with drugs and say I’m not responsible for the crime...” (Jbid.) 11. This mandatory directive relieved the prosecution ofthe burden ofproving the mental state elementofthe offense beyond a reasonable doubt, and further misdirected thejury on the elementsofthe offense. “Responsible is not an elementof any of the crimes of which petitioner was charged and ultimately convicted. Nor does the word “responsible” equate in any way to Pagh4444- having or not having the requisite mental state or committing or not committing the acts which are necessary elements ofthe offense. In view of this highly prejudicial error, the court should have explained fullythe mental elements of murder in its instructions, and how intoxication or substance ingestion were relevant in determining whetherpetition actually formed express malice and whether he premeditated, a necessary elementoffirst degree murder. 12. The court gave no further explanation whatsoever of its statementthat “You can’t go out and get drunk or shoot up with drugs and say I’m not responsible for the crime.” Instead, the court instructed: In the crime of murder, however, a necessary element is the existence in the mind of the defendant of the specific mental state which wejust talked aboutit. If the evidence showsthe defendant wasintoxicated at the time of the offense, you may consider his state of intoxication, if any, in determining if the defendant had such required mentalstates. If from all the evidence you have a reasonable doubt whetherthe defendant formed such mental states, you must give to the defendant the benefit of that doubt and find that he did not have such mental states. (RT 5598.) This did nothing to remedy the error in the mandatory conclusive presumptioninstruction that “You can’t go out and get drunk or shoot up with drugs and say I’m not responsible for the crime.” “ 13. Further, these instructions on intoxication impermissibly limited consideration of the evidence to the issue of malice. The court stated that voluntary intoxication was generally not a defense, but that murder required Pagh4545- in the mindofthe petitioner “the specific mental state which wejust talked about it [sic].” (/bid.) Under Penal Code section 22, subdivision (b), however, evidence ofintoxication is admissible ‘‘on the issue whether or not the defendant actually formed a required specific intent, premeditation, deliberation or malice aforethought.” 14. These instructions not only denied petitioner’s right to due processoflaw,a fairtrial, andreliability in his capital proceedings, but also denied petitioner’s right to due process based upon substantivestate rights. Petitioner was prejudiced by these unconstitutional errors and was found ~ guilty on all counts. (RT 5648-5656.) D. Each ofthese errors, in violation ofthe Fifth and/or Sixth and/or Eighth and/orFourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 57: Instructional Error--Judicial Bias: Instruction on Petitioner’s Conduct A. Petitioner’s conviction and sentence of death are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 7, 15, 16 and 17 of the California Constitution becausethetrial court, in its formal instructions, directed the Jury to conclusively believe aspects ofpetitioner’s conduct during trial and further instructed the jury that such conduct was “upsetting” to the court. These instructions manifested bias and antagonism ofthe judge towards the petitioner, unconstitutionally misdirected the jury, introduced a crucial Pagb4646- elementin the instructions not introduced as evidenceattrial, and directed the jury to concludea highly impartial and prejudicial finding on petitioner’s mental state. These errors violated petitioner’s protection against self- incrimination;petitioner’s right to fairtrial; petitioner’s right to atrialjudge whowasunbiased and conducted the proceedings with not only fairness,but an appearanceoffairness; petitioner’s right to be tried by an impartial jury; petitioner’s rights as guaranteed by the confrontation clause and the due process requirementallocating the burdento the prosecution ofproofbeyond a reasonable doubt. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates both actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartialitywhere conduct duringtrial hasleft personal stings, Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Coy v. Jowa (1988) 487 U.S. 1012; Pointer v. Texas (1965) 380 U.S. 400 (right to confront adverse evidence) Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross-exam regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (due processviolation in capital proceeding wherepetitioner sentenced on basis Pags4347- ofunreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendment requires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptible to an interpretation that removedprosecution’s burden of proving element of intent beyond a reasonable doubt; Jn re Winship (1970) 397 U.S. 358 (due process clause requires governmentprove beyond a reasonable doubt every element of the crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state- created right); Bollenbach v. United States (1946) 326 U.S. 607 (completeness in supplemental instruction constitutionally required); and including Apprendi v. New Jersey (2000) 530 U.S. 466 Gury, judge, must make determination ofsentencing factors); Duncanv. Louisiana (1968) 391 U.S. 145 Gury must be instructed to find facts beyond reasonable doubt); Nebraska Press Association v. Stewart (1976) 427 U.S. 539 Gudges have a constitutional responsibility of protecting right to an impartial jury and assuring fair trial). C. The following facts, amongothers,are presented in support ofthis claim after adequate funding, discovery, investigation, and an evidentiary hearing: 1. Atthe conclusion ofthe trial and closing arguments in the guilt phaseofpetitioner’s case, the court stated,“All right, Ladies and Gentlemen, I’m now going to formally instruct you.” (RT 5570)... “Okay. It now becomes myduty to state to you the law which appliesin this case; ... You ~ should receive the law asI state it to be...” (RT 5570-5571.) Pagh4848- 2. The court then instructed the jury regarding petitioner’s absence from the courtroom,further instructed them about defendant’s mental state during those absences, and the court’s personal belief as to defendant’s mental state during those absences. Specifically, the court instructed as follows: Now, ladies and Gentlemen, we have seen Mr. Welch absent himself from the court. I want you to understand that we wanted him in court. We set downcertain rules. He refused to obey them, and I knowthat is upsetting to you. Jt’s, in candor, upsetting to me. But, nonetheless, you cannottake that into consideration, for in determining the guilt or innocence of the defendant you are to be governedsolely by the evidence presented uponthetrial and the law as stated to you by me. (RT 5572, emphasis added.) Thus, the court underscored that the jury was to be governed bythe law stated to them by the judge. The law stated by the judge was that petitioner “refused” to obey rules, and that petitioner’s conduct was “upsetting” to the court. 3. There was no testimony during the trial that petitioner was removed from the court because he refused to obey rules. There were no prosecution witnesses whotestified that petitioner’s absence from the courtroom occurred because of refusal or any other reason. 4. Because there was no evidence introduced or admittedattrial that petitioner was removedfrom the courtroom becausehe “refused to obey” certain rules, there was no opportunity to test the reliability of such conclusive mental state evidence. Thisinstruction by the judge cameat the conclusionofthetrial, after all witnesses forboth the prosecution and defense had testified, and after any opportunity by the defense to correct this Pagh4949- statement through witnesses, introduction ofany other evidence, or through closing argumentin the guilt phase. 5. Acore issue in petitioner’s case in chief was his mentalstate. (RT 5545-5550.) His lack of ability to make coherent, conscientious decisions and choices was the comerstone theory ofhis defense as presented through defense witnesses. (RT 5334-5370, 5383-5440 and directly through the arguments of defense counsel to the jury. The gravamen of the prosecutions’ casein chief, was that petitioner did have the requisite mental state to make conscientious choices and decisions. (RT 4402-4403, 4555, 4559, 5519-5521, 5559-5562, 5564-5565.) By instructing the jury that petitioner “refused to obey” rules, the judge violated manyofpetitioner’s constitutionalrights. 6. Bysoinstructing the jury the judge violated petitioner’s right to confront the witnessesagainst him in a capitaltrial, as guaranteedbythe Sixth and Eighth Amendments to the United States Constitution. There was no opportunity to cross-examine the court to explain, refute or deny this conclusiveinstruction regarding petitioner’s refusal“to obey”certain rules. 7. Thiserror is exacerbated by the court’s continuing instructionthat the jury was to be “governed solely by the evidence presented uponthetrial andthe law as stated to you by me. (RT 5572, emphasis added.) By issuing these instructions the judge assumed the role of a principal and highly damaging witness for the prosecution, wholly supporting the prosecution’s theory of the case and similarly undercutting petitioner’ theory without permitting petitioner any opportunity to confront, denyortest the reliability ofthese egregious, conclusive directives. Pointer; Coy supra, 380 U.S. 400; Coy v. Iowa, supra, 487 U.S. 1012.. Pagt5650- 8. These conclusive directives further violated the constitutional guarantee of due process of law. The court issued a conclusive instruction regarding the core issue ofpetitioner’s mentalstate; i.e., that he “refused to 39 66 obey” “certain rules.” Due process mandates that the prosecution prove every element of the offense beyond a reasonable doubt. Anydirective or instruction whichlitigates this burdenis a constitutional violation. The “law” ; + by-thejud he-jury included-thj jusi presumption on petitioner’s mentalstate, regarding his refusal to obey rules. There wasno option instructed to the jury regarding any potential evidence which could rebutthis conclusive mandatory presumption by the judge that petitionerdid refuse to obey certain unspecified rules. Moreover,the judge instructed that this refusal was personally “upsetting” to the judge, and that such refusal and its consequencesto the judge were “the law.” (RT 5572.) Such burdenshifting is wholly infirm as a matter of longstanding United States Supreme Court law. (See e.g. In re Winship, supra 397 U.S. 358; Sandstrom v. Montana, supra, 442 U.S. 510; Carella v. Californnia, supra 491 U.S. 263. 9. Additionally, Thejudge’s sua sponteinstructions, in violation of governing authority, manifested his express bias against petitioner. This partiality not only can be inferred from the judge’s issuance of these egregious sua sponte instructions, but also is expressly evidenced in the judge’s own commentas to his subjective view of petitioner’s conduct. Without having evidence introduced on petitioner’s conduct, the Court decided onits ownto instruct the jury about whatit perceivedas petitioner’s deliberate rule-breaking. Asset forth supra, this was highly prejudicial to petitioner’s case. Further, thejudge instructed thejury that such conduct was Pags5351- “upsetting”to thejudge, and this subjective prejudicial point ofview wasset forth in that portion ofthe trial wherein thejudgeinstructed the jury as to “the law.” The Constitution requires a fair trial and a fair tribunal, and that “justice .. . satisfy the appearanceofjustice.” (In re Murchison (1955) 349 U.S. 133.) The judge’s unsolicited instructions violated this cornerstone, constitutional mandate. (People v. McNeer (1933) 8 Cal.App.2d 676 (judge’s disparaging comments on defendant required reversal of murder conviction, and such reversal not saved byjudgetellingjury to disregard his remarks.) 10. Capital proceedings must be conductedfairly, non-capriciously and reliably. The heightened guarantees for reliable testing of evidence against one facingsentenceofdeath, as well as reliability and fairnessin the proceedings, are compelled bythe Eighth and Fourteenth Amendmentsto the United States Constitution. Gardner v. Florida, supra, 430 U.S. 439; Godfrey v. Georgia, supra, 446 U.S. 420. The judge’s biased, sua sponte conclusive presumption, which petitioner had no opportunityto explain, rebut or deny, waserror pursuantto these guiding precepts. 11. These errors were unconstitutionally prejudicial. D. Eacherrorin violation of the Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantialand injuriouseffect or influence in determining the jury’s verdict. Page -552- laim 58: Instructional Error—Constitutional Error in Instructing Jury That They Must Accept Prior Felonies As Conclusively Proved A. Petitioner’s conviction and sentenceofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution because the sentencing court instructedthat the jury must acceptthree ofpetitioner’s directive to accept convictions as “conclusively proved” negated the constitutional requirements that prior crimes must be proved beyond a reasonable doubt, and that the jury must be able to makethis determination. Principles of due process, the right to a fair trial, and the requirement of heightenedreliability in capital proceedings require that the jury, not the judge, make the determination of proof beyond a reasonable doubt. The instruction not only permitted, but also unconstitutionally directed,the jury to attribute sufficiency and weightto the testimonyofprosecution witnesses. Morever, the directive that the prior convictions had been “conclusively proved”violated the Eighth Amendmentguaranteeofthe petitioner’s right to proffer, and particularly the jury’s right to receive and consider, all relevant mitigating evidence. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Eddings v. Oklahoma (1982) 455 U.S. 104 (jury must considerall relevant mitigating evidence in a capital case); Skipper v. South Carolina (1986) 476 USS. 1 (sentencer shall not be precluded from considering as a mitigating factor, any aspect of defendant’s characteror record and any circumstances Page -553- of offense proffered); In reMurchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartialitywhere conductduringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribingall judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly confront adverse evidence; Coy v. Jowa (1988) 487 U.S. 1012; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where notimely cross- exam regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (dueprocessviolation in capital proceeding where petitioner sentenced on basis of unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendment requires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptible to an interpretation that removed prosecution’s burden ofproving element of intent beyond a reasonable doubt); Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every elementofthe crime with which defendantis charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjury considerationoffacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v. Alabama Page -554- (1980) 447 U.S. 625 (jurors cannot be concluded from givingeffectto finding of lesser offense); Johnson v. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use ofunreliable aggravating factors in deathdecisions); and including Apprendi v. New Jersey (2000) 530 U.S. 466 (sentencing factors must be determinedbyjury). claim, together with additional evidence to be developed after adequate funding, discovery, investigation, and an evidentiary hearing: . 1. The court instructed the jury that, in determining the penalty, they were to take into account the presence or absence of any prior felony convictions. (RT 6217.) The court further instructed that, in fact, the defendant hadthree previous felony convictions: assault with force likely to produce great bodily injury on Rosemary Dixon; battery of peace officer — Harry Lord; and receivingstolenproperty. (RT 6217-6218.) The court further directedthat the jury accept these convictions as having been “conclusively proved.” (RT 6218.) 2. The instruction negated the requirement that a factor in aggravation be proved beyond a reasonable doubt, and that the jury, not the judge, must make such a determination. The trial court took this crucial decision away from the jurors, ruling that the prior convictions had been conclusively proved, and commanding them to acceptthis conclusion. In so doing, the court failed to distinguish betweenthefact ofthese convictions and the underlying circumstances to which Dixon and Lordtestified. The jurors were not instructed they were free to disbelieve these officers as to the underlying fact of the assaults. Significantly, the jurors were not instructed Page -555- that they should or even could consider any defenses, including mentalstate defenses. 3. Petitioner was prejudiced by the testimony of witnesses Dixon and Lord. Theerror wasprejudicial becauseit effectively directed the jurors to accept as proved three separate aggravating circumstances. Moreover, because the judge instructed that these convictions were “conclusively proved,” petitioner had no opportunity to rebut, explain, or denythe underlying predicates and defenses, including substantial mitigation evidence. (Skipper v. South Carolina, supra, 476 U.S. 1; Gardner v. Florida, supra, 430 U.S. 439. . 4. These constitutional errors were compounded because the jury was nevertold why the convictions were conclusively proved, when they were conclusively proved, or by what evidence they were conclusively proved. Rather, the jurors were left to surmise that the judge was making a credibility finding ofthe witness’s testimony, and that thejudge was making the finding of proof beyond a reasonable doubt of every element in the offense. This instruction denied petitioner a fair penalty trial, a reliable penalty phasetrial, non-capricious imposition ofthe sentence of death, and dueprocessoflaw. D. Each oftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/orFourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Page -556- Claim 59: Instructional Error--Erroneously Directing Jurors to Agree Unanimously on a Sentence Less Than Death A. Petitioner’s conviction and sentenceofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the UnitedStates Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution, because the court specifically instructed the jury that all twelve must agree as to t sphaseFN decision on whether to imposelife without parole or death. This erroneous instruction deprived petitioner of his right to fair and reliable capital proceedings and sentencing; dueprocessoflaw; an impartialjury; the right to a trial judge who wasunbiased and conductedthe proceedings with not only fairness, but an appearanceof fairness; the right to confrontation; and a fair trial. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Mills v. Maryland (1988) 486 U.S. 367 (death penalty invalid wherejurymay havebelievedthat findings ofmitigating circumstances mustbe unanimous); Eddings v. Oklahoma (1982) 455 U.S. 104 (jury must consider all relevant mitigating evidence in a capital case); Skipper v. South Carolina (1986) 476 U.S. 1 (sentencershall not be precluded from considering as a mitigating factor, any aspect of defendant’s characteror record and any circumstances of offense proffered); In re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartialitywhere conductduringtrial Page -557- has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribingall judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly confront adversarial evidence); Coy v. Iowa (1988) 487 U.S. 1012; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross- examination regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur throughintroduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentenced on basis of unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendment requires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptibleto an interpretation that removed prosecution’s burden ofproving elementofintent beyond a reasonable doubt); Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every element ofthe crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjury considerationoffacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v, Alabama (1980) 447 U.S. 625 (jurors cannotbe precludedfrom giving effectto finding of lesser offense); Johnson v. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use ofunreliable aggravating factors in death decisions); Page -558- and Apprendi v. New Jersey (2000) 530 U.S. 466 (Jurors must make determination of sentencing factors.) C. The following facts, among others, are presented in support ofthis claim, after adequate funding, discovery, investigation, and an evidentiary hearing: ; ‘regarding thejury’s mandated duty to determine whetherpetitioner should be sentenced to death or sentencedto life without possibility of parole. (RT 6218-6222.) The court specifically set forth a unanimity requirement, requiring all 12 jurors to agree, and so specified with respectto aggravating factors. (RT 6220.) The court thenspecifically stated: “And obviously all twelve ofyou must agree as to which penalty youfix in the case.” (Id. at 6220, emphasis added.) 2. The court never informed the jury that it did not need to find mitigating factors unanimously, that if one juror believed that life without parole was the appropriate sentence, life without parole would be imposed. (Mills v. Maryland, supra, 486 U.S. 367 (death penalty invalid where jury may have believed that findings of mitigating circumstances must be unanimous); McCoy v. North Carolina, supra, 494 US. at p., 444 (invalidating statute that required jury to unanimouslyfind existence of a mitigating factor beforegivingit effect); Frey v. Flucomer (3™ Cir. 1997) 132 F.3d 916, 922-925 (sentence vacated becauseofpossibilityjury misled into believing unanimity required a mitigating circumstance); Kubat v. Thieret(7" Cir. 1989) 867 F.2d 351, 373 (sentence vacated becauseofpossibility that Page -559- reasonable jury could interpret instruction to require unanimity finding on sufficiency of mitigating circumstances).) 3. Here, the error was far more egregious than in the cases cited above. The jury was not inadvertently misled into believing unanimity on mitigating circumstances was required. Rather, it was expressly and explicitly told that all 12 jurors must agree as to the penalty. There is a - Substantial probability that a reasonable juror would have followed these instructions. By its terms, the court’s instructions meantthat all 12 jurors must agree to life without parole. 4. There is no requirementin the California Constitution or death penalty schemethat all 12 jurors must find for life without parole prior to affixing the penalty in the sentencing phase of a capital case. Such a requirement would wholly violate the Constitution of the United States. (Mills v. Maryland, supra, 486 U.S. 367; McCoy v. North Carolina, supra, 494 U.S. at p. 443.) Further, the United States Supreme Court has madeit clear that it is reversible error to have any type ofunanimity finding imposed on either mitigating circumstancesor the sentence oflife without possibility of parole. The instruction given in the instant case was not simply an instruction requiring a unanimousfinding ofaggravating factors outweighing mitigating factors. Rather, it was an expressdirective that all 12 jurors must agree on the penalty. There were only two penalties at issue: life without parole or death. This highly improperinstruction deniedpetitioner’s rights to areliable sentencing determination guaranteedbythe Eighth Amendment, due processoflaw,a fair trial, a fair tribunal and a fair and impartial judge. Page -560- D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentstothe United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 60: Instructional Error--Constitutionally Inaccurate and Confusing Special Circumstance Instruction A. Petitioner’s conviction and sentence ofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution because the trial court, in its formal instruction, explained that in determining the special circumstance beyond a reasonable doubt, it was the jury’s duty to adopt an interpretation of circumstantial evidence “which points to untruth, reject that pointing to truth.” This constitutionally infirm directive wasset forth in confusing and contradicting special circumstanceinstructions. These errors violated petitioner’s rights to fair trial; the right to a trial judge who was unbiased and conducted the proceedings with not only fairness, but an appearanceoffairness;petitioner’s right to be tried by an impartialjury; the right to fair and reliable capital proceedings and sentencing; the rights guaranteed by the confrontation clause; right to due process in jury instructions in a criminal proceeding; and the due process requirement allocating the burden ofproofbeyond a reasonable doubtto the prosecution B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred,are presented in support ofthis claim: In reMurchison (1955) 349 U.S. 133 (Constitution mandatesactualimpartiality Page -561- and appearanceofimpartiality); Mayberry v. Pennsylvania (1971) 400 US. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conductduringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribingall judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly confront adversarial evidence); Coy v. lowa (1988) 487 U.S. 1012; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross-examination regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occurthroughintroduction ofhearsay); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding wherepetitioner sentenced on basis of unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degreeofscrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptible to an interpretation that removed prosecution’s burden ofproving elementofintent beyond a reasonable doubt); Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every element ofthe crime with which defendantis charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independent jury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created right); and Apprendi v. NewJersey (2000) 530 U.S. 466 (Jury must decide facts relevant to sentencing factors). Page -562- C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support of this claim: 1. Thetrial court instructed the jury to consider “circumstantial evidence” to support a finding of the special circumstance beyond a reasonable doubt. However,its instructionsto thejury, expressly misdirected thejury, requiringa falsity,and reject that which pointed to veracity. Specifically, the judge instructed: And, again, as you heard before, if the circumstantial evidenceis susceptible oftwo reasonableinterpretations, one pointing to the truth of the special circumstance and the other to the untruth,it is your duty to adopt that which points to the untruth [sic], reject thatpointing to the truth [sic]. (RT 5607, emphasis added.) 2. These legally infirm instructions were provided in the framework of special circumstanceinstructions which in themselves were confusing: And, again, you are not permitted to find the special circumstance, the same as any other offense charged in this case, to be true based upon circumstantial evidence unless — In other words, let me back up. I told you you take into account circumstantial evidenceas to intent. And,again,as to the special circumstance, you cannot find the special circumstance to be true based upon circumstantial evidence again unless the proved circumstancesare not only consistent with the theory that the special circumstanceis true but cannot be reconciled with any other rational conclusion. (RT 5606.) 3. Thetrial court never corrected these errors. Instead the court actually compounded the confusion in the instructions with its ostensible Page -563- clarification of the jury’s duty duties in evaluating evidence of special circumstance: And, again the same, you dothat the same way you do anything else. Youwill lookat the intent with which an actis done. That’s shown bya statement of intent made by the defendant, by the circumstancesattendingtheact, the manner in whichit is done, and the meansused. And not to repeat for any emphasis but just to underscore to you that basically the special circumstanceis very true — very easy to understand, youstart off if you find the defendant’s guilty ofat least one murder andit’smurder of the first degree andif you find the defendant’s guilty of any other murder,beit eitherfirst or second degree,then the special circumstanceistrue. . (RT 5608, emphasis added.) 4. By soinstructing, the judge underscoredhis personalbeliefthat the special circumstance was “very true” and “very easy to understand.” These directives, standing alone,andin addition to the remaininginstructions, including but not limited to the incorrect instruction on circumstantial evidence, were manifestly prejudicial to petitioner. Membersofthejury are expected to follow a court’s instructions. In this instance the court’s instructionsdirected themto searchfor“untruth”andto conclusivelypresume that “the special circumstanceis very true.” D. Eachoftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/orFourteenth Amendmentstothe United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Page -564- Claim 61: Instructional Error--Erroneous Directive on the Meaningof “Aggravating” and “Mitigating” Evidence A. Petitioner’s sentence of death is a violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, andarticle I, sections 7, 15, 16 and 17 of the California Constitution, because the court failed to give any definition to an aggravating factor. However, during the voir dire the judge instructed every juror as to what an aggravating factor was. These earlier instructions to the jury, defining and explaining aggravating factors as “bad” and mitigating factors as “good” evidence, in combination with the failure to later correctly instruct and guide the jury, violated petitioner’s right to a trial judge who was unbiased and conducted the proceedings with not only fairness, but an appearance of fairness; an impartialjury;a fair trial; the right to fair and reliable capital proceedings and sentence; and due processof law. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support of this claim: Eddings v. Oklahoma (1982) 455 U.S. 104 Gury must considerall relevant mitigating evidencein capital case); Skipper v. South Carolina (1986) 476 U.S. 1 (sentencer shall not be precluded from considering as a mitigating factor, any aspect of defendant’s character or record and any circumstances of offense proffered); In re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conduct duringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 Page -565- (constitutional mandate proscribingalljudicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendant right to directly confront adversarial evidence); Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross- examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross-exam regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardnerv. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentenced on basis ofunreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendment requires higherdegreeofscrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial ofdue process where instruction susceptibleto an interpretation that removed prosecution’s burden ofproving element ofintent beyond reasonable doubt; In re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every element of the crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjury considerationoffacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannot be concluded from giving effect to finding of lesser offense); and including Johnsonv. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use ofunreliable aggravatingfactors in death decisions); and includingApprendi v. NewJersey (2000) 530 U.S. 466. Page -566- C. The following facts, among others to be presented after adequate funding, discovery, investigation, and an evidentiary hearing,are presented in support of this claim: . 1. In its concluding instructions in the penalty phase, the court instructed the jury as follows: Now,again, Ladies and Gentlemen,in determining which penalty you shall impose upon the defendant, you shall consider, you shall take into account and be guided by the following factors in aggravation and mitigation, if applicable: A mitigation factors is, one, whetheror not the offense was committed while the defendant wasunderthe influence of extreme mental or emotional disturbance. Whetherornotat the time ofthe offense the capacity of the defendant to appreciate the criminality ofhis conductor to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the effect of intoxication. In determining penalty, you may consider, take into account, and be guided bythe followingfactors in aggravation, mitigation: Any other circumstance which extenuatesthe gravity of the crime even thoughit’s not a legal excuse for the crime. In other words,in determining penalty, as mitigation you may consider, take into account any other circumstance which extenuates the gravity of the crime even thoughit may not be and is not a legal excuse for the crime. You further may consider any other aspect of the defendant’s character, his background,hishistory or record that he offers as a basis of a sentence less than death. Page -567- Ladies and Gentlemen, you mayconsider sympathy, you may consider compassion for the defendant It is now your duty to determine which of the two penalties, death or confinementin the state penitentiary forlife without the possibility of parole, shall be imposed upon the defendant. After having heard and consideredall the arguments of counsel, you shall consider, take into account, and be guided by — the applicable factors of aggravating and mitigating circumstances upon which I have just finished instructing. (RT 6218-6220.) 2. However, during voir dire the judge repeatedly issued moral, personaldefinitions ofa aggravating factor. While his subjective instructions of“aggravating” and “mitigating” varied,eachessentiallycontained language to the effect that aggravation was “bad” and mitigation was “good”. (RT 1183; 1422; 1440; 1475; 1817; 1869; 1973; 2006; 2271; 2409; 2607; 2628; 2653; 2733; 2918; 2979; 3176; 3240; 3357; 3375; 3420; 3470; 3485: 3518; 3603; 3633.) The court instucted: Now,what kind of evidence do you hear in the second trial? There may be evidence of what wecall aggravation; for example, bad things about the defendant, previous violence in his background. That points toward the imposition of death. There will be evidence of mitigation, good things in his background, evidence of his mental condition. That points to life without possibility of parole. (RT 2919.) Page -568- 3. There is nothing in the California Penalstatute, the California Death Penalty scheme, the mandatory CALJICs, the California Constitution or the Constitution of the United States which permits a judge in a capital case to so direct the jury. His definitions of aggravation as “bad” and mitigation as “good”specifically and expresslypermitted thejury to consider - mitigating evidenceas aggravating evidence,andfurtherprecluded them from ‘ violence” in the backgroundofan individual could be deemed“bad”, but is often considered a profound and weighty factor in mitigation. Skipperv. South Carolina, supra 476 U.S. 1. 4. Neither any provision ofthe Constitution ofthe UnitedStates, nor the Constitution ofthe State of California, authorizes or permits ajudge in a capital proceeding to conjecture that some evidenceis “bad” and other evidenceis “good,” in the penalty phase ofa capital case. The court’s failure to specifically define aggravating or mitigating in his penalty phase instructions in conjunction with the subjective and erroneous definitions provided to the jury during voir dire, violated petitioner’s rights to an impartialjury, fair trial; the right to an impartial judge who was unbiased and conducted a proceeding not only with fairness, but also an appearance of fairness,reliable capital sentencing determination, confrontation ofwitnesses and due processoflaw.. D. Each ofthese errors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Page -569- Claim 62: Instructional/CALJIC Error--CALJIC 8.85 Misled the Jury to Double Count the Circumstances of the Crime in Violation of the Prohibition Against Double Jeopardy A. Petitioner’s conviction and sentence of death violate the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 7, 15, 16 and 17 ofthe California Constitution becausethe jury was instructed that it could consider, during the penalty phase, circumstancesofthe crime and the existenceofspecial circumstancesin such a manner that double counting would unconstitutionally result. This instruction violatedpetitioner’s rights toa reliable sentencing determination, one which demandsthat thejury’s discretion be guided by clear andobjective standards; due processoflaw; a fair trial; the rightto a trial judge whois unbiased and conducts the proceedings with not only fairness, but an appearance of fairness; confrontation rights; defendant’s right not to be subjected to double jeopardy for the sameoffense; andthe rightto a fair and reliable capital proceeding and sentence. B. The following United States Supreme Court decisions,inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Mills v. Maryland (1988) 486 U.S. 367 (death penalty invalid wherejurymay havebelieved thatfindings ofmitigating circumstances must be unanimous); Eddings v. Oklahoma (1982) 455 U.S. 104 Gury must considerall relevant mitigating evidence in a capital case); Skipper v. South Carolina (1986) 476 U.S. 1 (sentencer shall not be precluded from considering as a mitigating factor, any aspect of defendant’s character or record and any circumstances of offense proffered); In re Murchison (1955) 349 U.S. 133 (Constitution Page -570- mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conductduringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribingall judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965)380U.S.providesdefendantright— — © —— to directly confront adversarial evidence; Coy v. Jowa (1988) 487 U.S. 1012; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where notimely cross- examination regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occurthroughintroduction ofhearsay); Gardnerv. Florida (1977) 430 U.S. 439 (due processviolation in capital proceeding where petitioner sentenced on basis of unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendment requires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptibleto an interpretation that removed prosecution’s burden ofproving element of intent beyond a reasonable doubt; Jn re Winship (1970) 397 US. 358 (due process clause requires governmentto prove beyond a reasonable doubt every elementofthe crime with which defendantis charged); Carella v. California (1989) 491 U.S.263(instruction unconstitutionally foreclosed independentjury considerationoffacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 Gurors cannotbe precludedfrom givingeffect to finding Page -571- oflesser offense); and including Johnsonv. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use of unreliable aggravating factors in death decisions); Ohio v. Johnson (1994) 467 U.S. 493, 499 (doublejeopardy bar); United States v. Blockburger (1932) 284 U.S. 299, 304 (double jeopardy bar); Apprendi v. New Jersey (2000) 530 U.S. 466 (jury must determineall sentencing factors). C. The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiaryhearing, are presented in support of this claim, | 1. In accordance with CALJIC 8.85 the jury wasinstructedthatit could consider, during the penalty phase,“[t]he circumstancesofthe crime ofwhich the defendant was convicted in the proceeding andthe existence of any special circumstances found to be true.” (RT 6209-6210.) This instruction is based on language found in Penal Code Section 190.3(a). 2. The California Supreme Court has recognized that instructions basedon languageofPenal Codesection 190.3 presents a dangerthat thejury could double count the aggravating evidence: Ofcourse, the robbery and the burglary may not each be weighed in the penalty determination more than once for exactly the same purpose. Theliberal language ofsubdivision(a) presentsatheoretical problem in this respect, since it instructs the penalty jury to consider the “circumstances”ofthe capital crime and any attendant“statutory circumstances.” Since the latter are a subset of the former, the jury given noclarifying instructions might conceivably double count any “circumstances” which were also “special circumstances”. On defendant’s request, thetrial court should admonish the jury notto do SO. . Page -572- (People v. Melton (1988) 44 Cal.3d 713, 768; see People v. Bean, 46 Cal.3d919, 955 (1988) (“multiple felony-murderspecial circumstances might artificially inflate the weight to be given the underlying offenses as aggravating factors if considered more than once for exactly the same purpose.”) 3. Jurors are expected to follow the instructions given. The jury, accordingly, understood subdivision (a) and the instruction given to mean jury wasinvited to weigh both six murders and the multiple murder special circumstances. Thefailure ofthe court to avoid this double counting violated due processoflaw and the Eighth Amendmentguaranteeofreliable penalty determination. 4. These instructional errors precluded a reliable sentencing determination,a finding ofproofbeyond a reasonable doubt and due process oflaw,the rightto a fairtrial, and the right to an impartialtribunal andjudge. The double jeopardy clause of the Fifth Amendmentto the United States Constitution and article I, section 15 and 24 of the California Constitution protect against doublejeopardy. Prohibition against doublejeopardy clearly applies to impermissibly enhanced sentences. Ohio v. Johnson (1994) 467 U.S. 493, 499. Double jeopardy will further prescribe when the acts in question require proofof the same elements. United States v. Blockburger (1932) 284 U.S. 299, 304. Here, this double counting constituted double jeopardy. D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually Page -573- and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 63: Instructional Error--Failure to Instruct Jury ofProsecution’s Burden to Prove Other Criminal Activity Beyond a Reasonable Doubt A. Petitioner’s conviction and sentence ofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution because the trial court failed to instruct the jury that the prosecution bears the burden ofproving othercriminalactivitybeyond a reasonable doubt. This permitted Jurorsto find the other criminal activity where the prosecution did not meet this burden, and deniedpetitionerhis guaranteed rights to fairtrial; impartial jury; the right to a trial judge who was unbiased and conducted the proceedingswithnot only fairness, but an appearanceoffairness; due process of law in the sentencing phase of a capital case; due process of law for violation of a state-created right; and the right to fair and reliable capital proceedings and sentence. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Mills v. Maryland (1988) 486 U.S. 367 (death penalty invalid wherejurymay have believedthat findings ofmitigating circumstances must be unanimous); Eddings v. Oklahoma (1982) 455 U.S. 104 Gury must considerall relevant mitigating evidence in a capital case); Skipper v. South Carolina (1986) 476 U.S. 1 (sentencer shall not be precluded from considering as a mitigating factor, any aspect of defendant’s character or record and any circumstances Page -574- of offense proffered); Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conduct duringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly confront adversarial evidence; Coy v. Jowa (1988) 487 U.S. 1012; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross- exam regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardnerv. Florida (1977) 430 U.S. 439 (due processviolation in capital proceeding where petitioner sentenced on basis of unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendment requires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptible to an interpretation that removed prosecution’s burdenofproving element of intent beyond a reasonable doubt; Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every elementofthe crime with which defendantis charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v. Alabama Page -575- (1980) 447 U.S.625 (jurors cannot be concluded fromgivingeffectto finding oflesser offense); and including Johnson v. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use of unreliable aggravating factors in death decisions); Apprendi v. New Jersey (2000) 530 U.S. 466. C. The following facts, among others, are presented in support ofthis claim, after adequate funding, discovery, investigation, and an evidentiary hearing: 1. During the penalty phase, and in accordance with CALJIC 8.87 the trial judge instructed the jury as follows: Now,evidence has been introduced for the purpose of showing that the defendant has committed the following criminal activity which involved the express or implied use of force or violenceor the threat offorce or violence. Before you may consider any such criminal acts or activity as an aggravating factor in this case, you mustbe satisfied beyond a reasonable doubt that defendant did, in fact, commit such criminalactivity or acts. (RT 6210.) 2. The penalty phase instructions included CALJIC 2.90, defining reasonable doubt. Although CALJIC 2.90 was given during the guilt and penalty phases, the penalty phase instructions did not direct who had the burden ofproof, or whetheranyorall ofthe instructions givento the jury at the guilt phase applied. Rather, the court advised the jury that: Ladies and Gentlemen, it now again becomes my opportunity, my obligation to instruct you as to the law. AsI did in the first case, I always start with some preliminary instructions as to how youreview the evidence. I’m not going to repeat them all to you. Iknowyou still rememberthem, but Page -576- I’m going to repeatjust a couple which apply morepeculiarly to the testimony here. (RT 6203, 6204, emphasis added.) 3. Itcannotbe disputedthat“in the penalty trial the same safeguards should be accorded a defendant as those which protect him in thetrial in which guilt is established.” (People v. Terry (1964) 61 Cal.2d 137, 149; at sentencing hearing to determine newfacts).) Petitioner further incorporates Claim 63. 4. Inthe present case, thejury was given a constitutionally defective instruction on reasonable doubt. An integral part of any instruction concerning the standard of proof is information concerning the burden of proof. Cal. Evidence Code section 502. However, CALJIC 8.87 as written andas instructed only addresses standard ofproofand says nothing about the government’s obligation to place before thejury evidencesufficientto satisfy its burden of proof. 5. |The mandate that other crimes be proved beyond a reasonable doubt duringthe penaltyphase necessarilymirrorsits guilt phase counterpart, with the exception that the standard ofproofis elevated in the light of the gravity of the decision. In People v. Poke (1965) 63 Cal.3d 443 this Court stated: Generally, the standard of competency of the evidenceat thetrial on the issue ofpenalty is the sameas the standard requiredatthetrial on the issue of guilt. Since evidence of other crimes, however, may have a particularly damaging impact on the jury’s determination whetherthe defendant should be executed, we recognize. . . that there should be an exception to the normalstandard ofproofat thetrial on the issue of penalty. Page-577- (Ibid. at pp. 450-451 (citations omitted).) 6. Although the standard of proof may be different, the burden of proofremainswith the prosecution. CALJIC 8.87is fatally defective and the instructionssimilarly infirm,byfailure to inform thejury that the prosecution must prove the crimes beyond areasonable doubt. A bedrock principle consistently underscored bythe United States Supreme Court is that, integral to any reasonable doubtinstruction, is the requirement that the government bear the burden of proof. The due process clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which heis charged.” Jn re Winship, 397 U.S. at 364. The state may not give instructionsthat result in “dilution ofthe principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” Estelle v. Williams (1976) 425 U.S. 501, 503. Likewise, having determined that proof beyond a reasonable doubtis a proper standard for determining the existence of other crimes during the penalty phase, neither the state nor the court may dilute this requirement by failing to require or provide the complete instruction. The reasonable doubt standard is not phase- determinative, but rather,the “applicability ofthe reasonable doubt standard . .. has always been dependent on howa state defines the offense that is charged in any given case. (Patterson v. New York (1997) 432 U.S. 197, 211.) 7. Here, the reasonable doubt instruction and the commensurately requisite burden of proof wasfatally undercut by thetrial court’s giving of CALJIC 8.87. All this instruction doesis inform ajuror that he or she must be satisfied beyond a reasonable doubtthat the defendant did in fact commit Page -578- such criminal acts. However, due process demandsthat this satisfaction be based upon proofby the prosecution rather than someotherfactor. 8. The judge’s improvised, sua sponte directive as to whatthejury should and should not consider in the penalty phase exacerbated the reasonable doubtinstruction error. The court informedthejurythat it was not going to repeat all of the preliminary instructions as to how to review the evidence, butdid direct thejury that “I’mgoingto repeatjust a couple which apply more peculiarly to the testimony here.” (RT 6204.) This directive specifically steered the jury away from equally consideringall instructions in the guilt phase with the same weight as they were in the guilt phase. The jury instead wasspecifically told that there were certain instructions which “apply more peculiarly” to the penalty phase. These instructions did not include the prosecution’s burden of proofbeyond a reasonable doubt. 9. Theerrorin issuing the defective reasonable doubt instruction deprived petitioner ofhis right to due processoflaw in the sentencing phase of this case, to havethe prosecution prove other crimes beyond a reasonable doubt, and to have the jury determine that the prosecutionhassatisfied this burden. This error further underminesthe reliability of the penalty phase decision in this capital case. D. Eachoftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/orFourteenth Amendmentsto the United States Constitution,individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Page -579- laim 64: Instructional Error--Instruction Permitting Consideration of Criminal Acts Not Involving Violence as Aggravating Circumstances A. Petitioner’s conviction and sentenceofdeath are violationsofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution because the court improperly modified CALJIC 8.87 to admit evidence of other criminalacts not involving violence to be used as aggravating circumstances. This violated petitioner’s constitutional rights to due processin the capital sentencing proceeding; due processas a violation ofa state createdright; the right to fair and reliable capital proceedings and sentence;a fair trial; a fair tribunal; the right to a trial judge who was unbiased and conducted the proceedings withnot only fairness, but.an appearance offairness; and the right to confrontation. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Mills v. Maryland (1988) 486 U.S. 367 (death penalty invalid wherejurymay have believedthat findingsofmitigating circumstances must be unanimous); Eddings v. Oklahoma (1982) 455 U.S. 104 (jury must considerall relevant mitigating evidencein a capital case); Skipper v. South Carolina (1986) 476 U.S. 1 (sentencer shall not be precluded from considering as a mitigating factor, any aspect of defendant’s character or record and any circumstances of offense proffered); Jn re Murchison (1955) 349 U.S. 133 (Constitution - mandates actual impartiality and appearance of impartiality); Mayberry v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conduct duringtrial Page -580- has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribing all judicial bias); Tumey v. Ohio (1927) 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly confront adversarial evidence; Coy v. Jowa (1988) 487 U.S. 1012; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where (1974) 415 U.S. 308 (confrontation clause violation where no timely cross- examination regarding possible bias and prejudice); Ohio v. Roberts (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction ofhearsay); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentenced on basis of unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendment requires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptibleto an interpretation that removed prosecution’s burden ofproving elementofintent beyond a reasonable doubt; Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every element ofthe crime with which defendantis charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 Gurors cannot be precluded from givingeffect to finding of lesser offense); Johnson v. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use ofunreliable aggravating factors in death decisions); Page -581- and including Apprendi v. New Jersey (2000) 530 U.S. 466 (Jury must decide truth of sentencing factors.). C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support of this claim: 1. Throughout the penalty phase, the prosecution brought out significantincidents ofunadjudicated criminalactivitynot involving violence, as well as information concerning various juvenile adjudications. Asthis court has recognized, it is improper to introduce evidence of non-statutory aggravation orjuvenile adjudications. (People v. Boyd(1985) 38 Cal.3d 762; People v. Burton(1989) 48 Cal.3d 483.) 2. The instruction given by the court regarding consideration of criminal acts as aggravating circumstances wasa version of CALJIC 8.87. This provided, in part: Now,evidencehas been introducedfor the purpose ofshowingthe defendant has committed the following criminal activity which involved the express or implied use of force or violenceorthe threat of force or violence. Before you may consider any such criminal act as an aggravating circumstance in this case, a juror must first be satisfied beyond a reasonable doubt that the defendant did in fact commit such criminalacts. (RT 6210.) 3. The court did notinstruct the jury that it must not consider any evidence of other nonviolent criminal acts as an aggravating circumstance. Thetrial court’s failure to add this languagesignificantly altered the meaning ofCALJIC 8.87. The instruction did not clearly prescribe the consideration Page -582- of“evidence ofany other criminalacts as an aggravating circumstance”other than the violent acts discussedin the instructions. (RT 6210-6213.) Failing to instruct thejurythat theycould not consider petitioner’s unchargedactsled the jury to erroneously believe that other criminal acts could be considered in determining which sentence wasappropriate. 4. Thetrial court invited and encouraged the improper consideration ___of“other crimes”evidencein aggravation. The Eighth Amendment limits the use of these types of improper and unreliable aggravating factors in death decisions. (Johnson v. Mississippi, supra, 486 U.S. at pp. 584-585.) Permitting the prosecutor to urge and the jury to consider, among other things, petitioner’s nonviolent juvenile conduct, interjected “a level of uncertainty and unreliability into the fact-finding processthat cannotbetolerated in a capital case.” (Beck v. Alabama, supra, 447 U.S. at p. 643.) The trial court’s action undermined the Eighth Amendment’s “need for reliability in the determination that death is the appropriate punishment in a specific case.” (Woodson v. North Carolina (1976) 428 U.S. 280, 305 (opinion of Stewart, Powell, and Stevens, JJ.).) Additionally, becausethe petitioner had a protectedliberty interest under the due process clause of the Fourteenth Amendmentto havethe jury consider ofonly statutory aggravation, his constitutional rights were further violated by the arbitrary deprivation of his state law rights. (Hicks v. Oklahoma (1979) 447 U.S. 343.) 5. Definitions of the criminal acts or activity proffered as aggravating factors in the penalty phase of petitioner’s case also failed to include critical mental state elements which the jury waslegally required to find beyond a reasonable doubt. Criminalactivity, other than strict liability Page-583- offenses, must have a mens rea. This is an absolute and unequivocal constitutional requirement. (Jn re Winship, supra, 397 U.S. 358; Sandstrom v. Montana, supra, 442 U.S. 510.) Failure to set forth this mentalstate precludes ajury from finding this necessary elementofa criminalact. (Jbid.) 6. Anaggravating factor proffered and foundin support ofimposing death on petitioner was the “crime of rape” upon Juanell Turner. The court instructed the elements of rape as follows: Every person who engagesin an act of sexual intercourse with a female person whois not the spouseofthe perpetrator, accomplished against such person’s will by meansofforce, violence, or fear of immediate and unlawful bodily injury, is guilty of the crimeofrape. You need four elements to prove a rape. One, a male and female person engagedin an actof sexual intercourse. Two, they were not married to each other. Three, the act of intercourse was against the will of the female. And, four, such act was accomplished by meansofforce, violence, or fear of immediate and unlawful bodily injury to such person (RT 6210-6211.) 7. The foregoing definition included no mental state. The elements of an act performed against a person’s will defines the mental state of the victim, not the mentalstate of the perpetrator. The means by whichtheact is accomplished describes the actus reas, not the mensrea. Page -584- 8. The jury therefore was not instructed or required to find any mental state to conclude that the crime of rape occurred, and therefore find this to be an aggravating factor beyond a reasonable doubt. Thisinstruction unconstitutionally shifted the burden ofproofto the petitioner and precluded a mensrea finding “beyond a reasonable doubt”ofthis crime. 9. Petitioner was also accused of having committed the crime of Every person who engagesin an act of sodomy whentheactis accomplished against the victim’s will by means offorce, violence, duress, menaceor fear ofimmediate and unlawfulbodily injury on the alleged victim is guilty of the crime of unlawful sodomy. You need two elements to prove a sodomy. One,that a person engagedin an act of sodomy with another, that the sodomyoccurred. Two, that the act, the sodomy, was accomplished against the alleged victim’s will by meansofforce, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim. Now,an act of sodomyis sexual conduct which consists of any penetration, howeverslight, ofthe anus ofone personby the penis of another. Again, proofof ejaculation is not required. And,further, the words“againstthe will” mean without the consent of the alleged victim. (RT 6211-6212.) 10. There is no mensrea elementin the definition ofthis crime. As in the crimeofrape, the terms“force”or “violence” describe the actusreas, not the mens rea. The term “against the will” describes the mental state of the victim, not the mental state of the perpetrator. Page -585- 11. Thusthejury was precluded from finding the requisite mensrea “beyonda reasonable doubt”asis constitutionally required. (Jn re Winship, supra, 397 U.S. 358 ; Sandstrom v. Montana, supra, 442 U.S. 510.) 12. The court’s failure to include these crucial elements in the definitions of these crimes wasparticularly egregious in this capital case becauseit underminedthereliability of the entire sentencing proceeding in violation of the Eighth Amendment 13. These instructional errors precluded a reliable sentencing determination and a finding of proof beyond a reasonable doubt and due processof law,the right to a fair trial and petitioner’s rights to an impartial tribunal and judge. D. Eachoftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 65: Failure to Instruct on the Presumption of Life A. Petitioner’s conviction and sentence of death violate the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution because the trial judge failed to instruct the jury at the penalty phase on the presumption of life. The court’s failure to order such proceedings violated petitioner’s rights to a fair trial, due process of law, trial only while competent, an impartial jury, the right to a trial judge who wasunbiased and conductedthe Page -586- proceedings with not only with fairness but also with an appearance of fairness, and the right to reliable capital proceedings. B. The following United States Supreme Court decisions,inter alia, in effect at the time the error occurred, are presented in support ofthis claim: Estelle v. Williams (1976) 425 U.S. 501 (presumption of innocenceis core violation in capital proceeding where petitioner sentenced on basis of unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degreeofscrutiny in capital proceedings); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due processclaim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannot be concluded from giving effect to finding of lesser offense); Estelle v. Smith (1981) 451 U.S. 454 (gravity of decision made at penalty phase mandates state’s adherence to constitutional guarantees); and including Apprendi v. New Jersey (2000) 530 U.S. 466 Gury determination required for sentencing factors). C. The following facts, among others, are presented in support ofthis claim, after adequate funding, discovery, investigation, and an evidentiary hearing: 1. In non-capital cases, the presumption of innocenceacts as a core constitutional and adjudicative value to protect the accused andis a basic componentofa fair trial. (Estelle v. Williams, supra, 425 U.S.at p. 503.) Paradoxically, at the penalty phase of a capital trial, where the stakes are life or death, the jury is not instructed as to the presumption oflife, the penalty phase correlate of the presumption of innocence. (Note, The Page -587- PresumptionofLife: A Starting Pointfor a Due Process Analysis ofCapital Sentencing (1984) 94 Yale L.J. 351; cf. Delo v. Lashley (1993) 507 U.S. 272.) 2. The court’s failure to instruct that the presumption favorslife rather than death violated appellant’s right to due process of law under the Fifth and Fourteenth Amendments,his EighthAmendment rights toareliable determination ofthe penalty and to be free ofcruel and unusual punishments, and his right to equal protection under the Fourteenth Amendment. 3. In People v. Arias (1996) 13 Cal.4th 92, this court rejected the contention that a “presumption oflife” instruction must be given on the groundsthat the United States Supreme Court decisions haveheld that as long as a State’s law properly limits death eligibility, “the state may otherwise structure the penalty determination asit seesfit.” (/d., at p. 190.) 4. However, California’s death penalty scheme does not properly limit death eligibility. Among other serious defects, the current law gives prosecutors unbridled discretion to seek the death penalty, fails to narrow the class of death-eligible murderers, fails to require written findings regarding aggravating factors, and fails to require proportionalityreview. Accordingly, a presumption oflife instruction is constitutionally required at the penalty phase. D. Each oftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determiningthe jury’s verdict. Page -588- Claim 66: Cumulative Errors-—-Ruling on Automatic Modification Motion A. Petitioner’s conviction and sentenceofdeath areviolations Ofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution because the trial court failed to follow the law in ruling on petitioner’s automatic motion for modification. The court considered the probation report prior to ruling on the motion, applied constitutionally infirm legal standards, refused to permit petitioner the opportunity to review the probation report, and committed all the other errors enumerated in this section. Theseerrors, individually and cumulatively, deniedpetitioner his liberty interest protected by the Fourteenth Amendment; fair trial; the rightto a trial judge who was unbiased and conducted the proceedings with not only fairness, but an appearanceoffairness; due processoflaw; confrontationrights; and the right to fair and reliable capital proceedings and sentenceas required bythe Eighth Amendment. These errors, cumulatively, prejudiced petitioner. B. The following United States Supreme Court decisions, inter alia, in effect at the time the error occurred, are presented in support of this claim: United States v. Tucker (1972) 404 U.S. 443 (due process required that defendant not be sentenced on basis of misinformation of constitutional magnitude); Jn re Murchison (1955) 349 U.S. 133 (Constitution mandates actual impartiality and appearance of impartiality); Mayberry ‘v. Pennsylvania (1971) 400 U.S. 455 (constitutional impartiality lacking); Taylor v. Hayes (1974) 418 U.S. 488 (impartiality where conduct duringtrial has left personal stings); Berger v. United States (1921) 255 U.S. 22 (constitutional mandate proscribingall judicial bias); Tumey v. Ohio (1927) Page -589- 273 U.S. 510 (due process mandates impartial tribunal); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantright to directly confront adversarial evidence); Coy v. Iowa (1988) 487 US. 1012; Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross-examine complainant); Davis v. Alaska (1974) 415 U.S. 308 (confrontation clause violation where no timely cross-examination regarding possible bias and prejudice); Ohio v. Roberts | (1980) 448 U.S. 56 (confrontation clause violations may occur through introduction of hearsay); Gardner v. Florida (1977) 430 U.S. 439 (due processviolation in capital proceeding wherepetitioner sentenced on basis ofunreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Sandstrom v. Montana (1979) 442 U.S. 510 (denial of due process where instruction susceptible to an interpretation that removed prosecution’s burden of proving element of intent beyond a reasonable doubt); Jn re Winship (1970) 397 U.S. 358 (due process clause requires government prove beyond a reasonable doubt every element of the crime with which defendant is charged); Carella v. California (1989) 491 U.S. 263 (instruction unconstitutionally foreclosed independentjury consideration offacts); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); Beck v. Alabama (1980) 447 U.S. 625 (jurors cannot be precluded from giving effect to finding oflesser offense); Johnsonv. Mississippi (1988) 486 U.S. 578 (Eighth Amendmentlimits use ofunreliable aggravating factors in death decisions); Bollenbach v. United States (1946) 326 U.S. 607 (completeness in supplementalinstruction constitutionally required); Estelle v. Smith (1981) 451 U.S. 454 (gravity of decision made at penalty phase mandates state’s adherence to constitutional guarantees); and including Page -590- Apprendi v. New Jersey (2000) 530 U.S. 466 (Jury to determine facts relevant to sentencing factors.) C. The following facts, among others, are presented in support ofthis claim, after adequate funding, discovery, investigation, and an evidentiary hearing: 1. Petitioner incorporates referenc i 4,and 66. 2. In Pulley v. Harris (1984) 465 U.S. 37, the Supreme Court rejected an argumentthat the Eighth Amendmentrequired a proportionality review. In making this finding, the Court relied in part on California inclusion of the automatic motion for modification of sentence. This serves as a critical check on thearbitrary and capricious impositionofthe death penalty. Here however, the Section 190.4 hearing as flawed, and the death sentence was unreliable. This constitutional infirmity further adds to the cumulative errors set forth in this claim. D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution,individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 67: Cumulative Judicial Error A. Petitioner’s conviction and sentence of death violate the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and Article I, Sections 7, 15, 16 and 17 ofthe California Constitution because the Page -591- cumulative effect of the judicial errors alleged in this petition and in petitioner’s direct appeal deprived him of his federal constitutional nights, including, butnotlimitedto, his rights to due processoflaw, equalprotection, confrontation, the effective assistance ofcounsel, an impartialjudge andjury, reliable capital proceedings and sentence, and fairtrial. B. The following United States Supreme Court decisions, infer alia, in effect at the time the error occurred, are presented in support ofthis claim: Taylor v. Kentucky (1978) 436 U.S. 478, 487, and fn. 15 (cumulative effect of errors may violate due process); Strickland v. Washington (1984) 466 U.S. 668 (criminal defendanthasrightto effective assistance ofcounselatall stages ofproceedings); Brady v. Maryland (1963) 373 U.S. 83 (withholding of evidence favorable to accused violates due process); Pointer v. Texas, (1965) 380 U.S. 400 (confrontation clause providescriminal defendantright to directly confront adversarial evidence; Gardner v. Florida, (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentenced on basis of unreliable information); Godfrey v. Georgia, (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degreeofscrutiny in capital proceedings); Hicks v. Oklahoma, (1979) 447 U.S. 343 (federal due process claim in state-created right). C. The following facts, among others to be discovered, after adequate funding, discovery, investigation, and an evidentiaryhearing, are presented in support of this claim: 1. Petitioner incorporates as if fully set forth herein Claims 34 through 45. Page -592- 2. In this petition andin the briefing on direct appeal, petitioner has set forth separate post-conviction claims and arguments regarding the numerousjudicial errors occurring duringthepretrial, guilt, penalty, and post- trial phases, and he submits that each one of these errors independently compels reversal of the judgment or alternative post-conviction relief. However, even in cases in which no single error compelsreversal, a defendant the errors in the case denied him fundamental fairness. (Taylor v. Kentucky (1978) 436 U.S. 478, 487, and fn. 15; People v. Holt (1984) 37 Cal.3d 436, 459; see also, People v. Ramos (1982) 30 Cal.3d 553, 581, revd. on other groundsin California v. Ramos (1985) 463 U.S. 992; In reRodriguez (1981) 119 Cal.App.3d 457, 469-470; People v. Vindiola (1979) 96 Cal.App.3d 370, 388; People v. Buffum (1953) 40 Cal.2d 719, 726; and see Harris v. Wood (9" Cir. 1995) 64 F.3d 1432, 1438-1439; United States v. McLister (9" Cir. 1979) 608 F.2d 785, 791.) 3. Petitioner submits that the judicial errors in this case require reversal both individually and because of their cumulative impact. As explained in detail in the separate claimsset forth above,the errors in this case individually and collectively violated federal constitutional guarantees underthe Fifth, Sixth, Eighth, and Fourteenth Amendments. D. Eachoftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence on the judgmentand sentence and are moreoverprejudicial under any standard of review. Page -593- Claim 68: Ineffective Assistance of Appellate Counsel A. Petitioner’s conviction and sentence of death violate the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and article I, sections 7, 15, 16 and 17 of the California Constitution because appellate counsel performedineffectively in failing to allege numerouserrors in the direct appeal filed in this court on petitioner’s behalf. (Case Number $013323.) Counsel’s unprofessionalerrorsviolated petitioner’s rights to due process oflaw,the effective assistance of counsel on appeal, meaningful review on appeal, andtherightto reliable capital proceedings and sentencing. B. The following United States Supreme Court decisions,inter alia, in effect at the time the error occurred, are presentedin support ofthis claim: Powell v. Alabama (1932) 287 U.S.45 (indigent capital defendant hasright to have effective counsel appointed and to be heard through counsel); McMannv. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showing that counsel’s acts fell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome;these principles apply equally to guilt and sentencing phases of capital trial); Evitts v. Lucey (1985) 469 U.S. 387 (right to effective assistance on appeal); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendmentviolated, and prejudice need not be shown,if counsel entirely fails to subject the prosecution's case to meaningful Page -594- adversarial testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed when counsel labors under conflict of interest); California v. Trombetta (1984) 467 U.S. 479; Arizona v. Youngblood (1988) 488 U.S. 51 (bad faith destruction of material evidence by prosecution); Ake v. Oklahoma(1985) 470 U.S. 68 (defendantentitled to expert assistance, including mentalhealth expert assistance, to prepare for and provides criminal defendant right to directly confront adversarial evidence; Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding wherepetitioner sentenced on basis of unreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree of scrutiny in capital proceedings); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right); and including Apprendi v. New Jersey, (2000) 530 U.S. 466. (Jury must determinetruth of sentencing factors). C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support of this claim: 1. Petitioner incorporatesasiffully set forth herein all facts and law set forth in all other claimsin this petition. _ 2. To the extent this Court mayfind that any of the claimsraised in this petition should have been, but werenotraised, in the direct appealin this case, the failure was the result of the ineffective assistance of appellate counsel. (Evitts v. Lucey, supra, 469 U.S. 387.) Anyerror of appellate counsel in failing to raise the above claimsthat should have been raised on appeal wasprejudicial becauseit deprived petitionerofhis rights to effective Page -595- assistance of counsel on appeal, due process, and meaningful appellate review ofhis convictionand sentenceofdeathin violation ofthe Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. For that reason, petitioner must be allowedto raise those claims herein or in a new or supplemental appellate proceeding. 3. Petitioner submits that appellate counsel’s omissions were not tactical in nature but rather were caused by inadvertence, negligence, and/or a conflict of interest. As set forth in the portion of this petition entitled “Timeliness Facts” together with the exhibits referenced or incorporated therein, counsel’s otherworkload and domestic problems prevented him from performing competently on direct appeal and contributed to the affirmance of the judgment. D. Each oftheseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/orFourteenth Amendmentsto the United States Constitution,individually and/orcollectively, had a substantial andinjuriouseffect or influence on the judgmentand sentence and are moreoverprejudicial under any standard of review. Claim 69: Ineffective Assistance/Conflict ofCounsel--California System of Dual Representation Results in Conflict of Appellate Counsel A. Petitioner’s conviction and sentence of death violate the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and article I, sections 7, 15, 16, and 17 ofthe California Constitution because he was deprivedofthe effective assistance ofcounsel and conflict-free counsel on appeal as a result of this state’s procedure for appointing the same attorney to represent the defendantboth on direct appealandin related habeas Page -596- corpus proceedings. Counsel’s unprofessionalerrors deprived petitioner of his federal andstate constitutionalrights to the assistance ofcounsel, conflict- free counsel, confrontation, due process of law, and a fair and reliable determination of guilt and penalty. B. The following United States Supreme Court decisions, inter alia, in Powell v. Alabama (1932) 287 U.S.45 (indigent capital defendanthas right to have effective counsel appointed and to be heard through counsel); McMannv. Richardson (1970) 397 U.S. 759, 771, n.14 (constitutional right to counsel is right to effective assistance of counsel); Strickland v. Washington (1984) 466 U.S. 668 (counsel has duty to conduct reasonable investigation; under Sixth and Fourteenth Amendments, a showing that counsel’sacts fell outside the range ofreasonable competence, coupled with showing of prejudice, compels reversal; prejudice shown if there is a reasonable probability, less than a preponderance, that counsel’s errors affected the outcome;these principles apply equally to guilt and sentencing phasesofcapitaltrial); United States v. Cronic (1984) 466 U.S. 648, 659 (Sixth Amendmentviolated, and prejudice need not be shown,if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing); Cuyler v. Sullivan (1980) 446 U.S. 335 (prejudice from ineffective assistance presumed when counsellabors underconflict of interest); Hill v. Lockhart (1985) 474 U.S. 52 (Strickland standards apply to representation provided prior to trial, such as during plea proceedings); Douglas v. California (1963) 372 U.S. 353 (right to effective assistance of counsel extends to counselfirst appeal ofright); Evitts v. Lucey (1985) 469 U.S. 387 (minimum safeguards necessary to make appeal effective and reliable Page -597- | required on first appeal of right); Ake v. Oklahoma (1985) 470 U.S. 68 (defendantentitled to expert assistance, including mental health expert assistance, to prepare for andtestify at trial); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause provides criminal defendantrightto directly confront adversarial evidence); Loven v. Kentucky (1988) 488 U.S. 227 (confrontation clause violation where defendant not permitted to cross- examine complainant); Gardnerv. Florida (1977) 430 U.S.439 (due process violation in capital proceeding wherepetitioner sentenced on basis of unreliable information); Beck v. Alabama (1980) 447 U.S. 625 (Eighth Amendmentalso requires heightenedreliability in guilt determination in capital cases); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim instate-createdright). C. The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiaryhearing, are presented in support ofthis claim: 1. Petitioner’s conviction, death sentence, and confinement violate the state and federal constitutions in that he has been represented on appeal by counsel burdened by an unconstitutionalconflict ofinterest. (U.S. Const. Fifth, Sixth, Eighth, and Fourteenth Amends;Cal. Const., art. I, §§7, 15, 16, 17, & 24.) That conflict was created by the State ofCalifornia appointing the same attorney to represent the petitioner both in his direct appeal and in related habeas corpusproceedings. 2. Petitioner has a general due process andequalprotection right to an appeal, a protected state liberty interest in such an appeal (Hicks v. Oklahoma, supra, 447 U.S. 343; see also Pen. Code, §§ 1235, 1237, and 1239), andin this capital case, an Eighth and Fourteenth Amendmentrightto Page -598- appeal. (See Campbell v. Blodgett (9th Cir. 1992) 997 F.2d 512, 522; Pulley v. Harris (1984) 465 U.S. 37, 53; Clemons v. Mississippi (1990) 494 U.S. 738, 749.) In addition, petitioner has a Sixth and FourteenthAmendment right to effective assistance of counsel on an appeal of right. (Penson v. Ohio (1988) 488 U.S. 75; U.S. Const., Sixth and Fourteenth Amends.) 3. Petitioner also has a federal and state right to counsel unburdened Wood v. Georgia (1981) 450 U.S., 261, 271; People v. Bonin (1989) 47 Cal.3d 808, 833.) For purposesofconflict analysis,it is irrelevant whether counselwasretained or appointed. (People v. Bonin, supra, 47 Cal. 3d at p. 834.) “Tt is settled that an indigent charged with committing a criminal offense is entitled to legal assistance unimpaired by the influence of conflicting interests.” (People v. Rhodes (1974) Cal.3d 180, 183.) 4. Although conflicts of interest may be created by the actions of the attorney, they mayalso becreated by the policies of the state or entity employing counsel to represent indigent defendants. (Strickland v. Washington, supra, 466 U.S. at p. 686, and cases cited therein.) The Supreme Court hasstated that the governmentviolates the Sixth Amendment right to counsel whenit interferes in certain ways with the ability ofcounsel to make independent decisions about how to conductthe defense. (Ibid.) This Court has also held that governmental interference with the attorney- client relationship may deprive a defendant of the effective assistance of counsel. Thus, in People v. Barboza (1981) 29 Cal.3d 375, this Court created a judicially declared rule of criminal procedure, announced in an opinion authored by Justice Richardson, prohibiting public contracts with counsel for indigent defendants which “contain inherent and irreconcilable conflicts of interest.” (/d., at p. 381.) Page -599- 5. An attorney cannot competently represent a clientin a capital appealifhe is requiredto discover anddisclose his own errors, because such a requirement creates an inherent conflict of interests. The Code of Professional Responsibility indicates that a conflict of interests exists when “the exercise of [an attorney’s] professionaljudgmentonbehalfofhis client will be or reasonably may be affected by his own financial, business, property, or personal interests.” (DR 5-101(A); accord, American Bar Association Model Rules of Professional Conduct, Rule 1.7(b).) 6. The courts of this state have held that an “inherent conflict” arises when appointedtrial counsel also acts as counsel on appeal because “[c]ounselis in the untenableposition ofurging his own incompetency.”(See People v. Bailey (1992) 9 Cal.App.4th 1252, 1254-1255.) Petitioner submits that a similar conflict arises when the sameattorneyacts as appellate counsel and habeas counsel. The appointment ofcounsel to representpetitionerin his automatic appealalso obligated counselto investigateall potential claims to be raised in a petition for writ of habeas corpus. (Jn re Clark (1993) 5 Cal.4th 750; Supreme Court Policies Regarding Cases Arising from Judgments of Death, Standard 1-1.) Because habeas counsel must evaluate and, if necessary, investigate appellate counsel’s performance, this dual representation system creates an inherent conflict of interests. In his role as appellate counsel for petitioner, counsel mustraise potentially meritorious claims. In his role as habeas counselfor petitioner, counsel mustinvestigate, assess, and raise issuesofineffective assistance of appellate counsel. (See In re Benoit (1973) 10 Cal.3d 72, 78“habeas corpus lies to correct the erroneousdenial ofa right to an effective appeal”.) These conflicting duties place capital appellate counsel andhis client in an untenable position. Page -600- 7. Prejudice from this error is manifest underthe circumstances of this case. Petitioner’s dually appointed appellate lawyer, George C. Boisseau, proved ineffective in failing to raise several issues included as claims in the petition and did not file a habeas corpuspetition, as this Court’s policies and guidelines permit him to do. Counsel’s failureto file a petition raising these issuesis at least partly attributable to the conflict of interests in which appellate counsel was ineluctably placed. Counsel’s own interests would have been disservedbythe preparationandfiling ofa habeas corpuspetition in which he was obliged to raise his own ineffectiveness. Accordingly, it is at least reasonably probable that a more favorable result would have been obtained in this case had petitioner’s counsel not been burdened by the inherent conflict created by this state’s procedure for appointing counsel in post-conviction capital cases. (Strickland v. Washington, supra, 466 U.S. 668.) 8. Because the California system of appellate review creates an inherent conflict ofinterests, violates petitioner’s right to effective assistance of counsel, due process, and equalprotection. A deathjudgment maynotbe imposedunless the process which producedit satisfies heightened levels of due process andreliability. (Ford v. Wainwright (1986) 477 U.S. 399, 414; Beck v. Alabama, supra, 447 U.S.at pp. 637-638 & fn. 13.) California’s appellate processfails these tests, and the deathjudgmentin this case cannot stand. D. Eachoftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/orFourteenthAmendmentsto the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Page -601- Claim 70: Disproportionate Sentence A. Petitioner’s conviction,judgment, and sentence ofdeath are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and article I, sections 7, 15, 16, and 17 of the \California Constitution because the death sentence imposedis grossly disproportionate to the offense. Petitioner’s judgment and sentence are particularly disproportionate because this Court affirmed thejudgmentand death sentence in this case while the Court of Appeal for the First Appellate District reversedthe judgment in People v. Hightower (1996) 41 Cal.App.4th 1108 decided only three years earlier on the basis of the identical erroneous Faretta ruling made by the same judge whotried petitioner’s case. This disproportionate sentence anddisparate treatment deprived petitioner ofhis federal and state constitutionalrights to due process, equal protection of the laws, freedom from ex post facto application of the laws, a fair and reliable determinationofguilt and penalty,a fair and reliable appeal, andproceedings before an unbiasedtribunal. B. The following United States Supreme Court decisions, interalia, in effect at the time the errors occurred, are presented in support of this claim: Weemsv. United States (1910) 217 U.S. 349 (Eighth Amendmentprohibits punishments whichare“greatly disproportionedto the offense”); Mullaney v. Wilbur (1975) 421 U.S. 684 (defendant’s intention, and therefore his moral guilt, are critical to the degree ofhis criminal culpability); Coker v. Georgia (1977) 433 U.S. 584 (death penalty for certain offenses is disproportionate and therefore violates Eighth Amendment); Godfrey v. Georgia (1980) 446 U.S. 420 (death sentence reversed because defendant’s crime did notreflect Page -602- a consciousness more depraved than that of any person guilty of murder); Lockett v. Ohio (1978) 438 U.S. 536 (individualized consideration is a constitutional requirement in imposing the death penalty); Woodson v. North Carolina (1976) 428 U.S. 280 (courts must focus on relevant factors of the character and record ofthe individual offender); Enmundv. Florida (1982) 458 U.S. 782 (proportionality determined by reference to such factors as contemporary values, individualized considerations, and climate of international opinion); Tuilaepa V. California (1994) 512 U.S. 967 (same); Parker v. Duke (1991) 498 U.S. 308 (due process requires meaningful appellate review); Bouie v. Columbia (1964) 378 U.S. 347 (due process denied by unforseeable court ruling applying law retroactively to criminal defendant); and Hicks v. Oklahoma, 447 U.S. 343 (due process error in deprivation of state right). C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support of this claim: 1. Petitioner incorporates by referenceasiffully set forth herein the facts and law alleged in support of Claims 2 through 5 and 18 through 24. 2. The federal constitution and the constitution andlawsofthis state require proportionality review in death penalty cases. “The California Constitution (art. 1, section 17) prohibits imposition of a punishment disproportionate to the defendant's individual culpability.” (People v. Crew (1991) 1 Cal.App.4th 1591, 1602, citing People v. Hamilton (1989) 48 Cal.3d1142, 1189.) At the federal level, “[t]he cruel and unusual punishmentsclause of the Eighth Amendmentprohibits the imposition of a penalty thatis disproportionate to the defendant's personal responsibility and Page-603- moralguilt.” (People v. Padilla (1995) 11 Cal.4th 891, 962 (disapproved on a different point in People v. Hill (1998) 17 Cal.4th 800, 823).) 3. “{T]rial courts have the discretion to determine intracase proportionality--i.e., to determine whether the sentence imposed is proportionateto the individualculpabilityofthe defendant, irrespective ofthe punishmentimposed onothers.” (People v. Lan (1989) 49 Cal.3d 991.) In petitioner’s case, the court foundthat the sentence imposed was appropriate considering appellant’s crime and background. However, the court’s ruling “is subject to independentreview:it resolves a mixed question that implicates constitutionalrights and hence must be deemedpredominantly legal.” (People v. Marshall (1990) 50 Cal.3d 907, 938.) 4. Inanalyzinga sentence to determine whetherit is disproportionate underthe circumstancesofthe individual case, the court should examine“the nature ofthe offense and/or the offender, with particular regard to the degree of dangerboth present to society.” (People v. Dillon (1983) 34 Cal.3d 441, 479, citing In re Lynch (1972) 8 Cal.3d 410, 425-429.) With respectto the nature ofthe offense, the court should consider both the severity ofthe crime in the abstract and the facts of the crime in question. (People v. Dillon, supra, 34 Cal.3d, at p. 479.) With respectto the secondfactor, the nature of the offender, the court must ask “whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.”(Ibid.) This requirementfollows fromthe principle that “apunishment which is not disproportionate in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the defendant's individual culpability.” (/d., at p. 480.) This requirement is also mandated by the U.S. Constitution, because “individualized considerations [aré] a constitutional Page -604- requirementin imposing the death sentence, which meansthat we mustfocus on relevant factors of the character and record of the individual offender.” _ d., at p. 481, citing Enmund v. Florida (1982) 458 U.S. 782, 798 [73 L.Ed.2d 1140, 102 S.Ct. 33681].) 5. In People v. Dillon, a 17-year-old boy was convicted of murder during an incident in which he and six other youths had conducted a well- planned invasion of a marijuana plantation theyintended to rob. The defendantfired ninerifle shots into the victim, who was merely attempting to protect his property. Like petitioner, Dillon was convicted of murder, and there waslittle dispute that the crime ofwhich he was convicted wastragic. (People v. Dillon, Supra, 34 Cal. 3d, at p. 483.) Nevertheless, this Court reduced Dillon’s conviction to second degree murder,primarily because of his individual background. In that case, the court focused primarily uponthe defendant’s youth, the fact that he lacked the intellectual and emotional maturity of an average 17 year-old, his lack of a prior record, and the petty chastisements given to the other six youths involved in the incident. (/d., at pp. 483-488.) 6. Application of the Dillon analysis to this case compels the conclusion that the death penalty is a disproportionate punishment for petitioner. As set forth in Claims,at the time of the offenses in this case petitioner suffered from debilitating brain damage andothermentaldisorders, a low IQ, drug and alcohol intoxication, and [A HOST OF OTHER PROBLEMS]. Also asin Dillon, petitioner’s co-defendant, Rita Lewis, was given leniency, while petitionerwas given the death penalty. Moreover, while the crimes in Dillon were motivatedbypersonalgreed, the crimesin this case were without anycoherent motive and wereinstead the product ofpetitioner’s mental impairmentsandillness. Page -605- 7. In addition to the authority of this Court’s decisions in Dillon, Lynch, and numerousother cases cited therein, statutory law of this state provides both trial and appellate courts with the power to reduce the punishments imposedon criminal defendants. Forexample, California Penal Codesection 1181, subdivision (7), provides: Whentheverdictor finding is contrary to law or evidence, but in any case wherein authority is vested by statute in the trial court or jury to recommendordetermineasa part of its verdict or finding the punishment to be imposed, the court may modify such verdict or finding by imposing the lesserpunishment without granting or ordering a newtrial, and this power shall extend to any court to which the case may be appealed. California Penal Code section 1260 similarly provides: The court mayreverse, affirm, or modify a judgmentor order appealed from,or reducethe degreeofthe offense or attempted offense or the punishment imposed, and maysetaside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgmentor order, and may,if proper, order a newtrial and may, if proper, remandthe causeto the trial court for such further proceedings as maybejust under the circumstances. 8. Underthe terms of these statutes, any defendantis entitled to havethis Court considerreducing his punishment. Petitioner submitsthat the foregoing statutes establish a procedural entitlement that is protected by the due process clause. (Hicks v. Oklahoma (1980), 447 U.S. 343 [65 L.Ed.2d 175, 100 S.Ct. 2227]; see also Ford v. Wainwright (1986) 477 U.S. 399, 428 [91 L.Ed.2d 335, 358, 106 S.Ct. 2595] (conc. opin. ofO'Connor, J.) (“Where Page -606- astatute indicates with language ofanunmistakable mandatory characterthat state conduct injurious to an individual will not occur ‘absent specified substantive predicates,’ the statute creates an expectation protected by the Due Process Clause.”).) Petitioner submits that were this Court to fail to acknowledge or employ its power under Penal Code section 1181, subdivision (7), and Penal Codesection 1260,petitioner would bearbitrarily deprived ofhisconstitutionally-protected expectationin violation ofthe Due Process Clause of the Fourteenth Amendment. 9, It should also be noted that capital defendants possesstheright, under the Eighth Amendmentand the Due Process Clause, to meaningful appellate review. (Parker v. Duke (1991) 498 U.S. 308, 321 (“We have emphasized repeatedly the crucial role of meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily or irrationally.”).) Petitioner respectfully submitsthat this Court’s refusal to employits statutory right of review deprivescapital defendants ofthat entitlement, as well as increasing the risk that California’s capital charging and sentencing system, already unable to separate defendants deserving ofdeath from those whoare not (Tuilaepa v. California (1994) 512 U.S. 967 [129 L.Ed.2d 750, 767-774, 114 S.Ct. 2630] (diss. opin. ofBlackmun,J.)), will randomly condemn even more defendants. 10. The judgment and sentence in this case are particularly disproportionate and violate fundamentalprinciples ofdue process and equal protection because the same judge committed the same constitutional error - in two cases involving similarly situated defendants. However, while this Court affirmed the judgmentin petitioner’s case, the Court ofAppealfor the First Appellate District, Division Four, reversed the judgmentin People v. Page -607- Hightower, supra, 41 Cal.App.4th 1108. There is no principled basis for distinguishing these twocases. 11. In petitioner’s case, the trial judge, Hon. Stanley Golde, improperly found petitioner competent to stand trial but incompetent to represent himself as counsel. (RT 75-86.) This Court held that Judge Golde’s ruling on the issue was error because the standards of competence to standtrial and competenceto represent oneself are the same. (Peoplev. Welch (1999) 20 Cal.4th 701, 732; Godinez v. Moran (1993) 509 U.S. 389.) However, this Court held thejudge did not abusehis discretion in denying the Faretta motion becausepetitioner had exhibited “disruptive behaviorin the courtroom”prior to making his Faretta motion. (Id., at p. 735.) 12. However, in 1996, three years prior to this Court’s decision in this case, the Court ofAppeal for the First Appellate District, Division Four, reversed thejudgmentinHightower, supra, on the groundsthat Judge Golde incorrectly ruledthat the defendant, Felix Hightower, was competentto stand trial but incompetentto represent himself as counsel. (People v. Hightower (supra 41 Cal.App.4th at p. 1108, 1116.) Moreover, Hightower actually conceded on appeal that he had engaged in “disruptive behavior in the courtroom” and had numerous “disputes with defense counsel.” (/d., at p. 1112.) Indeed, Hightowerwasso disruptive that Judge Golde ordered him kept in shackles throughoutthetrial, a condition Judge Goldedid not impose in this case. (/d., at p. 1112, n.3.) The Court of Appeal foundthis error to be prejudicial per se under this Court’s decision in People v. Ortiz (1990) 51 Cal.3d 975. This Court denied review on March 27, 1996. 13. Plainly, apart from the fact that petitioner’s is a death penalty case, there is no meaningful, principled basics upon which to explain the disproportionate treatmentofthe two defendants. InHightower,thejudgment Page -608- and sentence of a more disruptive defendant were reversed due to an erroneous ruling that the court found prejudicial per se. However, in petitioner’s case, a capital case in which the Eighth Amendmentrequires heightened dueprocess,greater reliability, and proportionality review,the same error by the same judge in the case of a less disruptive defendant resulted in an affirmance. +4decisionin this violated petitioner’s right to— — be free of ex post facto application of the law. A court’s unforeseeable retrospectiveapplication ofa new ruleoflaw to a criminal defendantviolates the ex post facto componentof federal due process. (Bouie v. Columbia, supra, 378 U.S.at pp. 354-355.) The Court of Appeal applied the correct rule of law and reversed the judgment in Hightower. This court then acquiesced in that ruling by denying review. Three yearslater, this Court affirmed thejudgmentand deathsentencein an indistinguishable case where the trial had occurred two years before the trial in Hightower. This holding deprived petitioner of the ex post facto component of due process, equal protection ofthe laws, meaningful appellate review,andthe proportionality review guaranteed by the Eighth Amendment. D. The error in this case was prejudicial under any standard of review. Claim 71: California Death Penalty Statutes are Unconstitutional Because TheyFail to Perform the Constitutionally Mandated Narrowing Function A. Petitioner’s conviction, judgment, and sentence of death are in violation ofthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution andarticle I, sections 7, 15, 16, and 17 ofthe California Page -609- Constitution because California’s sentencing scheme doesnotsufficiently narrow the class of personseligible for the death penalty. The California capital statutory schemeis overly broad and inclusive becauseit contains so many special circumstances that it fails to perform the constitutionally required narrowing function. The statutory scheme therefore violates the EighthAmendmentprohibition against cruel and unusual punishments andthe Fifth and Fourteenth Amendment requirement of due processof law. B. The following United States Supreme Court decisions, inter alia, in effect at the time the errors occurred, are presented in support of this claim: Zant v. Stephens (1983) 462 U.S. 862, 877 (“To passconstitutional muster, a capital sentencing scheme must ‘genuinely narrow the class of persons eligible for the death penalty”); Furman v. Georgia (1972) 408 U.S. 238, 313 (a death penalty law violates Eighth Amendment unless it provides meaningfulbasis for distinguishing the few cases in where death penalty is imposedfrom the manyin whichit is not); Arave v. Creech (1993) 507 U.S. 463 (schemenot contra to the Eighth Amendment whereall first-degree murders and many second-degree murdersare death-eligible, and narrowing for selection provided by further aggravating circumstances); Enmundv. Florida (1982) 458 U.S. 782 (proportionality determinedbyreference to such factors as contemporaryvalues,individualized considerations, and climate of international opinion); Tuilaepa v. California (1994) 512 U.S. 967 (same); California v. Ramos (1983) 463 U.S. 992 (a capital murder statute must take into account the concepts that death is different be in accord with Eighth Amendment); Page -610- C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing,are presented in support ofthis claim: 1. As this Court has recognized: “To avoid the Eighth Amendment’s proscription against cruel and unusual punishment, a death penalty law mustprovide a ‘meaningfulbasis for distinguishing the few cases 999 in which [the death penalty] is imposed from the manyin whichitis not. (Furman v. Georgia (1972) 408 U.S. 238, 313, 92 S.Ct. 2726 (conc. opn. of White, J.); accord, Godfrey v. Georgia (1980) 446 U.S. 420, 427, 100 S.Ct. 1759 (plur. opin.).) (People v. Edelbacher (1989) 47 Cal.3d 983, 1023 [254 Cal.Rptr. 586].) However,California’s death penalty statute, enacted byinitiative, has ignored the Eighth Amendmentby multiplying the “few”into the many.It is difficult for the perpetrator of a first degree murder in California not to be eligible for the death penalty. Indeed, because ofthe breadth ofCalifornia’s definition offirst-degree murder, nearly all murders committed in California can be capitally charged. Atthe time of the homicidesin petitioner’s case, there were 26 “special”circumstances in existence under Penal Code section 190.2, effectively embracing every likely type of murder. There were only eight fact situations possible where a defendant could have been guilty offirst degree murder andactually not be death-eligible. (Exhibit 25, Declaration of Steven F, Shatz.) 2. It appears the proponentsofProposition 7, the initiative enacted into law as section 190.2, contemplated an unconstitutionally over-broad purposein drafting and advocating such expansive special circumstances. In their “Argumentin Favor of Proposition 7” in the 1978 Voter’s Pamphlet, Page -611- they described certain murdersnot coveredbythe then-existing death penalty statute, and then stated: “And, if you were to be killed on your way hometonight simply because the murderer was high on dope and wantedthe thrill, the criminal would not receive the death penalty. Why, Because the Legislature’s weak death penalty law does not apply to every murderer. Proposition 7 would.’ (1978 Voter's Pamphlet, p. 34 (emphasis added).) | | 3. Although the Supreme Court has held that a state’s sentencing schemeis not contra the Eighth Amendment whereall first-degree murders and many second-degree murders are death-eligible with the narrowing for selection providedbyfurther aggravating circumstances, California’s scheme does not havethese features. The premise ofourcapital sentencing scheme is that the narrowing function is supposed to be provided by eligibility factors, not selection factors; the latter simplyprovidethejurywith discretion withoutspecific instruction. (Tuilaepa v. California, supra, 512 U.S. 967.) Where,ashere, the selection factors do not provide a genuine narrowing function, and the eligibility factors also fail to do so, the capital sentencing scheme as a whole fails to pass constitutional muster. 4. The problem ofover-inclusivenessaffects nearly all murders in California. In California, death eligibility is the rule, not the exception. Professor Steven Shatz determinedthat from 1988-1992, a four-year period encompassing this case, 83 percent of first-degree murderers convicted in California were death-eligible. (Exhibit 25, Declaration of Steven F. Shatz.) Throughhiscarefulstatistical studies Shatz has concluded that California’s statutorily defined death-eligible class is so large, and the imposition ofthe death penalty on membersofthe class so infrequent, that the statute performs Page -612- no narrowing of the death-eligible class as mandated by Furman. In fact, it creates a greaterrisk ofarbitrary death sentences than the pre-Furman death penalty schemes. While the Court did not indicate in Furman v. Georgia (408 U.S. 238), or later in Gregg v. Georgia, supra, 428 U.S. 153, what death sentence ratio (actual death sentences per convicted death-eligible murderers) a state scheme would haveto produceto satisfy its meaningful basis demand, plainly any scheme producinga ratio of less than 20% would not. The Court’s central concern wasthat arbitrary administration of the death penalty was inevitable when too few murderers were being selected for death from too large a death-eligible class. (/d. at p. 1286.) Plainly, the California schemeprovides no meaningfulbasis for distinguishing cases in which the death penalty will be imposed.” 5. In Godfrey v. Georgia, supra, 446 U.S. 420, the Supreme Court reversed a sentence ofdeath obtained under a Georgia capital murderstatute that permitted such a sentence for an offense that was found beyond a reasonable doubt to have been “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim” under the Eighth Amendment. (Jd. at p. 422.) Despite the prosecution’s claim that the Georgia courts had applied a narrowing constructionto the statute (id. at pp. 429-430),the plurality opinion recognized this death-eligibility statute was over-broad because it could encompass almost every murder: 2’ Evenifthe base against which oneis to measurethe constitutional adequacy ofthe narrowing effect of a capital sentencing scheme were broader than all first degree murders--e.g., all persons guilty ofmurder ofwhateverdegree,orall those guilty of murder with sufficient personal culpability to satisfy Eighth Amendment proportionality concerns (see Tison v. Arizona (1987) 481 U.S. 137), California's statutory schemefails to adequately narrow the class subject to the death penalty. Page -613- “In the case before us the Georgia Supreme Court hasaffirmed a sentence ofdeath based upon no more than a finding that the offense was outrageously or wantonlyvile, horrible and inhuman.’ There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capriciousinfliction of the death sentence. A personofordinary sensibility couldfairly characterize almost every murder as outrageously or wantonly vile, horrible and inhuman (Id., at pp. 428-429.) Nolessis true of a death-eligibility schemethat permits virtually any murderto be one with “special circumstances” and therefore death-eligible. To be consistent with the Eighth Amendment,a capital murder statute must take into account the concepts that death is different (California v. Ramos, supra, 463 U.S. at pp. 998-999), and that the death penalty must be reserved for those killings which are considered the most “grievous. . . affronts to humanity.” (Zantv. Stephens, supra, 462 U.S. at p. 877, fn. 15 (citing Gregg v. Georgia, supra, 428 U.S. at p. 184).) Across-the-boardeligibility for the death penalty also fails to account for the differing degrees of culpability attendantto different types ofmurder, enhancingthe possibilitythat sentences will be imposed arbitrarily without regard for the blameworthiness of the defendant or his act. Further, it fails to provide legislative guidelines governing the selection of death eligible defendants. 6. The Furman principle has resulted ina statutory narrowing requirement with two components:(1) the death-eligible class of convicted murderers must be small enough that a substantial percentage are in fact sentencedto death; and(2) the states, throughtheir legislatures, must decide the composition of the death-eligible class. (Shatz and Rivkind, The CaliforniaDeath Penalty Scheme: Requiemfor Furman? (1997) 72 N.Y.U.L. Rev. 1283, 1295.) In other words, Furman issatisfied if, and only if, the Page -614- legislature, by defining categories of murdererseligible for the most severe penalty, genuinely narrowsthe death-eligible class. (/bid.) 7. Inthe quarter ofa century since the Furman decision, the Court has repeatedly reaffirmed that the Furmanprinciple is the cornerstoneofits death penalty jurisprudence. (Shatz, supra, at p. 1286, citing Maynard v. Cartwright (1988) 486 U.S. 356, 362 [100 L.Ed.2d 372, 108 S.Ct. 1853].) Plainly,meaningfulnarrowingclass~~-—S—S murders whena statutory schemedefinesthe class ofdeath-eligible murders so broadly thatit excludes very few murderersor categories ofmurders from being death-eligible. (Exhibit 25, Declaration of Steven Shatz.) Such a statutory scheme cannotpossibly satisfy the Furmanprinciple. 8. The narrowing effect, if any, of section 190.2 can be tested by measuring the special circumstances against the section 189 factors that defined first degree murder. (Shatz, supra, p. 1318.) A comparison ofthe two statutes leadsto the conclusion that while 26 categories offirst degree murders were made death eligible, only eight categories of first degree murders were not. (Exhibit 25, Declaration of Steven Shatz.) 9. However, it is not the number of categories alone, but the comparative breadth of the “special circumstances” and “excluded” categories which determines whether the scheme genuinelynarrows. (Shatz, supra, p. 1318.) The breadth of “special circumstances”is extraordinary, encompassing so many murders, that when comparedwith the breadth ofthe ~ “excluded” categories, which encompassveryfew non-death eligible murders, it is obviousthat the California schemedoesnot genuinely narrowthe death- eligible class. California has oneofthe broadest death penalty schemesin the country. (/d. at p. 1307.) Page -615- 10. With the exception of the “heinous, atrocious or cruel” special circumstancealready held unconstitutional (/d. at p. 1318 (citing Peoplev. Superior Court (Engert) (1982) 31 Cal.3d 797, 800-802)), any of the 26 individual special circumstances, when viewedin isolation, may have been sufficiently objective and narrow to satisfy Furman. (Shatz, supra, at p. 1318.) However, given the number and breadth ofthe special circumstances, the schemeas a whole doesnot genuinely narrow the death-eligible class. D. Each oftheseerrors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendments to the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 72: International Law--Numerous DueProcess Violations Violate Treaties and Principles of International Law A. Petitioner’s conviction and sentence of death violate the Universal Declaration ofHuman Rights, the International Covenanton Civil and Political Rights, the American Declaration of the Rights and Duties of Man (American Declaration), the International Convention Against All Forms ofRacial Discrimination, the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and other treaties which are co-equal to the United States Constitution andconstitute the supreme law ofthe land. Petitioner’s conviction and sentenceofdeath also violate Article VI ofthe United States Constitution, and the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, as well as article I, sections 7, 15, 16, and 17 of the California Constitution. Page -616- B. The following United States Supreme Court decisions,interalia, in effectat the timethe errors occurred, are presented in support ofthis claim: The Paquette Habana (1900) 175 U.S. 677 (“international law is part of [federal] law and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questionsofright depending upon it are presented for their determination”); Murray v. The Schooner, Charming Betsy (1804) 6 U.S. (2 Cranch) 64(courtsmustconstruefederal law consistently with international law); Weinberger v. Rossi (1982) 456 U.S. 25 (state and federal law “ought never to be construedto violate the law of nations, ifanypossible construction remains....”); Trans WorldAirlines, Inc. v. Franklin Mint Corporation (1984) 466 U.S. 243 (courts must look to customary international law and conventionaltreaties, in interpreting domestic law); Asakura v. Seattle (1924) 265 U.S. 332 (a treaty “stands on the same footing ofsupremacyas do theprovisionsofthe Constitution and lawsofthe United States. It operates ofitselfwithoutthe aid ofany legislation, state or national; and it will be applied and given authoritative effect by the courts”). C. The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiary hearing, are presented in support of this claim: 1. Forthe reasonsset forth in this petition andin the briefing in the related direct appeal, petitioner was deniedhis right to a fair trial by an independenttribunal and his right to minimum guarantees for the defense underprinciples established by the Universal Declaration ofHuman Rights, the International Covenant on Civil and Political Rights (ICCPR), and the American Declaration of the Rights and Duties of Man (American Declaration). Petitioner contendsthat violations ofhis rights underthestate Page -617- and federal constitutions also constitute violations of international law. Accordingly, these contentions are being raised here as the first step in exhausting administrative remediesin orderto bring petitioner’s claim in front ofthe Inter-American Commission on Human Rights on the groundsthat the defects in the judgmentare violations of the American Declaration ofthe Rights and Duties of Man. 2. The twoprincipalsources ofinternational human rights law are treaties and customary international law. The United States Constitution accords treaties equal rank with the constitution and federal statutes as the supreme law of the land.’ Customary international law is equated with federal commonlaw.” International law mustbe considered and administered in United States courts whenever questions of a right which depends uponit are presented for determination. (The Paquete Habana (1900) 175 U.S. 677, 700 [44 L.Ed. 320, 20 S.Ct. 290].) To the extent possible, courts must construe American law so as to avoid violating principles of international law. (Murray v. The Schooner, Charming Betsy (1804) 6 U.S. (2 Cranch) 64, 102, 118 [2 L.Ed 208].) When a court interprets a state or federalstatute, the statute “ought neverto be construedtoviolate the law ofnations, if any possible construction remains....” (Weinbergerv. Rossi (1982) 456 U.S. 25, 33.) The United States Constitution also authorizes Congress to “define and punish ... offenses against the law of nations,” thus recognizing the existence and force ofinternationallaw. (US. 21" Article VI, section 1, clause 2 of the United States Constitution provides, “This Constitution, and the Lawsofthe United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law ofthe Land; andthe Judgesin every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” 22 Restatement Third of the Foreign Relations Lawofthe United States (1987), p. 145, 1058. See also Eyde v. Robertson (1884) 112 U.S. 580. Page -618- Const. Article I, section 8.) Courts within the United States have responded to this mandate by looking to internationallegal obligations, both customary international law and conventionaltreaties, in interpreting domestic law. (Trans World Airlines, Inc. v. Franklin Mint Corporation (1984) 466 U.S. 243, 252.) 3. International human rights law has its historical - underpinningsin thedoctrine-ofhumanitarianintervention,which-wasan— - - .-— —.--- exception to the general rule that international law governed regulations between nations and did not govern rights of individuals within those nations.“ The humanitarian intervention doctrine recognizedintervention by states into a nation committing brutal maltreatment ofits nationals, and as such wasthe first expression of a limit on the freedoms ofaction states enjoyed with respect to their own nationals.” 4. This doctrine was further developed in the Covenantofthe League ofNations. The Covenantcontained a provisionrelating to “fair and human conditions of labor for men, women and children.” The League of 23 See also Oyamav. California (1948) 332 U.S. 633 [92 L.Ed 249, 68 S.Ct. 269], which involved a California Alien Land Law that prevented an alien ineligible for citizenship from obtaining land and created a presumptionofintent to avoid escheat when such an alien pays for land and then transfers it to a US. citizen. The court held that the law violated the equal protection clause ofthe United States Constitution. Justice Murphy,in a concurring opinion stating that the UN Charter was a federal law that outlawedracial discrimination, noted “Moreover, this nation has recently pledgeditself, through the United Nations Charter, to promote respectfor, and observance of, human rights and fundamentalfreedomsforall without distinction as to race, sex, language andreligion. [The Alien Land Law’s] inconsistency with the Charter, which has been duly ratified and adopted by the United States, is but one more reason whythe statute must be condemned.” (Ud. At 673.) See also Namba v. McCourt (1949) 185 Or. 579, 204 P.2d 569, invalidating an Oregon Alien Land Law,“The American people have an increasing consciousnessthat, since we are a heterogeneous people, we must not discriminate against any one on accountofhis race, color or creed.... When our nation signed the Charter of the United Nations we thereby became boundto the following principles (Article 55, subd. C, and see Article 56): ‘ Universal respect for, and observance ofhuman rights and fundamental freedomsfor all without distinction as to race, sex, language, or religion.’ (59 Stat. 1031, 1046.)” (dd. At 604.) 24 See generally, Sohn and Buergenthal, International Protection ofHuman Rights (1973) p. 137. 2s Buergenthal, International Human Rights (1988) p.3. Page -619- Nations wasalso instrumental in developing an international system for the protection of minorities.* Additionally, early in the development of international law, countries recognizedthe obligationto treat foreign nationals in a mannerthat conformed with minimum standardsofjustice. As the law of responsibility for injury to aliens began to refer to violations of “fundamental human rights,” what had been seenasthe rights of a nation eventually began to reflect the individual human rights ofnationals as well.’ It soon becamean establishedprinciple ofinternational law thata country, by committing a certain subject-matterto a treaty, internationalizedthat subject- matter, even if the subject-matter dealt with individual rights of nationals, such that each party could no longer assert that such subject-matter fell exclusively within domestic jurisdictions.” 5. The monstrous violations ofhuman rights during World War II furthered the internationalization ofhumanrights protections. Thefirst modern international human rights provisionsare seen in the United Nations Charter whichentered into force on October 24, 1945. The United Nations Charter proclaimed that memberstates ofthe United Nations were obligated to promote “respect for, and observance of, human rights and fundamental 9929freedomsfor all without distinction as to race, sex, languageorreligion. 26 Id., pp. 7-9. ?7Restatement Third ofthe Foreign Relations Law ofthe United States. (1987) Note to Part VII, vol. 2 at 1058. 28 Advisory Opinion on Nationality Decrees Issued in Tunis and Morocco (1923) P.C.LJ., Ser. B, No. 4. , Article 1(3) of the UN Charter, June 26, 1945, 59 Stat. 1031, T.S. 993, became effective October 24, 1945. In his closing speech to the San Francisco United Nations conference, President Truman emphasizedthat: “The Charter is dedicated to the achievement and observance of fundamental freedoms. Unless we can attain those objectives for all men and women everywhere -- without regard to race, languageor religion -- we cannot have permanentpeace andsecurity in the world.” Page -620- By adhering to this multilateral treaty, state parties recognize that human rights are a subject of international concern. | 6. In 1948, the United Nations drafted and adopted both the Universal Declaration of Human Rights” and the Convention on the 31. The UniversalPrevention and Punishment of the Crime of Genocide. Declaration is part of the International Bill of Human Rights,” which also includes the International Covenant on Civil and Political Rights,”” the Optional Protocol to the ICCPR,™ the International Covenant on Economic, Social and Cultural Rights,*> and the human rights provisionsofthe United Nations Charter. These instruments enumerate specific human rights and duties ofstate parties andillustrate the multilateral commitment to enforcing human rights through international obligations. Additionally, the United Nations has sought to enforce the obligations of memberstates through the Commission on HumanRights, an organ ofthe United Nationsconsisting of forty-three member states, which reviews allegations of human rights violations. Robertson, Human Rights in Europe, (1985) 22, n.22 (quoting President Truman). Universal Declaration of Human Rights, adopted December 10, 1948, UN Gen.Ass.Res. 217A(III). It is the first comprehensive human rights resolution to be proclaimed by a universal international organization (hereinafter Universal Declaration). 31 Convention on the Prevention and Punishmentofthe Crime of Genocide, adopted December9, 1948, 78 U.N.T.S. 277, became effective January 12, 1951 (hereinafter Genocide Convention). Over 90 countries haveratified the Genocide Convention, which declares that genocide, whether committed in time ofpeace or time ofwar, is a crime under international law. See generally, Buergenthal, International Human Rights, supra, p. 48. 32 See generally Newman, Introduction: The United States Bill ofRights, International Bill ofRights, and Other “Bills” (1991) 40 Emory L.J. 731. 33 International Covenant on Civil and Political Rights, adopted December16, 1966, 999,U..N.T.S. 717, became effective March 23, 1976 (hereinafter ICCPR). Optional Protocol to the International Covenant on Civil and Political Rights, adopted December 16, 1966, 999 U.N.T.S. 302, becameeffective March 23, 1976. International Covenant on Economic, Social and Cultural Rights, adopted December 16, 1966, 993 U.N.T.S. 3, took effect January 3, 1976. Page -621- 7. The Organization of American States, which consists of thirty-two memberstates, wasestablished to promote and protect human rights. The OAS Charter, a multilateral treaty which serves as the Constitution of the OAS,entered into force in 1951. It was amendedby the Protocol ofBuenos Aires which cameinto effect in 1970. Article 5(j) ofthe OASCharter provides, “[t]he American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed or sex.’°® In 1948 the Ninth International Conference of American States proclaimed the American Declaration ofthe Rights and Duties of Man,a resolution adopted by the OAS,andthus, its member states. The American Declarationis today the normative instrumentthat embodiesthe authoritative interpretation of the fundamentalrights of individualsin this hemisphere.”” 8. The OASalso established the Inter-American Commission onHuman Rights, a formal organ ofthe OAS whichis chargedwith observing and protecting human rights in its member states. Article 1(2)(b) of the Commission Statute defines human rights as the rights set forth in the American Declaration,in relation to memberStates ofthe OAS who,like the United States, are not party to the American Convention on Human Rights. In practice, the OAS conducts country studies, on-site investigations, andhas. the powerto receive and act on individual petitions which charge OAS member states with violations of any rights set out in the American Declaration.*® Because the Inter-American Commission, whichrelies on the 36 OASCharter, 119 U.N.T.S. 3, took effect December 13, 1951, amended 721 U.N.T.S.324, took effect February 27, 1970. 7 Buergenthal, International Human Rights, supra, pp. 127-131. Buergenthal, International Human Rights, supra. As previously indicated,this appeal is a necessary step in exhausting petitioner’s administrative remediesin orderto bring his claim in front of the Inter-American Commission onthebasisthat the violations petitioner 38 Page -622- American Declaration, is recognized as an OAS Charter organ charged with protecting human rights, the necessary implication is to reinforce the normative effect of the American Declaration.” 9. The United Stateshas acknowledgedinternational human rights law and has committed itself to pursuing international human rights protections by becoming a memberstate of the United Nations and ofthe ~~Organization ofAmerican States. sani portant player thedrafti g ———________ the United Nations Charter’s human rights provisions, the United States was one ofthefirst and strongest advocates ofa treaty-based international system for the protection of humanrights.*° Though the 1950s wasa period of isolationism, the United States renewedits commitmentin the late 1960s and through the 1970s bybecoming a signatory to numerousinternational human rights agreements and implementing human rights-specific foreign policy legislation.“ | 10. Recently, the United States stepped up its commitment to international human rights by ratifying three comprehensive multilateral human rights treaties. The Senate gave its advice and consent to the International Covenanton Civil and Political Rights; PresidentBush deposited the instrumentsofratification on June 8, 1992. The International Convention Against All Forms of Racial Discrimination,” and the International has suffered are violations of the American Declaration of the Rights and Duties of Man. 9 Buergenthal, International Human Rights, supra. “0 Sohn and Buergenthal, International Protection of Human Rights (1973) pp. 506-509. “ Buergenthal, International Human Rights, supra, p. 230. “2 International Convention Against All FormsofRacial Discrimination, 660 U.N.T.S. 195,took effect January 4, 1969 (hereinafter Race Convention). The United States deposited instruments ofratification Page -623- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment** were ratified on October 20, 1994. These instruments are now binding international obligations for the United States. It is a well established principle of international law that a country, through commitmentto a treaty, becomes boundbyinternational law.“ 11. United States courts generally do not give retroactive ratification to a treaty; the specific provisions of a treaty are therefore enforceable from the dateofratification onward.** However,Article 18 ofthe Vienna Convention on the Laws of Treaties provides that a signatory to a treaty must refrain from acts which would defeat the object and purpose of the treaty until the signatory either makesits intention clear not to become a party, or ratifies the treaty.“ Though the United States courts have not on October 20, 1994. (See, http://www.hri.ca/ fortherecord1997/documentation/reservations/cerd.htm.) More than 100 countries are parties to the Race Convention. (/bid.) 3 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, 39 UN GAORSupp. (No. 51) at 197, becameeffective on June 26, 1987. The Senate gaveits advice and consent on October 27, 1990, 101st Cong. 2d Sess., 136 Cong. Rev. 17, 486 (October 27, 1990) (hereinafter Torture Convention). The United States deposited instrumentsofratification on October 21, 1994. (See http://www.un.org/Depts/Treaty/ final/ ts2/newfiles/part_boo/iv_boo/iv_9.html.) “4 Buergenthal, International Human Rights, supra,p. 4. Newman and Weissbrodt, International Human Rights: Law, Policy and Process (1990) p. 579. *6 Vienna Convention on the Law ofTreaties, 1155 U.N.T.S. 331, T.S. No. 58 (1980), took effect January 27, 1980 (hereinafter Vienna Convention). The Vienna Convention wassigned by the United States on April 24, 1970. Thoughit has notyet been ratified by the United States, the Departmentof State, in submitting the Convention to the Senate,stated that the convention “is already recognized as the authoritative guide to current treaty law and practice.” S. Exec.Doc. L., 92d Cong., 1st Sess. 45 Page -624- strictly applied Article 18, they have lookedto signed, unratified treaties as evidence of customary international law.*’ 12. Customary international law arises out of a general and consistent practice ofnations acting in a particular mannerout of a sense of legal obligation.“ The United States, through signing and ratifying the ICCPR,the Race Convention, and the Torture Convention,as well as being a memberStateoftheOAS andthus being bound by the OAS Charter and the American Declaration, recognizesthe force ofcustomary international human rights law. The substantive clauses of these treaties articulate customary (1971) at 1. Also, the Restatement Third of the Foreign Relations Law of the United States cites the Vienna Convention extensively. a See, for example, Inupiat Community ofthe Arctic Slope v. United States (9th Cir. 1984) 746 F.2d 570 (citing the International Covenant on Civil and Political Rights); Crow v. Gullet (8th Cir. 1983) 706 F.2d 774 (citing the International Covenant on Civil and Political Rights); Filartiga v. Pena-lrala (2nd Cir. 1980) 630 F.2d 876(citing the International Covenanton Civil and Political Rights). See also, Charme, The Interim Obligation ofArticle 18 ofthe Vienna Convention on the Law ofTreaties: Making Sense ofan Enigma (1992) 25 Geo.Wash.J.Int’1.L. & Econ. 71 Ms. Charmearguesthat Article 18 codified the existing interim (pre-ratification) obligations of parties who are signatoriesto treaties: “Express provisionsin treaties, judicial and arbitral decisions, diplomatic statements, and the conductofthe International Law Commission compel, in the aggregate, the conclusion that Article 18 constitutes the codification of the interim obligation. These instances indicate as well that this norm continuesasa rule of customary international law. Thus, all states, with the exception of those with a recognized persistent objection, are bound to respect the obligation of Article 18.” “8 Restatement Third of the Foreign Relations Law of the United States, section 102. This practice may be deducedfromtreaties, national constitutions, declarations and resolutions of intergovernmental bodies, public pronouncements by headsof state and empirical evidence ofthe extentto which the customary law rule is observed. Page -625- international law and thus bind our government. Whenthe United States has signed orratified a treaty it cannot ignore this codification of customary international law and has no basis for refusing to extend the protection of human rights beyond the termsofthe U.S. Constitution.” 13. Customary international law is “part of our law.” (The Paquete Habana, supra, 175 U.S., at p. 700.) According to 22 US.C. section 2304(a)(1), “a principal goal ofthe foreign policy ofthe United States shall be to promote the increased observance of internationally recognized human rightsby all countries.”°° Moreover, the International Court ofJustice, the principaljudicial organ ofthe United Nations,lists international custom as one ofthe sourcesofinternational law to apply when deciding disputes.” These sources confirm the validity ofcustom as a source ofinternationallaw. 14. The provisionsofthe Universal Declaration are accepted by United States courts as customary internationallaw. In Filartiga v. Pena- Irala (2d Cir. 1980) 630 F.2d 876,the court held thatthe right to be free from torture “has become part of customary international law as evidenced and defined by the Universal Declaration ofHuman Rights....” (/d. at 882.) The United States, as a memberstate of the OAS,hasinternational obligations under the OAS Charter and the American Declaration. The American Declaration, which has becomeincorporated by reference within the OAS Charter by the 1970 Protocol ofBuenosAires, contains a comprehensivelist ”° Newman,Introduction: The United States Bill ofRights, InternationalBill ofRights, and Other “Bills” (1991) 40 Emory L.J. 731 at 737. °0 22 U.S.C.section 2304(a)(1). 1 Statute ofthe International Court ofJustice, art. 38, 1947 I.C.J. Acts and Docs 46. This statute is generally considered to be an authoritative list of the sources of international law. Page -626- of recognized human rights which includes the right to life, liberty and security of person, the right to equality before the law, and the right to due processofthe law.’ Although the American Declarationis nota treaty, the United States voted its approval of this normative instrument and as a memberof the OAS,is bound to recognize its authority over human rights issues.© 5TheUnitedStateshasacknowledgedtheforceof~~ ~~ international human rights law on other countries. Indeed, in 1991 and 1992 Congress passed legislation that would have ended China’s Most Favored Nation trade status with the United States unless China improvedits record on human rights. Though President Bush vetoedthis legislation,in May 1993 President Clinton tied renewal of China’s MFNstatus to progress on specific human rights issues in compliance with the Universal Declaration.> 52 American Declaration of the Rights and Duties of Man, Resolution XXX, Ninth International Conference of American States, reprinted in the Inter-American Commission of Human Rights, Handbook of Existing Duties Pertaining to Human Rights, OEA/Ser. L/V/II.50, doc. 6 (1980). 83 Case 9647 (United States) Res. 3/87 of 27 March 1987 OEA/Ser. L/V/II.52, doc. 17, para. 48 (1987). %4 See Michael Wines, “Bush, This Time in Election Year, Vetoes Trade Curbs Against China,” N.Y. Times, September 29, 1992, at Al. 55 President Clinton’s executive order of May 28, 1993 required the Secretary of State to recommendto the President by June 3, 1994 whether to extend China’s MFNstatus for another year. The order imposedseveral conditions upon the extension including a showing by China of adherence to the Universal Declaration of Human Rights, an acceptable accounting of those imprisonedor detained for non-violent expression ofpolitical and religious beliefs, humane treatment of prisoners including access to Chineseprisonsbyinternational humanitarian and human rights organizations, and promoting freedom of emigration, and compliance with the U.S. memorandum ofunderstanding on prison labor. Page -627- 16. The International Covenanton Civil and Political Rights, to which the United States is bound, incorporates the protections of the Universal Declaration. Where other nations are.criticized and sanctioned for consistent violations of internationally recognized human rights, the United States may not say: “Your government is bound byceratin clauses of the covenant though we in the United States are not bound.” 17. Thefactual and legalissues presentedin this petition and the related direct appeal demonstratethat petitioner was deniedhisright toa fair and impartial trial in violation of customary international law as evidenced by Articles 6 and 14 of the International Covenant on Civil and Political Rightsas well as Articles 1 and 26 of the American Declaration. 18. The UnitedStates deposited its instrumentsofratification of the ICCPR on June 8, 1992 with five reservations, five understandings, four declarations, and one proviso.°’ Article 19(c) ofthe Vienna Convention on the Law ofTreaties declares that a party to a treaty may not formulate a See Orentlicher and Gelatt, Public Law, Private Actors: The Impactof HumanRights on Business Investors in China (1993) 14 Nw.J. Int'l L. & Bus. 66, 79. Though President Clinton decided on May 26, 1994 to sever human rights conditions from China’s MENstatus, it cannot be ignoredthat the principal practice of the United States for several years was to use MENstatusto influence China’s compliance with recognized international human rights. See Kent, China andthe International Human Rights Regime: a Case Study ofMultilateral Monitoring, 1989-1994 (1995) 17 H. R. Quarterly, 1. _ *6 The substantive provisions of the Universal Declaration have been incorporated into the ICCPR, so these are incorporated by reference in the discussion above. Moreover, as was noted above, the Universal Declaration is accepted as customary international law. 7 Senate Committee on Foreign Relations, Report on the International Covenant onCivil and Political Rights (1992) S.Exec.Rep. No. 23, 102d Cong., 2d Sess. Page -628- reservation thatis “incompatible with the object and purposeofthe treaty.”*® The Restatement Third of the Foreign Relations Law of the United States echoesthis provision.” 19. The ICCPR imposesan immediate obligationto “respect and ensure”the rights it proclaims and to take whatever other measuresare necessary to give effect to those rights. United States courts, however, will — ——~-——~ enforceifself-executingbeen implementedbylegislation. The United States declared that the articles of the ICCPRare not self-executing.*' The Bush Administration, in explanation of proposed reservations, understandings, and declarations to the ICCPR, stated: “For reasons ofprudence, we recommendincluding a declaration that the substantive provisions ofthe Covenantare notself-executing. The intent is to clarify that the Covenantwill not create a private cause ofaction in U.S. courts. As was the case with the Torture Convention, existing U.S. law generally complies with the Covenant; hence, implementinglegislation is not contemplated.” %8 Vienna Convention, supra, 1155 U.N.T.S. 331, took effect January 27, 1980. 9 Restatement Third of the Foreign Relations Law of the United States, (1987) section 313 cmt. b. With respect to reservations, the Restatementlists “the requirement... that a reservation must be compatible with the object and purpose of the agreement.” 60 Newman and Weissbrodt, International Human Rights: Law, Policy and Process (1990) p. 579. See also, Sei Fujii v. California (1952) 38 Cal.2d 718, 242 P.2d 617, where the California Supreme Court held that Articles 55(c) and 56 of the UN Charterare not self-executing. 6 Senate Committee on Foreign Relations, Report on the International Covenant on Civil and Political Rights (1992) S.Exec.Rep. No. 23, 102d Cong., 2d Sess. 62 Senate Committee on Foreign Relations, Report on the International Covenanton Civil and Political Rights (1992) S.Exec.Rep. Page -629- 20. But underthe Constitution, a treaty “stands on the same footing ofsupremacyas dotheprovisionsofthe Constitution and lawsofthe United States. It operates ofitselfwithoutthe aid of anylegislation, state or national; and it will be applied and given authoritative effect by the courts.” (Asakura v. Seattle (1924) 265 U.S. 332, 341 [68 L.Ed. 1041, 44 S.Ct. 515].)® Moreover,treaties designed to protect individual rights should be construedas self-executing. (United States v. Noriega (1992) 808 F. Supp. — 791.) In Noriega, the court noted,“It is inconsistent with both the language of the [GenevaIII] treaty and with our professed support of its purpose to find that the rights established therein cannot be enforcedby the individual POWinacourt oflaw. Afterall, the ultimate goal ofGenevaIII is to ensure humanetreatment ofPOWs-- not to create some amorphous, unenforceable code ofhonor amongthe signatory nations. ‘It must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and notto serveState interests ....Even ifGenevaIIIis not self-executing, the United Statesis still obligated to honorits international commitment.’” (Ud. at 798.) 21. Thoughreservationsbythe United States providethat the treaties may not be self-executing, the ICCPRisstill a forceful source of customary international law and as suchis binding upon the UnitedStates. 22. Article 14 provides, “[a]ll persons shall be equal before the courts and tribunals. In the determination ofany criminal charge against No. 23, 102d Cong., 2d Sess. at 19. 63 Somelegal scholars argue that the distinction betweenself- executing and nonself-executing treaties is patently inconsistent with express languagein Article 6, section 2 of the United States Constitution that all treaties shall be the supreme law of the land. See generally Jordan L. Paust, Self-Executing Treaties (1988) 82 Am.J. Int’] L. 760. Page -630- him .... everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” Article 6 declares that “[nJo one shall be arbitrarily deprived ofhis life ... [The death] penalty can only be carried out pursuantto a finaljudgment rendered by a competent court.” Likewise, these protections are found in the American Declaration: Article 1 protects the right to life, liberty and security of person; Article 2 guarantees equality before the law; andArticle 26 protects theright of due” process of law.® 23. In cases where the United Nations Human Rights Committee has foundthat aState party violated Article 14 of the ICCPR,in that a defendant had been denieda fairtrial and appeal, the Committee has held that the imposition of the sentence of death also was a violation of Article 6 of the ICCPR.® The Committee further observed, “the provision that a sentence ofdeath may be imposedonly in accordance with the law and not contrary to the provisions of the Covenant implies that ‘the procedural guaranteestherein prescribed must be observed, includingthe right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guaranteesforthe defense, and the right to review ofconviction and sentence by a highertribunal.””®” 24. Further, Article 4(2) of the ICCPR makesclear that no derogation from Article 6 (“no oneshall be arbitrarily deprivedofhislife”) 64 International Covenant on Civil and Political Rights, supra, 999 U.N.T.S. 717. 65 American Declaration of the Rights and Duties of Man, supra. . 66 Report ofthe Human Rights Committee, p. 72, 49 UN GAORSupp.(No. 40) p. 72, UN Doc. A/49/40 (1994). 67 Id. Page -631- is allowed.An Advisory Opinion issued by the Inter-American Co urt on Human Rights concerning the Guatemalan death penalty reserv ation to the American Convention on Human Rights noted“[i]t would foll ow therefore that a reservation which was designedto enable the State to sus pend any of the non-derogable fundamentalrights must be deemedto be incomp atible with the object and purpose ofthe Convention and, consequently,not permitte d by it.Implicit in the court’s opinion linking nonderogability and incompatibility is the view that the compatibility requirement has greater importance in human rightstreaties, wherereciprocityprovides no p rotection for the individual againsta reserving state.” 88 International Covenant on Civil andPolitical Rights, sup ra, 999 U.N.TS. 717. 69 Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion No. OC-3/83 of September 8, 1983, Inter-Amer.Ct.H.R., ser. A: Judgments and Opinions, No. 3 (1983), reprinted in 23 I.L.M. 320, 341 (1984). 70 Edward F. Sherman, Jr. The U.S. Death Penalty Reservation to the International Covenanton Civil and Political Rights: Expo sing the Limitations ofthe Flexible System Governing Treaty Formation ( 1994) 29 Tex. Int’ L.J. 69. In a separate opinion concerning two Barbadi an death penalty reservations, the court further noted that the object and purpose of modern human rightstreaties is the “protection ofthe basic rights of individual human beings,irrespective oftheir nationality, both ag ainst the State oftheir nationality andall other contracting States. In concl uding these human rights treaties, the States can be deemedto submit themselve s to a legal order within which they, for the common good, assume v arious obligationsnotin relation to other States, but towardsall individ uals within their jurisdiction.” (Advisory Opinion No. OC-2/82 of September 24, 1982, Inter-Am. Ct.H.R., ser. A: Judgments and Opinions, No.2, para. 29 (1982), reprinted in 22 I.L.M. 37, 47 (1983).) These opinions are a n indicator of emerging generalprinciplesoftreaty law, and strengthen th e argument that the United States death penalty reservation is impermissi ble becauseit is incompatible. Page -632- 25. Petitioner’s rights under customary international law, as codified in the above-mentioned provisions ofthe ICCPR and the American Declaration, were violated throughouthis trial and sentencing phase. 26. The due process violations that petitioner suffered throughout his trial and sentencing phase are prohibited by customary international law. The United States is boundby customary internationallaw, _______formed suchrinstraments-as ICCPR—The purposeth setreaties is to bind nations to an international commitmentto further protections of human rights. The United States must honorits role in the international community by recognizing the human rights standards in our own country to which wehold other countries accountable. D. Further, these errors, in violation of the aforementioned International Lawsand the SupremacyClauseofthe United States Constitution individually and/orcollectively had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 73: Systematic Error--Unbridled Prosecutorial Discrimination in Charging A. Petitioner’s conviction, judgment, and sentence ofdeath violate the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution because defects in the state’s statutory scheme introduce arbitrary and capricious elements into the decision-making process. Under California law, the prosecutor in a special circumstances case has the unbridled discretion to determine whether a penalty trial will be held to determine whether the death penalty should be imposed. Thearbitrary and Page -633- capricious exercise this unbridled power deprived petitioner of his federal and state constitutional rights to due process, equal protection of the laws, a fair and reliable determination of guilt and penalty, and a fair and reliable appeal. B. The following United States Supreme Court decisions,interalia, in effect at the timethe errors occurred,are presented in support ofthis claim: Eddings v. Oklahoma (1981) 455 U.S. 104, 112 (“Capital punishment [must] be imposed. . . with reasonable consistency,or notat all.”); Zant v. Stephens (1983) 462 U.S. 862, 885 (seeking the death penalty on the basis of“factors that are constitutionally impermissible . . . such as . . . race” violates the Fifth, Eighth, and Fourteenth Amendments); Woodson v. North Carolina (1976) 428 U.S. 280, 303 (“arbitrary and wanton” jury discretion condemned); Furman v. Georgia (1972) 408 U.S. 238 (principled decision- making in charging, prosecuting, and deciding whether to submit a case to a penalty phase jury mandated by the Fifth, Eighth, and Fourteenth Amendments.) C. The following facts, among other to be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support ofthis claim: — 1. Giving prosecutors unbridled power to determine whether a penalty trial will be held to determine whether the death penalty should be imposed without provisions guiding their discretion creates a substantialrisk of county-by-county arbitrariness. 2. This concern is particularly grave in the petitioner’s case. Statistics compiled bythe California Department ofCorrections demonstrate a marked disparity in the number of African-Americans convicted and Page -634- sentenced to death in Alameda County. As ofJanuary 1, 2001, there were 35 inmates on Death Row in California as a result of convictions and death sentences imposed in the Alameda County Superior Court. Ofthose 35 inmates, 18 were African-Americans, 11 were Caucasians, three were Hispanic, one was Native American, and two werelisted as “Other.” (Exhibit 42, California Department of Corrections CondemnedInmate List.) in Alameda County and currently awaiting execution are African-Americans. Accordingto statistics compiled by the California Department of Finance, African-Americans comprise only 18% ofthe population ofAlameda County. (Exhibit 41, California State DepartmentofFinance,Official State Estimates, Race/Ethnic Population Estimates.) 4. The charging andtrial practices of the Alameda County District Attorney’soffice therefore have resulted in the imposition of death sentences uponAfrican-American defendantsata rate three times higher than would be expected based upon the percentage of the African-American population of the county. 5. Unquestionably, underthe existing statutory scheme, some offenders will be chosen as candidates for the death penalty by one prosecutor in one county while other offenders with similar or even greater qualifications in other counties will not. Moreover, the absence of any standards to guide the prosecutor’s discretion permits reliance on constitutionally irrelevant and impermissible considerations, including race and economic status. Furthermore, under this Court’s expansive interpretation of the lying-in-wait theory of first-degree and special circumstance murder (see People v. Morales (1989) 48 Cal.3d 527, 557- 558), and dueto the statutory inclusion ofmost felony murder categories as Page -635- first-degree and special circumstance murders, prosecutorsare free to seek the death penalty in the vast majority ofmurder cases. This fact enhancesthe potential for abuseofthe unbridled discretion conferred on prosecutors under the law. 6. The arbitrary and wanton prosecutorial discretion— in charging, prosecuting, and deciding whether to submit the case to a penalty phase jury-- allowed by the California schemeis contrary to the principled decision-making mandatedbythe Fifth, Eighth, and Fourteenth Amendments. The judgment of death in this case is the product of that unconstitutional system andfor that reason maynotstand. D. Each ofthese errors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendments to the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. Claim 74: California’s Death Penalty Scheme is Unconstitutional Because it Fails to Require Written Findings With Respect to Aggravating Factors A. California’s death penalty schemefails to require that the jury makewritten findings regarding the aggravating factors it selects in imposing the death penalty. Petitioner submits that the failure to require written findings deprives him of his due process and Eighth Amendmentrightsto meaningful review ofhis case. B. The following United States Supreme Court decisions,interalia, in effect at the time the errors occurred, are presented in support ofthis claim: Page -636- California v. Brown (1987) 479 U.S. 538, 543; Gregg v. Georgia (1976) 428 U.S. 153; Caldwell v. Mississippi (1985) 472 U.S. 320 (cannotbe found that failure to correctly instruct on the need for unanimityregarding aggravating circumstances had “no effect” on the penalty verdict); Woodson v. North Carolina (1976) 428 U.S. 280, 305 (explicit findings in penalty phase of a capital case are especially critical because of magnitude ofthe penalty involved); Mills v. Maryland (1988) 486 U.S. 367, 383, fn. 15 (Maryland’s written finding requirementin capital cases enabled U.S. Supreme Court not only to identify the errorthathad been committed under priorstate procedure, but also to gauge the beneficial effect of the newly implemented state procedure); Townsend v. Sain (1963) 372 U.S. 293 (Appellate court cannot reconstructfindingsoftrier of fact). C. Thefollowing facts, among others to be developedafter adequatefunding, discovery, investigation, and an evidentiary hearing, are presented in support ofthis claim: 1. First, the importance of explicit findings has long been recognized— and emphatically so, by this court. (People v. Martin (1986) 42 Cal.3d 437, 449.) Thus, in a non-capital case, the sentenceris required by California law to state on the record the reasonsforthe sentence choice. (/bid.; Pen. Code, §1170, subd. (c).) Under the Fifth, Eighth, and Fourteenth Amendments, capital defendants are entitled to more rigorousprotections than those afforded non-capital defendants (see Harmelin v. Michigan (1991) 501 U.S. 957, 994), and providing moreprotection to a non-capital defendant than a capital defendant would violate the equal protection clause ofthe Fourteenth Amendment. I followsthat the sentencer in a capital case is constitutionally required to identify for the record the aggravating and mitigating circumstances found andrejected. 2. Explicit findings in the penalty phase of a capital case are especially critical because oftwo factors: (1) the magnitude ofthe penalty involved and (2) the need to address error on review (Woodson v. North Carolina (1976) 428 U.S. 280, 305). With respect to the latter factor, it should be noted that Page -637- Maryland’s written finding requirement in capital cases enabled the United States Supreme Court not only to identify the error that had been committed underprior state procedure, but also to gauge the beneficial effect of the newly implemented state procedure. (Mills v. Maryland (1988) 486 U.S. 367, 383, fn. 15.) Moreover, this court itselfhas stated that written findings are “essential” to meaningful review: In In re Podesto [(1976)] 15 Cal.3d 921, we emphasized that a requirement of articulated reasons to support a given decision serves a numberofinterests:it is frequently essential to meaningful review; it acts as an inherent guard against careless decisions, insuring that thejudge himselfanalyzes the problem and recognizes the groundsfor his decision; andit aids in preserving public confidenceinthe decision-making process by helping to persuadethe parties and the public that the decision-makingis careful, reasoned and equitable. (People v. Martin (1986) 42 Cal.3d 437, at pp. 449-450.) 3. The lack of a written finding requirement with respect to aggravating factors renders meaningful review impossible. Californiajuries have absolute discretion and are providedvirtually no guidance on how they should weigh aggravating and mitigating circumstances. Without some memorializationofthe basis for thejury’s exercise ofits discretion, this court cannot“reconstructthe findingsofthe state trier of fact.” (See Townsendv. Sain, supra, 372 U.S. at pp. 313-316; contra, People v. Rodriguez (1986) 42 Cal.3d. 730, 777-779.) 4. The unavailability of meaningful review whichresults from the lack ofwritten findings is amply demonstrated by the circumstances of this case. For example, petitioner was convicted of six counts ofmurder Page -638- and special circumstances were found true for all six of these crimes. Without written findings from thejurors, this court cannot determine whether the jury counted twoor three aggravating factors for this conduct. 5. The failure to provide written findings also makesit extremely difficult to assess the prejudice whichresults at the penalty phase when a special circumstance is invalidated on appeal. For example, the is therefore invalid. This special circumstance wasalso an aggravating factor, but without written findingsit is impossible to know whetherthejury considered it a significant or even determinativefactor in imposing the death penalty. 6. . It is both reasonably possible (Chapman v. California (1967) 386 U.S. 18, 24) and reasonably probable (People v. Watson (1956) 46 Cal.2d 818, 836) that the failure to correctly instruct on the need for unanimity regarding aggravating circumstances contributed to the verdict of death. It certainly cannot be found that the error had “noeffect” on the penalty verdict. (Caldwell v. Mississippi, supra, 472 U.S. at p.341.) D. Thefailure to require written findings with regard to aggravating factors deprived petitioner of his Eighth Amendmentright to meaningful appellate review and his Fifth and Fourteenth Amendmentright to due processoflaw. Page -639- Claim 75: Appellate Delay Has Denied Petitioner His Right to Counsel, His Right to Due Process, and His Right to Be Free of Cruel and Unusual Punishment , A. Petitioner’s conviction and sentenceofdeath are violations ofthe Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and article I, sections 7, 15, 16 and 17 of the California © Constitution because the extraordinary delay in execution ofsentenceviolate the state and federal constitutions. This extraordinary delayin the appellate and post-conviction process has denied petitioner his right to counsel, his right to meaningful appellate review,his right to due processoflaw,and his right to be free of cruel and unusual punishment. (U.S. Const. Amends., 5, 6, 8 and 14; Cal. Const., art. 1, §§ 1, 7, 9, 15, 17, 24, and 27.) B. The following United States Supreme Court decisions,interalia, in effect at the time the errors occurred,are presented in support ofthis claim: Mempav. Rhay (1967) 389 U.S. 128, 134 (criminal defendantis entitled to counselatall critical stages ofa proceeding whenhis orhersubstantial rights maybe affected); Douglas v. California (1963) 372 U.S. 353 (appeal of right from a felony convictionisa critical stage at which the right to counsel attaches, and an indigent appellant is entitled to appointed counsel atthis stage); Coleman v. Thompson (1991) 501 U.S. 722, 742 (right to counsel so important that the state may not enforce its procedural rules and appellate deadlines ifthese cannot be met without depriving a criminal defendantofhis right to counsel on appeal); Chessman v. Teets (1957) 354 U.S. 156 (full and fair review ofthe trial court proceedings necessitates a complete record); Barker v. Wingo (1972) 407 U.S. 514, 531 (failures of court-appointed counsel and delays in the appellate processare attributable to the state, not Page -640- to the defendant); (Moore v. Nebraska (1999) 528 U.S. 990, 993, Breyer, J., dissenting from denial of certiorari (court should hold delay in post- conviction processis cruel and unusual punishment). C: The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiary hearing, are —.—. -.. —i thisclaim;—-—--___..»—. 1. Petitioner was convicted in 1989. Counsel was not appointed to represent him on appealuntil 1992, three years later. Counsel did notfile the briefuntil 1998,nine yearslater, and this court did not decide the case until 1999,a full ten years after petitioner’s conviction. 2. . Asthis petition is being written, petitioner has already spent 13 years on death row.Petitionerwill certainly remain on death row for many years to come while he pursueshis post-conviction remedies. Indeed, if relief is not granted on any of the many meritorious claimsraised in this habeaspetition,it is quite likely that appellant will serve 15 years on death row before California’s post-conviction processes are concluded, plus many more years before the federal post-conviction process is completed. 3. The long delayin obtaining appellate counsel and deciding petitioner’s appealhasseverelyprejudiced petitioner’s ability to discover and present exculpatory evidence in his habeas corpus proceedings. Many witnesses to the events of December 8, 1989, and to a broad range of mitigation issues, are now deceased, and the memories ofmany others have faded. Moreover, as indicated in Claims 1 and [BLOOD],the state has engagedin a pattern ofsuppression and tampering with critical evidence, and the investigation of this pattern of state misconduct has been severely prejudiced by the passageoftime. Page -641- 4. Petitioner bears no responsibility for failure to appoint counselto represent him and should notbe forced to bear the burdenthat the deprivation. Petitioner’s ability to meaningfully challengehis imprisonment and death sentence has been devastated by the state’s delay in obtaining counsel, a matter over which he has exercised no discretion or control whatsoever. 5. Petitioner submits that excessive delay in the process has denied him due process of law. The delay of 13 years for appointment of competent habeas counsel, the fact that petitioner asserted his right to be represented in a habeas appeal, require that this court apply the four-part analysis drawn from Barker v. Wingo (1972) 407 U.S. 514 and concludethat post-conviction delay have indeed violated the defendant’s due process rights. In addition, petitioner submits that the extraordinary delay in this state’s process also compels reliefunder the Eighth Amendmentas cruel and unusual punishment. (Moore v. Nebraska (1999) 528 U.S. 990, 993, Breyer, J., dissenting from denial ofcertiorari.) D. Eachofthese errors, in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendments to the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influence in determining the jury’s verdict. { Claim 76: Cruel and Unusual Punishment — Lethal Injection A. Petitioner’s conviction and sentence ofdeath are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, 16, and 17 of the California Page -642- Constitution because California’s method ofexecution constitutes cruel and unusual punishment and was adopted by means whichviolate fundamental principles ofprocedural and substantive due process. These errors deprived petitionerofhis federal and state constitutional rights to due process, to be free of cruel and unusual punishment, meaningful appellate review, equal protection ofthe laws,a fair and reliable determination ofguilt and penalty, _____ _________and_atrial. B. The following United States Supreme Court decisions, inter alia, in effect at the time the errors occurred, are presented in support ofthis claim: Jn re Kemmler (1890) 136 U.S. 436 (Eighth Amendment prohibits methods ofpunishmentwhichinflict torture ora lingering death or involvethe wanton infliction of pain); Gregg v. Georgia (1976) 428 U.S. 153 (same); Hudson v. McMillian (1992) 503 U.S. 1 (same); Estelle v. Gamble (1976) 429 U.S. 97 (Eighth Amendment embodiesconcepts of dignity, civilized standards, humanity and decencyagainst which a court must evaluate penal measures); Trop v. Dulles (1958) 356 U.S. 86 (Eighth Amendmentprohibits punishmentsthatare incompatible with “evolving standardsofdecencythat mark the progress ofa maturing society”); Cokerv. Georgia (1977) 433 U.S. 584 (to discern the “evolving standardsofdecency,” courts look to objective evidence of how society views a punishment today); Furmanv. Georgia (1972) 408 U.S. 430 (no court should approve anymethod ofimplementation ofthe death sentence foundto involve cruelty in light ofpresently available alternatives); Lehr v. Robertson (1983) 463 U.S. 248(to establish a violation ofthe right to procedural dueprocess, the complaining party must show:(1) a constitutionally protected interest in life, liberty or property; (2) governmental deprivation of that interest; and (3) the constitutional Page -643- inadequacyofprocedures accompanying the deprivation); OhioAdultParole Authority v. Woodward (1998) 523 U.S. 272 (capital appellant facing execution hasa constitutionally protected due processinterest in life that is not extinguished by his judgmentand sentence); Hicks v. Oklahoma, (1979) 447 U.S. 343 (federal due process claim in state-created right). C. The following facts, among others to be developed after adequate funding, discovery, investigation, and an evidentiary hearing, are presented in support ofthis claim: 1. Death by lethal gas has been ruled cruel and unusual punishment. (Fierro v. Gomez (N.D. Cal. 1994) 865 F.Supp.1387.) This judgmentwasaffirmed on appeal. (Fierro v. Gomez (9th Cir. 1996) 77 F.3d 301, 309.) On October 15, 1996, the judgment of the Ninth Circuit was vacatedin light ofamendmentsto section 3604. (Gomez v. Fierro (1996) 519 U.S. 918 [136 L.Ed.2d 204, 117 S.Ct. 285].) The 1996 amendmentprovided that in default ofan election by the inmate, the execution wouldbeby lethal injection. However, lethal injection also results in precisely the kind of painful, agonizing,and lingering death prohibited bythe Eighth Amendment. 2. In examining whether a method of execution is “unconstitutionally cruel,” the court must examine the “degree of risk” involvedin its a administration. (Fierro v. Gomez, supra, 865 F.Supp.atp. 1411 (discussing Campbell v. Wood (9th Cir. 1994) 18 F.3d 662).) Factors to be considered include the amount ofpain involved and the immediacy of unconsciousness. (/d., at pp. 1410-1411 [interpreting the authorities cited in Campbell].) The Fierro court interpreted Campbell as suggesting “the persistence ofconsciousness‘for over a minute’or for ‘between a minute and Page -644- a minute-and-a-half but no longer than two minutes’ might be outside constitutional boundaries.” (/d. at p. 1411.) 3. There have been manyinstances where execution by lethal injection has been prolonged, extending the amount of psychological pain inflicted. (See Jn re Carpenter, Petition for Writ of Habeas Corpus, S083246.) 4. In Oklahoma in 1992; for example, Robyn Lee Parks a finally died after gasping, coughing and gagging for eleven minutesafter the drugs were administered. One reporter who witnessed Parks’ death wrote that the execution looked “painful and ugly and scary.” “It was overwhelming, stunning, disturbing-- an intrusion intoa momentso personalthat reporters, taughtforyearsthatintrusionis their business, had trouble looking each other in the eyes after it was over.” (/1-Minute Execution Seemingly Took Forever, Tulsa World, March 11, 1992; p. A13.) 5. Stephen Peter Morin’s execution technicians were forced to probe both ofMorin’s arms andoneofhis legs with needles for nearly 45 minutesbefore they found a suitable vein because of Morin’shistory ofdrug abuse. (Murderer ofThree Women is Executed in Texas, New York Times (Mar. 14, 1985); p. 9.) 6. After repeated failurestrying to find a suitable vein, Randy - Wools, a drug addict, eventually helped the execution technicians find a useable vein. (Killer Lends a Hand to Find a Vein for Execution, Los Angeles Times(Aug.20, 1986); p. 2.) It took nearly an hour to complete the execution of Elliot Rod Johnson dueto collapsed veins. (Addict is Executed in Texasfor Slaying of2 in Robbery, New York Times (June 25, 1987); p. A24.) Page -645- 7. Death was pronounced 40 minutes after Raymond Landry wasstrapped to the execution gurney and 24 minutes after the drugsfirst started flowing into his arms. (Drawn-outExecution Dismays Texas Inmates, Dallas Morning News (Dec. 15, 1988); 29A.) Two minutesafter the drugs were administered, the syringe cameout ofLandry’svein, spraying the deadly chemicals across the room toward witnesses. (Landry Executed for ‘82 Robbery-Slaying, Dallas Morning News(Dec.13, 1988); 29A.) The curtain separating the witnesses from the inmate wasthen closed, and not reopened for fourteen minutes while the execution team reinsertedthecatheterinto the vein. (/bid.) A spokesman for the Texas DepartmentofCorrection, Charles Brown [sic], said, “There was something ofa delay in the execution because of whatofficials called a ‘blowout.’ The syringe cameoutofthe vein, and the wardenordered the (execution) team to reinsert the catheterinto the vein.” (Ibid.) 8. It took medical staff more than 50 minutes to find a suitable vein in Rickey Ray Rector’s arm. Witnesses were kept behind a drawncurtain, but reported hearing Rectorutter eight loud moans. During the ordeal Rector helped the medical personnel find a vein. The administrator of Arkansas’ Department of Corrections Medical Programssaid (paraphrased by a newspaperreporter) “the moans did come as a team of two medical people that had grownto five worked on both sides of his body to find a vein.” The difficulty in finding a suitable vein was later attributed to Rector’s bulk and his regular use of anti-psychotic medication. (Rector, 40, Executedfor Officer’s Slaying, Arkansas Democrat Gazette (Jan. 25, 1992); p. 1; Rector’s Time Came, Painfully Late, Arkansas Democrat Gazette (Jan. 26, 1992); p. 1B; Frady, Death in Arkansas, The New Yorker, (Feb. 22, 1993); p. 105.) Page -646- 9. Billy Wayne White was pronounced dead some 47 minutes after being strapped to the execution gurey. (Another U.S. Execution Amid Criticism Abroad, New York Times(Apr. 24, 1992); p. B7.) The delay was caused bydifficulty finding a vein; White had a longhistory ofheroin abuse. (/bid.) During the execution Whitealso attemptedto assist the authorities in finding a suitable vein. (/bid.) example. After the execution began, the lethal chemicals unexpectedly solidified, clogging the IV tubethatled into Gacy’s arm andprohibiting any further passage. Blinds covering the window through which witnesses observed the execution were drawn,andthe execution team replaced the clogged tube with a new one. Ten minuteslater, the blinds were reopened and the execution process resumed. It took 18 minutes to complete. Anesthesiologists blamed the problem onthe inexperience of the prison officials who were conducting the execution, saying that proper procedures taught in “IV 101” would have prevented the error. (Gacy Lawyers Blast Method: LethalInjections UnderFireAfterEquipmentMalfunction, Chicago Sun-Times (May11, 1994); p. 5; Witnesses Describe Killer’s ‘Macabre’ Final Few Minutes, Chicago Sun-Times (May 11, 1994); p. 5; Gacy Execution Delay Blamed on Clogged IV Tube, Chicago Tribune (May11, 1994); p. 1 (Metro).) 11. Seven minutesafter the lethal chemicals began to flow into Emmitt Foster’s arm, the execution was halted when the chemicals stopped circulating. (Witnesses to a Botched Execution, St. Louis Post- Dispatch (May 8, 1995); p. 6B.) With Foster gasping and convulsing, the blinds were drawnsothe witnesses could not view the scene. (/bid.) Death was pronounced30minutesafterthe execution began,and three minuteslater Page -647- the blinds were reopened so the witnesses could view the corpse. (Jbid.) Because they could not observe the entire execution procedure through the closed blinds, two witnesseslater refused to sign the standard affidavit that stated they had witnessed the execution. (/bid.) In an editorial, the St. Louis Post-Dispatch called the execution “a particularly sordid chapter in Missouri’s capital punishment experience.” (/bid.) Accordingto the coroner whopronounceddeath, the problem wascausedbythe tightnessofthe leather straps that bound Fosterto the execution gurney;it was so tight that the flow of chemicals into the veins was restricted. (Yoo-Tight Strap Hampered Execution, St. Louis Post-Dispatch (May 5, 1995); p. Bl; Execution Procedure Questioned, Kansas City Star (May 4, 1995); p. C8.) 12.. Richard Townes, Jr.’s execution was delayed for 22 minutes while medical personnelstruggled to find a vein large enoughforthe needle. After unsuccessfulattemptsto insert the needle through the arms,the needle wasfinally inserted through the top ofMr. Townes’right foot. (Store Clerk’s Killer Executed in Virginia, New York Times (Jan. 25, 1996); p. Al9.) 13. It took one hour and nine minutes for Tommie J. Smith to be pronounced deadafter the execution team began sticking needles into his body because of unusually small veins. (Doctor’s Aid in Injection Violated Ethics Rule: Physician Helped Insert the Lethal Tube in a Breach ofAMA’sPolicyForbiddingActiveRole in Execution, Indianapolis Star (July 19, 1996); p. Al.) For 16n minutes, the execution team failed to find adequate veins, and then a physician wascalled. (/bid.) The physician made two attempts to insert the tube in Smith’s neck. (/bid.) Whenthatfailed, an angiocatheter wasinserted in Smith’s foot. (/bid.) Only then were witnesses permitted to view the process. (/bid.) The lethal drugs werefinally injected Page -648- into Smith 49 minutesafter the first attempt, and it took another 20 minutes before death was pronounced. (Problem with Veins Delays Execution, Indianapolis News(July 18, 1996); p. 1.) . 14. It took nearly an hour to find a suitable vein for the insertion ofthe catheter into Michael Eugene Elkins. (“Killer Helps Officials Find a Vein at his Execution,” Chattanooga Free Press (June 13, 1997)at p. ———.— ——_AT.)-Elkins triedassistexecutioners,asking “ShouldHeanhead downa little bit?” as theyprobed fora vein. (Jbid.) After numerousfailures, a usable vein wasfinally found in Elkins’ neck. (/bid.) 15. The risk of such prolonged administration of lethal injection is increased by California’s lack of comprehensive standards in defining procedures. In McKenzie v. Day (9th Cir 1995) 57 F.3d 1461, 1469, the Ninth Circuit held that executionbylethal injection under the procedures whichhad beendefined in Montana wasconstitutional. The Court ofAppeals explained that those procedures passed constitutional muster because they were “reasonably calculated to ensure a swift, painless death.” (Jbid.) Such a statement cannot be made about the procedures in California. A swift, painless death cannot be guaranteed without standardsin place to insure the lethal chemicals will be administered to petitioner in a competent, professional manner by someone adequatelytrained to do so. 16. Similarly, in LaGrand v. Lewis (D.Ariz. 1995) 883 F.Supp. 469, aff'd. 133 F.3d 1253 (9th Cir. 1998), the district court upheld Arizona’s written Internal ManagementProceduresprescribing standards for the administration of lethal injection because “they clearly indicate that executions are to be conducted underthe direction of the ASPC-Florence Facility Health Administrator, knowledgeable personnel are to be used, and the presence of a physician is required.” Such procedures are not found in Page -649- the California Code ofRegulations or in documents released bythe California Department of Corrections. 17. Atthe time ofthe offensesin this case, lethal gas was the sole means of execution under California law and therefore was the method of execution imposedbythe court at judgment and sentencing. (CT 2526- 2530.) In 1992, California added as an alternative means of execution “intravenous injection of a substance or substances in a lethal quantity sufficient to cause death by standards established under the direction of the Department of Corrections.” (Pen. Code, § 3604, subd. (a).)’' The 1992 ” In its entirety, this section now providesas follows: (a) Thepunishmentofdeath shall be inflicted by the administration of a lethal gas or by an intravenousinjection of a substance or substancesin a lethal quantity sufficient to cause death, by standardsestablished underthe direction of the Department of Corrections. (b) Persons sentenced to death prior to or after the operative date of this subdivision shall have the opportunity to elect to have the punishment imposedbylethal gas or lethal injection. This choice shall be made in writing and shall be submitted to the warden pursuantto regulations established by the Department of Corrections. If a person under sentence of death does not chooseeitherlethal gas or lethal injection within 10 days after the warden’s service upon the inmate of an execution warrant issued following the operative date of this subdivision, the penalty of death shall be imposedbylethal injection. (c) Where the person sentenced to death is not executed on the date set for execution and a new execution date is subsequently set, the inmate again shall have the opportunity to elect to have punishment imposedbylethal gasorlethal injection, according to the procedureset forth in subdivision (b). Page -650- legislation allowed the inmateto select either lethal gas or lethal injection, and provided that if the inmate madenoselection, execution would be by lethal gas. However, the state has failed to comply with the statutory requirement that standards for lethal injection be established by the Departmentof Corrections. (Pen. Code, § 3604, subd.(a).)” 18. Whena statute requires a regulatory agency to adopt to adopt such standards or comply with the procedures required for adoption ofstandardspriorto taking thoseactionsviolatesthe guarantee ofprocedural due process. (See, e.g., Marshall v. Union Oil (9" Cir. 1980) 616 F.2d 1113, 1116.) In California, all regulations and other standards of general application employed by a governmental agency must be adopted pursuant to the procedures set forth in the state Administrative Procedures Act (hereinafter, “the Act.”) (Gov. Code, §11342, subd. (g).) The Act mandates that rigorous procedures be observed prior to the adoption of regulations, (d) Notwithstanding subdivision (b), if either manner of execution described in subdivision (a) is held invalid, the punishmentof death shall be imposed bythe alternative means specified in subdivision (a). (Pen. Code, § 3604.) ” To date, petitioner has not made an election to be executed by lethal gas. Consequently, the only method available to the State for executing petitioneris by lethal injection. Petitioner therefore has standing to challenge his impending execution by this methodas a violation ofhis rights under the Federal Constitution. The fact that petitioner has the option to choose lethal gas is legally irrelevant. The state may not cloak an unconstitutionaly cruel and unusual punishmentin the mantle of “choice.” (Dear Wing Jung v. United States (9" Cir. 1962) 312 F.2d 73, 75-76.) Page -651- including public notice and hearings, legal review, and a public comment period,followed byfiling ofthe regulation with the Secretary ofState. (See, e.g., Gov. Code, §11346.4 et seq.) Rules adopted without complying with the Actare invalid and may not be enforced. (Gov Code, §11340.5.) 19. Toappellant’s knowledge, the Department ofCorrections has not complied with the mandate of section 3604, subdivision (a), to establish standards for the administration of lethal injections or with the provisions ofthe Administrative Procedures Act. The only regulationin the California Code of Regulations which even mentions the words “lethal injection”is 15 C.C.R. §3349. This section merely sets forth the procedures and departmental forms required for a Death Row inmate’s requestfor either lethal injection or lethal gas and therefore does not comply with the requirements of section 3604, subdivision (a). The only other information available from the Department of Corrections is a brief document, dated March, 1996, which merelyprovides a vague description ofthe Department’s lethal injection procedures. The document,similar in tone to a pressrelease, neither states the source of the information it contains nor refers to any official regulationsorrules. In pertinentpart, this documentstatesas follows: The inmate is connected to a cardiac monitor which is connected to a printer outside the execution chamber. An IV is started in two usable veins anda flow of normalsaline solution is administered at a slow rate. [Oneline is held in reserve in case of a blockage or malfunction in the other.] The door is closed. The warden issues the execution order. In advance of the execution, syringes containing the following are prepared: Page -652- ° 5.0 grams of sodium pentothal in 20-25 cc of diluent ° 50 cc of pancuronium bromide * 50 cc of potassium chloride Each chemicalis lethal in the amounts administered. At t ? ; administered,then the line is flushed with sterile normal saline solution. This is followed by pancuronium bromide,a salineflush, andfinally, potassium chloride. Asrequired by the California Penal Code, a physician is present to declare when death occurs. (See Appendix 124, In reMendoza,Petition for Habeas Corpus, S083246.) 20. This document obviously does not comply with the provisionsofthe Administrative Procedures Act. No notice appears to have been given to the public priorto its adoption,noris petitioner awarethat any hearing or public commentperiod precededits adoption. The documentdoes not appear to have been publishedorfiled with the Secretary of State, nor does it appear to have been vetted by the Office of Administrative Law. In addition, the documentitselfdoes not even purport to be a regulation. Byits own terms, it does not prescribe the proceduresthat must be used during an execution, but rather appears to describe for the press or public in general terms the procedures the departmentuses. 21. Moreover, the foregoing documentfails to establish any coherent standards for administering lethal injections. The document is extremely vague and generalin its description. For example,it is not clear Page -653- from the document howfar “in advance of the execution” the drugs are prepared. No physical restraints are described. It is not clear how many people are present, who these people are, what qualifications theymust have, or whattraining they must have undergone. 22. Mostsignificantly, the document does not define a set of procedures that will ensure that a condemnedprisoner will be free from unnecessary suffering. The document’s failure to prescribe even a minimal level oftraining for the personnel involved in administeringthe lethal injection raises a substantial and unnecessary riskthat the subject will undergo extreme pain and suffering before and during his execution. If inadequately trained personnel were to improperly insert the catheter, the chemicals could be inserted into appellant's muscle or other tissue rather than directly into his bloodstream, causing extremepainin the form ofa 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. Improperinsertion ofthe catheter could also result in its falling out of the vein, resulting in a failure to inject the intended dosage of chemicals. Thereis also the risk that the catheterwill rupture or leak as pressure builds up during the administration of the chemicals unless the catheter has adequate strength and all the joints and connections are adequately reinforced. 23. The document does not mandate that a physician or other trained medical expert be present to render treatment or assistance to a prisoner in the event of an emergency; instead, the document mandates only that a physician be present to declare death. In fact, medical doctors are prohibited from participating in executions pursuantto the ethical principles set forth in the Hippocratic Oath. The American Nurses Association also Page -654- forbids membersfromparticipating in executions. This increases the chances of improper administration which could result in pain, an air embolism, the clotting of the catheter which would preventinjection, and heart failure. Furthermore, the documentsets out specific dosages of three drugsto be administeredto all subjects, but different dosages affect different people in different ways, depending uponindividual bodyweight, metabolism, and other _.____.____ medicalcon itions.Accordingly, there is a risk at t elisted dosages may_—_____- be inadequate for the purposes for which they were selected, mayresult in unanticipated or inappropriate effects in a particular individual for medical or other reasons, and mayinflict unnecessarily extreme pain and suffering. 24, The document doesnot outline proper guidelines for storage or handling of the chemicals involved. Improperly stored and/or handled chemicals maycause unnecessary suffering. Sodiumpentothal wears off quickly; and if not enoughis given, it may paralyze the muscles ofthe prisoner and render him incapable ofbreathing whilestill conscious, causing panic and an excruciatingly arduousdeath. 25. Plainly, the procedures outlined in the document discussed above were not properly adopted as requiredbythe statute and the Administrative Procedures Act. Theyare constitutionally inadequate under the Fourteenth Amendmentasa violation of appellant’s right to procedural due process and may not be enforced under state law. (Gov. Code, § 11340.5.) D. The constitutional error complained of in this claim is prejudicial under any standard ofreview. Page -655- Claim 77: Cruel and Unusual Punishment -— Execution ofMentally Retarded or Impaired A. Petitioner’s conviction and sentenceofdeath are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States — Constitution and article I, sections 7, 15, 16, and 17 of the California Constitution becausepetitioneris mentally impaired to such an extentthat his execution is prohibited bythe Eighth Amendment. Petitioner’s profound brain damagedeprives him ofthe level ofmoral culpabilityrequisite for execution. This error deprives petitioner ofhis federal and state constitutional rights to due process,to be free of cruel and unusual punishment, equal protection of the laws, a fair and reliable determinationofguilt and penalty, and fairtrial. B. The following United States Supreme Court decisions,inter alia, in effect at the time the errors occurred, are presented in support ofthis claim: Atkins v. Virginia (2002) DIDAR 6937 (Eighth Amendmentviolation to execute mentally retarded persons); Jn re Kemmler (1890) 136 U.S. 436 (Eighth Amendmentprohibits methodsofpunishment whichinflict torture or a lingering death or involve the wantoninfliction ofpain); Gregg v. Georgia (1976) 428 U.S. 153 (same); Hudson v. McMillian (1992) 503 U.S. 1 (same); Estelle v. Gamble (1976) 429 U.S. 97 (Eighth Amendment embodies conceptsofdignity, civilized standards, humanity and decency against which a court must evaluate penal measures); Trop v. Dulles (1958) 356 US. 86 (Eighth Amendment prohibits punishments that are incompatible with “evolving standards of decency that mark the progress of a maturing society”); Coker v. Georgia (1977) 433 U.S. 584 (to discern the “evolving standards of decency,” courts look to objective evidence of how society Page -656- views a punishment today); Furman v. Georgia (1972) 408 U.S. 430 (no court should approve any method of implementation of the death sentence foundto involve cruelty in light ofpresently available alternatives); Lehry. Robertson (1983) 463 U.S. 248 (to establish a violation of the right to procedural due process, the complaining party must show: (1) a constitutionallyprotectedinterestin life, liberty orproperty; (2) governmental procedures accompanyingthe deprivation); Ohio Adult Parole Authority v. Woodward(1998) 523 U.S. 272 (capital appellant facing execution has a constitutionally protected due processinterestin life that is not extinguished by his judgmentand sentence); Harmelin v.Michigan (1991) 501 U.S. 857 (Eighth Amendment requires proportionality in sentencing) ; Hicks v. Oklahoma, 447 U.S. 343 (1979) (federal due process claim in state-created right). C. The following facts, amongotherto be developed after adequate funding, discovery, investigation, and evidentiary hearing, are presented in support of this claim: 1. Petitioner incorporatesasiffully set forth herein the facts and law set forth in Claims 2, 4, 5, 18, 19, 24, 47, 48, 77, and 78. 2. Throughouthislife, petitioner has suffered from organic brain damageprimarily affecting the frontal lobes ofhis brain. Asa result of these impairments, petitioner’s behavior “in all areas of life and underall domainsplaces himwell within the range consistent with mentalretardation.” (Exhibit 28, Declaration of Pablo Stewart.) Petitioner exhibits “significant subaverageintellectual functioning,”and his “adaptive functioningfalls well below the retarded range.” (/bid.) Accordingly, petitioner is mentally Page -657- retarded and his execution wouldviolate the Eighth Amendment! (Atkinsv. Virginia(2002) 02 Daily Journal D.A.R. 6937.) . 3. Apart from the technical definition of mental retardation, petitioner’s deficits in intellectual and adaptive functioning renderhimlegally and morally indistinguishable from a mentallyretarded person. Asis the case with mentally retarded persons, petitioner has a diminished capacity “to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engagein logical reasoning,to control impulses, and to understand the reactionsof others.” (Atkins v. Virginia, supra, (2002) 02 Daily Journal D.A.R. 6937.) Like mentally retarded persons, petitioner’s organic and mental impairments prevent him from comprehending the supposed deterrent purpose of the death penalty, meaningfully assisting counselinpresentation ofa defense, or comprehending and presenting evidenceinmitigation. Accordingly,petitioner’s executionis prohibited under the Eighth Amendment. D. Theseerrors,in violation ofthe Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendmentsto the United States Constitution, individually and/orcollectively, give rise to a reasonable probability of a more favorable outcomein the absenceofthe error and are moreoverprejudicial under any standard of review. Claim 78: Cumulative Error A. Petitioner’s conviction and sentence of death violate the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and article I, sections 7, 15, 16 and 17 ofthe California Constitution because Page -658- the cumulative effect of the errors alleged in this petition andin petitioner’s direct appeal deprived him ofhis federal constitutional rights, including,but not limited to, his rights to due process of law, equal protection, confrontation, the effective assistance of counsel, and theright to reliable capital proceedings and sentencing. in effect at the time the error occurred,are presented in support ofthis claim: Taylor v. Kentucky (1978) 436 U.S. 478, 487, and fn. 15 (cumulative effect of errors may violate due process); Strickland v. Washington (1984) 466 U.S. 668 (criminal defendanthasrightto effective assistance ofcounselatall stages ofproceedings); Brady v. Maryland (1963) 373 U.S. 83 (withholding of evidence favorable to accused violates due process); Pointer v. Texas (1965) 380 U.S. 400 (confrontation clause providescriminal defendantright to directly confront adversarial evidence); Gardner v. Florida (1977) 430 U.S. 439 (due process violation in capital proceeding where petitioner sentenced onbasis ofunreliable information); Godfrey v. Georgia (1980) 446 U.S. 420 (Eighth Amendmentrequires higher degree ofscrutiny in capital proceedings); Hicks v. Oklahoma (1979) 447 U.S. 343 (federal due process claim in state-created right). C. The following facts, among others to be developed, after adequate funding, discovery, investigation, and an evidentiary hearing, are presented in support ofthis claim 1. Petitioner incorporatesas if fully set forth herein all facts and law set forth in all other claimsin this petition. Page -659- 2. In this petition and in the briefing on direct appeal, petitioner has set forth separate post-conviction claims and arguments regarding the numerousguilt phase and penalty phaseerrors, andhe submits that each one ofthese errors independently compels reversal ofthejudgment or alternative post-conviction relief. However, even in cases in which no single error compels reversal, a defendant may be deprived ofdue process if the cumulative effect of all errors in the case denied him fundamental fairness. (Taylor v. Kentucky, supra, 436 U.S. At p. 487, and fn. 15; People v. Holt (1984) 37 Cal.3d 436, 459; see also People v. Ramos (1982) 30 Cal.3d 553, 581, revd. on other grounds in California v. Ramos (1985) 463 U.S. 992; In re Rodriguez (1981) 119 Cal.App.3d 457, 469-470; People v. Vindiola (1979) 96 Cal.App.3d 370, 388; People v. Buffum (1953) 40 Cal.2d 719, 726; Harris v. Wood (9th Cir. 1995) 64 F.3d 1432, 1438-1439; United States v. McLister (9th Cir. 1979) 608 F.2d 785, 791.) 3. Petitioner submits that the errors in this case require reversal both individually and because of their cumulative impact. As explainedin detail in the separate claims and arguments ontheseissues, the errors in this case individually and collectively violated federal constitutional guarantees under the Fifth, Sixth, Eighth, and Fourteenth Amendments. D. Each oftheseerrors, in violation of the Fifth and/or Sixth and/or Eighth and/or Fourteenth Amendments to the United States Constitution, individually and/or collectively, had a substantial and injurious effect or influenceon the verdict,judgment and sentence and are moreoverprejudicial underany standard of review. Page -660- PRAYER FOR RELIEF WHEREFORE,Petitionerrespectfully requests that this Court: 1. Order respondent to show cause whypetitioner is not entitled to the relief sought; 2. Grant petitioner a reasonable opportunity within which to investigation or from allegations madein the return or informal opposition to the Petition; | 3. Grant petitioner sufficient funds and opportunity to secure investigation and expert assistance as necessary to fully develop and prove the facts allegedin this petition; 4. Take judicial notice of the record on appeal, all briefs and pleadings filed in this Court in People v. Welch, S011323, and all other matters and documents of which petitioner has requested this Court to take judicial noticein the presentpetition; 5. Request that original exhibits referredto in this petition be transmitted to this Court by the clerk of the superior court (Cal. Rules of Court, rule 10(d)); 6. Permit petitioner, who is indigent, to proceed without prepaymentof costs and fees and grant him authority to obtain subpoenas without fee for witnesses and documents necessary to provethefacts alleged in this petition; 7. Grantpetitionerthe right to conduct discovery, including the right to take depositions, request admissions, and propoundinterrogatories and the meansto pursue the testimony of witnesses; Page -661- _ 8. Permit petitioner areasonable opportunityto supplementthe petition to include claims which may become known as a result of further investigation and information which mayhereafter cometo light; 9. Appoint a special master or referee to conduct an evidentiary hearing at which proofmaybe offered concerningtheallegations in this petition, or any amended or supplementalpetition, and appoint counsel to represent petitioner for such hearing; 10. After full consideration ofthe issuesraisedin the petition, considered cumulatively andin light of the errors alleged on direct appeal, order that petitioner’s conviction and death judgmentbeset aside; 11. Issue a writ of habeas corpusto have petitioner brought before it to the end that he might be discharged from his unconstitutional confinementandrestraint and/orrelieved ofhis unconstitutional sentence of death; and Page -662- 12. Provide such other and furtherreliefas the Court mayfind appropriate in the interests ofjustice. Dated: June 24, 2002 Respectively submitted, tephanie Ross, Esq. and WesleyA. Van Winkle, Esq. Attorneys for Petitioner, DAVID ESCO WELCH Page -663- VERIFICATION I am an attorneyat law dulylicensedto practice in all courts ofthe State of California. My office is in Alameda County. I am counsel for Petitioner in this action, whois restrained ofhis liberty and confined in a California State Prison at San Quentin, California, a county differentfrom the county, in which counselpractices. I am authorizedtofile this petition. All facts alleged in the above petition, not otherwise supported by citations to the record, exhibits, or other documents are true of my own personal knowledge. | I declare under penalty of perjury the aboveis true and correct. This declaration was executed on June 24, 2002, at Berkeley, California. Respectfully submitted, Wesley A. Van Winkle Page -664- CERTIFICATE OF SERVICE BY MAIL I declare that I am over the age of eighteen years and am employed in a law office in the City of Berkeley, County ofAlameda, State of California. On this date, I personally filed this Petition for Writ of Habeas Corpus and volumesofexhibits, together with ten copies thereof, at the California Supreme Court. I also served the parties in said cause either by personal service or by placing true and correct copies thereof in envelopes or packages with postage thereon fully prepaid in the United Sates mail at Berkeley, California, addressed as follows: Catherine Rivlin, Esq. Supervising Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 I have further arranged to makepersonal service on myclient at the following address on or before July 24, 2002: Mr. David Esco Welch P.O. Box E-25702 San Quentin State Prison San Quentin, CA 94974 I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed on June 24, 2002. PSH Wesléy’A. Van Winkle Page -665-
