The Eighth Circuit's decision in Simmons v. Luebbers is the week's lone hot listed case.  The decision in Simmons earns the distinction for its demonstration of the potential pitfalls of certain types of mitigation.  The panel in the end grants relief concluding that trial counsel failure to investigate and present even the bare bone basics of mitigation, such as evidence of a trouble childhood, constitutes ineffective assistance of counsel.

Two other cases are also of note this week althoug neither are covered at great length.  The Fourth Circuit in  Kasi v. Angelone has denied relief for yet another death row inmate who claimed to be held in contravention of an international treaty, this time an Extradition with a American ally in the war on terror. The other notable case is in the arena of civil rights, the Ninth Circuit in  Watson v. County of Riverside has held that for purposes of § 1988 a party may be considered prevailing if they win a preliminary injunction even if no other relief sought in the lawsuit is granted.

Finally, just a quick note to report on one of my favorite non-profits, as well as a favorite of many others on the list, the Engaged Zen Foundation.  Kobutsu Malone reports that as of yesterday he's down to about $50.00 and that the bills are (as usual)  mounting.  EZF is a buddhist human rights resource for American prisoners, with a special emphasis for those on death row..  EZF, like many others organizations that work for the public good,  runs from day to day on dedication and commitment, and every once in a while,  it needs a real infusion of money.  If you have a chance moment to stop at the EZF web site http://www.engaged-zen.org/.

Execution Information
Since the last edition the following have been executed:

August
  20   Gary Etheridge           Texas

August
     23   Anthony Green            South Carolina
     28   Toronto Patterson        Texas---juvenile

September
     10   Tony Walker             Texas
     13   Michael Passaro        South Carolina----volunteer
     17   Jessie Patrick             Texas
     18   Ronald Shamburger   Texas
     24   Rex Mays                  Texas
     25   Robert Buell              Ohio
     25   Calvin King                Texas
 

Next, Simmons contends that he received ineffective assistance of counsel during the penalty phase of the McClendon trial because his attorneys did not introduce available mental health information or mitigating evidence in an attempt to persuade the jury to spare his life.

As outlined above, four mental health professionals completed evaluations of Simmons's mental health status prior to the penalty phase. Only one of these mental health professionals concluded that Simmons was incompetent. However, the evaluations uncovered character and background issues that his attorneys could have presented to the jury as mitigating evidence during the penalty phase.

For example, after Dr. Daniel examined Simmons in 1990, he reported that Simmons was raised in poverty and that his mother was extremely religious and very strict. When Simmons was a child,  [*14]  he ran away from home and was assaulted at a bus terminal in Chicago. Although he refused to discuss the assault with his parents, he appeared to have been beaten, and professed that he would never "let anyone hurt him again." Simmons refused to discuss this episode during his psychological evaluations.

Simmons was also examined by Dr. Shopper in connection with the postconviction proceedings. Dr. Shopper stated:

[A] significant event about which too little is known, is when [Simmons] stole $ 125.00 from his parents, [and] took a bus to Chicago where he was apparently robbed and beaten up in a bathroom. . . . Characteristically, he avoided talking about his three days there and instead created a benign cover story which manifestly fails to explain either his motivation or the events of that three day period. Although he refused to talk about it, it was noted that his face looked beaten up, he had a split lip and told either his mother or sister, ""I'll never let anyone hurt me again." By all accounts he was traumatized . . . . [Simmons's parents] did not investigate the matter any further . . . despite their having noticed a rather marked change in his behavior and  [*15]  his aggressivity.

. . .

The most likely assumption is that [Simmons] was homosexually victimized in addition to having his money stolen. If only he were robbed and beaten up there would be far less shame about his victimization and a much greater tendency to tell his parents . . . what had happened. It may well be that [Simmons's] frequent and seemingly endless provocations . . . may be connected to [his] traumatization at age twelve.

. . .

It may also help us understand his inappropriate behavior with several women. . . . The homosexual rape of a young teenager, when untreated and unrecognized, may cause serious psychological problems in adult life and may have a strong impact on determining psychological defensive structures and configurations. All things being equal, the effect of a homosexual rape in a male is even more serious psychologically than a comparable heterosexual rape in a woman of a same age.

June 30, 1999 Report of Moisy Shopper, at 3-4, Simmons v. State, No. 881-00036, slip op. at 38 (Mo. Cir. Ct. Aug. 9, 1995).

In addition, in 1994, Simmons's attorneys possessed the first report of Dr. Peterson. In that report, Dr. Peterson disclosed that  [*16]  Simmons's parents' marriage was turbulent and permeated by frequent verbal and physical fights in front of Simmons and his siblings. When Simmons was eleven, he unsuccessfully tried to intervene in a physical confrontation between his father and mother. Further, during Simmons's childhood, he was repeatedly spanked by his mother with rulers, straps, and belts as part of her effort to discipline him. This often left welts and bruises on Simmons's body. Although he was toilet trained, he frequently wet himself when his mother beat him and also when he feared that he was about to be beaten. He was routinely beaten by his mother until he was 17 years of age.

The Missouri Supreme Court rejected Simmons's contention that his attorneys were ineffective for failing to introduce this evidence during the penalty phase of the McClendon trial. See Simmons II, 955 S.W.2d at 775. It concluded that Simmons's attorneys could not be blamed for failing to introduce Dr. Peterson's report because certain portions would have been damaging to Simmons. Specifically, Dr. Peterson noted that Simmons displayed "anger at women," that he linked statements of "love with precipitous physical aggression,  [*17]  " and that "his own control over the switch from affection to physical violence after rejection or criticism was virtually non-existent." Id. The Missouri Supreme Court concluded that Dr. Peterson's testimony would likely have reinforced the state's portrayal of Simmons as a predator who acted violently towards women. Id.

In our view, the Missouri Supreme Court's decision is deficient. The jury was already aware of Simmons's anger towards women. Peterson's report would have introduced the possibility that Simmons's inability to control his violent behavior was caused by childhood trauma and abuse. This information could have been used in his favor at the penalty stage. Instead, the jury was allowed to conclude that Simmons's violent behavior was simply the result of his wicked and aggressive nature.

Because Dr. Peterson's report could have been used to bolster the state's position, however, we cannot say that the Missouri Supreme Court's decision was an unreasonable application of the Strickland standard. See Strickland, 466 U.S. at 687 (noting that a court must find an attorney's performance was deficient and that the deficient performance prejudiced  [*18]  the defense). The Missouri Supreme Court properly noted that Dr. Peterson's report contained potentially harmful information about Simmons's anger towards women. It was therefore reasonable for Simmons's attorneys to make a strategic decision to refrain from introducing this evidence out of fear that it may contribute to the jury's perception of Simmons as an individual incapable of controlling his violent behavior. See Graham v. Dormire, 212 F.3d 437, 440 (8th Cir. 2000) (noting that reasonable trial strategy does not constitute ineffective assistance of counsel).

Other evidence about Simmons's background was available however, and we do not agree with the Missouri Supreme Court's decision to reject Simmons contention that his attorneys acted ineffectively when they refused to introduce any evidence of his background. At Simmons's second trial, his attorneys could have introduced evidence that: (1) he was raised in a very strict home environment; (2) his father had a drinking problem and would beat Simmons's mother in front of him; (3) until he was 17 years of age, he was beaten by his mother so severely that he was left with welts and bruises; (4) he was so  [*19]  scared of being beaten that he would urinate on himself prior to the beatings; (5) he ran away from home at age 12 or 13 and was assaulted, and possibly raped, in Chicago; (6) he grew up in an impoverished neighborhood frequented by street violence; and (7) his IQ was 83. Instead, Simmons's attorneys introduced only one witness during the penalty phase: Simmons's mother. Instead of discussing Simmons's traumatic childhood, Simmons's mother stated that she loved her son and would draw value from a continued relationship with him.

The Missouri Supreme Court rejected Simmons's contention that it was unreasonable for his attorneys not to introduce this background evidence. In support of its decision, the court noted that Simmons's attorneys could have introduced evidence of Simmons's childhood beatings, his father's alcoholism, his parents violent relationship, and his childhood assault in Chicago. See Simmons II, 955 S.W.2d at 776. However, the Missouri Supreme Court reasoned that Simmons's attorneys' decision not to introduce this evidence during the penalty phase of the McClendon trial constituted "clearly sound trial strategy":

During the penalty phase of  [*20]  Simmons's first murder trial, defense counsel had, in fact, placed much of this [background] information before the jury. That jury, however, decided that the information did not mitigate the aggravating circumstances and sentenced Simmons to death. Considering that the strategy had once failed, and that calling Simmons' relatives to testify about his upbringing would inevitably highlight the fact that his brother had endured the same upbringing yet had become a successful doctor, we agree [that] . . . the penalty phase course of action was . . . sound trial strategy.

Simmons II, 955 S.W.2d at 776.

We believe that the Missouri Supreme Court's resolution of this issue was based on an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). It eludes us how the Missouri Supreme Court could have concluded that evidence of Simmons's traumatic childhood was introduced during the penalty phase Simmons's first murder trial. n3 Our independent review of the record leads us to conclude that the Missouri Supreme Court's conclusions regarding the evidence that was presented  [*21]  during the penalty phase of that trial are completely inaccurate. During the penalty phase of Simmons's first murder trial, his attorneys presented only two witnesses to testify. Neither of these witnesses testified about the beatings suffered by Simmons as a child, his fear of those beatings, his father's alcoholism, his parents violent relationship, or his victimization in Chicago. In fact, both witnesses testified that Simmons's mother was an upstanding person.

The first witness who testified during the penalty phase of Simmons's first murder trial was Ernest White, a member of Simmons's mother's church. White testified that he occasionally spoke with Simmons when Simmons was a teenager. Transcript on Appeal, Volume IV at  [*22]  1321, State v. Simmons, 815 S.W.2d 426 (Mo. 1991) (en banc). White also testified that if Simmons was sentenced to life, he would "see that the prison ministry will see to him and keep him in check." Id. at 1323.

Anita Clay also attended church with Simmons's mother. Clay testified that she had not seen Simmons on a consistent basis since he entered his late teens. Id. at 1328. According to Clay, Simmons was a "smart-alecky" teenager who was "weak" and "followed the crowd." Id. at 1330. Finally, Clay testified that she would help to maintain a relationship between Simmons and his family in the event he was given a life sentence. Id. at 1331.

We have thoroughly reviewed the testimony presented during the penalty phase of Simmons's first murder trial, and have determined that the Missouri Supreme Court erroneously characterized the mitigating evidence presented to the jury during the penalty phase of that trial. Simmons's attorneys failed to present any meaningful mitigating evidence during the first murder trial. Contrary to the Missouri Supreme Court's suggestion, introducing evidence of Simmons's violent, abusive background was not part of a "strategy  [*23]  [that] had once failed." Simmons II, 955 S.W.2d at 776. It was therefore unreasonable for the court to justify Simmons's attorneys' failure to introduce background evidence by speculating that such a strategy would fail again if used again during the McClendon trial.

Moreover, Simmons's attorneys' actions cannot be considered a product of a reasonable trial strategy because there was no justifiable reason to prevent the jury from learning about Simmons's childhood experiences. See U.S. v. Villalpando, 259 F.3d 934, 939 (8th Cir. 2001) (noting that some strategy decisions are so unreasonable that they can support a claim of ineffective assistance of counsel) (citations omitted). By the time Simmons's mother was called to testify, the jury had yet to hear any evidence that was sympathetic to Simmons. Instead, the jury had only heard evidence of his ruthless character. Further, Simmons's attorneys should have been aware that they could not rely on pleas from Simmons's mother in an effort to spare Simmons's life. n4 During the penalty phase of the McClendon murder trial, Simmons's mother testified that she loved her son and would benefit from a continued  [*24]  relationship with him. This testimony was similar to that proffered by Clay during Simmons's first murder trial. n5 Yet, Clay's testimony proved to be ineffective.

Further, we do not agree with the state's argument that Simmons's attorneys made a reasonable strategic decision to ignore evidence of Simmons's background because they wanted to avoid comparisons  [*25]  to Simmons's successful brother. n6 There was no evidence to suggest that Simmons's brother was beaten as consistently or severely as Simmons, nor was there evidence to suggest that Simmons's brother was sexually assaulted during his childhood. Moreover, considering the overwhelming amount of aggravating evidence that had been proffered by the state, we do not believe that comparisons to a successful brother would have made the jury's perception of Simmons any worse. By the time the state was finished with its case, the jury's perception of Simmons could not have been more unpleasant. Mitigating evidence was essential to provide some sort of explanation for Simmons's abhorrent behavior. Despite the availability of such evidence, however, none was presented. Simmons's attorneys' representation was ineffective.

The remaining question then, is whether Simmons was prejudiced by his attorneys' failures. The Missouri Supreme Court did not reach this question because it concluded that Simmons's attorneys' penalty phase actions were part of a sound trial strategy. Our review of the record convinces us "that there is a reasonable probability that, but for counsel's" failure to present evidence of Simmons's background, "the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

Throughout the McClendon trial, the state portrayed Simmons as an individual who responded violently when his advances were not accepted by women. During the penalty phase, Simmons's attorneys could have presented evidence of Simmons's background to demonstrate that his compulsive, violent reactions were the result of an abusive and traumatic childhood. Further, a vivid description of Simmons's poverty stricken childhood, particularly the physical abuse, and the assault in Chicago, may have influenced the jury's assessment of his moral culpability. Cf.Williams v. Taylor, 529 U.S. 362, 397, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000) (noting that graphic description  [*27]  of defendant's childhood, filled with abuse and privation, along with evidence of defendant's limited mental capabilities, might influence jury's assessment of moral culpability). Our confidence in the outcome of the McClendon trial has been undermined by Simmons's attorneys' failure to include the details of Simmons's background during their penalty phase presentation. See Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) (noting that a probability sufficient to undermine confidence in the outcome is sufficient to establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different). In our view, had this evidence been presented, there is a reasonable probability that at least one of the jurors would have voted against the imposition of the death penalty. This would have allowed the trial judge to resolve the ensuing deadlock by sentencing Simmons to a term of life imprisonment. Thus, Simmons has demonstrated that he was prejudiced by his attorneys' ineffective representation, and he is therefore entitled to a new penalty phase trial.

SUPREME COURT

The Court is in summer recess.

See above.

People v. McDermott, 2002 Cal. LEXIS 5236 (CA 08/12/2002) Prospective juror's views regarding death penalty were permissible. Race- and group-neutral basis for exercising peremptory challenge in capital case. Sufficient evidence in addition to co-defendant testimony held to exist.

Dunn v. Cockrell, 2002 U.S. App. LEXIS 16485 (5th Cir 08/15/2002) "Federal Rule of Appellate Procedure 4(a)(5) gives a litigant 30 days to apply for relief from the strict jurisdictional  time requirement for filing a notice of appeal due to a party's excusable neglect. Our cases sensibly refuse to allow a litigant to circumvent this specific rule by invoking Rule 60(b) solely for the purpose of extending the time for appeal." Counsel filed his appeal out of time and Rule 60(b), therefore, can not save him.

Lockett v. Oklahoma, 2002 Okla. Crim. App. LEXIS 35;2002 OK CR 30 (Ok Crim App 08/14/2002) Trial court's  conducting portions of the voir dire outside the presence of defendant upheld. No ineffectiveness for failing to obtain Appellant's consent to this trial strategy and also for failing to marshal and direct the evidence of his mental illness into a coherent defense strategy.   There was no plain error in the prosecutor's comments to the jury, as the prosecutor basically argued to the jury that justice required the death penalty be imposed under the particular facts of this case, not based upon his personal opinion. Appellant's constitutional rights were not violated when statements he made to the state psychologist were used against him to secure the death penalty.

Thompson v. Bell, 2002 Tenn. Crim. App. LEXIS 679 (Tenn Crim App 08/15/2002) Petition for writ of error coram nobis denied as Appellant asserted  "new evidence" of his mental incapacity, an appointment of a conservator by the state due  in order  to "receive medical and psychiatric treatment, including the forcible administration of medications if the conservator finds that such is necessary."

People v. Gutierrez, 2002 Cal. LEXIS 5239 (CA 08/15/2002) On direct appeal relief denied on claims most notably relating to: (A) allegations of racial bias in the the use of peremptory challenges; (B) admissions of statements made in his son's juvenile court proceedings; and (C) lying in wait aggravator properly admitted.

Mason v. State, No. 37964 (Nev. 08/09/2002) State law requires the prosecution to provide notice of all evidence it intends to introduce at a capital penalty hearing. The district court therefore erred in admitting evidence without determining whether the State had good cause for not providing notice of it earlier. However, the error did not prejudice Mason.

Hernandez v. State, No. 36859 (Nev. 08/02/2002) No error where: jurors bought gifts for the victim's family and kept it in the jury room with them during deliberations; as to the impossibility of the kidnapping charge as the "victim" was the defendant's own daughter; improper prosecutorial comments; juror instructions and limiting the opening brief to 124 pages.

DELAYED COVERAGE CASES
Hansen v. Johnson, 2002 U.S. Dist. LEXIS 14717 (ND Miss 7/15/2002) Relief denied as federal courts lack jurisdiction to stay executions under Section 1983. "The Plaintiffs' allegations include: (1) idleness and isolation; (2) deprivation of basic sanitation and personal hygiene; (3) lack of adequate shelter from extreme heat, cold, rain, and vermin; (4) sleep deprivation; (5) denial of access to medical, mental health and dental care; (6) improper treatment of severely mentally ill inmates; and (7) denial of a functional administrative remedy program. In their motion for temporary restraining order and preliminary injunction, the Plaintiffs argue that Hansen's impending execution must be postponed because he is a material and irreplaceable witness in this action, and his execution will strip the remaining Plaintiffs of their right to present his testimony in support of their claims."

Clemons v. Luebbers, 2002 U.S. Dist. LEXIS 14444 (ED Mo 8/1/2002)  Relief granted as "six persons were unconstitutionally excluded from serving on the jury that sentenced him to death. Although these six venirepersons expressed reservations about imposing the death penalty, they were--under the standards established by the United States Supreme Court--actually qualified to serve on the jury."
 

OTHER  NOTABLE  CASES
Watson v. County of Riverside, 2002 U.S. App. LEXIS 16693 (9th Cir 8/20/2002) A "plaintiff who succeeds in obtaining a preliminary injunction can be deemed a "prevailing party" for purposes of 42 U.S.C. § 1988, even though he did not recover other relief sought in the lawsuit."

State v. Standard, 2002 S.C. LEXIS 138 (S.C. 08/12/2002) LWOP for burglary as the "second strike and you're out" crime is permissible even where the first strike was committed at 15 and the second strike at 20.

United States v. Haynes,   No. 00-5079 (6th Cir 08/16/2002) Exigent circumstances did not support search of Appellant's vehicle.  Likewise "the Government failed to demonstrate by clear and positive testimony that Haynes consented to the second search and that, even if he did, that consent did not vitiate or remove the taint of the first bad search."

Dotson v. Wilkinson, 2002 U.S. App. LEXIS 16153 (6th Cir 8/12/2002 )The district court erred in holding that Dotson's challenge to his parole eligibility was not cognizable under § 1983.

Flanders v. Graves, No. 01-3413SI  (8th Cir 08/16/02) A claim of actual innocence does not automatically toll the one-year statute of limitations for filing of a habeas petition

Nowaczyk v. Warden, New Hampshire State Prison (1st Cir 08/14/2002) District court abused its discretion when it failed to hold Petitioner's petition in abeyance pending exhaustion & where petitioner fully exhausted his claims prior to filing a motion to reconsider.

FOCUS

The Focus section will return the first week in September with that month offering a  Supreme Court preview, another visit to international law & an examination of clemency, not necessarily in that order.

NEW VOICES: Fox Says Human Rights is a Key Issue for Mexico
    Mexican President Vincente Fox recently discussed his decision to cancel a late August visit to Texas after the state's execution of a Mexican citizen. (See below) Fox noted:
When you have commitments, when you believe in values, you live by them. Human rights is a key issue for this government. Precisely because in the past, and with past governments, there was no respect for human rights. . . . We've been promoting the respect for human rights in Mexico and out of Mexico. To be coherent, we did have to take the position we took.
    The canceled visit would have taken Fox to four Texas cities and to Crawford, TX, where he had planned to meet with President Bush. (Houston Chronicle, August 21, 2002). See also, Foreign Nationals.

$ Illinois Short of Death Penalty Funds
    Illinois's Capital Litigation Trust Fund, created by Governor George Ryan in 1999 to help ensure competent handling of death penalty cases, ran out of money to pay defense lawyers at the end of the last fiscal year. This fiscal shortage has left counties throughout the state struggling to meet the high cost of death penalty cases. The Trust Fund money provides resources for necessities such as DNA testing, mental and physical evaluations, and investigators. The state Appellate Defender's Office noted that the unpaid bills could jeopardize cases and lead to attorneys refusing work on capital cases. (The Munster Times, August 19, 2002). See also, Costs.

Juvenile Death Penalty: Louisiana and Texas
    Louisiana prosecutors are seeking a death sentence against Lawrence Jacobs, a black juvenile offender who was 16 at the time of his alleged crime. Louisiana is second only to Alabama in the number of 16-year-old juvenile offenders sent to death row, and each of these defendants has been black.
     The scheduled execution of Texas juvenile offender Toronto Patterson would mark the third time in four months that Texas has executed a black male who was sentenced to die for crimes committed as a juvenile. Since May, Texas has executed two juvenile offenders who were 17 at the time of their crimes, Napoleon Beazley and T.J. Jones. Earlier this month, former first lady Rosalynn Carter called for a national moratorium on executions and an end to the execution of juvenile offenders. (See below.) (Action Alert by the Louisiana Crisis Assistance Centre and Atlanta Journal-Constitution, August 13, 2002). See also, Juveniles and the Death Penalty.

NEW RESOURCE: "Dignity Denied: The Experience of Murder Victims' Family Members Who Oppose the Death Penalty"
    A new report released by Murder Victims' Families for Reconciliation provides an account of the experiences of murder victims' family members who oppose capital punishment and steps that can be taken to protect these individuals from discrimination based on this opposition. "Dignity Denied" challenges lawmakers, the federal government's Office of Victims of Crime, and leaders within the victims' services community to address past and current discrimination and commit to equitable treatment of survivors of homicide victims. Specifically, the report offers model legislation and recommends that victims' rights laws be amended to ban unequal treatment based upon a victim's position on the death penalty. It also states that victims' services should be administered independently, not as part of the prosecutor's office, and that leaders in the victims' services community should develop protocols for serving victims' families who oppose the death penalty. Read the report and the Press Release. See also, New Voices.
 

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CITATION
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Capital Defense Weekly, Volume V, Issue  30, http://capitaldefenseweekly.com/archives/020819.htm

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