We cannot affirm, however, the district court's denial of Lewis's claim that defense counsel was ineffective in failing to investigate mitigating evidence of his abusive childhood. n1 In our previous  [*5]  order of remand, we expressed concern about the amount of time that defense counsel spent     more accurately, might not have spent     in preparing for Lewis's punishment phase, and with defense counsel's failure to adduce mitigating evidence of Lewis's abusive childhood. This concern was aggravated by the fact that the lead defense counsel testified at Lewis's sentencing hearing that the defense's investigation of punishment phase issues was incomplete. The district court's findings on remand were not sufficiently focused on whether defense counsel reasonably fulfilled their duty to investigate mitigation in general and Lewis's abusive childhood in particular.

"In the context of a capital sentencing proceeding, defense counsel has the obligation to conduct a 'reasonably substantial, independent investigation' into potential mitigating circumstances." Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002)(citation omitted). "In assessing counsel's performance, we look to such factors as what counsel did to prepare for sentencing, what mitigating evidence he had accumulated, what additional 'leads' he had, and what results he might reasonably have expected from these leads." Id. at 237. The focus of this inquiry is "not whether counsel should have presented a mitigation case," but "whether the investigation supporting counsel's decision not to introduce mitigation evidence . . . was itself reasonable." Wiggins v. Smith, 156 L. Ed. 2d 471, 123 S. Ct. 2527, 2536 (2003)(emphasis in original). n2 A limited investigation into mitigating evidence may be reasonable only if counsel has a basis for believing that further investigation would be counterproductive or fruitless. See id. at 2537 (and cases cited therein).

1. Deficiency of Performance

In its current state, the record does not reveal whether defense counsel conducted an investigation into Lewis's childhood abuse and, if so, whether such investigation was sufficient under the aforementioned standards. As noted, one difficulty with this case is the understandably hazy memories of both defense counsel as to the extent of their investigation. The magistrate judge nevertheless found that counsel did attempt to speak with family members about Lewis's abusive background, but that the family members were "not forthcoming." This finding is based, however, on but one brief passage in the testimony of defense co-counsel, Jan Hemphill: "I don't believe they were [forthcoming] and I don't know if I didn't probe enough or they weren't forthcoming or if I didn't ask the right questions."

This mere modicum of evidence is insufficient to support the district court's conclusion. Counsel was obviously straining to remember what had occurred, and she even qualified her statement by conceding that the lack of response from family members might have been attributable to her failure to ask the right questions. Significantly, defense attorney Hemphill  [*8]  could provide no details about whom she questioned, what questions she asked, and what responses were forthcoming. Additionally, her pardonably vague testimony is contradicted by the specific testimony of petitioner's sisters, Tammy Lewis, Peggy Clemmons, and Arlisa Lewis, each of whom testified at the habeas hearing that, inter alia, they were present at Lewis's trial but that counsel never spoke with any of them.

The State endeavors to support defense counsel's failure to adduce evidence of an abusive childhood by classifying it as a tactical decision. The State argues that defense counsel could have reasonably believed that, if adduced, evidence of severe childhood abuse would be more harmful than helpful under then existing law, because the court's instructions would not give the jury an avenue under which it could use the evidence in mitigation. Nothing in counsel's testimony, however, supports the theory of their decision having been tactical. This likely explains why the district court did not advert to the grounds of tactics or strategy to justify counsel's failure to adduce evidence of Lewis's abusive childhood.

It is axiomatic     particularly since Wiggins  [*9]      that such a decision cannot be credited as calculated tactics or strategy unless it is grounded in sufficient facts, resulting in turn from an investigation that is at least adequate for that purpose. It may well be that here the district court harbored concerns that counsel had not established that they conducted a sufficiently thorough investigation of abuse to be in a position to make a strategic decision not to use the evidence. The district court observed that counsel adduced evidence of child abuse through the testimony of Lewis's grandmother, Lula. Yet, her conclusional testimony contained none of the details provided by Lewis's siblings at the habeas hearing, which could have been truly beneficial. Lula's skeletal testimony concerning the abuse of her grandson was wholly inadequate to present to the jury a true picture of the tortured childhood experienced by Lewis.

We are always reluctant to question a district court's factual finding when it is grounded in the credibility (or lack thereof) of a witness who that court hears and views in person but of whom we see nothing more than a cold record. Nevertheless, reversing such a call under review for clear error (much  [*10]  less de novo) is certainly not unheard of. Indeed, this is one of those rare instances in which we are constrained to reverse the district court's rejection, on credibility grounds, of the testimony of Lewis's siblings at the habeas hearing. A careful reading of their testimony and supporting portions of the record leaves us with the clear belief that a mistake has been made.

First, the testimony of Lewis's sisters is remarkably consistent. Each testified that their (and Lewis's) father beat all of them with extension cords, switches, sticks, or anything else within his reach. They testified further that he regularly made them undress, then whipped them in the area of their genitals, and that this conduct occurred at least every other day. According to Lewis's sisters, all of the children lived in constant fear of their father's rages, particularly when he was unable to get the drugs to which he was addicted.

Each of Lewis's sisters testified that she attended his trial, but added that counsel never asked her to testify. Tammy Lewis testified further that defense counsel did not make an effort to speak with her; and that, despite her indication to counsel that she was willing  [*11]  to testify, counsel never followed up and never called her to the stand.

We must also disagree with the district court's statement that there was no corroborating evidence to support the testimony of these three witnesses. There is abundant record evidence that Lewis's father was a violent drug abuser; that he shot Lewis's mother in the stomach and leg, almost killing her; and that, in the presence of Lewis and the other children, he beat their mother on numerous occasions. Additionally, medical records in evidence show that the children made numerous trips to the hospital emergency rooms for treatment of injuries that were consistent with the described beatings. The record reveals, inter alia, that Lewis had to be hospitalized for cuts on his penis and for an infection he developed when a hypodermic needle was stuck into his foot. And these records also reflect that Lewis's sister, Arlisa, was treated for severe burns on her back and that their mother had suffered a gunshot wound. This record evidence is consistent with the testimony of the sisters, as is the evidence of approximately seven "domestic disturbance" calls to 911 from the Lewis household between 1975 and 1978.  [*12] 

The district court reached its conclusion that defense counsel's performance was reasonable despite the absence of the kind of inquiry and focus required in the Supreme Court's subsequent opinion in Wiggins. We therefore have no choice but to reject that conclusion.
 
2. Prejudice Prong of Strickland.

Likewise flawed is the district court's conclusion that Lewis was not prejudiced by defense counsel's deficient performance. It is obvious to us that the level of abuse to which Lewis was exposed mandates the conclusion that, had this evidence been produced, it is quite likely that it would have affected the sentencing decision of at least one juror. The district court examined the testimony presented by Lewis's family members at the evidentiary hearing and held that such testimony would either be inadmissible or be given little weight under the nexus requirement set forth in Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989). The court based this holding on the time that elapsed between the alleged child abuse and the commission of the crime of conviction, and on the fact Lewis had intervening criminal convictions. n3 Mitigating evidence of childhood  [*13]  abuse, however, was considered in Williams v. Taylor, 529 U.S. 362, 398, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000), and in Wiggins, 123 S. Ct. at 2532, 2542- 43, despite the fact that in each of those cases, the time that elapsed between the instances of abuse and the commission of the crime of conviction were greater than such period in the instant case. Furthermore, the defendant in Williams had many intervening criminal convictions. See Williams v. Taylor, 163 F.3d 860, 867 (4th Cir. 1998), reversed by Williams, 529 U.S. at 399. The district court's conclusion regarding the temporal nexus requirement was therefore erroneous.

CAPITAL CASES (Favorable Disposition)

Hamblin v. Mitchell, 2003 U.S. App. LEXIS 26291  (6th Cir 12/29/2003)(dissent) Counsel was ineffective in failing to investigate.  Note heavy reliance on the 2003 ABA Guidelines.

Pennsylvania v. Brooks, 2003 Pa. LEXIS 2563 (PA 12/30/2003)  Counsel held ineffective where he failed to meet with his client even once prior to trial.

Pennsylvania v. King, 2003 Pa. LEXIS 2564 (PA 12/30/2003) Trial court's recusal upheld on appeal where the court below based its recusal on its desire to expedite the post-conviction proceedings and to explicitly deny the condemned a potential issue in any additional rounds of post-conviction review.

Pennsylvania v. Rush, 2003 Pa. LEXIS 2399 (PA 12/18/2003) Remand ordered of this post-conviction action on the issue of whether trial counsel was ineffective in investigating and presenting evidence relating to mitigating evidence.

Nevada v. Bennett, 2003 Nev. LEXIS 83 (Nev 12/30/2003)  New penalty phase granted where the state hiding various pieces of exculpatory evidence.

Dennis v. Mitchell, 2003 U.S. App. LEXIS 26283 (6th Cir 12/29/2003)  Relief denied on claims that: (1) a juror that sat intentionally misled the trial court as to her status that she was a recent victim of violent crime; (2) that the trial court improperly removed to death hesitant jurors; (3) failure to permit questioning on specific mitigating factors during voir dire; (4)  removal of death hesitant jurors by the prosecution; (5)  Batson; and (6) failure of trial counsel to timely object.

OTHER RESOURCES
The Death Penalty Information Center (Deathpenaltyinfo.org) notes: