A big win in the Tenth Circuit, Glenn Anderson v. Sirmons, No. 04-6397 (10th Cir 2/21/2007), granting a new sentencing hearing. Major kudos to the federal habeas corpus mitigation investigators in this case who appear to have been the difference between life & death as well as what appears to be a serious case of out-of-the-box lawyering. For habeas litigators, WOW, there is a lot there to think about, including a very common sense approach to procedural default and the availability of state post-conviction relief. The quote provided below addresses the broader issue, trial counsel’s failure to develop mitigation. From the grant of relief, my apologies in advance for the l-o-n-g quote:

There is no doubt that the multiple murders in this case were callous and brutal. The district court was also correct in noting that the case against Anderson on the question of guilt was strong, and included information that Anderson had corresponded with his wife about keeping potential witnesses away from the trial or “taking care” of them. In fact, the strength of the prosecution’s case during the guilt phase left no room for the question of residual doubt during the penalty phase. In addition to all of the first stage evidence, the prosecution adduced testimony during the penalty phase that while incarcerated awaiting trial on the murder charges, Anderson had obtained illegal drugs and had been found in possession of a knife. It is similarly true that among the three murders, the jury found the existence of three aggravating circumstances: (1) the murders were especially heinous, atrocious, or cruel; (2) there was a probability Anderson would commit future criminal acts of violence that would constitute a continuing threat to society; and (3) that the murders of Smith and Shepard were committed for the purpose of avoiding or preventing a lawful arrest or prosecution.

Against this backdrop, trial counsel mounted an extraordinarily limited case in mitigation. As noted above, trial counsel adduced the testimony of Anderson’s family and co-workers to support the theory that Anderson was a kind, hard working, normal man who could be of some help to his daughter if his life were spared. Unfortunately, the case in mitigation presented by trial counsel played into the prosecution’s theory that the only explanation for the murders was that Anderson was simply an “evil” man. The prosecution seized on Anderson’s case in mitigation to assert during closing arguments that there was no excuse for Anderson’s conduct because he grew up in a “good family” and was never abused as a child. Thus, relying on the exceedingly limited nature of trial counsel’s case in mitigation, the prosecution was able to argue convincingly to the jury that there was nothing in the case to diminish Anderson’s moral culpability for the murders.

As set out at length above, however, there existed readily available evidence which could have both explained to the jury the reasons Anderson was predisposed to act in concert with Thornburg and Embrey on the night of the murders and demonstrated Anderson was less morally culpable than the average defendant for committing the murders. In particular, Anderson grew up in poverty, the twelfth child of a physically and emotionally abusive mother. Anderson’s mother’s disregard for her marriage and inattention to her children created “dysfunctional patterns in their development, including a pattern of dropping out of school, a pattern of leaving home at an early age, and a pattern of teenage pregnancy and/or marriage before the age of 18.” The jury would have learned that Anderson’s life followed each of these patterns. The evidence developed by habeas counsel demonstrates Anderson suffers from brain damage; is “borderline mentally defective”; and functions below the bottom two percent of the general population. Anderson was only able to complete the eighth grade of school. The most significant damage to Anderson’s brain is in the area of the frontal lobe, the area of the brain that affects reasoning, problem solving, and judgment. Anderson has suffered chronic drug addiction, which addiction began at the age of nine with the use of alcohol, marijuana, and inhalants and ultimately progressed to the use of methamphetamine. The use of amphetamines exacerbates Anderson’s mental deficits and impairments. Anderson has tried to overcome his addiction to methamphetamine, but without the support of his wife those efforts ultimately failed. Despite these serious impairments, Anderson had no history of criminal violence prior to the murders in question. Likewise, his family considered him a loving man, who always cared for his family and children and worked hard to support them.

In Smith, this court noted that this type of evidence “is exactly the sort of evidence that garners the most sympathy from jurors.” 379 F.3d at 942 (citing both empirical evidence and case law). The Supreme Court has similarly noted that evidence of borderline mental retardation and childhood poverty and abuse are highly relevant to the question of moral culpability. Williams, 529 U.S. at 398; see also Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (“[E]vidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems may be less culpable than defendants who have no such excuse.” (quotation omitted)), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002); Wiggins, 539 U.S. at 535 (quoting Penry). Evidence of the type set out above serves to humanize a defendant and explain why an otherwise kind and loving family man can come to participate in a violent, murderous event. See Smith, 379 F.3d at 943. Accordingly, this court cannot overstate the importance of the type of evidence that was available in this case but was never presented to the jury.In this particular case, the absence of this readily available mitigation evidence left the jury with no explanation for the murders other than the prosecution’s assertion Anderson was “evil.” Although the case against Anderson was strong and the murders in this case were horrific, courts have not hesitated to grant relief in similar circumstances where the absence of available mitigation evidence left the jury with a “pitifully incomplete” picture of the defendant. Id. at 944 (discussing Williams and Wiggins). Had the jury been presented a complete picture of Anderson’s background and history, there is a reasonable probability at least one juror would have struck a different balance between the mitigating and aggravating factors.