[Available at http://capitaldefenseweekly.com/archives/070716.htm]
For the period of July 9th to July 16th three wins are noted.
The background of the Sixth Circuit's decision in Abdul
v. Mitchell is familiar, trial counsel's failure to
adequately investigate readily available mitigation. The curious
twist in Haliym
is that the state courts
did not addressed this claim on the merits enabling the panel to apply
de novo review. The ABA standards (2003) are used as the baseline
performance. At trial counsel failed to conduct even the most
interviews with key family members and missed large swaths of readily
available family background information. Further, the panel's majority
holds that despite Haliym's claims of not being abused as a child
counsel should have explored that area of his background.
Counsel likewise failed to employ an expert in this area rather he
chose to rely on
a presentence report. Finally, and perhaps most egregiously, counsel
adequately investigate how Haliym's self-inflicted gun shot wound to
his head impacted his mental functioning.
Since the last edition,Timothy Ring, of
Ring v. Arizona fame, has been resentenced
to life without parole. The Georgia parole board granted Troy Davis 90-day stay of execution on
actual innocence concerns. The Sentencing
Project has released Uneven
Justice: State Rates of Incarceration by Race and Ethnicity that
examines the racial and ethnic
dynamics of incarceration in the U.S concluding African Americans
are incarcerated at nearly 6
times the rate of whites, Hispanics are incarcerated at nearly
double the rate of white and that one in nine African American males
between the 25 and 29 are currently incarcerated. Adam
Liptak in Monday's New York Times looks at a powerful new article
Innocence, which examines the first 200 DNA exonerations and why
they ended up getting convicted. Late, but unconfirmed, word out of
Florida in the
Lightbourne lethal injection challenge is that — for lack
of a better term - the lethal injection
moratorium will continue; the matter was already
scheduled for briefing in the Florida Supreme Court.
The Habeas Assistance and Training Counsel (HAT) and the Administrative Office of the United States Courts (AO) has announced the Twelfth Annual National Federal Habeas Corpus Seminar. The seminar will be held on August 16-19, 2007, at the Doubletree Nashville Hotel in Nashville , Tennessee. CapDefNet has more.
Last week we noted the strange stay of Rolando Ruiz in Texas. Ruiz had a serious execution date set or July 10th when he received a stay from the Fifth Circuit. The order relating to the stay does not give any substantive clues as to the issues on which the stay was granted however it appeared to be a layered claim of ineffective assistance of counsel, as well as an interesting claim relating to inadequate state postconviction counsel, however, that later claim remains unclear. [more here & here].
Looking ahead, the week of July 18 had remarkably few opinions. The only publicly available "win" is that Comm. v. Michael Rainey in which the Pennsylvania Supreme Court orders an evidentiary hearing on claims that trial counsel was ineffective for failing to investigate and present background and mental health mitigation evidence during the penalty phase.
of July 9,
In Favor of Life or
Week of July 9, 2007 -- In Favor of Death
of July 16,
In Favor of Life or
(Advance Sheet Week of July 16, 2007) -- In Favor of Death
from, & Commentary on, this Edition's Cases
Haliym v. Mitchell 2007 U.S. App. LEXIS 16795 (6th Cir 7/13/2007) Trial counsel “failed to discover important mitigating information that was reasonably available and suggested by information already within their possession.” From CapDefNet's Week At A Glance:
On July 13, 2007, the Sixth Circuit (Clay, with Merritt; dissent by Siler) reversed the denial of ‘Abdul Haliym’s habeas petition as to a claim of ineffective assistance of counsel at the sentencing phase. Haliym v. Mitchell, ___ F.3d ___, 2007 WL 2011268 (6th Cir. July 13, 2007). The panel otherwise unanimously affirmed the denial of relief. At the mitigation hearing, three witnesses had been presented. The first was a former employer who testified that Haliym had been a good employee. The second witness was Dr. Kurt Bertschinger who had spent one and one-half hours with Haliym. Dr. Bertschinger relied on a social history supplied by the court psychiatric clinic in making his evaluation. He also referred to prior reports that have prepared in connection with insanity defenses that were abandoned. Dr. Bertschinger opined that Haliym suffered from ASPD, an adjustment disorder with depressed moods, and malingering. He concluded that Haliym did not have a mental disease or defect, in psychiatric terms, and that his intelligence was in the normal range. The final witness was Haliym’s grandmother, who testified that Haliym was in a disturbed state of mind when he came to live with her after losing his parents and a brother over a two-month period. Through judicial questioning after the direct and cross-examination had been competed, the grandmother revealed that Haliym’s father had died from a heroin overdose and Haliym’s mother died from asthma. The brother had been shot to death after providing money to a stranger to purchase a sandwich. Finally, the grandmother noted that Haliym was a good father and, to the best of her knowledge, was happy with his wife. Haliym also provided an unsworn statement in which he claimed to have been raised “by two of the most beautiful parents you could ever meet.” He expressed remorse for the double murder and asked for mercy.
In post-conviction proceedings, Haliym offered the psychological and neuropsychological evaluation of Dr. Jeffrey Smalldon. Dr. Smalldon criticized the materials relied on by Dr. Bertschinger in part because they offered no information about Haliym’s history of physical abuse. In addition, although one of the reports included information about the twenty-five point difference between Haliym’s performance IQ and his verbal IQ, which suggested possible brain impairment, no one assessed Haliym for functional brain impairment. The failure to do so was even more egregious, according to Dr. Smalldon, because Haliym had a prior suicide attempt which involved a self-inflicted bullet wound to Haliym’s left temple from a .38 caliber pistol. Dr. Smalldon ultimately opined that Haliym was “the product of a highly unstable family crucible where violent behavior was part of the norm,” that he had mild to moderate brain impairment, long standing, low-grade depression, a history of alcohol and polysubstance abuse, and a personality disorder with paranoid and antisocial features. Haliym also presented testimony from a mitigation specialist who corroborated and expanded on Haliym’s history of abuse.
Because the state courts had not addressed this claim on the merits, the panel applied de novo review. In finding deficient performance, the panel majority noted the absence of evidence that trial counsel “conducted even the most basic interviews with [Haliym’s] siblings for the purpose of investigating [Haliym’s] family background.” The majority viewed the death of the father from a heroin overdose as putting counsel on notice that further investigation was required. Further, that Haliym had denied abuse “did not excuse counsel from conducting an investigation into this area when other evidence suggested that it was a relevant area of inquiry.” The panel majority also found that to the extent evidence of Haliym’s difficult childhood did come before the sentencing court, trial counsel not only failed to highlight the evidence, but actually presented evidence that was inconsistent with Haliym having suffered abuse throughout his childhood. Given that counsel was on notice that Haliym had shot himself in the left temple, the panel majority concluded that an investigation into whether Haliym suffered a resulting mental defect was in order. Another failing by counsel, in the panel majority’s view, was counsel’s reliance on a presentence report prepared by a court appointed expert despite the availability for funding for an expert of counsel’s choosing. Reinforcing the panel majority’s findings of inadequate performance was the 2003 ABA guidelines, which counsel fell short of in numerous respects. The panel majority then went on the find that Haliym was prejudiced by counsel’s failings.
Judge Siler dissented from the panel’s resolution of this claim. Judge Siler found neither deficient performance nor prejudice.
On July 12, 2007, the Florida Supreme Court reversed the lower court’s denial of Merrit Sims’s motion for post-conviction relief and remanded for a new trial, finding that trial counsel was ineffective in failing to object to the admission of prejudicial evidence. Sims v. State, ___ So.2d ___, 2007 WL 2002477 (Fla. July 12, 2007). Sims was sentenced to death for killing a police officer. The officer had pulled Sims over because he believed Sims was driving a stolen car. (Sims had borrowed the car from his cousin who had reported it stolen when Sims failed to return it as promised.) As Sims was being handcuffed, he struck the officer in the head with his police radio, disarmed the officer, and shot him twice. Sims did not deny shooting the officer but claimed that he had done so in self-defense after the officer had choked Sims, uttered racial epithets and repeatedly threatened to kill Sims. At the time of the shooting, Sims was on parole. The prosecution’s theory was that Sims killed the officer because there were drugs in the car and Sims knew that he would be returned to prison if they were found. The key evidence establishing this alleged motive for the murder was testimony from a detective who worked in the Narcotics K-9 unit. The detective testified that his dog alerted him to the presence of narcotics in the passenger side of the car Sims had been driving, although no drugs were actually found in the car. The detective explained that the dog would alert to the scent of narcotics even after they had been removed from the car. Defense counsel failed to object to this testimony even though there was no evidence presented by the prosecution showing that Sims had ever used or sold drugs. In finding deficient performance, the Florida Supreme Court noted that neither of Sims’s trial attorneys claimed to have had a strategic basis for the lack of objection. Indeed, one attorney admitted that he had believed the canine testimony to be irrelevant given that Sims neither owned the car nor were drugs found in it. In finding prejudice, the Florida Supreme Court pointed out that the State’s case was premised on the asserted motive of avoiding prison and the prosecution in argument repeatedly suggested that the officer had been killed by Sims because Sims knew there were drugs in the car. The only evidence supporting the drug possession theory was the canine-alert testimony, which then opened the door to testimony by Sims’s parole officer about the consequences of being found in possession of narcotics. On this record, the failure of counsel to object to the detective’s testimony undermined confidence in the jury’s verdict.
On July 12, 2007, the Florida Supreme Court reduced Christopher Jones’s sentence to life imprisonment without the possibility of parole after finding that the evidence was insufficient to support the “avoid arrest” aggravator. Jones v. State, ___ So.2d ___, 2007 WL 2002483 (Fla. July 12, 2007). The victim had been killed during a robbery. Under state law, “intent to avoid arrest is not present unless it is demonstrated beyond a reasonable doubt that the dominant or only motive for the murder was the elimination of witnesses.” The mere fact that the victim knew the defendant and, therefore, could identify him, is insufficient in and of itself to prove the aggravator. (Here, although the victim did not know Jones, he did know one of the other participants in the robbery.) In finding the evidence insufficient to support the aggravator, the Florida Supreme Court noted the absence of direct evidence of what occurred immediately before Jones shot the victim. Testimony by one of the other robbers suggested at most that the first shot, which did not hit the victim, was shot “wildly” while Jones struggled with the victim and that the second shot “was fired as Jones was attempting to disengage himself from the victim and flee.” That the victim had a telephone and an automobile did not support an inference that the killing was to avoid apprehension. Having found insufficient evidence to support that aggravator, the Florida Supreme Court then held that a death sentence would not be a proportionate punishment based on the single remaining aggravator – robbery/pecuniary gain. In reaching this conclusion, it noted, among other things, that even with multiple aggravators, the jury only recommended a sentence of death by a vote of seven to five.
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