Capital Habeas Petitioner Gets Evidentiary Hearing on IAC Claim; Other Contentions Rejected
Wilson v. Sirmons, 2008 WL 3166975 (8/8/08) (Published) - Judge McConnell wrote an excellent opinion regarding ineffective assistance ("IA") of counsel in a capital case. But it was not joined in by any other judge. Judge Hartz concurred in the result remanding for an evidentiary hearing on the IA issue and Judge Tymkovich dissented. Judges McConnell and Hartz did agree on the standard of review. They held the review was de novo because the state appellate court denied the claim without considering the post-trial affidavits the petitioner submitted. Oklahoma law precludes an appellate court from considering evidence not presented at trial unless an evidentiary hearing is held in district court and no such hearing was held. Since the state court did not address the merits of the claim the petitioner raised in federal court, which included the affidavits, no deference was owed the state court's decision. The 10th noted the S.Ct. will decide whether this standard of review is correct next term in Bell v. Kelly.
Judge McConnell found the allegations sufficient to establish counsel was deficient with respect to the penalty phase in failing to: (1)give his mental health expert sufficient time before trial [three weeks] to fully develop evidence that the petitioner suffered from schizophrenia; (2) interview any family members, who were reasonably available, to develop evidence that the petitioner had delusions, hallucinations, nightmares and inability to maintain contact with reality; and (3) present the diagnoses that the expert had arrived at, such as bipolar, PTSD, generalized anxiety disorder. These failings allowed the prosecutor's cross-examination to suggest the petitioner was a psychopath. It's important that the defense be able to explain to the jury the difference between abnormal personalities and actual mental disorders for which the jury might have sympathy. For that reason, the petitioner's allegations established prejudice. Judge McConnell's opinion is powerful support for the need for capital counsel to follow ABA guidelines and investigate and present all possible mitigating evidence. Judge Hartz shared the dissent's concern with the perils of putting on mental health evidence and was troubled by the lack of any mention in the affidavits of what the expert told counsel. But he was convinced a remand for a hearing was appropriate in light of the fact that the petitioner need not prove his claim to get a hearing. Judge Hartz did not consider it implausible that IA relief could be established. He also suggested the state could present counter-affidavits that might obviate the need for a hearing.
The 10th unanimously held that: (1) it was okay for the trial court to begin the voir dire by asking prospective jurors their position on the death penalty, refuse to conduct individual sequestered voir dire and conduct a dual jury procedure whereby one jury decided one defendant's guilt and penalty and the other decided the co-defendant's guilt and penalty [one jury was excused when the defense presented evidence prejudicial with respect to his co-defendant]; (2) it was not a violation of due process to introduce a PCR DNA test result without a Daubert hearing [such analysis has been found to be reliable]; (3) it was not error to refuse to give a 2d degree murder instruction [under state law once a dangerous weapon is involved during a robbery, 2d degree murder is not an option]; (4) there was sufficient evidence the victim endured conscious physical suffering [the victim was still alive when he was beat up and before the deadly baseball bat blow was administered], the heinous offense aggravator was not unconstitutionally vague; (5) no Miranda warnings were required during a traffic stop; (6) it was okay to consider the petitioner's conviction for being an accessory after the fact for murder and evidence he supplied the ammunition for that murder; (7) it was okay to admit out-of-court statement that the petitioner was driving a car used in a homicide because it explained why he was stopped and it's not clear the Confrontation applies to capital hearings; (8) it was improper to admit evidence of the victim's childhood, but it did not deny the petitioner a fundamentally fair trial, even though the prosecution's victim advocate was so overcome by the victim impact evidence she broke down in tears and was ordered to leave the courtroom; (9) the post-autopsy photo of the inside of the victim's skull evidence was irrelevant and prejudicial but harmless; (10) the prosecutor acted improperly in misstating that the petitioner was found with money on him, calling the petitioner an animal and unadulterated evil, disparaging defense counsel as creating a smoke screen, asking the jurors to put themselves in the victim's shoes as he left for work never to see his family again, imploring the jury to be the Great Equalizer, and misstating that the petitioner's presence at the robbery was enough to warrant a conviction. But all of the errors did not render the trial fundamentally unfair, although the 10th opined that, if the "Great Equalizer" comment had been made at sentencing, it might have warranted reversal. Ironically, the 10th noted it also might have reversed had counsel put on a stronger mitigation case. The 10th admonished the prosecutors: "We are puzzled why prosecutors take such risks of a reversal when the evidence is so overwhelming." Perhaps because the courts have proven the risk of reversal for misconduct is infinitesimal.
Judge McConnell found the allegations sufficient to establish counsel was deficient with respect to the penalty phase in failing to: (1)give his mental health expert sufficient time before trial [three weeks] to fully develop evidence that the petitioner suffered from schizophrenia; (2) interview any family members, who were reasonably available, to develop evidence that the petitioner had delusions, hallucinations, nightmares and inability to maintain contact with reality; and (3) present the diagnoses that the expert had arrived at, such as bipolar, PTSD, generalized anxiety disorder. These failings allowed the prosecutor's cross-examination to suggest the petitioner was a psychopath. It's important that the defense be able to explain to the jury the difference between abnormal personalities and actual mental disorders for which the jury might have sympathy. For that reason, the petitioner's allegations established prejudice. Judge McConnell's opinion is powerful support for the need for capital counsel to follow ABA guidelines and investigate and present all possible mitigating evidence. Judge Hartz shared the dissent's concern with the perils of putting on mental health evidence and was troubled by the lack of any mention in the affidavits of what the expert told counsel. But he was convinced a remand for a hearing was appropriate in light of the fact that the petitioner need not prove his claim to get a hearing. Judge Hartz did not consider it implausible that IA relief could be established. He also suggested the state could present counter-affidavits that might obviate the need for a hearing.
The 10th unanimously held that: (1) it was okay for the trial court to begin the voir dire by asking prospective jurors their position on the death penalty, refuse to conduct individual sequestered voir dire and conduct a dual jury procedure whereby one jury decided one defendant's guilt and penalty and the other decided the co-defendant's guilt and penalty [one jury was excused when the defense presented evidence prejudicial with respect to his co-defendant]; (2) it was not a violation of due process to introduce a PCR DNA test result without a Daubert hearing [such analysis has been found to be reliable]; (3) it was not error to refuse to give a 2d degree murder instruction [under state law once a dangerous weapon is involved during a robbery, 2d degree murder is not an option]; (4) there was sufficient evidence the victim endured conscious physical suffering [the victim was still alive when he was beat up and before the deadly baseball bat blow was administered], the heinous offense aggravator was not unconstitutionally vague; (5) no Miranda warnings were required during a traffic stop; (6) it was okay to consider the petitioner's conviction for being an accessory after the fact for murder and evidence he supplied the ammunition for that murder; (7) it was okay to admit out-of-court statement that the petitioner was driving a car used in a homicide because it explained why he was stopped and it's not clear the Confrontation applies to capital hearings; (8) it was improper to admit evidence of the victim's childhood, but it did not deny the petitioner a fundamentally fair trial, even though the prosecution's victim advocate was so overcome by the victim impact evidence she broke down in tears and was ordered to leave the courtroom; (9) the post-autopsy photo of the inside of the victim's skull evidence was irrelevant and prejudicial but harmless; (10) the prosecutor acted improperly in misstating that the petitioner was found with money on him, calling the petitioner an animal and unadulterated evil, disparaging defense counsel as creating a smoke screen, asking the jurors to put themselves in the victim's shoes as he left for work never to see his family again, imploring the jury to be the Great Equalizer, and misstating that the petitioner's presence at the robbery was enough to warrant a conviction. But all of the errors did not render the trial fundamentally unfair, although the 10th opined that, if the "Great Equalizer" comment had been made at sentencing, it might have warranted reversal. Ironically, the 10th noted it also might have reversed had counsel put on a stronger mitigation case. The 10th admonished the prosecutors: "We are puzzled why prosecutors take such risks of a reversal when the evidence is so overwhelming." Perhaps because the courts have proven the risk of reversal for misconduct is infinitesimal.
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