Capital Habeas Petitioner's Claims of Improper Victim Impact Evidence, IAC Rejected
Young v. Sirmons, ___ F.3d ___, 2008 WL 5220520 (10th Cir. 2008)
Death penalty affirmance out of Oklahoma. Plaintiff challenged (1) admission of victim impact evidence: the COA held that the Oklahoma Court of Criminal Appeal’s determination that this evidence was not unduly prejudicial (including testimony that the victims’ aunt died of a heart attack after learning of the murders) was not contrary to nor an unreasonable application of Sup. Ct. precedent in Payne; and (2) counsel’s effectiveness during the penalty phase.
The COA agrees with the federal district court that while counsel was incompetent in failing to investigate and present mitigating family and friends evidence and expert psychological evidence at the punishment phase, there was no prejudice. First, the COA was not willing to say that Plaintiff could not establish prejudice because he did not want counsel to introduce mitigating evidence through family and friends, as in Schriro. Here, the COA could not say what Plaintiff’s position in that respect would have been if counsel had properly investigated and introduced mitigating expert psychological evidence. Second, however, there was not such malfeasance on the part of counsel as to support a presumption of prejudice. Third, after recounting significant and compelling mitigating evidence (submitted by affidavit to the habeas court) that was never introduced at trial, the COA finds no prejudice because in balancing that against the guilt phase evidence that supported the aggravators and the state’s submission of what additional rebuttal aggravation evidence it would have presented, P failed to show that a reasonable sentencer would have found that the balance would not have warranted death.
Judge Henry dissents, and would remand for evidentiary hearing on the prejudice prong of Plaintiff’s IAC claim. Plaintiff’s mitigating evidence and the state’s rebuttal were never presented, outside of affidavits and summaries respectively, to either state or federal courts. Judge Henry does not consider the existing factual record to include the state’s rebuttal summaries. Thus an evidentiary hearing is required to establish whether counsel’s failure to present mitigating evidence would have been overcome by the state’s rebuttal, therefore resulting in Plaintiff’s failing to establish prejudice.
Death penalty affirmance out of Oklahoma. Plaintiff challenged (1) admission of victim impact evidence: the COA held that the Oklahoma Court of Criminal Appeal’s determination that this evidence was not unduly prejudicial (including testimony that the victims’ aunt died of a heart attack after learning of the murders) was not contrary to nor an unreasonable application of Sup. Ct. precedent in Payne; and (2) counsel’s effectiveness during the penalty phase.
The COA agrees with the federal district court that while counsel was incompetent in failing to investigate and present mitigating family and friends evidence and expert psychological evidence at the punishment phase, there was no prejudice. First, the COA was not willing to say that Plaintiff could not establish prejudice because he did not want counsel to introduce mitigating evidence through family and friends, as in Schriro. Here, the COA could not say what Plaintiff’s position in that respect would have been if counsel had properly investigated and introduced mitigating expert psychological evidence. Second, however, there was not such malfeasance on the part of counsel as to support a presumption of prejudice. Third, after recounting significant and compelling mitigating evidence (submitted by affidavit to the habeas court) that was never introduced at trial, the COA finds no prejudice because in balancing that against the guilt phase evidence that supported the aggravators and the state’s submission of what additional rebuttal aggravation evidence it would have presented, P failed to show that a reasonable sentencer would have found that the balance would not have warranted death.
Judge Henry dissents, and would remand for evidentiary hearing on the prejudice prong of Plaintiff’s IAC claim. Plaintiff’s mitigating evidence and the state’s rebuttal were never presented, outside of affidavits and summaries respectively, to either state or federal courts. Judge Henry does not consider the existing factual record to include the state’s rebuttal summaries. Thus an evidentiary hearing is required to establish whether counsel’s failure to present mitigating evidence would have been overcome by the state’s rebuttal, therefore resulting in Plaintiff’s failing to establish prejudice.
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