Capital Petitioner's Claim that Attorney Failed to Investigate and Proffer Mitigating Evidence Rejected

Wackerly v. Workman, ___ F.3d ___, 2009 WL 2940045 (10th Cir. 2009).
Upholding the death sentence for a typical, impersonal, rural Oklahoma murder, the 10th holds that in spite of counsel’s failure to investigate and present certain mitigating evidence during death penalty phase of state trial, there was no “reasonable probability” that the evidence would have effected the outcome by changing the position of at least one juror (Okla. requires a unanimous death verdict).

The state’s case regarding guilt and the two aggravators–crime committed in a manner to avoid detection and the defendant posing a continuing threat–was particularly strong, while the mitigating evidence not presented was particularly weak. Evidence of petitioner’s substance abuse problems was double-edged–a jury could have faulted him for his failure to effectively address the problem, and could have used the evidence against him, especially in this case where the jury had not already heard of a substance abuse problem earlier in the case. Plus, he did not allege that drugs clouded his judgment at the time of the crime. Evidence of his psychological problems where he experiences mood swings from happy to rage and has trouble with controlling impulses was likewise double-edged. A jury might conclude he presents a continuing threat. A notation in file made a decade earlier by a doctor treating him for venereal warts that he might be “semi-retarded,” as well as other various medical records potentially relevant to brain functioning, were undercut by his current expert who tested him as functioning at an above average intelligence. Other evidence not presented was merely cumulative to evidence already presented.