10th Remands for Evidentiary Hearing for Capital Habeas Petitioner
U.S. v. Barrett, 2015 WL 4926800 (8/19/15) (Okl.) (Published) - After the state failed to get a death penalty in state court, federal Oklahoma prosecutors took up the task and managed to get the go-ahead from a jury to kill Mr. Barrett. But the 10th now, at least temporarily, puts a damper proceedings remanding for an evidentiary hearing on ineffective assistance for failing to present mitigating evidence. Counsel did not present testimony in any significant detail regarding Mr. Barrett's mental health issues or troubled background. Counsel did little investigation in those regards. They consulted a psychologist only about a continuing-threat, risk assessment They didn't even ask for help from available mitigating services or ask the family about mental health issues - a hurried 5-minute, pre-testimony discussion was it. If they saw no red flags, the 10th says, that was because they never asked the right questions. Mr. Barrett's initial attorneys told counsel they should investigate mental health issues. Available records showed Mr. Barrett was delayed as an infant, struggled in school, attempted suicide, was committed to a hospital for mental health issues, and years later spent 3 days in a hospital after he complained he was "losing his mind." He had been diagnosed with substance abuse, organic affective disorder, and paranoia, his family had a history of depression and mental illness and a psychologist said there was a need to look into organic brain damage. The 10th rejects the government's excuses for counsel's neglect. First, Mr. Barrett never gave an unequivocal command to refrain from investigating or presenting his background and mental health history. At worst he was ambivalent on the matter. At times, he deferred to counsel's judgment and cooperated. Second, counsel couldn't advise him properly on the wisdom of avoiding the topic because they were uninformed. The 10th finds enough evidence of prejudice to warrant an evidentiary hearing. There was a long history of family alcoholism, abuse, and mental health problems. Mr. Barrett had a largely absent father, who, when he showed up, drank and fought with his mom and others and punched him. His mom physically and emotionally abused him and drank constantly. All this increased the risk for mental disorders and chemical dependency. Besides the evidence in the records described above, Mr. Barrett suffered head trauma and used drugs, alcohol and tobacco beginning at age 11, Psychs determined his ability to function was significantly impaired, he was- bipolar and had PTSD and his history suggested he had organic brain damage significantly impairing his executive function. All these problems would be exacerbated by stressful situations, such as officers raiding his home. The 10th notes mental impairments, especially brain damage, garner the most sympathy from jurors. The government has evidence calling in question Mr. Barrett's mental health claims and could stress that any mental health problems made Mr. Barrett more dangerous. But the 10th feels like all that should be sorted out in an evidentiary hearing on remand. The Oklahoma death machine is stalled for now.
Mr. Barrett was prosecuted for shooting and killing a state trooper during a police raid on Mr. Barrett's home, which contained a significant amount of drug stuff. Mr. Barrett defended on the grounds that he didn't know it was the police who were attacking him. What happened at the 2 state trials played a significant role in the 10th's rejection of ineffective assistance claims regarding the trial. The first trial ended in a hung jury. The second trial resulted in an acquittal of discharging a firearm with the intent to kill and convictions of lesser offenses. The convictions lead to a mere 30-year prison term. Mr. Barrett was convicted in federal court of (1) causing death to further a drug-trafficking offense, § 924(c)(1)(A) & (j); (2) causing death while using a firearm to further a crime of violence, § 924(c); and (3) intentionally killing the trooper during a federal drug offense, while the trooper was engaged in official duties, 21 U.S.C. § 848(e)(1)(B). The jury recommended life for the first two and death for the third. Mr. Barrett contended his counsel should have chosen a different police-tactic expert to establish the raid was so ill-conceived it prevented Mr. Barrett from knowing it was law enforcement officers who were attacking him. Counsel chose to use an expert who had testified for the state in the state trials. The expert, who was hostile to the defense, to Mr. Barrett's detriment, changed his testimony from what he testified to in state court. The 10th finds choosing the defense expert was a quintessential trial strategy that was reasonable because that expert's testimony helped to get an acquittal in state court. In state court, his testimony was a "debacle" for the state. It was reasonable for counsel to believe the expert's testimony, "a known commodity," would again devastate the government's case. Even though funding was approved to present a different, more defense-friendly expert, he might not have stood up to cross. Similarly, the 10th says, it was okay to adopt the same crime-scene reconstruction strategy as Mr. Barrett adopted in state court: cross the state's expert and not call a defense expert. It was reasonable to conclude the same strategy would work this time as well, even though counsel never consulted an expert to help with cross and never read the transcript of the state's expert's second trial testimony. The 10th concedes that consultation with an expert for cross-preparation or calling a rebuttal expert "may have been a better choice" But it could not say counsel's different choice was deficient.
The 10th acknowledges that perhaps counsel should have sought a self-defense instruction which may have been warranted, but finds no prejudice. The 10th reasons: the jury did find beyond a reasonable doubt that a reasonable person would know the person he killed was a law-enforcement officer; so it was "exceedingly unlikely" the jury could have had a reasonable doubt he needed to use deadly force to defend himself; he had "no reason to believe" the officers came to his home to kill him. The 10th also rules Mr. Barrett did not show a mental health expert could have testified he was incapable of forming the necessary intent to commit the crimes. So no prejudice for not calling a mental health expert in the guilt phase. And § 924(c) did not require Mr. Barrett to be manufacturing or distributing drugs at the time of the shooting, so counsel was not deficient for failing to request an instruction to that effect, the 10th holds. Although the 10th basically admits counsel should have requested and received a drug-addicted witness instruction, that deficiency was harmless, given the general witness-credibility instruction and counsel's addiction cross on that matter of the 7 drug-addicted witnesses.
The 10th holds that appellate counsel was not deficient for failing to raise as an issue the trial court's refusal to instruct on lesser-included offenses. The first two charges are like felony murder. So they only required the intent required to commit the underlying felony. So neither second-degree murder nor voluntary manslaughter with an entirely different mens rea requirement could be a lesser-included offense And there is no federal voluntary-manslaughter offense whose elements are a subset of § 848(e)(1)(B). 18 U.S.C. § 1112(b) won't do because it requires the offense occur within special maritime or territorial jurisdiction of the U.S., which was not the case here. Beck v. Alabama requires the giving of a lesser-included offense when it's factually and legally warranted, but it doesn't require making up a lesser-included offense that isn't already there.
Mr. Barrett was prosecuted for shooting and killing a state trooper during a police raid on Mr. Barrett's home, which contained a significant amount of drug stuff. Mr. Barrett defended on the grounds that he didn't know it was the police who were attacking him. What happened at the 2 state trials played a significant role in the 10th's rejection of ineffective assistance claims regarding the trial. The first trial ended in a hung jury. The second trial resulted in an acquittal of discharging a firearm with the intent to kill and convictions of lesser offenses. The convictions lead to a mere 30-year prison term. Mr. Barrett was convicted in federal court of (1) causing death to further a drug-trafficking offense, § 924(c)(1)(A) & (j); (2) causing death while using a firearm to further a crime of violence, § 924(c); and (3) intentionally killing the trooper during a federal drug offense, while the trooper was engaged in official duties, 21 U.S.C. § 848(e)(1)(B). The jury recommended life for the first two and death for the third. Mr. Barrett contended his counsel should have chosen a different police-tactic expert to establish the raid was so ill-conceived it prevented Mr. Barrett from knowing it was law enforcement officers who were attacking him. Counsel chose to use an expert who had testified for the state in the state trials. The expert, who was hostile to the defense, to Mr. Barrett's detriment, changed his testimony from what he testified to in state court. The 10th finds choosing the defense expert was a quintessential trial strategy that was reasonable because that expert's testimony helped to get an acquittal in state court. In state court, his testimony was a "debacle" for the state. It was reasonable for counsel to believe the expert's testimony, "a known commodity," would again devastate the government's case. Even though funding was approved to present a different, more defense-friendly expert, he might not have stood up to cross. Similarly, the 10th says, it was okay to adopt the same crime-scene reconstruction strategy as Mr. Barrett adopted in state court: cross the state's expert and not call a defense expert. It was reasonable to conclude the same strategy would work this time as well, even though counsel never consulted an expert to help with cross and never read the transcript of the state's expert's second trial testimony. The 10th concedes that consultation with an expert for cross-preparation or calling a rebuttal expert "may have been a better choice" But it could not say counsel's different choice was deficient.
The 10th acknowledges that perhaps counsel should have sought a self-defense instruction which may have been warranted, but finds no prejudice. The 10th reasons: the jury did find beyond a reasonable doubt that a reasonable person would know the person he killed was a law-enforcement officer; so it was "exceedingly unlikely" the jury could have had a reasonable doubt he needed to use deadly force to defend himself; he had "no reason to believe" the officers came to his home to kill him. The 10th also rules Mr. Barrett did not show a mental health expert could have testified he was incapable of forming the necessary intent to commit the crimes. So no prejudice for not calling a mental health expert in the guilt phase. And § 924(c) did not require Mr. Barrett to be manufacturing or distributing drugs at the time of the shooting, so counsel was not deficient for failing to request an instruction to that effect, the 10th holds. Although the 10th basically admits counsel should have requested and received a drug-addicted witness instruction, that deficiency was harmless, given the general witness-credibility instruction and counsel's addiction cross on that matter of the 7 drug-addicted witnesses.
The 10th holds that appellate counsel was not deficient for failing to raise as an issue the trial court's refusal to instruct on lesser-included offenses. The first two charges are like felony murder. So they only required the intent required to commit the underlying felony. So neither second-degree murder nor voluntary manslaughter with an entirely different mens rea requirement could be a lesser-included offense And there is no federal voluntary-manslaughter offense whose elements are a subset of § 848(e)(1)(B). 18 U.S.C. § 1112(b) won't do because it requires the offense occur within special maritime or territorial jurisdiction of the U.S., which was not the case here. Beck v. Alabama requires the giving of a lesser-included offense when it's factually and legally warranted, but it doesn't require making up a lesser-included offense that isn't already there.
posted by Anonymous at 1:13 PM
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