The Federal Defenders of New York, Inc.
& Federal Death Penalty Resource Counsel Project
present a complimentary CLE program
Defending a Capital Case: Strategies and Lessons for All Cases
DATE:
TIME:
PLACE:
Monday, March 27, 2017
4:00 – 7:00 p.m.
New York Law School, 185 West Broadway, Room W401, NYC 10013
AGENDA
4:00-4:20
Welcoming remarks
Assignment of Capital Counsel in SDNY & EDNY, Capital Panels, and Training
Presenters: David E. Patton, Esq. & Deirdre von Dornum, Esq.,
Federal Defenders of New York, Inc.
4:20-4:30
Capital Defense Training Opportunities
Presenter:
Tanya Greene, Esq., Training Director
Federal Death Penalty Resource Counsel Project
4:30-5:15
1988-2017:
Presenter:
29 Years of a Federal Death Penalty:
Where We’ve Been and Where We’re Going
Kevin McNally, Esq., Director
Federal Death Penalty Resource Counsel Project
5:15-5:30
Budgeting the Capital Case
Presenter:
Jerry L. Tritz, Esq.
Second Circuit Budgeting Attorney
5:30-7:00
Panel Presentation, Questions & Answers:
 The de facto moratorium on capital prosecutions in SDNY and EDNY
 Current DOJ protocol
 A frontal assault on the FDPA—The Fell litigation
 Dos and Don’ts—first steps
 Assembling a team, acting as a team & team diversity
 Investigating mental health
 The ethics of capital representation—a case study in ineffective counsel
Panel: Jean D. Barrett, Esq., Federal Death Penalty Resource Counsel Project
Anthony L. Ricco, Esq., Federal Death Penalty Resource Counsel Project
David A. Ruhnke, Esq., Federal Death Penalty Resource Counsel Project
The Federal Defenders of New York is an Accredited Provider with the New York State Continuing
Legal Education Board. Attendance at this event will provide a maximum of three credit hours, which
can be applied to the Professional Practice requirement for newly admitted and experienced attorneys.
Defending a Capital Case: Strategies and Lessons for All Cases
Table of Contents
DOJ Protocol …………………..…………………...…....... 5
United States v. Fell ……………………………….…….. 19
Teamwork Tools and Forms.…………………………….. 47
Duncan v. Carpenter …………………………………..… 85
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U.S. Attorneys » Resources » U.S. Attorneys' Manual » Title 9: Criminal
9-10.000 - Capital Crimes
9-10.010
Federal Prosecutions in Which the Death Penalty May be Sought
9-10.020
Relevant Statutory Provisions
9-10.030
Purposes of the Capital Case Review Process
9-10.040
Consultation with the Capital Case Section
9-10.050
Confidentiality of Process
9-10.060
Mandatory Pre-indictment Review
9-10.070
Expedited Decision Submissions
9-10.080
Non-expedited Decision Submissions
9-10.090
Special Findings in Indictments
9-10.100
Consultation with the Family of the Victim
9-10.110
Substantial Federal Interest
9-10.120
Conditional Plea Agreements
9-10.130
Capital Review Committee
9-10.140
Standards for Determination
9-10.150
Post-Decision Actions
9-10.160
Withdrawal of the Notice of Intention to Seek the Death Penalty
9-10.170
Approval Required for Judicial Sentencing
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9-10.180
Reporting Requirements
9-10.190
Forms and Procedures
9-10.200
Exceptions for the Proper Administration of Justice
9-10.010 - Federal Prosecutions in Which the Death Penalty May be
Sought
This Chapter sets forth the policies and procedures for all Federal cases in which a defendant is charged,
or could be charged, with an offense subject to the death penalty. The provisions in this Chapter apply
regardless of whether the United States Attorney or Assistant Attorney General intends to charge the
offense subject to the death penalty or to request authorization to seek the death penalty for such an
offense. The provisions in this Chapter are effective April 7, 2014, and they apply to any current or future
investigations and indicted cases.
[updated April 2014]
9-10.020 - Relevant Statutory Provisions
Federal death penalty procedure is based on the Federal Death Penalty Act of 1994, codified at 18 U.S.C.
§§ 3591 to 3599.
The death penalty procedures introduced by the Anti-Drug Abuse Act of 1988, codified in Title 21, were
repealed on March 6, 2006, when President Bush signed the USA PATRIOT Improvement and
Reauthorization Act of 2005. A district indicting a Title 21 capital offense, see 21 U.S.C. § 848, that
occurred before March 6, 2006, should consult with the Capital Case Section of the Criminal Division
(hereinafter the "Capital Case Section") regarding indictment and procedure.
[updated April 2014]
9-10.030 - Purposes of the Capital Case Review Process
The review of cases under this Chapter culminates in a decision to seek, or not to seek, the death penalty
against an individual defendant. Each such decision must be based upon the facts and law applicable to
the case and be set within a framework of consistent and even-handed national application of Federal
capital sentencing laws. Arbitrary or impermissible factors—such as a defendant's race, ethnicity, or
religion—will not inform any stage of the decision-making process. The overriding goal of the review
process is to allow proper individualized consideration of the appropriate factors relevant to each case.
[updated June 2007]
9-10.040 - Consultation With the Capital Case Section
Prior to seeking an indictment for an offense potentially punishable by death, the United States Attorney
or Assistant Attorney General shall consult with the Capital Case Section. This consultation will help
streamline the process of preparing submissions made pursuant to this Chapter, ensure that charging
documents are crafted in accordance with applicable legal and policy requirements, and help ensure that
applicable deadlines are met. In the event the Attorney General determines the death penalty will be
sought in a particular case, the Capital Case Section can provide valuable litigation advice and support,
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as well as trial assistance.
[updated April 2014]
9-10.050 - Confidentiality of Process
Except as otherwise provided herein (see USAM 9-10.160(8)), the Attorney General will make the final
decision whether to seek the death penalty. The Attorney General will convey the final decision to the
United States Attorney or Assistant Attorney General in a letter directing him or her to seek or not to seek
the death penalty.
The decision-making process preliminary to the Attorney General's final decision is confidential.
Information concerning the deliberative process may only be disclosed within the Department and its
investigative agencies as necessary to assist the review and decisionmaking process. This confidentiality
requirement does not extend to the fact that the case has been submitted for expedited decision pursuant
to USAM 9-10.070, the disclosure of scheduling matters or the level at which the decision is pending
within the Department during the review process. The scope of confidentiality includes, but is not limited
to: (1) the recommendations of the United States Attorney's Office or Department component, the
Attorney General's Review Committee on Capital Cases (hereinafter the "Capital Review Committee"),
the Deputy Attorney General, the Capital Case Section, and any other individual or office involved in
reviewing the case; (2) a request by a United States Attorney or Assistant Attorney General that the
Attorney General authorize withdrawal of a previously filed notice of intent to seek the death penalty; (3) a
request by a United States Attorney or Assistant Attorney General that the Attorney General authorize not
seeking the death penalty pursuant to the terms of a proposed plea agreement; and (4) the views held by
anyone at any level of review within the Department.
In no event may the information identified in this paragraph be disclosed outside the Department and its
investigative agencies without prior approval of the Attorney General. The United States Attorneys and
Assistant Attorneys General may exercise their discretion, however, to place additional limits on the scope
of confidentiality in capital cases prosecuted by their offices.
[updated April 2014]
9-10.060 - Mandatory Pre-indictment Review
Absent extenuating circumstances, prior to seeking an indictment charging a capital-eligible offense, the
United States Attorney or Assistant Attorney General shall submit the case for review pursuant to the
provisions of this Chapter. Extenuating circumstances may include, for example, a need to present
capital-eligible charges to comply with the Speedy Trial Act, to address public safety concerns, or a need
to collect and/or analyze additional information necessary to determine whether to recommend seeking
the death penalty.
In the event that a United States Attorney or Assistant Attorney General determines that extenuating
circumstances exist such that mandatory pre-indictment review is not feasible, or in the event that
extenuating circumstances require the return of an indictment in a case in which a United States Attorney
or Assistant Attorney General submitted the case for preindictment review but the review has not been
completed, the United States Attorney or Assistant Attorney General shall submit, prior to seeking the
indictment, a notice to the Capital Case Section describing the extenuating circumstances that
necessitate the return of the indictment before the pre-indictment review process can be initiated or
completed. In addition, in cases in which the United States Attorney or Assistant Attorney General has not
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submitted the case for pre-indictment review, the notice described in the preceding sentence must provide
an estimated date by which the case will be submitted for capital review. The form for this notice can be
found on the Capital Case Section site on DOJNet. Every 45 days after an initial notice is submitted
pursuant to this paragraph, the United States Attorney or Assistant Attorney General shall submit to the
Capital Case Section an updated notice setting forth (1) the extenuating circumstances that continue to
justify not submitting the case for review, (2) the progress made toward a submission, and (3) the
estimated date by which the case will be submitted for capital review.
In all events, the United States Attorney or Assistant Attorney General must submit a capital-eligible case
for review no fewer than 90 days before the Government is required, by an order of the court, to file a
notice that it intends to seek the death penalty. In the absence of a court-established deadline for the
Attorney General's death penalty decision, the United States Attorney or Assistant Attorney General must
make the submission sufficiently in advance of trial to allow for both the 90-day time period typically
needed for the nonexpedited decision process plus any additional time necessary to ensure that a notice
of intent to seek the death penalty is timely filed under 18 U.S.C. § 3593(a). If a case is not submitted 90
days in advance of a deadline for the Attorney General's decision or 150 days in advance of a scheduled
trial date, the prosecution memorandum shall include an explanation of why the submission is untimely.
[updated April 2014] [cited in USAM 9-10.180]
9-10.070 - Expedited Decision Submissions
A. Many cases will qualify for expedited decision as to whether to seek the death penalty, and can
often be decided pre- indictment. Whether submitted pre-indictment, or post-indictment on account
of extenuating circumstances, cases qualifying for expedited decision include:
(1) cases in which, but for the use of proffer protected evidence, the government's evidence is
insufficient to charge the defendant with a capital-eligible offense;
(2) cases in which the defendant is ineligible for the death penalty because the evidence is clearly
insufficient to establish the requisite intent under 18 U.S.C. § 3591 or an applicable statutory
aggravating factor under 18 U.S.C. § 3592(b)-(d);
(3) cases that involve the extradition of a defendant or crucial witness from a country that, as a
pre-condition to extradition, requires assurances that the death penalty will not be sought for the
defendant or the evidence obtained from the witness will not be used to seek the death penalty;
(4) cases that involve a potential cooperator whose testimony is necessary to prosecute remaining
offenders; and
(5) any other case where the United States Attorney or Assistant Attorney General is able to
recommend the death penalty not be sought without first receiving input from defense counsel.
A copy of the summary form to be used for submission of expedited decision cases can be found at
the Capital Case Section site on DOJNet.
B. The submission for expedited decision cases in categories A(1) through (3) should provide a
description of the relevant facts of the case, the defendant's criminal history, the federal interest in
prosecuting the case, the rationale for why the death penalty should not be sought, and any
applicable deadline for decision. The submission also should describe the basis upon which the
case qualifies for expedited decision. For cases in categories A(1) and (2), the submission should
include a discussion regarding whether expedited decision is appropriate in light of any potentially
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admissible evidence that might be marshaled to establish guilt and/or the existence of a threshold
intent or statutory aggravating factor. All submissions for expedited decision cases in categories
A(1) through (3) should also include the sealed non-decisional information form described in USAM
9-10.080(C). Submissions in these categories will be referred to the Chief of the Capital Case
Section for assessment of whether the case meets the requirements for expedited decision. If the
Chief of the Capital Case Section determines that the case meets those requirements, the case will
be transmitted expeditiously to the Attorney General, through the Deputy Attorney General, for final
decision, without review by the Capital Review Committee. If the Chief of the Capital Case Section
determines that the case does not meet the requirements for expedited decision, then the Chief of
the Capital Case Section will notify the prosecuting United States Attorney's Office or component.
C. Submissions for expedited decision cases in categories A(4) and A(5) should be in the form of the
prosecution memorandum described in USAM 9-10.080(A), and also should include the sealed
non-decisional information form described in USAM 9-10.080(C). Submissions in categories A(4)
and A(5) should be marked as "Expedited Decision" cases and will be reviewed expeditiously by
the Capital Review Committee, which shall make a recommendation whether to seek capital
punishment to the Attorney General, through the Deputy Attorney General, as described in USAM
9-10.130, or defer making a recommendation to allow development of additional evidence.
[updated April 2014] [cited in USAM 9-10.050; 9-10.080; 9-10.120; 9-10.130]
9-10.080 - Non-expedited Decision Submissions
In any case in which the United States Attorney or Assistant Attorney General is contemplating requesting
authorization to seek the death penalty or otherwise believes it would be useful to the decision-making
process to receive a submission from defense counsel, the United States Attorney or Assistant Attorney
General shall give counsel for the defendant a reasonable opportunity to present information for the
consideration of the United States Attorney or Assistant Attorney General which may bear on the decision
whether to seek the death penalty.
After the conclusion of a reasonable period of time, the United States Attorney or Assistant Attorney
General shall submit to the Assistant Attorney General for the Criminal Division through the Capital Case
Section his or her recommendation whether to seek the death penalty, along with the materials described
below. Once a submission has been received, the review process will proceed in accordance withUSAM
9-10.130. The contents of a non-expedited decision submission or an expedited decision submission
under USAM 9-10.070(A)(4) or (5) shall include the following:
A. Prosecution memorandum. This should be sufficiently detailed to fully inform reviewers of the basis
for the United States Attorney's or Assistant Attorney General's recommendation. The prosecution
memorandum should include:
(1) Deadlines. Any deadline established by the Court for the filing of a notice of intent to seek the
death penalty, trial dates, or other time considerations that could affect the timing of the review
process should be noted on the first page of the memorandum.
(2) A narrative delineation of the facts and separate delineation of the supporting evidence. Where
necessary for accuracy, a chart of the evidence by offense and offender should be appended.
(3) Discussion of relevant prosecutorial considerations.
(4) Death penalty analysis. The analysis must identity applicable threshold intent factors under 18
U.S.C. § 3591, applicable statutory aggravating factors under 18 U.S.C. §§ 3592(b)-(d), and
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applicable mitigating factors under 18 U.S.C. § 3592(a). In addition, the United States Attorney or
Assistant Attorney General should include his or her conclusion on whether all the aggravating
factor(s) found to exist sufficiently outweigh all the mitigating factor(s) found to exist to justify a
sentence of death, or in the absence of mitigating factors, whether the aggravating factor(s) alone
are sufficient to justify a sentence of death. The analysis should also include a discussion of the
standards for determination as set forth in USAM 9-10.140.
(5) Background and criminal record of the capital-eligible defendants.
(6) Background and criminal record of the victim.
(7) Victim impact. Views of the victim's family on seeking the death penalty and other victim impact
evidence should be provided.
(8) Discussion of the federal interest in prosecuting the case.
(9) Foreign citizenship. The memorandum should include a discussion on whether the defendant(s)
are citizens of foreign countries, and if so, whether the requirements of the Vienna Convention on
Consular Relations have been satisfied.
(10) Recommendation of the United States Attorney or Assistant Attorney General on whether the
death penalty should be sought.
B. Death-penalty evaluation form. The Department will specify a standardized death penalty
evaluation form, which should be completed by the United States Attorney or Assistant Attorney
General for each capital-eligible offense charged against each defendant.
C. Non-decisional information form. This form should be submitted in a sealed envelope clearly
labeled as containing the non-decisional information.
D. Indictment. Copies of all existing and proposed indictments and superseding indictments should be
attached. As described in USAM 9-10.090, the indictments should include the special findings
necessary for the death penalty to be authorized by statute.
E. Draft notice of intention to seek the death penalty. This document is to be included in the
submission only ifthe United States Attorney or Assistant Attorney General recommends seeking
the death penalty.
F. Materials provided by defense counsel. Any documents or materials provided by defense counsel
to the United States Attorney or Assistant Attorney General in the course of the United States
Attorney's Office's or Department component's death penalty review process should be provided.
These materials should not be solicited or submitted in cases presented pursuant to USAM
9-10.070.
G. Point-of-contact. The name of the assigned attorney in the United States Attorney's Office or
Department component who is responsible for communicating with the Capital Case Section about
the case should be provided.
H. Relevant court decisions. The first page of the memorandum should highlight court orders and
deadlines. The point- of-contact in the United States Attorney's Office or Department component is
under a continuing obligation to update the Capital Case Section about developments or changes
in court scheduling or any other material aspect of the case.
The prosecution memoranda, death penalty evaluation forms, non-decisional information forms and any
other internal memoranda informing the review process and the Attorney General's decision are not
subject to discovery by the defendant or the defendant's attorney. See Fed. R. Crim. P. 16(a)(2).
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[updated April 2014] [cited in USAM 9-10.070]
9-10.090 - Special Findings in Indictments
In cases in which the Attorney General has directed the United States Attorney or Assistant Attorney
General not to seek the death penalty before the return of an indictment charging capital-eligible offenses,
the indictment need not contain allegations of special findings concerning relevant facts and factors
specified in 18 U.S.C. §§ 3591(a)(2) and 3592(b), (c), or (d). For all other charged offenses subject to the
provisions of this Chapter, regardless of whether the United States Attorney or Assistant Attorney General
ultimately recommends that the Attorney General authorize seeking the death penalty for the charged
offense, the indictment shall allege as special findings: (1) that the defendant is over the age of 18; (2) the
existence of the threshold intent factors specified in 18 U.S.C. § 3591(a)(2); and (3) the existence of the
statutory aggravating factors specified in, as relevant, 18 U.S.C. §§ 3592(b), (c), or (d).
The indictment shall allege threshold intent and statutory aggravating factors that meet the criteria for
commencing prosecution as set forth in USAM 9-27.200 and 9-27.220. Prosecuting Assistant United
States Attorneys or Department trial attorneys are encouraged to consult with the Capital Case Section
regarding the inclusion of special findings in the indictment.
[updated April 2014] [cited in USAM 9-10.080]
9-10.100 - Consultation with the Family of the Victim
Unless extenuating circumstances exist, the United States Attorney or Assistant Attorney General should
consult with the family of the victim, ifreasonably available, concerning the decision on whether to seek
the death penalty. The United States Attorney or Assistant Attorney General should include the views of
the victim's family concerning the death penalty in any submission made to the Department. The United
States Attorney or Assistant Attorney General should notify the family of the victim of all final decisions
regarding the death penalty. This consultation should occur in addition to notifying victims of their rights
under 18 U.S.C. § 3771.
[updated April 2014]
9-10.110 - Substantial Federal Interest
When concurrent jurisdiction exists with a State or local government, a Federal indictment for an offense
subject to the death penalty generally should be obtained only when the Federal interest in the
prosecution is more substantial than the interests of the State or local authorities. See Principles of
Federal Prosecution,USAM Chapter 9-27.000; see also Memorandum from the Attorney General dated
August 12, 2013 ("Federal Prosecution Priorities").
[updated April 2014]
9-10.120 - Conditional Plea Agreements
The death penalty may not be sought, and no attorney for the Government may threaten to seek it, solely
for the purpose of obtaining a more desirable negotiating position. Absent the authorization of the
Attorney General, the United States Attorney or Assistant Attorney General may not enter into a binding
plea agreement that precludes the United States from seeking the death penalty with respect to any
defendant falling within the scope of this Chapter.
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The United States Attorney or Assistant Attorney General, however, may agree to submit for the Attorney
General's review and possible approval, a plea agreement relating to a capital-eligible offense or conduct
that could be charged as a capital-eligible offense. At all times, the United States Attorney or Assistant
Attorney General must make clear to all parties that the conditional plea does not represent a binding
agreement, but is conditioned on the authorization of the Attorney General. The United States Attorney or
Assistant Attorney General should not inform the defendant, court, or public of whether he or she
recommends authorization of the plea agreement.
For proposed plea agreements that precede a decision by the Attorney General to seek or not to seek the
death penalty, the United States Attorney or Assistant Attorney General should send a request for
approval to the Assistant Attorney General for the Criminal Division through the Capital Case Section as
early as possible. Absent unavoidable circumstances, the United States Attorney or Assistant Attorney
General must send the request no later than 90 days prior to the date on which the Government would be
required, by an order of the court or by the requirements of 18 U.S.C. § 3593(a), to file a notice that it
intends to seek the death penalty.(Proposed plea agreements that would require withdrawing a previously
filed notice of intent to seek the death penalty should follow the procedures described in USAM 9-10.160).
Unless a potential capital defendant's testimony is necessary to indict the remaining offenders or other
circumstances warrant separate consideration (see USAM 9-10.070), review of the case against a
prospective cooperator should occur simultaneously with the review of the cases against the remaining
offenders who would be indicted for the offenses at issue. In submissions in support of requests for
approval of plea agreements under this section, the prosecution memorandum must include an
explanation of why the plea agreement is an appropriate disposition of the charges, a death penalty
evaluation form for each capital-eligible offense that has been or could be charged against the
prospective cooperator, and a non-decisional information form. The Capital Review Committee will review
requests for authorization to enter into a plea agreement under this subsection and, if a submission from
defense counsel is not included with the submission, may request such a submission and schedule the
case for a Committee conference.
See USAM Chapter 9-16.000 for more information on the topic of pleas and plea agreements.
[updated April 2014]
9-10.130 - Capital Review Committee
In any case in which (1) the United States Attorney or Assistant Attorney General recommends that the
Attorney General authorize seeking the death penalty, or (2) a member of the Capital Review Committee
requests a Committee conference, a Capital Case Section attorney will confer with representatives of the
United States Attorney's Office or Department component to establish a date and time for the Capital
Review Committee to meet with defense counsel and representatives of the United States Attorney's
Office or Department component to consider the case. A request by a Committee member for a
conference removes a case from the "expedited decision" process (see USAM 9-10.070), and the
submitting office may seek an indictment before the review is completed. No final decision to seek the
death penalty shall be made if defense counsel has not been afforded an opportunity to present evidence
and argument in mitigation.
The Capital Review Committee shall review the materials submitted by the United States Attorney or
Assistant Attorney General and any materials submitted by defense counsel. The Capital Review
Committee will consider all information presented to it, including any allegation of individual or systemic
racial bias in the Federal administration of the death penalty. After considering all information submitted to
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it, the Committee shall make a recommendation to the Attorney General through the Deputy Attorney
General.
If the Committee's recommendation differs from that of the United States Attorney or Assistant Attorney
General, the United States Attorney or Assistant Attorney General shall be provided with a copy of the
Committee's recommendation memorandum when it is transmitted to the Deputy Attorney General. The
United States Attorney or Assistant Attorney General may respond to the Committee's analysis in a
memorandum directed to the Deputy Attorney General. The Deputy Attorney General will then make a
recommendation to the Attorney General. The Attorney General will make the final decision whether the
Government should file a notice of intent to seek the death penalty.
[updated April 2011] [cited in USAM 9-10.070; 9-10.080]
9-10.140 - Standards for Determination
The standards governing the determination to be reached in cases under this Chapter include fairness,
national consistency, adherence to statutory requirements, and law-enforcement objectives.
A. Fairness requires all reviewers to evaluate each case on its own merits and on its own terms. As
with all other actions taken in the course of Federal prosecutions, bias for or against an individual
based upon characteristics such as race or ethnic origin play no role in any recommendation or
decision as to whether to seek the death penalty.
B. National consistency requires treating similar cases similarly, when the only material difference is
the location of the crime. Reviewers in each district are understandably most familiar with local
norms or practice in their district and State, but reviewers must also take care to contextualize a
given case within national norms or practice. For this reason, the multi-tier process used to make
determinations in this Chapter is carefully designed to provide reviewers with access to the national
decision-making context, and thereby, to reduce disparities across districts.
C. In determining whether it is appropriate to seek the death penalty, the United States Attorney or
Assistant Attorney General, the Capital Review Committee, the Deputy Attorney General, and the
Attorney General will determine whether the applicable statutory aggravating factors and any
non-statutory aggravating factors sufficiently outweigh the applicable mitigating factors to justify a
sentence of death or, in the absence of any mitigating factors, whether the aggravating factors
themselves are sufficient to justify a sentence of death. Reviewers are to resolve ambiguity as to
the presence or strength of aggravating or mitigating factors in favor of the defendant. The analysis
employed in weighing the aggravating and mitigating factors should be qualitative, not quantitative:
a sufficiently strong aggravating factor may outweigh several mitigating factors, and a sufficiently
strong mitigating factor may outweigh several aggravating factors. Reviewers may accord weak
aggravating or mitigating factors little or no weight. Finally, there must be substantial, admissible,
and reliable evidence of the aggravating factors.
D. In deciding whether it is appropriate to seek the death penalty, the United States Attorney or
Assistant Attorney General, the Capital Review Committee, the Deputy Attorney General, and the
Attorney General may consider any legitimate lawenforcement or prosecutorial reason that weighs
for or against seeking the death penalty. Those considerations may include, but are not limited to:
(1) The strength and nature of the evidence;
(2) The relative roles in the offense of defendants in jointly undertaken criminal activity;
(3) Whether the offense was intended to obstruct justice or was otherwise motivated by the victim's
cooperation with law enforcement or the belief that the victim was cooperating with law
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enforcement;
(4) Whether the offense was committed to retaliate against a third-party for cooperating with law
enforcement or against a third party believed to be cooperating with law enforcement;
(5) Whether the victim engaged in criminal activity that was a relevant circumstance of the offense;
(6) Whether a defendant engaged in criminal activity for which he had not been held accountable;
(7) Whether the defendant is already serving a substantial sentence such that an additional
sentence of incarceration would have. little punitive impact;
(8) Whether the defendant has a history of infractions or offenses while incarcerated; and
(9) Whether the defendant has accepted responsibility for his conduct as demonstrated by his
willingness to plead guilty and accept a life or near-life sentence without the possibility of release.
[updated April 2011] [cited in USAM 9-10.080]
9-10.150 - Post-Decision Actions
In any case in which the Attorney General has directed the filing of a notice of intention to seek the death
penalty, the United States Attorney or Assistant Attorney General shall not file or amend the notice until
the Capital Case Section has approved the notice or the proposed amendment. The notice of intention to
seek the death penalty shall be filed as soon as possible after transmission of the Attorney General's
decision to seek the death penalty.
The United States Attorney or Assistant Attorney General should promptly inform the district court and
counsel for the defendant once the Attorney General has made the final decision. Expeditious
communication is necessary so that the court is aware, in cases in which the Attorney General directs the
United States Attorney or Assistant Attorney General not to seek the death penalty, that appointment of
counsel under 18 U.S.C. § 3005 is not required or is no longer required. In cases in which the Attorney
General directs the United States Attorney or Assistant Attorney General to seek the death penalty, the
district court and defense counsel should be given as much opportunity as possible to make proper
scheduling decisions.
[updated April 2014]
9-10.160 - Withdrawal of the Notice of Intention to Seek the Death
Penalty
A. Request by a United States Attorney or Assistant Attorney General
Once the Attorney General has directed a United States Attorney or Assistant Attorney General to
seek the death penalty, the United States Attorney may not withdraw a notice of intention to seek
the death penalty filed with the district court unless directed by the Attorney General.
If a United States Attorney or Assistant Attorney General wishes to withdraw the notice, the United
States Attorney or Assistant Attorney General shall advise the Assistant Attorney General for the
Criminal Division through the Capital Case Section of the reasons for that request. The United
States Attorney or Assistant Attorney General should base the withdrawal request on material
changes in the facts and circumstances of the case from those that existed at the time of the initial
determination.
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Upon receipt of such a request, the Capital Case Section will seek review of the request by the
Capital Review Committee. To the extent possible, the Capital Review Committee should include
the members who originally considered the case. Reviewers should evaluate the withdrawal
request under the principles used to make an initial determination, and limit the evaluation to
determining if the changed facts and circumstances, had they been known at the time of the initial
determination, would have resulted in a decision not to seek the death penalty. For this reason,
information or arguments that had been advanced initially are not normally appropriate bases for
withdrawal requests. In all cases, however, reviewers should consider all necessary information to
ensure every defendant is given the individualized consideration needed for full review and
appropriate decision-making.
The Capital Review Committee will make a recommendation to the Attorney General through the
Deputy Attorney General on whether the notice of intent to seek the death penalty should be
withdrawn.
B. Request by a defendant
Any request by a defendant for withdrawal of a notice of intention to seek the death penalty should
be submitted in the first instance to the United States Attorney or Assistant Attorney General
responsible for the prosecution. If the United States Attorney or Assistant Attorney General concurs
in the request, then he or she should follow the procedures in Section A above. Otherwise, the
United States Attorney or Assistant Attorney General should submit the defendant's request along
with a brief memorandum outlining the reasons why the United States Attorney or Assistant
Attorney General opposes the request to the Assistant Attorney General for the Criminal Division
through the Capital Case Section. Absent extraordinary circumstances, the Department will not
consider successive defense requests to withdraw the notice of intention to seek the death penalty.
Upon receipt of such a request, the Capital Case Section will seek review of the request by the
Capital Review Committee. To the extent possible, the Capital Review Committee should include
the members who originally considered the case. Reviewers should evaluate the withdrawal
request under the principles used to make an initial determination, and limit the evaluation to
determining if the changed facts and circumstances, had they been known at the time of the initial
determination, would have resulted in a decision not to seek the death penalty. For this reason,
information or arguments that had been advanced initially are not normally appropriate bases for
withdrawal requests: In all cases, however, reviewers should consider all necessary information to
ensure every defendant is given the individualized consideration needed for full review and
appropriate decision-making.
If fewer than two members of the Capital Review Committee agree with the defendant's request to
withdraw the notice of intention to seek the death penalty, the Assistant Attorney General for the
Criminal Division will inform the United States Attorney or Assistant Attorney General that the
request has been denied. If two or more members of the Capital Review Committee recommend
withdrawing the notice of intention to seek the death penalty, then the Capital Review Committee
will convey the matter, along with the Committee's analysis, to the Attorney General, through the
Deputy Attorney General, for decision.
The Attorney General shall make the final decision on whether to direct the withdrawal of a notice
of intention to seek the death penalty upon any request made or endorsed by the United States
Attorney or Assistant Attorney General. Until such a decision is made, the United States Attorney or
Assistant Attorney General should proceed with the case as initially directed by the Attorney
General. The fact that a withdrawal request has been made is confidential and may not be
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disclosed to any party outside the Department of Justice and its investigative agencies.
C. Requests for relief following conviction and sentence
After a defendant has been convicted and the district court has pronounced a sentence of death,
any request by either a defendant or a United States Attorney or Assistant Attorney General that
the Department agree to dismiss or vacate the conviction or death sentence shall be governed by
the following procedures.
Defense-initiated requests for consent to judicial relief
If a defendant seeks the Department’s consent to judicial relief to set aside a death sentence or
underlying conviction, he or she must submit that request in writing to the United States Attorney or
Assistant Attorney General responsible for the prosecution. The defendant’s request must establish
that there are materially changed facts or circumstances or identify new material evidence that,
under governing law, would have resulted in an acquittal or a non-death sentence had such
information been available at the time of trial. Information or arguments that were advanced at
earlier stages in the case, or that could have reasonably been advanced, are not appropriate bases
for a defense request for consent to judicial relief. In addition, a defense request for consent to
relief is not an appropriate way to seek reconsideration of the prior discretionary decision to seek or
authorize the death penalty. Absent extraordinary circumstances, the Department will not consider
successive requests for consent to judicial relief from a death sentence or underlying conviction.
Requests for consent to judicial relief initiated by a United States Attorney or Assistant Attorney
General
A United States Attorney or Assistant Attorney General may not move to dismiss or vacate (or
agree to a defendant’s motion to dismiss or vacate) a death sentence or underlying conviction
unless directed to do so by the Attorney General. Until such a decision is made, the United States
Attorney or Assistant Attorney General should proceed with the case as initially directed by the
Attorney General.
If a United States Attorney or Assistant Attorney General concludes that a case presents factual or
legal issues that substantially undermine the government’s confidence in a defendant’s conviction
or death sentence under governing law, the United States Attorney or Assistant Attorney General
should initiate a request for consent to judicial relief as described further below.
Capital Case Section review of requests
If a United States Attorney or Assistant Attorney General initiates a request for consent to judicial
relief, or concurs in a defense-initiated request, the United States Attorney or Assistant Attorney
General shall submit the request for relief to the Capital Review Committee through the Criminal
Division’s Capital Case Section along with a brief memorandum setting forth the basis for his or her
recommendation.
If the United States Attorney or Assistant Attorney General does not concur in a defense-initiated
request for relief, the United States Attorney or Assistant Attorney General shall submit the request,
along with a brief memorandum setting forth his or her recommendation, to the Capital Case
Section. If the Capital Case Section determines that the standard governing defense requests for
relief is satisfied or that there is sufficient uncertainty concerning whether the standard governing
defense requests for relief is satisfied, it will prepare a brief memorandum explaining its reasoning
and will forward the defense-initiated request and all relevant memoranda to the Capital Review
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Committee for review. Otherwise, the defense request will be denied and defense counsel will be
so notified.
Capital Review Committee review of requests
Before a request for relief is submitted to the Capital Review Committee, the United States Attorney
or Assistant Attorney General will solicit the views of the victim’s family concerning the request and
the Department will consider the views expressed prior to making a final decision on the request.
When a request is submitted to the Capital Review Committee, the Committee should, to the extent
possible, be comprised of the same individuals who originally considered the case.
If the United States Attorney or Assistant Attorney General initiated the request, or concurs in a
defense request, the Capital Review Committee will forward the request and the Committee’s
recommendation to the Attorney General, through the Deputy Attorney General.
If the United States Attorney or Assistant Attorney General opposes a defense request, the Capital
Review Committee will forward the request and the Committee’s recommendation to the Attorney
General, through the Deputy Attorney General, only if two or more members of the Committee
conclude that the request meets the relevant standard for relief. If fewer than two members of the
Committee conclude that a defense request meets the relevant standard for relief, the request will
be denied, and defense counsel will be so notified.
Attorney General decision
Upon receiving a recommendation from the Capital Review Committee, through the Deputy
Attorney General, the Attorney General shall make the final decision on whether to dismiss or
vacate (or agree to a defendant’s motion to dismiss or vacate) a death sentence or underlying
conviction.
Confidentiality
The consideration of requests submitted under this subsection shall be subject to the confidentiality
provisions set forth in Section 9-10.050.
Adverse decisions
This subsection does not apply to the Department’s decision whether to seek further review of an
adverse judicial decision in a capital case. The procedures relevant to adverse decisions are set
forth in Section 9-2.170.
[updated January 2017] [cited in USAM 9-10.050; 9-10.120]
9-10.170 - Approval Required For Judicial Sentencing Determination
In cases in which the Attorney General has authorized seeking the death penalty, the United States
Attorney or Assistant Attorney General must obtain the approval of the Assistant Attorney General for the
Criminal Division before agreeing to a request by the defendant pursuant to 18 U.S.C. § 3593(b)(3) for the
sentence to be determined by the trial court rather than a jury. Any request pursuant to this provision shall
be submitted to the Assistant Attorney General for the Criminal Division through the Capital Case Section.
[updated April 2014]
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9-10.180 - Reporting Requirements
Each United States Attorney's Office or Department component must identify a point-of-contact who will
be responsible for ensuring compliance with the following reporting requirements. The Capital Case
Section must be immediately notified when:
A. A capital offense is charged or when an indictment is obtained pertaining to conduct that could be,
but has not been, charged as a capital offense. The point-of-contact must immediately provide the
Section with a copy of the indictment and case number. In the event the indictment is obtained prior
to submitting the case for review pursuant to the provisions of this Chapter, the United States
Attorney or Assistant Attorney General shall comply with the notification requirements of USAM
9-10.060.
B. A deadline for filing a notice of intent to seek the death penalty or a trial date is established or
modified.
C. There are any developments that could affect the ability to file a notice of intent to seek the death
penalty sufficiently in advance of trial to allow the defense and prosecution to prepare for a capital
punishment hearing.
D. A verdict and sentence are reached in a case in which the Attorney General has directed seeking
the death penalty.
The victim's family must be notified of all final decisions regarding the death penalty.
[updated April 2014]
9-10.190 - Forms and Procedures
The Assistant Attorney General for the Criminal Division, the Deputy Attorney General, and the Attorney
General may promulgate forms and procedures to implement the provisions of this Chapter. The United
States Attorney or Assistant Attorney General should contact the Capital Case Section to discuss the
applicable procedures and obtain the appropriate forms.
[updated April 2014]
9-10.200 - Exceptions for the Proper Administration of Justice
To ensure the proper administration of justice in an appropriate case, the Attorney General may authorize
exceptions to the provisions of this Chapter.
[renumbered from 9-10.190 April 2014]
‹ 9-9.000 - Mental Competency Of An Accused
up
9-11.000 - Grand Jury ›
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User Name: DAVID RUHNKE
Date and Time: Saturday, March 11, 2017 10:17:00 AM EST
Job Number: 44685842
Document (1)
1. United States v. Fell, 2016 U.S. Dist. LEXIS 171849
Client/Matter: Con-Ui (MDPA)
Search Terms: "Donald Fell" and Haney
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DAVID RUHNKE
19
Neutral
As of: March 11, 2017 10:17 AM EST
United States v. Fell
United States District Court for the District of Vermont
December 13, 2016, Decided; December 13, 2016, Filed
Case No. 5:01-cr-12-01
Reporter
2016 U.S. Dist. LEXIS 171849 *
UNITED STATES OF AMERICA v. DONALD FELL
Prior History: United States v. Fell, 2016 U.S. Dist. LEXIS 54175 (D. Vt., Apr. 20, 2016)
Core Terms
death penalty, jurors, cases, death sentence, studies, sentences, capital punishment, executions, authors, bias,
death row, homicide, murder, federal death penalty, convicted, isolation, issues, disproportionality, statistical, juries,
death qualification, public support, decisions, guilt, social science, rates, views, public opinion, decision-making,
abolished
Counsel: [*1] For Donald Fell, Defendant: John T. Philipsborn, Esq., Law Offices of John T. Philipsborn, San
Francisco, CA; Kerry B. DeWolfe, Esq., Corinth, VT; Michael N. Burt, Esq., PRO HAC VICE, Law Office of Michael
N. Burt, San Francisco, CA.
For United States of America, Plaintiff: Bruce R. Hegyi, United States Department of Justice, Capital Case Section,
Washington, DC; Julie B. Mosley, Esq., PRO HAC VICE, United States Department of Justice, Capital Case
Section, Washington, DC; William B. Darrow, United States Attorney's Office, District of Vermont, Burlington, VT.
Judges: Geoffrey W. Crawford, United States District Judge.
Opinion by: Geoffrey W. Crawford
Opinion
OPINION AND ORDER ON CONSTITUTIONALITY OF THE FEDERAL DEATH PENALTY ACT
(Docs. 668, 670, 673 and 674)
INTRODUCTION
In 2015, the U.S. Supreme Court issued its decision in Glossip v. Gross, 135 S. Ct. 2726, 192 L. Ed. 2d 761. The
case concerned challenges under the Eighth Amendment to execution by lethal injection of four defendants
sentenced to die by state courts in Oklahoma.
Justice Breyer, joined by Justice Ginsburg, issued a dissent calling "for full briefing on a more basic question:
whether the death penalty violates the Constitution." Id. at 2755. The dissent identified a series of systemic
shortcomings in the administration of the death [*2] penalty in the United States, especially as it is applied by the
states. It divided these into four categories: "(1) serious unreliability, (2) arbitrariness in application, (3)
20
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unconscionably long delays that undermine the death penalty's penological purpose [and] (4) most places in the
United States have abandoned its use." Id. at 2756.
In response, Justice Scalia and Justice Thomas wrote two strongly worded concurring opinions which defended the
death penalty as the legitimate exercise of democratic authority. Both justices pointed to the shocking cruelty of the
crimes which led to the death sentences in these and other death penalty cases. Both questioned the authority of
the judiciary to interpose its own philosophical concerns about the death penalty. And both identified utilitarian
purposes such as deterrence which may justify executions.
The dissent and concurring opinions in Glossip offer a particularly vivid account of the long-running dispute over the
constitutionality of the death penalty within the Supreme Court. A federal trial judge is without authority to rewrite
the law so as to overrule the majority position at the Supreme Court. The current state of the law is that the
death [*3] penalty is a constitutional punishment for murder committed by adults not disqualified for reasons of
intellectual disability who have received a trial which meets the standards set by Gregg v. Georgia, 428 U.S. 153,
96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556
(2002). Changing forty years of decisional law raises questions that can only be settled by the Supreme Court itself.
But a trial court has its own contribution to make to the debate. The court can hold a hearing and permit witnesses
to testify. In Glossip, Justice Breyer raised a series of questions about whether the death penalty is imposed fairly
or in an incurably arbitrary manner. The questions he raised are troubling. They are essentially empirical. They
require consideration of what has actually happened in the United States since the restoration of the death penalty
following the Gregg decision.
Over the course of two weeks last summer this court sought to develop a factual record based on live testimony
and supporting exhibits sufficient to answer the question of whether the constitutional requirements for a death
penalty statute set out in Gregg have been met in practice. As the court's findings indicate, the Federal Death
Penalty Act, 18 U.S.C. §§ 3591, et seq. ("FDPA"), falls short of the standard required in Furman v. Georgia, 408
U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and in [*4] Gregg for identifying defendants who meet objective
criteria for imposition of the death penalty. Like the state statutes enacted after Furman, the FDPA operates in an
arbitrary manner in which chance and bias play leading roles.
The trial court's obligation does not end with a review of the facts. The court is required to address the legal issues
raised by the parties. That resolution may be no more than an acknowledgment that the law has been settled on a
particular question. Alternatively, the new factual record may require a fresh look at the manner in which existing
principles are applied to a factual record which continues to develop The court has sought to undertake this new
look in a manner consistent with existing authority which comes principally from the Supreme Court.
To get right to the point, the court has sought to follow the method expressed in Atkins v. Virginia, 536 U.S. 304,
122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) in considering the proportionality of the death penalty. The court has also
considered the separate argument that application of the death penalty has become arbitrary.
The disproportionality challenge falls short because of the absence of proof of a national consensus to abolish the
death penalty. As the law stands now, proof [*5] of consensus is a prerequisite for finding the death penalty
unconstitutional as applied to particular crimes or particular types of defendants. By assessing public opinion,
especially as it is expressed through legislation in the states, the Supreme Court finds a basis for determining
evolving standards of decency for the nation as a whole. If the requirement of consensus applies to the limited
challenges brought in cases like Atkins, then it must also apply to the claim of disproportionality which the defense
levels against the imposition of the death penalty in all cases.
The court has also considered the problem of arbitrary application of the death penalty to small numbers of
defendants whose crimes are indistinguishable from the far greater number who receive life sentences. The court
has followed existing law in declining to rule that "arbitrariness" is an independent constitutional violation.
Scope of the Evidentiary Hearing
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In this case, the defense filed extensive motions challenging the constitutionality of the FDPA, (Docs. 668, 670, 673
and 674). The issues raised followed the Glossip dissent closely. The questions raised by Justice Breyer's dissent
are:
I. Unreliability
A. [*6] Mistaken Conviction and Exoneration
B. Bias Through "Death Qualification" of the Pool of Prospective Jurors
C. Flawed Forensic Testimony
D. Identifiable Rate of Erroneous Conviction
II. Arbitrariness
A. Rarity and "Freakish" Imposition of the Death Penalty
B. Continuing Impact of Race, Gender and Geography
C. Underfunding of Capital Defense
D. Political Pressure on Elected Judges
E. Systemic Failure to Identify the "Worst of the Worst" Defendants
III. Excessive Delay
A. 18 - 25 Year Delays Between Conviction and Execution
B. Solitary Confinement and Uncertainty of Outcome
C. Volunteering for Death and Rates of Suicide on Death Row
D. Undermining of the Penological Rationales of Deterrence and Retribution
IV. Unusual — Decline in Use of the Death Penalty
A. Reduction in Annual Death Sentences and Executions
B. State-Wide Abolishment Through Legislative Change
C. State-Wide Lack of Use
D. Concentration of Death Sentences in a Few States and Counties
E. Direction of Change at the Level of the States
F. Declining Public Support
G. Practice by Other Nations
The witnesses called at the hearing addressed many of these issues. Because this is a federal prosecution and the
defense motion challenges the constitutionality [*7] of the FDPA, some of the issues raised in the Glossip dissent
arising in the context of state cases had little or no application. The funding of a legal defense is generally not an
issue in federal death penalty cases in which the amounts expended for the defense of the accused are both
enormous in actual amount and largely unlimited as to purpose and strategy adopted by defense counsel. Political
pressure on elected state judges has no relevance to a federal judiciary with life tenure. In this case, the parties
have addressed concerns about the potential unreliability of certain forensic evidence through a separate series of
Daubert motions and hearings tailored to the needs of this case. But in general, most of the Glossip critique applies
with equal force to the experience of federal death penalty practice.
Organization of this Decision
The court will address the motions in two stages. First, it will review the testimony and exhibits. To the extent
possible, the court will make specific findings about the subject areas addressed by the parties. Second, the court
will address the legal issues raised by the defendant's motions. The findings follow the outline above.
One preliminary point [*8] is important. Through two weeks of hearings, only three issues were contested through
the admission of conflicting testimony and other evidence. These were bias arising from the race of the victim (Part
II (B)), the effects of solitary confinement on death row (Part III (B)), and the statistical evidence of a deterrent effect
on the murder rate achieved through capital punishment (Part III (D). With respect to deterrence in particular, the
parties demonstrated the existence of a lively and continuing debate among statisticians, economists and other
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social scientists about the deterrent effect of the death penalty. In all other areas, however, the evidence was onesided and came only from the defense.
This imbalance occurred not through lack of notice or effort by either side. In February, 2016, the court stated its
intention to hold an evidentiary hearing tailored to the issues raised in the Glossip dissent. (Doc. 724) Rather, in
working through these factual issues and the available scholarship, one realizes that the criticism of the death
penalty published during the modern, post-Furman era rests on studies and analysis which are largely
uncontroverted in academic circles.
FINDINGS [*9]
I. Unreliability
A. Mistaken Conviction and Exoneration
Richard Dieter, former director of the Death Penalty Information Center ("DPIC"), testified concerning the risk of
execution of innocent people. He testified that DPIC maintains a list of people who were convicted and sentenced to
death and subsequently exonerated either through retrial and acquittal or by dismissal of all charges by the
prosecution. Dieter Tr. 116.1 The list also includes five people who were pardoned by governors for reasons of
factual innocence. Between 1973 and 2015, 156 state death row prisoners have been exonerated in the United
States. Dieter Ex. 9. DNA played a substantial role in 20 of these cases.
There are no federal defendants on the DPIC list. In his declaration provided in preparation for testifying, Mr. Dieter
noted that there have been 14 acquittals at the guilt phase since enactment of the FDPA. The FDPA operates on a
much smaller scale than death penalty prosecution in the states. Identifiable errors leading to exoneration have not
been a feature of FDPA litigation.
B. Jury Bias Through "Death Qualification" of Prospective Jurors
Since the origins of the Republic, jury selection in capital cases has [*10] featured some form of "death
qualification" during which potential jurors who are opposed to the death penalty are identified and excused. See
United States v. Cornell, 25 F. Cas. 650, F. Cas. No. 14868 (C.C.R.I. 1820) (No. 14, 868). The Supreme Court
considered the issue in Logan v. United States, 144 U.S. 263, 12 S. Ct. 617, 628, 36 L. Ed. 429 (1892) in a decision
permitting the exclusion of jurors with "conscientious scruples in regard to the infliction of the death penalty for
crime." (internal quotation omitted). Many states adopted statutes which excluded jurors who admitted to such
scruples at jury selection.
The Supreme Court altered this standard in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776
(1968), when it restricted the excusal of potential jurors for cause to those "who stated in advance of trial that they
would not even consider returning a verdict of death." Id. at 520. In the view of the Court, the exclusion of all jurors
"who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle"
crossed the line of neutrality and "stacked the deck against the [defendant.]" Id. at 522. Only potential jurors who
were unalterably opposed to the death penalty were subject to removal for cause.
The standard was further refined in Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). The
decision defines the qualification standard as whether "the juror's views [in opposition to the death penalty] would
prevent [*11] or substantially impair the performance of his duties as a juror in accordance with his instructions and
his oath." Id. at 424 (internal quotations omitted). The requirement which lower courts had drawn from Witherspoon
— that a juror could be excused only if he or she would vote against the death penalty automatically — was
removed. See also Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986).
1 Citations
are to the page of the transcript on the day a witness testified. Dates are provided when a witness testified on two
successive days.
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The social science studies presented at the hearing in this case considered whether the process of determining
whether jurors suffer from "substantial impairment" in their ability to reach a verdict in favor of death is itself a cause
of bias in favor of conviction at the guilt phase as well as subsequent imposition of the death penalty. The principal
witness on this issue was Craig Haney who is a social psychologist at the University of California at Santa Cruz.
Dr. Haney testified that the process of death qualification results in capital juries which are biased in favor of the
prosecution. There are five reasons for this opinion. (1) Death qualification tends to exclude women and minorities
who are more likely to oppose the death penalty than white men. (2) The jurors who emerge from the death
qualification process tend to be more conservative than average [*12] on issues related to criminal justice. (3) Due
to these inherent biases, a death penalty qualified jury is more likely to convict on the issue of guilt than juries that
sit on other criminal cases. (4) Jurors who are "death qualified" are more likely to impose the death penalty than
other jurors. (5) The process of death qualification itself tends to promote death penalty verdicts because of the
psychological effect of the questions asked and the answers provided by prospective jurors. Haney Ex. 2 (Rule 16
disclosure, pp. 42-43).
Dr. Haney's testimony supported all of these conclusions as did the exhibits admitted in connection with his
testimony. The first claim is that identifying and excluding jurors who hold views against the death penalty stacks
the deck in the words of Justice Stewart in Witherspoon. This was precisely the issue which also concerned the
Court in Wainwright and Lockhart. A substantial portion of the American population opposes the death penalty. In
recent years, the percentage has ranged from 47 percent (1967) to a low of 16 percent (1995) to a more recent
figure of 33 percent (2015). See Haney Ex. 2 (Gallup poll results 1937-2015). If these jurors are excluded as
"substantially [*13] impaired" in their willingness to impose the death penalty, then the remainder of the population
no longer represents the views of the general population.
The Witherspoon decision expressed a concern that social science data was "too tentative and fragmentary to
establish that jurors not opposed to the death penalty tend to favor the prosecution in favor of guilt." 391 U.S. at
517. In 1986, in the Lockhart decision, Justice Rehnquist offered a similar criticism. He observed that the petitioner
had offered only six studies which "purported to deal with the central issue in this case, namely, the potential effects
on the determination of guilt or innocence of excluding 'Witherspoon-excludables' from the jury." 476 U.S. at 170. Of
these, three were previously before the Court in Witherspoon. The new studies were of randomly selected subjects,
not actual jurors who had served in death penalty cases. None considered the problem of "nullifiers" who harbored
"deep-seated opposition to the death penalty." 476 U.S. at 171. The majority found the social science to be
unpersuasive. The question for this court is whether new research since McCree supports reexamination of the
issue.
Since at least 1980, Dr. Haney has worked to fill in the [*14] gap in the scientific record. With respect to the
compositional bias of the death-qualified jury, it can no longer be seriously questioned that panels who have
announced their openness to a death penalty verdict and have been selected on that basis are more likely to
convict than jurors who more closely mirror the full range of moral values in our society. Since 1986, the social
science literature includes the following:
a. Moran and Comfort, "Neither 'Tentative' nor 'Fragmentary': Verdict Preference of Impaneled Felony Jurors as a
Function of Attitude Toward Capital Punishment," 71 Journal of Applied Psychology (1986) (Haney, Ex. 10).
The Moran article surveyed the existing studies of mock jurors commencing with the three studies considered in
Witherspoon and bringing the survey current to 1986. On the basis of ten studies conducted over as many years,
the researchers concluded that "[i]n our opinion, there is abundant evidence to conclude that death qualifiable
persons are more likely to hold attitudes that alter their behavior as mock jurors and incline them toward conviction.
It is also probable that the death qualification process activates such attitudes and/or socializes venire
members [*15] to a conviction prone culture." Id. at 148. Echoing the nearly contemporaneous criticism in the
Lockhart majority opinion, the authors expressed doubt over the validity of attitudinal findings from mock trials. They
turned their attention to two studies of actual jurors.
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One study conducted in 1978 considered the attitudes of jurors who had served on state felony juries in Miami,
Florida. Three hundred and nineteen (319) out of 1,500 jurors returned their questionnaires. The authors found that
jurors who strongly favor capital punishment are "differentially authoritarian in the classical sense; hold
authoritarian, anti-civil libertarian attitudes toward jurisprudential issues, are more conventionally socialized, that is,
regard the rules, values, and prohibitions of conventional society as personally mandatory, and have more anomie,
that is, regard themselves as relatively powerless and isolated in a normless society." Id. at 150. Women who
strongly favor capital punishment "evidence additional characteristics consonant with authoritarianism. They are
more rigid, belong to more dogmatic churches, and believe in imminent justice, that is, that one gets what one
deserves." Id. at 150. The study focused on the relation [*16] of the likelihood of conviction and attitudes toward the
death penalty. Women, but not men, who favored the death penalty were more inclined toward guilty verdicts. The
authors described the "marginally significant association of attitude toward the death penalty and conviction
proneness in the whole sample of impaneled jurors as converging with other mentioned findings to support the
contention that death qualified jurors are conviction prone." Id. at 150.
The second study was based on questionnaires mailed to Miami, Florida felony jurors in 1982-83 who had recently
served on capital juries. Eight hundred and seventy-five (875) surveys went out; 346 responded. The results were
broadly consistent with the prior study. Jurors who favored the death penalty "were more likely to be male,
wealthier, white, married, home owning, Republicans of conservative political persuasion. They are less likely to
report any unpleasant experience with the police. These jurors who favored capital punishment also perceived
themselves to have participated more in their juries' deliberations." Id. at 152. They were also "predeliberationally
inclined to convict in felony trials." Id. at 152.
In reviewing the results of both studies the [*17] authors concluded that "jurors from undifferentiated felony trials
who more strongly favor capital punishment are significantly more likely to favor conviction." Id. at 153.
b. Haney, Hurtado and Vega, 'Modern' Death Qualification, Law and Human Behavior," Vol. 18, No. 6 (1994)
(Haney Ex. 12).
This article describes an opinion survey conducted by telephone of 498 residents of California. They were asked
approximately 40 questions concerning their attitudes toward the death penalty. The study sought to determine the
percentage of potential jurors who would be excluded under the more relaxed standard of "substantial impairment"
adopted by the Supreme Court in Wainwright. It was also one of the first studies to consider the exclusion in
percentage terms of potential jurors who automatically favored the death penalty in all capital cases. The total
excludable group was just below 20 percent, roughly evenly divided between people who strongly favored and
opposed the death penalty. The authors found that members of minority groups were disproportionally represented
among the excludable group because of views opposing the death penalty.
c. Allen, Mabry, and McKelton, "Impact of Juror Attitudes about the [*18] Death Penalty on Juror Evaluations of
Guilt and Punishment: A Meta-Analysis, Law and Human Behavior," vol 22, no. 6 (1998) (Haney Ex. 14).
The authors conducted a methodical survey (meta-analysis) of the social science literature concerning the
compositional effect (bias arising from death penalty qualification) as well as bias arising from participation in the
voir dire process. The meta-analysis is a formal, statistically-based method of studying the convergence of research
results.
Fourteen studies met criteria for examination. The authors concluded that "[t]he average effect indicates that
persons favoring the death penalty were more likely to favor conviction of a defendant ... This average effect was
significantly different from 0...". Id. at 723. The authors hedged their bets due to the variation in studies and
methods. "Heterogeneity indicates that the average effect should be interpreted with caution since the presence of
a moderator variable is likely." Id. at 723.
In summarizing the outcome of their study, the authors expressed confidence that attitudes toward the death
penalty affect the likelihood of conviction. "The results indicate that the more a person favors the death penalty, the
more likely [*19] that person is to vote to convict a defendant." Id. at 724. The literature does not reveal the cause
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of the bias. The authors echoed the criticism of studies of potential juror attitudes expressed by the majority in
McCree. They found support across the literature for a conviction-prone bias arising from the exclusion of jurors
based on personal views in opposition to the death penalty. "The conclusion flowing from previous research in this
area is that the systematic exclusion of a part of the juror pool more likely to acquit biases the process of
deliberation in favor of conviction." Id. at 724. These findings relate to juror bias at the outset of the case — prior to
deliberations. The authors found inadequate data to determine whether the initial bias of the jury in favor of
conviction could be expected to diminish through the process of deliberation. They were also unable to identify the
underlying beliefs which "cause both a belief in the death penalty as well as a conviction proneness." Id. at 726. But
despite these unanswered questions about the cause of the bias in favor of conviction, the authors were
unequivocal in their determination that social science studies have established that "the use of screening [*20]
during voir dire creates a jury more likely to convict a defendant than would normally occur if the question were not
used to screen potential jurors." Id.
These three studies are consistent with the work that preceded and has followed them. More recent research has
focused on racial imbalance and the effective exclusion of African-Americans from capital juries. See Haney Ex. 2,
p. 46 (Rule 16 disclosure). There are no studies before the court which suggest that this compositional bias effect is
exaggerated or incorrect. The defense has established as a factual matter that death-qualified juries have a
disposition towards conviction which is significantly greater than the attitude of juries who have not passed through
the filter of death qualification.
The second factual claim made by Dr. Haney is that the experience of death penalty voir dire makes jurors more
likely to impose the death penalty. Several studies before the court address this issue.
d. Haney, "On the Selection of Capital Juries: The Biasing Effects of the Death-Qualification Process," Law and
Human Behavior, Vol. 8, Nos. 1/2 (1984) (Haney Ex. 9).
In this article, Dr. Haney describes a study of sixty-seven men and women eligible [*21] for jury service. They were
shown one of two videotapes intended to simulate the experience of voir dire. One videotape included the process
of death penalty qualification, including the exclusion in front of the rest of the panel of two pool members who
expressed opposition to the death penalty. The study concluded that "exposure to death qualification increased
subjects' belief in the guilt of the defendant and their estimate that he would be convicted. It also increased their
estimate of the prosecutor, defense attorney, and judge's belief in the guilt of the defendant. And it led jurors to
choose the death penalty as an appropriate punishment much more frequently than persons not exposed to it." Id.
at 128-129.
e. The Capital Jury Project
In addition to Dr. Haney's testimony, Dr. Wanda Foglia testified concerning the work of the Capital Jury Project
("CJP"). Dr. Foglia is a law professor at Rowan University who conducts social science research in the area of
criminology. Over the course of some 15 years, members of the CJP interviewed 1,198 jurors who had served in
353 capital trials. This work was funded by the National Science Foundation and occurred in fourteen states. The
empirical research [*22] was exhaustive and painstaking. It was performed through detailed questionnaires and
interviews with actual jurors. The research provides very strong evidence of three primary findings derived from
seven specific problems. First, the process of death qualification at voir dire produces juries which are biased in
favor of imposing the death penalty. This occurs both because jurors who are opposed to the death penalty are
excluded and because the voir dire discussion itself creates an expectation in the minds of many jurors that the
outcome of the case is likely to be the death penalty. Second, in the course of trial, a majority of jurors make up
their minds about the death penalty before completing the conviction phase. In many cases, the later balancing of
aggravating and mitigating factors which Gregg relied upon to distinguish defendants who truly deserve death from
those who do not does not actually take place. Finally, jurors demonstrated a consistent inability to understand and
apply the courts' instructions concerning the two phases of the trial, the different burdens of proof for aggravating
and mitigating factors, and the other protections intended to guide the jury's discretion. [*23]
The court will review the seven problems raised by the CJP studies one at a time:
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1. Premature Decision-Making
The CJP studies concluded that half of the capital jurors interviewed had decided on the death penalty (30.3%) or a
life sentence (18.9%) before determining whether the defendant was guilty of the offense. Jurors who chose death
were absolutely convinced (70.4%) or pretty sure (27%) of their decision on penalty before rendering a decision on
guilt. Foglia Tr. 163-182 (7/13/16).
2. Bias in Jury Selection
The questionnaires revealed high numbers of jurors who believed that death was the only appropriate sentence for
six specific capital offenses. With one exception, the percentage of jurors who had actually served who believed
death was the only acceptable punishment ranged from a thirteen state average of 71.6% (defendants previously
convicted of murder) to 46.2% (murder by a drug dealer). The high percentage of jurors holding these beliefs is
troubling since one of the purposes of voir dire was to exclude such people. The questionnaires also provided
confirmation of the studies conducted by Dr. Haney in the 1980's which showed that the voir dire process itself
created a bias in [*24] favor of the death penalty. Foglia Tr. 186-200 (7/13/16).
3. Failure to Understand Instructions
The CJP studies demonstrated that many jurors fail to understand and therefore apply the distinctions between the
burden of proof and requirements of unanimity which distinguish aggravating and mitigating factors. Nearly half of
the jurors did not understand that they must consider relevant mitigating evidence. Two-thirds did not understand
that a mitigating factor did not need to be found unanimously. Half did not understand the lower standard of proof
for mitigating factors and nearly one-third did not understand the burden of proof for aggravating factors. The results
may not be surprising — these complicated ideas were new to the jurors and they only heard one case — but the
results undermine confidence that the process developed in Gregg and subsequent Supreme Court decisions to
guide the jury's deliberative process is followed in actual practice in the jury room. Foglia Tr. 7-13 (7/14/16).
4. Erroneous Belief that Death is Required
Substantial numbers of jurors who found that certain aggravating circumstances were present also believed that a
death sentence was then required. In the case [*25] of "future dangerousness," one-third of jurors believed that
death was mandatory. For "heinous, vile and depraved," the percentage rose to 44 percent. These findings are both
consistent with a widespread failure to understand jury instructions and a bias in actual juries towards death
sentences. Foglia Tr. 14-15(7/14/16).
5. Responsibility for the Death Decision
Large numbers of jurors consistently believed that other actors, such as the judge, were ultimately responsible for
the death decision when case law requires that they bear sole responsibility for making that determination. Foglia
Tr. 16 (7/14/16).
6. Racial Influence
Ms. Foglia relied on work outside of the CJP research to conclude that white defendants who killed white victims
were more likely to receive the death penalty than defendants of either race who killed black victims. The CJP
findings were more limited on this issue. They concerned the difference in jury outcomes depending on differences
between the race of the defendant and the victim and the presence of black and white jurors. Foglia Tr. 17-22
(7/14/16).
7. Underestimating the Alternative Punishment of Life Without Parole
The CJP found that jurors frequently did not [*26] understand or believe that defendants sentenced to life without
parole would not be released in the future. Foglia Tr. 23-27 (7/14/16).
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Ms. Foglia testified credibly that because the state and federal death penalty requirements established by the
Supreme Court apply equally to both legal systems, the CJP findings drawn primarily from interviews with state
court jurors apply with equal validity to federal death penalty cases.
Scott Sundby, a law professor active for many years in CJP research, also testified about the results of the
investigation of capital juror behavior. He has sought for several decades to answer the question of whether it is
possible to create a jury system which reliably and predictably identifies the crimes and perpetrators for which the
death penalty is justified. Sundby Tr. 164. Professor Sundby was drawn to the question through a statement by
Justice Harlan in McGautha v. California, 402 U.S. 183, 209, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971) that "to
identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death
penalty, and to express these characteristics in language which can be fairly understood and applied by the
sentencing authority, appear to be tasks which are beyond present human [*27] ability." Professor Sundby testified
that "it is beyond human present ability to formulate a capital punishment scheme which would get us the type of
non-arbitrary, non-capricious decisions that the Supreme Court has said we must have after Furman." Sundby Tr.
167.
In reaching this conclusion, Professor Sundby used the CJP data in the following ways:
1. Based on hundreds of hours of juror interviews, he came to appreciate that the penalty phase determination "is ...
at the bottom, inevitably ... a moral, spiritual, religious value judgment. It is not like the guilt phase judgment.... The
ultimate question in the capital punishment context ... is does this defendant deserve to live or die. And there is
absolutely no way to make that decision other than looking at your own values." Sundby Tr. 168. In contrast to the
guilt phase (or all other criminal cases) in which the jury is making a fact-based decision, the penalty phase decision
depends upon the jurors' subjective moral values. Because the determination is not fact-based, it is inherently
unpredictable and ungovernable by legal standards.
2. Interviews with jurors about the votes in the jury room reveal that if three or fewer jurors [*28] favor life at the first
vote, the ultimate decision is almost always for death. If four favor life, then 60 percent of penalty verdicts are for
death. If five or more favor life, then the ultimate decision is almost always for life. From this evidence, Professor
Sundby concluded that the views of one or two jurors are enough to determine the outcome of a divided jury.
Consequently, the exclusion of potential jurors at voir dire through death qualification has a large effect on the
outcome of the case. Sundby, Tr. 171.
3. Professor Sundby found evidence of unpredictable, unguided decision-making in many aspects of the juror
interviews. These included the search by jurors for evidence of remorse by the defendant through his facial
expression and manner of speaking, a subjective inquiry into his future dangerousness, and a belief by jurors that
defendants who insist upon their right to a trial on guilt and later introduce mitigating evidence at the penalty phase
have tried to "trick" the jury into an outright acquittal. Sundby Tr. 174-177.
4. Professor Sundby identified juror uncertainty over the application of many potential mitigating factors which both
support and count against a life [*29] sentence as an additional source of arbitrary decision-making. Factors such
as mental illness, neurological deficits such as fetal alcohol syndrome, a bad childhood, and youth at the time of
offense can support mitigation but they can also be understood to support future dangerousness. Sundby Tr. 184,
188. A young, disturbed person can be seen as less responsible for an offense. Conversely, he can also be seen as
likely to grow more violent as he matures. Although the latter argument may be unsupported by psychological
research, it remains as a belief in some jurors' minds and undermines the constitutional requirement of proof of
aggravating and mitigating circumstances. In Professor Sundby's view, the jurors' difficulty in applying mitigation
factors to reduce rather than increase the likelihood of a life sentence is strong evidence that in many cases a death
sentence will be returned instead of life. This persistent difficulty undermines the constitutional requirement of
heightened reliability in death penalty decision-making. Sundby Tr. 191.
In considering testimony about the level of inherent bias generated by the process of jury selection, the court
finds that the social science [*30] studies conducted since 1980 have converged on a common conclusion that
the process by which jurors are selected does not measure up to the standards of detached objectivity required
28
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by Gregg. The exclusion of many people opposed to the death penalty on religious or moral grounds and the
implicit process of persuasion at voir dire that death is the likely outcome create jury populations which stack
the deck against defendants. This suspicion originally expressed by Justice Stewart has been shown to be
true. The most telling evidence is the absence of contrary research results. The studies brought to the court's
attention supported the position of the defense that jury selection since Gregg is not the solution to inherent
jury bias but rather a substantial part of the problem.
C. Flawed Forensic Testimony
With the assistance of both sides, the court has conducted an extensive Daubert inquiry into the reliability of the
forensic evidence in this case. This takes the place of the more generalized concerns expressed in the Glossip
dissent about the use of suspect forensic methods in other cases.
One exception is the testimony of Thomas Reidy who testified concerning the unreliability of expert [*31] testimony
on the risk that a defendant would be dangerous in the future. This is not a subject on which the court has
conducted a hearing on reliability because the testimony concerns penalty, not guilt. Unlike the other forensic
issues, the testimony goes primarily to the unreliability of the jurors' understanding of the information. Dr. Reidy is a
clinical and forensic psychologist who maintains a private practice in California. He testified credibly that forensic
opinions of future dangerousness have an impact on a lay jury which greatly exceeds their real predictive value.
Empirical testing of conduct in prison reveals little difference between capital defendants and those convicted of
lesser offenses. In particular, individual characteristics such as impulsivity, lack of remorse, criminal lifestyle, and
aberrant personality characteristics do not function as valid predictors of violence in the prison setting. Similarly, the
seriousness of the offense in general and homicide in particular have little predictive value. In Dr. Reidy's opinion,
intuitive opinions held by many potential jurors tend to exaggerate in the jurors' minds the danger presented by a
capital defendant.
Dr. Reidy's [*32] opinion is plausible and went unchallenged by contrary testimony at the hearing. But standing
alone, it is an insufficient body of research from which to draw a conclusion that expert testimony regarding future
dangerousness should be excluded at trial or that it presents a systemic criticism of the FDPA. Like any proposed
expert testimony, the reliability of testimony about future dangerousness must be considered on an individual basis
in each case.
D. Identifiable Rate of Erroneous Conviction
Michael Radelet, a psychology professor at the University of Colorado at Boulder, testified that research
demonstrates that state court death penalty prosecution results in an erroneous conviction rate of approximately
four percent. Radelet Tr. 170-171. This result is drawn from several thousand cases over 40 years. By contrast, the
FDPA with a total of 503 cases authorized since its enactment in 1988 operates on a far smaller scale. There are
no known claims of factually erroneous convictions on federal death row.
In United States v. Quinones, 313 F.3d 49 (2d Cir. 2002), the Second Circuit rejected the claim of erroneous
conviction as a basis for holding the FDPA to be unconstitutional.
[T]he Supreme Court has upheld state and federal statutes providing [*33] for capital punishment for over two
hundred years, and it has done so despite a clear recognition of the possibility that, because our judicial
system — indeed, any judicial system — is fallible, innocent people might be executed and, therefore, lose any
opportunity for exoneration.
Id. at 64.
The court rejected a claim that the risk of erroneous conviction in a capital case violated the Due Process clause.
The decision makes clear that this claim will fare no better under the Eighth Amendment. For these reasons, the
court enters no findings on this aspect of the Glossip dissent.
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In summary, the court finds that the evidence introduced at the hearing supports a finding that the procedures for
conducting jury trials mandated by the Gregg decision have not cured systemic shortcomings in jury selection and
jury deliberations. The death qualification process continues to weight jury panels in favor of conviction and in favor
of the death penalty through the exclusion of a large portion of the community which holds views opposed to the
death penalty. When surveyed, jurors who actually served in capital cases had great difficulty in following the trial
courts' instructions. It is an inadequate response to presume that juries follow [*34] our instructions when the
evidence is to the contrary. The evidence introduced at the hearing demonstrates that despite efforts to create a
more just death penalty regime, the FDPA — like the very similar state death penalty statutes enacted after
Furman— remains inherently unreliable as it seeks to identify those cases in which death is the just outcome.
II. Arbitrariness
A. Rarity and "Freakish" Imposition of the Death Penalty
Several defense witnesses testified concerning the issue of whether the death penalty is imposed in an arbitrary
manner. This issue lay at the heart of many of the Furman concurring opinions and was preserved for all time in
Justice Stewart's famous "struck by lightning" simile. 408 U.S. at 309.
The court starts with the evidence provided by Kevin McNally, Director of the Federal Death Penalty Resource
Counsel Project ("FDPRCP"). Mr. McNally's testimony about the effects of race, geography, and the absence of
discernible standards for the determination of who is sentenced to life imprisonment and who is sentenced to death
focused entirely on the application of the FDPA. For present purposes, it is more relevant than a broader
examination of how the death penalty is applied by [*35] the states.
Since enactment of the FDPA in 1988 and current as of September 2015, the Attorney General has authorized the
government to seek the death penalty in 503 cases. McNally, Ex. 1, 5. These cases were drawn from a larger group
of 3,470 completed cases which the FDPRCP identified as potentially subject to the death penalty as of June 2016.
McNally, Ex. 1, 4, Tr. 164. These cases have resulted in 154 life sentences and 81 death sentences. Other
defendants avoided a capital trial by entering a plea or through withdrawal of the capital authorization, or a judicial
dismissal decision barring the death penalty. Three defendants have been tried and sentenced to death twice.
Since 1988, three have been executed, most recently in 2003. Excluding clemency, death while awaiting execution,
retrials following appeals, or relief under §2255, fifty-nine defendants remained on federal death row in July 2016.
McNally, Ex. 12, p. 340. Because the Government continues to authorize and seek the death penalty, the numbers
change very slightly over time, but the extreme rarity of the imposition of the death penalty and actual executions
has been present since enactment of the FDPA.
Although the Attorney [*36] General authorizes the death penalty on a national basis through a capital review
committee, federal death penalty cases since 1988 have been concentrated in three states (Virginia, Texas, and
Missouri) in a pattern consistent with the concentration of state death penalty cases. The most likely explanation is
that although death penalty authorization occurs at the national level, the request for authorization originates with
local U.S. Attorneys offices and reflects the legal culture of the states in which they are located.2 A review of racial
characteristics of death penalty authorizations and death sentences shows that cases involving white female victims
are disproportionately represented in both groups.
The most striking evidence of arbitrary application of the death sentence provided by Mr. McNally was his review of
all cases like the present case in which there were multiple victims. The death of multiple victims is a statutory
aggravating factor for homicide, 18 U.S.C. § 3592(c)(16), and a frequent feature of cases authorized for the federal
death penalty. Mr. McNally reviewed 3,554 federal cases which the FDPRCP had identified as potentially subject to
the FDPA. Three hundred and forty-nine (349) cases [*37] involved multiple victims. Twenty of these cases resulted
in federal death sentences. Mr. McNally prepared a table which set out a summary of the offense conduct and the
2 This
case presents anecdotal support for this view since the Vermont U.S. Attorney's Office has consistently sought permission
from the Department of Justice to accept a guilty plea with a life sentence.
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statutory and non-statutory aggravating factors. McNally, Ex 4. His work was not statistical. It is a narrative account
of the actual application of the FDPA in 349 cases which share the aggravating factor of multiple victims. It owes
more to the study of history than to mathematics.
In reviewing Mr. McNally's table, it becomes obvious that there are no identifiable, objective criteria which
distinguish one multiple homicide which resulted in the death penalty from the great majority which did not.
Defendants involved in drug and gang-related violence were relatively more likely to receive life sentences than
death, but there were instances of death sentences for some gang leaders. Two political terrorists responsible for
multiple bombing deaths (McVeigh and Tsarnaev) received the death penalty but the Unabomber (Kaczynski) did
not. The more carefully one reviews the chart and the underlying case summaries, the more arbitrary the
distinctions between cases become. In its cross-examination of Mr. McNally, the Government [*38] developed its
view that the decisions in individual cases are based on multiple factors unique to each case:
Q. ... how could you possibly quantify strength of evidence in a given case? How do you mathematically assess
the value of cooperator testimony by one cooperator versus cooperator testimony by two or three who
corroborate each other? How do you quantify corroborator testimony as compared to independent facts on the
ground that can corroborate the color of the car or the type of gun that was used? The point I am asking you to
consider is there are enumerable myriad factors that go into the decision making process that are simply
unquantifiable?
McNally Tr. 212-213 (7/15/16).
The defense could not have made the point more clearly: the decision to impose death is subjective, multi-factorial,
unreproducible, and, for these reasons, irremediably arbitrary. Mr. McNally is not a statistician and his work was
criticized by other witnesses, including witnesses called by the defense, as statistically unsophisticated. His work
has an historical reality which overcomes methodological criticism. It is undeniable that there is no principled way to
distinguish the few cases in which death is [*39] the result from the many equally abhorrent cases in which it is not.
The prosecution is not wrong when it insists that every case is different and that in comparing any two cases, one
can find enumerable distinctions which may explain the difference in outcome. But Mr. McNally is absolutely correct
when he surveys the entire field of multiple victim cases and can find no objective basis to explain the different
outcomes for similar crimes.
B. Continuing Impact of Race, Gender, and Geography
The defense called Dr. Lauren Bell, a political scientist familiar with statistical methods, to review one aspect of Mr.
McNally's work. Dr. Bell considered whether the gender and race of the victim influenced whether a defendant
received the death penalty. She assessed whether defendants who are convicted of killing white female victims are
sentenced to death at a higher rate than defendants whose victims are not white women. She reviewed a
spreadsheet containing a database showing the race and gender of victims in 489 federal death penalty cases. She
excluded a treason case with no identified victim and five bombings with mass numbers of victims. Through the
application of statistical procedures [*40] used in the social sciences, she determined that "defendants who kill
white female victims receive the death penalty at a substantially higher rate than defendants whose victims are not
white women and that this correlation between white female victims and death sentencing is not the result of
chance." Bell, Ex. 2, 19. A defendant charged with killing a white female victim was 2.7 times more likely to be
sentenced to death than a defendant charged with killing a victim of another race. Bell Tr. 28.
The group of 483 authorized cases which Dr. Bell analyzed included cases which were resolved without trial. She
also considered the smaller set of cases which proceeded through capital sentencing. Again, defendants in cases
involving white female victims were over twice as likely to receive the death penalty as those in cases without such
victims. She concluded that defendants who killed white female victims are "overrepresented among federal death
sentenced defendants." Bell Ex. 2, 22. Her findings were highly unlikely to be explained by other variables or
conditions. Dr. Bell performed a similar analysis for victims in multiple homicides and determined that the presence
of a white victim [*41] increased the odds of a death penalty outcome by a factor of 2.89. Bell Ex. 7.
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The Government called Dr. Matthias Schonlau to testify concerning the issue of race effect in the decision of the
prosecution to seek the death penalty under the FDPA. Dr. Schonlau is a very capable statistician currently
employed on the faculty at the University of Waterloo in Ontario, Canada.
Dr. Schonlau led one of three teams of researchers who conducted a study by the Rand Corporation entitled "Race
and the Decision to Seek the Death Penalty in Federal Cases." Gov't Ex. 2c (the "Rand Report"). The Rand Report
issued in 2006. The three teams employed different statistical measures to consider the race of the defendant and
the victim in FDPA cases authorized between 1995 and 2000. The teams reviewed 312 cases involving 652
individual defendants in which data was available for the race of defendant and victim.
The Rand Report determined that "[m]ost homicides were within racial groups (e.g. white defendants were usually
charged with killing white victims and nonwhite defendants were usually charged with killing nonwhite victims." Id. p.
xvi. In raw numbers, white defendants were over-represented in the group authorized [*42] for capital prosecution.
Id. p. xvi. "Regardless of their race, defendants who murdered whites were more likely to have a seek [the death
penalty] decision than were defendants who murdered nonwhites." Ex. 2c, p. xvi. The work of the teams focused on
whether this disparity could be explained by differences in the heinousness of the crimes.
Two of the three teams (including Dr. Schonlau's group) found no race effect after correcting for the relative severity
of the offenses. A third team found " statistically significant effect of white victim on the [Attorney General's] decision
to seek the death penalty in ... cases where the seek [the death penalty] decision was most probable." Gov't Ex.,
2(b), p. 2. In their conclusion, the Rand researchers dismissed this finding as based on "snooping," which is the
selective consideration of particular findings after completion of a study. Id. p. 2.
On the separate issue of capriciousness, the Rand Report found that the prosecution's decision to seek the death
penalty in any particular case was predictable when the researchers considered the presence of aggravating and
mitigating factors. Schonlau Tr. 169 (7/18/2016). Cases with more serious aggravating [*43] factors were
statistically more likely to be chosen for capital prosecution.
The Rand Report was guarded in its findings. It concluded that "large race effects in the raw data" were eliminated
when case characteristics were considered. This finding was tempered by a candid appreciation of the limits of the
study. Some aggravating factors are quite rare and statistically difficult to measure. Other subjective factors such as
witness credibility are not present in the case files. The charging decision is complex and depends on many factors.
The Rand Report found little evidence of racial bias in the cases they examined but urged that their results "need to
be interpreted cautiously." Gov't Ex. 2(c), p. xx.
Both sides as defined by the testimony of Dr. Bell and Dr. Schonlau contribute to the court's understanding of the
problems of race and capricious selection. Dr. Bell's determination that cases with white victims are significantly
more likely to be authorized for the death penalty remains correct. This finding is essentially what the Rand Report
terms the "raw data." The strength of the Rand researchers' application of aggravating factors to this raw data is
undeniable. Obviously race [*44] of the victim is not the only or even the primary factor in the decision to seek the
death penalty. Severity of the offense is a highly predictive factor. As the conclusions of the Rand Report concede,
however, social science cannot answer the question of race effect with finality or great accuracy. One of three
teams found some evidence of evidence of a victim effect. Since Dr. Bell and Dr. Schonlau agree that cases
involving white victims are more likely to result in the death penalty, the area of disagreement between them relates
to causation. As the Rand Report admits, statistical analysis "can seldom prove or disprove causation." Gov't Ex.
2(c), p. xx. The court concludes that victim race remains a factor in the series of decisions from authorization to
verdict which result in federal death sentences.
The evidence that the charging decision is not capricious was persuasive. Statistical evidence often is, especially to
the non-statistician. But it is inconsistent with a first-hand, subjective examination of the multiple victim cases
offered by Mr. McNally. Obviously Dr. Schonlau is telling the truth when he testifies that his methods (and those of
the other two teams) could identify [*45] with considerable accuracy which cases would be authorized and which
declined based on offense conduct. These distinctions are not apparent, however, when cases are compared one
to the next in the subjective, narrative manner in which the legal system operates. That the outcomes can be
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predicted on the basis of measures of offense severity is a favorable finding for the FDPA. It demonstrates that the
decisions which lead to a death sentence are not random or fully considered. What it does not answer is the claim
that only a few defendants are selected from a group of defendants with equal apparent culpability.
C. Underfunding of Capital Defense
Although Harvard Law School Professor Carol Steiker's testimony related primarily to the withdrawal of Model
Penal Code §210.6 by the American Law Institute, she also testified concerning shortcomings in the federal system
of capital defense. The federal system is superior to many state systems in providing "better funding for defense
counsel in capital cases in the federal system." Steiker Tr. 62. In her view, other more specifically federal concerns
limit the effectiveness of federal defense counsel. These include limited discovery under the federal [*46] rules and
very limited experience in defending cases because so few are ever filed in the federal system. Steiker Tr. 63-64.
The consequence is a high level of reversals of federal death penalty cases and a relatively high incidence of Brady
violations. Steiker Tr. 65. Finally, the sheer rarity of federal death penalty charges and their dependence upon
interstate elements of the offenses lead to overcharging decisions in those few cases which meet federal
jurisdictional criteria. Steiker Tr. 66. Professor Steiker was credible in her determination to give no "free pass" to the
federal public defense system based on the availability of a large budget for defense costs.
Professor Sundby also expressed criticism of the role of defense counsel in capital cases. His research led him to
conclude that many defense attorneys in capital cases "do just enough to get their client executed." Sundby Tr. 178.
They meet minimum standards under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), without doing enough to present a persuasive case for a life sentence. Alternatively, more skilled lawyers
may do the necessary research without having the skill to engage in the "art form of understanding ... how to
communicate and put [the] case for life [*47] together." Sundby Tr. 178. The "wild card" of quality of legal
representation contributed to his perception that the death penalty decision was highly arbitrary.
Lisa Greenman provided detailed testimony concerning the effect of defense costs on federal death penalty
sentences. Ms. Greenman is one of the authors of the 2010 Report to the Committee on Defender Services Judicial
Conference of the United States. Greenman Ex. 5. This report updated the findings of the 1998 Spencer report
entitled "Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense
Representation." Both reports were prepared by staff at the Administrative Office of the U.S. Courts. Ms. Greenman
was employed at the A.O. from 1995 - 1998 and by the FDPRC from 2003-2013. In these positions she worked on
both the original Spencer Report and its update.
The findings of the Spencer update (Greenman Ex. 5) which are most relevant to the constitutional issue
concerning the geographic disparity of the federal death penalty and the correlation between higher levels of death
sentences and lower levels of defense expenditure. In the same way that state death sentences are concentrated in
a handful [*48] of southern and southwestern states, federal death penalty sentences are primarily imposed in
seven states. Out of a total of 81 federal death sentences (including sentences later overturned) imposed between
1989 and 2016, three states (Texas with 14; Missouri with 10; and Virginia with 8) account for 32 and in company
with four more (N. Carolina with 4; Louisiana with 5; and Oklahoma and Georgia with 3 each) account for 47 or
more than half. Twenty states had none. The rest had one or two. Greenman Ex. 6, p. 1. The imposition of the
death penalty depends greatly upon geography.
In analyzing the relationship between capital defense budgets and the rate of death sentences, Ms. Greenman
found that lower expenditure was correlated with higher rates of death sentence. The low-cost states (Georgia,
Texas, North Carolina and Florida) correlated generally with the states with high rates of federal death sentences.
Florida was an exception with only two federal death sentences between 1989 and 2016, despite low average cost
of defense. Ms. Greenman testified credibly that when she looked closely at case files, she found lower rates of
time spent in case preparation in the low-cost states. She [*49] attributed the differences not to unavailable funds
(federal death penalty defense attorneys are paid at the same rate in different districts), but to the involvement of
less experienced attorneys and less time spent in preparing the cases for trial. Greenman Tr. 247 (7/14/16), 18
(7/15/16).
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In summary, the court finds that the death penalty continues to be imposed in an arbitrary manner. The state in
which a crime occurs is the strongest predictor of whether a death sentence will result. Whether the murder victim is
white is also a significant predictor. These findings are as true of cases brought under the FDPA as they are for
state death sentences. When large groups of cases which qualified for the FDPA but did not result in death
sentences are compared with the much smaller groups which did, it is not possible to identify principled distinctions
between the groups. The imposition of the death penalty through the FDPA remains arbitrary despite the efforts of
the prosecution and the courts to impose legal standards to guide the decisions leading to a death sentence.
III. Excessive Delay
A. 18 - 25 Year Delays Between Conviction and Execution
One of the unsettling observations about the [*50] FDPA is the extreme rarity of executions. Only three people have
been executed since 1988. Instead, defendants who receive the death penalty wait on death row for decades.
There are reasons in each case for the delay. These individual reasons are beyond the scope of this decision. It is
fair to say that the delay is generally the result of searching examination of the cases on appeal and, especially, on
collateral review. Second trials, as in this case, are relatively frequent. No judge at any level in the process would
wish to overlook a potential legal error which led to an execution. This case — now in its 16th year — is an example
of this painstaking process at work. The court ascribes no fault to either side for the delay in this case or more
generally in the remaining FDPA cases which have led to death sentences. But it is obviously true that the concern
of critics and proponents alike that the process is choked with delay is substantiated by the record of delay in
virtually all cases brought under the FDPA.
B. Harm Due to Solitary Confinement and Uncertainty of Outcome
The defense contends that the long-term solitary confinement of death row inmates violates the Eighth Amendment
due to the psychological [*51] harm caused by years and decades of isolation. On this issue, the Government
offered evidence of its own from David Berkebile and John Oliver, two former Bureau of Prisons wardens familiar
with solitary confinement as it is imposed within the federal system.
Before discussing the evidence, there is one preliminary issue which must be considered. Defendants on federal
death row have been convicted of horrific crimes involving great cruelty and suffering by their victims. The stories
are hard to tell and hard to listen to. It is no more than human for judges and advocates to compare the victims'
experience with the enforced isolation of death row and to reject the claims of cruel and unusual punishment on the
ground that the victims suffered far worse.
A comparison of the suffering of the defendant and the victim has never established the legal standard for cruel and
unusual punishment. If it did, then there would be few limits to the pain and indignity employed by the state at
execution since there are no limits to the measures employed by people who murder. The Constitution holds the
nation to a different standard of conduct. In addressing the psychological damage caused by solitary [*52]
confinement, the court in no way overlooks or purposefully blinds itself to the immense suffering of the victims and
their families in these cases.
Dr. Haney testified at length about his work in studying the effects of long-term isolation on death row. He described
the unusual measures taken to achieve isolation through the use of slots for food trays, separation of cells, and
strict limits on recreational time spent out of the cell. It is undisputed that by design the Bureau of Prisons restricts
to an extreme any opportunity for contact among death row prisoners and between prisoners and the corrections
officers who supervise them.
Dr. Haney described the conditions of confinement in use at the United States Penitentiary at Terre Haute, Indiana
where all male federal death row inmates are held in a "Special Confinement Unit" or SCU. (There is one woman on
federal death row. She is held in a different prison. Her conditions of confinement were not addressed by the
witnesses.) Pursuant to written policies governing the SCU, inmates are confined to their cells for 23 out of every 24
hours. Haney Tr. 23, 79 (7/11/16). They have very limited contact with other people.
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Dr. Haney reviewed [*53] the scholarly literature describing the psychological harm caused by solitary confinement.
With remarkable uniformity, researchers have identified the harm caused by social isolation in settings in and out of
prison. Haney Tr. 25-30 (7/11/16) . The vast majority of people suffer trauma and distress. In time people who are
isolated experience psychological change in reaction to their abnormal circumstances. They become averse to
human company. Haney Tr. 33 (7/11/16). In two studies performed by Dr. Haney 20 years apart, prisoners held in
isolation experienced high rates of depression and social withdrawal. Haney Tr. 35 (7/11/16). Like so many
psychological findings, these results are not surprising. They are intuitively obvious. See A. Dumas, The Count of
Monte Cristo (1844). What is important about these observations is that they are demonstrably true and have broad
support from other researchers.
The most troubling result which appears in Dr. Haney's research is the effect of long-term isolation of the type
imposed upon death row prisoners. They frequently suffer from what he described as "melancholia, a deep
joylessness, a kind of a grief that's deeper than depression, where people [*54] just feel like they've lost who they
are, who they were. And they've lost the capacity to regain." Haney Tr. 42 (7/11/16). Dr. Haney described this
condition as "a deep and widespread phenomenon" on death rows. Haney Tr. 43 (7/11/16).
Dr. Haney described the physical arrangement of the Terre Haute death row. It is set up to minimize contact by
prisoners with others. The cell windows are narrow and do not permit prisoners to see one another. Some cells
have a sally area or vestibule which serves their cell only and further isolates the prisoner. The conditions are
particularly strict during the first year (Phase I) and after a date for execution has been set (Phase III). The isolation
is heightened by the manner in which prisoners are housed in units which have only a few occupied cells and many
which are empty. Haney Tr. 82 (7/11/16). The cells have no view to the outside, and even the exercise hour permits
only a view of the sky. Haney Tr. 83 (7/11/16). Prisoners have few visitors and no physical contact with those who
do come. Haney Tr. 83 (7/11/16). Their psychological distress is heightened by the passage of years of uncertainty
about their fate. Haney Tr. 87(7/11/16).
Federal defendants [*55] who have been sentenced to death spend many years on death row awaiting execution.
In 2015, there were a total of 62 death-sentenced prisoners.3 More than one-half had been housed at the Terre
Haute facility for more than 10 years. Ten had been there 18 years or longer. Haney Tr. 85 (7/11/16).
The testimony from two federal prison wardens did little to contradict Dr. Haney's testimony.
David Berkebile, a retired warden, testified that at the Florence super-max prison where he worked (not itself a
death row facility but in many respects operated under similar principles of isolation), he and other corrections
officers took advantage of moments during the daily routine to have some human exchange with the inmates. This
took the form of short conversations about the inmate's behavior and plans as well as the physical contact of
guiding an inmate through the hallways on the way to the recreation cell or some other activity. In addition, inmates
had limited contact with one another at group therapy sessions.
John Oliver, also a retired warden, testified that prison remains a dangerous place, especially at the high security
facilities such as the federal penitentiaries. Weapons can be constructed [*56] out of innocuous materials such as
cellophane. These risks justify a high level of isolation and control. Mr. Oliver served as associate warden at the
federal death row at Terre Haute, Indiana. He described the opportunities prisoners on death row have to speak
with corrections officers on rounds, with executive staff, and with professional staff such as psychologists. He
described interaction with staff while a prisoner was walked to daily recreation, medical appointments, and similar
events. He also described interaction among prisoners through plumbing, air vents, and calling out into the corridor.
Death row inmates receive newspapers, mails, and receive "no-contact" visits from clergy, family members, and
attorneys. In short, the isolation, while relatively severe, is far from complete, and there are opportunities for
interaction with other people.
It is clear to the court that the process of holding prisoners for indefinite terms extending into decades in solitary
confinement is highly damaging. No persuasive evidence was offered that such severe isolation was necessary for
3 Different
witnesses counted the total number of federal death row prisoners slightly differently.
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reasons of security or prison safety. It appears instead that it is a long-standing practice — centuries [*57] old — to
isolate condemned individuals. In an earlier era in which the time between trial and execution might be measured in
days or weeks, that practice may have been less damaging to prisoners who were executed or received
commutation to prison sentences. In the modern era, the practice of holding people in solitary confinement under
conditions of extreme isolation has little apparent justification or, at least, little was offered in the course of this
hearing.
C. Volunteering for Death and Rates of Suicide on Death Row
There was no evidence offered on this issue.
D. Excessive Delay Undermines Penological Purposes Including Deterrence
Whether the death penalty, particularly its imposition through execution of convicted defendants, affects the
homicide rate was one of the few hotly contested issues in this case. Both the defense and the Government called
witnesses on this issue. Michael Radelet testified for the defense. The Government called H. Naci Mocan, Matthias
Schonlau, and Paul Zimmerman.
Social scientific research on this issue involves the statistical comparison of the homicide rates in states with and
without the death penalty (panel data studies) and studies directed at a single [*58] state or jurisdiction over time.
The abolition of the death penalty by Furman and its return after Gregg provided a natural laboratory for time
studies. The independent legal systems of 50 states, some with and some without the death penalty, provided the
basis for panel data studies. All studies followed the same principle: homicide rates from different times or different
areas were compared after adjustments were made to remove variables other than deterrence which could explain
the difference in crime rates.
A court seeking to make use of this information is challenged by the high level of mathematical and statistical skill
required to understand the studies. Comprehension and meaningful judgment about the truth of any single
econometric study lies beyond the skill and education level of most judges. And testimony from the authors — while
helpful — is not sufficient either. Fortunately, for purposes of this decision, two factors make the court's task easier.
The first is that whether deterrence works is an important policy issue, but it is not a constitutional requirement for
upholding the death penalty. Second, the field of deterrent effect of the death penalty has been considered [*59]
twice in 30 years by the National Research Council ("NRC"). The NRC is an independent non-profit research body
which forms part of the National Academies of Sciences, Engineering and Medicine. It is highly regarded as a
source of non-partisan policy research. Both times the NRC took up the issue of deterrence, it concluded that the
evidence is insufficient for decision-makers to rely upon deterrent effect in making policy decisions about the death
penalty. In the most recent report which issued in 2012, the NRC panel of experts concluded:
[R]esearch to date on the effect of capital punishment on homicide is not informative about whether capital
punishment decreases, increases, or has no effect on homicide rates. Therefore, the committee recommends
that these studies not be used to inform deliberations requiring judgments about the effect of the death penalty
on homicide. Consequently, claims that research demonstrates that capital punishment decreases or increases
the homicide rate by a specified amount or has no effect on the homicide rate should not influence policy
judgments about capital punishment.
National Research Council, "Deterrence and the Death Penalty," p. 2, The National Academies [*60] Press,
Washington D.C. 2012, Radelet, Ex. 32. The court accepts this conclusion as both credible and published by a
highly qualified, neutral body.
The conclusion of the NRC is also consistent with the court's own experience of listening to the testimony of
witnesses on both sides of the question. The econometric evidence in support of a deterrent effect is statistically
fragile because it depends upon the elimination of other powerful variables and because it produces results which
demonstrate relatively small differences in homicide rates between states with and without the death penalty. On
the other hand, it is difficult to deny the intuitive inference that some people must be discouraged from homicide by
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the risk of capital punishment. Since people who consider but do not commit capital crimes are notoriously difficult
to identify or count, this intuition is likely to remain unprovable.
The court will follow the NRC in finding the evidence insufficient either to identify a deterrent effect or to rule it out
as a possibility.
In summary, delay continues to be a primary feature of the FDPA as well as state death-penalty cases. The
decades condemned men and women spend on death row [*61] under conditions of severe isolation cause harm.
Although deterrence of future murders is identified as a basis for the death penalty, the statistical evidence that
executions, many years after the offense conduct, affect the murder rate has not been accepted by the National
Resource Council and continues to be unprovable.
IV. Unusual — Decline in Use of the Death Penalty
A. Reduction in Annual Death Sentences and Executions
Richard Dieter, Executive Director of the Death Penalty Information Center between 1992 and 2015, provided
statistical information concerning the rate of death sentences. In the years immediately after the Furman ruling, the
national rate of execution was, of course, zero. It rose gradually during the 1980's to a high of 25 in 1987. It then
increased sharply during the 1990's to 98 executions conducted in 1999. Since 2000 it has dropped to 28 in 2015
which is the last complete calendar year available. Dieter Ex. 10. Thirty-one jurisdictions in the United States,
including 28 states, the federal government, the military, and the District of Columbia, have not conducted an
execution in ten years. Only six states conducted executions in 2015. Dieter, Ex. 2, 12-13.
These [*62] are national figures drawn almost entirely from executions by states. Executions almost never occur
under the FDPA. There have only been three in total since its enactment in 1988. The most recent was in 2003.
The federal experience is not so much a decline in executions as it is a decision on the part of many decisionmakers within the federal legal system never to begin.
The imposition of death sentences has followed a similar pattern. Following Furman, states continued to impose
death sentences during the 1970's and 1980's. The number of sentences peaked in 1996 at 315. It dropped
precipitously during the intervening two decades and as of 2015 was in the range of 50 sentences across the
United States annually. Dieter, Ex. 10.
B. State-Wide Abolishment Through Legislative Change
The availability of the death penalty under state law is an important indicator of public support. The Supreme Court
in Atkins stated that "[w]e have recognized that the clearest and most reliable objective evidence of contemporary
values is the legislation enacted by the country's legislatures." 536 U.S. at 312 (internal quotations omitted).
There are three principal positions held among the states. Nineteen states and the District [*63] of Columbia have
formally abolished the death penalty — nineteen by legislative action and one (Connecticut) through a decision by
the state supreme court. One state which had repealed the death penalty by legislation (Nebraska) recently voted
by referendum to restore it. Dieter Ex. 11. Governors in four more states with death penalty statutes on the books
have imposed moratoria on capital punishment. Dieter Ex. 10.
Of the 31 death penalty states, only about half continue to impose the penalty on a regular basis and in these
states, the number of death sentences has dropped greatly over the last decade. In 2015, there were 49 death
sentences nationally. This number is down from a peak of 315 in 1996. California (14), Florida (9) and Alabama (6)
accounted for more than half. These states were followed by Arizona (3), Oklahoma (3), and Texas (2). Dieter Ex.
10.
Eighteen death penalty states imposed no death sentences in 2015. Dieter Ex. 10. These states included Georgia,
Missouri and Virginia which continue to carry out executions.
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From this brief survey, the court finds that there is no consensus among state legislatures either that the death
penalty is appropriate or that it should be [*64] abolished. Imposition of death sentences occurs in a minority of
states, but it is a minority constituting approximately one-third of the states, including the very populous states of
California, Texas, and Florida. In the other two-thirds of the country, the death penalty has been abolished or
remains in effect and is imposed infrequently or not at all.
In addition to legislative activity, the death penalty appeared on the November 2016 election ballot as a referendum
question in three states. In Nebraska voters approved Referendum No. 426 which seeks the restoration of the
death penalty after the passage of legislation abolishing it. Sixty percent of the electorate voted in favor of
restoration. The ballot in California contained two measures. Proposition 62 seeking repeal of the death penalty was
rejected by 53.9% of the electorate. Proposition 66 seeking a reduction in delay in executions passed by a margin
of 50.9%. In Oklahoma voters approved State Question No. 776 by a two-thirds measure. Question No. 776
proposes amendments to the state constitution permitting the legislature to designate any method of execution
which does not violate the U.S. Constitution and preserving death [*65] sentences in the face of challenges to the
method of execution. (Doc. 954). The result in the three states is consistent with the Gallup poll results which show
public opinion to be close to evenly divided with a small majority in favor of the death penalty.
The direction of change since 1996 in all states, including those still actively employing capital punishment, has
been towards a decrease in death sentences and executions over the course of the last two decades. But it would
be premature to state that the practice has dwindled to nothing. The death penalty remains a feature of criminal
prosecution in a substantial number of states, especially in the south and southwest.
C. State-Wide Lack of Use
See Part IV (A) above.
D. Concentration of Death Sentences in a Few States and Counties
The great majority of sentences and executions occur in a handful of southern states. As of 2013, Texas led with
38% of the nation's executions. Id. Florida has produced the greatest number of death sentences in recent years.
Id. Within these states, a handful of counties produce the majority of sentences and executions. Id. Since the
restoration of the death penalty in 1976, the southern states have carried [*66] out 82% of all executions. The
states of the northeast have carried out less than 1%. Id.
E. Direction of Change at the Level of the States
The principal change over the course of the last 20 years has been a marked decrease in death sentences and
executions.
F. Declining Public Support
Both sides introduced evidence concerning public support for the death penalty as measured through opinion
polling. Both sides showed declining support in recent years. Both sides recognized that support for the death
penalty has varied widely over the course of the last 50 years. Although they differed about the direction and speed
of current change, they agreed that public support for the death penalty has dropped from 80% in 1985 to 61% in
2016.
Frank Newport, Editor-in-chief of the Gallup Poll, testified about the course of public opinion regarding the death
penalty. Gallup has been asking the same question of Americans since 1936: "Are you in favor of the death penalty
for a person convicted of murder?" In 1936, 59% of subjects polled were in favor and 38% opposed. The
percentage in favor increased gradually until it reached 68% in 1954. It then dropped steadily over the next 12
years until in 1966 [*67] the percentage opposed (47%) exceeded those in favor (42%). From 1966 until 1995, the
percentage in favor increased to 80% while those opposed dropped to 16. Since 1995, support has declined
steadily to 61% in favor and 37% opposed in October 2015. Gov't Ex. K20 (Newport).
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Michael Radelet testified concerning other measures of public support and opposition. When the polling question is
altered to whether a subject favors the death penalty or life without parole, a majority now favors life imprisonment
(52%) over the death penalty (42%). Radelet Tr. 137. He also identified more subjective measures such as
legislative abolition by states, an increase in jury verdicts in favor of life imprisonment, and the refusal of
pharmaceutical companies to permit their products to be used in executions. Radelet Tr. 138-43. These confirm the
reduction in public support.
The court finds, on the undisputed evidence of the Gallup polling, that support for the death penalty still exceeds
opposition but that support has been declining and opposition growing over the course of the last two decades. The
two sides are now approaching an equal balance.
Additional evidence of declining support for the death penalty [*68] came from Harvard Law School professor Carol
Steiker who was one of two authors of a report to the Council of the American Law Institute (ALI) concerning the
ALI's position concerning Model Penal Code § 210.6. Steiker Ex. 5. The ALI adopted section 210.6 in 1962 at a
time when death penalty decisions were made by judges or juries in the absence of legal standards intended to
guide decision making. The ALI proposed the now-familiar bifurcated process with a separate penalty phase
permitting the proof of mitigating and aggravating factors. Section 210.6 was largely ignored by state legislatures
until the Furman decision ruled that unguided jury discretion violated the Eighth Amendment. Four years later the
Gregg decision approved the enactment of new death penalty statutes which generally followed Model Penal Code
section 210.6. The FDPA also follows section 210.6 in most respects.
In 2007, the ALI requested Carol and Jordan Steiker "to review the literature, the case law, and reliable data
concerning the most important contemporary issues posed by the ultimate question of retention or abolition of the
death penalty and, if retained, what limitations should be placed on its use and what procedures should be required
before that sentence is imposed. Another way [*69] of asking the question is this: 'Is fair administration of a system
of capital punishment possible?'" Steiker Ex. 5, Annex B.
The Steikers produced a detailed report which was accepted by the ALI and led to the withdrawal of section 210.6
from the Model Penal Code. The report addresses the shortcomings of the death penalty statutes in force in many
states as well as in the federal criminal code. Since it was the ALI which first proposed the bifurcated jury trial as a
reform of existing practices, criticism of the ALI's own work is a strong indication of the state of support and
opposition for the death penalty within the legal profession. Because the ALI seeks to be non-partisan and includes
both lawyers and judges who are selected on the basis of experience, the views of the organization on any legal
issue carry great weight.
The principal points addressed by the ALI report are:
a. The constitutional requirements that a jury engaged in the penalty phase of the case be guided by standards
limiting the death penalty to the most serious cases and at the same time directed to make an individualized
decision with wide latitude in considering mitigating circumstances has been a failure. Death penalty statutes [*70]
have become over-inclusive in permitting most first degree murders to meet the first test. The second stage in the
test — unlimited consideration of mitigating and aggravating circumstances — has come to dominate the
sentencing phase. The result is little different from the pre-Furman structure in which judges or juries determined
most murders to be eligible for the death penalty and then addressed issues of punishment and mitigation in a
setting devoid of guidance or legal rules.
b. Racial bias and racially disparate outcomes continue to undermine the fairness of death penalty trials. Bias
affects the composition of jury panels from which members of a minority groups are disproportionately removed as
well as the sentencing decisions themselves. In particular, the race of the victim plays an improper role in jury
decision-making. The decision of the U.S. Supreme Court in McCleskey seeks to exclude issues of racial disparity
in death sentences from consideration by the courts. The limited protection against biased jury selection afforded by
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), has failed to provide a sufficient remedy
for this systemic inequity.
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c. Claims of constitutional and other error in state court cases are too frequently [*71] shielded from federal habeas
review by Supreme Court doctrine and provisions of the Antiterrorism and Effective Death Penalty Act of 1996, 28
U.S.C. §§ 2254(d), 2261-2266.
d. Sixth Amendment guarantees of effective counsel are often effectively blocked from consideration by the
governing standard in Strickland and by procedural requirements. As a consequence, capital defense remains
chronically underfunded and frequently inadequate in many states.
e. A significant number of active and retired Supreme Court justices have publicly repudiated their past support for
the death penalty. Among those who continue to express support are several who have publicly criticized the
current standards as contradictory and unable to promote guided discretion by juries. Five of the sitting justices at
the time of the report had expressed serious doubts about the fairness and constitutionality of the death penalty.
f. The administration of the death penalty in the states is weakened by the intense politicization of the process of
charging, conducting trials, and considering clemency by elected office holders such as prosecutors, judges, and
governors. The politicization of the debate extends to legislators as well.
g. Social science research has demonstrated [*72] that capital jurors frequently fail to understand the multiple and
complex questions they are required to answer.
h. With the advent of DNA testing, the suspicion that significant numbers of capital defendants were convicted in
error has hardened into certainty. Reasonable estimates range between 2.3 and 5% of capital convictions.
i. The death penalty — while infrequently charged and more rarely carried out — exerts a strong lunar pull on the
national debate over appropriate sentences for non-capital crimes. Death penalty litigation also imposes enormous
costs on all constituent members of the criminal justice system.
The report concluded with the recommendation that the ALI no longer take part in efforts to ameliorate particular
problems with the death penalty.
The ALI Council (a governing body drawn from ALI membership) was in general agreement with the critique of the
death penalty laid out in the Steiker report. The Council was more cautious (and divided among its members) about
advocating for the abolition of the death penalty. In the Council's view, section 210.6 of the Model Penal Code "has
not withstood the test of time and experience." Steiker Ex. 5, p. 4. The Council noted that "[m]any on the
Council [*73] have concerns, convincingly described in the Steikers' paper and other sources, about the
administration of the law of capital punishment in the United States, including the administration of death-penalty
laws derived from sec. 210.6." Steiker Ex. 5, p. 4. It noted that in the absence of confidence that reforms could
remove these concerns, the ALI "should not play a further role in legitimating capital punishment, no matter how
unintentionally, by retaining the section in the Model Penal Code." Steiker Ex. 5, p. 4. The Council recognized the
political nature of the death penalty debate and believed that consensus among its members on "profound moral,
political, and social issues, with the views of individuals often being based on deep personal convictions" made
consensus unlikely. Steiker Ex. 5, p. 4.
At the annual meeting in May 2009, the ALI passed an amended version of the recommendation. It took no position
on whether capital punishment is an appropriate punishment or should be repealed through legislation. Instead, it
adopted the first part of the recommendation in the following language:
That, for reasons stated in Part V of the Council's report to the membership, the Institute withdraws [*74]
Section 210.6 of the Model Penal Code in light of the current intractable institutional and structural obstacles to
ensuring a minimally adequate system for administering capital punishment.
Steiker Ex. 6, p. 311-12.
The ALI report and subsequent vote is persuasive evidence that the nation's leading nonpartisan body of lawyers,
judges, and law professors agree that the present death penalty procedures as developed and required by the
Supreme Court fail to meet minimal constitutional requirements.
40
DAVID RUHNKE
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2016 U.S. Dist. LEXIS 171849, *74
In summary, the evidence does not support the claim by the defense that there is a consensus of public opinion
opposed to the death penalty. State legislatures are divided on the issue. Approximately one-third have abolished
the practice. Another third retain the death penalty on the books but do not make use of it. One-third of the states
impose death sentences with some degree of regularity. A few of these states use it frequently. The rates of death
sentences and of executions have dropped sharply over the last two decades. Public support is divided with a slight
majority in favor of the death penalty. Recent referenda in three states (Oklahoma, Nebraska and California)
revealed continuing public support [*75] for the death penalty by varying margins of 5% to 10%.
G. Practice by Other Nations
Evidence on this issue was not offered by either side.
ANALYSIS
Constitutional challenges to the death penalty take three primary forms. All depend upon the Eighth Amendment
prohibition against the infliction of cruel and unusual punishments.
There are challenges to the method of execution. See Wilkerson v. Utah, 99 U.S. 130, 25 L. Ed. 345 (1878)
(permitting execution by firing squad); In re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 (1890) (permitting
execution by electrocution). These cases rest on an understanding that the inhuman and barbarous punishments of
the colonial era which included public hanging, burning, nose slitting, branding, whipping and other forms of
corporal punishment, conducted before large crowds, no longer meet constitutional standards. Social norms change
over time, and ours have changed to require methods of execution which minimize pain and disfigurement. This is
not an argument made by the defendant in the motions now before the court.
There are challenges to the proportionality of the punishment to the offense. The body of case law developing this
line of analysis starts with non-capital cases. In Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793
(1910), a civil service employee in the Philippines, then a colony of the United States, received a 15-year [*76]
sentence of hard labor for relatively minor misconduct. The Supreme Court held that a sentence which was
disproportionate to the seriousness of the crime violated the Eighth Amendment.
In Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958), the offense of desertion had been punished
with loss of citizenship. Such a drastic penalty was held to violate "evolving standards of decency that mark the
progress of a maturing society." Id. at 100. The Court acknowledged the gravity of declaring a punishment enacted
by a popularly elected legislature to be unconstitutional but recognized its own obligation to enforce constitutional
requirements.
Commencing with Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), the Supreme Court has
declared certain offenses to be insufficiently severe to warrant death. In Coker, the Court proscribed the death
penalty for the rape of an adult woman. In Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140
(1982), the Court held that defendants convicted of felony murder who did not take part directly in the homicide
were not subject to execution. See also Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987)
Today the death penalty is reserved for homicide in the state courts. The FDPA includes crimes such as treason but
for most practical purposes, the federal death penalty is similarly reserved for murder cases.
In Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), the Supreme Court extended
disproportionality analysis to intellectually disabled [*77] offenders charged with murder. Such defendants are no
longer subject to the death penalty. For similar reasons, youths whose offense conduct occurred while they were
under 18 are not subject to the death penalty, Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1
(2005), or to a sentence of life without parole, Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). In all
these cases, the Court ruled that either the crime or the offender did not measure up to the gravity of the penalty.
The defendant in this case has raised a disproportionality argument.
DAVID RUHNKE
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2016 U.S. Dist. LEXIS 171849, *77
Finally, there are challenges to the punishment as arbitrary because it fails to meet the requirements of Furman and
Gregg that death penalty statutes clearly separate the minority of the worst murderers who are subject to the death
penalty from other offenders charged with homicide. The defendant contends that the FDPA is unconstitutionally
arbitrary because it fails to provide a reliable means of identifying the very worst offenders.
DISPROPORTIONALITY
The claim that the FDPA is disproportionate to the offense of murder is a normative, moral claim. The claim of
disproportionality has these qualities when the Supreme Court applies it to offenses less serious than murder or to
defendants who are less culpable [*78] as a result of youth or intellectual disability. In Atkins, the Court laid down
the requirements it would impose upon itself in declaring the death penalty too severe for a particular category of
cases or defendants. The requirements are two. First, the Court required a showing that the particular practice of
executing people with intellectual disabilities lacked public support. It found evidence for this in the widespread
actions of state legislatures in abolishing the death penalty for such offenders. Second, the Court looked to its own
judgment in considering whether a particular category of cases should be exempted from state death penalty laws.
The disproportionality argument in this case is far broader than the claim in Atkins and subsequent cases. It is not
just a sub-set of death penalty cases or defendants which are said to be treated in a manner disproportional to the
degree of culpability. The defense argues that the death penalty is a disproportionate penalty in all homicide cases.
The argument is categorical and reaches all possible applications of the death penalty. But the analytical process is
the same as the analysis in any other disproportionality case. Is there strong [*79] evidence of a lack of support in
public opinion as well as a basis for an independent judicial judgment that the FDPA violates current standards of
decency? These are legal standards, not invitations to act upon personal convictions and beliefs. As legal
standards, they require the trial court to review the evidence and apply it to the standards.
A. Public Opinion
The evidence concerning public opinion is mixed and depends upon whether one searches for a fixed snapshot of
the ratio of support and opposition or a trend or direction. The difference is like the difference between arithmetic
and calculus. The Government offers evidence of public opinion at the present moment which is an arithmetic
percentage. A majority of states and the federal government have death penalty legislation on the books. About half
make use of this authority although use continues to decrease. Eighteen states have abolished the death penalty
through legislation and another through judicial decision. Only a few states now conduct executions with frequency.
The defense directs the court to the speed and direction of the change in public opinion. The defense relies upon
what one might call the derivative function [*80] and argues that the steep decline in public support and
accelerating abolition of the death penalty by state legislatures is sufficient evidence of a lack of public support to
satisfy the Atkins requirement.
Both sides are right. There is no doubt that the country is divided over the death penalty. The division is roughly
50/50 in public opinion and two-thirds in favor of outright abolition or at least non-use and one-third against when
state legislatures are counted. The trend among the states is toward abolition although the recent referendum in
Nebraska, reinstating the death penalty after legislative abolition over the governor's veto, as well as the votes in
Oklahoma and California are evidence that the trend is not universal.
The requirement in Atkins and related cases for public support for abolition of the death penalty reflects the Court's
concern about striking down legislation in violation of the will of the electorate. It also reflects a concern that the
Court measure evolving standards of decency on the basis of broad popular support or rejection. If the death
penalty is to be held unconstitutional because it violates these standards, then those standards must be seen
to [*81] be widely shared by the nation as a whole.
The record in this case does not support a view that the country has achieved consensus on the desirability of
abolishing the death penalty. Public opinion is turning against the death penalty and state legislatures have done so
as well, but the change is insufficiently broad to meet the Atkins requirement of consensus at this time.
42
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2016 U.S. Dist. LEXIS 171849, *81
B. "In our judgment"
There is no need for this court to express personal views on the disproportionality of the death penalty since the
requirement of public consensus for abolition has not been met. First, it is unlikely that the Supreme Court intends
to extend authority to make such a judgment to the lower courts. To do so would invite a variety of strongly-held
beliefs which would do little to assist the Court. Second, the court is aware that this case is scheduled for a second
jury selection and that any views of the trial judge will receive publicity. There is little value and considerable
mischief in expressing the court's personal views in a manner which could further complicate jury selection.
ARBITRARY OR CAPRICIOUS
The court turns now to the final argument made by the defense which is that the FDPA in common [*82] with state
death penalty provisions contains systemic flaws which make it inherently arbitrary and incapable of a reliable
determination of which offenders should die and which should not.
In McGautha v. California, 402 U.S. 183, 196, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971), the Court considered
whether "the absence of standards to guide the jury's discretion on the punishment issue is constitutionally
intolerable." The Court considered whether the jury instructions met due process standards. The Court declined to
require the bifurcated capital trial which it would require five years later in Gregg. But the relevance of McGautha is
not that the Court can change its mind. McGautha is most remembered for Justice Harlan's criticism of the
bifurcated process. In upholding a unitary trial in which the jury decided the penalty issue with little guidance from
the court, Justice Harlan wrote:
To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the
death penalty, and to express these characteristics in language which can be fairly understood and applied by
the sentencing authority, appear to be tasks which are beyond present human ability.
Id., 402 U.S. at 204. A year later in Furman the Court found authority in the Eighth Amendment to hold the death
penalty [*83] unconstitutional. Although the decision in Furman rests on multiple concurring opinions and lacks a
single majority statement, it is clear that it was the lack of guidance by legal principles and the arbitrary application
of the death penalty, as well as deep concerns about racial unfairness, which gave rise to its short-lived abolition.
When the Court returned to the field in Gregg in 1976, it was to endorse the bifurcated procedure it had previously
rejected in McGautha.
The Gregg decision holds that the death penalty does not invariably violate the Constitution and a jury entrusted
with the sentencing decision must be guided by specific legal standards which "focus the jury's attention on the
particularized nature of the crime and the particularized characteristics of the individual defendant." Id. at 206. The
majority decision expressed confidence that "[n]o longer can a jury wantonly and freakishly impose the death
sentence; it is always circumscribed by the legislative guidelines." Id. at 207.
Gregg issued at the beginning of current, post-Furman death penalty jurisprudence. It considered a newly enacted
state statute and approved it on grounds which one may fairly call a priori rather than evidence-based. [*84] The
majority decision held that the presence of defined aggravating circumstances within the state statutory scheme
was sufficient protection against arbitrary imposition of the death penalty. The Court returned to the problem of
arbitrary imposition in McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), in which it
declined to consider social science research concerning the effects of racial prejudice on the imposition of the death
penalty. "The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a
potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment." Id. at 319.
The Court referred objections based on empirical observation to the legislative process.
Since McCleskey, the Court has rejected arguments that the actual experience of death penalty cases
demonstrates the arbitrary nature of jury determinations. See Glossip (concurring decisions of Justices Scalia and
Thomas). In Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), the Court held that the rule
expressed in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), requires a jury, not
a judge, to make findings concerning statutory aggravators. See Hurst v. Florida, 136 S. Ct. 616, 193 L. Ed. 2d 504
DAVID RUHNKE
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2016 U.S. Dist. LEXIS 171849, *84
(2016). The Government is correct that the current state of the law as expressed by the Supreme Court is that once
the required statute is in place [*85] and the jury is made the decision-maker, the inquiry into factors such as racial
bias, geographical disparity, and other shortcomings in jury decision-making is largely at an end. Justice Breyer's
dissent in Glossip is just that — a dissent, inviting further consideration by the Court. The trial court can respond by
conducting an inquiry and setting the table for further review. The lower court lacks authority under any meaningful
rule of law to alter the higher court's ruling.
The court also considers the Second Circuit's decisions concerning the constitutionality of the FDPA, including the
prior decision issued in this case. In United States v. Fell, 531 F.3d 197 (2d Cir. 2008), the court rejected a claim
that the FDPA violated the Fifth and Sixth Amendments by requiring a single penalty phase in which the jury
considered the issues of statutory eligibility for the death penalty. The opinion does not invite an even broader
decision from the trial court on the constitutionality of the death penalty.
Although the arbitrary imposition of the death penalty on one defendant but not another has been central to Eighth
Amendment concerns about fairness since McGautha and Furman, it is difficult to apply as an independent
constitutional doctrine. It certainly feels unfair when [*86] the law treats one person differently from another. The
criminal law in general and the law of sentencing in particular strive for equal application to similarly situated
defendants. But these are not constitutional principles. When differential treatment is based on race, gender or
some other suspect category, a constitutional remedy is generally available. A bare claim that one defendant has
been treated differently from another does not give rise to the same constitutional protections. But it remains very
hard for any of us to tolerate a legal regime which orders that one person should live and another should die based
upon a selection process which is demonstrably flawed at the level of jury decision-making.
The court identifies the arbitrary imposition of the death penalty as a factor most appropriately considered by the
Supreme Court in that stage of the disproportionality analysis which relates to the Court's own judgment. See
Steiker and Steiker, Courting Death, p. 284 (Harvard U. Press, 2016). The record of arbitrary imposition of the
death penalty through the FDPA is clear and at least some of the reasons have been identified through the
testimony at the evidentiary hearing. [*87] These include the effect of the voir dire process on jury decision-making
and the high rate of death penalty authorization and conviction in the few states which traditionally favor a high rate
of death sentences in their state court systems. In the case of the FDPA, the arbitrary qualities of the death penalty
are most clearly visible through the narrative comparison of crimes which do and those which do not receive death
sentences. These crimes are indistinguishable in their severity, and neither side offers any objective measure or
qualitative basis for separating one group from another.
It has become clear that the adoption of the bifurcated jury trial by so many states and the federal government has
not done enough to eliminate the arbitrary imposition of the death penalty. The court returns to the question it asked
at the beginning of the opinion. Has actual experience borne out the promise for a more reliable system of capital
punishment expressed in the Gregg decision? The evidence produced for the court answers the question in the
negative. These findings and the fuller record of the hearing conducted before the court substantiate the questions
and the criticism expressed in [*88] the Glossip dissent. The trial court stops short, however, of altering the holding
in Gregg that "[t]he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or
capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given
adequate information and guidance." Gregg is still the law of the land. As the Supreme Court wrote about its own
authority in State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S. Ct. 275, 139 L. Ed. 2d 199 (1997), "it is this Court's
prerogative alone to overrule one of its precedents."
The time has surely arrived to recognize that the reforms introduced by Gregg and subsequent decisions have
largely failed to remedy the problems identified in Furman. Institutional authority to change this body of law is
reserved to the Supreme Court. For this reason, the trial court is required to deny the defense motions related to the
constitutionality of the death penalty.
CONCLUSION
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2016 U.S. Dist. LEXIS 171849, *88
The Motions to Dismiss the Death Penalty as a Punishment (Doc. 668), to Strike Amended Notice of Intent to Seek
the Death Penalty (Doc. 670), Motion to Dismiss (Doc. 673) and to Declare the Death Penalty Act Unconstitutional
(Doc. 674) are DENIED.
Dated at Rutland, in the District of Vermont, this 13th day of [*89] December, 2016.
/s/ Geoffrey W. Crawford
Geoffrey W. Crawford, Judge
United States District Court
End of Document
DAVID RUHNKE
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46
TEAMWORK TOOLS AND FORMS
47
David Andersen
Andersen & Zimmer
385 Grand Avenue, Suite 300
Oakland, CA 94610
(510) 835-4952
[email protected]
Anna Louise Jeno
Capital Resource Counsel Project
Hosted by the FPD for the District of Oregon
101 SW Main Street, Suite 1700
Portland, Oregon 97204-3225
(503) 279-4261
[email protected]
Technology – Teamwork and Tools1
I.
Introduction:
A.
Capital cases require teamwork.2 There will be more team members with whom
you must coordinate than most of us are used to. A capital case requires a team that
works together, coordinating a massive amount of discovery and investigation
documents over an extended period of time. Making this task more difficult is that
team members, and hence their computers, are often not working from the same
office. Data will have to be copied from one computer to another, and yet maintain
consistent organization.
B.
Computers and software can be immensely helpful, but planning ahead at the start
of the case enables your team’s capacity to make the most of these tools, as well as
to track document flow for discovery, investigation, and mitigation purposes.
Switching mid-stream from one software platform to another, or reorganizing the
the way your data is organized, is very difficult and very time consuming – there
will never be sufficient time nor resources to reinvent the wheel. Maintaining an
organized case file will be challenging under the best of circumstances, establishing
a strong, clear plan will save tremendous time and provide a solid foundation for
the team.
C.
Accordingly, at the start you should create a plan for:
1.
Team communication and coordination – what system or program will the
team use to communicate? Will there be a shared calendar? How will tasks
be assigned?
2.
Creating a common directory (folder) structure,
3.
Creating a common file naming convention,
1
This outline was prepared for and presented at the 2015 Federal Death Penalty Strategy Session in Fort
Lauderdale, Florida.
2
ABA Guideline 10.4 provides that your client is entitled to a team consisting of: two Lawyers, one of
whom must be "Learned Counsel," a mitigation specialist, a fact investigator, and one member qualified by
training and experience to screen for mental or psychological disorders or impairments. However, this is
just the beginning. The team must have others, including but not limited to paralegals and other experts –
testifying or non-testifying. Finally, the team must also include its most important member: the client.
Guideline 10.5 acknowledges the importance of the relationship of the client to the team, and requires that
counsel establish a relationship of trust.
48
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4.
5.
II.
Determining if you will use a Cloud based storage system,
Determining which computer programs you will use, and ensuring that a
team member is not marginalized because that person does not have the
program or know how to use it.
Team Communication:
A.
Email:
1.
Email has now become a basic communication tool. Take care to not
compartmentalize information across the team. Emails regarding the case
should be sent to everyone. Frustration across the team can occur when
information-transfers omit team members, and people not included in
emails will feel marginalized.
2.
Email brings security issues. All of us have had the chilling experience of
sending an email to the wrong recipient, or inadvertently hitting Reply All.
a)
One solution to this problem is to agree that any sensitive content
will not be included in the body of an email, but rather included in a
separate, password-protected attachment. The password can be
agreed upon by the whole team at the beginning, or transmitted
under separate email. If the document is password protected, and
email is incorrectly addressed, the recipient cannot easily open the
sensitive document.
b)
Adobe PDFs, Word, and Excel all allow documents to be easily
password protected. They also allow the document to be unprotected once you have downloaded it. That means that you will
not have to keep entering the password each time you open the
document.
B.
Alternative communication platforms:
1.
Basecamp is a web-based service, which allows for team communication
and coordination, including a team calendar. There are a couple different
options within Basecamp (a newer format, and Basecamp Classic). The
newer format is a bit more device-friendly, but has some organizational
drawbacks. The benefits to using Basecamp include:
a)
Reduced risk of the inadvertent email being sent (sending a message
containing sensitive information to someone outside the team);
b)
Current and historic communication is accessible to everyone on the
team – as responsibilities shift, new tasks assigned, or when a team
member joins the team –communication is available and searchable;
no institutional knowledge of the team resides in any one member;
c)
Reduced email overload – the team can know that the critical
communication is centrally stored, and not hidden in their In-Box,
no one needs to spend time filing and storing email;
d)
Shared scheduling – Basecamp provides a shared calendar, which
can be used to set meetings, deadlines, and schedule client visits.
-2-
49
2.
3.
Slack is a convenient platform for communication, in which the team can
establish “channels” to discuss specific topics, have direct chats with a
subset of team members (this would not be searchable by team members
outside the chat), and share files. Slack is an easily-accessible program,
with options to add-in additional features, such as calendars.
Many other options are available, and more come out every day (Asana and
Igloo are other examples) – talk with your team to see if anyone has a
preferred platform.
C.
III.
Telephone – A phone call remains the preferred medium for certain
communications. Establish a conference call number for the team to use.
Uberconference is an easy to use, free service. JoinMe is another option, with a
variable pricing structure (starting with free). FreeConferenCall.com will give you
a free conference call number, and it really is free.
Folders or Directory Structure:
A.
Setting up an organized electronic file structure should be as thoughtful and
methodical as organizing paper; the difference will be that the results can be much
more useful. If team members do not have a common directory (and file naming)
convention, copying data from one computer from another will result the same data
being stored in several places in the case file, or the same document appearing in
the same directory, but under two or three different names.
1.
The problem is that you may be updating a memo stored in one directory,
but other team members will be updating a duplicate of that memo stored in
another directory. Alternatively, you may be updating a file under one
name, but other team members will be updating that same document under a
different name in the same directory. Neither of you will get the benefit of
the other’s work.
2.
With multiple copies of the same file under different names, team members
will need to compare documents, identify which is the relevant document,
perhaps miss an updated document, and so on. These are all steps that could
be eliminated with a clean and consistent file naming protocol.
3.
With a standardized convention, the team will be capable of efficiently
finding any necessary document at any time.
B.
Do not over-folder - There is nothing more confusing and time-consuming than
plowing through multiple layers of subfolders to find one file per folder.
1.
In addition, every folder lengthens the file path; too many levels of
directories or over long file names may run into the Windows operating
system’s limitation of 256 characters for file paths. If you have too many
subdirectories or a name that is too long, Windows will refuse to copy files
from one computer to another because it cannot write a path beyond 256
characters.3
3
We cannot control how we get discovery from the Government, and for some reason the
Government loves many directories, and many sub-directories with very long file names. If you
find yourself with a directory structure that has an overlong path, there is a program called Fast
50
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2.
As a result, a limited number of subdirectories and brevity in file names is
important.
C.
However, separate folders are excellent for organizing volumes of documents
(discovery received at one time, mitigation documents, investigation documents,
work product).
1.
When setting up your directory structure, you should consider what will be
an intuitive structure for team members, but also consider word searching.
Files should be housed in the same directory if there is a group of files for
which you would want to do word search of only those documents. For
example, if you are habeas counsel you will want trial counsel’s file to be in
a separate directory (with or without subdirectories) so that you can search
that directory for a name to see if trial counsel knew of a particular witness.
Other separate directories will probably be discovery, correspondence,
witness folders, and your client conference memorandums.
D.
Take the time to create a protocol that sets forth what documents should be saved to
which directory. A brief index of the folder structure and rationale (an Excel chart,
for example) can help a large team know where they can find what they need, and
where they should save their work for others to find. This may help control the
instinct to over-folder. Having the team work together to develop this plan not only
ensures that everyone understands and is on-board, but also provides the benefit of
the collective knowledge of the team, and may prevent future organizational
headaches.
E.
IV.
Use the folder names to improve team collaboration and communication.
1.
Adding DRAFT or FINAL to the name of a folder can speed up the process
of looking for a particular version of a document.
2.
Rather than deleting old versions of work product, consider a subfolder with
OLD VERSIONS or OLD DO NOT USE as the file name. This can save a
lot of version-control-related heartbreak if a team-member needs to revisit
their earlier work.
File naming protocol:
A.
A solid file-naming structure helps with clarity and organization.
B.
Name things how you want, but chose a plan and stick with it. A consistent
naming system helps to identify duplicate documents, saves the team valuable time,
and makes documents easy to find.
C.
This can also prevent one team member’s work being unintentionally overwritten
by another.
D.
You can use a good file-name, with key information, to create an easy index in
Excel, which can also be imported into Casemap’s fields (using an overlay option
with TXT files).
Copy which can be downloaded, and will write a file path greater than 256 characters. Although
Windows will not write a path greater than 256 characters, it will read an over-long path once it is
written.
-4-
51
E.
52
How to create a file-naming protocol? Pick what works for you and for the team;
but again stick with whatever you pick. When settling on a file naming convention,
consider how files will be sorted within a folder:
1.
For discovery and investigation documents, perhaps use the bates-label:
a)
Your computer will sort and then display the files by file name;
sorting by file-name will organize by bates number. If you have a
detailed file name as outlined below, the team can look into a folder
of files and see everything sorted by bates numbers, with
descriptions of the contents, which can be a reassuring time-saver.
2.
For other documents, and documents not yet bates-labeled, defaulting to
using the date (YYYY-MM-DD) as the beginning of the file name can be
convenient.
a)
If named in this matter, your computer will automatically sort, and
then display the files in chronological order.
b)
If team members have their own hard discs, you will have to keep
each member’s disc current by copying files from one disc to the
other. Naming files which begin either with the date or with a bates
number is critical. When you are synchronizing the data in the
directories, you need to know what has to be copied. If each file in
the directory is sorted by the computer by bates number or by date,
then you can easily see what files need to copied from one disc to
the other. If the bates numbers stop on one disc, but continue on the
other, then you need to copy those files. The same with date ranges.
3.
A quick space-saver is to label letters as LT for “letter to”, memoranda as
“MT”, and emails as “EMT.” You don’t have to open the file to see the
date, the subject, and (author). For example:
a)
2015-07-30 Smith LT Jones re file naming conventions
b)
2015-07-30 Smith MT Jones re document protocol
c)
2015-07-30 Smith EMT Jones re discovery
4.
An exception to this rule may be interviews or other documents where the
person is the most important element of the file, especially in cases where
there might be multiple interactions with a person over time. For example,
when you open a “Mitigation Interviews” folder, your primary interest will
be to find the couple of interviews for John Smith, you will not want to
search down a chronological list. Consider:
a)
Smith, John Interview 2015-07-30 (by Jones)
b)
A uniform date system will make sure that you can quickly see the
chronology of Smith interviews, then sorted by interviewer.
c)
However, if this person is an important player in the case, you may
want to set up a separate directory labeled “Witnesses” and have a
subdirectory named “Smith, John” into which you would put all
documents regarding person with the normal naming convention.
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F.
V.
If you have large batches of files to rename as you organize, there are programs to
help with this, such as Better File Rename. This program lets you create parameters
for changing file names in bulk.
Scanning:
A.
Quickly finding information in your file begins with scanning.
B.
Scanning is the process of taking a picture of your documents to create a digital
file. This is not really different from what you do with your digital camera, and in a
pinch you can use a digital camera (or an app on your phone) to scan documents.
1.
If you need to get a scan of documents when you had not anticipated
needing to do so, just pull out your phone and take a picture. That picture
can be converted to an Acrobat file with hidden text, although the OCRing
is not likely to be as good as one done by a scanner.
C.
Scanning used to be expensive, but now it is cheaper than copying, and can be done
in-house unless the job is very large.
D.
You may not even need to buy a scanner.
1.
If you have purchased an office level copier in the last few years, that copier
is a scanner. If your copier is networked, it probably has the capacity to
scan documents to a digital file on a hard disk in the copier. You can then
copy those files to your computer.
2.
If your office is going to buy or lease a new copier in the near future, you
want to ask for this feature.
E.
VI.
However, even if your office copier does not scan, you can buy a scanner that will
do the job well, and it is a piece of equipment that is small enough that you can
keep it next to your computer on your desk.
1.
If you are going to buy a scanner, don’t go super cheap. You want a scanner
with at least a 50 sheet feeder capacity and you want one that will detect
when the feeder has sucked in more than one sheet of paper at a time.
Scanning to Adobe Acrobat:
A.
Most people know Adobe Acrobat as a program that will display an image of a
document or picture on your computer screen. In addition, that image is supposed
to look the same regardless of what type of computer you use, Mac, PC, etc.
Changing programs leaves the formatting intact.
B.
Most people believe that an Acrobat file is unchangeable. It is not. There is a great
deal that can be done in Acrobat to make the document more useful for you.
However, you need a full version of Acrobat to do this.
C.
There are several versions of Acrobat.
1.
The least functional is Adobe Reader. It is free, but omits Adobe’s most
helpful functionality.
2.
The two full versions are Acrobat Standard and Acrobat Pro. You are going
to need one of these, and unfortunately they charge for them. However, a
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53
3.
54
scanner purchase will usually come with a full version of Adobe Acrobat,
usually the Standard version.
The differences between Standard and Pro are significant, but you may not
need to buy Pro if you already have Standard. However, there are three
features of Pro that may cause you to spend the money:
a)
The ability to redact documents.
b)
The ability to add bates numbering.
c)
The ability to remove meta data from documents.
D.
There are also several generations of Acrobat Standard and Pro. The current
version of Acrobat is Version XI.
1.
We recommend that you buy or upgrade to Acrobat X or XI, because they
have the best OCR engine that Adobe has come out with yet. Comparing
OCRd scans made with Acrobat IX with OCRd scans of the same page
made with Acrobat X. Acrobat X scans performed the OCR better. Some
claim the current version’s scans are 30% better. I doubt that, but they are
definitely better.
E.
What is OCRing? Optical Character Recognition is the process by which a
computer program examines the graphic image displayed on the screen and to
determine if text is present.
1.
When your computer displays an image on the screen, all it knows is that it
is supposed to put a dot here, a dot there, and a dot over there. Normally,
this very large number of dots form a pattern, but the computer does not
know if it is displaying a picture or text.
2.
If you ask the computer to OCR a file, it looks at the pattern of the dots
displayed. If the dots match a particular pattern, the computer will conclude
that that pattern is actually a letter such as “A.” If the dots match a different
pattern, it will conclude that it is the letter “B,” and so on.
3.
If the computer recognizes what is being displayed as text, it creates a text
file that corresponds to what is on the screen.
F.
Why use Acrobat to do your scanning and OCRing?
1.
There are a number of programs out there that will OCR documents.
However, Acrobat OCRs in a unique way, keeping the visual or graphic
image of the document intact. After you have OCRd a page, you do not
look at the OCR text file, you continue to see the graphic image on the
screen. The OCR product is hidden behind this image.
2.
This can be important, because it is often be difficult to tell what you are
looking at if you were looking at only the OCRd text file. This is true
because not everything on the page will OCR, this includes:
a)
Handwriting
b)
Dividing lines, and
c)
Images.
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3.
This information is simply dropped or becomes a series of
incomprehensible symbols. If you are only looking at the OCR product you
will miss much of the context of the text, and that makes it difficult to
recognize the overall significance of the document.
G.
However, if the Acrobat document is going to look the same regardless of whether
or not it has been OCRd, how do you know if it has been OCRd, and just as
importantly, how well has it been OCRd?
1.
Do a check. To do this you block and copy text. If you cannot block text,
then it has not been OCRd.
2.
If it has been OCRd, and you can block text, then copy that text over to
your word processing program, paste it in, and see how well the program is
doing by comparing the original to the text which you have copied.
3.
Documents can be OCRd to a hundred percent accuracy, but it is often
something less, and that usually depends on the quality of the copy with
which you are working. The cleaner the copy, the better the OCR.
4.
The less accurate the OCRing the less confident you can be that you will be
able to find all instances of a particular word or phrase in the document.
H.
What do you do to scan and OCR a document?
1.
You boot Acrobat
2.
Select “Create”
3.
Select create PDF from Scanner
4.
Select the type of PDF you want
a)
Black and White
b)
Color Document
c)
Color Image
5.
Execute
6.
Each of the presets can be configured as you want them. For example, I
have preset the Black and White document to:
a)
Scan only the front of the pages.
b)
Optimize the document once it is scanned, which means make the
file smaller, take out speckling etc.
c)
Then OCR each page.
I.
What if you are getting your documents on disc already scanned?
1.
If you are getting your documents as digital files on a CD, DVD, or as an
email attachment, they may already be Acrobat files. But they may also be
sent as “native files” such as TIFFs, JPGs or some other format, including
word processing formats like Word or Word Perfect. Acrobat has the
capacity to convert these native files to Acrobat files.
a)
Once converted to an Acrobat file, they can be OCRd.
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55
b)
2.
If they were native text files, such as Word or WordPerfect, they
will be converted to Acrobat with OCRing already done as part of
the conversion. Further, the accuracy of the OCR will be 100%.
c)
For that reason, getting your discovery as native files is best.
If the files you receive are already Acrobat files, first check to see if they
have been OCRd, and then how well.
a)
If they have not been OCRd, do it.
b)
Poor OCRing has become a problem in federal cases. I am
becoming convinced that they give us files with poor OCRing on
purpose.
c)
In most cases the cure is to simply OCR the document again.
J.
VII.
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Acrobat will also convert to PDFs things other than pages of text. These include
photos, Powerpoints, and just about everything.
1.
This becomes very useful when you are sharing files with others on the
team that may not have the computer program that created the file.
Making the Files Easier to Use:
A.
Bookmarking:
1.
Acrobat has a bookmarking feature.
2.
Located on the left side of the Acrobat interface is the bookmarking feature,
which allows you to apply bookmarks to a document. By clicking on a
bookmark you go immediately to the position in the text where it was
bookmarked.
3.
If you are going to use large files, bookmarks will allow you to navigate
quickly around the document.
4.
Bookmarks can also have sub-bookmarks, which will allow you to organize
your bookmarks by topic.
a)
Bookmarks do not have to be displayed in the bookmarks pane in
the order in which they appear in the text. Bookmarks can be moved
up or down in the navigation pane so that the bookmarks can be
grouped by topic.
b)
You can create a mini-outline of the document in the bookmarks
panel and move quickly to what you want.
5.
This feature allows you to create a major category for a particular event or
crime, and put bookmarks that relate to that event below it, without moving
around the pages of the original document. Creating a bookmark report can
create a quick index for reference of a large PDF’s contents.
B.
Combining Multiple PDFs:
1.
There may be instances in which you have multiple, single-page PDF files
in a folder. Rather than opening each file individually, combining them into
one PDF may make sense.
a)
Under “Tools,” select “Combine Files into PDF,” and a window will
open to walk you through the process.
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b)
c)
C.
The file names will become bookmarks in the new file.
Resist the temptation to make massive PDFs. You do not want to
deal with crashing Adobe whenever you open a file, and there are
better ways to manage and search documents. Combining is best for
collecting a small stack of electronic documents, not an electronic
file cabinet.
Document Splitting:
1.
You may want to break up large PDFs into smaller more easily managed
files that deal with a single subject matter. Large PDFs with documents
dealing with unrelated topics are not useful. For example, if the
Government has given you a 500-page file containing many reports, a
search for two search terms will find them in a large PDF, even though
those terms are used in connection with unrelated events. The search will
produce many results that are not on point.
2.
However, if the documents have been “unitized,” meaning broken up into
individual documents, the search for two terms will produce results only
when the two terms appear in the same report or document. That hit is likely
to be what you want.
3.
You can split documents in two ways.
a)
First, from the “Tools” menu you can take pages from the document
using the “Extract Pages” feature.
b)
As the page is extracted, you can chose to delete or not delete the
pages from the original document.
c)
You then provide the new document with a name.
d)
The second, and more useful way to split documents is to use the
bookmarking feature. To do this, create bookmarks that are the
names that you want the new documents to bear.
e)
From the “Tools” menu, select “Split Document,” then select
“Output Options.” Then select split by the “top level bookmarks.”
Then select output options, then select “use bookmark name” as file
name.
f)
The program then creates as many documents as you had
bookmarks, and names the files with the name of the bookmark.
g)
Important - There are certain symbols that your computer will not
accept in a file name.
(1)
For example, “, ! ? # @ % ’ : * < > . \ / are not permitted.
If you put one of the forbidden symbols in the Bookmark
name, the program will not be able to rename the file with
that symbol in it, and it will just stop. It will also not tell you
why it stopped, so this can be frustrating.
(2)
Windows does accept a hyphen “-“ and underscore “_” in a
name, so use those if you need a separator.
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57
4.
Preparing Bookmarks in documents to be split:
a)
When bookmarking the document, with your cursor, highlight the
bates number at the bottom of the page you wish to bookmark. Then
select the bookmark command. The program will then copy the
bates number into the bookmark, saving you the task of typing it in.
You then type in the description of the document. For example, FBI
302 re Jones Robbery.
b)
When split, the individual documents are automatically named using
the bookmarks (in this example, beginning with the bates number
followed by the description).
VIII. Searching:
A.
The reason that you are OCRing your documents is to allow you to word search
them. If you have many pages and not much time, the ability to word search will
allow you to find key information quickly.
1.
For example, if you have just been given hundreds of pages of reports, but
don’t know what your client’s role is in the case, and you have a detention
hearing the next day, a word search for every place where your client’s
name appears will give you a rough, but quick answer.
B.
Finding v. Searching:
1.
There are a couple of ways to do word searches.
2.
The first is to open the file and do a “find” or “control-F” in Windows, for
the word for which you are looking. Generally this is done in a single file
(although Acrobat now has the capacity to do a “find” across multiple files).
a)
This method works, but is impractical for a large case.
b)
For the program to do this type of search the computer first has to
open each file. Second, the computer has to look at each word in the
file to see if that word matches what it is looking for. That all takes
time.
c)
Finally, you cannot do more than simple searches, and you can only
search Acrobat files using the Acrobat find command. Acrobat will
not search other types of documents, e.g. Word, WordPerfect, Excel,
etc.
C.
A better method to search is to use an indexing program such as dtSearch.4
1.
An indexing program works by first creating an index of every word in
every file that it is told to index. That means that it opens each file that it is
asked to index and makes a list of the location of every word in the
document.
a)
The only words that it does not index are what it considers “noise”
words. These are words that are too common, and usually would not
4
Not only is dtSearch a better way to search, the program is also free to CJA counsel. Contact
National Litigation support for the how to get it.
58
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2.
3.
4.
be the object of a search. For example, index programs will
normally not index the words “the,” “and,” “an,” or words like them.
The process of building the index can take time. In a case of mine with
about 250,000 pages of scanned documents, the program took about 20
minutes to build its index. That time could vary depending on how fast your
computer is, and the quality of the documents you are indexing.
However, once the index is created, when you conduct a word search using
an indexing program, the program does not search the original documents, it
searches its own word index.
a)
This is an important concept to remember. If you have added
documents to your directory, but have not updated your index in
dtSearch, the program will not find anything in the newly added
material. The program is searching its indexes, not the documents.
b)
Accordingly, you must update the index when you add new
material. dtSearch has the ability to schedule automatic updates of
your searches, and an update is very quick because the program is
indexing only the newly added files.
Indexing programs have a number of advantages.
a)
First, the actual search is incredibly fast.
(1)
Because the program knows where to find every word, the
program will complete a search of hundreds of thousands of
pages in less than a second.
b)
Second, the indexing program allows you to do more complex
searches. If you want to see:
(1)
Every document in which your client’s name appears, the
program will find them, and displaying the context in which
your client’s name appears.
(2)
If you want to see every place your client’s name appears
within a certain number of words of the word “gun,” the
program will do it.
(3)
If you want to know every document in which the
codefendant’s name appears in a document, but your client’s
name does not, the program will do it.
(4)
Think of what you can do with a Westlaw or Lexis search
and the indexing program will probably get close to it.
c)
Third, indexing programs generally do not care what type of text file
it is searching.
(1)
If the directory which you want to search has Acrobat files,
but also Word, WordPerfect, Excel, most email, or rich text
format files in it, the indexing program does not care. It will
index them all, and search them all. This allows you to
search across multiple file formats and that limits the danger
that you will miss something relevant.
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59
(2)
d)
e)
f)
60
By contrast, as noted above, Adobe Acrobat will only search
Acrobat files.
Finally, with an indexing program, and a little planning, you can
tailor searches to combine or exclude different parts of your file.
You do this by creating separate indexes for different directories of
your case file. (See discussion above under directory structure.)
You can create multiple indexes for each case.
D.
The dtSearch interface.
1.
When you bring up dtSearch, on the right side of the search screen are listed
the indexes which you have created. You can search just one of them, all of
them, or just some of them. Just check the boxes.
2.
In the “Search Request” field you enter the terms for which you want to
search.
3.
A problem with doing typical word searches is that the computer is
completely literal. It will not find a word that is misspelled. When OCRing,
the computer will often get close to what the word is, but not get it exactly
right.
a)
dtSearch tries to address this problem by providing the “Indexed
Word List” in the upper left hand side. This is a list of every word it
found in the documents and the number of times it found those
words.
b)
The list includes real words, but also the misspellings and the words
that were OCRd improperly.
c)
This list will allow you to check to see if what you are looking for
was misspelled in a document or was not recognized accurately. If it
discloses words close to your search term then you add those terms
to your search.
d)
So, for example, if someone forgot that “i” goes before “e” except
after “c”, the program will display “received” spelled properly, and
right next to it will appear its misspelling, so that you will know that
you should also do a search of “received” spelled incorrectly.
E.
Searching documents that will not OCR:
1.
As discussed above, not every document can be OCRed. These include
documents that are handwritten, very bad copies, documents that are forms
with a large number of lined boxes, and photographs.
2.
However, you can make these documents findable on a word search by
using the Acrobat “sticky note” feature. That feature can be found under the
Commenting menu in Acrobat.
3.
The sticky note feature is just what it sounds like. It creates a note into
which you can type text. That text will then be indexed by dtSearch and
become a part of the search, even though the document itself cannot be
searched.
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4.
So, into a sticky note you may want to type the names of the people
mentioned in the document, and other key words for which you may want
to search.
F.
IX.
A tip: You don’t have to save dtSearch for cases!
1.
When you go to seminars like this, you are getting your materials on disc or
to be downloaded. Copy the course materials from all of the seminars you
attend into a directory on your computer. Then, when you remember that
someone you once listened to talked about your current problem, you
simply have dtSearch index that directory and word search it for what you
want. You will find the program materials.
2.
You can do the same with all of your motions.
a)
Many of us have tried to remember the name of the case in which
you filed a really great motion about five years ago, because now
you have the same issue.
b)
However, if you copy all of your motions into a research directory
and index the directory, you will be able to find the motion quickly
without having to remember your old client’s name. You will also
not have to organize your directory by subject matter. Just dump
everything into the directory and rely on dtSearch to find what you
are looking for.
CaseMap:
A.
CaseMap is a fact based relational database. Like all databases, the more quality
data into the database, the more useful it becomes. Accordingly, CaseMap requires
substantial commitment to enter data before it will become an effective tool. Not
every case will justify the upfront commitment of resources required.
B.
Consider CaseMap:
1.
If your case is complex or large in terms of the numbers of events,
documents, or people involved.
2.
You need to coordinate and share your work with members of your own
team, or with teams representing codefendants.
3.
If the case will take an extended period of time, as is often the case in
capital prosecutions and capital habeas petitions. There are often periods of time
when the case will lie dormant in boxes in the corner of your office. When that
happens you will lose your mastery of the details, but CaseMap can help you keep
control and quickly recall the details of the case.
4.
If you are the trial attorney and you are not going to be handling the appeal
or habeas petition. CaseMap will allow you to hand off the case to successor
counsel in a form that will allow that person to come up to speed much more
rapidly than otherwise. In this post-AEDPA era, helping successor counsel get off
the blocks in a hurry is not only critical, failure to do so is ineffective assistance of
counsel.
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61
C.
The goal of using a database is to create a knowledgebase for your case to which all
of the team members can contribute their knowledge, and from which all the team
members can quickly retrieve the collective and current knowledge of the entire team in a
focused and organized manner. CaseMap is designed to do this.
X.
CaseMap v. Basic Case Preparation.
A.
Creating a useful CaseMap file takes some time and effort. Thoughtful planning
must occur, and a lot of data entry must be done. This is a dull, time-consuming process.
B.
However, organizing a large case correctly will take time, regardless of whether
you use CaseMap. Using CaseMap may add some time to preparation in the beginning of
the case, but saves enormous amounts of time in the end.
1.
This timing is important because you are more likely to have the time at the
beginning of the case. When you are in trial, or facing the deadline for filing your
habeas petition, you will not have the luxury of time to look for that fact or that
document, which you know exists, but you just do not know where it exists.
2.
When you are under the gun, the ability to quickly find and organize what
you need really pays off.
C.
Further, certain tasks must be done whether you use a database or not. CaseMap
can make completing these tasks easier, and the resulting product will be more helpful.
1.
XI.
In any large case you are going to have to:
a)
Prepare a document inventory.
b)
Create a Cast of Characters
c)
Create a list of Tasks and To Do’s.
d)
Track your discovery requests and compliance.
e)
Prepare Chronologies.
f)
Create Fact summaries.
g)
Identify witnesses who must be interviewed, and track whether that
has been done.
2.
All of these tasks, which you would do anyway, can be done more
effectively in CaseMap. The result of CaseMap’s design is that while you
are performing some of these tasks, the work necessary to perform related
tasks will be done almost automatically by the program. For example,
keeping your chronologies complete and current is a task that can be done
with almost no additional effort.
What is CaseMap:
A.
At its heart CaseMap is a group of tables. If you have used a Word, WordPerfect or
Excel tables, you already understand a great deal of CaseMap. Teams who do not use
CaseMap will likely create similar categories and tools in those other programs. CaseMap
provides the opportunity to integrate the information.
B.
CaseMap is built around three categories of items. These are issues, objects, and
facts. Each category has its own table, and sometimes multiple tables.
62
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1.
An issue is just what it sounds like—an issue in your case. Something
important enough that you want to keep track of the documents, evidence, people,
and facts that bear on it.
2.
An object is a “thing,” such as a person, a document, a phone number, a
videotape, an item of evidence, an address, practically anything that may be
important.
3.
A fact is some bit of information that is about, or based on one or more of
the “things,” and which bears on one of the issues of your case.
C.
Facts, Issue, and Objects Are Listed in Tables:
1.
A table consists of a number of columns, which are referred to as fields.
Fields are designed to list a certain type of information. For example, in a
table for “persons,” you would list the person’s name, address, phone
number in three different columns or fields.
2.
CaseMap has a certain number of default tables that every case will require.
These are tables such as “Facts,” “Documents,” “Places,” “Persons,” and
“Issues.” The program will allow you to add additional tables.
a)
In federal cases, I end up adding a table for phone numbers, given
the Government’s penchant by getting every phone record they
possibly can.
b)
Teams have created custom tables for investigation logs, to track
media related to the case, or to track the development of mitigation
factors.
3.
You can also define what fields you want within the table.
D.
Documents Table:
1.
In the documents table you enter the basic information about your
documents. (Documents can include video tapes, audio tapes, photographs,
etc.) This table becomes your documents inventory.
2.
The document itself is “linked” to the CaseMap entry so that by clicking on
the paper clip icon the program will bring up the original document
immediately.
a)
A document does not have to be piece of paper. It can be a video, an
audiotape, or a picture. By clicking on the paperclip icon, CaseMap
will bring up any of them.
b)
So, when reading a fact, with two clicks you can bring up the
document from which the fact came.
3.
Much of the information that you would enter into the fields in the
documents table is information that you would be entering into your
document inventory if you were not using a database:
a)
Bates beginning number,
b)
Ending number,
c)
Date,
d)
Full Name of the document,
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63
4.
5.
64
e)
Description of the document,
f)
Author, etc.
CaseMap comes with a great many fields already set up, but you determine
which fields will be most useful to you, and display only those. The rest
become hidden.
a)
Just because you have hidden a field, that field does not become
inactive. The program continues to populate a hidden field if it is a
field which the program populates.
b)
For example, the program will always keep track of who entered the
data on the table, and when it was entered. This can be very useful
if, for example, you come across a fact entry whose accuracy you
question. If you want to know who entered the fact to clarify
something, the program will tell you who that person is by
displaying the author field.
Custom Fields:
a)
You can also create custom fields for particular case needs (this is
true in any table). If you create a field, it means that you will be able
to sort your documents by that field and search for specific
information in those fields.
b)
Several useful custom fields are:
(1)
A “Mentioned In” Field. In a case with a large number of
handwritten documents, a “Mentioned In” field is helpful.
Into this field goes the name every person who is mentioned
in the document. Using this field you can quickly find every
document in which a potential witness is mentioned.
(a)
Some of you may be thinking, why not rely on a
word search for the name to identify all of the
documents in which a person is mentioned?
However, OCRing is not 100% accurate, and is not
accurate at all for handwritten documents. The
“mentioned in” field should be accurate.
(2)
A “Statement By” field. If the document contains a statement
with which you can impeach a witness, the person who gave
the statement can be entered into a “statement by” field.
Once that is done you can quickly find every statement you
will need to prepare cross examination of the witness.
(a)
This can be very helpful when you are in trial, and
the witness on the stand says something that you had
not anticipated, and you believe to be inconsistent
with some prior statement. You can quickly find all
prior statements.
(3)
A “Reviewed By” field. This field is important when you are
working with a team or with a large number of documents.
This field addresses two problems.
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(a)
(b)
(c)
First, in a large case it is very difficult to ensure that
some batch of discovery or other documents will not
slip through the cracks and remain unread.
Second, you also want to ensure that the team is not
duplicating effort by rereading the same material
unnecessarily.
When any member of the team has read a document,
and gleaned its important facts, that person enters
their name in the “reviewed by” field. This ensures
that at least someone on the team had covered every
document.
E.
XII.
Using the documents table as your documents inventory is an example of a task
that CaseMap will help you complete with less effort than doing it without
CaseMap.
1.
CaseMap has an “Import PDF’s” feature. That feature will automatically fill
in a number of fields in the documents table and also link the document to
the database entry.
Casemap as a “relational” database.
A.
What makes CaseMap more useful than a series of Word or WordPerfect table? It
is a relational database. That means that if the same document or person is listed on
more than one table, the program knows that you are talking about the same person
or thing.
B.
To do this, CaseMap relies on what it calls “short names.” When an object is
entered into CaseMap, the program creates and assigns a “short name” to that
object. CaseMap has a default method for creating these names; you can change
them to what is most useful for your team.
C.
The short name is important because:
1.
It is the unique identifier.
a)
Because it is a unique identifier, the program knows that the person
“Frank Madison,” short name “MadisonFrank” is the same person
when he is mentioned in the Persons Table, the Facts table, the
Issues Table, the Documents Table, or any other table.
2.
In addition to being a unique identifier, the short name ensures that the
names of objects are entered into the program in a uniform manner.
a)
If you ask your computer to look for ““John,” it will not find “Jon.”
So it is important that everyone enters the name spelled the same
way. The short name ensures that they will. The short name also
helps with the challenge of dealing with intergenerational family
names (Sr., Jr., III, etc.).
b)
When you start typing in CaseMap, the program offers you a “pick
list” of all objects that have short names beginning with the first
three letters you have typed. If you keep typing, it will shorten that
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c)
pick list to limit it to all possible short names with the additional
letters.
It then allows you to complete the entry of the name by picking the
person from the list. You do not have to type the whole name, and
the possibility of typing errors is thereby greatly reduced.
D.
The value of short names can be seen from an example of a case with a large
number of phone numbers. Each phone number is an object with a short name, and
this does several things for you:
1.
When you begin typing the number in, for example, the facts table, the
program will let you know if this is a telephone number that you have seen
before. If it does not come up on the pick list, it is not in the program, and
hence is new to you.
2.
If the phone number is in CaseMap, the program will quickly tell you what
you already know about this number.
a)
This is true because an object is given a description when it is
entered. Anytime you see that object you can hold your mouse over
that short name and the description will pop up. In our phone
number example you can see whose phone number it is without
having to go somewhere else to look it up.
E.
This is helpful for all objects. For example if you are reading a fact and see a name
you don’t recognize, you can just hover your mouse on the name to find out who it
is. The information displayed comes from what has been entered onto the person’s
table.
F.
The persons table is not simply a list of people. It is the place where you enter a
summary of the relevance and importance of the person - that person’s role in the
case. Once that information has been entered, the program will quickly tell anyone
very quickly where this person fits into the case, even if they did not enter the data,
and are only encountering the name for the first time. You simply have to float the
cursor above the name.
To illustrate the value of the program when you are working with a team.
G.
1.
If someone else has entered a person into the program, you may not know
the person. If you come across the name in a fact, you have instant access to who
this person is by simply floating your cursor above the name.
2.
If you do know this person, but have some new information about them that
you believe should be shared, with a couple of clicks of the mouse you can update
the person’s role. Then everyone else will have the same information. For example,
you have gotten information that makes you suspect that this witness is now
cooperating with the Government. You add that information to the person’s table.
The next time someone floats their curser over that person’s name, this new
information will be there.
3.
When we begin a case we often do not have full names. We have only a
nickname or perhaps just a first name. Later you learn that someone only known as
“Creeper” is actual “Justin Thurgood, III.” You can now change Creeper’s entry in
66
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Person’s table to Justin Thurgood, aka Creeper, and the program will change it
everywhere where Creeper had previously been entered.
4.
You only have to change this information once. The person’s name may
appear in hundreds of places in the file, but since the program looks back to this
single source for information, if it is changed here, the change will be available
everywhere the person is noted.
a)
Think of your normal file. You may have any number of memos or
chronologies that mention a particular witness. To ensure that everyone is
aware that this person’s role has now changed, you would need to go back
and edit each of those memos or chronologies. Here, you do it once.
XIII. Facts Table:
A.
This is where the attorneys will spend most of their time. Criminal cases are driven
by facts, and CaseMap makes it easy to create, organize, and search your facts.
B.
As you review documents, you take facts from them and send them to the Facts
Table with a click of the mouse.
1.
When you send a fact to the facts table, the program links the fact which is
created to the exact place in the document from which the fact was taken.
2.
This is very handy in cases with long documents. The link does not take you
to just the first page of the document, it takes you to the exact place in the
document where the fact was sourced.
XIV. Issues Table:
A.
The issues table forces you to develop an outline of the issues in your case. As we
all know, creating a really good issues outline after the trial is easy. But even though we
may not be able to do it well, we need to develop an issues outline at the beginning of any
case, whether we are using CaseMap, Word, or a yellow pad. As you learn more about the
case you add, subtract, and modify issues. You will do the same with your issues table in
CaseMap.
B.
Once you have your issues table you will link your documents, people, and facts to
your issues using the Issues Linker tool in CaseMap. This means you can find every fact,
document, or person relevant to a specific issue with a couple of mouse clicks.
C.
Note that a fact, document, or person, can be linked to any number of issues, you
are not limited.
D.
As a result, the issues table can be used for many things other than traditional
issues. Two tasks that I feel are great for the issues table are chronologies and
investigation:
1.
Chronologies:
a)
To build your chronologies in CaseMap you create a separate issue
for as many chronologies as you need.
b)
In a capital case you create issues for family history, education,
medical, employment, etc.
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67
XV.
c)
The facts that should be on the chronology are linked to the
chronology issue.
d)
The Chronology can then be printed out with just a click, or it can be
sent to TimeMap.
e)
What is nice about handling chronologies as a series of issues is it is
common to run across a fact, and believe that this fact should be on one of
the chronologies. However, you do not know if it is already there. That
means going to find what you hope is the most recent version of that
chronology. With CaseMap that is not necessary. Just look to see if the fact
on the facts table is linked to the appropriate chronology issue. If it is, then
it is on the chronology. If it is not, you then link it with a click of the mouse.
Searching/Filtering:
A.
Searching is when you ask the program to find something.
B.
Filtering is when you ask the program to display only certain things that you are
now interested in, and not display others.
C.
CaseMap makes both very easy.
D.
For example, you can search for facts that are relevant to impeachment of a
particular witness, by searching for that issue.
E.
You can also create complex searches that combine multiple fields and then save
them for later.
F.
Another way to find information is the # fields which are on each table. These
fields show what other objects a particular object is lined to. For example, on the issues
table you can display the “# Facts” field. By clicking on this field the program will display
the number of facts inked to that issue. This is also true for issues linked to a document.
G.
CaseMap has also created some simple search tools for you.
1.
There are preformatted searches under the advanced search menu, which
allow you to find out such things as what information has been added to the
database in the last thirty days.
H.
CaseMap also has a feature that saves searches that you will use repeatedly. In one
case I had over five thousand names in the database. I had a saved search to filter
out all those witnesses who we would not investigate - cops, records witnesses, etc.,
leaving witnesses we might want to talk to. The search then filtered out every
witness for whom investigation had been assigned or for whom no investigation
was deemed necessary. What was left was a list of witnesses for whom we had not
considered investigation. I ran that filter regularly. In a case where a number of
people are entering names, it is very easy for a witness to slip through the cracks.
This guarded against that risk.
XVI. Questions Table
A.
The Questions table is the ultimate to do list; tasks that need to be done can be
linked to any object or issue.
68
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B.
Instead of creating a separate list of things to do and a log of what has been done in
Word or on a napkin, you can create it in CaseMap and track the progress.
C.
CaseMap becomes a to do list including
1.
The task to be completed
2.
The status of the task
3.
The person responsible for getting it done
4.
The due date
5.
Discovery request log
XVII. Sharing Information
A.
CaseMap is most valuable when you are working with others, either people on your
team, or with counsel for codefendants. CaseMap is a tool to develop the collective
knowledge of the team.
B.
Your CaseMap file becomes a single knowledgebase into which your entire team
can contribute their efforts. The team’s collective knowledge is not spread around in a
series of memos in various files of which the whole team may or may not be aware.
Further, if you are like me, you never know if you are looking at the current version of a
mitigation or other outline, or the current version of the chronologies. CaseMap cures this
problem.
C.
The program allows the team to create a single knowledge base by use of replicas.
1.
A replica is an exact copy of the case file as it existed at the time the replica
was made. This replica is sent to another team member, normally by email. That
other team member can then work with the replica - adding, objects, facts, issues,
documents, questions, etc. The replica performs just like the master file.
2.
After a time the replica gets sent back to the person who has the master
copy and the two are synchronized. That means that all of the new information that
was added to the replica copy is incorporated into the master. Any number of
replicas can be used in this manner. So many team members can be working on the
case at the same time.
3.
After synchronization, a new replica is then sent out which contains all of
the work that every member of the team has done.
4.
The result is that if several people are working on a case, they are kept up to
date on their work, but also the work of all other team members.
a)
Investigators can look at the filter for their assignments for new
witnesses. They can keep their notes with regard to their progress in
CaseMap so that the team leader knows if things are getting done. This is
also critical in case you lose investigators or other team members. The new
team member can look at the notes of the prior member.
5.
Research assignments can be kept up to date and checked off as they are
completed on the Questions Table.
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69
70
D.
You may also want to share information with people who are not on your team.
However, you cannot send a replica to an outsider. The reason is that the replica
will contain privileged information that you would not want to disclose.
1.
In this situation CaseMap will allow you to create what it calls a CaseMap
Portable Format file. That file will contain only information which you have
selected. The file can be sent to other CaseMap users and they can integrate
that file into their CaseMap file in seconds.
2.
This allows teams representing codefendants to split up the work and share
the results.
E.
Producing reports
1.
You can also share particular information from your database by sending
out reports. If you use reports, the person with whom you are sharing
information does not have to have CaseMap.
2.
Once you filter to what you are interested in, you can produce a report that
can be printed, turned into a PDF or sent to Word or WordPerfect as a table.
3.
If you export to Word or WordPerfect, these reports can be edited in the
word processor to delete information you do not wish to share.
4.
If the report is turned into a PDF, CaseMap has a wonderful feature that
allows you embed into the PDF the documents upon which the report is
based. The PDF looks like a spreadsheet printout, but there is a paper clip
icon next to each fact. If you click on that paper clip, the document from
which the fact was sourced pops up.
a)
This allows you to quickly share information and the documents
upon which the information is based with someone who does not
have CaseMap.
F.
Conclusion:
1.
There is no doubt that there is a big upfront commitment to learning this
kind of program and then getting all of your information into it.
2.
The commitment may not be worth it in all cases, but be aware of what your
processes will be in those cases – you may be surprised by the time
commitment required by developing an alternative system.
3.
In large, complicated cases, and certainly in capital cases, the payoff is well
worth it.
4.
The program is a method to efficiently benefit from the collective
knowledge and work of the entire team.
5.
The program puts necessary evidence or work product at your fingertips
whenever you need it.
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document5
PEOPLE (“CAST OF CHARACTERS”) LIST
ATTORNEY-CLIENT AND ATTORNEY WORK-PRODUCT PRIVILEGED INFORMATION
– DO NOT DISTRIBUTE WITHOUT THE EXPRESS PERMISSION OF DEFENSE COUNSEL–
Case:
From:
Revised:
United States v. [Defendant]
No. [CASE NO.] [Jurisdiction]
[Defense Team Paralegal]
[Date]
Witness
Last Name, First name
Role in Case / Relevance/Relationship with
Client
Identifying & Contact Info
[Address, phone, DOB, SSN]
Source of Data
[int. cite: date of int. [yr-mo-dy, wit
name, interviewer initials]
Interview Status
(Scheduled or Dates)
Notes
Sample entry for an interview of
Susan Jones by Scharlette
Holdman on July 4, 2010:
“100704 Jones, Susan SH.pdf”
71
Witness
Last Name, First name
72
Role in Case / Relevance/Relationship with
Client
Identifying & Contact Info
[Address, phone, DOB, SSN]
Source of Data
[int. cite: date of int. [yr-mo-dy, wit
name, interviewer initials]
Interview Status
(Scheduled or Dates)
Notes
document9
RECORDS REQUEST LOG
ATTORNEY-CLIENT AND ATTORNEY WORK-PRODUCT PRIVILEGED INFORMATION
– DO NOT DISTRIBUTE WITHOUT THE EXPRESS PERMISSION OF DEFENSE COUNSEL –
Case:
From:
Revised:
United States v. [Defendant]
No. [Case No.] [Jurisdiction]
[Defense Team Paralegal]
[Date]
Explanatory Note: Read each document to identify names to add to the People List, additional documents to request, and events to
add to the Social History Chronology.
Name
Document Requested
Agency & Contact Info
[name, address, phone #,
contact person]
Date Contacted, Response & Follow-up
[yr-mo-dy]
Date
Received
[yr-mo-dy]
Bates No
Date Entered
into
Master Docs
[yr-mo-dy]
73
Name
74
Document Requested
Agency & Contact Info
[name, address, phone #,
contact person]
Date Contacted, Response & Follow-up
[yr-mo-dy]
Date
Received
[yr-mo-dy]
Bates No
Date Entered
into
Master Docs
[yr-mo-dy]
document7
SOCIAL HISTORY CHRONOLOGY
ATTORNEY-CLIENT AND ATTORNEY WORK-PRODUCT PRIVILEGED INFORMATION
– DO NOT DISTRIBUTE WITHOUT THE EXPRESS PERMISSION OF DEFENSE COUNSEL –
Case:
From:
Revised:
United States v. [Defendant]
No. [Case No.] [Jurisdiction]
[Defense Team Paralegal]
[Date]
Date [yr-mo-dy]
Client Age
Event
Source (Bates# & Document Title)
e.g., birth cert, soc sec, mar cert,
school rec, hospital rec, crim case #
75
Date [yr-mo-dy]
76
Client Age
Event
Source (Bates# & Document Title)
The ABA Guidelines Boiled Down David Bruck February, 2010 We’ve been telling ourselves and each other for more than two decades now that we are supposed to apply the ABA Guidelines in defending our clients at trial. In 2000, and again in 2003 and 2005, the United States Supreme Court joined the chorus, in its decisions in Williams, Wiggins and Rompilla. But the current (2003) edition of the Guidelines is a document of 131 densely‐packed pages. Just the black‐letter Guidelines themselves, without the Commentary, are 30 pages long, and the 2008 Supplementary Mitigation Guidelines add another 11 pages of black‐letter rules to that. So how exactly does one “litigate by the Guidelines”? We’ve all read them, and some of us actually peruse them again when we get a new case, or when we think there might be something there that we can quote in support of a funding request. But with all the complexity and multi‐dimensionality of defending a capital client‐‐‐
where just a single facet of the client’s social history or mental condition can require learning wholly new ways of thinking about, interpreting and explaining the evidence that we are uncovering‐‐‐how do we “apply” such a complex set of materials to our work? Well, for a trial lawyer, the Guidelines are not nearly as complex as all that. In fact, most of the Guidelines concern the state’s obligations in providing for our clients’ defense. The lawyers’ day‐to‐day work of defending a client at the trial level really only involve several parts of Guideline 10. Guideline 10.4: Your client is entitled to a defense TEAM consisting (at least) of: • two lawyers, • a mitigation specialist, • a fact investigator, and • one member qualified by training and experience to screen for mental or psychological disorders or impairments This is framed as a duty imposed on the state (which it is) but it also establishes that capital defense is team defense, and obligates us to foster effective teamwork. (Which is not at easy as we sometimes suppose. ) The rest of the trial defense Guidelines boil down to these: (Guideline 10.5) Establish and maintain a relationship of trust with the client 77
The Guidelines Boiled Down‐‐February 2010 (Guideline 10.7) Conduct thorough and independent investigations relating to the issues of both guilt and penalty (Guideline 10.8) Identify, assert and preserve legal claims (Guideline 10.9.1) Explore plea possibilities with the client and the prosecution. (Guideline 10.10.2) Optimize the jury by legal challenges and voir dire examination. (Guideline 10.11) At sentencing: —Present the strongest possible mitigation case, —protect the client against the prosecution’s case in aggravation, and —secure appropriate jury instructions The trouble is that when all this is added up, you have a task of tremendous complexity. And complexity tends to lead to error. But complexity is not unique to modern capital defense. There are people in other professions who think about managing complexity all the time. One of them is Dr. Atul Gawande, a Harvard surgeon, who has written a book about complex tasks called The Checklist Manifesto (2009). His subject is one that resonates for us: how to manage tasks of enormous complexity while reliably remembering to do what we know we’re supposed to do, each time. Gawande begins with his own profession of medicine. For its first few thousand years, the problem of medicine was ignorance: the usual reason why doctors failed to help their patients was that they did not know how. That is, science itself did not yet know what would succeed. But dring the 20th century, with the exponential growth of medical knowledge, failure became more and more the result of failing to apply what was known: error replaced ignorance as doctor’s greatest adversary. In The Checklist Manifesto, Gawande tells some remarkable stories. Such as the story of Dr. Peter Pronovost at Johns Hopkins, who set out to reduce the number of central line infections. Research had established that 5 simple steps could guard against infection when lines were inserted. Doctors should: 1. Wash hands with soap 78
2 The Guidelines Boiled Down‐‐February 2010 2. Clean patient’s skin with chlorhexidine antiseptic 3. Place sterile drapes over the patient 4. Wear a mask, and 5. After insertion, cover the insertion site w/ a sterile dressing. But Pronovost and his colleagues discovered that surgical teams at Johns Hopkins missed at least one of these five steps in the cases of one‐third of their patients. Nurses have long used checklists‐‐‐the checking of vital signs (pulse, respiration, blood pressure and temperature) prior to virtually any exam or medical procedure is one such such checklist. But doctors? Pronovost’s trial program gave nurses permission to stop the doctors unless all 5 line insertion procedures were done. After one year‐‐‐central line infections after 10 days went from 11 percent to zero. The effects were so dramatic that they seemed to be a mistake. But the results were replicated: this was real. So Johns Hopkins developed more checklists to ensure that simple things‐‐‐the things that medicine KNOWS to be important‐‐‐would actually get done. Such as: • pain checks every 4 hours; • checking to be sure that patients on mechanical ventilation receive antacid medication to protect against ulcers; and • making sure that the heads of their beds are elevated to a 30 degree angle to stop oral secretions from going into their windpipes. These new checklists reduced pneumonia by 25 percent and appeared to result in 21 fewer patient deaths, and Dr. Pronovost began to travel around the country, helping hospitals effect similar results in reducing infections and improving outcomes. The “checklist movement” engaged Dr. Gawande as well, and in this book he relates his involvement in a World Health Organization project to develop a checklist aimed at the 4 killers in surgery, which are infection; bleeding; unsafe anesthesia; and “the unexpected.” The WHO’s goal was to reduce these complications in widely disparate settings—both 1st and 3d world hospitals. In the end, a simply 3‐stage checklist was agreed on (containing only 19 items in all)‐‐‐‐
divided into pre‐anesthesia, pre‐incision, and post‐operative stages. One of the initial items was simply a brief discussion‐‐‐everyone on the surgical team just taking a few seconds to talk together about the purpose of the operation, what they expected to happen, and what might go wrong. Another‐‐‐even more odd‐sounding‐‐‐was to 3 79
The Guidelines Boiled Down‐‐February 2010 require every member of the team to introduce themselves by name. This was based on research findings that when everyone on a surgical team knew everyone else’s name, participants’ perception of the level of teamwork improved, and each member of the team felt more empowered to speak up if something seemed to be going wrong. These proposals encountered predictable pushback from the surgeons whose operations were to be subjected to them: “What I do can’t be reduced to a checklist!” BUT THE CHECKLIST WAS NOT INTENDED TO GOVERN EVERYTHING THE SURGEON DOES‐‐‐OR EVEN MOST OF IT‐‐‐BUT ONLY TO COVER THE BASICS. The WHO study produced unexpectedly spectacular results across a wide range of settings‐‐‐from Seattle General Hospital to a huge rural hospital in Tanzania. Eventually Gawande had to acknowledge that it would be unseemly to fail to adopt the surgical checklist in his own operating room, even though he knew that it would make no difference in his patients’ outcomes. But he ends the book by describing a catastrophic error the he committed‐‐‐nicking a patient’s vena cava during a laparoscopic operation to remove an adrenal gland. The patient lost almost his entire blood supply in 60 seconds‐‐ “I might as well have made a hole in his heart.” Gawande had to abandon the non‐invasive surgical technique to slash open the patient’s chest and manually compress the heart while his assistant squeezed the damaged vein shut with his fingers. There had been no reason to suspect that they would need extra units of red blood cells‐‐‐he never had the first 40 times he’d successfully done this same operation‐‐‐but the circulating nurse had stopped the prep until the requisite blood supply was in place under the operating table, as the WHO checklist required. And that is why his patient survived. Next, Gawande relates the history of the first profession to embrace the checklist—
aviation. The story begins with the moment that aviation checklists were born. Boeing first built what would later become the WW II B‐17 bomber in 1935, and the company was on course to secure the US Army’s contract (its Model 299 had a larger payload and longer range than the Army’s specs called for) . But on October 30, 1935, a veteran test pilot at the controls, the plane took off for what was to have been a triumphant demonstration at Wright Field in Ohio and promptly crashed into the woods at the edge of the airfield. Boeing discovered that the pilot, preoccupied with the complexity of this 4‐engine aircraft, had forgotten to remove a lock on the wing‐flaps and rudder before taking off. The industry concluded that the plane was just too complicated to fly. But Boeing (after losing the Army contract to Douglas) responded by creating a checklist so that next time the pilot would be reminded to remove the lock. And thus began the checklists that now define all aviation. Large construction projects provide Gawande with another example of almost unimaginably complex undertakings that were once the province of a single decision‐maker‐‐‐
80
4 The Guidelines Boiled Down‐‐February 2010 the Master Builder of past centuries‐‐‐‐but which now require the collaboration of many separate kinds of experts. The "Master Builder" model doesn't work when you're building skyscrapers and need the interrelated skills of engineers, architects, and multiple building trades from electricians and plumbers to iron workers and carpenters. In his discussion of construction‐industry models, Gawande describes two different "schedules" that are typically employed: a construction schedule (organized on a centralized basis with a flowchart to ensure that everyone meets preset deadlines) and a "submittal schedule," which is completely different and democratic. The submittal schedule is created as the project proceeds, and gathers in all the unforeseen problems that every project encounters. The submittal schedule does not require that each problem be “solved” before proceeding on‐‐‐
many problems involve unknown and unknowable factors, and all that can be done is to ensure that a system is in place to make the best decision possible. So builders simply require that everyone with knowledge of or a stake in each decision sign off on having DISCUSSED the problem: the requirement is not that a certain step be taken, but that the step was DISCUSSED by everyone who needed to be involved. The emphasis here is on teamwork, and on the value of communication and the broadest possible sharing of expertise and perspective Because each project is unique and produces countless unforeseen problems, builders require structures that guarantee‐‐‐and schedule‐‐‐ group decision‐making. Summing up his survey of the professions, Gawande identifies three core values that are common to all of them. One is selflessness: the assumption “that we who accept responsibility for others‐‐‐
whether we are doctors, lawyers, teachers, public authorities, soldiers or pilots—will place the needs and concerns of those who depend on us above our own.” (In the legal profession, the value of selflessness is embodied in rules such as those against conflicts of interest.) Another value is skill, the precept that “we will aim for excellence in our knowledge and expertise.” Lawyers embody this value in such ethical rules as the requirement of competence (though the ethical rule sets a very low standard, generally prohibiting only intentional, reckless or repeated failures to act competently). And the third traditional value is one Gawande calls “trustworthiness”‐‐‐the promise “that we will be responsible in our personal behavior toward our charges.” In the legal profession, this is the value embodied in such rules such as the lawyer’s obligation to safeguard the secrets of a client. To these three values, Gawande says that aviators add a fourth: “Discipline in following prudent procedure and in functioning with others. “ He writes: 5 81
The Guidelines Boiled Down‐‐February 2010 This is a concept almost entirely outside the lexicon of most professions, including my own. In medicine, we hold up “autonomy” as a professional lodestar, a principle that stands in direct opposition to discipline. But in a world in which success now requires large enterprises, teams of clinicians, high‐risk technologies, and knowledge that outstrips any one person’s abilities, individual autonomy hardly seems the ideal we should aim for. It has the ring more of protectionism than of excellence. The closest our professional codes come to articulating the goal is an occasional plea for ‘collegiality.’ What is needed, however, isn’t just that people working together be nice to each other. It is discipline. Discipline is hard‐‐‐harder than trustworthiness and skill and perhaps even than selflessness. We are by nature flawed and inconstant creatures. We can’t even keep from snacking between meals. We are not built for discipline. We are built for novelty and excitement, not for careful attention to detail. Discipline is something we have to work at. What would “discipline” as a professional value look like in capital defense? This is where our boiled‐down ABA Guidelines hold an answer. First, following the lead of the people who build skyscrapers, we would recognize teamwork as a core requirement, and not just a good idea. And for teamwork, we must have team meetings. Meetings increase communication Meetings spur team members to action Meetings offer checks on bad or reckless or ill‐considered ideas. And in all these ways, team meetings help reduce the risk of error, and increase the likelihood of success. How often and for how long should capital defense teams meet? Every week? Every other week? Perhaps less frequently than that at some stages of the life of a case, but never less than necessary to keep the defense effort running effectively. Regular meetings must occur at regular times and days of the week. Attendance by the whole team must be mandatory. And meetings must be scheduled to allow enough time to get through everything that needs discussion. What happens at team meetings? What about using the ABA Guidelines as the team’s agenda? 82
6 The Guidelines Boiled Down‐‐February 2010 To be sure, the Supreme Court has long warned that “. . . the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant's cause.” Strickland v. Washington, 466 U.S. 668, 689 (1984). But this caution was addressed to judges engaged in post‐trial evaluation of counsel’s performance. And anyway, in Williams, Wiggins and Rompilla the Court has become much more comfortable with “detailed guidelines” after two decades of surveying the havoc that passes for capital defense work in much of the country. So here’s a way to build our day‐to‐day work around the Guidelines: a set meeting agenda based on Guideline 10. • Client contact and concerns (10.5) • Settlement—barriers, schedule for resolution (10.9.1) • DIVO (10.9.1.B(8)(g)) • Guilt/innocence investigation to‐do list (10.7) • Aggravation investigation to‐do list (10.7) • Legal challenges to prosecution evidence (10.8) • Social history and mental health mitigation review (10.7, 10.11) • Other mitigation review (10.11) • Theory of defense and jury selection (10.10.1, ‐.2) (focus groups, closing argument outlines, etc.) The key concepts are these: 1. The importance of acceptance of checklist concept by all team members at the beginning of the case. 2. Appreciating that allocating responsibility for the checklist can enhance the authority of “non‐ranking” team members‐‐‐working through the agenda can be delegated to “second chair” counsel, or to a mitigation specialist or investigator. 3. The calendaring of all tasks‐‐‐based on the recognition that procrastination and neglect (“falling through the cracks”) are ubiquitous in any complex and difficult undertaking. 4. Most or all of these 9 Guideline items will require custom‐made to‐do lists: the innovation of the Guidelines Checklist is simply the rigid requirement of checking on each facet of the defense function at each (rigidly‐scheduled) meeting, and calendaring anticipated progress. 7 83
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1. Duncan v. Carpenter, 2015 U.S. Dist. LEXIS 28009
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Duncan v. Carpenter
United States District Court for the Middle District of Tennessee, Nashville Division
March 4, 2015, Filed
No. 3:88-00992
Reporter
2015 U.S. Dist. LEXIS 28009 *; 2015 WL 1003611
DAVID CARL DUNCAN, Petitioner, v. WAYNE CARPENTER, Warden, Respondent.
Prior History: Duncan v. Bell, 2006 U.S. Dist. LEXIS 27772 (M.D. Tenn., May 8, 2006)
Core Terms
post-conviction, sentencing, impairment, ineffective, mitigation, default, functioning, state court, investigate, murder,
trial counsel, tests, brain, print, psychological, circumstances, proceedings, cross-examination, exhausted, score,
deficits, fingerprint, childhood, guilt, sentencing hearing, blood, ineffective assistance claim, ineffective assistance,
head injury, disorder
Case Summary
Overview
HOLDINGS: [1]-Petitioner inmate, who was sentenced to death, was entitled to federal habeas relief under preAEDPA 28 U.S.C.S. § 2254 on the ground that his trial attorney rendered ineffective assistance at the sentencing
phase of his capital murder trial. The state court's conclusion about the unavailability of significant mitigating
evidence was erroneous. Accordingly, the court dispensed with the presumption of correctness of the state court's
determination of the claim. In failing to investigate, prepare, or present any mitigation case, counsel's representation
of the inmate at sentencing fell far below the range of professionally competent assistance; [2]-The inmate
established that he was prejudiced by his trial counsel's ineffective assistance at the sentencing phase of his trial,
and that his sentence accordingly violated the Sixth Amendment.
Outcome
Petitioner's sentence of death was vacated, subject to the State's right to commence a new sentencing hearing. In
all other respects, petition was denied.
LexisNexis® Headnotes
Criminal Law & Procedure > Habeas Corpus > General Overview
Criminal Law & Procedure > Habeas Corpus > Review > Antiterrorism & Effective Death Penalty Act
Criminal Law & Procedure > Habeas Corpus > Review > Scope of Review
Criminal Law & Procedure > ... > Review > Standards of Review > Presumption of Correctness
Evidence > Inferences & Presumptions > Presumptions > Rebuttal of Presumptions
86
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HN1[ ] A state prisoner is entitled to a writ of habeas corpus only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States. 28 U.S.C.S. § 2254(a). When a petitioner filed his original
petition prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the preAEDPA standard of review applies. Under that standard the court may make its own independent determination of
the petitioner's federal claim, without being bound by the determination on the merits of that claim reached in the
state proceedings. State court findings of fact relevant to a district court's review of a habeas corpus petition are
entitled to a presumption of correctness. 28 U.S.C. § 2254(d) (1966). However, under pre-AEDPA standards, that
presumption can be overcome by any of eight statutory exceptions, including the district court's independent finding
that the state court's findings are not fairly supported by the record. The presumption of correctness does not attach
to a state court's pure legal conclusions or to findings that involve mixed questions of law and fact.
Criminal Law & Procedure > ... > Procedural Defenses > Exhaustion of Remedies > Prerequisites
Criminal Law & Procedure > ... > Procedural Defenses > Exhaustion of Remedies > Satisfaction of Exhaustion
Criminal Law & Procedure > Habeas Corpus > Independent & Adequate State Grounds > Procedural Default
Criminal Law & Procedure > ... > Exceptions to Default > Cause & Prejudice Standard > General Overview
Criminal Law & Procedure > ... > Exceptions to Default > Actual Innocence & Miscarriage of Justice > General Overview
HN2[ ] Subsections (b) and (c) of pre-AEDPA 28 U.S.C.S. § 2254 require a habeas corpus petitioner to exhaust
the state remedies available to him before raising claims in federal court. Exhaustion requires that petitioners "fairly
present" federal claims to the state courts to provide them with an opportunity to correct alleged violations of state
prisoners' federal rights. If the petitioner has no remedy currently available in state court, the exhaustion
requirement is satisfied. Although a claim may be deemed fully exhausted under these circumstances, the
petitioner's failure to assert the claim in state court may constitute procedural default barring federal review. The
procedural default doctrine is an extension of the comity policy that underscores the exhaustion doctrine. Under this
doctrine the court will not review a question of federal law decided by a state court if the decision of that court rests
on a state law ground that is independent of the federal question and adequate to support the judgment. Thus,
when a claim is procedurally barred under state law, it is procedurally defaulted for the purpose of federal habeas
review, and cannot be considered on its merits unless the petitioner establishes cause and prejudice for the default,
or that failure to review the claim will result in a miscarriage of justice, i.e., that he is actually innocent.
Constitutional Law > ... > Fundamental Rights > Criminal Process > Assistance of Counsel
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Tests for Ineffective Assistance of Counsel
Criminal Law & Procedure > Habeas Corpus > Review > Burdens of Proof
Criminal Law & Procedure > ... > Review > Specific Claims > Ineffective Assistance of Counsel
HN3[ ] The constitutional standard for effectiveness of counsel applies to retained counsel and appointed counsel
alike. Claims of ineffective assistance of counsel are subject to the highly deferential two-prong standard of
Strickland v. Washington, which asks: (1) whether counsel was deficient in representing the defendant; and (2)
whether counsel's alleged deficiency prejudiced the defense so as to deprive the defendant of a fair trial. To meet
the first prong, a petitioner must establish that his attorney's representation fell below an objective standard of
reasonableness. Mere attorney ignorance or inadvertence will not constitute "cause" unless the error rises to the
level of a constitutional violation. The "prejudice" component of the claim focuses on the question of whether
counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.
Criminal Law & Procedure > ... > Review > Specific Claims > Ineffective Assistance of Counsel
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Constitutional Law > ... > Fundamental Rights > Criminal Process > Assistance of Counsel
Criminal Law & Procedure > ... > Review > Standards of Review > Deference
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Tests for Ineffective Assistance of Counsel
Evidence > Inferences & Presumptions > Presumptions > Particular Presumptions
HN4[ ] In assessing counsel's performance in the context of an application for a writ of habeas corpus, a
reviewing court must be highly deferential and avoid the second-guessing of counsel's assistance, as it is all too
easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable. A court must determine whether under the circumstances counsel's
allegedly unreasonable acts or omissions were outside the wide range of professionally competent assistance. In
order to avoid the distorting effects of hindsight, a reviewing court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the
presumption that the challenged action might be considered sound trial strategy.
Constitutional Law > ... > Fundamental Rights > Criminal Process > Assistance of Counsel
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Tests for Ineffective Assistance of Counsel
Evidence > Burdens of Proof > General Overview
HN5[ ] Prejudice, under Strickland, requires showing that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. In assessing prejudice under Strickland, the question
is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible
a reasonable doubt might have been established if counsel acted differently. Instead, Strickland asks whether it is
"reasonably likely" the result would have been different. This does not require a showing that counsel's actions
more likely than not altered the outcome, but the difference between Strickland's prejudice standard and a moreprobable-than-not standard is slight and matters only in the rarest case. The likelihood of a different result must be
substantial, not just conceivable.
Criminal Law & Procedure > ... > Procedural Defenses > Exhaustion of Remedies > General Overview
Criminal Law & Procedure > ... > Procedural Defenses > Exhaustion of Remedies > Satisfaction of Exhaustion
HN6[ ] A petitioner is not entitled to relief under 28 U.S.C.S. § 2254 unless he has first exhausted his remedies in
state court, which requires petitioners to "fairly present" federal claims to the state courts to provide them with an
opportunity to correct alleged violations of state prisoners' federal rights. A claim has been "fairly presented" if the
petitioner identified the specific constitutional guarantee allegedly violated, and presented a statement of the facts
which entitle the petitioner to relief. At least prior to the enactment of the Antiterrorism and Effective Death Penalty
Act of 1996, the introduction in federal habeas proceedings of additional facts in support of a claim did not render
the claim unexhausted under § 2254 as long as the new evidence did not fundamentally alter the legal claim
already considered by the state courts.
Criminal Law & Procedure > ... > Review > Standards of Review > Presumption of Correctness
HN7[ ] Under the version of 28 U.S.C.S. § 2254(d) applicable to cases brought prior to the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996, the state court's factual determinations after a hearing are
presumed to be correct during habeas review unless it appears that any one of eight criteria is satisfied.
88
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Criminal Law & Procedure > ... > Review > Standards of Review > Presumption of Correctness
Criminal Law & Procedure > Habeas Corpus > Review > General Overview
HN8[
] See the 1966 version of 28 U.S.C.S. § 2254(d).
Criminal Law & Procedure > Habeas Corpus > Review > Burdens of Proof
Criminal Law & Procedure > ... > Review > Standards of Review > Presumption of Correctness
HN9[ ] The 1966 version of 28 U.S.C.S. § 2254 provides that even in the absence of any of the eight factors
providing exceptions to the presumption of correctness of the state court's factual determinations, a habeas
petitioner might still prevail by establishing by convincing evidence at a federal evidentiary hearing that the state
court's factual determination was erroneous.
Evidence > Judicial Notice > Adjudicative Facts > Public Records
HN10[
] Federal courts may take judicial notice of published census data.
Constitutional Law > ... > Fundamental Rights > Criminal Process > Assistance of Counsel
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Tests for Ineffective Assistance of Counsel
Criminal Law & Procedure > Habeas Corpus > Review > Burdens of Proof
Evidence > Inferences & Presumptions > Presumptions > Particular Presumptions
HN11[ ] The U.S. Supreme Court has identified three circumstances under which a petitioner might prove a per se
violation of the right to effective assistance of counsel: (1) complete denial of counsel at a critical stage of the case;
(2) where counsel entirely fails to subject the prosecution's case to meaningful adversarial testing; and (3) where
circumstances are such that competent counsel very likely could not render assistance. Under any of those
circumstances, prejudice is presumed and a petitioner is relieved of the burden to demonstrate any impact arising
from the lack of effective assistance of counsel. All other claims of ineffective assistance of counsel are subject to
the highly deferential two-prong standard of Strickland v. Washington.
Constitutional Law > ... > Fundamental Rights > Criminal Process > Assistance of Counsel
HN12[
] Justice requires that counsel must do more than appear in court or argue to the jury.
Constitutional Law > ... > Fundamental Rights > Criminal Process > Assistance of Counsel
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > General Overview
HN13[ ] While strategic choices made after thorough investigation are generally considered within the range of
competent assistance, counsel has a duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.
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Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Sentencing
Constitutional Law > ... > Fundamental Rights > Criminal Process > Assistance of Counsel
Criminal Law & Procedure > Sentencing > Capital Punishment > Mitigating Circumstances
HN14[ ] An attorney's failure to reasonably investigate the defendant's background and present mitigating
evidence at sentencing can constitute ineffective assistance of counsel. The prospect of being put to death unless
counsel obtains and presents something in mitigation magnifies counsel's responsibility to investigate.
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Sentencing
Constitutional Law > ... > Fundamental Rights > Criminal Process > Assistance of Counsel
HN15[ ] Surrender is not a strategic decision. To the contrary, counsel's failure to present any available mitigating
evidence simply because he did not think that it would do any good constitutes an abdication of advocacy.
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > General Overview
Constitutional Law > ... > Fundamental Rights > Criminal Process > Assistance of Counsel
HN16[ ] Counsel's strategic choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on investigation.
Constitutional Law > ... > Fundamental Rights > Criminal Process > Assistance of Counsel
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Sentencing
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Tests for Ineffective Assistance of Counsel
Criminal Law & Procedure > Sentencing > Capital Punishment > Mitigating Circumstances
Criminal Law & Procedure > Sentencing > Capital Punishment > Aggravating Circumstances
HN17[ ] In the context of a capital case, upon finding that counsel's performance at sentencing was
constitutionally deficient, the Strickland standard requires the court to weigh all of the available mitigation evidence
against the aggravating evidence to determine whether there is a reasonable probability that the habeas petitioner
would have received a different sentence after a constitutionally sufficient mitigation effort by his trial counsel. The
reasonable probability standard is somewhat lower than a preponderance standard and does not require that a
petitioner establish that a different outcome is more likely than not.
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Tests for Ineffective Assistance of Counsel
HN18[
] Counsel's effectiveness must be judged by the standard of Strickland v. Washington.
Criminal Law & Procedure > ... > Order & Timing of Petitions > Procedural Default > General Overview
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Criminal Law & Procedure > ... > Exceptions to Default > Cause & Prejudice Standard > General Overview
HN19[ ] Procedural default is ordinarily a bar to federal habeas corpus review, which a petitioner may overcome
by demonstrating cause and prejudice.
Criminal Law & Procedure > ... > Exceptions to Default > Cause & Prejudice Standard > Proof of Cause
Criminal Law & Procedure > ... > Review > Specific Claims > Ineffective Assistance of Counsel
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Postconviction Proceedings
Constitutional Law > ... > Fundamental Rights > Criminal Process > Assistance of Counsel
HN20[ ] Recent changes in the law have enabled petitioners in Tennessee to establish "cause" to excuse the
procedural default of a substantial claim of ineffective assistance by demonstrating the ineffective assistance of
post-conviction counsel in failing to raise the claim.
Constitutional Law > ... > Fundamental Rights > Criminal Process > Assistance of Counsel
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Postconviction Proceedings
Criminal Law & Procedure > ... > Exceptions to Default > Cause & Prejudice Standard > Proof of Prejudice
Criminal Law & Procedure > ... > Review > Specific Claims > Ineffective Assistance of Counsel
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Tests for Ineffective Assistance of Counsel
HN21[ ] The U.S. Supreme Court's creation in Martinez v. Ryan of a narrow exception to the procedural-default
bar stemmed from its recognition, as an equitable matter, that the initial-review collateral proceeding, if undertaken
without counsel or with ineffective counsel, may not have been sufficient to ensure that proper consideration was
given to a substantial claim. In other words, Martinez requires that the ineffective assistance of post-conviction
counsel occur during the "initial-review collateral proceeding," and that the underlying ineffective-assistance-of-trialcounsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some
merit. Importantly, Martinez did not dispense with the "actual prejudice" prong of the standard for overcoming
procedural default first articulated by the U.S. Supreme Court in Coleman v. Thompson. The review of an
ineffective-assistance claim under Martinez potentially involves two complex layers of analysis: Coleman cause and
prejudice analysis (including Strickland analysis of post-conviction counsel's effectiveness) and Strickland analysis
of trial counsel's effectiveness.
Criminal Law & Procedure > ... > Exceptions to Default > Cause & Prejudice Standard > Proof of Prejudice
HN22[ ] A habeas corpus petitioner cannot show prejudice arising from a failure to present testimony without
making some showing of what the testimony would have been.
Criminal Law & Procedure > ... > Exceptions to Default > Cause & Prejudice Standard > Proof of Cause
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Postconviction Proceedings
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Appeals
Constitutional Law > ... > Fundamental Rights > Criminal Process > Assistance of Counsel
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HN23[ ] Ineffective assistance of post-conviction counsel cannot supply cause for procedural default of a claim of
ineffective assistance of appellate counsel.
Criminal Law & Procedure > ... > Review > Specific Claims > Ineffective Assistance of Counsel
Criminal Law & Procedure > ... > Exceptions to Default > Cause & Prejudice Standard > Proof of Cause
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Trials
Criminal Law & Procedure > Counsel > Effective Assistance of Counsel > Postconviction Proceedings
HN24[ ] Martinez v. Ryan's exception to the Coleman v. Thompson procedural default bar is limited to claims of
ineffective assistance of trial counsel: Coleman held that an attorney's negligence in a post-conviction proceeding
does not establish cause, and this remains true except as to initial-review collateral proceedings for claims of
ineffective assistance of counsel at trial. The United States Court of Appeals for the Sixth Circuit has enforced the
strict limitation on the scope of Martinez.
Counsel: [*1] For David Carl Duncan, Petitioner: John E. Herbison, LEAD ATTORNEY, Clarksville, TN; Paul R.
Bottei, LEAD ATTORNEY, Federal Public Defender's Office (MDTN), Nashville, TN; Amy D. Harwell, Federal Public
Defender's Office, Nashville, TN.
For Ricky Bell, Respondent: Andrew H. Smith, LEAD ATTORNEY, Federal Bureau of Prisons, Western Regional
Office, Stockton, CA; Brent C. Cherry, Jennifer L. Smith, LEAD ATTORNEYS, Tennessee Attorney General's
Office, Nashville, TN.
For Tennessee Bureau of Investigations, Movant: Lyndsay Sanders, LEAD ATTORNEY, Tennessee Attorney
General's Office, Nashville, TN.
Judges: JOHN T. NIXON, UNITED STATES DISTRICT SENIOR JUDGE.
Opinion by: JOHN T. NIXON
Opinion
MEMORANDUM
Petitioner David Carl Duncan, a prisoner in state custody confined under a sentence of death at Riverbend
Maximum Security Institution, has filed a petition under 28 U.S.C. § 2254 for the writ of habeas corpus. By Order
entered August 11, 2014, the Court disposed of all of Petitioner's claims except for his claims of ineffective
assistance of counsel, and ordered additional briefing on the latter claims in light of intervening case law including
Martinez v. Ryan, 566 U.S.-, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012). (Doc. No. 238.) The parties have now
completed their supplemental briefing (Doc. Nos. 242, 248, [*2] 249), and Petitioner's ineffective-assistance claims
are ripe for adjudication.
For the reasons set forth below, Petitioner David Carl Duncan is entitled to federal habeas relief on the ground that
his trial attorney rendered ineffective assistance at the sentencing phase of his capital murder trial. The Court will
accordingly vacate Petitioner's sentence of death subject to the State's right to commence a new sentencing
hearing consistent with this ruling. The petition will be denied in all other respects, and Petitioner's convictions and
other sentences will not be affected by this ruling.
I. History and Standard of Review
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Petitioner was convicted on April 1, 1983, in Sumner County, Tennessee, of the first degree murder, armed robbery
and aggravated rape of convenience store clerk Ruby Evelyn Burgess.1 The trial court imposed life sentences for
the robbery and rape. At the sentencing phase for the capital murder offense, the jury found two aggravating
factors: (1) that the murder was heinous, atrocious or cruel, and (2) that it was committed during the perpetration of
a felony. It further found that any mitigating factors did not outweigh the aggravating factors, and accordingly
sentenced [*3] Petitioner to death. All of Petitioner's efforts to obtain relief from his convictions or sentencesincluding direct appeal, three state post-conviction proceedings and a motion to reopen the third, and two state
habeas corpus actions-have been unsuccessful. The present action was filed in November 1988, stayed in 1990
pending Petitioner's exhaustion of state remedies, and reactivated in December 1999. Since that time, Petitioner
has conducted discovery and filed two amendments to his petition, and the Court held a full evidentiary hearing on
Petitioner's claims in 2012. In August 2014, the Court ruled on both parties' motions for summary judgment and
disposed of all but 1 of Petitioner's 33 distinct claims for relief. (Doc. No. 238.) The only claim remaining for
resolution is Petitioner's claim that he received ineffective assistance of counsel at the guilt and sentencing phases
of his trial and on direct appeal, about which the parties submitted additional briefing through December 4, 2014.
(Doc. Nos. 242, 248, 249.)
The Amended Petition breaks Petitioner's ineffective-assistance claim (Claim 13) into five sub-claims (13(a) through
13(e)), the first two of which are themselves broken into 18 and 14 subparagraphs respectively, amounting to an
actual total of 35 claims. (Doc. No. 64, at 16-21. ) Of that total, Petitioner asserts in his supplemental brief that he is
pursuing relief on claims asserted in 4 subparagraphs that he maintains are exhausted: 13(a)(3), 13(a)(17), 13(b)
and 13(d); and in 6 subparagraphs that he acknowledges are defaulted: 13(a)(1), 13(a)(2), 13(a)(5), 13(a)(6), 13(c)
and 13(e). He also seeks to revive substantive claims from 10(b) and (c), which the Court previously dismissed as
procedurally defaulted. The Court addresses those claims below.2
HN1[ ] A state prisoner is entitled to a writ of habeas corpus "only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Because Petitioner filed his
original petition prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the
pre-AEDPA standard of review applies. Lindh v. Murphy, 521 U.S. 320, 326, 117 S. Ct. 2059, 138 L. Ed. 2d 481
(1997). Under that standard the Court may "make its own independent determination of [Petitioner's] federal claim,
without being bound by the determination on the merits of that claim reached in the state proceedings." Buell v.
Mitchell, 274 F.3d 337, 344 (6th Cir. 2001) (quoting Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed.
2d 594 (1977)).
State court findings of fact relevant to a district court's review of a habeas corpus petition are entitled to a
presumption of correctness. 28 U.S.C. § 2254(d) (1966). However, under pre-AEDPA standards, that presumption
can be overcome by any of eight statutory exceptions, including the district court's independent finding that the
state court's findings are not fairly supported by [*6] the record. Id.; Bragan v. Morgan, 791 F. Supp. 704, 717-18
(M.D. Tenn. 1992). The presumption of correctness does not attach to a state court's pure legal conclusions or to
findings that involve mixed questions of law and fact. Sumner v. Mata, 449 U.S. 539, 557, 101 S. Ct. 764, 66 L. Ed.
2d 722 (1981).
HN2[ ] Subsections (b) and (c) of pre-AEDPA § 2254 require a habeas corpus petitioner to exhaust the state
remedies available to him before raising claims in federal court. Exhaustion requires that petitioners "fairly present"
1 The
Court's previous Memorandum (Doc. No. 237) contains a thorough recitation of the procedural and factual histories and
standard of review applicable to this case. [*4] Duncan v. Carpenter, No. 3:88-00992, 2014 U.S. Dist. LEXIS 110595, 2014 WL
3905440, at *1-7 (M.D. Tenn. Aug. 11, 2014). The Court reaches its conclusions now in light of those histories and standards,
which it will not repeat here beyond this relatively brief synopsis.
2 In
the Court's Order requiring re-briefing of this "superclaim," Petitioner was instructed to "set forth each subparagraph of that
claim [he] still wishes to pursue" and provide specific information and analysis for each. (Doc. No. 238, at 2.) Accordingly, [*5]
Petitioner's "[w]ithout waiving any claims" caveat notwithstanding, the Court limits its review to the specific claims enumerated
and addressed in Petitioner's Supplemental Brief (Doc. No. 242). The remainder of Claim 13 will be dismissed as abandoned.
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federal claims to the state courts to provide them with an opportunity to correct alleged violations of state prisoners'
federal rights. Picard v. Connor, 404 U.S. 270, 275-76, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). If the petitioner has
no remedy currently available in state court, the exhaustion requirement is satisfied. Gray v. Netherland, 518 U.S.
152, 161-62, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996); Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed.
2d 334 (1989).
Although a claim may be deemed fully exhausted under these circumstances, the petitioner's failure to assert the
claim in state court may constitute procedural default barring federal review. Gray, 518 U.S. at 162. The procedural
default doctrine is an extension of the comity policy that underscores the exhaustion doctrine. As explained by the
Supreme Court, under this doctrine "[t]his Court will not review a question of federal law decided by a state court if
the decision of that court rests on a state law ground that is independent of the federal question and adequate to
support the judgment." Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1992).
Thus, when [*7] a claim is procedurally barred under state law, it is procedurally defaulted for the purpose of federal
habeas review, and cannot be considered on its merits unless the petitioner establishes cause and prejudice for the
default, or that failure to review the claim will result in a miscarriage of justice, i.e., that he is actually innocent.
Schlup v. Delo, 513 U.S. 298, 318-21, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995); Alley v. Bell, 307 F.3d 380, 385-86
(6th Cir. 2002).
HN3[ ] The constitutional standard for effectiveness of counsel applies to retained counsel and appointed counsel
alike. Cuyler v. Sullivan, 446 U.S. 335, 344-45, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980) ("The vital guarantee of
the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce
or forfeit the defendant's entitlement to constitutional protection. Since the State's conduct of a criminal trial itself
implicates the State in the defendant's conviction, we see no basis for drawing a distinction between retained and
appointed counsel that would deny equal justice to defendants who must choose their own lawyers."). Claims of
ineffective assistance of counsel are subject to the highly deferential two-prong standard of Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which asks: (1) whether counsel was deficient
in representing the defendant; and (2) whether counsel's alleged deficiency prejudiced the defense so as to deprive
the defendant [*8] of a fair trial. Id. at 687. To meet the first prong, a petitioner must establish that his attorney's
representation "fell below an objective standard of reasonableness." Id. at 688. Mere attorney ignorance or
inadvertence will not constitute "cause" unless the error rises to the level of a constitutional violation. See Coleman,
501 U.S. at 752—55. The "prejudice" component of the claim "focuses on the question of whether counsel's
deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v.
Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993).
HN4[ ] In assessing counsel's performance, a reviewing court must be highly deferential and avoid the "secondguess[ing of] counsel's assistance . . . , [as] it is all too easy for a court, examining counsel's defense after it has
proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466
U.S. at 689. The court must determine whether under the circumstances counsel's allegedly unreasonable acts or
omissions "were outside the wide range of professionally competent assistance." Id. at 690. In order to avoid "the
distorting effects of hindsight," a reviewing "court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional [*9] assistance; that is, the defendant must overcome the
presumption that . . . the challenged action 'might be considered sound trial strategy.'" Id. at 689 (citation omitted).
HN5[ ] Prejudice, under Strickland, requires showing that "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A
reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The Supreme Court
has further explained the Strickland prejudice requirement as follows:
In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's
performance had no effect on the outcome or whether it is possible a reasonable doubt might have been
established if counsel acted differently. Instead, Strickland asks whether it is "reasonably likely" the result
would have been different. This does not require a showing that counsel's actions "more likely than not altered
the outcome," but the difference between Strickland'' s prejudice standard and a more-probable-than-not
94
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standard is slight and matters "only in the rarest case." The likelihood of a different result must be substantial,
not just [*10] conceivable.
Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 178 L. Ed. 2d 624,-, 562 U.S. 86, 131 S. Ct. 770, 791-92, 178 L.
Ed. 2d 624 (2011) (internal citations omitted).
With these standards in mind, the Court turns to Petitioner's specific claims of ineffective assistance.
II. Exhausted Claims
A. Paragraphs 13(b) and 13(d): Ineffectiveness Concerning Background, Intelligence and Mental Health Mitigation
Evidence
At the sentencing hearing following Petitioner's murder conviction, his trial counsel, William Ligon, offered no proof
in defense of Petitioner's life, and delivered this argument that fills less than two and a half pages of the trial
transcript:
Ladies and gentlemen, it's not often that I lose my composure. It is not very often that I am at a loss for words,
but, as the General said, mercy, because you all have already discharged a portion of your duties and we went
through thirteen (13) hours the other day to let you know what you have to do if you came to the decision that
you came to. There are two (2) families involved here. At this particular point in time, neither of them are happy
with this situation. The family of Ms. Burgess, they know she won't be back. They knew she wouldn't be back
when they found out that this serious crime has occurred. But I'll tell you what, I have learned something [*11]
in the last two (2) or three (3) hours here, and I hope I'm not putting anyone on the spot, but Reverend
Anderson and I have found out that charity and hope is still alive. And, in what you conveyed to me, after the
jury came back with their verdict, I conveyed to my client and if I've ever met someone that I felt was a
Christian and a giving person, sir, it's you. Now, when I leave here, no matter what your decision will be, I'm
going to have to walk down and tell the mother that-all that's gone on here in the last two (2) or three (3) hours.
That her baby boy-and I told her before she left, and think about it, ladies and gentlemen, the best he can do is
life. That's the best. She knows what the worst is. David Carl Duncan, sitting over here, believe it or not, ever
since he's been picked up, knew what the worst was. And, in a few minutes, after your deliberation, I hope I'm
able to prove him wrong. But the disappointment that I have standing here, and not so much disappointment in
the outcome of this circumstance, ladies and gentlemen, just disappointment in the fact that faced with your
choices, I'm disappointed that you have to make it. I sincerely hope that you will consider the [*12] Duncan
family, and I sincerely hope that you will consider Ms. Anderson's family, and I sincerely hope that you consider
the fact that even though she's gone, this woman left here among us a very, very forgiving, charitable and
Christian son, whom I've had only the occasion to met [sic] in the last two (2) hours. I'm not going to put any
words in Reverend Anderson's mouth or anything like that, but the message that I got from him, I sincerely
hope that permeates this courtroom. If it does permeate this courtroom, then I would, at least, be able to step in
the door in just a little while and say, at least, you will be alive. Now, I understand you made your decision
based on the fact that there was a death, but to wear out a biblical phrase that probably already been over
used time after time, an eye for an eye and a tooth for a tooth. Every since I heard the verdict on the first
Count, that's been running through my mind. It's always been taken out of context. It's always been abused
and misused, and I would pray that you twelve (12) good people, citizens of this county, would not take it out of
context again. There is very little that you do here that will be able to salvage the wounds [*13] that Ms.
Burgess' family felt over the last two (2) years. And, I would only ask and I will only plead, and I will only beg,
that you twelve (12) good people in your attempt to heal up the old wounds, please don't open up new wounds.
Thank you.
(Doc. No. 10, Add. 1 vol. 8, Tr. 647-49.)
In Paragraph 13(b) of his Amended Petition, Petitioner claims that Ligon was ineffective at sentencing for failing to
investigate and present numerous categories of available mitigating evidence, including: his being raised in extreme
poverty with no indoor plumbing in a small house with seven other people and an abusive, alcoholic father who
denied being Petitioner's father; his childhood head injury, below average I.Q. and poor academic performance
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before dropping out of school at an early stage; his good employment history; his kindness to others; his close
relationship with his mother; the taunting he endured as a child because of his stutter and crossed eye; his heavy
drinking, including blackouts, and drug use; his psychological impairments; and his good adjustment to prison life.
(Doc. No. 64, at 18-20.) In Paragraph 13(d) he adds that counsel was ineffective at sentencing for failing to
secure [*14] the assistance of mental health experts to present some of those mitigating factors to the jury. (Id. at
21.)
1. Exhaustion
There is some disagreement between the parties about the extent to which this combined claim was exhausted in
state court and whether any of the legal or factual bases upon which Petitioner now relies are procedurally
defaulted. Respondent urges, without any specificity, that:
To the extent [Petitioner] now seeks to raise additional basis for ineffectiveness at sentencing, those claims are
now procedurally defaulted. Further, to the extent he failed to develop the factual basis of his claims in the state
court, additional facts are likewise defaulted under Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12, 112 S. Ct.
1715, 118 L. Ed. 2d 318 (1992) (under pre-AEDPA standard, petitioner entitled to evidentiary hearing if he can
show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from
the failure). Furthermore, Martinez [v. Ryan, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012)] provides no basis to
excuse either of these defaults, which occurred outside initial-review collateral proceedings. Martinez, 132 S.
Ct. at 1320 ("The holding . . . does not concern attorney errors in other kinds of proceedings, including appeals
from initial-review collateral proceedings, second or successive collateral [*15] proceedings, and petitions for
discretionary review in a State's appellate courts.").
(Doc. No. 248, at 16-17.) This disagreement necessitates a thorough (and unfortunately lengthy) review of when
and how this claim was presented during state court proceedings,
a. First Post-Conviction Proceeding
Petitioner's amended petition in his first state post-conviction action, filed by appointed counsel William Vest,
included a bare-bones claim that trial counsel was ineffective for "[i]ntroducing no proof during the sentence stage
of the trial." (Doc. No. 10, Add. 12, at 2.) Trial counsel Ligon testified at the first post-conviction hearing in
December 1986 that he had graduated from college in 1974 and from law school in 1979, and had passed the bar
exam in 1980. (Doc. No. 10, Add. 2 vol. 1, Tr. at 43.) He was paid a total of $4,000 to defend Petitioner in this trial
and a second unrelated murder trial, and at the time this case went to trial in March 1983, he had never represented
a defendant in a capital case or any other criminal jury trials. (Id., Tr. at 5-6.) Ligon acknowledged that the
Tennessee Supreme Court had cited him for contempt of court and sanctioned him for failing to file Petitioner's
appeal [*16] timely, and that at the time of his testimony he was in the process of appealing a one-year suspension
by the Board of Professional Responsibility. (Id., Tr. at 43—44.)
Ligon's hearing testimony about his strategy for the sentencing phase of the trial was as follows:
Q. Now did you consult and advise Mr. Duncan during the sentencing stage of this trial as to whether he should
testify or not?
A. Well, we didn't-once again, we went out and discussed it as to whether or not anybody would take the stand.
The unfortunate thing about this sentencing phase was that what we were looking for or what we thought the
jury would be looking for was some particular type of remorse. It was not the time to maintain your innocence
which was what Mr. Duncan did throughout the entire proceedings. So at that particular time we didn't really
feel we could put anybody on. We didn't have anybody on. I asked Mrs. Duncan would she think it was wise to
go back, but if I recall everybody was pretty much devastated by the fact that our story was not believable. At
least the jury did not believe it and there was a general reluctance of anybody to get back on that stand and
actually go along with the conviction.
* * [*17] *
Q. Now, is that also the reason you didn't have Mr. Duncan's mother testify during the sentencing phase?
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A. Well, she was pretty upset as I recall. And if I recall the conversation that we had in the back here it was all
centered around the fact that no one was believed. The reason that no one was believed I think we understood
or thought was the fact that one of our witnesses had changed her testimony on the stand-testified differently
as to what we had previously discussed and what they had talked to Detective Lame about and that was pretty
inflammatory.3 It came out in the proof in chief and we were pretty much afraid that at this particular time that
anything we said would be subject to question because we had put on a witness who had changed their
testimony and that had been brought out on rebuttal. But in answer to your question, sir, no, sir, nobody felt
confident in getting back on the stand based on the limitations that we would have at a sentencing hearing
which would basically be in a capital case like this we would have to ask for some type of mercy or leniency
presupposing that the conviction was correct.
(Doc. No. 10, Add. 2 vol. 1, Tr. at 38:7-39:22.) Ligon elaborated [*18] about his perspective on the sentencing
phase during cross-examination:
Q. Just generally tell us what your discussion [about testifying during the sentencing hearing] concerned?
A. Well, the discussion at that particular time was after the jury had determined that Mr. Duncan was guilty of
all three counts. And I recall explaining to perspective [sic] witnesses that the testimony now would have to be
one of a kind of remorse, of stating that, you know, Mr. Duncan or the family would be very sorry that he had
been involved in this and express some kind of grief for the loss of the victim's family and ask for some type of
forgiveness and some particular type of leniency. And that argument had to presuppose that the jury was
correct in its determination. At that particular time no one really that I spoke to saw it that way. They either felt
that there had been-that the jury had not taken into consideration everything that had come down or that either
they had not believed them. And I recall there was some general hesitance of anybody to go back and get on
the stand because they had only testified maybe a few hours earlier and didn't feel that they had been
believed.
Q. What about Mr. Duncan [*19] himself, did he want to testify at the hearing?
A. Well, at that particular time I don't recall whether he wanted to or not but the decision was made for him not
to take the stand. He had just been sentenced to death by electrocution.
Q. He had just been convicted.
A. Well, I had to explain to him that I didn't think it was going to be anything more than a foregone conclusion
that if the jury came back as fast as they did with a murder conviction that I thought they were going to lean
more toward the death penalty. I did explain that to him when we first got the verdict back. And, you know, he
took it fairly well but I could still tell, of course, he was pretty much affected by it and I was pretty much afraid to
advise him to take the stand under those particular circumstances.
Q. Did you not advise him to take it?
A. Well, sir, I didn't advise him to take it or not to take it. The decision was made in concert, I guess, with
everybody involved that I would just have to come out and make some kind of plea. That's basically how it
boiled down. I didn't really have anybody to put on. Nobody was willing to get back up there under the
circumstances.
(Doc. No. 10, Add. 2 vol. 1, Tr. at 63:11-65:2.) [*20]
Ligon's reference to the notion that "no one was believed" by the jury, in connection with the decision about whether
to have Petitioner's mother testify at sentencing, requires some discussion of her brief testimony during the guilt
phase of the trial. (See Doc. No. 10, Add. 1 vol. 8, Tr. at 603-18.) During Mrs. Duncan's direct testimony at trial, she
said that it was not unusual for Petitioner to spend nights or even weeks at his girlfriend Leony Jenkins's house, but
she was not asked where Petitioner was at the time of the murder, and on cross-examination she acknowledged
that she did not recall where he was that night. The primary point of her testimony appears to have been to rebut
the prosecution's evidence that Petitioner had access to two green cars like the one that a witness identified
3 This
is almost certainly a reference to the testimony of Leony Jenkins, who, according to Ligon, unexpectedly testified at trial
that Petitioner was with her on the night of the murder, contrary to all of her previous statements. (Doc. No. 10, Add. 2, Tr. at 5556.) Ms. Jenkins explained that she did so because Ligon "had me feeling like he did want me to lie." (Id. at 140.)
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Petitioner with at the murder [*21] scene. She testified that her son Jimmy did not buy his green Buick Electra until
1982, the year after the murder. She further testified that although her son Albert had a green Chevrolet Nova
parked in her yard at the time of the murder, he had given strict instructions for no one to drive the vehicle because
it had a busted headlight, expired tags and no insurance, and that he had come home for his birthday a few days
before the murder and would not have allowed anyone to drive the car while he was home. She acknowledged that
the Nova was capable of being driven and that Petitioner did at times drive it, but said he never did so without
Albert's permission. Mrs. Duncan's only testimony at trial about Petitioner's background was that he had worked off
and on ever since dropping out of school. Contrary to Ligon's apparent assumption, nothing about Mrs. Duncan's
testimony was necessarily discredited by Petitioner's conviction.
Mrs. Duncan testified at the post-conviction hearing that Ligon never talked to her about the possibility of testifying
at the sentencing hearing and asking the jury to spare her son's life, and that she thought she would have done so if
she had known that she [*22] could. (Doc. No. 10, Add. 2 vol. 1, Tr. at 146:1-14.)
Petitioner testified at the post-conviction hearing that he did not testify during the sentencing phase because Ligon
"said it mostly wouldn't do no good. He said that if there was anything that had to be said that he would say it."
(Doc. No. 10, Add. 2, Tr. at 110:12-14.) Petitioner further testified that although he had dropped out of school
without finishing the ninth grade, he had never had any mental problems and had never seen a psychiatrist or other
mental health professional. (Id, Tr. at 111:8-12, 126:22-127:2.)
Finally, Petitioner's appointed appellate counsel, Edward Yarbrough, testified at the first post-conviction hearing as
follows about his opinion of the defense strategy at trial generally:
I think that's what disturbs me the most and what jumped out at me when I first read the transcript. There was
no strategy. And now that I've learned that this was Mr. Ligon's first jury trial ever it's apparent why there was
no strategy. Mr. Ligon, a very nice fellow, was out of his league. He had no business being in this courtroom
defending a capital case with the experience that he had. . . . He had no idea what he was doing. [*23] And I
don't say he's a bad person for that. I just think it should have been stopped. He should not have been
permitted to do that given the fact that he had no experience and really didn't understand what he was about.
(Doc. No. 10, Add. 2 vol. 2, Tr. at 167:19-168:10.)
In its ruling from the bench denying relief on the first post-conviction proceeding, the court made a single reference
to counsel's handling of the sentencing phase of Petitioner's trial:
And another reason that the defendant did not testify according to Mr. Ligon on his sentence [sic] hearing is
because neither the defendant nor his family could accept or did accept the verdict of guilt and could show no
remorse and would not be such a state of mind to impress the jury in any way because of the lack of remorse.
(Doc. No. 10, Add. 2 vol. 2, Tr. at 247:17-22.) In its written order, the trial court rejected this claim as follows:
No proof was offered at the hearing of this Petition as to what testimony was available to be offered by trial
counsel at the sentencing hearing. Trial counsel has testified that no proof was, in fact, available that could
have been offered at the sentencing hearing. The Court finds this testimony [*24] to be credible and the record
supports it. This allegation is without merit.
(Doc. No. 10, Add. 14, at 4 ¶ 15.)
In his appeal from this dismissal, Petitioner quoted testimony by Yarbrough to the effect that trial counsel should
have called Petitioner's mother as a witness to plead for his life during the sentencing phase, and should perhaps
have called Petitioner himself or other people familiar with him, although he "won't debate the judgment call of
whether to call the defendant at the sentencing hearing." (Doc. No. 10, Add. 15, at 23—24.) The Tennessee Court
of Criminal Appeals affirmed the holding that Petitioner's trial counsel was not ineffective, without specifically
addressing the alleged ineffectiveness during sentencing, and both the Tennessee Supreme Court and the United
States Supreme Court denied review. Duncan v. State, No. C.C.A. 87-6-III, 1988 Tenn. Crim. App. LEXIS 117,
1988 WL 10072 (Tenn. Ct. Crim. App. Feb. 9, 1988).
b. Second Post-Conviction Proceeding
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Petitioner maintains that claims in subparagraphs 13(b) and 13(d) were exhausted during his second state postconviction action, in which he was represented by his current counsel.4 (Doc. No. 242, at 4-5.) In one of many
amendments to his second petition for post-conviction relief, Petitioner asserted that [*25] trial counsel ineffectively
failed to present mitigating evidence at the penalty phase of his trial as "the result of a complete failure to
investigate the Petitioner's background, character and life circumstances," and that the failure "was manifestly not
the result of any informed, legitimate strategic or tactical choice made by counsel upon adequate preparation."
(Doc. No. 40, Add. 26 vol. 1, T.R. at 53-55.) Petitioner further asserted that this issue had not been fully and fairly
heard during his first post-conviction proceeding because his previous post-conviction counsel, William Vest,
"inexplicably failed to present the full range of mitigation evidence which could have been presented at trial had trial
counsel done adequate investigation and preparation," as "the result of Mr. Vest's inadvertence, inexperience
and/or failure to fully investigate the Petitioner's life history."5 (Id. at 55-56.)
Petitioner presented evidence relevant to this claim at a second post-conviction hearing on April 7, 1993, despite
argument by the state and acknowledgment by Petitioner that the issue had been "ventilated somewhat" during the
first post-conviction proceeding. (Doc. No. 40, Add. 26 vol. 1, Tr. at 12:14-15, 15:8-17.) Counsel at the second postconviction hearing expressly stated that the purpose of some of the evidence [*27] offered was to demonstrate the
"very substantial mitigation evidence" that could have been presented at trial, but which previous counsel had failed
to develop at the first post-conviction hearing, and the trial court permitted him to proceed. (Doc. No. 40, Add. 26
vol. 1, Tr. at 127.)
To that end, Petitioner again called his trial attorney, William Ligon, who testified that he "had no doubt" from the
beginning of the case that if the jury convicted the Petitioner, he would be sentenced to death. (Doc. No. 40, Add.
26 vol. 1, Tr. at 79.) Ligon testified that because Petitioner is black and the victim was white, "I kind of anticipated
that a Sumner County jury, in light of the situation, there was probably going to give a capital penalty. I just — You
know, we knew it all along. We knew it prior to when we went out and started the case." (Id., Tr. at 80:21—25.) He
testified to the effect that he believed an effective case at sentencing was foreclosed by the guilt-phase theory that
Petitioner was not involved with the crimes:
Granted, I knew that if we took a posture that we took going into the trial of no involvement, no involvement
whatsoever, not on the scene, that we were going to have [*28] a really difficult time during the penalty phase
of switching gears and turning around and seeking to avoid the death penalty based on the-our theory of
defense, a theory I knew we probably weren't going to be able to put before the jury. If we did not have a
discernible theory that we could pretty much turn around and argue, it was going to be all done on crossexamination with a slim hope of being able to establish an alibi, and if we failed at that, I kind of knew that we
were going to be out there. And I explained that to my client and also explained it to his family that it was going
to be very, very tough to avoid what the General was asking for, which would be the death penalty, based on
the theory that we were taking into-taking into the trial.
(Id., Tr. at 79-80.) In terms of his focus in trial preparation, Ligon testified to the effect that he really only concerned
himself with the guilt stage:
Q. So, your primary focus was overwhelmingly on the guilt phase of the trial?
4 Petitioner
acknowledges that his claim that counsel failed to deliver a meaningful argument at sentencing, raised in Paragraph
13(c) of the Amended Petition, was never expressly raised in state court. (Doc. No. 242, at 6.) However, he argues that it "clearly
relates" to the exhausted claims of ineffective assistance [*26] at sentencing. (Id.) The Court agrees, and finds the issue of
counsel's argument at sentencing to be so inexorably intertwined with the issue of his lack of investigation and presentation of
evidence that they must be addressed together herein. The Court notes, however, that no amount of investigation or expert
assistance would have been necessary for trial counsel to argue Petitioner's youth at the time of the offense-age 19-as a
mitigating factor, and he failed to do even that. See Tenn. Code Ann. § 39-2404(j)(7) (1977) (listing "[t]he youth or advanced age
of the defendant at the time of the crime" among the available statutory mitigating factors).
5 Petitioner
alleges that Vest was appointed to represent him in his first post-conviction action despite a total lack of experience
in capital case litigation.
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A. Well, sir, my primary focus is overwhelmingly on the guilt phase of the trial. As I stated earlier, we knew if we
were found guilty they were going to give us the — the electric chair. They was going to give [*29] us the
electric chair regardless of who we trooped in there on the sentence hearing. If I had had somebody that I
thought could have stood the heat, we'd have put them in there, but I don't really think anybody involved in this
thing, then or now, realizes how very little we had to go on. Mr. Herbison, we did not have anything.
(Id., Tr. at 94:9-20.)
Ligon testified that during the course of his investigation he spoke to Petitioner's previous employers, his family,
friends and associates. (Doc. No. 40, Add. 26 vol. 1, Tr. at 85—86.) Ligon had known Petitioner's family his entire
life, and "didn't really have to make a whole heck of a lot of investigation" into Petitioner's family history or his
relationship with his father, because he had known them for some time and "knew pretty much everything." (Id., Tr.
at 99, 109-10.) Ligon was not aware of anything unusual about Petitioner's relationship with his father, although he
knew that the father "was not above taking a drink." (Id., Tr. at 110, 120-21.) Similarly, Ligon testified that he "really
didn't have to do anything to investigate" Petitioner's family's financial circumstances while he was growing up,
because "everybody's financial [*30] circumstances were pretty much the same," and "I did not think, to me, at that
particular time, that Mr. Duncan's poverty was any different than anyone else's poverty growing up." (Id., Tr. at 11011.) He knew Petitioner's mother's reputation to be excellent, and testified that she was a soft-spoken, very
articulate woman who cared very much about her son, and about whom nobody ever said anything negative to him.
(Id., Tr. at 99.) He testified to the effect that he chose not to present character witnesses because he was
concerned they would open the door to facts "that I did not want to go into because I didn't think it would sit well
with a Sumner County jury on a case of this manner," including Petitioner's marriage to a white woman, a previous
rape charge that was dismissed, and Petitioner's drinking and recreational drug use. (Id., Tr. at 86-91.)
Ligon testified that he never requested a psychological examination of Petitioner. (Doc. No. 40, Add. 26 vol. 1, Tr. at
92:2—4.) He explained why he did not pursue that evidence:
Were you — Are you intimating to the fact we should have gotten some kind of psychological test or
psychological evaluation there? I did not think of that based [*31] on the posture and the approach that Mr.
Duncan himself and me as a defense attorney were forced into taking. We were saying we were not there,
didn't have anything to do with it. Therefore, I had no reason to think that a psychological evaluation or any
particular type of experts in and outside would have helped us. We would have had to have changed our
approach or posture as far as this case was concerned, in my opinion, at that time in order to benefit from
some expert testimony regarding his psychological state of mind or something to that effect.
(Id., Tr. at 93:7-19.) On cross-examination, he reiterated:
I really saw no reason to do so in light of the posture that Mr. Duncan was taking in regard to his involvement in
the very first trial. Our approach and his information to me was that he had not been on the scene, did not
participate in this particular crime, and knew nothing about it.
(Id., Tr. at 119:13-18.) When asked if he ever saw anything that would indicate that Petitioner might have any
psychological or psychiatric problems, he responded:
No. There was no indication either from the family or from Mr. Duncan himself. Like I said, based on the fact
that we were looking at [*32] kind of a double-barreled shotgun, I understood people's reluctance at the time.
Very few people at the time that hired me trusted me; therefore, there was a large reluctance to sit down and
tell you a lot about some of the things we talk about now, that people talk about a lot more freely than they did
at that particular time. They were not the type people that were going to sit down and give me specific details
about a family-life-type circumstances. I just didn't get that. I didn't get any particular indication.
(Id., Tr. at 120.)
Ligon testified that Petitioner's first post-conviction counsel, William Vest, did not interview him before calling him to
testify at the first post-conviction hearing. (Doc. No. 40, Add. 26, Tr. at 85.)
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Petitioner also presented the testimony of a Dr. Malone, who was a neighbor and owner of the home in which
Petitioner's family lived when he was a child. Dr. Malone testified that Petitioner's family, consisting of two parents
with their six children and one grandchild, lived in a small three-room house, and at times Petitioner's mother had to
borrow money from her to buy milk for the children. (Doc. No. 40, Add. 26 vol. 1, Tr. at 128-29.) Dr. Malone
felt [*33] that the Duncan family's poverty was a little worse than others in the community, because she viewed
having to borrow money for milk for children to be "extreme." (Id., Tr. at 138.) She testified that Petitioner's mother
was well-regarded in the community, was an outstanding church member who never missed a service and was
active in the choir and auxiliaries. (Id., Tr. at 129.) Petitioner's mother was soft-spoken and close to all of her
children. (Id.)
Dr. Malone testified that Petitioner's father, however, was "very abusive verbally" to his children, and would fly into a
rage over very minor things and "say what he was going to do to them." (Doc. No. 40, Add. 26 vol. 1, Tr. at 130.)
She testified that she smelled alcohol on his breath on weekends and heard from Mrs. Duncan that he drank on
weekdays as well. (Id., Tr. at 131.) Two or three times a month Petitioner's sister would go to Dr. Malone's house to
get away from their father "and she would say I want to come over here until he gets through ranting and raging
because he's on a drunk again." (Id., Tr. at 133.) Petitioner visited Dr. Malone's home almost every day, and his
mother told Dr. Malone that it was because he was "tired [*34] of his father ranting and raging at him." (Id., Tr. at
136.) A half dozen times a year, Petitioner's mother would come with all of the children to Dr. Malone's home,
saying "we're going to stay here until he cools down a little bit." (Id., Tr. at 137.) At times Petitioner's father would
deny being his father, and he was reputed to gamble away money needed to care for the children. (Id, Tr. at 134.)
Dr. Malone never saw him physically abuse his children. (Id., Tr. at 140.)
Dr. Malone also described witnessing an incident when Petitioner was a preschooler, approximately three or four
years old, and fell down some concrete steps on his head. She explained that she remembered it very well because
he did not breathe for so long after the fall that she thought he was dead. "After that I knew he wasn't because he
screamed and yelled for a long time." (Doc. No. 40, Add. 26 vol. 1, Tr. at 132:5-15.) She testified that once he
started school, she helped him almost daily with homework, and that he was either slow academically or just did not
do his work, and that she had "many discussions and many paddles" with him about that. (Id., Tr. at 132:16-23.) Dr.
Malone testified that at one point Petitioner [*35] told her that he was not going to go to school anymore because
other children always teased him about having one eye that was smaller and "a little bit off-focus," and that
Petitioner also had a stutter when he was young. (Id., Tr. at 135.)
Dr. Malone testified that nobody associated with Petitioner's original defense team ever contacted or interviewed
her in connection with his defense, although she would have been willing to talk to them and to testify on
Petitioner's behalf at trial if she had been asked. (Doc. No. 40, Add. 26 vol. 1, Tr. at 126, 137.) For his part, Ligon
testified that his reason for not interviewing or even approaching Dr. Malone about assisting the defense was that
she was the cousin of the victim in a separate murder charge then pending against Petitioner, and he did not want
to give her the chance to "bury us" on the witness stand. (Id., Tr. at 97:14-19, 98:16-18.)
Elizabeth Carter, who lived around the comer from the Petitioner when he was young, testified that when Petitioner
visited he was always nice, a "perfect gentleman," and that he did errands and chores for her like carrying in her
groceries. (Doc. No. 40, Add. 26 vol. 1, Tr. at 141-43.) She said that [*36] she spoke to Ligon before the trial about
appearing as a character witness, and that she went to the courthouse for that purpose, but that Ligon never called
her as a witness and never explained why. (Id., Tr. at 143—44.)
Rosie Jenkins testified that she knew Petitioner's mother and had known him since his birth, and that he had lived
in her home for a period of two to three years while he was dating her daughter, after he left school and was
working for Mid-Tenn Building Maintenance. (Doc. No. 40, Add. 26 vol. 1, Tr. at 146—48.) While he lived in her
home, he was nice to her family, contributed to the household food and never caused any trouble. (Id., Tr. at 14748.) As far as Ms. Jenkins knew, Petitioner "got along all right" with his family. (Id., Tr. at 148.)
Petitioner's sister, Alice Duncan, also testified at the second post-conviction hearing. She said that Ligon never
interviewed her to discover Petitioner's family background or social history, and that she would have told him if he
had asked. (Doc. No. 40, Add. 26 vol. 2, Tr. at 152.) She testified to the effect that when she was young her family
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"got along with one another fine," but that later her father became violent when [*37] he drank, leading to fights
between her and her father that caused injuries to both of them. (Id., Tr. at 152-54.) Her father was also physically
violent with her mother, which she testified upset Petitioner. (Id., Tr. at 157.) She testified that Petitioner started
drinking when he was around 16 or 17, and sometimes drank heavily, although she could not say how often or how
much he typically drank. (Id., Tr. at 15557.) She believed he quit school in or after the 6th grade because kids in
school were teasing him about an abnormality with one of his eyes. (Id., Tr. at 157-58.) After leaving school, he
always worked to support himself and was known as a hard worker. (Id, Tr. at 158-59.) His family was supportive
and maintained close contact with Petitioner after his arrest, and she did not know of any discipline problems he
had in jail. (Id., Tr. at 159.) She testified that none of Petitioner's previous lawyers, including his post-conviction
counsel Vest, had ever asked her about any of the facts to which she testified. (Id., Tr. at 159-60.)
Herschel Adams testified that Petitioner worked with him on a construction site and for Middle Tennessee Building
Service for approximately seven [*38] years before Petitioner left to work for Job Corps about a year and a half
before his arrest. (Doc. No. 40, Add. 26 vol. 2, Tr. at 16061, 169.) He described Petitioner as an excellent worker
who was reliable and punctual. (Id., Tr. at 162.) Adams and Petitioner were also social friends, and he knew
Petitioner to get along well with people and never knew him to be in any trouble prior to his arrest. (Id., Tr. at 163.)
He was not aware that Petitioner had been indicted for rape before his arrest for the Burgess murder. (Id., Tr. at
170.)
Geneva Utley testified that she lived near the Petitioner's family home when he was a child, and that he was
frequently in her home. (Doc. No. 40, Add. 26 vol. 2, Tr. at 171-72.) She did not know of any trouble he had with his
family, and she heard that Petitioner's father drank but did not know of any effect that had on Petitioner. (Id., Tr. at
172-73.) When they were in their 20s, Petitioner and Utley's sons worked and rode to work together, and she
presumed Petitioner went to work. (Id., Tr. at 173.) She testified that Petitioner's trial attorney Ligon never had a
"serious conversation" with her, although she and members of Petitioner's family did [*39] meet around a
conference table with him and have some conversation, and that she went to the courthouse during the trial to
serve as a character witness if needed, but that Ligon never called her to testify and never explained why. (Id., Tr.
at 173-75, 177.) She did not recall ever being contacted by Petitioner's first post-conviction counsel Vest. (Id., Tr. at
175-76.)
Petitioner also testified at the second post-conviction hearing. He maintained his innocence of the crimes at issue,
as he said he had done consistently throughout his trial. (Doc. No. 40, Add. 26 vol. 2, Tr. at 183.) He testified that
he and Ligon had discussed possible mitigation evidence "a little bit," and described Ligon's questioning of him on
that topic as follows:
He asked me, you know, various things, you know, as, you know, my work, you know, uh, a little bit about my
own life, my own life, as to how I grew up myself, you know, as far as, you know, my family, treatment, things
like that. Wasn't in depth like you went into today.
(Id, Tr. at 190:11-191:1.)
At the time of the murder, Petitioner was 19 years old. (Doc. No. 40, Add. 26 vol. 2, Tr. at 191.) At the time of his
trial, he did not have any adult criminal [*40] convictions, although he had been on probation as a juvenile for
driving without a license, failing to yield to an emergency vehicle and possession of a controlled substance. (Id., Tr.
at 191—92.) He had been charged with rape, but the charge had been dismissed. (Id., Tr. at 192.)
Petitioner testified that until he was 11 or 12 years old, his family, which grew to 9 people before they moved, lived
in a small house on Bledsoe Street that consisted of a living room, kitchen, one bedroom and a back porch, with no
indoor plumbing or bathroom. (Doc. No. 40, Add. 26 vol. 2, Tr. at 196.) He testified that his father drank, and that
when he drank he would direct foul language at the entire family and sometimes hit his mother, which upset him.
(Id., Tr. at 193-94.) When he was upset about his father's behavior, and felt like there was nothing he could do
about it because his father was bigger than he was, he would run to a woodshed and just sit by himself. (Id., Tr. at
194.) He testified that both his parents "whopped us," but that his father only did so about once a year, and that his
father did not strike blows but rather cursed and did things like turning off the television when the children [*41]
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were watching it. (Id., Tr. at 195-96.) He had not known until the day of his testimony that his father had struck his
sister. (Id., Tr. at 195.)
According to Petitioner's testimony, he started drinking before his family moved from the Bledsoe Street house. (Id.,
Tr. at 197.) He did not limit his drinking to weekends, but he drank a lot on weekends, to the point that he passed
out. (Id., Tr. at 198.) He had no memory of being at the Short Stop Market three to four blocks from his mother's
house the morning of the murder, and had no idea how his fingerprints came to be on a juice bottle there. (Id., Tr. at
198—99.)
Petitioner testified that he went to the seventh grade in school and quit because he "was just young and just didn't
know no better." (Doc. No. 40, Add. 26 vol. 2, Tr. at 200.) He testified that he used to "get looks" and be criticized
and called names because of his roving eye, bottom lip and stutter, and that "[y]ou get tired of people just picking at
you, and I guess that was one of the reasons that I left school." (Id., Tr. at 200-01.) Petitioner started working after
he quit school and worked all of his adult life before his arrest. (Id., Tr. at 201.) He did not recall whether [*42] Ligon
ever asked him about his work history. (Id., Tr. at 202.)
Petitioner testified that he did not have any discipline problems or problems getting along with anyone in jail after
his arrest, but that Ligon never asked him about that. (Doc. No. 40, Add. 26 vol. 2, Tr. at 202.) At the time that Ligon
advised him that his testimony would not be useful at trial, Petitioner did not understand that guilt and sentencing
would be determined separately. (Id., Tr. at 203-04.)
Finally, Petitioner attempted to present the testimony of a clinical psychologist about Petitioner's psychological
background and condition. The prosecutor objected to admission of her testimony, arguing that "As I understand,
this goes to the issue of whether or not testimony should or should not have been introduced at the sentence
hearing,.... And it's further irrelevant inasmuch as this issue has been previously raised by William Vest, who
represented Mr. Duncan on the first post-conviction proceeding all the way to the Court of Appeals. That was
addressed by Mr. Vest and has been previously determined by Your Honor in Your Honor's decision in that case as
well as the Court of Appeals." (Doc. No. 40, Add. 26 vol. 2, [*43] Tr. at 227-28.) Agreeing that "this question has
certainly been decided," the trial court sustained the objection but allowed Petitioner to proceed with the following
offer of proof of the testimony of clinical psychologist Dr. Gillian Blair, who evaluated Petitioner after seeing him five
times from December 1990 through May 1991. (Id., Tr. at 229, 231-32.)
Dr. Blair administered Petitioner a standard battery of psychological tests, a number of neuropsychological tests
because of the possibility of residual damage from Petitioner's history of drug and alcohol abuse and possible
dependence and from his childhood head injury. (Doc. No. 40, Add. 26 vol. 2, Tr. at 232.) She stated that based on
records she reviewed, Petitioner's academic functioning during his employment with Job Corps before his arrest
was around the fourth grade level. (Id, Tr. at 236.) His intellectual functioning at the time of her assessment was
low-average, with no particular areas of strength or weakness, and his memory was consistent with his intellectual
functioning. (Id., Tr. at 236-37.)
Based on information provided by Petitioner, Dr. Blair said it was clear that he was a heavy binge user of alcohol
and drugs [*44] since he was a teenager. (Doc. No. 40, Add. 26 vol. 2, Tr. at 238.) She described him as having "a
very severe substance abuse slash dependence disorder," including the use of alcohol, marijuana and LSD. (Id., Tr.
at 253.) Asked about the effects of binge consumption of alcohol, she stated that people who drink heavily may
have blackouts, leaving them with no memory of events during the blackout but with other memories unaffected. (Id,
Tr. at 238.) She said Petitioner could also be diagnosed with polysubstance abuse and probably dependence,
although he was in remission during incarceration, and that he has an underlying chronic depressive disorder
known as dysthymia. (Id.) She stated that although he is not mentally ill, Petitioner "has problems," including
dependent and passive aggressive personality traits. (Id.)
Dr. Blair's report, included in the offer of proof, included the following results:
Intellectually, Mr. Duncan functions within the low-average range (Verbal IQ 80; Performance IQ 84; Full Scale
IQ 80). Scaled scores on the individual subtests of the WAIS-R have a mean of 10, with a standard deviation of
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3. Thus, scaled scores between 8 and 12 fall within the average range. [*45] Scaled scores achieved by Mr.
Duncan ranged from 6 to 9. His performance was flat with no significant strength or weaknesses demonstrated.
Academic achievement was consistent with measured intelligence. Standard scores ranged from 79-85. His
academic achievement was within the sixth to eighth grade range. Memory functions were similarly
commensurate with intellectual level, with no evidence of significant deficit.
Word knowledge was within normal limits. Tracking and sequencing skills were low average. Higher cognitive
functioning was not well developed. In part, this was consistent with intellectual/educational level. However,
motivation appeared to have some impact.
Mr. Duncan endorsed items on the BDI consistent with depression. This appeared mild and situational in
nature. Projective data and direct observation was not consistent with a significant depressive disorder. Mr.
Duncan has rigid views, and an immature cognitive style. He does not demonstrate well developed problem
solving strategies. However, a need to achieve was evident, and failure may lead to disappointment and
frustration. Emotional control appeared tenuous, and Mr. Duncan's avoidance of emotional situations may
reflect [*46] an awareness of this problem.
The MMPI-2 validity scales indicated symptom exaggeration. This was supported by significant elevations on a
number of clinical scales. The MCMI-II profile indicated endorsement of paradoxical symptoms in that Mr.
Duncan attempted to present himself in a good light, and as significantly troubled. Mr. Duncan has conflicts
between his need for dependence and his desire to withdraw. He is resentful of those who fail to support him
appropriately. His distrust of others is deep, and he responds to rejection and disillusionment in a moody and
passive aggressive fashion.
Diagnostic impressions are as follows:
Polysubstance abuse/dependence
Dysthymia
Personality Disorder with dependent and passive-aggressive traits.
(Doc. No. 40, Add. 26 vol. 2, Tr. Ex. 10, at 3-4.)
On cross-examination during the offer of proof, Dr. Blair acknowledged that "I'm not suggesting that this person is
mentally ill or is paranoid schizophrenic or anything that goes completely against the grain of his history." (Doc. No.
40, Add. 26 vol. 2, Tr. at 246:5-8.) She testified that Petitioner agreed for her to talk to his family after some initial
reluctance, but that because her findings were consistent [*47] with the social history that had already been
provided to her, she ultimately determined that it was not necessary for her to interview his family members. (Id., Tr.
at 246-47.) With regard to the reported head injury, she stated that "Even if David had sustained a serious head
injury as a young child, there is no residual damage from that. . . . No damage that I could tell. ... All I can tell you is
that there is nothing on psychological or neuropsych testing to suggest that he has any residual effects from a head
injury[.]" (Id., Tr. at 251:18-252:5.) She further acknowledged that Petitioner had no history of psychiatric or
psychological problems, no prior psychiatric evaluation or treatment, and was not mentally ill. (Id, Tr. at 252-53.)
At the conclusion of the offer of proof, the trial judge-noting that "The last position I will be in will be cross-examining
a witness, but I have to be fair and just"-engaged Dr. Blair in this exchange:
Q. He told you he was reared in abject poverty? He used those words?
A. Well, he didn't use those words. He did not say abject poverty. Those are my words.
Q. What did he say?
A. That's my description of it. He described a house that had no indoor plumbing. [*48] There [sic] were a fairly
large family. It was a three-roomed house. You know, to me that is abject poverty.
Q. It was below the poverty level at the time in the black community? Did he tell you that he lived in a higher
type black community than was generally prevalent in Gallatin?
A. I'm sorry.
Q. A higher type, that his family was well thought of in Gallatin, and he lived in part of the town that was
considered a higher standard of living than many of the places in Gallatin, if he did. All right if he didn't. I'm
trying to get in my mind what you're basing your testimony on.
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A. I'm basing-1 mean, he did not describe-We're talking about a man who has an eight-grade education and
I.Q.Q. Let me be specific: Did he tell you there were three banks in Gallatin at that time, regular banks, and that his
father was janitor for both those banks, and he worked not only during banking hours but after hours?
A. He told me his father was a janitor.
Q. Considered a trustworthy citizen of Gallatin as far as his employment in those banks was concerned?
A. Yes. Mr. Duncan, in talking about his parents-well, particular in talking about his mother was extremely
positive and was positive about his father. [*49] He said that his father always worked, that the father
supported the family. But his description of the way-of the way they lived to me signified poverty.
Q. That was your description rather than his?
A. Yes.
THE COURT: That would help me in determining your testimony. And he was correct about his mother being
considered one of the outstanding ladies of the community, and I wanted to know whether it was his words or
your conclusion.
(Doc. No. 40, Add. 26 vol. 2, Tr. at 255:16-257:8.)
In denying relief to Petitioner after the hearing, the trial court ruled as follows with respect to the claim about
ineffectiveness for failure to present mitigation evidence:
Much of the Petitioner's thrust concerns the lack of preparation or the fact that no testimony was presented on
behalf of the Petitioner at the sentencing phase of the trial. Upon hearing all of the background, the Court finds
no reason for requesting a psychological examination of the Petitioner and that there was no defense at the
sentencing hearing that had not been previously presented at the guilt phase. Contrary to the allegations,
testimony regarding the Petitioner's character was filled with pitfalls and could have been of little [*50] benefit
to the Petitioner and may well have resulted in exacerbating his plight. The nature of the crime committed was
especially heinous in that the victim was dragged to the back of the market, raped, and murdered by having her
throat cut with evidence of struggle and all the horrible aspects of fear, pain and death by the nature of the
wound which would accompany such a crime.
Considerable testimony was presented to the effect that the deprived background of the Petitioner should have
been presented to the Jury at the sentencing phase. Simply put, the Court finds that the facts do not support
the allegations of the Petitioner's childhood. He suffered no hunger, no deprivation of clothing or living
conditions and the only abuse was verbal when his father would occasionally be under the influence of alcohol.
While not an ideal family condition, the Petitioner's youth was ordinary and not unusual for the many persons in
that time and place. The Defendant's father was a well thought of black man who held janitorial positions in two
banks in Gallatin and was fully trusted by both institutions. The Petitioner's mother can be described as kind,
religious, wise, and well respected in her [*51] community. The Court finds that there was nothing in
Petitioner's background that would disclose him to have psychological defects that would have been
considered exculpatory by the Jury.
The questions regarding the correctness of the sentences rendered by the Jury have been decided previously
on appeals and the previous Post-Conviction Relief Petition. The Court finds that the testimony presented was
not credible enough to raise a serious challenge to the previous decisions by the various Courts nor to warrant
further proceedings. It was obvious to this Court that much of the testimony was calculated to be of what little
assistance it might be to the Petitioner. The Petitioner's trial attorney was aware of all of these facts and
weighed both the pro and con and there is no basis for second guessing his decisions at trial and no prejudice
to the Petitioner has been shown.
(Doc. No. 40, Add. 26 vol. 1, T.R. at 85-86.) The court ultimately concluded that "the facts developed in this Petition
simply do not support" Petitioner's position. (Id. at 86.)
Petitioner appealed from this decision, raising as one of his issues that "trial counsel's decision to offer no proof at
the penalty phase falls below the standard [*52] of competence expected of defense attorneys in capital cases."
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(Doc. No. 40, Add. 27, Brief at ii ¶ G.) He devoted more than ten pages of his initial brief to developing this
argument, in which he quoted some of the same testimony by Ligon set forth above, and argued that:
This testimony strongly suggests that trial counsel regarded the guilt phase as the whole ballgame, such that
no evidence presented in mitigation could have made any difference, in that a death sentence would naturally
follow a first degree murder conviction. There is no evidence that trial counsel developed any theory nor made
any factual investigation consistent with the proposition that, even if a conviction for first degree murder
occurred, Mr. Duncan was nevertheless someone for whom a life sentence was more appropriate than the
electric chair.
The Petitioner submits that trial counsel's testimony indicates a complete failure to understand the full range of
what constitutes capital mitigation evidence.
(Id., Brief at 51.)
In affirming the trial court on this issue, the Tennessee Court of Criminal Appeals simply recited the relevant portion
of the trial court's holding and ruled as follows:
The trial court's findings [*53] of fact at a post-conviction proceeding have the weight of a jury verdict and are
conclusive on appeal unless the evidence preponderates against the findings. Turner v. State, 698 S.W.2d 90,
91 (Term. Ct. Crim. App. 1985). The evidence does not preponderate against the trial judge's findings. This
issue has no merit.
Duncan v. State, Nos. 01C01-9311-CR-00412, 01C01-9510-CR-00347, 1997 Tenn. Crim. App. LEXIS 1147, 1997
WL 700043, at *7 (Tenn. Ct. Crim. App. Nov. 10, 1997).
c. Standard for Exhaustion
As set forth above, HN6[ ] a petitioner is not entitled to relief under 28 U.S.C. § 2254 unless he has first exhausted
his remedies in state court, which requires petitioners to "fairly present" federal claims to the state courts to provide
them with an opportunity to correct alleged violations of state prisoners' federal rights. Picard v. Connor, 404 U.S.
270, 275-76, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). A claim has been "fairly presented" if the petitioner identified
the specific constitutional guarantee allegedly violated, and presented a statement of the facts which entitle the
petitioner to relief. Gray v. Netherland, 518 U.S. 152, 162-63, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996). At least
prior to AEDPA's enactment, the introduction in federal habeas proceedings of additional facts in support of a claim
did not render the claim unexhausted under § 2254 as long as the new evidence "did not fundamentally alter the
legal claim already considered by the state courts." Vasquez v. Hillery, 474 U.S. 254, 260, 106 S. Ct. 617, 88 L. Ed.
2d 598 (1986); but see Cullen v. Pinholster, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011) (holding that review of state
court's merits [*54] determination under current § 2254 is typically restricted to the record before the state court).
The Court finds that Petitioner's claim that his trial counsel was ineffective for failing to investigate and present any
mitigating evidence in his defense at sentencing has been exhausted in state court. Respondent's position that any
additional facts offered in this Court beyond those presented in state court are "defaulted" (Doc. No. 248, at 16) has
been rejected by the United States Court of Appeals for the Sixth Circuit in Abdur'Rahman v. Bell, 226 F.3d 696,
705-06 (6th Cir. 2000). In Abdur'Rahman, which involved a pre-AEDPA analysis because the inmate had filed his
petition the day before AEDPA went into effect, the Sixth Circuit held that this Court had the inherent discretion to
order an evidentiary hearing regardless of whether a petitioner is entitled to a hearing under Keeney v. TamayoReyes, 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318 (1992), upon which Respondent relies6 Abdur'Rahman, 226
F.3d at 705-06; see also Harries v. Bell, 417 F.3d 631, 635 (6th Cir. 2005).
2. Presumption of Correctness
6 Respondent's
argument is further weakened by the fact that, as related above, it was the state's objection-affirmed by the trial
court-that prevented Petitioner from further developing the facts at his second post-conviction hearing.
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HN7[ ] Under the version of 28 U.S.C. § 2254(d) applicable to this pre-AEDPA case, [*55] the state court's factual
determinations after a hearing are presumed to be correct during habeas review unless it appears that any one of
the following eight criteria is satisfied:
HN8[ ] (1) That the merits of the factual dispute were not resolved in the State court hearing;
(2) That the factfinding procedure employed by the State court was not adequate to afford a full and fair
hearing;
(3) That the material facts were not adequately developed at the State court hearing;
(4) That the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State
court proceeding;
(5) That the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to
appoint counsel to represent him in the State court proceeding;
(6) That the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
(7) That the applicant was otherwise denied due process of law in the State court proceeding;
(8) Or unless that part of the record of the State court proceeding in which the determination of such factual
issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual
determination, [*56] is produced as provided for hereinafter, and the Federal court on a consideration of such
part of the record as a whole concludes that such factual determination is not fairly supported by the record ....
28 U.S.C. § 2254(d) (1966). HN9[ ] The statute goes on to provide that even in the absence of any of those eight
factors, a habeas petitioner might still prevail by establishing by "convincing evidence" at a federal evidentiary
hearing that the state court's factual determination was "erroneous." Id
Upon review of the state court proceedings summarized above, it is clear that facts material to Petitioner's claim
were not adequately developed at the first post-conviction hearing. Indeed, the state court's basis for denying relief
on the claim at that time was the lack of any facts in evidence about what mitigating information could have been
presented at trial.
Additionally, the record before the state court in the second post-conviction hearing did not fairly support the state
court's determination that there was nothing about Petitioner's background that would have constituted mitigating
evidence at sentencing. The state courts made multiple determinations that are flatly contradicted by the evidence
admitted [*57] at that hearing. The finding that "the only abuse was verbal when his father would occasionally be
under the influence of alcohol" ignores the undisputed facts that Petitioner's father physically abused his mother in
his presence, causing him to feel powerless and upset and to flee alone to a woodshed, and that his father's rages
frequently caused Petitioner-and at times his mother and siblings as well-to seek refuge in neighbors' homes. The
finding that "Petitioner's trial attorney was aware of all of these facts and weighed both the pro and con," is
disproved by Ligon's testimony to the effect that because he was generally acquainted with Petitioner's family he
did not feel the need to conduct any formal background investigation, and by the testimony of Petitioner's sister and
neighbors that Ligon never made any inquiry of them about Petitioner's background.
And finally, the record at the second post-conviction hearing does not objectively support the state court's finding
that "Petitioner's youth was ordinary and not unusual." Petitioner's childhood in the 1960s and 1970s was spent in a
small three-room house with no indoor plumbing, shared by a family of nine who at times had to [*58] borrow
money just to buy milk. According to Dr. Blair those conditions constitute "abject poverty," and the undisputed facts
in the record obviously substantiate that assessment. The Sixth Circuit has specifically noted the lack of running
water or indoor plumbing among the potentially mitigating facts in a capital case. See Carter v. Bell, 218 F.3d 581,
593 (6th Cir. 2000). According to data published by the United States Census Bureau, in 1969 only 15.9% of the
residents of Sumner County, Tennessee were below the poverty level, which was significantly below the Tennessee
state average of 21.8%. See https://www.census.gov/hhes/www/povertv/data/census/1960/.7 Against the backdrop
7 HN10[
] Federal courts may take judicial notice of published census data. Mitchell v. Rose, 570 F.2d 129, 132 n.2 (6th Cir.
1978), rev'd on other grounds, 443 U.S. 545, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979).
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of those facts, the state court's remark that "Petitioner's youth was ordinary and not unusual for the many persons
in that time and place f closely juxtaposed with its comment that his "father was a well thought of black man,"
suggests that the court was actually concluding-and perhaps accurately so-that Petitioner's impoverished childhood
conditions were not unusual for the black community in Gallatin in which he grew up. The standards for what
constitutes mitigating evidence, however, cannot vary with a defendant's race or immediate surroundings. The
effects of "abject poverty" are no less mitigating because [*59] they are shared by one's neighbors, and are no less
worthy of consideration by a jury when they affect a child of one race in a certain "time and place" rather than a
child of another race or another community. The state court's finding that Petitioner did not establish that he
suffered from a deprived background was simply incorrect.
Beyond the lack of support in the state record for the state court's conclusions, this Court finds that the facts
presented during its own evidentiary hearing, summarized below, amount to convincing evidence that the state
court's conclusion about the unavailability of significant mitigating evidence was erroneous. Accordingly, the Court
has properly dispensed with the presumption of correctness of the state court's determination of this claim.
3. Federal Evidentiary Hearing
The Court held its own evidentiary hearing in 2012, as authorized by both the then-applicable § 2254(d) and the
Court's pre-AEDPA inherent discretion to order an evidentiary hearing in a habeas corpus proceeding. See
Abdur'Rahman, 226 F.3d at 705-06; Harries, 417 F.3d at 635.
a. Dr. Dale Watson
Clinical psychologist Dale Watson was properly qualified to testify [*60] as an expert in the field of
neuropsychology. (Doc. No. 229, at 9-10.) Having only been licensed since 1990, Dr. Watson could not have
testified as an expert at Petitioner's 1983 trial. (Id. at 59-60.) Dr. Watson conducted a forensic evaluation of
Petitioner over the course of 15 hours in August 2009 that led him to conclude that Petitioner suffers from borderline
intellectual functioning, significant deficits in academic skills and significant brain dysfunction. (Id. at 11.)
Dr. Watson administered a battery of tests to Petitioner, all of which existed in some form at the time of his trial in
1983. (Doc. No. 229, at 12-13.) In comparison, he said that Dr. Blair did very limited neuropsychological testing in
preparation for the state post-conviction hearing, but that her results were consistent with his. (Id. at 60.) Dr.
Watson testified first about the Wechsler Adult Intelligence Scale 4, or WAIS-4, which he used to measure
Petitioner's intelligence. Specifically, the test measures intellectual functioning, including the ability to problemsolve, to think abstractly, to do things efficiently and to process visual-spatial information. Dr. Watson's test results
showed Petitioner had a full scale IQ of 78, placing [*61] him at around the seventh percentile of the population in a
borderline range a few points above intellectual disability (which he testified is 70 or 75 or lower) but below low
average. (Id. at 1415.) According to Dr. Watson, the population's IQ is distributed along a bell curve, with about
68% of the population having IQs within the 15 point standard deviation from the average of 100-so falling between
85 and 115. (Id. at 15-16.) Petitioner's component scores for crystallized intelligence, short-term memory and visual
processing were all within normal limits. (Id. at 16.) His one significant deficit on the WAIS-4 was in fluid reasoning
or "on-the-spot problem-solving," for which he scored in the third percentile with a 72. (Id. at 17.) Dr. Watson
testified that fluid reasoning is associated with executive functioning and is "one of the most important elements of
intellectual abilities because it is that kind of raw native ability to be able to problem-solve." (Id. at 17.) Dr. Watson
believed his test results to be reliable because of the innate reliability designed into the test, because in his
judgment Petitioner demonstrated good effort on the test, and because his IQ score was close to the 80 Petitioner
scored during [*62] his post-conviction proceedings and the 78 he scored as a child on a group IQ test. (Id. at 1718.)
Dr. Watson also administered the Wide Range Achievement Test, fourth edition, or WRAT, to measure Petitioner's
academic skills-specifically, his word-reading and math-computation abilities. (Doc. No. 229, at 18.) Petitioner's
scores were 78 and 83, respectively, which Dr. Watson testified were consistent with his overall IQ and meant that
Petitioner now performs essentially at the fifth to sixth grade level. (Id. at 19.) Dr. Watson testified that Petitioner's
history, including failing the second grade and being socially promoted after repeating it, dropping out of school in
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the seventh grade and consistently performing as low as the fourth grade level on previous academic skills testing,
indicates that his academic deficiencies are long-standing. (Id. at 19-20.)
Petitioner scored a 54 on the General Neuropsychological Deficit Scale ("GNDS") of the Halstead-Reitan Battery,
reflecting moderate brain impairment. (Doc. No. 229, at 20.) In tests designed to differentiate between deficits in the
left and right hemispheres of the brain, Petitioner's results showed "decided evidence of dysfunction" in both
hemispheres. [*63] (Id. at 21-22.)
According to Dr. Watson's testing, Petitioner's executive functioning, associated with the frontal lobe of the brain, is
"significantly impaired" as compared to other people of his age, race, gender and education level, with his score of
36 well below the average of 50 and the impairment level of 40. (Doc. No. 229, at 22-24.) Dr. Watson testified that
executive functioning is "probably the most important element of this." (Id. at 23.) He described executive
functioning like this:
And these are abilities related to judgment and problem-solving and planning and the ability to stop oneself and
to start, initiate behaviors and then also to shift back and forth, to understand that something is not working
now, I should try something else. You know, it's the kind of ability to problem-solve at the most basic level.
(Id. at 24.) Dr. Watson took several different measures of Petitioner's executive functioning. On the Wisconsin Card
Sorting Test, Petitioner's score of 5 is substantially below the average of 10, and fell at about the fifth percentile
even in comparison to others with very limited education. (Id at 24-25.) On other tests requiring mental flexibility,
including the Trail Making B test and components [*64] of the Delis-Kaplan Executive Function System test,
Petitioner's results reflected "significant impairment" and provided "pretty solid evidence of frontal lobe dysfunction."
(Id. at 25-27.)
Asked to describe his conclusions about Petitioner's executive function, Dr. Watson testified as follows:
Well, he is decidedly impaired in terms of executive functioning. I think it's a major area of difficulty for him. It's
going to mean he is going to have difficulty being mentally flexible. He is going to get stuck in mental ruts. He
may be perseverative, which means to persevere too long, again get stuck in these mental ruts and not be able
to work his way through novel situations.
***
. . . [P]eople with these kinds of problems tend to be impulsive. So they don't inhibit themselves very well. They
go with-sometimes they become bound to the environment so the stimulus in the environment controls their
behavior more than they control their behavior.
(Doc. No. 229, at 32-33.)
Other testing revealed a "very significant attentional disorder," but not ADHD, and a low average memory consistent
with his intellectual functioning. (Id. at 35-36.) Petitioner's auditory processing test results indicated a definite
impairment in his [*65] temporal lobe functioning. (Id. at 36-37.)
Dr. Watson's overall conclusion about Petitioner's mental functioning was as follows:
Yeah. He is functioning intellectually within this borderline range. He is limited intellectually. He particularly
struggles with on-the-spot problem-solving. So in novel situations where he has never really seen it before, he
has difficulty. He can't process information very quickly. And he will get confused in complex tasks.
He's also got academic deficiencies. Both these academic deficiencies and the borderline intellectual
functioning are longstanding. You know, he has been this way since early childhood at least, because
otherwise we would see his academic skills at a normal level, and we don't see that.
So developmentally something went wrong very early. And these are real limitations. People with borderline
intellectual functioning struggle. They struggle in school. They struggle in the job. They can't compete at the
same level that other people can compete at. So it's a real limitation.
And then in addition to that, he has solid indications of brain dysfunction, primarily involving executive
difficulties. So he has problems with problem-solving. He tends to be impulsive. [*66] He tends to get stuck in
mental ruts, so he is not mentally flexible. So he has difficulty accepting feedback from the environment and
using that to alter his behavior. So again he kind of gets in these mental ruts.
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(Doc. No. 229, at 40-42.) Dr. Watson reiterated that he believed his test results to be highly accurate because
Petitioner gave good effort generally, as measured "in a number of ways," and because his results were consistent
with Petitioner's history and previous results. (Id. at 42.) He also stated that Petitioner's functioning during their
personal interactions were consistent with his test results. (Id. at 63;)
On cross-examination, Dr. Watson acknowledged that he had not seen Petitioner's post-conviction testimony or his
pro se briefs or letters to counsel, and was not aware that Petitioner had testified that he had no mental health
issues. (Doc. No. 229, at 45-47.) Dr. Watson also acknowledged that his report did not include any formal
diagnoses from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM-IV"), and that
borderline intellectual function and academic deficiencies are not themselves DSM-IV diagnoses, although there
are several possible diagnoses [*67] related to those conditions. (Id. at 49.) For example, he testified that "cognitive
disorder not otherwise specified" would be an appropriate diagnosis for Petitioner. (Id. at 59.) He did not, however,
diagnose Petitioner as intellectually disabled or with ADHD. (Id. at 58-59.)
Dr. Watson testified that the margin of error on the 78 IQ score he gave Petitioner allowed for a score anywhere
from 74 to 83, and that the borderline range extends up to 84 under the DSM-IV. (Id. at 50-51.) He acknowledged
some dispute about whether Petitioner left school in the seventh grade or ninth grade (the latter indications based
on secondary reports), and that Petitioner had obtained his G.E.D., although it took him eight years to do so. (Id. at
51-52.) Petitioner's crystallized IQ score, measuring his academic skills, of 87 was within the standard deviation of
the 100 average, but Dr. Watson's opinion was that "it does show that he can take some information in, but his
ability to use it is not particularly good." (Id. at 54-55.)
Dr. Watson continued to maintain, based on Petitioner's academic history, that his deficiencies were long-term,
although he could not specify whether they dated from birth or from the head injury he suffered around the age of
three [*68] or four. (Doc. No. 229, at 52-53.) Challenged on whether Petitioner's brain function would be expected
to be significantly worse in one area of the brain than others if he had suffered a traumatic brain injury, Dr. Watson
said that it depends on the nature of the trauma and whether the brain bounces inside the skull causing a
contrecoup injury, and also that "I think there is a baseline deficiency that might have an overlay of a trauma brain
injury on top of it." (Id. at 53-54.) He also testified that because the brain works as a whole, in cases of early head
injury, "all of the development that proceeds after that is on a different course. It veers off the normal developmental
course and into an area of impairment." (Id. at 62.) He did acknowledge that on a chart of nine different areas of
potential impairment, Petitioner is only impaired in two, and that Petitioner's performance on the Iowa Gambling
Test of his executive functioning was below average but did not strictly indicate impairment. (Doc. No. 229, at 5657.) He later clarified that an assessment of deficient executive functioning does not require that a subject score
below the norm on every test administered, and that certain test results [*69] might show Petitioner is relatively
normal in some parts of his brain, like the orbitofrontal cortex tested by the Iowa Gambling Test, but damaged in
other areas. (Id. at 61-62.)
Finally, Dr. Watson acknowledged that he believed that Petitioner did not give his best effort on one particular test,
but improved his result on re-taking the test. (Id. at 57-58.)
b. Dr. Ruben Gur
Petitioner also presented the testimony of Dr. Ruben Gur, a highly qualified neuropsychologist specializing in the
link between brain function and behavior, who was admitted as an expert in the field of neuropsychology. (Doc. No.
229, at 63-68.) Dr. Gur testified that he analyzed the data from tests Dr. Watson administered to Petitioner, which
he described as a "comprehensive standard battery of well-established tests." (Id. at 70-71.) Dr. Gur testified that
his analysis uses a behavioral imaging algorithm developed with funding from the National Institutes of Mental
Health, which increased the consistency and reliability of expert assessments that were previously more variable
and dependent on a particular neuropsychologist's training and level of expertise. From a subject's psychological
test scores, the algorithm generates "an image of the [*70] brain that reflects the likelihood of damage in different
areas." (Id. at 72-74.) The behavioral image generated by the algorithm is to be used as a guide to assist a clinical
neuropsychologist in reaching conclusions based on his or her clinical judgment. (Id. at 77.) Although the algorithm
was not in use at the time of Petitioner's trial, Dr. Gur testified that a competent neuropsychologist should have
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drawn the same conclusion from the data even without the algorithm, and that his expert opinion was the same with
or without the algorithm. (Id. at 75, 77.) Specifically, he said he could have testified about the same conclusion in
1982 that that he gave in 2012. (Id. at 77-78, 94.)
Dr. Gur testified that his overall opinion regarding Petitioner is as follows:
My opinion is that Mr. Duncan suffers from brain damage. The brain damage seems to have multiple foci or
areas of concentration. It looks like most of the damage is in the frontal lobe, but there also seems to be
damage in the posterior, the back of the brain on the left side.
So this is a pattern that is observed in individuals who suffered from head injuries or some other possibly
developmental problems, but it looks like there is an element of both.
(Doc. No. 229, at 71-72.) [*71] Dr. Gur went on to testify in more detail about the apparent locations and effects of
Petitioner's brain damage, which he characterized as "significant" and "in some areas beyond moderate." (Id. at
85.) Specifically, he testified that in his opinion Petitioner suffers from: left posterior brain damage, which causes
deficits in language comprehension; right parietal area damage, which causes deficits in coherent integration of
visual/auditory information; dorsolateral prefontal cortex damage, which causes deficits in a subject's "working
memory"; right orbitofrontal damage, which impacts the ability to assess danger and determine an appropriate
course of action; other frontal lobe damage that causes deficits in the ability to take society's moral codes into
consideration and to apply the "brakes" to or reconsider his behavior. (Id. at 85-89.)
Asked to give an opinion about whether or how a head injury may have contributed to Petitioner's dysfunction, Dr.
Gur testified that the pattern of Petitioner's brain damage — with damage appearing in the left rear and right front of
the brain, with damage in the middle likely caused by torque as the brain twisted — is often seen in individuals with
head injuries, [*72] especially injuries to the back of the head. (Doc. No. 229, at 89—91.) He explained, however,
that Petitioner may have had some underlying cognitive deficits, and that it is difficult to differentiate between
underlying deficits and damage from injury in the same way that it is difficult to determine the cause of damage to "a
poorly-constructed house that was hit by a storm." (Id. at 91-92.)
On cross-examination, Dr. Gur acknowledged that he had not met Petitioner prior to the hearing, and that his
opinion was based solely on the test data provided by Dr. Watson. (Doc. No. 229, at 97—98.) He testified that the
data he relied on was corrected for Petitioner's age, although he did not explicitly state that in his report. (Id. at 99.)
He acknowledged that aging affects brain function, with some degree of intellectual deterioration beginning in men
around age 45, so that it was possible that aging had had some impact on Petitioner's brain function between the
time he committed the crime in his late teens and the time of Dr. Watson's testing in his late 40s. (Id. at 99—102.)
Dr. Gur was adamant, however, that the damage revealed by Petitioner's tests could not be the result of aging:
"What you see in terms of intellectual [*73] deterioration after 45 is miniscule compared to what we see here. . . .
[T]his is a different league of deficits. . . . [T]he kind of deficit that you see in those tests where Mr. Duncan has a
deficit is nothing that you can attribute to aging. It's much more than the subtle aging effects you would see. . . .
[T]his is a whole standard deviation of a difference, and it's over and beyond what you get with normal aging which
is — which is very little." (Id. at 101-03.)
c. Dr. George Woods
Petitioner next presented the testimony of neuropsychiatrist Dr. George Woods. Among other credentials, Dr.
Woods teaches Clinical Aspects of Forensic Psychiatry at Morehouse School of Medicine and is the Secretary
General of the International Academy of Law and Mental Health. (Doc. No. 229, at 106—07.) He was admitted as
an expert in the field of forensic neuropsychiatry. (Id. at 109.)
Dr. Woods personally evaluated Petitioner over three dates in 2009. (Doc. No. 229, at 109.) He met with Petitioner
alone and formed his initial opinion of Petitioner's condition through a mental-status examination during which he
observed Petitioner's gait, orientation, speech, mood, insight and judgment. (Id. at 125—27.) Dr. Woods testified to
the following "overview" [*74] of his diagnosis:
The overview, in terms of what I saw with Mr. Duncan, shows that Mr. Duncan has had lifelong cognitive
impairments as a function of early brain impairment as well as early brain injuries. These lifelong cognitive
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impairments have limited Mr. Duncan's ability to effectively manage his life. It impaired his academic
functioning. It limited his ability to obtain meaningful professional status. And, as I have noted, it precludes his
participation in meaningful and productive personal relationships.
(Doc. No. 229, at 109—10.)
Dr. Woods's primary Axis I diagnosis of Petitioner is "cognitive disorder not otherwise specified,"8 which he testified
reflects impaired brain function and is one of the few neurological diagnoses in the DSM. (Id. at 110.) Asked to
describe the disorder, Dr. Woods testified as follows about its impact on Petitioner:
Mr. Duncan's brain does not work well. He has problems in terms of being able to effectively weigh and
deliberate. He has problems in terms of being able to sequence his behavior. He has problems in being able to
— in getting stuck. So his brain does not work as effectively as someone that would not have the kinds of brain
injuries that he has had [*75] or brain impairments.
(Id. at 112.) Dr. Woods testified that there were several indicators that the impairment was caused by a brain injury.
(Id.) He recounted Dr. Malone's testimony about seeing Petitioner fall down his concrete back steps at around age
3, and believing for a time that he was dead because he did not breathe,9 and the fact that Petitioner was not taken
to the hospital after the fall. (Id. at 113.) Dr. Woods testified that the fall described by Dr. Malone "is consistent with
the circumstances that would cause a contrecoup lesion . . . where the brain moves back and forth in the skull" and
hits the skull both in the front and in the back. (Id. at 124.) He said that Petitioner's brain impairment is consistent
with childhood injury but could also be consistent with prenatal injury or impairment. (Id. at 123.)
Dr. Woods testified that several important problems had been caused by that impairment, including poor academic
functioning. Even with the relatively distraction-free ability to focus [*76] on academics in prison, Petitioner has only
improved to the level of the fifth or sixth grade, which Dr. Woods says is "well within the academic prowess of
someone that is mildly mentally retarded." (Doc. No. 229, at 114.) Another problem is frontal lobe dysfunction,
which impairs the ability to deliberate and to change course when "we are going down a path that doesn't seem to
be the right way." (Id.) It also impairs social functioning and decision-making. (Id.) In addition to the frontal lobe
dysfunction, Dr. Woods testified that Petitioner has temporal lobe impairments and "global cognitive deficits." (Id. at
127—28.)
On Axis II, Dr. Woods diagnosed Petitioner with dysexecutive functioning, which is a neurological syndrome that
encompasses the effects of the described frontal lobe impairment. (Doc. No. 229, at 110, 115.) He elaborated on its
significance:
And what that really means is those parts of the brain that really allow you to register memory, recall, to
effectively weigh issues and deliberate, to what we call perseverate, to shift from one mental state to another,
to limit — to accurately gauge what is going on in social situations, these are impaired. It's not as though you
can't do [*77] those things at all. But they are often not as effectively accomplished, particularly in stressful,
new and novel situations.
(Id. at 115-16.)
Dr. Woods also determined that Petitioner's amblyopia (commonly known as "lazy eye") and stutter were
neurological in nature. (Doc. No. 229, at 116-17.)
Dr. Woods testified that the neuropsychological testing as administered by Dr. Watson is "the gold standard of brain
function" and is much more effective than simple clinical examination. (Doc. No. 229, at 118.) Based on Dr.
Watson's "comprehensive battery," Woods was able "to dismiss any question of effort or malingering" in this case
8 Dr.
Woods also reached an Axis I diagnosis of severe substance abuse with institutional remission. (Id. at 111.)
9 Dr.
Woods suggested this was an incidence of a neurological syndrome in children called breath-holding syndrome. (Id. at
113.)
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and to determine from Petitioner's general abilities index ("GAI") that his impairments have been longstanding in his
life rather than recent developments. (Id. at 118-19.) Dr. Woods said that Dr. Watson's test results corroborated and
"certainly verified" his own clinical observations, and explained how several of the tests illuminated Petitioner's
impairments, particularly in terms of executive function. (Id. at 119-23, 126.)
Dr. Woods provided the following opinion about how Petitioner's documented impairments affect his functioning:
You really see difficulty in weighing and deliberating, taking into [*78] consideration multiple factors, holding
onto those factors and utilizing them in effective ways.
You also see difficulty understanding social context because you can't pull in all of the issues that may be
going on. Impulsivity in stressful situation. When things become stressful, you're not really able to pull
everything together. You're not able to slow down. You're not able to take everything into consideration. And
really perseveration when faced with stressful choices. As I look at this, it's interesting because you would think
that impulsivity and perseveration are the opposite of each other, but they are not. When someone is impulsive,
they act often without thinking and their actions, however, may be repetitive. They get stuck in a pattern.
And, clearly, Mr. Duncan because his brain injuries have been ongoing all of his life was experiencing these at
the time of the offense.
***
These are not deficits that wax and wane. These are not deficits like perhaps depression or anxiety that can
come and go. These cognitive deficits are there, and they don't change. They get worse under stress. They get
worse in novel situations. And we see evidence of them certainly in his academic functioning. [*79] We see
evidence of them in the types of jobs he was involved in. We see evidence of them in the Job Corps records
where his academic functioning was still significantly impaired. And we see them in Dr. Watson's testing
recently. These are constant.
And so if they are constant, they certainly were there at the time of the offense as they have been throughout
his life. And they isolated him early in his life. They showed him to have poor adaptive skills and really
subjected him to academic failure.
(Doc. No. 229, at 124-25, 129.)
On cross-examination, Dr. Woods acknowledged that he had been publicly reprimanded in California in 1994 for
failing to write down a secondary diagnosis of alcoholism on a patient discharge summary. (Doc. No. 229, at 13233.) He also acknowledged that other than his mental-status examination, he did not personally administer any
tests to Petitioner but relied on Dr. Watson's testing. (Id. at 133.) He stated that all the materials he reviewed about
Petitioner were provided to him by Petitioner's counsel and that, although he had not read Petitioner's postconviction testimony, the fact that Petitioner had denied having any mental health problems did not impact Dr.
Woods's [*80] testimony. (Id. at 135.)
Dr. Woods agreed that he had not diagnosed Petitioner with intellectual disability or ADHD. He stated that Petitioner
does have a "borderline IQ," although that is not a formal diagnosis. (Doc. No. 229, at 140—41.) He disagreed that
"cognitive disorder not otherwise specified" was a "catch-all category," and explained that it is a specific diagnosis
for cognitive disorders not caused by a general medical condition, such as fetal alcohol spectrum disorder. (Id. at
141—42.) He testified to the effect that he was not positive whether the diagnosis "cognitive disorder not otherwise
specified" existed at the time of Petitioner's trial, but that even at that time there would definitely have been a
diagnosis that would have covered Petitioner's problems, such as "minimal brain damage" or "organic brain
syndrome."
Asked to admit that Petitioner's constructional dyspraxia — the inability to conceptualize and accurately re-create
shapes in drawing — "really doesn't have much to do with his culpability for committing a crime as far as his ability
to control his impulses," Dr. Woods disagreed:
That is a — yes, it does. And the ways in which it does is the drawing of the cross and the drawing [*81] of the
key really are motor manifestations of the ability to conceptualize. There are other tests that really have to do
with drawing. But the visual-spatial conceptualization is not far off from the emotional conceptualization. And
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both of them are in the right parietal lobe. And so consequently, the ability to conceptualize is roughly captured
in a motorway in the constructional dyspraxia. But it's in the same area that we would use to conceptualize
almost any type of action.
***
His ability to premeditate effectively would be impaired by his ability to conceptualize, because you have to
conceptualize in order to premeditate effectively. So it wouldn't be impacted by his construction, but what the
construction reflects is his ability to conceptualize, it would be impaired by.
(Doc. No. 229, at 143-54.)
Finally, Dr. Woods acknowledged that although he had finished his residency at the time of Petitioner's trial, he was
not board certified in psychiatry until 1992, so there was some question about whether he could have testified as an
expert in 1983. (Doc. No. 229, at 148.)
d. Counsel William Ligon
Petitioner's trial counsel, William Ligon, testified for the third time. In addition to [*82] Petitioner's murder trial being
his first murder case and first jury trial, he testified that he had never received any specialized training for defending
a murder case or death penalty case before the trial in issue. (Doc. No. 229, at 150—51.) He had not received any
training regarding the investigation or presentation of mitigating evidence in a capital case. (Id. at 151.)
In preparation for Petitioner's sentencing hearing, Ligon testified that he did not have Petitioner evaluated by a
psychiatrist or psychologist; have any psychological or IQ tests administered to Petitioner; investigate any head
injuries Petitioner may have suffered; or investigate any physical or psychological trauma Petitioner may have
experienced in his youth. (Doc. No. 229, at 153.) He testified that he may have seen Petitioner's Job Corps records
just from knowing and having access to Petitioner's family, but that he never requested Job Corps records,
Petitioner's birth records, school records or medical records during his investigation. (Id. at 154—55.)
Ligon testified that his license to practice law had been suspended three times and that at the time of his 2012
testimony it had been suspended since May 2006. (Doc. No. 229, [*83] at 165—66.) His explanation for his
suspensions was not particularly lucid, but it appeared to involve at least one finding of contempt and failure "to
follow through on what I was supposed to follow through." (Id. at 166.) He suggested that it was his habit simply to
abandon his practice upon receipt of a complaint from the Board of Professional Responsibility:
If you run a solo practice by yourself, you will not survive an inquisition on the Board of Professional
Responsibility and do your clients any good. You get a complaint, and it comes to the point you are going to
have to stop doing what you are doing and defend yourself, it's best to shut the doors. I have done that on
three occasions.
(Id. at 166.) Specifically, he indicated that other complaints led to his abandoning Petitioner's appeal:
Q. I know after the trial in this matter, there were some problems with the filing of the appellate brief in this
case. As I understand the record, you were to file the appellate brief for Mr. Duncan, but you actually didn't do
that; is that correct?
A. Yes, sir.
Q. Can you explain the circumstances behind that?
A. I was hit with five complaints when I moved my practice from Gallatin to Nashville in early '84. [*84] I was hit
with five complaints through my former partners. As I stated previously, self-preservation, f am trying to stay in
business and trying to make sure I don't run into 50 complaints. I just was not able to do it. So they appointed
someone else to handle this appeal.
Q. So even though you were — you were under an obligation to file the appeal, you ultimately didn't and
someone else had to file the appeal for Mr. Duncan?
A. Yes, exactly.
(Id. at 167.)
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On cross-examination, Ligon testified that he knew Petitioner's family and attended school with one of his brothers,
but did not personally know Petitioner because of their nine or ten year age difference, and described his
background investigation:
So I had to get some kind of background on him. In doing so, I had an opportunity to talk to several people who
went to school with him, family, to try to get some kind of handle on whether or not he was the type of person
who could get involved in something like this.
(Doc. No. 229, at 168-69.) He stated that none of Petitioner's friends or family told him that Petitioner had suffered
any brain injury or that he might have any issues with his mental health or capacity: "No one mentioned - no one
broached [*85] that subject with me at all." (Id. at 178, 180.) The exchange concerning his decision not to seek a
mental health evaluation was as follows:
Q. You were asked about whether you had ever requested a psychological or mental health exam of the
Defendant. Isn't it true that you didn't think that was something that was needed in this case, and that is why
you didn't request that?
A. It was not something I requested. We are talking about 1981 and 1982, and I will be very, very bold about it.
Nobody thought anybody Black was psychologically stable at all, including myself back in 1981 and 1982. We
were all considered to be a little crazy or a little off or a little this, a little that, and it's a totally different time than
it is now.
Your conduct — if it did not conform to the conduct of everyone else in the county, so to speak, you would be
considered to be just a tad deviant. That included me. No, I did not think about this in any particular type of
psychological circumstances. When I understood what we were doing and we were going to have to deal with
two murder trials, I didn't really inquire a whole heck of a lot into it.
***
Well, the legal aspects, we were looking at the chair, and that is pretty much [*86] the long and the short of it.
Our main concern — my main concern was to try to make sure we put enough doubt in the Jurors' minds that
they would not vote for the death penalty. And that is what we were trying to concentrate on most of the time.
Nothing psychological. David was 19 years old. He had a pretty normal lifestyle, a pretty normal life for most
19-year-old African-American males in Sumner County at that particular time. Nothing — in fact, nothing stood
out to me to think that he needs any type of psychological examination or something to that effect. But I am no
psychologist. That's just a judgment call that I made at the time.
(Doc. No. 229, at 178—79.)
On re-direct, Ligon elaborated on his perspective about Petitioner's sentencing hearing:
I was mostly trying to focus on — basically, what David and I discussed, I told him when I came back across
and we were found guilty, I said, "I think they are going to give you — I think they're going to electrocute you. I
think you are going to get the chair." I told him this earlier because once — based on the little evidence we had
in the six or seven days we were in the trial, pretty much these people were going to be predisposed to [*87] —
if they convicted him — if they were bold enough to convict him based on that evidence, I think they were going
to be bold enough to execute him. So I told him this. When we went back to trial, my main concern was to seek
some kind of leniency from the Jury and see if we could get somebody to go back in there and try to see if we
can save his life. And that was my particular focus at that time.
(Doc. No. 229, at 192-93.) He also acknowledged that he had never inquired about Petitioner's background
concerning his education, IQ or head injury:
Q. You had not independently investigated, so you did not know that David Duncan failed second grade twice?
A. I graduated with his brother, and he probably failed second grade twice.
Q. But you never reviewed David Duncan's school records to know what his academic record was?
A. No. But that wasn't unusual in Gallatin, Tennessee for African-American males.
Q. But you still did not know that information?
A. No, sir.
Q. That is my question. And you did not know he received test scores of IQ tests in the 70s — were you aware
of that?
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A. No, sir.
Q. And you didn't know that he had had a head injury as a child either, did you?
A. No, sir.
Q. You had not independently [*88] investigated or asked any questions about that of any witness?
A. No, sir.
(Doc. No. 229, at 194-95.)
e. Petitioner's Sister Alice
Petitioner's sister Alice testified about the family conditions during Petitioner's childhood. Her description of the
family home was consistent with the testimony above. The family's only source of water was a hydrant outside the
house, and Petitioner shared the home's only bedroom with his parents and two other siblings. (Doc. No. 229, at
206—07.) She described their father as "a menace to society" and "a crazy drunk," who would drink every weekend
to the point of drunkenness and kept a pot by his bed for vomit. (Id. at 208—211.) When he was drunk, Petitioner's
father would "want to jump on [his mother] for no reason," including a time he grabbed her neck and shoved her into
a door. (Id. at 211—12.) Other than that one physical attack, though, Alice testified that their father's abuse was
verbal and happened once or twice per weekend. (Id. at 214—15.) He would call Alice and their mother names and
curse at them and "rant and rave." (Id. at 214—15.) Alice testified that she was too preoccupied with trying to
defend her mother to notice whether her siblings were aware of their father's abusive behavior, [*89] but the house
was so small that anyone in the house at the time would have heard it. (Id. at 216.)
Alice testified that she did not have any contact with Petitioner's attorney William Ligon before his trial, but that she
would "of course" have talked to him if he had contacted her. (Id. at 219.)
f. Petitioner's Former Sister-in-Law
Petitioner's former sister-in-law testified that she became part of the Duncan family at age 16 when she married
Petitioner's brother, and that she knew Petitioner's father to drink a lot. (Doc. No. 229, at 223—24.) She said that
sometimes when he drank he would be in a bad mood, and "[i]t was terrible," with Petitioner's father "cursing and
calling people names and saying ugly stuff' to people. (Id. at 225.) She confirmed that "[i]t happened a lot," including
when Petitioner was present, and that the father's ugly language would be directed toward whoever was there. (Id.
at 226.) His verbal attacks were frequently directed at Petitioner's mother, whom he would call "bitch" and "whore"
and accuse of infidelity. (Id. at 227.) He once appeared nude in front of the family in the living area of the house
after drinking heavily. (Id. at 229.) The sister-in-law testified, however, that she never saw Petitioner's father [*90]
be physically abusive with anyone, and that the family always had plenty of food, clean clothes and a clean home.
(Id. at 228, 232.) She was not present when Petitioner fell off the porch as a child, but she had heard family
members discuss it. (Id. at 232—33.) At the time of Petitioner's trial, she was living in Fort Campbell. She was not
contacted by Petitioner's attorney but would have come to the trial if asked. (Id. at 233.) She was also not contacted
by Petitioner's counsel during his state post-conviction proceedings, and would have attended then as well if
requested. (Id. at 234.)
4. Analysis and Conclusion
a. Cronic or Strickland
HN11[ ] The Supreme Court has identified three circumstances under which a petitioner might prove a per se
violation of the right to effective assistance of counsel: (1) complete denial of counsel at a critical stage of the case;
(2) where "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing"; and (3) where
circumstances are such that competent counsel "very likely could not" render assistance. Bell v. Cone, 535 U.S.
685, 695—96, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (citing United States v. Cronic, 466 U.S. 648, 659—62,
104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)). Under any of those circumstances, prejudice is presumed and a
petitioner is relieved of the burden to demonstrate any impact arising from the lack of effective [*91] assistance of
counsel. Cone, 535 U.S. at 695—96. All other claims of ineffective assistance of counsel are subject to the highly
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deferential two-prong standard of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Cone, 535 U.S. at 696—98.
In Bell v. Cone, the Supreme Court held that Strickland provided the proper standard for review of the performance
of counsel who offered no evidence and delivered a single argument, waiving final argument, at a capital
sentencing hearing. Cone, 535 U.S. at 696—97. It insisted that in order for the less demanding standard of Cronic
to apply, "the attorney's failure must be complete," and found that not to be the case where counsel had been able
to introduce a great deal of mitigating mental health and addiction evidence during the guilt phase, had highlighted
that evidence in his argument at sentencing, and had established in cross-examination of one of the state's
sentencing hearing witnesses that the defendant had been awarded the Bronze Star for military service in Viet
Nam. Cone, 535 U.S. at 691, 696—98.
In this case, by comparison, none of the mitigating evidence detailed above was presented to the jury in either
phase of Petitioner's trial. Counsel's single argument, recited verbatim above, was incoherent and did not draw
attention to anything particular to the Petitioner or his [*92] life that would make him appear worthy of a life
sentence. Instead, counsel vaguely alluded to some message of forgiveness conveyed to him in conversation with
a man (apparently the victim's son) he met mere hours before the argument. His argument evidences a total lack of
preparation or focus on the critical task of convincing a jury to spare his client's life.
The conclusion that counsel had failed to prepare for Petitioner's sentencing hearing is in keeping with his
testimony — during three separate hearings — to the effect that he viewed the matter of sentencing as hopeless.
All indications are that once the Petitioner was convicted, counsel simply gave up. He remained physically present
and even delivered a brief, hollow argument, but he effectively abdicated his role as a zealous advocate for a client
he considered doomed. "HN12[ ] [J]ustice requires that counsel must do more than appear in court or argue to the
jury." Carter v. Bell, 218 F.3d 581, 596 (6th Cir. 2000) (ordering conditional writ of habeas corpus based on
ineffective assistance at sentencing where counsel failed to investigate and present mitigating evidence including
low IQ and underprivileged childhood). If this is not the "complete" failure required by Cronic and Cone, it
comes [*93] as close to the line as any case could without crossing over it. Nevertheless, because Cone suggests
that any effort by counsel at sentencing separates counsel's performance from the Cronic standard by kind rather
than degree, the Court will proceed with a Strickland analysis of Petitioner's claim,
b. Counsel's Performance Under Strickland
HN13[ ] While strategic choices made after thorough investigation are generally considered within the range of
competent assistance, "counsel has a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary." Id. at 691; see also Martin v. Rose, 717 F.2d 295 (6th Cir. 1983)
(counsel ineffective where he failed to interview alibi witnesses and was unaware of investigative file prepared by
public defender); United States v. Goodwin, 531 F.2d 347 (6th Cir. 1976) (counsel ineffective where he
misunderstood elements of the offense and examined client at preliminary hearing in such a manner that client
inadvertently confessed).
The Court has no difficulty concluding that Petitioner's trial counsel was deficient at sentencing under this standard.
"It is clearly established that HN14[ ] an attorney's failure to reasonably investigate the defendant's background
and present mitigating evidence at sentencing can constitute [*94] ineffective assistance of counsel." Fitzpatrick v.
Robinson, 723 F.3d 624, 637 (6th Cir. 2013) (citing Wiggins v. Smith, 539 U.S. 510, 521-22, 123 S. Ct. 2527, 156 L.
Ed. 2d 471 (2003)); see also Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997) (noting that the Constitution "requires
defense counsel to reasonably investigate a defendant's background and present it to the jury" at sentencing, and
finding counsel ineffective at sentencing). As the Sixth Circuit has repeatedly instructed, "[t]he 'prospect of being put
to death unless counsel obtains and presents something in mitigation' magnifies counsel's responsibility to
investigate." Harries v. Bell, 417 F.3d 631, 637 (6th Cir. 2005) (quoting Mapes v. Coyle, 171 F.3d 408, 426 (6th Cir.
1999)).
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In this case, counsel unreasonably failed to conduct any real investigation into the available mitigation evidence. He
was irresponsibly content to rely on his general familiarity with Petitioner's family, acquired primarily by attending
school with Petitioner's older brother. His only background investigation was to speak to a few unspecified family
members and other people for the purpose of determining whether they thought Petitioner's character was such
that he would have committed the crime, which is a wholly different inquiry than one aimed at uncovering mitigating
evidence. Counsel testified that nobody volunteered to him any facts suggesting that Petitioner had any
impairments, but he acknowledges that he failed to ask anyone [*95] about Petitioner's background in terms of his
intelligence, academic history, mental health or childhood head injury, and failed to seek or review any records
related to those topics. He did not even interview Petitioner's entire immediate family, much less his childhood
neighbors or in-laws.
In the 1981 Tennessee capital murder trial that gave rise to Harries v. Bell, 417 F.3d 631 (2005), defense counsel's
mitigation investigation included interviews with two of his client's family members and three other witnesses,
seeking institutional records and requesting two competency evaluations. Id. at 638. The Sixth Circuit held that
under the "prevailing professional norms," the court "cannot escape the conclusion that Harries's counsel failed to
conduct a constitutionally adequate investigation." Id. (thorough investigation would have discovered childhood
abuse, mental illness and brain impairment). Similarly, even where defense counsel conducted a mitigation
investigation that led him to present the testimony of the defendant and of a prison teacher for whom the defendant
worked as an aide, the Sixth Circuit has held that failure to interview the defendant's step-siblings constituted
deficient performance. Cauthern v. Colson, 736 F.3d 465, 470, 484-86 (6th Cir. 2013) (at least one stepsibling [*96] would have been willing to testily to childhood abuse).
Particularly in light of the obvious red flags readily available to Petitioner's counsel, including Petitioner's dropping
out of school at a young age and his father's reputation for drinking, counsel's almost non-existent mitigation
investigation was unreasonable. See Wiggins, 539 U.S. at 525 (known facts including parent's chronic alcoholism
and defendant's childhood absences from school would have led "any reasonably competent attorney" to pursue
additional investigation); Jalowiec v. Bradshaw, 657 F.3d 293, 319 (6th Cir. 2011) (noting that where known facts
would lead a reasonable attorney to investigate further, counsel may not rely solely on information provided by
defendant and his family in determining the proper extent of mitigation investigation). "The sole source of mitigating
factors cannot properly be that information which [a] defendant may volunteer; counsel must make some effort at
independent investigation in order to make a reasoned, informed decision as to their utility." Mason v. Mitchell, 320
F.3d 604, 620 (6th Cir. 2003) (quoting Carter v. Bell, 218 F.3d 581, 596 (6th Cir. 2000)).
Counsel's failures in this case were not the result of competently informed strategy, but were instead consistent with
his fundamentally flawed understanding of mitigation and of his duties to his client at [*97] a capital sentencing
hearing. Counsel's testimony establishes that he believed that the only avenues for mitigation related to remorse or
character, and erroneously viewed Petitioner's disadvantaged and turbulent childhood as irrelevant. He also
erroneously believed that there was no value to Petitioner in any evidence of mental disorders or intellectual deficits
unless they were connected to his guilt-phase defense, for example through a theory of innocence by reason of
insanity. Competent counsel facing a capital sentencing hearing would know that such evidence could be inherently
mitigating, regardless of whether a defendant has connected the evidence to the commission or the crime or even
admitted his involvement in the crime for which he is being sentenced. See Tennard v. Dretke, 542 U.S. 274, 287,
124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004) ("impaired intellectual function is inherently mitigating" regardless of
whether defendant establishes a "nexus to the crime"); Wiggins, 539 U.S. at 535 (IQ score of 79 is relevant
mitigation evidence); Hodge v. Kentucky, 133 S. Ct. 506, 184 L. Ed. 2d 514 (2012) (Sotomayor, J., dissenting from
denial of certiorari) ("Mitigation evidence need not, and rarely could, 'explai[n]' a heinous crime; rather, mitigation
evidence allows a jury to make a reasoned moral decision whether the individual defendant deserves [*98] to be
executed, or to be shown mercy instead."). In fact, the Tennessee statute in effect at the time of Petitioner's offense
expressly listed, as a potential mitigating factor, a substantially impaired capacity to conform to the requirements of
the law "which was insufficient to establish a defense to the crime but which substantially affected his judgment."
Tenn. Code Ann. § 39-2404(j)(8) (1977) (emphasis added).
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Where counsel has performed a proper mitigation investigation, he or she might determine, as a matter of
professional strategy, that presenting available evidence would do the client's case more harm than good. Burger v.
Kemp, 483 U.S. 776, 789—95, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987) (finding counsel not ineffective for not
presenting witness testimony that could have included defendant's propensity for violence and possibility of his
bragging about the crime). In this case, Petitioner's counsel testified to the effect that he chose not to offer certain
evidence about Petitioner's character, for example that he was polite to neighbors or close to his mother, for fear
that it would open the door to admission of evidence that he had been charged (but not convicted) in another rape
case,10 or that he had been married to a white woman, which he believed would offend the white jury. [*99] And it is
true that informed counsel might have found some of the additional evidence in this record to be double-edged —
evidence of Petitioner's own personality disorders and severe substance abuse, for example — and elected not to
present it. But Respondent cannot rest on a tactical decision to omit evidence that trial counsel did not even bother
to discover and evaluate. See Wiggins, 539 U.S. at 527-28 (holding that counsel cannot craft an informed
sentencing strategy where mitigation investigation is unreasonably abandoned). Further, mitigation is not an all-ornothing proposition. Informed counsel might have chosen to limit his mitigation theory to certain categories of
evidence, or to have one witness rather than another testify to certain facts in order to minimize the risk of harm.11
But there is no justification in this case for Ligon's abandonment of all available avenues of mitigation.
Moreover, it is difficult to imagine any strategic reason to omit evidence with any chance of eliciting a jury's
compassion when counsel has determined — as in this case — that a death sentence is otherwise a "foregone
conclusion." Believing that the jury was inclined — or even certain — to impose the death penalty, Petitioner's
counsel failed to provide them with any evidence that might alter that inclination. HN15[ ] Surrender is not a
strategic decision. To the contrary, the Sixth Circuit has found counsel's failure to present any of the available
mitigating evidence simply "because he did not think that it would do any good" to constitute "an abdication of
advocacy." Austin v. Bell, 126 F.3d at 849.
Even if the Court were to attribute the omission of character evidence to sound tactical judgment, it does not explain
counsel's failure to investigate or present any of the mitigating evidence that did not implicate Petitioner's character,
including his cramped [*101] and impoverished childhood, his father's alcoholism and abusive behavior, his
cognitive impairments and borderline IQ, his lack of education and relatively low academic functioning. In a case
involving the failure to present evidence of a brain impairment similar to Petitioner's, the Sixth Circuit has said that it
"can conceive of no rational trial strategy that would justify the failure of [petitioner's] counsel to investigate and
present evidence of his brain impairment, and to instead rely exclusively on the hope that the jury would spare his
life due to any 'residual doubt' about his guilt " Frazier v. Huffman, 343 F.3d 780, 794 (6th Cir. 2003).
The attempt by Petitioner's counsel to explain why he did not investigate any of these latter categories of potential
mitigation is frankly disturbing. He explained that he did not bother to investigate Petitioner's academic history
because academic failure "wasn't unusual in Gallatin, Tennessee for African-American males" (Doc. No. 229, at
194:23-24); that he "didn't really inquire a whole heck of a lot into" Petitioner's psychological or mental function or
seek any evaluation because "[n]obody thought anybody Black was psychologically stable" at that time, and that all
African-Americans were "considered [*102] to be a little crazy or a little off" (id. at 178—79); and that Petitioner's
disadvantaged childhood did not capture his attention because he did not see Petitioner's circumstances as any
different than anyone else's in their community. (Doc. No. 40, Add. 26 vol. 1, Tr. at 110-11.) Counsel essentially
concluded that facts that would be mitigating evidence in favor of a white defendant were not worthy of presenting
or even investigating on behalf of a black defendant. That is not a "reasonable professional judgment" that would
justify counsel's meager effort in this case. See Strickland, 466 U.S. at 690-91 (HN16[ ] "[S]trategic choices made
10 It
is unnecessary for the Court to address this issue in order to resolve this case, but Sixth Circuit precedent indicates that the
concern about admission of additional adverse evidence may be unfounded. See Harries, 417 F.3d at 640—41 (stating that
Tennessee law would bar the admission of such evidence at sentencing).
11 For
example, assuming [*100] Ligon's concerns about potential damage that Dr. Malone might have done to Petitioner's case
at sentencing were well founded, he could have called another witness to testify about Petitioner's head injury or simply included
that injury as a basis for expert testimony.
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after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation."). In failing to prepare or present any mitigation case for that reason,
counsel's representation of Petitioner at sentencing fell far below the range of professionally competent assistance,
c. Prejudice Under Strickland
HN17[ ] Upon finding that counsel's performance at sentencing was constitutionally deficient, the Strickland
standard requires the Court to weigh all of the available mitigation evidence against the aggravating evidence to
determine [*103] whether there is a reasonable probability that Petitioner would have received a different sentence
after a constitutionally sufficient mitigation effort by his trial counsel. See Sears v. Upton, 561 U.S. 945, 955-56, 130
S. Ct. 3259, 177 L. Ed. 2d 1025 (2010) (citing Strickland, 466 U.S. at 694). The "reasonable probability" standard is
"somewhat lower" than a preponderance standard and does not require that a petitioner establish that a different
outcome is more likely than not. Strickland, 466 U.S. at 694.
The jury found both aggravating circumstances asserted by the prosecution in Petitioner's case: (1) that the murder
was especially heinous, atrocious and cruel in that it involved torture or depravity of mind; and (2) that the murder
was committed while the defendant was engaged in committing rape and robbery. (Doc. No. 10, Add. 1 vol. 8, Tr. at
654, 662.) The state courts have held the second factor to be legally inapplicable to Petitioner's case,12 but they
rightly found that the evidence supported a conclusion that the nature of the crime was especially heinous. See id.
at *7; State v. Duncan, 698 S.W.2d 63, 71 (Tenn. 1985) ("The proof here, that the killer with great force sliced three
times deeply into the victim's neck and left her to bleed to death, does support the aggravating circumstance . . . .").
The brutal nature of Ms. Burgess's murder is beyond debate. [*104]
The potential mitigating impact of much of the evidence detailed above, however, is also beyond debate.
Petitioner's poverty, cognitive impairments, borderline IQ and 4th grade academic functioning level at the time of
crime are all inherently mitigating. Although different terminology might have been used by experts at the time of
Petitioner's trial, and in fact different experts might have necessarily have been called at that time, the substance
and effect of the testimony would have been the same. Petitioner's jury did not hear any of this evidence because,
having failed to reasonably investigate and prepare any case at sentencing, his counsel was "at a loss for words" at
his penalty hearing. Confidence in a sentence reached without consideration of any of those facts is gravely
undermined and renders Petitioner's sentencing fundamentally unfair. Had the jury heard about Petitioner's
disadvantaged [*105] background and significant impairments — including impaired ability to control his impulses or
alter his behavior in stressful circumstances — and his good adjustment to structured prison life, there is a
reasonable probability that at least one juror would have found that the totality of the mitigating facts outweighed the
HAC factor, which was the sole aggravating factor properly applied under state law.
This decision is solidly in line with Sixth Circuit precedent finding the failure to develop and present evidence of
brain impairments similar to Petitioner's to be prejudicial. See Harries v. Bell, 417 F.3d 631, 639—42 (6th Cir. 2005)
(holding at least one juror might have been persuaded by evidence of defendant's "[f]rontal-lobe damage [that] . . .
can interfere with a person's judgment and decrease a person's ability to control impulses"); Frazier v. Huffman,
343 F.3d 780, 798—99 (6th Cir. 2003) (holding at least one juror might have been persuaded by evidence of
defendant's brain damage that "could have impaired his ability to deal with stressful or emotional situations, even
ones of his own making").
On the record before this Court, Petitioner has established that he was prejudiced by his trial counsel's ineffective
assistance at the sentencing phase of his trial, and that his sentence accordingly [*106] violates the Sixth
Amendment to the United States Constitution. He is therefore entitled to relief on this claim under 28 U.S.C. § 2254.
12 The
state court held that reliance on the second aggravating factor was error as a matter of state law, but that it was not
prejudicial because the jury would have reached the same result based solely on the other factor. Duncan v. State, Nos. 01C019311-CR-000412, 01C01-9510-CR-00347, 1997 Tenn. Crim. App. LEXIS 1147, 1997 WL 700043, at *4 (Tenn. Ct. Crim. App.
Nov. 10, 1997).
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B. Paragraphs 13(a)(3) and (a)(17): Ineffectiveness Concerning Pathology Evidence
The testimony of medical examiner Dr. Saliba at trial has been a matter of controversy since Petitioner's direct
appeal from his conviction. At that time, the Tennessee Supreme Court held that Dr. Saliba's description of the
circumstances of the crime ("e.g. he deduced from the disarray of store merchandise that the victim had been
dragged backwards, her arms flailing, with her attacker's arm choking her about the neck") was "outside the area of
his medical expertise," but that admission of that testimony was harmless error in light of the trial court's instruction
on expert evidence and the undisputed fact that the victim was murdered. State v. Duncan, 698 S.W.2d 63, 68—69
(Tenn. 1985).
In sub-paragraphs 13(a)(3) and (a)(17) of the Amended Petition in this case, Petitioner alleges that counsel failed to
investigate (with the assistance of experts) the pathology evidence in the case in order to develop evidence
inconsistent with the prosecution's theory, and that he failed to "adequately object" to the medical examiner Dr.
Saliba's testimony about circumstances of the crime. (Doc. No. [*107] 64, at 17, 18.) In his brief, Petitioner asserts
that a forensic expert could have provided evidence that, contrary to the medical examiner's testimony, the victim
likely died of blood loss rather than an air embolism; that she could have been standing rather than in a prone
position when her throat was cut; and that the cuts could have been made with a broken bottle rather than a hookbilled knife. (Doc. No. 242, at 29—30.) He argues that leaving the medical examiner's testimony unchecked allowed
the jury to be "left with a grave misimpression about how the victim died," which, in combination with other alleged
errors by counsel, "made the circumstances of the offense appear worse than they actually were" and ultimately
impacted the sentence by reducing the jurors' residual doubt and increasing the likelihood that the crime would be
found to be heinous, atrocious or cruel. (Id. at 30—32.)
1. Exhaustion
The parties disagree about whether these claims are exhausted. Petitioner asserts that they "were presented and
exhausted during the second post-conviction proceeding." (Doc. No. 242, at 2—3.) Respondent acknowledges that
previous iterations of these claims were raised in Petitioner's second post-conviction [*108] proceeding, but that
they were not raised on appeal from the denial of that petition and are therefore procedurally defaulted. (Doc. No.
248, at 6—9, 12—13.)
In a pro se Petition for Post-Conviction Relief filed during his second post-conviction action, Petitioner asserted in
claim 7(a) that his trial counsel was ineffective for "fail[ing] to request supportive services of investigative and expert
witnesses (i.e., investigators, psychological experts, forensic experts, et cetera) to aid in his defense." (Doc. No. 40,
Add. 26 vol. 1, T.R. at 8.) He went on to assert in claim 7(e) that counsel was ineffective for failing "to request an
appointed forensic expert or investigator to aid in developing the petitioner's defense or in the alternative funds to
provide for such." (Id.) In support of this claim at his second post-conviction hearing, Petitioner relied on the affidavit
of forensic pathologist Dr. Kris Sperry. (Doc. No. 40, Add. 26 vol. 2, Exhibit 6.) Dr. Sperry testified that Dr. Saliba's
conclusions were not supported by the evidence, and that it was more likely that the victim died of blood loss, that it
was "entirely possible" that she was standing "or in another position" when her throat was cut, [*109] and that it was
impossible to determine from the evidence in the case what kind of weapon had been used. (Id. at ¶¶ 7-9.)
The trial court did not address this claim in its final order, but had earlier held a hearing to determine whether,
based on Dr. Sperry's testimony, Petitioner should receive funding to retain a forensic expert for the post-conviction
proceeding. The judge denied that request and explained at the hearing in relevant part that:
The injuries in this case would be that it would hardly take a medical expert to testify as to the extent of the
injuries; that is, the throat was cut. It was cut in a vicious manner. There was, of course, naturally, blood
everywhere. It was very heinous type of killing.
Now, it was also stated that Saliba went beyond his expertise in describing how the crime occurred; that is, he
was not a reconstructionist, but the facts showed that there was a disarray in this market of merchandise and
certainly evidence from the disarray of the merchandise and certain blood that the person had been drug back
to an area where the fatality of the crime occurred.
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Now, I want to cover the point that you made about Dr. Saliba one more time. The Supreme Court
reviewed [*110] his findings and his testimony and made the comment it did, but it was the Supreme Court's
opinion that did not and would not have changed the verdict; that while it may not have been the strongest, it
was nothing lacking in the testimony that would cause the evidence to indicate that the Defendant was not
guilty as charged and that he did not deserve the death penalty.
(Doc. No. 40, Add. 26 vol. 1, T.R. at 76:24—77:19.) In its written ruling, the trial court found that "Petitioner has not
shown that the outcome of the trial would have been different had he been furnished the assistance of the forensic
expert at trial." (Id. at 74.)
Following the trial court's dismissal of that post-conviction action, one of Petitioner's issues raised on appeal was
that "Trial counsel's failure to request approval from the trial court of assistance from and/or funding for qualified
forensic experts deprived the Petitioner of the effective assistance of counsel." (Doc. No. 40, Add. 27, Brief of the
Petitioner-Appellant at iii.) The Tennessee Court of Criminal Appeals affirmed the trial court in relevant part as
follows:
Dr. Sperry also questioned the Sumner County medical examiner's findings that the victim died from an [*111]
air embolism, that she was in a prone position when her throat was cut, and that her throat was cut with a hawk
bill knife. Be all that as it may, the proof showed that the victim's throat was cut and she died from that cutting
and Dr. Sperry agrees that was the cause of her death. Thus, any such evidence from Dr. Sperry would not
have changed the outcome of the trial in any way whatsoever.
***
While it can hardly be doubted that such an expert would have been helpful to the defense in those tasks, it
does not follow that the failure to request such assistance — at a time when under Goodman, 683 S.W.2d at
379, it was necessary to show that it was a denial of due process not to have such assistance — undermined
the verdict of guilt and the sentence of death.
Duncan v. State, No. 01C01-931 l-CR-00412, 1997 Tenn. Crim. App. LEXIS 1147, 1997 WL 700043, at *9 (Tenn.
Ct. Crim. App. Nov. 10, 1997).
The record thus establishes that the Petitioner did exhaust his claims about his attorney's ineffectiveness in failing
to seek and use expert assistance to test or rebut Dr. Saliba's pathology testimony, and disproves Respondent's
claim that the issue was abandoned during post-conviction appeal. This matter is thus properly presented for
habeas corpus review.
2. Merits
HN18[ ] Counsel's effectiveness must be judged by the [*112] standard of Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is set forth above. In this case the Court need not address
counsel's performance, because it agrees with the state court that no prejudice arose from the absence at trial of
the type of evidence or assistance offered by Dr. Sperry. See Strickland, 466 U.S. at 697 ("If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.").
Dr. Sperry's testimony does not disprove Dr. Saliba's conclusions about the cause or circumstances of the victim's
death; it merely establishes that those conclusions are not dictated by the evidence and that there is room for other
possibilities. More importantly, none of the disputes of fact between Dr. Saliba and Dr. Sperry go to the ultimate
question of Petitioner's guilt or innocence of the crime, and they therefore could not have had any impact on the
outcome of the guilt phase of his trial or provided any basis for residual doubt about guilt at sentencing.
Petitioner argues that the forensic evidence may have had an impact on the jury's finding that the crime was
heinous, atrocious or cruel at sentencing. But the victim's body was found in a pool of blood, [*113] at the end of a
trail of blood leading from the back of the convenience store, with her pants and undergarments pulled down and
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mobile sperm in her vagina, and "three cuts to her neck of such force that they cut through her neck muscles,
jugular vein, trachea, larynx and esophagus, and nicked the carotid artery." State v. Duncan, 698 S.W.2d 63, 66
(1985). As the state court found, "[t]he proof here, that the killer with great force sliced three times deeply into the
victim's neck and left her to bleed to death, does support the aggravating circumstance" under applicable state law.
Id. at 71. The Court cannot find a substantial likelihood that a jury would be swayed from that conclusion by any
doubt over whether the ultimate cause of death was blood loss or embolism or what position the victim was in when
the fatal wounds were inflicted.
Petitioner is not entitled to relief on this claim.
III. DEFAULTED CLAIMS
Petitioner acknowledges that several of his ineffective assistance of counsel claims were not presented in state
court and are therefore procedurally defaulted. As explained above, HN19[ ] such default is ordinarily a bar to
federal habeas corpus review, which a petitioner may overcome by demonstrating cause and prejudice. Until
recently, [*114] a prisoner could not demonstrate cause for default by claiming that he received ineffective
assistance of counsel during state post-conviction proceedings. See Coleman v. Thompson, 501 U.S. 722, 752-53,
111 S. Ct. 2546, 115 L. Ed. 2d 640 (1992) (holding that attorney error is not cause to excuse a default). That barrier
was based on the premise that an individual does not have a constitutional right to counsel in post-conviction
proceedings, so the prisoner "must bear the risk of attorney error that results in a procedural default." Id. (internal
quotations omitted).
HN20[ ] Recent changes in the law, however, have enabled petitioners in Tennessee to establish "cause" to
excuse the procedural default of a substantial claim of ineffective assistance by demonstrating the ineffective
assistance of post-conviction counsel in failing to raise the claim. Martinez v. Ryan, 566 U.S. , 132 S. Ct. 1309,
182 L. Ed. 2d 272 (2012) (creating exception to Coleman where state law prohibits ineffective-assistance claims on
direct appeal); Trevino v. Thaler, 569 U.S. , 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013) (extending Martinez to
states with procedural frameworks that make meaningful opportunity to raise ineffective-assistance claim on direct
appeal unlikely); Sutton v. Carpenter, 745 F.3d 787, 792 (6th Cir. 2014) (holding Martinez and Trevino apply in
Tennessee).
HN21[ ] The Supreme Court's creation in Martinez of a narrow exception to the procedural-default bar stemmed
from its recognition, [*115] "as an equitable matter, that the initial-review collateral proceeding, if undertaken without
counsel or with ineffective counsel, may not have been sufficient to ensure that proper consideration was given to a
substantial claim." Martinez, 132 S. Ct. at 1318. In other words, Martinez requires that the ineffective assistance of
post-conviction counsel occur during the "initial-review collateral proceeding,"13 and that "the underlying ineffectiveassistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the
claim has some merit." See id. at 1318—19, 1320. Importantly, Martinez did not dispense with the "actual prejudice"
prong of the standard for overcoming procedural default first articulated by the Supreme Court in Coleman, 501
U.S. at 750.
As this Court understands it, review of an ineffective-assistance claim under Martinez potentially involves two
complex [*116] layers of analysis: Coleman cause and prejudice analysis (including Strickland analysis of postconviction counsel's effectiveness) and Strickland analysis of trial counsel's effectiveness. Guidance to district
courts about how to implement the rulings in Martinez and Trevino is sparse. In one of the first circuit court opinions
to address the issue directly, the Ninth Circuit held that, to establish Coleman cause under Martinez, a habeas
petitioner must first "show that his post-conviction relief counsel was ineffective under Strickland v. Washington."
Clabourne v. Ryan, 745 F.3d 362, 376 (9th Cir. 2014). That is, the petitioner must show both that his postconviction counsel's performance was constitutionally deficient and that there is a "reasonable probability that,
13 "The
rule of Coleman governs in all but the limited circumstances recognized here. The holding in this case does not concern
attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive
collateral proceedings, and petitions for discretionary review in a State's appellate courts." Martinez, 132 S. Ct. at 1320.
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absent the deficient performance, the result of the post-conviction proceedings would have been different." Id. at
376-77.
Next, according to the Ninth Circuit, the Coleman prejudice prong in the Martinez context requires a showing that
"the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the claim has
some merit." Clabourne, 745 F.3d at 377 (quoting Martinez, 132 S. Ct. at 1318). For a claim to be found substantial
for Martinez purposes, "a petitioner must show that reasonable jurists [*117] could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further." Miller—El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029,
154 L. Ed. 2d 931 (2003), cited in Martinez, 132 S. Ct. at 1318-19. Conversely, a claim is "insubstantial" if "it does
not have any merit or . . . is wholly without factual support." Martinez, 132 S. Ct. at 1319.
This Coleman/Martinez analysis is technically required to determine whether a petitioner has established cause and
prejudice sufficient to overcome his default and have his underlying ineffective-assistance claim reviewed on the
merits. But as the Ninth Circuit has noted, there are layers of redundancy built into these evaluations, which
effectively necessitate an early look at the underlying merits:
There is, to be sure, overlap between the two requirements. Within the "cause" prong there is an element of
"prejudice" that must be established: to show ineffective assistance of post-conviction relief counsel, a
petitioner must establish a reasonable probability that the result of the post-conviction proceeding would have
been different. The reasonable probability that the result of the post-conviction proceedings would have been
different, absent deficient [*118] performance by post-conviction counsel, is necessarily connected to the
strength of the argument that trial counsel's assistance was ineffective. The prejudice at issue is prejudice at
the post-conviction relief level, but if the claim of ineffective assistance of trial counsel is implausible, then there
could not be a reasonable probability that the result of post-conviction proceedings would have been different.
. . . [T]he third conclusion—"prejudice" for purposes of the "cause and prejudice" analysis requires only a
showing that the trial-level ineffective assistance of counsel claim was "substantial"—does not diminish the
requirement of the second conclusion that petitioner satisfy the "prejudice" prong under Strickland in
establishing ineffective assistance by post-conviction counsel. To demonstrate that there was a reasonable
probability that, absent the deficient performance, the result of the post-conviction proceedings would have
been different, it will generally be necessary to look through to what happened at the trial stage.
Clabourne, 745 F.3d at 377-78.
As a practical matter, then, in many habeas cases where a petitioner seeks to overcome procedural default under
Martinez, it will be more efficient for [*119] the reviewing court to consider in the first instance whether the alleged
underlying ineffective assistance of counsel was "substantial" enough to satisfy the "actual prejudice" prong of
Coleman. If not, the court would have no need to consider whether the petitioner has established deficient
performance by post-conviction counsel. The Sixth Circuit appears to have adopted this approach in one of its few
post-Sutton applications of Martinez. See Morrow v. Tennessee, 588 F. App'x 415, 422-23 (6th Cir. 2014)
(reviewing trial level performance and prejudice to conclude claim was not sufficiently substantial to excuse default
under Martinez).
With this framework in mind, the Court turns to Petitioner's defaulted claims of ineffective assistance of counsel.
A. Paragraph 13(a)(1): Ineffectiveness Concerning Serology Evidence
Sub-paragraph 13(a)(1) asserts that:
Counsel failed to fully investigate the relevant serology evidence, including bodily fluids found in the victim, and
blood found in the store and on a box in the cooler, to demonstrate that this evidence was not consistent with
David Duncan's guilt; counsel failed to properly and fully cross-examine the prosecution's witnesses with all
such serology evidence inconsistent with the prosecution's [*120] theory, including evidence revealed through
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investigation by the Tennessee Bureau of Investigation (T.B.I.) Laboratory; and counsel failed to employ expert
assistance to assist in the investigation of the serology evidence and the cross-examination of the
prosecution's experts.
(Doc. No. 64, at 16-17.)
The root of this claim is two pages of notes about serology testing conducted by the T.B.I. lab on blood samples
recovered from an assortment of paper towels and toilet paper found (along with part of a cigarette wrapper and a
disposable razor) at the market where the victim was killed. (See Doc. No. 188-14.) According to Petitioner, these
cryptic and technical notes are "exculpatory" in that they "unquestionably" mean that someone other than Petitioner
and the victim left blood at the scene, which means in turn that someone else committed the crime. (Doc. No. 242,
at 13.) He insists that trial counsel was ineffective for failing to present this evidence through cross-examination of
the prosecution's serology expert.
With regard to the allegedly deficient performance of his post-conviction counsel in failing to raise this claim,
Petitioner has offered nothing more than his conclusory statement [*121] that "[t]here was 'no strategy'" in his first
post-conviction counsel's failure. (Doc. No. 242, at 12.) The Court need not address whether Petitioner has
sufficiently established deficient performance under the first prong of Martinez, however, because he has failed to
establish any prejudice arising from the underlying claim.
At trial, counsel elicited an acknowledgment from the prosecution's serology expert that none of the blood samples
recovered from the murder scene could have come from Petitioner. (Doc. No. 10, Add. 1 vol. 7, at 528:22—529:12.)
The Court has only Petitioner's assumption about what the witness's testimony would have been regarding the
source of the blood stains on the paper towels and toilet paper, because he chose not to present any proof on that
point at the evidentiary hearing in this matter — no examination of the original witness, no testimony from another
expert, no expert affidavits. HN22[ ] A habeas corpus petitioner cannot show prejudice arising from a failure to
present testimony without making some showing of what the testimony would have been. See Hutchison v. Bell,
303 F.3d 720, 749 (6th Cir. 2002).
Moreover, even if, as Petitioner assumes, the necessary expert interpretation of the T.B.I. lab notes were to
establish [*122] a third party as the source of the blood stains in question, that alone would not be as exculpatory
as Petitioner's claim assumes. Evidence of a third party's blood in a location open to the public does not strongly
suggest that a third party committed the murder, in the absence of evidence establishing exactly where the blood
stains were found, how old they were, how much blood was spilled and whether there is anything else connecting it
to the crime, as opposed to — for example — an accident with the razor with which they were found.
Petitioner is not entitled to relief on this claim.
B. Paragraph 13(a)(2): Ineffectiveness Concerning Fingerprint Evidence
The Amended Complaint sets forth this claim as follows:
Counsel failed to fully investigate relevant fingerprint evidence, including a fingerprint allegedly found on a juice
bottle in the store, to demonstrate that the physical evidence was not consistent with David Duncan's guilt, and
counsel failed to properly and fully cross-examine the prosecution's witnesses with such evidence inconsistent
with the prosecution's theory (including establishing the inaccuracy and subjectivity of the prosecution's
fingerprint analysis), including evidence [*123] revealed through investigation by the Tennessee Bureau of
Investigation (T.B.I.) Laboratory; and counsel failed to employ expert assistance to assist in the investigation of
the serology evidence and the cross-examination of the prosecution's experts.
(Doc. No. 64, at 17.) Petitioner never raised a claim about fingerprint evidence in his state court proceedings.
Larry Hall, senior latent print examiner and supervisor of the fingerprint examination section of the Tennessee
Bureau of Investigation crime lab, testified as an expert at trial about the fingerprints found on a juice bottle at the
crime scene that circumstances suggested was the last item sold before the murder. (Doc. No. 10, Add. 1 vol. 7, at
538, 540-41.) At the time of his testimony, Hall had been working with fingerprints for thirteen years, including two
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years with the Federal Bureau of Investigation, and had testified as a fingerprint expert in forty or more trials. (Id. at
537.) He testified that he personally lifted six partial latent prints from the juice bottle, five of which were sufficient to
be considered identifiable. (Id. at 544—15.) Comparing those latent prints to the Petitioner's fingerprints, Hall
positively identified two [*124] of the latent prints as Petitioner's left index finger, one as his left ring finger, and one
as his left thumb. (Id. at 546.) He used a chart to demonstrate to the jury ten different points of identification
between one of the latent prints and Petitioner's ink fingerprint, and testified that while he considered the print a
match at ten points, he actually found twenty-nine matching characteristics in that particular print. (Id. at 547-52.)
He acknowledged that there was no set minimum number of points of identification to justify finding a match, and
that he had seen identifications made on the basis of six points with good quality prints. (Id. at 551—52.) Hall
testified that the only purpose for his counting points in that print was for his demonstration for the jury and that he
had not reported any certain number of matching points in the other prints, but that "there was no question" as to
the identification of the three other prints he had matched to Petitioner. (Id. at 543—54.)
On cross-examination, Petitioner's counsel forced Hall to admit that he could not positively identify a fifth partial
latent print on the bottle as Petitioner's, because Petitioner's ink print did not include the same area of the finger that
the [*125] latent print exposed. (Doc. No. 10, Add. 1 vol. 7, at 557.) Counsel also highlighted the possibility that the
sixth print was left by someone other than Petitioner:
Q. All right. And, so, the latent was not sufficient to identify, so the latent could have come from another
source?
A. It possibly could have.
Q. All right, now, that means in your expert opinion, that latent could have been made by another party?
A. It may have, I couldn't identify it.
(Id. at 564; see also id. at 572:23-25 ("[C]ould possibly have come from another source?" "It possibly could have,
yes, sir.").) Cross-examination further revealed that it is possible that someone else could have handled the bottle
without leaving any prints. (Id. at 567—68, 575.)
Asked on redirect whether it was likely that the sixth print came from anyone other than Petitioner, Hall responded
that he "wouldn't think so." (Doc. No. 10, Add. 1 vol. 8, at 573:11-13.) He further testified that to his knowledge there
was no way for Petitioner's fingerprints to be on the juice bottle without his touching or holding it. (Id. at 574.)
Petitioner argues to this Court that counsel should have attacked Hall's conclusions as unscientific or unreliable on
the basis of his "dramatic admission" that [*126] the number of points of similarity required to identify a fingerprint
as a match is subjective. (Doc. No. 242, at 14; Doc. No. 188, at 24-25.) This position fails in the abstract because
courts have widely accepted fingerprint comparison evidence as sufficiently reliable to be admissible in criminal
trials. United States v. Hatcher, 513 F. App'x 581, 584 (6th Cir. 2013); United States v. Baines, 573 F.3d 979, 992
(10th Cir. 2009). More importantly, it fails in the specific context of this case because Hall testified that he found
twenty-nine points of similarity between Petitioner's print and one of the latent prints on the juice bottle (print #1),
and walked the jury through ten of them in his chart. Petitioner does not cite any case law indicating that an
identification on that basis is unreliable, much less that an attorney would be ineffective for failing to make such an
argument.
Petitioner's arguments pertaining to Hall's identification of latent prints #2, #3 and #4 as Petitioner's prints all fail for
lack of prejudice. Because Petitioner could only have left print #1 on the bottle by touching or holding it, that print
alone places Petitioner at the scene. It makes no practical difference whether Petitioner left one print or twenty on
the bottle, and no prejudice arises from any perceived failures [*127] by counsel with regard to the other matches.
Further, even with the benefit of hindsight and a full federal evidentiary hearing, we do not know what additional
cross-examination or expert testimony about those fingerprint matches would have established. The weakness of
Hall's lack of detailed testimony about prints #2—#4 was as apparent at trial as it is today. Giving Hall an
opportunity to elaborate on the points of similarity he found between the prints might only have increased his
credibility in the minds of the jurors.
Petitioner also argues that trial counsel should have objected to Hall's testimony that he "wouldn't think" the two
latent prints he was not able to match — prints #5 and #6 — would have come from anyone other than Petitioner.
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Even accepting Petitioner's position that neither Hall's expertise nor common sense supports that supposition, it is
immaterial for the same reason explained above: it only takes a single print — print #1 — to establish that Petitioner
touched the bottle and was therefore at the scene of the murder. Counsel effectively cross-examined Hall about
those prints, forcing Hall to acknowledge that print #6 might have been left by another party and [*128] to admit
repeatedly that any number of other people might have also touched the bottle. Contrary to Petitioner's current
argument, the record with regard to those prints did not leave the jury with any prejudicial misimpression, despite
the lack of objection.
Finally, Petitioner faults trial counsel for failing to ask Hall about any points of dissimilarity between Petitioner's
prints and the latents found on the bottle, which he says "very well may" require a conclusion that the latent print
was not Petitioner's. (Doc. No. 188, at 28.) But if there is any evidence that any of the latent prints on the bottle are
definitively not Petitioner's, Petitioner has not offered it to this Court despite having ample opportunity to do so. He
has therefore failed to demonstrate any prejudice arising from the alleged ineffectiveness of his trial counsel on this
claim. See Goldsby v. United States, 152 F. App'x 431, 436 (6th Cir. 2005) (holding that habeas relief is properly
denied where petitioner did not offer habeas court the evidence he claimed trial counsel should have offered).
Because his underlying claim of ineffective assistance with regard to fingerprint evidence is without merit, Petitioner
is not entitled to relief on this claim regardless of whether [*129] its default would be excused under Martinez.
C. Paragraphs 13(a)(5) and (a)(6): Ineffectiveness Concerning Evidence About Other Suspects
In the referenced sub-paragraphs of his Amended Petition, Petitioner alleges that his trial counsel was ineffective
for failing to investigate and present evidence that the crime was actually committed by David Key and/or Glenn
David Randolph, and for failing to investigate information about the crime known to Pat Freeman. (Doc. No. 64, at
17.) The Court has already dismissed Petitioner's related claims that the prosecution's failure to produce evidence
related to those individuals violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),
primarily on the basis that Petitioner has never produced any evidence connecting any of them to the crime.
Duncan v. Carpenter, No. 3:88-00992, 2014 U.S. Dist. LEXIS 110595, 2014 WL 3905440, at *29-32, 34 (M.D.
Tenn. Aug. 11, 2014). For the reasons set forth in its previous memorandum, the Court finds Petitioner's ineffectiveassistance claims based on the same underlying "facts" not to be substantial as required to overcome default under
Martinez.
D. Paragraph 13(e): Ineffectiveness on Direct Appeal
Petitioner alleges in subaragraph 13(e) of the Amended Petition that "Counsel was ineffective on direct appeal for
failing to raise any and all meritorious [*130] claims of constitutional deprivation, including any and all claims
contained in this petition for writ of habeas corpus." (Doc. No. 64, at 21.) Petitioner acknowledges that this claim of
ineffective assistance of appellate counsel is defaulted because it was never raised in state court, but asserts that
the Court should find cause for that default in accordance with Martinez. (Doc. No. 242, at 6, 60.) Petitioner's
argument is rooted in the fact that there is no rational distinction between post-conviction counsel's ineffectiveness
in failing to raise claims of previous counsel's errors at trial and his failing to raise claims of previous counsel's
errors on appeal, where there is no opportunity to raise either claim prior to post-conviction proceedings.
Regardless of the logical soundness of that argument, this Court is bound by the clear instruction of the Sixth Circuit
that even under Martinez, HN23[ ] "ineffective assistance of post-conviction counsel cannot supply cause for
procedural default of a claim of ineffective assistance of appellate counsel." Hodges v. Colson, 727 F.3d 517, 531
(6th Cir. 2013.) This claim is procedurally defaulted and not subject to habeas review.
Moreover, even if the Court were to reach the merits [*131] of subparagraph 13(e), this vague attempt at a catch-all
ineffective-assistance claim does not state a claim for relief as required by Rule 2 of the Rules Gov'g Habeas
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Corpus Cases Under Section 2254, and would be dismissed on that basis.14 See Phillips v. Bradshaw, 5:03 CV
875, 2006 U.S. Dist. LEXIS 75885, 2006 WL 2855077, at *40 (N.D. Ohio Sept. 29, 2006) (holding that "catch-all
ineffective assistance of counsel claim" for failure to preserve any issue raised on habeas corpus was "not welltaken"), aff'd, 607 F.3d 199 (6th Cir. 2010); Clemons v. Luebhers, 212 F. Supp. 2d 1105, 1135 (E.D. Mo. 2002)
(holding that "Ground 15 is a catch-all claim that any failure to preserve claims or exhaust remedies was caused by
ineffective assistance of counsel. This claim presents no grounds for habeas relief, and none will be granted."),
rev'd in part on other grounds, 381 F.3d 744 (8th Cir. 2004); Griffey v. Hubbard, C 01-3483 FMS, 2004 U.S. Dist.
LEXIS 7557, 2004 WL 941234 (N.D. Cal. Apr. 29, 2004) (rejecting as "conclusory catchall" petitioner's claim that
"[t]o the extent defense counsel failed to further develop the factual basis and to preserve the record with regard to
the foregoing errors, petitioner was deprived of effective assistance of counsel as guaranteed by the Sixth
Amendment.").
E. Paragraphs 10(b) and 10(c): Presence of the Ku Klux Klan at Trial
The referenced paragraphs of the Amended Petition assert that the visible presence of members of the KKK in the
courtroom during Petitioner's trial, where the victim and jury were all white, violated his Sixth, Eighth and Fourteenth
Amendment rights to a fair trial and sentencing hearing. In its previous decision, the Court found this claim to be
procedurally defaulted, having never been raised in state court. Duncan v. Carpenter, No. 3:88-00992, 2014 U.S.
Dist. LEXIS 110595, 2014 WL 3905440, at *8 (M.D. Tenn. Aug. 11, 2014). Petitioner now argues that Martinez v.
Ryan, 566 U.S. , 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012) should apply to excuse that default. (Doc. No. 242, at
20-26.) This argument lacks any basis in Martinez or its progeny and must fail.
As explained above, HN24[ ] Martinez's exception to the Coleman procedural default bar is limited to claims of
ineffective assistance of trial counsel: "Coleman held that an attorney's negligence in a post-conviction proceeding
does not establish [*133] cause, and this remains true except as to initial-review collateral proceedings for claims of
ineffective assistance of counsel at trial." Martinez, 132 S. Ct. at 1319 (emphasis added). The Sixth Circuit has
enforced the strict limitation on the scope of Martinez, explaining that "[w]e will assume that the Supreme Court
meant exactly what it wrote." See Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013) (holding that ineffective
assistance of post-conviction counsel did not excuse default of substantive mental-competence claim or of
ineffective-assistance-of-appellate-counsel claim); accord Hunton v. Sinclair, 732 F.3d 1124 (9th Cir. 2013)
(rejecting argument for application of Martinez to Brady claims and explaining "[i]f Coleman's revetment is to be tom
down, it is not for us to do it. Rather, we must follow the case which directly controls, leaving to the Court the
prerogative of overruling its own decisions"). Accordingly, Martinez cannot save Petitioner's "substantive
KKK/improper-racist-influence claim." (See Doc. No. 242, at 24.)
Petitioner now attempts to avoid this result by shoe-homing his substantive claim into a claim that "trial counsel was
ineffective for failing to object to the KKK's influence upon the trial and especially the death sentence." (Id.) But that
ineffective-assistance claim does not appear [*134] in the Amended Petition. Petitioner makes a lengthy,
convoluted argument that the Court should excuse default of his substantive claim as the result of a "two-layered
showing of 'cause,'" that invokes Martinez (Doc. No. 242, at 23), which sounds very similar to an effort that at least
one other federal court has already rejected as "labyrinthine":
Olmos attempts to derive support for the viability of this labyrinthine causal chain from Martinez v. Ryan, but
that reliance is misplaced. The standard rule is that a petitioner has no constitutional right to counsel at
collateral proceedings, and therefore cannot claim ineffective assistance at that stage. See Coleman, 501 U.S.
at 753. The Supreme Court carved out a very narrow exception in Martinez: inadequate assistance of counsel
14 Petitioner
has attempted to avoid this result by using his supplemental brief to narrow the contours of his original catch-all
claim to focus on appellate counsel's failure to challenge the reasonable doubt jury [*132] instructions delivered at trial. (See
Doc. No. 242, at 60-61.) Even that narrowed claim would fail, however, because the instructions at issue have previously been
found constitutional by this Court, Morris v. Bell, No. 07-1084-JDB, 2011 U.S. Dist. LEXIS 155039, 2011 WL 7758570, at *36
(W.D. Tenn. Sept. 29,2011), and are materially similar to instructions approved by the Sixth Circuit in Austin v. Bell, 126 F.3d
843, 847 (6th Cir. 1997).
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at initial-review collateral proceedings may establish cause for a prisoner's default of a claim of ineffective
assistance at trial. 132 S. Ct. at 1321. But that is not Olmos's argument. . . . Olmos's claim is not ineffective
assistance as cause to excuse default of a claim of ineffective assistance—it is that ineffective assistance
serves as cause to excuse default of a claim of ineffective assistance as cause to excuse default of a
constitutional claim. [*135] Olmos therefore seeks to extend Martinez to situations where the ineffective
assistance claim is merely the excuse for a procedural default—not the base claim itself.
Olmos v. Ryan, No. CV-11-00344-PHX-GMS, 2013 U.S. Dist. LEXIS 88118, 2013 WL 3199831, at *10 (D. Ariz.
June 24, 2013). Similarly, Petitioner's Claim 10 is not a claim of ineffective assistance of trial counsel, but a
substantive constitutional claim to which Martinez is as inapplicable as it is to any other defaulted substantive claim.
Nothing about Petitioner's latest argument alters the Court's previous conclusion that this claim is procedurally
defaulted.
IV. CONCLUSION
As detailed above, Petitioner is entitled to federal habeas relief from his sentence of death, based on the prejudicial
ineffective assistance of his trial counsel at sentencing. His death sentence will therefore be vacated, subject to the
State's right to commence new sentencing proceedings consistent with this ruling. In all other respects, the petition
will be denied.
An appropriate Order is entered herewith.
/s/ John T. Nixon
JOHN T. NIXON, SENIOR JUDGE
UNITED STATES DISTRICT COURT
ORDER
Petitioner David Carl Duncan, a prisoner in state custody confined under a sentence of death at Riverbend
Maximum Security Institution, has petitioned this [*136] Court under 28 U.S.C. § 2254 for the writ of habeas corpus.
For the reasons set forth in the accompanying Memorandum, the Court finds that Petitioner was denied the
effective assistance of counsel at the sentencing phase of his trial and is therefore entitled to federal habeas relief
from his sentence of death. Accordingly, the Court hereby GRANTS IN PART the petition, VACATES Petitioner's
sentence of death and REMANDS this case to the State of Tennessee for new sentencing proceedings consistent
with this Court's ruling.
In all other respects, the petition is DENIED and DISMISSED. In particular, Petitioner's convictions for murder,
armed robbery and aggravated rape are unaffected by this Order, and his life sentences for the latter two offenses
remain undisturbed.
Because the Court's ruling is adverse to Petitioner with respect to the majority of his claims, the Court must
determine whether to issue or deny a certificate of appealability ("COA") with respect to those claims. Rule 11,
Rules Gov'g § 2254 Cases. A COA may issue only if a petitioner "has made a substantial showing of the denial of a
constitutional right," 28 U.S.C. § 2253(c)(2), and the COA must "indicate which specific issue or issues satisfy the
[required] showing." 28 U.S.C. § 2253(c)(3). A "substantial showing" [*137] is made when the petitioner
demonstrates that "'reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to
proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (quoting Slack
v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000)). "[A] COA does not require a showing
that the appeal will succeed." Miller-El, 537 U.S. at 337. Courts should not issue a COA as a matter of course. Id.
JEAN BARRETT
129
Page 45 of 45
2015 U.S. Dist. LEXIS 28009, *137
In this case, the Court has determined that its denial of relief on five of Petitioner's claims is sufficiently debatable to
warrant appellate review. Reasonable jurists could disagree about whether Petitioner should be entitled to relief on
the following claims:
Claim 1, alleged Confrontation Clause violation with respect to witness Linda Kelly (Doc. No. 64, at 4, ¶ 8; relief
denied at Duncan v. Carpenter, No. 3:88-00992, 2014 U.S. Dist. LEXIS 110595, 2014 WL 3905440, at *18—
22, 23 (M.D. Tenn. Aug. 11, 2014));
Claim 3-a, alleged prosecutorial misconduct in racially inflammatory argument (Doc. No. 64, at 9, ¶ 10(a); relief
denied at Duncan, 2014 U.S. Dist. LEXIS 110595, 2014 WL 3905440, at *24-27);
Claim 5-b, alleged Brady violation in withholding the report of Deputy Sheriff Danny White (Doc. No. 118-1, at
2-3, ¶ 12(b); relief denied at Duncan, 2014 U.S. Dist. LEXIS 110595, 2014 WL 3905440, at *30—33);
Claim 21, alleged unconstitutional broadening of murder indictment (Doc, No. 64, at 31, ¶ 28; relief denied at
Duncan, 2014 U.S. Dist. LEXIS 110595, 2014 WL 3905440, at *44—51); and [*138]
Claim 30, alleged unconstitutional delay in execution of sentence as suggested by Lackey v. Texas, 514 U.S.
1045, 115 S. Ct. 1421, 131 L. Ed. 2d 304 (1995) (Stevens. J., statement respecting denial of certiorari) (Doc.
No. 64, at 33, ¶ 37; relief denied at Duncan, 2014 U.S. Dist. LEXIS 110595, 2014 WL 3905440, at *15—16).
Accordingly, the Court GRANTS Petitioner a COA with respect to those claims.
Because an appeal by Petitioner on any of the other claims raised in his petition would not merit further attention,
the Court DENIES a COA with respect to all of Petitioner's other claims on which this Court has denied relief.
Petitioner may, however, seek a COA directly from the Sixth Circuit Court of Appeals. Rule 11(a), Rules Gov'g §
2254 Cases.
The entry of this Order shall constitute the Judgment in this action.
It is so ORDERED.
Entered this 3rd day of March, 2015.
/s/ John T. Nixon
JOHN T. NIXON, SENIOR JUDGE
UNITED STATES DISTRICT COURT
End of Document
130
JEAN BARRETT