Ernest DeWayne Jones v. Robert K. Wong

Filing 59

NOTICE OF MOTION AND First MOTION for Hearing Evidentiary Hearing filed by Petitioner Ernest DeWayne Jones. (Attachments: # 1 Exhibit Volume 1 Of Exhibits In Support of Motion For Evidentiary Hearing, # 2 Exhibit Volume 2 Of Exhibits In Support of Motion For Evidentiary Hearing, # 3 Exhibit Volume 3 Of Exhibits In Support of Motion For Evidentiary Hearing, # 4 Exhibit Volume 4 Of Exhibits In Support of Motion For Evidentiary Hearing, # 5 Exhibit Volume 5 Of Exhibits In Support of Motion For Evidentiary Hearing, # 6 Exhibit Volume 6 Of Exhibits In Support of Motion For Evidentiary Hearing)(Daniels, Patricia)

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1 MICHAEL LAURENCE, State Bar No. 121854 PATRICIA DANIELS, State Bar No. 162868 2 CLIONA PLUNKETT, State Bar No. 256648 3 HABEAS CORPUS RESOURCE CENTER 303 Second Street, Suite 400 South 4 San Francisco, California 94107 5 Telephone: (415) 348-3800 6 Facsimile: (415) 348-3873 Email: docketing@hcrc.ca.gov 7 mlaurence@hcrc.ca.gov pdaniels@hcrc.ca.gov 8 cplunkett@hcrc.ca.gov 9 Attorneys for Petitioner ERNEST DEWAYNE JONES 10 11 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION 12 13 ERNEST DEWAYNE JONES, Case No. CV-09-2158-CJC 14 Petitioner, DEATH PENALTY CASE v. MOTION FOR AN EVIDENTIARY HEARING 15 16 17 VINCENT CULLEN, Warden of California State Prison at San Quentin, 18 19 Hearing Date To Be Determined Respondent. 20 TO: KAMALA D. HARRIS, ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, AND HERBERT S. TETEF, DEPUTY ATTORNEY GENERAL: 22 21 23 PLEASE TAKE NOTICE that at a date and time to be set by the Court, 24 petitioner Ernest Dewayne Jones, by and through counsel the Habeas Corpus Resource 25 Center, will move this Court for an order granting petitioner an evidentiary hearing on 26 Claims One, Three, Four, Five, Fifteen, Sixteen, Eighteen, Twenty-Three, and Twenty27 Four in the Petition for Writ of Habeas Corpus. 28 1 Mr. Jones brings this motion pursuant to the United States Constitution, and all 2 other applicable statutes, case law and local rules. This motion is based on the 3 attached statement of facts and memorandum of points and authorities, concurrently 4 filed exhibits, and the record before this Court. 5 Dated: February 17, 2011 Respectfully submitted, 6 HABEAS CORPUS RESOURCE CENTER 7 8 By: /s/ Michael Laurence MICHAEL LAURENCE Attorneys for Petitioner Ernest Dewayne Jones 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 TABLE OF CONTENTS 2 Table of Authorities ......................................................................................................... v  3 Introduction ...................................................................................................................... 1  4 Relevant Procedural History ............................................................................................ 3  5 I.  Standard for Granting an Evidentiary Hearing. ..................................................... 4  6 A.  The State Court’s Fact-Finding Procedures Were Defective......................... 4  7 8 B.  Petitioner Was Diligent in Developing the Factual Bases for Each Claim for Relief..................................................................................... 7  9 C.  Petitioner Is Entitled to an Evidentiary Hearing on Each of His Claims Presented in This Motion. .................................................................. 9  10 11 12 II.  13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Petitioner Is Entitled to an Evidentiary Hearing on Claim One: Trial Counsel Rendered Prejudicially Ineffective Assistance of Counsel in the Guilt Phase. ...................................................................................................... 9  A.  Trial Counsel Unreasonably and Prejudicially Failed to Investigate, Develop, and Present Compelling Expert and Lay Witness Testimony Concerning Petitioner’s Mental State at the Time of the Crime. ....................................................................................... 12  B.  Trial Counsel Failed to Investigate, Develop, and Present a Coherent and Persuasive Defense to the Rape and Rape FelonyMurder Charges and the Rape Special Circumstance. ................................. 25  C.  Trial Counsel Unreasonably Failed to Investigate, Develop, and Challenge the Admissibility and Reliability of the Dna Evidence. ...................................................................................................... 36  D.  Trial Counsel Unreasonably Failed to Investigate, Develop, and Enter a Plea of Not Guilty by Reason of Insanity........................................ 46  E.  Trial Counsel Unreasonably Failed to Conduct a Constitutionally Adequate Voir Dire. .......................................................... 51  F.  Trial Counsel Unreasonably and Prejudicially Failed to Investigate and Impeach Pamela Miller, a Critical Prosecution Witness. ........................................................................................................ 53  28 i MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 G.  Trial Counsel Unreasonably Failed to Investigate and Fully Litigate the Admissibility of Prior Crimes Evidence................................... 56  2 H.  Trial Counsel Unreasonably Failed to Request Necessary and Proper Jury Instructions and Verdict Forms. ............................................... 70  3 4 I.  Trial Counsel Unreasonably and Prejudicially Failed to Object to Numerous Instances of Prejudicial Prosecutorial Misconduct. ............... 73  J.  5 Trial Counsel Rendered Ineffective Assistance of Counsel as a Result of His Disabling Conflict of Interest. ............................................... 81  6 7 8 K.  Petitioner Is Entitled to a Hearing on Each Claim of Ineffective Assistance to Establish Cumulative Prejudice. ............................................ 83  9 10 III.  11 Petitioner Is Entitled to an Evidentiary Hearing on Claim Three: the Prosecution Failed to Disclose Exculpatory Material Evidence. ........................ 85  12 A.  The Prosecution Unlawfully Failed to Disclose Petitioner’s 1984 Beverly Hills Medical Record...................................................................... 86  13 B.  Petitioner Is Entitled to an Evidentiary Hearing on the Prosecution’s Suppression of Material, Exculpatory Portions of Petitioner’s Los Angeles County Jail Medical Record. ............................... 89  14 15 16 C.  Petitioner Is Entitled to an Evidentiary Hearing on the Prosecution’s Suppression of Exculpatory Impeachment Material. ....................................................................................................... 92  17 18 19 IV.  20 21 22 23 24 25 26 Petitioner Is Entitled to an Evidentiary Hearing on Claim Four: Petitioner Was Deprived of His Constitutional Rights to Be Present at His Trial and Not to Be Tried When He Was Unable to Comprehend Critical Portions of the Proceedings or to Communicate and Cooperate With Counsel. .............................................................................. 96  A.  Petitioner Suffered From a Severe Mental Illness That Prevented Him From Comprehending or Participating in the Pre-Trial and Trial Proceedings. .................................................................. 98  B.  Trial Counsel Unreasonably and Prejudicially Failed to Declare a Doubt as to Petitioner’s Competence to Stand Trial. .............................. 105  27 28 ii MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 C.  Trial Counsel Unreasonably and Prejudicially Failed to Ensure Petitioner Was Competent and Prepared to Testify or to Advise Him About the Possible Consequences of Testifying. .............................. 109  2 3 4 V.  5 6 A.  Petitioner Is Entitled to Relief Because He Was Improperly Medicated. .................................................................................................. 115  7 B.  Trial Counsel Unreasonably and Prejudicially Failed to Object to the Drug Regimen, and Failed to Object to the Capital Murder Trial Proceedings on the Ground That Petitioner Could Not Obtain a Fair Trial While Being Medicated With Antipsychotic Drugs................................................................................... 120  8 9 10 11 12 VI.  13 14 15 16 17 Petitioner Is Entitled to an Evidentiary Hearing on Claim Five: Petitioner Was Deprived of His Constitutional Rights Because He Was Medicated at the Time of Trial. ................................................................. 114  Petitioner Is Entitled to an Evidentiary Hearing on Claim Fifteen: Trial Counsel’s Performance Was Deficient for Failing to Object to Non-Statutory Aggravating Evidence and Failure to Investigate and Mitigate the State’s Aggravators. ...................................................................... 122  A.  Trial Counsel’s Failure to Investigate and Challenge the State’s Aggravating Circumstances Was Unreasonable. ....................................... 123  B.  Trial Counsel’s Deficient Representation Was Prejudicial. ...................... 134  18 VII.  Petitioner Is Entitled to an Evidentiary Hearing on Claim Sixteen: Petitioner Was Deprived of His Right to the Effective Assistance of 19 Counsel in Preparation for and During the Penalty Phase by Trial Counsel’s Prejudicially Deficient Performance................................................. 136  20 21 22 23 24 25 26 27 A.  Trial Counsel Rendered Ineffective Assistance by Failing to Present Readily Available Mitigation Evidence. ....................................... 138  B.  Trial Counsel Rendered Ineffective Assistance for Failing to Retain, Consult, and Prepare Mental Health Experts During the Penalty Phase. ............................................................................................ 201  C.  Trial Counsel Rendered Ineffective Assistance During the Penalty Phase by His Failure to Object to Prosecutorial Misconduct. ................................................................................................ 214  28 iii MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 VIII.  Petitioner Is Entitled to an Evidentiary Hearing on Claim Eighteen: the Jury Committed Prejudicial Misconduct. .................................................... 217  2 A.  The Trial Court Instructed Petitioner’s Jury About Its 3 Obligations. ................................................................................................ 218  4 B.  Petitioner’s Jury Committed Prejudicial Misconduct by 5 Introducing Extraneous Information Into Deliberations. ........................... 221  6 C.  The Jurors Committed Prejudicial Misconduct by Prematurely 7 Deliberating and Prejudging the Case........................................................ 224  8 D.  The Jurors Committed Prejudicial Misconduct by Failing to 9 Follow the Court’s Instructions.................................................................. 226  10 E.  Juror Ruotolo Committed Prejudicial Misconduct by Falling Asleep During the Testimony of Petitioner’s Sole Mental Health Expert. ........................................................................................................ 228  11 12 13 IX.  15 Petitioner Is Entitled to an Evidentiary Hearing on Claim TwentyThree: Petitioner’s Sentence Constitutes Cruel and Unusual Punishment Because of His Mental Retardation and Mental Impairments. ...................................................................................................... 230  16 A.  Petitioner Meets the Criteria for an Intellectual Disability ........................ 231  17 B.  Petitioner Is Ineligible for the Death Penalty Because He Is Mentally Ill and Suffers From Organic Brain Damage. ............................ 240  14 18 19 X.  20 21 22 23 24 Petitioner Is Entitled to an Evidentiary Hearing on Claim TwentyFour: California’s Death Penalty Statute Fails to Narrow the Class of People Eligible for the Death Penalty. .......................................................... 245  A.  The California Death Penalty Statute Was Enacted and Amended Without Regard to Eighth Amendment Requirements. ............ 247  B.  California’s Death Penalty Statute Does Not Perform Constitutionally Required Narrowing. ....................................................... 248  25 Conclusion ................................................................................................................... 251  26 27 28 iv MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC TABLE OF AUTHORITIES 1 Page(s) 2 3 CASES 4 Ainsworth v. Woodford, 268 F.3d 868 (9th Cir. 2001) ........................................ 151, 157 5 Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) ....... passim 6 Bagley v. Lumpkin, 798 F.2d 1297 (9th Cir. 1986) ....................................................... 93 7 Bean v Calderon, 163 F.3d 1074 (9th Cir. 1998) ........................................................ 201 8 Benn v. Lambert, 282 F.3d 1040 (9th Cir. 2000) ........................................................... 86 9 10 Benn v. Lambert, 283 F.3d 1040 (9th Cir. 2002) ..................................................... 93, 94 11 Benson v. Terhune, 304 F.3d 874 (9th Cir. 2002) ............................................... 119, 120 12 Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935) .. 79, 80, 216 13 Bigelow v. Williams, 367 F.3d 562 (6th Cir. 2004) ..................................................... 125 14 Bloom v. Calderon, 132 F.3d 1267 (9th Cir. 1997) ................................... 13, 15, 18, 201 15 Boag v. Raines, 769 F.3d. 1341 (9th Cir. 1985) ...................................................... 97, 98 16 17 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) ........... passim 18 Brecht v. Abrahamson, 507 U.S., 113 S. Ct., 123 L. Ed. 2d 353 ........................... passim 19 Brown v. Borg, 951 F.2d 1011 (9th Cir. 1991) ........................................................ 87, 91 20 Brown v. Sternes, 304 F.3d 677 (7th Cir. 2002) ............................................................ 46 21 Burns v. Gammon, 260 F.3d 892 (8th Cir. 2001) .......................................................... 74 22 Burt v. Uchtman, 422 F.3d 557 (7th Cir. 2005) ........................................................... 105 23 24 Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct 2633, 86 L. Ed. 2d 231 (1985) ...... 227 25 Carlos v. Superior Court, 35 Cal. 3d 131, 197 Cal. Rptr. 79 (1983) .................. 249, 250 26 Caro v. Woodford, 280 F.3d 1247 (9th Cir. 2002) ...................................................... 201 27 Chavez v. United States, 656 F.2d 512 (9th Cir 1981) .................................................. 98 28 v MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Collier v. Turpin, 177 F.3d 1184 (11th Cir. 1999) ...................................................... 146 2 Correll v. Ryan, 539 F.3d 938 (9th Cir. 2008) ............................................ 123, 138, 201 3 Crotts v. Smith, 73 F.3d 861 (9th Cir. 1996) ................................................. 59, 125, 126 4 Daniels v. Woodford, 428 F.3d 1181 (9th Cir. 2005) .................................................... 12 5 Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 ................................. 53 6 7 de Kaplany v. Enomoto, 540 F.2d 975 (9th Cir. 1976)................................................ 103 8 Deere v. Cullen, 713 F. Supp. 2d 1011 (C.D. Cal. 2010) ............................................ 113 9 Deere v. Woodford, 339 F.3d 1084 (9th Cir. 2003)................................................. 97, 98 10 Detrich v. Ryan, 619 F.3d 1038 (9th Cir. 2010) .......................................................... 214 11 Douglas v. Woodford, 316 F.3d 1079 (9th Cir. 2003) ................................................. 143 12 13 Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 102 (1975) ................... 98 14 Duncan v. Ornoski, 528 F.3d 1222 .................................................................... 36, 38, 45 15 Duncan v. Ornoski, 5285 F.3d 1222 (9th Cir. 2008) ..................................................... 30 16 Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) .............. 96 17 Earp v. Ornoski, 431 F.3d 1158 (9th Cir. 2005)..................................................... passim 18 Furman v. Georgia 19 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) ................. 245, 246, 249, 250 20 Gerlaugh v. Stewart, 129 F.3d 1027 (9th Cir. 1997) ................................................... 127 21 Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) ............ 85 22 23 Gravley v. Mills, 87 F.3d 779 (6th Cir. 1996) ............................................................... 73 24 Gregg v. Georgia 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1972) ......................... 244, 245, 246 25 26 Harris ex rel. Ramseyer v. Wood, 64 F.3d 1432 (9th Cir. 1995)....................... 51, 70, 73 27 Heishman v. Ayers, 621 F.3d 1030 (9th Cir. 2010) ..................................................... 138 28 Hernandez v. Ylst, 930 F.2d 714 (9th Cir. 1991) ......................................................... 103 vi MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Holland v. Jackson, 542 U.S. 649, 542 U.S. 934, 124 S. Ct. 2736, 159 L. Ed. 2d 683 (2004) ............................................................................................................... 5, 6 2 3 Hull v. Kyler 190 F.3d 88 (3rd Cir. 1999) ........................................................... 108, 109 4 In re Steele, 32 Cal. 4th 682, 10 Cal. Rptr. 3d 536 (2004) .............................................. 8 5 Irvin v. Dowd, 366 U.S. 717, 6 L. Ed. 2d 751 (1961) ................................................... 51 6 Jackson v. Brown, 513 F.3d 1057 (9th Cir. 2008) ............................................. 86, 90, 93 7 Jeffries v. Wood, 114 F.3d 1484 (9th Cir. 1997) ......................................................... 221 8 Jennings v. Woodford, 290 F.3d 1006 (9th Cir. 2002) ................................ 12, 17, 46, 48 9 10 Jermyn v. Horn, 266 F.3d 257 (3d Cir. 2001) ............................................................... 97 11 Jones v. California, 540 U.S. 952, 124 S. Ct. 395, 157 L .Ed. 2d 286 (2003) ................ 3 12 Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989).................................................... 223 13 Jones v. Wood, 114 F.3d 1002 (9th Cir.1997) ..................................................... 128, 129 14 Killian v. Poole, 282 F.3d 1204 (9th Cir. 2002) ............................................................ 74 15 16 Kimmelman v. Morrison 477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986) ....................................... 105 17 Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)........... 86, 90 18 19 Lowenfield v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988) ..... 53, 245 20 Mach v. Stewart, 137 F.3d 630 (9th Cir. 1997) ........................................... 223, 226, 227 21 Marshall v. Hendricks, 307 F.3d 36 (3rd Cir. 2002) ................................................... 137 22 Mattox v. United States, 146 U.S. 140, 13 S. Ct. 50, 36 L. Ed. 917 (1892) ................ 217 23 Maxwell v. Roe, 628 F.3d 486 (9th Cir. 2010) .............................................................. 90 24 McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S. Ct. 845, 25 78 L. Ed. 2d 663 (1984) .......................................................................................... 226 26 Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002).............. 81 27 Morgan v. Illinois 28 504 U.S. 719, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992) ............................. 226, 227 vii MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959) .................... 74 2 Oliver v. Quartermain, 541 F3d 329 (5th Cir. 2008) .................................................. 223 3 Owsley v. Peyton, 368 F.2d 1002 (4th Cir. 1966)........................................................ 108 4 Pate v. Robinson 5 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966) ............................... 96, 98, 103 6 People v. Anderson, 43 Cal. 3d 1104, 240 Cal. Rptr. 585 (1987) ............................... 249 7 People v. Jones, 29 Cal.4th 1229, 131 Cal.Rptr.2d 468 (2003) ...................................... 3 8 People v. Kelly, 1 Cal. 4th 495, 3 Cal. Rptr. 2d 677 (1992) .......................................... 25 9 10 People v. Lewis, 46 Cal. 4th 1255, 96 Cal. Rptr. 3d 512 (2009) ................................... 25 11 People v. Marsden, 2 Cal.3d 118, 84 Cal. Rptr. 156 (1970) ....................................... 104 12 Perry v. Leeke, 488 U.S. 272, 109 S. Ct. 594, 102 L. Ed. 2d 624 (1989) ................... 121 13 Phillips v. Woodford, 267 F.3d 967 (9th Cir. 2001) ........................................................ 9 14 Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) .......................................................... 70 15 16 Richard v. Quarterman, 566 F.3d 553 (5th Cir. 2009) ............................................ 13, 14 17 Riel v. Ayres, No. 2:01-cv-00507-LKK-KJM (E.D. Cal. Filed Mar. 14, 2001) .......... 246 18 Riggins v. Nevada 504 U.S. 127, 112 S. Ct. 1810, 118 L. Ed. 2d 479 (1992) ..................... 114, 115, 118 19 20 Riley v. Payne, 352 F.3d 1313 (9th Cir. 2003) ................................................ 55, 56, 141 21 Robinson v. Schriro, 595 F.3d 1086 (9th Cir. 2010) ................................................... 151 22 Rompilla v. Beard 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005) ................................ passim 23 24 Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) ............... 245 25 Saffles v. Parks, 494 U.S. 484, 110 S. Ct. 1257, 108 L.Ed.2d 415 (1990).................. 216 26 Sanders v. Ratelle, 21 F.3d 1446 (9th Cir.1994) .................................................... passim 27 Sassounian v. Roe, 230 F.3d 1097 (9th Cir. 1999) ...................................................... 221 28 viii MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Schriro v. Landrigan 550 U.S. 465, 127 S. Ct 1933, 167 L. Ed. 2d 836 (2007) ................................ 5, 6, 10 2 3 Scott v. Schriro, 567 F.3d 573 (9th Cir. 2009) ................................................................ 4 4 Seidel v. Merkle, 146 F.3d 750 (9th Cir. 1998) ............................................................. 48 5 Sell v. United States 539 U.S. 166, 123 S. Ct 2174, 156 L. Ed. 2d 197 (2003) .............................. 115, 116 6 7 Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990) .................................................. 108 8 Smith v. Stewart, 189 F.3d 1004 (9th Cir. 1999) ......................................................... 134 9 Stanley v. Cullen, ___ F.3d ___, 2011 WL 285218, 11 Cal. Daily Op. Serv. (9th 10 Cir. Jan. 31, 2011)..................................................................................................... 97 11 Stanley v. Schriro, 598 F.3d 612 (9th Cir. 2010) ........................................................... 92 12 Steinsvik v. Vinzant, 640 F.2d 949 (9th Cir. 1981) ........................................................ 98 13 Strickland v. Washington 14 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) .................................. passim 15 Sullivan v. Louisiana 16 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) ....................................... 78 17 Summerlin v. Schriro, 427 F.3d 623 (9th Cir. 2005) ................................... 123, 134, 201 18 Tanner v. United States, 483 U.S. 107, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987)......... 53 19 Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997)............................... 25, 26, 53, 77 20 21 Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963) .................. 5, 92 22 Turner v. Duncan, 158 F.3d 449 (9th Cir. 1998)........................................................... 25 23 Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965)............... 217 24 United States v. Bagley 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) ............................. 86, 89, 92 25 26 United States v. Barnett, 703 F.2d 1076 (9th Cir. 1983) ............................................. 228 27 United States. v. Hernandez-Vasquez, 513 F.3d 908 (9th Cir. 2008).......................... 115 28 ix MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 United States v. Howard, 381 F.3d 873 (9th Cir. 2004) .............................................. 105 2 United States v. Molina, 934 F.2d 1440 (9th Cir. 1991) ............................................... 79 3 United States v. Olano, 62 F.3d 1180 (9th Cir. 1995) ................................................. 228 4 United States v. Ruiz-Gaxiola, 623 F.3d 684 (9th Cir. 2010)...................................... 121 5 United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L.Ed.2d 1 (1985) ................ 216 6 7 Walker v. True, 399 F.3d 315 (4th Cir. 2005) ............................................................. 231 8 Wallace v. Stewart, 184 F.3d 1112 (9th Cir.1999) ...................................................... 202 9 Wellons v. Hall, __ U.S. __, 130 S. Ct. 727, ___ L. Ed. 2d ___ (2010) ...................... 6, 7 10 White v. McAninch, 235 F.3d 988 (6th Cir. 2000)......................................................... 65 11 Wiggins v. Smith 12 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) ....................... 11, 138, 201 13 Williams v. Ryan, 623 F.3d 1258 (9th Cir. 2010) .................................................... 89, 95 14 Williams v. Taylor 15 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) ............................. 138, 201 16 Williams v. Taylor, 529 U.S. 420, 120 S. Ct. 1479, 146 L. Ed. 2d 435 (2000) ........... 7, 9 17 Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004) ...................................................... 4 18 19 Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997) ................................................. 108 20 Wilson v. Gaetz, 608 F.3d 347 (7th Cir. 2010) ............................................................ 120 21 Wilson v. Summers, 536 F.3d 1064 (10th Cir. 2008)................................................... 137 22 Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983) ................ 245 23 CONSTITUTIONAL PROVISIONS 24 U.S. Const., Amend. V ........................................................................................... passim 25 26 U.S. Const., Amend. VI .......................................................................................... passim 27 U.S. Const., Amend. VIII ....................................................................................... passim 28 U.S. Const., Amend. XIV ....................................................................................... passim x MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 STATUTES 2 28 U.S.C. § 2254 ..................................................................................................... passim 3 1977 Cal. Stat. 1255-66. .............................................................................................. 247 4 Cal. Evid. Code § 352 .................................................................................................... 64 5 Cal. Evid. Code § 402 .................................................................................................... 42 6 Cal. Evid. Code § 452 .................................................................................................... 39 7 8 Cal. Evid. Code § 453 .................................................................................................... 39 9 Cal. Evid. Code § 1101 .................................................................................................. 59 10 Cal. Penal Code § 25 ................................................................................................ 47, 49 11 12 Cal. Penal Code § 189 .................................................................................................. 247 Cal. Penal Code § 190.2 ............................................................................... 247, 248, 249 13 14 Cal. Penal Code § 190.3 .......................................................................................... passim 15 Cal. Penal Code § 190.4 ................................................................................................. 72 16 Cal. Penal Code § 987.9 ............................................................................................... 102 17 Cal. Penal Code § 1054.9 ........................................................................................... 8, 87 18 Cal. Penal Code § 1203.03 ........................................................................................... 192 19 Cal. Penal Code § 1368 ................................................................................ 107, 108, 112 20 Cal. Penal Code § 1376 ........................................................................................ 232, 233 21 22 OTHER AUTHORITIES 23 American Association on Intellectual and Developmental Disabilities, Intellectual Disability: Definition, Classification, And Systems Of Supports 24 (11th ed. 2010) ................................................................................................ 232, 235 25 American Association on Mental Retardation, Mental Retardation: Definitions, 26 Classification, And Systems Of Supports (9th ed. 1992) ........................................ 231 27 American Association on Mental Retardation, Mental Retardation: Definitions, 28 Classification, And Systems Of Support (10th ed. 2002)........................................ 232 xi MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989 ed.) ............................................... 11, 13, 137 2 3 American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003 ed.) ............................................... 11, 13, 137 4 American Psychiatric Association, Diagnostic and Statistical Manual of Mental 5 Disorders (4th ed. 2000) ......................................................................... 232, 234, 235 6 Fed. R. Evid. 606(b) ............................................................................................... 53, 223 7 James R. Flynn, The Mean IQ of Americans: Massive Gains 1932 to 1978, 95 8 Psychological Bulletin at 29 (1984) ...................................................................... 233 9 James R. Flynn, Massive IQ gains in 14 Nations: What IQ Tests Really Measure, 10 101 Psychological Bulletin at 171 (1987) 11 James R. Flynn, IQ Gains Over Time, Encyclopedia of Human Intelligence 617 12 (R. J. Sternberg ed. New York MacMillan 1994) .................................................. 233 13 James R. Flynn, Searching for Justice: The Discovery of IQ Gains Over Time, American Psychologist 54 (1999) .......................................................................... 233 14 15 National Research Council, DNA Technology In Forensic Science (1992) .................. 39 16 17 18 19 20 21 22 23 24 25 26 27 28 xii MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 INTRODUCTION 3 Petitioner requests that this Court grant his motion for an evidentiary hearing to 4 fully develop the facts presented in support of his federal habeas claims of ineffective 5 assistance of counsel, suppression of evidence, competency to stand trial, involuntary 6 medication, juror misconduct, and ineligibility for the death penalty. Petitioner is 7 entitled to an evidentiary hearing because he was not afforded the opportunity to 8 develop or prove these claims in state court. 9 documentary evidence in support of these claims, requesting discovery and a hearing, 10 the California Supreme Court denied the state habeas corpus petitions without any 11 factual development, findings, or legal conclusions. Despite submitting substantial 12 Respondent failed to answer petitioner’s allegations in any meaningful way, 13 thereby creating factual disputes between the parties. With regard to petitioner’s 14 factual allegations in each of his thirty claims in the Petition for Writ of Habeas Corpus 15 by a Prisoner in State Custody (28 U.S.C. § 2254) (“Petition”), Doc. 26, filed Mar. 10, 16 2010, respondent repeats the generic phrase “As to the factual allegations made in 17 support of Claim [ ], Respondent denies or lacks sufficient knowledge to admit or 18 deny, every allegation; alternatively, Respondent denies that the alleged facts, if true, 19 entitle Petitioner to federal habeas relief.” (Answer to Petition for Writ of Habeas 20 Corpus (“Answer”) at 22, 23, 25, 26, 28, 29, 31, 33, 35, 37, 38, 41, 42, 45, 47, 48, 50, 21 51, 53, 54, 56, 58, 60, 61, 63, 65, 67, 69, 71, & 72), Doc. 28, filed Apr. 6, 2010.) 22 Petitioner was charged with first degree murder, with special circumstances of 23 burglary, rape and robbery, and those felonies as separate counts. The state also 24 charged petitioner with the use a deadly weapon and with serving a prior prison term. 25 If granted a hearing, petitioner is prepared to present evidence that his first-degree 26 murder conviction and sentence of death were obtained in violation of his 27 constitutional rights. 28 1 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Petitioner will present evidence that his actions on the night of Mrs. Julia 2 Miller’s murder were the product of a serious mental illness, which was central to his 3 defense at trial. Trial counsel, Fred Manaster, retained a mental health expert to opine 4 on petitioner’s sanity at the time of the offense, but presented no mental state evidence 5 during the guilt phase. Evidence of petitioner’s mental illness came solely from 6 petitioner himself, although he was likely incompetent to stand trial at the time. 7 (Notice of Lodging (“NOL”) C2 Ex. 154 at 2754.)1 Due to his multiple mental 8 illnesses, petitioner could not recall the events on the night of the murder and had no 9 memory of having sexual intercourse with the victim. (22 Reporter’s Transcript (RT) 10 3336.) Trial counsel nonetheless conceded the rape charge during his closing 11 arguments. (31 RT 4688.) With no explanation provided for why petitioner had acted 12 the way he did on the night of the murder, the jury convicted petitioner of first degree 13 murder and rape. It also found the rape special circumstance, the allegations that 14 defendant personally used a deadly weapon to commit the crimes, and that he had 15 served a prior prison term as true. 16 Trial counsel’s presentation in the penalty phase was similarly deficient. 17 Petitioner’s family and their medical, school, and social service records; petitioner’s 18 friends; and petitioner’s mental health experts all possessed compelling, mitigating 19 evidence. These people and records graphically set forth the abusive environment in 20 which petitioner was raised. They explain how the trauma, sexual abuse, and physical 21 and emotional neglect petitioner suffered made him noticeably different from other 22 children his age. They also vividly demonstrate the progression of petitioner’s mental 23 illness. 24 Unfortunately, petitioner’s jury did not hear this compelling evidence. The 25 incomplete picture of petitioner’s life that the jury received failed to give the jury a 26 27 28 1 Respondent lodged petitioner’s exhibits to the state petition for habeas corpus in this Court on April 26, 2010. (Doc. 29.) In this Motion, these supporting exhibits are cited as “NOL C2 Ex. .” 2 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 sense of how petitioner’s lifelong mental illness and intellectual disabilities profoundly 2 affect his day-to-day functioning, including deficits in memory, attention, 3 concentration, judgment, self-awareness, misperception of social expectations, 4 problem-solving abilities, planning, and organizing and sequencing. Most importantly, 5 the jury did not hear how petitioner’s mental illness created two people: the person his 6 friends and family knew to be kind, gentle, soft-spoken, and shy, and the other person 7 his victims encountered when he entered a dissociative state. As a result, jurors were 8 left with the impression that petitioner’s childhood was “not that bad” (NOL C2 Ex. 9 127 at 2565), and that there was no compelling reason to vote for life. (NOL C2 Ex. 10 11 12 133 at 2645). As set out in more detail below, petitioner is entitled to an evidentiary hearing to further develop the factual record and to show that relief is required. 13 14 RELEVANT PROCEDURAL HISTORY 15 On April 7, 1995, petitioner was sentenced to death in Los Angeles County. On 16 March 17, 2003, the California Supreme Court issued its opinion in petitioner’s direct 17 appeal, affirming the judgment in its entirety. People v. Jones, 29 Cal.4th 1229, 131 18 Cal.Rptr.2d 468 (2003). Petitioner filed a timely petition for writ of certiorari on May 19 23, 2003 in the United State Supreme Court, which the Court denied on October 14, 20 2003. Jones v. California, 540 U.S. 952, 124 S. Ct. 395, 157 L .Ed. 2d 286 (2003). 21 Petitioner filed petitions for writ of habeas corpus with the California Supreme Court 22 on October 21, 2002 (case number S110791) (NOL C.1) and October 16, 2007 (case 23 number S159235) (NOL D.1). On March 11, 2009, the California Supreme Court 24 denied petitioner’s writs of habeas corpus (NOL C7 & D6). 25 On March 10, 2010, petitioner filed a Petition for Writ of Habeas Corpus by a 26 Prisoner in State Custody (28 U.S.C. § 2254) (Doc. 26). Respondent filed an Answer 27 on April 6, 2010. (Doc 28). The parties submitted a joint briefing schedule on April 8, 28 2010. (Doc. 30). Pursuant to this Court’s June 8, 2010 order (Doc. 43), the parties met 3 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 and conferred regarding discovery. The parties were unable to reach an agreement 2 regarding discovery, but agreed to resolve discovery disputes after the motion for an 3 evidentiary hearing has been resolved. The parties further agreed to adhere to the 4 briefing schedule as previously outlined in the April 8, 2010 joint stipulation. (Doc. 5 46.) In accordance with this Court’s Order, filed February 2, 2011, petitioner submits 6 this motion. 7 I. STANDARD FOR GRANTING AN EVIDENTIARY HEARING. 8 9 An evidentiary hearing is required if petitioner “(1) has alleged facts that, if 10 proven, would entitle him to habeas relief, and (2) he did not receive a full and fair 11 opportunity to develop those facts [.]” Williams v. Woodford, 384 F.3d 567, 586 (9th 12 Cir. 2004); see also Scott v. Schriro, 567 F.3d 573, 583 (9th Cir. 2009). Because the 13 Petition was filed after the effective date of the Anti-Terrorism and Death Penalty Act, 14 see 28 U.S.C. § 2254, petitioner’s entitlement to an evidentiary hearing is also 15 dependent on whether he diligently developed the factual basis of his claims in state 16 court. Id. at §2254(e)(2). In Section I.B., infra, petitioner addresses the substantive 17 standard as it applies to each of his claims by establishing that the “alleged facts . . . 18 entitle him to habeas relief,” Williams v. Woodford, 384 F.3d at 586. In this Section, 19 petitioner sets for the basis for concluding that he was diligent in developing the 20 factual record in the state court, despite the California Supreme Court’s refusal to 21 afford him “a full and fair opportunity to develop” the facts or resolve any factual 22 disputes. 23 A. The State Court’s Fact-Finding Procedures Were Defective. 24 With each state petition, petitioner requested that the state court “order an 25 evidentiary hearing at which petitioner [could] offer this and further proof in support of 26 the allegations herein,” and requested leave to conduct discovery to more fully develop 27 the factual basis for the claims of error. (Notice of Lodging (“NOL”) C1 at 427; D1 at 28 // 4 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 18.) The state court denied petitioner’s request for an evidentiary hearing, (see NOL 2 B7; C6), and failed to address his request for leave to conduct discovery.2 3 The state court’s failure to “afford [petitioner] a full and fair hearing,” Townsend 4 v. Sain, 372 U.S. 293, 313, 83 S. Ct. 745, 757, 9 L. Ed. 2d 770 (1963) overruled on 5 other grounds in Keeney v. Tamayo-Reyes, 504 U.S. 1, 5, 112 S. Ct. 1715, 1717, 118 6 L. Ed. 2d 318 (1992), resulted in “an unreasonable determination of the facts” which 7 thus allows “the federal court [to] independently review the merits of that decision by 8 conducting an evidentiary hearing.” Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 9 2005). 10 Respondent does not deny that the state court failed to extend the benefit of full 11 and fair factual development through an evidentiary hearing; however, he does assert 12 that unless petitioner’s claims “be adjudicated on the basis of the record before the 13 California Supreme Court” an evidentiary hearing will “render his claim unexhausted, 14 and a sound application of § 2254(d) impossible.” (Doc. 28, filed Apr. 6, 2010, at 22; 15 see also, e.g., id at 31-32, 41, 48-49, 56-57, 61-62, 69-70.) Respondent’s argument, 16 which relies on the United States Supreme Court’s holdings in Holland v. Jackson, 542 17 U.S. 649, 542 U.S. 934, 124 S. Ct. 2736, 159 L. Ed. 2d 683 (2004), and Schriro v. 18 Landrigan, 550 U.S. 465, 474, 127 S. Ct 1933, 1940, 167 L. Ed. 2d 836 (2007)), fails 19 for two reasons. First, and most simply, neither case supports respondent’s argument. 20 Unlike here, the petitioner in Holland v. Jackson was granted a hearing in state court 21 and given the opportunity to fully develop the factual record. 542 U.S. at 650, 124 S. 22 Ct. at 2736-37, 159 L. Ed. 2d 683. Similarly, respondent’s reliance on Landrigan is 23 misplaced. 24 petitioner to “more fully develop the factual basis of his claim” would render that The Landrigan Court did not address the proposition that allowing 25 2 26 27 28 Petitioner attempted to alert the state court to the immediate need for the preservation of witness testimony in his second petition, through allegations that described the increasing unavailability of declarant witnesses. (NOL D1 at 11-17.) Petitioner was informed by court staff that these allegations were not allowed in his pleading and must be removed. (NOL D5 at 2 n.1.) 5 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 claim unexhausted (Doc. 28 at 22; see also, e.g., id at 31-32, 41, 48-49, 56-57, 61-62, 2 69-70). To the contrary, the Landrigan Court held that the district court did not abuse 3 its discretion by deciding that, even by expanding the factual record through an 4 evidentiary hearing, petitioner “could not develop a factual record that would entitle 5 him to habeas relief.” 550 U.S. at 475, 127 S. Ct. at 1940, 167 L. Ed. 2d. 6 Second, respondent’s argument fails because the United States Supreme Court 7 recently explained why its prior decision in Holland cannot be interpreted to mean that 8 “a proper application of § 2254(d) requires that the claim be adjudicated on the basis of 9 the record before the California Supreme Court.” (Doc. 28 at 22; see also, e.g., id at 10 31-32, 41, 48-49, 56-57, 61-62, 69-70). Contrary to respondent’s interpretation of 11 Holland, the Court in Wellons v. Hall, __ U.S. __, 130 S. Ct. 727, ___ L. Ed. 2d ___ 12 (2010), clearly explained the unfair catch-22 situation that results from respondent’s 13 interpretation: 14 Indeed, it would be bizarre if a federal court had to defer to state-court 15 factual findings, made without any evidentiary record, in order to decide 16 whether it could create an evidentiary record to decide whether the factual 17 findings were erroneous. If that were the case, then almost no habeas 18 petitioner could ever get an evidentiary hearing: So long as the state court 19 found a fact that the petitioner was trying to disprove through the 20 presentation of evidence, then there could be no hearing. AEDPA does not 21 require such a crabbed and illogical approach to habeas procedures[.] 22 Id. at 730 n.3. The state court’s defective fact-finding procedures deprived petitioner the 23 24 opportunity to fully and fairly develop the factual basis for his claims in state court. 25 // 26 // 27 // 28 // 6 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC B. Petitioner Was Diligent in Developing the Factual Bases for Each Claim 1 for Relief. 2 3 Each of the claims in this Motion (and the Petition) was fairly presented to the 4 state court (see Doc. 30, filed Apr. 8, 2010, at 2).3 Regardless, respondent asserted 5 with respect to every claim that petitioner “failed to exercise due diligence within the 6 meaning of § 2254(e), and cannot otherwise meet the stringent requirements of § 7 2254(e)(2).” (NOL Doc. 28 at 22; see also, e.g., id at 31-32, 41, 48-49, 56-57, 61-62, 8 69-70.) This assertion, which lacks any factual support, is in error. Despite the state- 9 imposed restrictions on time, money, and access to formal discovery, petitioner 10 diligently developed the factual basis for each of his claims in state court. 11 “Diligence will require in the usual case that the prisoner, at a minimum, seek an 12 evidentiary hearing in state court in the manner prescribed by state law.” Williams v. 13 Taylor, 529 U.S. 420, 437, 120 S. Ct. 1479, 1490, 146 L. Ed. 2d 435 (2000). 14 Petitioner repeatedly requested that the state court order an evidentiary hearing. As 15 discussed above, the state court expressly denied petitioner’s requests for an 16 evidentiary hearing. (NOL C7; D6.) Diligence “depends upon whether the prisoner 17 made a reasonable attempt, in light of the information available at the time, to 18 investigate and pursue claims in state court; it does not depend … upon whether those 19 efforts could have been successful.” Williams v. Taylor, 529 U.S. at 435, 120 S. Ct. at 20 1490, 146 L. Ed. 2d 435. Petitioner, therefore, cannot be penalized for the state court’s 21 refusal to subject his claims to a full and fair fact-finding process, such as an 22 evidentiary hearing. 23 In addition to repeatedly requesting an evidentiary hearing, petitioner repeatedly 24 requested that the state court give him access to routine discovery tools, such as those 25 in the Federal Rules of Civil of Procedure. (See, e.g., NOL C1 at 427; D1 at 11-17, 26 27 28 3 These claims were denied solely on the merits, with the exception of a single Brady sub-claim. (NOL C7, D6.) The state court purported to procedurally bar this sub-claim with the explanation that it could have been but was not raised on appeal. (NOL C7.) 7 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 18.) The state court ignored his requests for greater factual development through 2 formal discovery procedures. (See NOL C7; D6.) Petitioner timely availed himself of the significantly less rigorous statutorily 3 4 available post-conviction discovery. 5 Petitioner filed his first motion for post-conviction discovery in the California Supreme 6 Court soon after filing his first informal reply and prior to the California Supreme 7 Court’s opinion in In re Steele, 32 Cal. 4th 682, 10 Cal. Rptr. 3d 536 (2004), the 8 opinion that first interpreted the scope of the post-conviction statute. (NOL F4.) 9 Respondent’s assertion that petitioner was not diligent in state court belies the facts: 10 the trial court granted petitioner’s discovery motion; petitioner was engaged in post- 11 conviction discovery with respondent for over five years; petitioner spent the vast 12 majority of that time waiting and repeatedly inquiring on the status of discovery 13 requests. (See NOL D1 at 1-3; D5 at 5-8.) Because the state took so long to complete 14 discovery, 15 unconstitutional failure to disclose material exculpatory evidence, prior to the close of 16 post-conviction discovery, a claim that arose out of the post-conviction discovery 17 proceedings. 18 discovery only because he was concerned about protecting his right to federal court 19 review of that claim. (NOL D5 at 6-7.) 4 Petitioner diligently attempted to develop the 20 basis of his claims in state court, despite the state’s dilatory tactics and failures to 21 promptly heed the trial court’s discovery order. petitioner filed his Cal. Penal Code § 1054.9 (West 2011). second petition, alleging the prosecution’s Petitioner filed his second petition prior to the close of the state 22 To the extent petitioner was unable to develop the factual basis for his claims in 23 state court, he was unable to do so despite diligent effort. Section 2254(e), therefore, 24 25 26 27 28 4 Petitioner did not know when the state court would rule on his first petition. Since petitioner believed he had to supplement his first petition with the additional post-conviction discovery claims, he was concerned that if the state court ruled on his first petition prior to the filing of any claims that arose out of post-conviction discovery, the additional claims may be deemed to be procedurally barred from both state and federal court review. (Id.) 8 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 does not bar petitioner’s entitlement to an evidentiary hearing. Williams v. Taylor, 529 2 U.S. at 437, 120 S. Ct. at 1491, 146 L. Ed. 2d 435. C. Petitioner Is Entitled to an Evidentiary Hearing on Each of His Claims 3 Presented in This Motion. 4 5 The Ninth Circuit has repeatedly held that alleging a colorable claim for relief is 6 a “low bar.” Earp v. Ornoski, 431 F.3d at 1169; see Phillips v. Woodford, 267 F.3d 7 967, 979 (9th Cir. 2001) (the requirement for obtaining an evidentiary hearing is “far 8 less onerous” than establishing entitlement to habeas relief). Establishing a colorable 9 claim for relief does not require that petitioner prove each element of the claim. Earp 10 v. Ornoski, 431 F.3d at 1169. A colorable claim for relief requires only that petitioner 11 “allege specific facts which, if true, would entitle him to relief.” Id. at 1167 n.4 (inner 12 quotation omitted). Petitioner has, at a minimum, alleged a colorable claim for relief 13 for each of the claims and sub-claims in the Motion. Thus, petitioner has established 14 his entitlement to an evidentiary hearing on the claims presented in this Motion. 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 9 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 II. PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING ON 2 CLAIM ONE: TRIAL COUNSEL RENDERED PREJUDICIALLY 3 INEFFECTIVE ASSISTANCE OF COUNSEL IN THE GUILT PHASE. 4 The Petition sets forth detailed factual allegations at pages 21 to 92 that 5 petitioner was deprived of the effective assistance of counsel throughout the planning, 6 development, investigation and presentation of the evidence in the guilt phase in 7 violation of his Sixth Amendment right to counsel. As detailed in the Petition, trial 8 counsel unreasonably made momentous decisions based on little or no investigation or 9 expert consultation. As a result, he unreasonably failed to present readily available 10 defenses to the capital charges or challenge the prosecution’s evidence, witnesses, 11 theory of the case, or misconduct. Moreover, trial counsel unreasonably allowed the 12 jury to be instructed with inadequate and incomplete guilt phase instructions and to be 13 given misleading and incomplete verdict forms. Trial counsel has admitted that he had 14 no tactical reason for performing below the standard of care in several instances (see 15 NOL C2 Ex. 12 at 106-10; NOL C2 Ex. 150 at 2730-32; NOL D1 Ex. 181 at 3161). In 16 light of the lack of evidence of rape, felony murder rape, or the rape special 17 circumstance against petitioner, counsel’s deficient performance was prejudicial. 18 Despite trial counsel’s admissions and the voluminous exhibits supporting this 19 claim, respondent has failed to admit or deny any of the facts alleged in the Petition. 20 (See, e.g., Doc. 28, filed Apr. 6, 2010 at 4 (“Respondent denies, or lacks sufficient 21 knowledge to admit or deny, every factual allegation made in support of Petitioner’s 22 thirty claims for relief (including all subclaims)”.) Petitioner, therefore, requests an 23 evidentiary hearing on this claim, since respondent has placed in issue the facts upon 24 which it relies. 25 Petitioner is entitled to a hearing on Claim One if the allegations demonstrate “a 26 colorable claim” that trial counsel’s representation was deficient and prejudicial. 27 Schriro v. Landrigan, 550 U.S. 465, 468, 127 S. Ct. 1933, 1937, 167 L. Ed. 2d 836 28 (2007). A petitioner is entitled to relief based on an ineffective assistance of counsel 10 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 claim by demonstrating that: (1) counsel’s representation fell below an objective 2 standard of reasonableness, and (2) but for counsel’s unprofessional errors, there is a 3 reasonable probability that petitioner’s jury would not have convicted him of the rape 4 or felony murder rape charges, found true the rape special circumstance, or sentenced 5 him to death. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 6 L. Ed. 2d 674 (1984). Trial counsel’s performance must be judged by the prevailing 7 standard of care exercised by capital defense attorneys. Id. at 688 (“The proper 8 measure of attorney performance remains simply reasonableness under prevailing 9 professional norms.”); see also Rompilla v. Beard, 545 U.S. 374, 380, 125 S. Ct. 2456, 10 2469, 162 L. Ed. 2d 360 (2005) (“[C]ounsel’s function, as elaborated in prevailing 11 professional norms, is to make the adversarial testing process work in the particular 12 case.”).5 A reasonable probability of a different result is one that is “sufficient to 13 undermine confidence in the outcome actually reached” at trial. Rompilla, 545 U.S. at 14 393, 125 S. Ct. at 2469 (inner quotation omitted). At an evidentiary hearing on this Claim, petitioner will present the following 15 16 evidence in support of the following: 17 // 18 // 19 // 20 // 21 5 22 23 24 25 26 27 28 The American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases are “standards to which [the United States Supreme Court] long ha[s] referred as ‘guides to determining what is reasonable.’” Wiggins v. Smith, 539 U.S. 510, 524, 123 S. Ct. 2527, 2537, 156 L. Ed. 2d 471 (2003); Strickland, 466 U.S. at 688; see also American Bar Association (ABA) Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989) (“1989 ABA Guidelines”); ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (rev. 2003) (“2003 ABA Guidelines”). At the evidentiary hearing, petitioner also intends to establish the prevailing norms through expert testimony. See, e.g., Declaration of James Thomson, attached as Exhibit (“Ex.”) D; Declaration of Quin Denvir, Ex. E. 11 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 A. Trial Counsel Unreasonably and Prejudicially Failed to Investigate, 2 Develop, and Present Compelling Expert and Lay Witness Testimony 3 Concerning Petitioner’s Mental State at the Time of the Crime. 4 After he “review[ed] the reports of Mr. Jones’s two prior offenses,” trial counsel 5 understood that petitioner was mentally ill, and that petitioner’s serious mental illness 6 “had to be the crux of the defense to the charged crimes.” (NOL C2, Ex. 12 at 107.) 7 Indeed, trial counsel understood that evidence concerning petitioner’s mental health 8 history “was vital to demonstrate that [petitioner] was incapable of forming the 9 specific intent required for the rape special circumstance, which was my sole defense 10 to the capital murder charge.” (NOL C2 Ex. 12 at 107.) 11 Despite this recognition, trial counsel unreasonably failed to present the 12 testimony of a mental health expert to explain petitioner’s serious mental illnesses, the 13 effect they had on his functioning, and the important connection between petitioner’s 14 mental health history, family background, and mental state at the time of the crime. 15 See, e.g., Daniels v. Woodford, 428 F.3d 1181 (9th Cir. 2005) (counsel ineffective for 16 failing to present evidence of petitioner’s mental illness at the guilt phase). Trial 17 counsel similarly failed to present any testimony from lay witnesses and any 18 documentary evidence to describe petitioner’s life-long struggle with brain dysfunction 19 and mental illness. Id. Counsel’s failure to investigate, develop, and present lay and 20 expert witness testimony to corroborate and explain petitioner’s severely compromised 21 mental functioning, and intensifying mental illness, that resulted in a psychotic break 22 at the time of the crime, was patently unreasonable and well below the standard of care 23 for any criminal defense attorney. See Strickland v. Washington, 466 U.S. at 691, 104 24 S. Ct. at 2066, 80 L. Ed. 2d 674 (“counsel has a duty to make reasonable 25 investigations”); Jennings v. Woodford, 290 F.3d 1006 (9th Cir. 2002) (triggering facts 26 put counsel on notice to investigate mental health issues when defending against first 27 degree murder charge); 1989 ABA Guideline 11.4.1(A) (“[c]ounsel should conduct 28 independent investigations relating to the guilt-innocence phase and to the penalty 12 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 phase of a capital trial. Both investigations should begin immediately upon counsel’s 2 entry into the case and should be pursued expeditiously.”). 3 As demonstrated below and in the Petition at pages 22-37, petitioner has stated a 4 colorable claim for relief as a result of trial counsel’s unreasonable failure to 5 reasonably investigate and challenge the rape and felony murder rape charges and the 6 special circumstance allegations. 1. 7 Trial Counsel’s Failure To Develop And Present Lay and Expert Mental State Evidence Was Objectively Unreasonable. 8 9 Reasonably competent counsel, aware of petitioner’s severe and longstanding 10 mental illness, would have timely hired, consulted, and presented the testimony of a 11 mental health expert who could have explained to the jury how petitioner’s severe 12 mental illness affected his actions the night of the crime. See, e.g., Bloom v. Calderon, 13 132 F.3d 1267, 1271 (9th Cir. 1997) (“The complete lack of effort by Bloom’s trial 14 counsel to obtain a psychiatric expert until days before trial, combined with counsel’s 15 failure to adequately prepare his expert and then present him as a trial witness, was 16 constitutionally deficient performance.”); see also 1989 ABA Guidelines, Commentary 17 to Guideline 11.4.1 (“The assistance of one or more experts (e.g., social worker, 18 psychologist, psychiatrist, investigator, etc.) may be determinative as to outcome, as 19 set out in Guideline 11.4.1(a) and 11.4.1(7).”); see also 2003 ABA Guidelines, 20 Commentary to Introduction (“In particular, mental health experts are essential to 21 defending capital cases.”). 22 interviewed and presented the testimony of family, friends, and other witnesses who 23 could attest to petitioner’s compromised mental health and his increasingly 24 deteriorating mental state around the time of the crime. 25 Quarterman, 566 F.3d 553, 570-71 (5th Cir. 2009) (finding prejudicially deficient 26 performance when counsel failed to interview important prosecution witnesses prior to 27 trial and spoke with some witnesses for the first time in the courthouse on the day of 28 trial). Similarly, reasonably competent counsel would have See, e.g., Richard v. 13 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Trial counsel, however, presented neither expert testimony nor lay witnesses 2 during the guilt phase of petitioner’s trial. Indeed, the only evidence presented to the 3 jury about petitioner’s severe and untreated mental illness in the guilt phase came from 4 petitioner’s own psychosis-influenced testimony about the night of the offense. He 5 testified that at a moment of stressful confrontation with the victim, who had 6 threatened him with a knife and a rifle, he heard a voice say ‘“give it to me.”’ (22 RT 7 3333-35.) At that point, he experienced a flashback of seeing his mother in bed with 8 another man. (Id. at 3335.) As petitioner wielded a knife, he blacked out. He awoke 9 crying, curled up in the fetal position, next to the victim. (Id.) Later that evening, 10 when petitioner drove towards the hills, he heard voices telling him “they” were going 11 to kill him. (Id. at 3344.) With the voices telling him “they’re going to kill you, 12 they’re going to kill you,” petitioner shot himself point blank in the chest, in a frantic 13 suicide attempt. (Id. at 3345.) This was the sum of petitioner’s memory, and he was 14 unable to offer any insight into what had triggered this unusual series of events. (Id. at 15 3335-36; NOL C2 Ex. 178 at 3150.) Petitioner’s lack of memory and insight are not 16 surprising from a mental health perspective. 17 damning to a jury that was not given any basis with which to assess whether 18 petitioner’s experience was plausible.6 However, these deficiencies were 19 20 21 22 23 24 25 26 27 28 6 During petitioner’s testimony, the trial court erroneously ruled that petitioner could only testify to certain mental health events, including any prior counseling and medication during 1992, but that he was not permitted to testify as to his background and mental health history. (22 RT 3358-60.) Reasonably competent counsel would have sought to mitigate the effects of a trial court ruling that “gutted [his] only defense to the charge of capital murder.” (NOL C2 Ex. 12 at 109.) Despite the importance of this testimony, trial counsel admits that he “did not consider putting lay witnesses on the stand to testify to Mr. Jones’s background and to previous instances in which Mr. Jones had entered a previous trance-like state.” (Id. at 107-08.) Trial counsel’s admission that he did not even consider putting lay or expert witnesses on the stand to testify to petitioner’s mental health history and current mental illness is confirmed by his unreasonable failures to request clarification of the trial court’s ruling. Counsel unreasonably failed to determine whether the ruling barring testimony by petitioner about his mental health equally applied to the presentation of other lay witness 14 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC a. 1 Counsel Unreasonably Failed to Consult And Present Expert Witnesses. 2 3 Reasonably competent counsel would have presented expert witness testimony 4 about petitioner’s mental state at the time of the crime in the guilt phase. See, e.g., 5 Bloom, 132 F.3d at 1277 (counsel ineffective for hiring guilt phase mental state expert 6 days before trial and failing to adequately prepare him for mental state defense). In 7 several respects, trial counsel failed to represent petitioner in accordance with this 8 standard of care.7 9 Trial counsel hired a mental health expert, Claudewell Thomas, M.D., to 10 evaluate petitioner, with respect to his mental state at the time of the crime, among 11 other things. (NOL C2 Ex. 154 at 2748.) Dr. Thomas found that petitioner suffered a 12 psychotic break at the time of the crime and as a result he was unable to control his 13 actions. 14 testimony only at the penalty phase of petitioner’s trial and thus the jury was unaware 15 of this vital mental state testimony during its guilt phase deliberations. Trial counsel 16 had no informed strategic reason not to present this evidence during the guilt phase, as 17 counsel admits: (30 RT 4433-35.) Inexplicably, trial counsel presented Dr. Thomas’s 18 I did not present a mental health expert during the guilt phase in addition to 19 Mr. Jones’s testimony . . . I had no second mental health expert ready or 20 available to testify in the guilt phase. I had no strategic reason for failing to 21 have a second mental health expert ready to testify in the guilt phase. 22 23 24 25 26 27 28 (NOL C2 Ex. 150 at 2732.) testimony (22 RT 3353-58); and, he failed to request clarification as to whether the ruling equally applied to the presentation of other lay witness testimony that could corroborate petitioner’s permissible testimony. (Id. at 3359-69.) Finally, trial counsel failed to request a continuance in light of the trial court’s ruling to obtain the services and present the testimony of an expert witness. 7 Section VI concerning petitioner’s right to a hearing on Claim 16 provides an indepth discussion of trial counsel’s failure to develop expert testimony for the penalty phase. 15 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Trial counsel’s failure to develop and present expert testimony at the guilt phase 2 stems from his unreasonable failure to retain any mental health expert in the case with 3 sufficient time to make informed, strategic decisions. Trial counsel did not speak or 4 meet with Dr. Thomas until August 1994. (NOL C2 Ex. 154 at 2748.) At that time, a 5 trial date already had been set, and jury selection began on November 30, 1994. (1 6 Clerk’s Transcript (“CT”) 214.) Given the shortness of time, Dr. Thomas was able to 7 interview petitioner only once—in September 1994—before jury selection began. (II 8 Supp. 23 CT 6452.) Dr. Thomas interviewed petitioner again on December 7, 1994, 9 after jury selection began, and he sent to trial counsel a written report on the same date. 10 (30 RT 4435.) Dr. Thomas’s report expounded on petitioner’s lack of insight into his 11 own delusional beliefs and petitioner’s efforts to explain significant and traumatic 12 events in his life by minimizing or normalizing them. (See id. at 4436.) Only after the 13 guilt phase verdict was returned did trial counsel arrange for Dr. Thomas to re- 14 interview petitioner. On February 1, 1995, almost a week after the guilt phase verdict 15 was rendered (2 CT 365-76), trial counsel applied for additional funds so that Dr. 16 Thomas (II Supp. 23 CT 6519-21), could re-interview petitioner in February 1995 (30 17 RT 4529). 18 petitioner the flashback image of his mother and petitioner’s entrance into a trance or 19 dissociative state, a subject trial counsel elicited from petitioner on the stand in the 20 guilt phase. (Id. at 4529.) It was not until this third interview that Dr. Thomas discussed with 21 Moreover, trial counsel unreasonably failed to timely retain and present the 22 testimony of a competent neuropsychologist. Had counsel performed competently, he 23 would have hired a neuropsychologist and provided the expert with sufficient time and 24 information upon which to complete a full evaluation of petitioner’s cognitive 25 functioning. After Dr. Thomas interviewed petitioner, he recommended a battery of 26 neuropsychological testing for petitioner. (NOL C2 Ex. 150 at 2732.) Trial counsel 27 employed the services of William Spindell, Ph.D., but failed to provide him with 28 sufficient time or information to conduct a full and adequate evaluation. (Id.) As a 16 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 result, Dr. Spindell was able to complete only a partial battery of tests on petitioner, 2 before he provided counsel with a report of his findings on November 11, 1994, 3 nineteen days before trial began. (30 RT 4429; NOL C2 Ex. 150 at 2732.) 4 Finally, trial counsel was aware early in the case that petitioner had ingested 5 substantial quantities of alcohol and street drugs on the day of the crime, and that 6 petitioner had a history of aberrant behavior while under the influence of alcohol and 7 drugs. In fact the effect of drugs on petitioner’s behavior the night of the crime was 8 part of the mental state defense. Nonetheless, trial counsel failed to timely consult 9 with a substance abuse expert to conduct a mental state investigation and evaluation. 10 Jennings v. Woodford, 290 F.3d 1006 (reasonable counsel would have investigated 11 mental health and drug-related issues when defending against first degree murder 12 charge). Trial counsel did not retain a substance abuse expert until January 1995, 13 when he requested that the trial court appoint Dr. Ronald Siegel. (II Supp. 23 CT 14 6472.) Trial counsel’s unreasonable delay in consulting with a substance abuse expert 15 precluded the possibility of an adequate evaluation of petitioner. Trial counsel had 16 failed to obtain the wealth of readily available information about petitioner’s drug 17 consumption and history of mental illness and brain dysfunction prior to retaining Dr. 18 Siegel, and he was in trial at the time he retained Dr. Siegel, which left him no time to 19 obtain these vital materials, had he thought to do so. Trial counsel also unreasonably 20 limited Dr. Siegel’s inquiry to that of cocaine ingestion. 21 With respect to each of the three experts that trial counsel did retain, he 22 unreasonably and prejudicially failed to provide them with materials and information 23 necessary to their assessments. Trial counsel failed to provide the experts with basic 24 social history documents and interviews critical to the evaluation of petitioner’s mental 25 state at the time of the crime. (NOL C2 Ex. 154 at 2750, 2756-57.) These materials 26 would have provided the mental health experts a complete, accurate, and reliable 27 description of petitioner’s life history and background. (Id. at 2757 (this material 28 includes, but is not limited to “personal and family medical and vital records; family 17 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 school records, additional jail medical records, Los Angeles County Coroner reports 2 for family members; and … witness declarations from family members, friends and 3 others familiar with Mr. Jones's family”).) 4 Trial counsel told petitioner’s jury that he “felt guilty” for his failure to put on 5 expert testimony in the guilt phase. (31 RT 4681.) Counsel has further conceded that 6 he had no strategic reason for unreasonably failing to investigate, develop, and present 7 expert testimony on petitioner’s mental state at the time of the crime, in the guilt phase 8 of the trial: 9 I did not present a mental health expert during the guilt phase in addition to 10 Mr. Jones’s testimony in spite of the court’s severe, and crucial curtailment 11 of his testimony regarding his mental state during the sexual assault. I 12 argued I had no legal obligation to do so. I had no second mental health 13 expert ready or available to testify in the guilt phase. I had no strategic 14 reason for failing to have a second mental health expert ready to testify in 15 the guilt phase. 16 (NOL C2 Ex. 150 at 2732.) In light of trial counsel’s admissions, any attempt to 17 describe his “conduct as ‘strategic’” renders that term meaningless. Sanders v. Ratelle, 18 21 F.3d 1446, 1456 (9th Cir.1994); see also Bloom v. Calderon, 132 F.3d at 1277. b. 19 Trial Counsel Unreasonably Failed To Develop And Present Lay Witness Testimony. 20 21 Reasonably competent counsel would have presented readily available lay 22 witness testimony about petitioner’s mental state at the time of the crime in the guilt 23 phase. People who knew petitioner and witnessed his mental functioning on a daily 24 basis could have provided substantial accounts of his personal history of impaired 25 functioning, paranoia, delusional beliefs, hallucinations, depression, and dissociative 26 episodes. 27 regarding petitioner’s social and family history including, but not limited to: 28 petitioner’s family history of mental illness; the dysfunctional dynamics of petitioner’s Lay witness testimony could have provided highly relevant evidence 18 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 immediate, maternal and paternal families; the infliction of traumatic physical, 2 psychological, and sexual abuse on petitioner and others in his family; the widespread 3 incidence of chemical dependency by petitioner and his family; and, the traumatic and 4 chaotic environment outside the family home. 5 The trial court ruling that improperly limited petitioner’s testimony “eviscerated 6 [trial counsel’s] sole defense to the one special circumstance for which we had no 7 defense to the charged underlying felony.” (NOL C2 Ex. 12 at 110.) Counsel admits 8 that despite having his “sole defense” to capital murder “eviscerated” he “did not 9 consider requesting a continuance to find lay witnesses . . . to support Mr. Jones’s 10 critical testimony.” (Id.) As such, counsel unreasonably failed to “consider putting lay 11 witnesses on the stand to testify to Mr. Jones’s background and to previous instances in 12 which Mr. Jones had entered a similar trance-like state.” (Id. at 107-08 (emphasis 13 added).) Counsel’s failure to “consider putting lay witnesses on the stand” to support 14 petitioner’s sole defense to capital murder was not, and could not, have been strategic. 15 “Describing [counsel’s] conduct as ‘strategic’ strips that term of all substance.” 16 Sanders v. Ratelle, 21 F.3d at 1456. 17 18 2. Trial Counsel’s Failure To Develop And Present Lay and Expert Mental State Evidence Was Prejudicial. 19 Trial counsel’s decision not to present expert testimony regarding petitioner’s 20 mental state at the time of the crime misled the jury into thinking there was no 21 explanation, or no helpful explanation, for petitioner’s behavior. 22 (prosecution asks during guilt closing: “Where is the psychiatrist who could tell us 23 what his mental state was?”); see also 31 RT 4681 (counsel reminds jury prosecution 24 questioned absence of defense psychiatrist in guilt phase and states he feels guilt for 25 not having put one on).) Petitioner’s testimony alone was insufficient to enable the 26 jury to understand the breadth and consequences of petitioner’s mental impairments. 27 Petitioner’s own mental health expert explained: (26 RT 3905 28 19 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Without the benefit of a mental health expert’s explanation of his 2 recollections and mental state, the jury had no context within which to 3 understand that testimony. The reason for the flashback, its historical 4 origins, and its nexus to the incident all were crucial aspects of a life story 5 that [petitioner] was not equipped to tell. 6 (NOL C2 Ex. 154 at 2753.) 7 Had trial counsel performed reasonably and developed and presented 8 compelling expert testimony at the guilt phase, the jury would have received a 9 coherent, compelling, and expert description of petitioner’s mental functioning and 10 impairments and the effects those impairments had on his behavior at the time of the 11 crime. Absent trial counsel’s deficient performance, the jury would have learned that 12 petitioner’s mental impairments, which are of long-standing etiology and predated the 13 crime, thwarted petitioner’s ability to comprehend events, plan responses, and control 14 his behavior, particularly during stressful situations. (Id. at 2754-55, 2757; NOL C2 15 Ex. 178 at 3156-57.) Trial counsel’s unreasonable failures prevented the jury from 16 including in their guilt phase deliberations Dr. Thomas’s expert opinion that petitioner 17 “was not in control of any of his actions during this incident; at best, he was a 18 spectator, watching someone else act, as if watching a movie of himself. He was 19 therefore not in a position to appreciate the moral quality of his behavior, or 20 distinguish right from wrong[.]” (NOL C2 Ex. 154 at 2755; see also NOL C2 Ex. 178 21 at 3157.) 22 retained a neuropsychologist with sufficient time to perform a thorough evaluation, 23 petitioner’s jury would have been presented with compelling testimony that petitioner 24 suffers from profound impairments, particularly to his frontal lobes. (NOL C2 Ex. 175 25 at 3066-69 (“All of Mr. Jones’s deficits reflect significant signs of brain damage, and 26 all are particularly strong indicators of frontal lobe damage.”).) Moreover, the jury 27 would have heard that petitioner has a full-scale IQ of no higher than 77 (NOL C2 Ex. 28 175 at 3063), which placed him only a few points above the mental retardation range Similarly, had counsel performed reasonably and consulted with and 20 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 (but within the range of consideration for mental retardation), with other intelligence 2 instruments placing him within the mental retardation range (NOL C2 Ex. 125 at 3 2552). 4 Trial counsel’s failure to investigate, develop, and present compelling lay 5 witness testimony about petitioner’s mental state at the time of the crime, which would 6 have necessarily included corroborative historical evidence, was particularly 7 prejudicial. 8 included, at a minimum, the following: Evidence regarding petitioner’s worsening mental state would have 9  Upon his release from prison in 1991, petitioner’s mental condition 10 had deteriorated, and he often behaved bizarrely. (See, e.g., NOL C2 11 Ex. 10 at 97-100; NOL C2 Ex. 21 at 226-27; NOL C2 Ex. 124 at 12 2543-44.) 13  He needed mental health treatment, but he did not have the skills to 14 access it or to cope with his problems on his own, and his family 15 preferred to simply try to avoid upsetting him. (NOL C2 Ex. 135 at 16 2666.) 17  Sometimes, petitioner seemed the same as he had been growing up, 18 polite, sweet, and gentle; he was not bitter about prison, and eager to 19 start out again and make his life better. (NOL C2 Ex. 149 at 2728- 20 29.) Other times, he was depressed, constantly worried about what 21 people thought of him, and convinced that people were out to get 22 him. (NOL C2 Ex. 10 at 97.) 23  He reacted irrationally to everyday situations. (Id.) 24  At times, petitioner’s voice was flat, and his eyes had a glazed, 25 26 27 faraway look. (Id.)  Petitioner was unable to hold down a steady job, and he had trouble interacting with people. (Id. at 97-98; NOL C2 Ex.21 at 226.) 28 21 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1  Even though he was unable to learn the basics required of a car 2 mechanic, his uncle Thomas gave him work at his transmission shop. 3 Petitioner lacked the mental capacity to repair cars, so he was given 4 janitorial jobs and ran simple errands. Petitioner was not given 5 enough work to be around the shop full-time because many of the 6 shop employees thought he was too strange. (NOL C2 Ex. 21 at 7 226-27; NOL C2 Ex. 10 at 97-98.) 8  Petitioner needed support and guidance, but his uncles who worked 9 at the transmission shop, as well as other employees, tried to avoid 10 him by giving him a few dollars, in an effort to try and make him go 11 away. (NOL C2 Ex. 10. at 98.) 12  During the Los Angeles riots, in the summer of 1992, his uncle 13 asked him to help watch over the transmission shop and gave him a 14 gun to do so. (NOL C2 Ex. 10 at 99.) Petitioner dressed up in 15 military attire and marched around the store like a soldier. (Id. at 16 99.) He could not sit still, and when he let other employees in, he 17 opened the gate just a crack, peering around suspiciously to make 18 sure they had not been followed. (Id.) He saluted as they entered, 19 thinking he was at war. The employees in the shop mocked him, but 20 petitioner did not grasp their teasing, and continued to behave as if 21 he were on a military mission. 22 petitioner sat in the shop all night to make sure that the place was not 23 looted or burned down. (NOL C2 Ex. 21 at 227.) Petitioner sat in 24 the dark, for four to five hours at a time, staring out the window. 25 (Id.) (Id.) Each night of the riots, 26  Petitioner’s self-medication with alcohol increased significantly 27 during this period. At one point during the riots, petitioner drank an 28 22 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 entire fifth of whiskey, which seemed to have no effect on him, 2 except that he appeared more withdrawn. (Id.) 3  Up to the day before his arrest, petitioner’s debilitating depression 4 worsened, and he was noticeably suicidal. He told one acquaintance 5 that he had no reason to live, did not care if he lived or died, and that 6 his uncles did not care about him. (NOL C2 Ex. 10 at 99-100.) 7  His paranoia increased, to the point he felt compelled to tape-record 8 telephone conversations. (NOL C2 Ex. 124 at 2544.) He played a 9 taped conversation, for his sister Gloria, of her talking to Pam Miller 10 on the telephone. (Id.) When the tape finished, he instructed Gloria 11 that she was not to talk about him on the telephone. (Id.) Petitioner 12 then sat mutely on Gloria’s couch “staring right through [her] with 13 blank scary eyes.” (Id.) 14 15  Days before the crime, petitioner’s dissociative trances significantly increased. (Id. at 2544; NOL C2 Ex. 10 at 99.) 16  Two days before he was arrested for the capital crime, he acted 17 bizarrely with his sister Gloria, coming to her door and asking for 18 her car keys with no further conversation or explanation. He had a 19 glazed expression and his voice was low, deep, and strange. (NOL 20 C2 Ex. 124 at 2544.) 21  The day before he was arrested, petitioner’s conversations had 22 become nonsensical. (NOL C2 Ex. 10 at 99-100.) When asked if he 23 was okay, petitioner “started talking about trees. He was mumbling 24 to himself about how people were out to get him and that he did not 25 want to go on. He did not care if he lived or died. From the look in 26 his eyes and his babbling speech, it seemed like he was talking to 27 someone other than me, but I was the only one there. I was afraid 28 that he was going to kill himself.” (Id.) 23 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Beyond petitioner’s own description of dissociation, the flashback, auditory 2 hallucinations, and his suicide attempt at the time of the crime, lay witness testimony 3 could have helped to present not only historical evidence of petitioner’s dissociative 4 states and his lifelong mental illness, but also his personality development, intellectual 5 and cognitive deficits, problems in adaptive functioning, chemical dependency, and the 6 numerous traumas he suffered. 7 Had trial counsel developed and presented this evidence, the jury would have 8 understood petitioner’s compromised mental functioning and his dissociative, non- 9 volitional mental state at the time of the crime. The presentation of these multiple risk 10 factors across petitioner’s lifetime, and a comprehensive presentation of petitioner’s 11 mental health history and lifelong compromised intellectual functioning, would have 12 demonstrated that petitioner’s mental illness was genuine, not feigned. (NOL C2 Ex. 13 154 at 2757.) Such a presentation would have also greatly bolstered petitioner’s 14 credibility with the jury as to his mental state during the encounter with Mrs. Miller. 15 This evidence would have provided the jury with an accurate and comprehensive 16 account of the origin and etiology of petitioner’s mental impairments, and a context in 17 which to place petitioner’s account of the incident that the jury was given. (Id. at 18 2753.) 19 Had a reasonably competent expert been provided with the numerous lay 20 witness accounts, pertinent documentation, and had sufficient time to interview and 21 evaluate petitioner, that expert could have synthesized this information to testify, 22 among other things that: petitioner suffered from a combination of serious mental 23 disorders (NOL C2 Ex. 154 at 2750); petitioner’s mental problems, including his 24 dissociative status, had begun at a very early age (id. at 2757); petitioner’s mental 25 illnesses waxed and waned at different periods, but overall were worsening over time 26 (id. at 2751); and most critically, at the time of the crime, petitioner had no conscious 27 control over his actions or behavior, and lacked any premeditation or deliberation with 28 respect to the rape and the death of Mrs. Miller (id. at 2754-55). 24 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Absent counsel’s errors and omissions, the jury would have learned that 2 petitioner was unable to form the intent required to render him eligible for the death 3 penalty, and was not even competent to stand trial. Accordingly, absent counsel’s 4 deficient performance, there is a reasonable probability that the result of petitioner’s 5 trial would have been different. Strickland v. Washington, 466 U.S. at 687, 694, 104 S. 6 Ct. at 2064, 80 L. Ed. 2d 674; Rompilla v. Beard, 545 U.S. at 393, 125 at 2469, 162 L. 7 Ed. 2d 360. 8 B. Trial Counsel Failed to Investigate, Develop, and Present a Coherent 9 and Persuasive Defense to the Rape and Rape Felony-Murder Charges 10 and the Rape Special Circumstance. 11 In support of the capital murder and rape charges, the prosecution contended 12 that petitioner killed the victim after he bound and raped her. Materials provided to 13 trial counsel in discovery demonstrated that both sexual contact, and the binding of the 14 victim’s wrists and ankles, occurred post-mortem. Despite possessing evidence that 15 negated the prosecution’s theory that petitioner raped the victim, trial counsel 16 unreasonably failed to conduct any meaningful investigation into whether or not the 17 victim was raped, and he ultimately failed to present any defense to the rape charge. 18 Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc), reversed on other 19 grounds, 523 U.S. 538, 118 S. Ct. 1489, 140 L. Ed. 2d 728 (1998) (counsel’s failure to 20 rebut forensic evidence of rape was deficient); see Turner v. Duncan, 158 F.3d 449 21 (9th Cir. 1998) (counsel’s failure to investigate and prepare defense was unreasonable) 22 (see Ex. D at 23 (“the prevailing standard of care of attorneys appointed to represent 23 criminal defendants included the duty to conduct a reasonable investigation of the 24 circumstances of the case and explore all avenues leading to facts relevant to potential 25 guilt or penalty defenses.”).) 26 petitioner would not have been convicted of raping the victim post-mortem, People v. 27 Kelly, 1 Cal. 4th 495, 525, 3 Cal. Rptr. 2d 677, 693 (1992), and, absent a finding that 28 petitioner formed the specific intent to rape the victim while she was still alive, People Had trial counsel conducted such an investigation, 25 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 v. Lewis, 46 Cal. 4th 1255, 1300, 96 Cal. Rptr. 3d 512, 556 (2009)—the crux of trial 2 counsel’s guilt phase defense—the rape felony murder charge and rape special 3 circumstance allegation could not have been found to be proved. 4 Instead, trial counsel made the wholly uninformed, and therefore unreasonable, 5 decision not to investigate the rape because he erroneously believed the DNA results 6 unerringly implicated petitioner on each element of the rape related allegations. (NOL 7 C2 Ex. 12 at 106 (“If I was unable to prevent the jury from hearing the DNA evidence, 8 I had no choice other than to concede the rape charge. I did not envision a defense to 9 the rape charge and the rape felony murder charge once the DNA evidence was 10 admitted.”); id. at 107 (“we had no defense to the rape charge, I needed Mr. Jones to 11 admit the rape”); NOL C2 Ex. 150 at 2730 (“My guilt-phase defense strategy [to 12 challenge petitioner’s ability to form specific intent] was dictated in large part by the 13 admissibility of the DNA evidence. For all practical purposes, I believed the court’s 14 ruling on this evidence foreclosed any other possible defense.”).) Trial counsel was 15 deficient for failing to investigate readily available evidence that petitioner could not 16 have raped the victim, prejudicially depriving him of a strong and compelling defense 17 to capital murder. Strickland v. Washington, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. 18 Ed. 2d 674 (“counsel has a duty to make reasonable investigations”); Thompson v. 19 Calderon, 120 F.3d at 1053 (“By not rebutting the prosecution’s rape evidence, [trial 20 counsel] unnecessarily risked [petitioner’s] life.”) 21 As demonstrated below and in the Petition at pages 37-48, petitioner has 22 demonstrated his entitlement to an evidentiary hearing by alleging a colorable claim 23 for relief as a result of trial counsel’s unreasonable failure to reasonably investigate 24 and challenge the rape and felony murder rape charges and the special circumstance 25 allegations. 26 // 27 // 28 // 26 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 1. Trial Counsel Provided Constitutionally Deficient Representation 2 By Failing To Investigate, Develop And Present Evidence That Any 3 Sexual Contact Occurred Post-Mortem. 4 Trial counsel knew it was critical to determine whether or not the victim was 5 alive at the time of the sexual contact because “the law requires that the victim be alive 6 at the time of the rape.” 7 Information Pursuant To Penal Code Section 995); see also id. (“There is no evidence 8 whatsoever in that regard.”).) Trial counsel possessed, yet unreasonably failed to 9 develop and present, evidence that the victim had died prior to any sexual contact, 10 which would have presented a strong and persuasive defense to the rape-related 11 charges. The police and autopsy reports and crime scene photographs trial counsel 12 received in discovery provided the foundation for a defense based on four inter-related 13 issues: (1) the placement of the victim’s clothing when she was first discovered; (2) 14 the correspondence between the abdominal wounds and the slashes in the victim’s 15 nightgown; (3) the victim’s rapid death after the assault began; and, (4) the manner in 16 which the victim was bound. 17 a. (II Supp. 1 CT 83 (Notice of Motion To Set Aside Placement of Victim’s Clothing. 18 Trial counsel received reports from the Los Angeles County Coroner and the 19 Los Angeles Police Department that, when found, the victim was wearing a robe over 20 a nightgown. The robe was open, and both the robe and the nightgown were pulled 21 above her abdomen. (NOL C2 Ex. 103 at 2123.) 22 b. Slashes In Nightgown Correspond To Abdominal Wounds. 23 Among the reports trial counsel received from the Coroner was the 24 Investigator’s Report, which noted the condition of the victim’s body upon discovery. 25 Coroner’s Investigator Shepard noted “The dec’ds nightgown had been pulled up, 26 above her waist….The nightgown had cuts through the front, which correspond with 27 some of the wounds in the dec’ds abdomen and chest.” (NOL C2 Ex. 103 at 2123.) 28 27 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 In their ten-page preliminary investigation report, the investigating detectives 2 similarly noted “original position of the pink nightgown was above the stab wounds. 3 An extended view of the gown revealed numerous knife tears that correspond with the 4 torso stab wounds.” Similarly, Deputy Medical Examiner, Stephen Scholtz, stated in 5 the autopsy report that the nightgown had “multiple frontal wounds effectively 6 corresponding in number and location to those on the body.” (NOL C2 Ex. 171 at 7 3038; see also id. at 3049 (Dr. Scholtz illustrated knife wounds that matched rents in 8 nightgown).) However, because she was found with her nightgown pulled above her 9 abdomen, which was the location of the majority of the knife wounds (NOL C2 Ex. 10 171 at 3033, 3038), it was necessary to pull the victim’s nightgown down, to properly 11 cover her abdomen, to line up the knife wounds with the tears in the fabric. (Id. at 12 3038.) c. 13 The Victim’s Rapid Death Soon After the Assault Began. 14 Petitioner did not remember much about the events of the night Mrs. Miller was 15 killed. He has no memory of their fight after Mrs. Miller is on the floor and he “picks 16 up the knife” and starts to stab her. (22 RT 3335.) Petitioner testified on cross- 17 examination that he first stabbed the victim before he “did anything else,” and that he 18 had no memory of “raping” her. (23 RT 3484.) Petitioner’s last memory of that 19 horrible night—of specifically stabbing the victim—was another fact that pointed to 20 the improbability of the prosecution’s theory that the victim was bound and raped prior 21 to being killed. 22 The autopsy report indicated that only a few of the victim’s stab wounds 23 exhibited signs of hemorrhaging. (NOL C2 Ex. 171 at 3033-34; NOL C2 Ex. 177 at 24 3087.) Even though the medical examiner stated that one of the two serious neck 25 wounds was fatal, he noted “relatively little bleeding locally in the tissues in relation to 26 these wounds and limited blood at the scene indicates that these wounds were of a 27 perimortem nature.” (NOL C2 Ex. 171 at 3032.) Of the twelve labeled abdominal 28 wounds, only two, C3 and D1, revealed any signs of hemorrhage. (Id. at 3033-34.) 28 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Because the “lack of hemorrhaging indicates that the victim’s heart was not circulating 2 blood when she sustained the wound and that she was dead by the time the wound was 3 inflicted” (NOL C2 Ex. 177 at 3087 ), the autopsy report provides further evidence that 4 the victim died before the stabbing attack ended. d. 5 Manner In Which Victim Was Bound. 6 Trial counsel’s discovery materials included numerous photographs of the crime 7 scene. Several of these photographs showed how the victim was bound and the type of 8 materials used as ligatures. (III Supp. CT 3, 4 (People’s Trial Ex’s. 5 A and B show 9 the wrist bindings); id. at 8 (People’s Trial Ex’s. 5F show the ankle bindings).) Trial 10 counsel also had access to the coroner’s autopsy and investigator’s reports that 11 described the nature and effect of the bindings. (NOL C2 Ex. 171 at 3044; NOL C2 12 Ex. 103 at 2125.) The victim’s wrists were snugly bound above her head by a purse 13 strap and telephone cord that were wrapped around her left wrist twenty times and 14 around her right wrist sixteen times. The purse strap was knotted only on the left wrist 15 and the two male ends of the telephone cord were tucked under other strands on the 16 left wrist. An electrical cord had been wrapped around each ankle once, and knotted 17 on the inside of the ankle; the electrical cord did not connect the ankles. The ankles 18 were connected by a blue nightgown that was also knotted on the inside of each ankle, 19 close to or on top of the electrical cord knot. Despite the extent of the binding and the 20 materials used to bind the victim, the medical examiner reported that the “wrist 21 bindings leave crease marks but no other disturbance on the skin. 22 disturbance on the skin in relation to the ankle binding.” (NOL C2 Ex. 171 at 3038.) 23 That these ligatures were capable of causing “crease marks” on the victim’s wrists, but 24 not abrasions or internal hemorrhaging indicates that the ligatures were applied to a 25 victim that was no longer alive and capable of struggling. (See NOL C2 Ex. 177 at 26 3086.) There is no 27 The manner in which the ligatures were applied is further evidence the victim 28 was not bound to facilitate a sexual assault. The ligatures allowed the victim’s ankles 29 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 to be separated no more than twelve to fifteen inches. (NOL C2 Ex. 172 at 3052; 17 2 RT 2775.) The coroner’s report described the victim as “grossly obese”; she was 5’3” 3 tall and weighed 224 pounds. (NOL C2 Ex. 171 at 3031.) The victim’s physical size 4 rendered sexual penetration of the type that would account for semen in her vaginal 5 cavity—while she was bound in this fashion—nearly impossible without any abrasions 6 or other “disturbances” to the skin around her ankle ligatures. (See III Supp. CT 8 7 (People’s Trial Ex. 5F).) 8 Despite possessing substantial evidence that the victim was not alive at the time 9 of the sexual assault, trial counsel unreasonably did not present it at trial. “Describing 10 [counsel’s] conduct as ‘strategic’ strips that term of all substance[,]” because evidence 11 that the sexual contact was post-mortem was rife in the crime scene discovery. 12 Sanders v. Ratelle, 21 F.3d at 1456. 13 14 2. Trial Counsel Unreasonably Failed To Consult With Necessary Experts To Determine Whether The Victim Had Been Raped. 15 Trial counsel understood the crucial importance of determining whether or not 16 the victim was first killed or first sexually assaulted. (See II Supp. 1 CT 83 (“Notice of 17 Motion To Set Aside Information Pursuant To Penal Code Section 995”.) Despite 18 acknowledging the importance of determining whether the victim was alive prior to the 19 sexual assault, trial counsel’s consultation with an expert consisted of a brief and 20 inadequate consultation with medical examiner Scholtz. In memos dated December 2, 21 1993, and July 1, 1994, trial counsel noted that he asked Dr. Scholtz if he could tell if 22 (1) the semen was deposited and (2) the victim was bound pre or post mortem. The 23 December 2, 1993 memo stated that Dr. Scholtz could not tell when the semen was 24 deposited, but he warned trial counsel that he was not an expert in this area. 25 According to counsel’s July 1, 1994 memo, Dr. Scholtz was unable to “give an opinion 26 as to whether or not the victim was tied up before or after death.” Trial counsel 27 unreasonably failed to consult an independent medical expert with expertise in these 28 areas, Duncan v. Ornoski, 5285 F.3d 1222, 1236 (9th Cir. 2008) (counsel ineffective 30 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 for failing to hire expert, especially since evidence in question played a “central role” 2 and was “potentially exculpatory”), and his failure to do so was not the result of a 3 reasoned strategic decision. 4 introduced evidence of post-mortem sexual contact if he had it); see also NOL C2 Ex. 5 12 at 107 (“I needed Mr. Jones to admit the rape … I believed I would lose the rape 6 charge anyway.”); Ex. 150 at 2730 (admissibility of DNA evidence foreclosed any 7 defense to rape charge).) 8 3. (NOL D1 Ex. 181 at 3161 (counsel would have Trial Counsel Unreasonably, And Without Adequate Prior Investigation, Conceded The Charge Of Rape. 9 10 Without a factual basis for doing so, trial counsel conceded at trial that petitioner 11 raped the victim. (31 RT 4688.) Because he failed to conduct a minimally adequate 12 investigation, trial counsel erroneously believed he “had no choice other than to 13 concede the rape charge.” (NOL C2 Ex. 12 at 106, 107; see Ex. 150 at 2730.) Trial 14 counsel’s concession effectively pled petitioner guilty to rape, and by doing so 15 exponentially increased his chances of a rape felony murder conviction and a true rape 16 special circumstance finding. 17 Petitioner never testified that he raped the victim; when asked if he had any 18 memory of having sex with the victim, petitioner answered “no, but I know it had to be 19 me, though.” (22 RT 3336.) Despite petitioner’s speculation that he had sex with the 20 victim, not that he raped her, trial counsel failed to object when the prosecution asked 21 petitioner “Do you remember raping her?” (23 RT 3484.) Trial counsel objected to the 22 prosecution’s question “did you rape her before or after you stabbed her,” not because 23 petitioner never admitted to raping the victim, but because petitioner “said he didn’t 24 remember raping her.” (Id. at 3484.) 25 // 26 // 27 // 28 // 31 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 4. Trial Counsel’s Failure To Investigate, Develop, And Present A 2 Coherent And Persuasive Defense To The Rape Charges And 3 Allegations Was Prejudicial. 4 a. Trial Counsel’s Failure To Investigate And Present A PostMortem Sexual Contact Defense Was Prejudicial. 5 6 Had trial counsel conducted a minimally adequate investigation he would have 7 been able to present a strong defense to the rape charge based on evidence discovered 8 at the crime scene. A minimal investigation, including reviewing the police reports 9 and crime scene photographs would have revealed the significant inconsistencies with 10 the theory that the victim had been bound, raped then killed. (See, e.g., NOL C2 Ex. 11 103 at 2123; Ex. 171 at 3038.) In order for the crime scene to fit the prosecution’s 12 rape theory, the attacker would have had to pull the victim’s nightgown up to facilitate 13 the rape, pull the gown down before stabbing her, and then finally pull the gown above 14 her waist, in order to leave her as she was found. Such a scenario is neither probable 15 nor consistent with the other evidence, which trial counsel failed to demonstrate and 16 argue to petitioner’s jury. 17 The autopsy and coroner’s investigator’s reports further support the theory that 18 any sexual contact by petitioner was post-mortem. The coroner’s investigator 19 carefully noted both of the victim’s wrists were extensively bound with both a leather 20 purse strap and a telephone cord (NOL C2 Ex. 172 at 3053), and her ankles were each 21 wrapped with electric cord, over which a piece of fabric bound them together. The 22 autopsy report noted that the ligatures left only “crease” marks on the wrist. (NOL C2 23 Ex. 171 at 3038.) 24 disturbance” supports the theory that the victim was bound post-mortem and calls into 25 question the validity of the prosecution’s theory that the victim was bound pre-mortem. 26 The prosecution’s theory was that the victim was bound as a result of her struggling 27 during the sexual assault. (26 RT 3902 (“If he killed her first, she’s lying there dead, 28 you don’t need to tie her up.”).) In light of the extensive use of ligatures, if the victim The complete lack of abrasions, bruises, or any other “skin 32 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 was alive and struggling, as posited by the prosecution, she would have suffered at a 2 minimum an abrasion at a ligature site, and more likely bruising and hemorrhaging. If 3 the prosecution’s theory was viable, and the victim was bound in order to curtail her 4 struggling, the victim would have continued to struggle with her attacker as the 5 bindings were repeatedly wrapped around her wrists and ankles, a process that could 6 not be quickly accomplished as a result of the number of ligatures used and the number 7 of times each was wrapped around the victim’s wrists and ankles. The prosecution’s 8 pre-mortem bind-to-facilitate-rape theory does not and cannot account for the complete 9 lack of bruising, hemorrhaging, or even light abrasion from the ligatures. The nature 10 of the ligatures, the extreme manner in which they were applied to the victim, and that 11 they left no other mark except creased flesh is fully consistent with a post-mortem 12 binding theory. The autopsy findings regarding the undisturbed state of the ligature 13 sites strongly supports the theory that the ligatures were applied post-mortem. (See 14 NOL C2 Ex. 177 at 3086.) 15 The victim’s relatively quick death, as determined by the number of non- 16 hemorrhaging knife wounds, likewise supports a post-mortem sexual contact theory. 17 At trial, the medical examiner failed to discuss the significance that the majority of 18 wounds lacked any sign of hemorrhage, and trial counsel unreasonably failed to 19 question him about this exculpatory fact. That the victim died quickly after the assault, 20 also helps to explain the lack of blood, both at the crime scene and on petitioner. 21 There was “minimal blood loss at the [crime] scene” (NOL C2 Ex. 103 at 2123, 22 because the majority of the stab wounds were abdominal, and the victim had a two and 23 half inch layer of fat in her abdomen (17 RT 2783) that caused the blood to pool in the 24 abdominal area instead of flow to the surface of her body. (Id. at 2802, 2815-16.) 25 Petitioner’s recollection further supports post-mortem sexual contact. Before he 26 blacked out, petitioner recalled “swinging the knife” at the victim. (22 RT 3335.) In 27 light of the fight between petitioner and Mrs. Miller and the manner in which she was 28 discovered, petitioner’s story is credible. What is not credible (or consistent with the 33 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 physical evidence) is that petitioner, in the heat of fighting and stabbing the victim, set 2 the knife aside to rummage for a purse strap, telephone and electric cords, a gown, and 3 scarves; returned to the victim, who did not struggle while he bound her wrists and 4 ankles and gagged her; sexually assaulted her; ensured her nightgown was properly 5 pulled down; stabbed her multiple times; and, before leaving the scene, pulled the 6 victim’s night gown above her abdomen. b. 7 Trial Counsel’s Failure To Consult With Necessary Experts Was Prejudicial. 8 9 In addition to explaining the critical significance of the evidence discussed 10 above, a qualified, independent expert would have prepared counsel to adequately 11 cross-examine the medical examiner, Dr. Scholtz. Consultation with the proper expert 12 would have allowed trial counsel to cross-examine Dr. Scholtz on his false and 13 prejudicial testimony regarding the wrist bindings. The autopsy report specifically 14 states “The wrist bindings leave crease marks but no other disturbance on the skin.” 15 (NOL C2 Ex. 171 at 3038.) Dr. Scholtz testified that the left wrist suffered “a bruising 16 or abrasion which could have been caused from the bindings.” (17 RT 2446.) Dr. 17 Scholtz’s testimony directly contradicted the autopsy report, and it remained 18 unchallenged by trial counsel. Had counsel reasonably consulted an expert, he would 19 have known to question Dr. Scholtz about his failure to take tissue samples where the 20 ligatures had been placed to determine whether there were any signs of internal 21 hemorrhage. 22 Consultation with a qualified independent expert would have alerted trial 23 counsel to the fact that the prosecution’s accusation that the victim suffered a “vaginal 24 wound” was patently in error and as such, highly inflammatory. As documented in the 25 autopsy report, the victim suffered “a wound that penetrated the victim’s peritoneum 26 and entered her uterus.” (NOL C2 Ex. 177 at 3087; NOL C2 Ex. 171 at 3033.) 27 An expert could have provided both direct testimony and assistance with cross- 28 examining Dr. Scholtz on the issue of how quickly the victim died once the attack 34 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 started. Dr. Scholtz testified that the neck wounds were the last ones inflicted. (17 RT 2 2804.) He based his opinion on “the apparent small amount of blood loss from the 3 neck wounds as well as the fact that these two weapons were found in place in that 4 location which seems to represent of [sic] some sort of finality.” (Id.) Dr. Scholtz’s 5 opinion could have been, but was not, challenged on the basis of the findings in the 6 autopsy report he authored. 7 abdomen that revealed any signs of hemorrhage (NOL C2 Ex. 171 at 3033-34 (wounds 8 C3 and D1)); he failed to note any sign of hemorrhaging at the other wound sites (id.; 9 see also NOL C2 Ex. 177 at 3087). Since he did note signs of hemorrhaging in the 10 neck wounds, albeit small, it is clear that the victim was still alive when she received 11 those wounds, but she was not alive when she received the majority of the abdominal 12 wounds. 13 14 c. Dr. Scholtz noted only a few areas in the victim’s Trial Counsel’s Concession of the Rape Charge Was Prejudicial. 15 In his closing statement trial counsel erroneously informed the jury that 16 petitioner “got up on the witness stand and told you he killed Mrs. Miller and he had 17 raped Mrs. Miller.” (31 RT 4688.) Petitioner never admitted to raping the victim or 18 even speculated that he may have done so. Petitioner consistently testified that he 19 stabbed the victim before he “did anything else” (23 RT 3484; 22 RT 3335); therefore, 20 the only evidence adduced at trial on this issue did not support trial counsel’s 21 concession. Regardless, it allowed the prosecution to tell the jury that “Mr. Manaster 22 conceded the rape.” (27 RT 3963.) 23 Despite the strong evidence that pointed to sexual contact occurring only after 24 the victim’s death, trial counsel failed to investigate this critical defense. But for trial 25 counsel’s failure to investigate and present this defense there is a reasonable 26 probability that the jury would have had, at a minimum, a reasonable doubt as to 27 petitioner’s guilt of the charges of rape, felony murder rape and that the rape special 28 35 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 circumstance was true. Strickland v. Washington, 466 U.S. at 687, 694, 104 S. Ct. at 2 2064, 80 L. Ed. 2d 674. 3 4 C. Trial Counsel Unreasonably Failed to Investigate, Develop, and Challenge the Admissibility and Reliability of the Dna Evidence. 5 Trial counsel believed that if DNA evidence was admitted at trial it would be 6 “quite damaging to our case,” because he “could not envision a defense to the rape 7 charge and the rape felony murder charge once the DNA evidence was admitted.” 8 (NOL C2 Ex. 12 at 106.) Trial counsel “did not completely understand DNA testing” 9 so he sought assistance from “another lawyer at the Public Defender’s office,” who 10 also served as the “office’s forensics consultant.” (Id. at 106-07.) The Public 11 Defender’s Office’s forensics consultant “assisted [trial counsel] in the hearings on the 12 admissibility of the DNA evidence.” (Id. at 107.) Despite this assistance, and even 13 though the admissibility of the DNA evidence resulted in trial counsel’s decision to 14 concede the rape charge, trial counsel failed to challenge the admissibility of the DNA 15 evidence. Strickland v. Washington, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 80 L. 16 Ed. 2d 674; see Duncan v. Ornoski, 528 F.3d 1222 (trial counsel’s failure to hire expert 17 unreasonable). 18 As demonstrated below and in the Petition at page 48-58, petitioner has 19 demonstrated his entitlement to an evidentiary hearing by alleging a colorable claim 20 for relief as a result of trial counsel’s unreasonable failure to meaningfully challenge 21 the DNA evidence. 22 1. Trial Counsel Unreasonably Failed to Present An Objectively 23 Reasonable Pre-Trial Challenge To The Admissibility Of The DNA 24 Evidence. 25 a. Trial Counsel Unreasonably Failed To Use DNA Expert. 26 Trial counsel retained Dr. Simon Ford, Ph.D. in November 1993 (NOL C2 Ex. 27 176 at 3078), after the prosecution completed DNA testing. (Id.) Because Mr. Ford 28 was hired after the DNA testing was completed, there was no opportunity for him to 36 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 observe the actual testing. At no time did trial counsel request the prosecution to have 2 an expert observe the testing, or to wait to run the DNA tests until he could retain an 3 expert. Trial counsel unreasonably allowed the testing to continue without a defense 4 expert to observe the testing process and procedures. 5 One of trial counsel’s most inexplicable and prejudicial actions was his failure to 6 heed the advice of, and utilize information from, his DNA expert, Dr. Ford.8 Despite 7 Dr. Ford’s late entry into the case, after reviewing the data and reports produced by the 8 prosecution’s DNA laboratory, Cellmark, he uncovered several areas for trial counsel 9 to challenge. (Id. at 3078-83.) In March 1994, Dr. Ford informed counsel that: 10  “Cellmark’s procedures, as implemented in the Jones case, fail to 11 meet some of the recommendations” of the National Research 12 Council, including Cellmark’s failure to use published testing 13 procedures; its use of ethidium bromide as a dye in petitioner’s case; 14 failure to use monomorphic probes; and Cellmark’s failure to report 15 its error rate (id. at 3080-83);  Cellmark acknowledged it had a “very high error rate” of 16 approximately one in two hundred (id. at 3081); 17 18  The testing in petitioner’s case was subject to challenge on numerous 19 grounds, including the failure of the differential extraction 20 procedure, the appearance of extra, faint bands in the controls and 21 samples, the inability of Cellmark to obtain an adequate DNA 22 banding pattern from the reference samples, and inculpatory test 23 results after Cellmark’s unnecessary and unexplained manipulation 24 of data (id. at 3081-83); and, 25 // 26 // 27 8 28 At the time he was consulting on petitioner’s case, Dr. Ford was also one of the expert DNA consultants hired by the O.J. Simpson defense team. (Id. at 3078.) 37 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1  He “strongly” recommended that trial counsel consult with a 2 statistician or population geneticist to determine the extent to which 3 the statistical findings were undermined by these errors (id. at 3083). 4 In addition, Dr. Ford advised counsel about potential challenges to the statistical 5 method employed by Cellmark, the interim ceiling approach (“ICA”), and provided the 6 names of experts who could testify that the ICA was highly controversial and that its 7 use was not generally accepted in the relevant scientific community. The experts Dr. 8 Ford suggested to trial counsel had either testified or were about to testify on similar 9 issues in Los Angeles County. (Id. at 3084.) Despite this expert advice, trial counsel 10 unreasonably failed to seek to have the samples retested by a defense expert or to 11 follow up on the potential flaws in Cellmark’s testing procedures that were pointed out 12 by Dr. Ford. 13 Trial counsel’s failure to develop compelling evidence of the possible 14 contamination of the samples, unreliability of the testing procedures, flawed 15 application of the testing procedures, unacceptable error rates of the laboratory that 16 conducted the testing, and the unreliability of the statistical analysis used to link the 17 samples to petitioner was objective unreasonable. Trial counsel had no tactical reason 18 for failing to fully investigate the admissibility of the DNA evidence and employ and 19 follow the advice of Dr. Ford. (Id. at 2730-31.) Duncan v. Ornoski, 528 F.3d at 1225 20 (“when the prosecutor’s expert witness testifies about pivotal evidence or directly 21 contradicts the defense theory, defense counsel’s failure to present expert testimony on 22 that matter may constitute deficient performance”). 23 b. Trial Counsel Unreasonably Failed To Object To The Trial 24 Court’s Use Of The Incorrect Legal Standard In Determining 25 The that ICA Was Admissible. 26 Trial counsel filed a motion seeking to exclude the DNA evidence on the limited 27 grounds that the statistical method employed, the ICA, was not generally accepted in 28 the relevant scientific community. (II Supp. 1 CT 106-23.) After briefing and 38 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 arguments, the court held that the ICA was generally accepted in the scientific 2 community. (1 RT 665.) Prior to this ruling, the trial court informed counsel that if 3 the prosecution made a prima facie showing of general acceptance, the burden shifted 4 to the defense to rebut it. (1 RT 648.) The standard employed by the court was 5 incorrect. The proper preponderance of the evidence standard, unlike the standard 6 suggested by the trial court, does not unfairly shift or lighten the prosecution’s burden 7 of proof. Trial counsel knew or reasonably should have known that the trial court had 8 enunciated and intended to employ an incorrect legal standard, one that shifted some of 9 the prosecution’s burden of proof onto the defense, and unreasonably failed to object 10 or otherwise bring this error to the court’s attention. Consequently, the trial court 11 failed to apply the proper burden of proof in determining whether the ICA was 12 generally accepted and thus never properly ruled on whether the prosecution had 13 demonstrated general acceptance by a preponderance of the evidence. 14 15 c. Trial Counsel Unreasonably Failed to Make, And Support, A Motion To Exclude DNA Evidence. 16 The prosecution filed a motion requesting that in determining whether the ICA, 17 a statistical calculation method for DNA testing, was generally accepted in the 18 scientific community, the court take judicial notice pursuant to California Evidence 19 Code sections 452 and 453, of the findings and decisions in the case of People v. 20 Robert Smith, James Crooms, and Bevin Graham, Los Angeles County Superior Court 21 Case No. PA006349 (1993), along with excerpts from a publication of the National 22 Research Council, DNA Technology In Forensic Science (1992), an affidavit of Daniel 23 Hartl, and the testimony of Dr. Conneally, the DNA expert in the Smith case. (II Supp. 24 1 CT 124-31.) Trial counsel opposed the motion on the grounds that the requested 25 procedure violated petitioner’s confrontation rights and because given the controversy 26 surrounding the techniques and proposed testimony, “[t]his is not the type of area 27 where judicial notice is appropriate.” (Id. at 135J; 1 RT 564.) The court granted the 28 prosecution’s motion in part, and protected the defense’s right to call the expert 39 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 witness in question for cross-examination. (1 RT 571-72.) After making his ruling, 2 the trial court informed both parties that he was “willing to take judicial notice”; 3 however, he “would prefer to have the witnesses here live.” (Id. at 573.) 4 Despite the trial court’s clear preference for live witnesses and Dr. Ford’s 5 recommendations of readily available expert witnesses (NOL C2 Ex. 176 at 3084-83), 6 trial counsel unreasonably failed to present any witnesses in support of his motion to 7 exclude the DNA testimony. At the hearing on the motion to exclude the DNA 8 evidence, trial counsel unreasonably relied upon the general testimony provided in 9 other cases regarding the unreliability of DNA analysis, rather than present readily 10 available expert testimony tailored to the statistical procedures used in petitioner’s 11 case. (1 RT 619-20.) 12 Following the court’s ruling, defense counsel informed the court that the defense 13 would file a motion challenging the accuracy of the particular testing procedures 14 employed by Cellmark. (Id. at 666.) Immediately prior to trial, trial counsel filed a 15 “Motion to Reconsider the Court[‘]s Ruling on RFLP DNA Kelly-Frye Hearing on 16 September 7, 1994.” (II Supp. 3 CT 631-54.) This motion sought a hearing involving 17 live expert testimony about the unreliability of the ceiling principle, error rates, and the 18 methodological deficiencies found in DNA testing and analysis process. (Id. at 632- 19 34.) Trial counsel stated in the motion that the experts he intended to call as witnesses 20 were unavailable at the time of the previous hearing, however, he unreasonably failed 21 to state why these experts had been previously unavailable and why he did not request 22 to have the original hearing continued in order to accommodate their schedules. (Id. at 23 631.) On November 18, 1994, without an evidentiary hearing, the trial court denied 24 the motion to reconsider. (1 CT 201; 1 RT 722-23.) 25 26 d. Counsel Unreasonably Failed To Request Necessary Discovery. 27 To petitioner’s detriment, trial counsel relied on informal discovery for 28 information related to the DNA testing. Trial counsel filed a standard discovery 40 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 motion on May 18, 1993, in which he requested “all laboratory tests concerning any 2 examination of physical, photographic, oral or written evidence,” but did not request 3 any of the information relating to the manner in which the tests were conducted, the 4 raw data from the testing, or any other information necessary to evaluate the accuracy, 5 reliability, and admissibility of the DNA evidence. (1 CT 140-47.) Trial counsel 6 informed the trial court that, although he filed the motion, he was not requesting that 7 the court take any “action on it at this point” (1 RT 30), and counsel never requested 8 that the court rule on it. Trial counsel completed, signed, and dated October 6, 1993 9 another “Notice Of Motion For Pretrial Discovery” that requested information relating 10 to the DNA testing, including, inter alia, reports of the testing, chain of custody 11 documents, X-ray film copies of the case autorads, photographic quality copies of the 12 photographs of ethidium bromide stained gels, operating procedures, frequency tables, 13 match rule, binning method, error rates, publications, studies, and computer files. This 14 motion, which requested some of the information required by counsel’s expert (see, 15 e.g., NOL C2 Ex. 176 at 3081-83) was inexplicably never filed with the court, nor 16 ruled on.9 Trial counsel unreasonably failed to request and obtain additional relevant 17 information such as the raw data and lab notes from the testing, the lab’s protocols for 18 each test, the Quality Control or Quality Assurance manuals, the protocols or manuals 19 from the manufacturer for the kits used in the analysis, the validation studies of the 20 tests, the technician’s proficiency tests, and logs of contamination. (See, e.g., id. (trial 21 expert given only Cellmark’s report and underlying data; he never received, inter alia, 22 raw data, lab and bench notes, proficiency tests, contamination logs).) Trial counsel’s 23 failure to obtain the necessary data prior to making a determination of whether or not 24 the DNA evidence was accurate and admissible was neither reasonable nor strategic. 25 26 27 28 9 The discovery motion was one of many documents habeas counsel discovered had been misfiled and not made part of the Clerk’s Transcript on Appeal. (See Petition Claim Twenty-nine.) 41 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC e. 1 Trial Counsel’s Unreasonable Failure To Challenge The 2 Reliability Of The DNA Evidence At Trial, Fell Below The 3 Standard Of Care. 4 Trial counsel’s failure to challenge the testimony of the prosecution’s DNA 5 expert at trial was objectively unreasonable. After the prosecution finished the direct 6 examination of its DNA expert, trial counsel informed the court “I have no questions.” 7 (20 RT 3130.) 8 unreasonable in light of the inaccuracies and falsehoods in the prosecution expert’s 9 testimony. No tactical reason existed to forego cross-examination, and by doing so to 10 allow the prosecution’s DNA evidence to appear stronger and more compelling than it 11 actually was. Trial counsel possessed or had access to, and yet failed to utilize 12 resources that could have aided and assisted him in a devastating cross-examination of 13 the DNA expert. 14 provided counsel with a detailed memorandum “outlining potential areas for cross- 15 examining DNA experts.” (NOL C2 Ex. 176 at 3078.) At a minimum, trial counsel 16 could have looked to the cross-examination of the DNA expert conducted at the 17 Evidence Code section 402 hearing for guidance. (19 RT 2931 et seq.) Foregoing cross-examination of the DNA expert was objectively Aside from access to his considerable expertise, Dr. Ford had 18 Trial counsel’s failure to move to exclude the improper testimony and inferences 19 from the prosecution expert was objectively unreasonable. Trial counsel had a duty to 20 object and move to exclude the following inaccurate, misleading and/or false evidence 21 from the prosecution’s DNA expert: 22 23 24 25  Inaccurate and false testimony concerning the DNA “match” (see NOL C2 Ex. 176 at 3079-80):  Testimony that the “DNA banding pattern of Ernest Jones did match the bands in the sample from the vaginal swabs.” (20 RT 3129); 26  Testimony that petitioner “matched” the samples taken from the 27 victim misled the jury into believing that a comparison between the 28 42 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 crime scene DNA and petitioner’s DNA excluded all other donors. 2 (See id.); 3  The prosecutor’s questions and testimony that falsely conveyed to 4 the jury that the different banding patterns were “identical.” (20 RT 5 3130; but cf NOL C2 6 computer scoring by adding and deleting bands, and petitioner’s 7 sample exhibited faint bands similar only to the control sample).) 8  Testimony that “the chance that a random individual might have the 9 same DNA banding pattern as Ernest Jones is approximately 1 in 78 10 Ex. 176 at 3083 (Cellmark assisted the million.” (20 RT 3130.); 11  Testimony that improperly and falsely conveyed to the jury that there 12 was a 1 in 78 million chance that petitioner did not commit the rape. 13 (See id.) 14 Counsel, instead, unreasonably failed to cross-examine, move to exclude, or 15 correct the prejudicially erroneous and misleading testimony of the prosecution’s DNA 16 expert witness, and he had no strategic reason for failing to do so. (NOL C2 Ex. 150 at 17 2730 (if counsel had “understood” the DNA testing was unreliable he would have 18 challenged it at trial). 19 20 f. Trial Counsel Unreasonably Failed To Investigate And Challenge The Prosecution’s Analysis Of The Rape Kit. 21 Trial counsel unreasonably and prejudicially failed to investigate, develop, and 22 present challenges to the use of blood analysis. Trial counsel knew that the 23 prosecution’s case would rely substantially on the testimony of blood analysis 24 conducted on the sperm and semen found on the victim’s body. (See, e.g., 1 RT 508; 25 see also 1 CT 125-30 (the prosecution moved the court for an order requiring 26 petitioner to provide saliva and blood samples.) Trial counsel was informed, by a 27 report by William Moore, dated, November 25, 1992, that initial blood typing 28 43 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 identified petitioner as a potential donor of the sperm collected from the victim, and 2 that the prosecution intended to conduct a DNA analysis on the sample. 3 In March 1993, trial counsel retained the services of Carol Hunter, a criminalist 4 at the California Laboratory of Forensic Science to review the documentation that he 5 had received concerning the sexual assault kit and the preliminary hearing testimony of 6 William Moore. (II Supp. 23 CT 6348-49 (Declaration of Counsel); id. at 6346-47 7 (Order).) Ms. Hunter informed trial counsel that the notes concerning the sexual 8 assault kit Mr. Moore provided from the Los Angeles Police Department were 9 incomplete, and that the accuracy of the results could be evaluated only with 10 reanalysis. Ms. Hunter further indicated that either conventional analysis or DNA 11 analysis could be performed on the samples. 12 Trial counsel filed another request for funds and permission to split the rape kit 13 swabs to permit Ms. Hunter to analyze the samples using conventional means. (See II 14 Supp. 23 CT 6352-53 (Declaration of Counsel); id. at 6350-51 (Order).) Despite being 15 informed that the bench notes for the rape kit from the Los Angeles Police Department 16 were incomplete, trial counsel unreasonably failed to obtain a complete set of the 17 documents regarding the Los Angeles Police Department’s analysis. 18 Before Ms. Hunter had the opportunity to reanalyze the rape kit, trial counsel 19 withdrew his request for her appointment because of the results of the prosecution’s 20 DNA analysis. In his memorandum to the court, trial counsel stated that he intended 21 “to have [the DNA] results examined.” (Id. at 6355.) Trial counsel’s decision to 22 forego re-testing the rape kit was objectively unreasonably. The prosecution presented 23 testimony from William Moore regarding his testing of the rape kit. Mr. Moore’s 24 testimony linked petitioner to the semen swabbed from the victim. (28 RT 2869.) 25 This testimony stood essentially unchallenged in light of trial counsel’s unreasonable 26 failure to request Mr. Moore’s complete bench notes and to re-test the rape kit. Trial 27 counsel’s decision to withdraw funding for Ms. Hunter to re-test the rape kit and his 28 44 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 failure to obtain all the bench notes associated with the prosecution’s testing of the 2 rape kit was neither reasonable nor strategic. 3 2. Trial Counsel’s Deficient Representation Was Prejudicial. 4 Trial counsel had a duty to consult with an expert since DNA was an area in 5 which “he has no knowledge or expertise[,]” Duncan v. Ornoski, 528 F. 3d at 1236. 6 Had trial counsel performed reasonably and filed and litigated a formal discovery 7 motion that requested all relevant information necessary to challenge to the 8 admissibility of DNA evidence and followed Dr. Ford’s advice, he would have been 9 armed with both the information and the additional experts to successfully litigate his 10 motion to exclude the DNA evidence as not generally accepted in the relevant 11 scientific community and unreliable; be prepared to present such testimony before the 12 jury, if necessary; and, have prevented the admission of unreliable and prejudicial 13 testimony concerning the statistical calculations used in the analysis. 14 Trial counsel could have presented strong evidence that—contrary to the 15 prosecution’s assertions—the ICA was neither generally accepted in the scientifically 16 community nor the most conservative statistic possible. Cellmark reported that a 17 statistical analysis known as the “counting method yielded a probability statistic of 18 only 1 in 800 versus the ICA’s astronomical statistic of 1 in 78 million.” (NOL C2 Ex. 19 176 at 3079; see also NOL C2 Ex. 170 at 3029.) Like the ICA, the “counting method 20 is another method for indicating the rarity of a random match proposed by the 1992 21 NRC Report.” (NOL C2 Ex. 176 at 3079.) Because trial counsel failed to give Dr. 22 Ford the transcripts from the admissibility hearing, Dr. Ford did not know, and could 23 not assist counsel in countering the prosecution’s blatantly false argument. (Id. at 24 3078, 3079.) 25 Had trial counsel followed the advice of his expert, he could have excluded the 26 DNA evidence, or at a minimum, the grossly misleading and false testimony that 27 petitioner’s DNA “matched” the sample DNA. 28 45 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 In light of the way the victim was discovered at the crime scene, the prosecution 2 had no substantive evidence that the victim was raped. Indeed, the evidence pointed to 3 sexual contact occurring after the victim’s demise. 4 admission of the DNA evidence, and the misleading testimony regarding petitioner 5 matching the DNA sample taken from the victim rendered counsel’s failure highly 6 prejudicial. 7 8 The dearth of evidence, the D. Trial Counsel Unreasonably Failed to Investigate, Develop, and Enter a Plea of Not Guilty by Reason of Insanity. 9 Reasonable trial counsel, convinced that the client’s crime was the result of a 10 serious mental illness, whose client stated that he could not remember the entire crime, 11 and who received expert opinions that the client was psychotic at the time of the crime, 12 would investigate, develop, and present a defense of not guilty by reason of insanity 13 (“NGI”). Trial counsel, aware of each of these facts regarding petitioner, performed 14 below the standard of care, and severely prejudiced petitioner by his objectively 15 unreasonable failure to conduct a minimally adequate investigation, to develop, and 16 present an NGI defense. Strickland v. Washington, 466 U.S. at 687, 694, 104 S. Ct. at 17 2064, 80 L. Ed. 2d 674; Jennings v. Woodford, 290 F.3d 1006 (9th Cir. 2002) (counsel 18 possessed information that would have put a reasonable attorney “on notice” to 19 investigate mental health issues); Brown v. Sternes, 304 F.3d 677 (7th Cir. 2002) 20 (counsel ineffective for failing to investigate competency and consider NGI plea). 21 As demonstrated below and in the Petition at pages 58-50, petitioner has 22 demonstrated his entitlement to an evidentiary hearing by alleging a colorable claim 23 for relief as a result of trial counsel’s unreasonable failure to investigate and present an 24 NGI defense. 25 1. 26 Defense Counsel’s Performance Was Deficient For Failing To Investigate and Enter A NGI Plea. 27 Counsel understood that petitioner’s mental state at the time of the crime was 28 the lynchpin to the case: “Due to the nature of the crime and the prior offenses for 46 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 which Mr. Jones had been arrested, I wanted a mental health expert to explore Mr. 2 Jones’s state of mind at the time of the crime.” (NOL C2 Ex. 150 at 2731.) Trial 3 counsel hired two mental health experts, Dr. Thomas, and Dr. William Spindell, and 4 specifically asked them both to assess petitioner’s mental state at the time of the crime. 5 (NOL C2 Ex. 154 at 2748.) Counsel asked Dr. Thomas “to opine on Mr. Jones’s 6 mental status at the time of the offense.” (Id.) Similarly, in a letter dated November 7 12, 1994, counsel asked Dr. Spindell for “an opinion regarding [petitioner’s] mental 8 condition at the time of the offense involved in this proceeding.”10 Both doctors 9 alerted trial counsel that around the time of the crime, petitioner “was incapable of 10 knowing or understanding the nature and quality of his [] act and of distinguishing 11 right from wrong at the time of the commission of the offense,” Cal. Penal Code § 12 25(b) (West 1994). Dr. Thomas informed counsel that petitioner “suffered a psychotic 13 break at the time of the incident, dissociating from external reality and rational 14 consciousness, and responding instead only to an unconscious, internal world of 15 memories and messages over which he had no control” (NOL C2 Ex. 154 at 2750), and 16 Dr. Spindell similarly opined that petitioner suffered from schizophrenia. (30 RT 17 4501.) Trial counsel admits that “Dr. Thomas concluded that due to Mr. Jones’s 18 mental impairments, he could not predict in advance, plan, or control his dissociative 19 episodes. Dr. Thomas also made it clear that this dissociative status had a critical 20 impact on Mr. Jones’s state of mind during his encounter with Mrs. Miller.” (NOL C2 21 Ex. 150 at 2731.) Trial counsel unreasonably failed to comprehend the import of Dr. 22 Thomas’s expert medical opinion. Counsel believed it supported only a defense to 23 those charges and allegations that required specific intent. (Id.)11 It was objectively 24 25 26 27 28 10 At a November 9, 1995 hearing on defense counsel’s motion for continuance, he informed the court that he was considering an NGI defense as a result of Dr. Thomas’s preliminary findings, and that there may be such a plea “depending on the results of this test.” (1 RT 715.) 11 Counsel recognized Dr. Thomas’s opinion directly related to petitioner’s ability to form the specific intent for felony murder and the special circumstances. As 47 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 unreasonable for trial counsel not to investigate and present an NGI defense in light of 2 all the facts that triggered counsel’s duty to investigate further. See, e.g., Jennings v. 3 Woodford, 290 F.3d at 1016. 4 “As a result of reading the reports of [petitioner’s] two prior offenses, I became 5 convinced that [petitioner’s] offense[s] were the result of mental illness.” (NOL C2 6 Ex. 12 at 107.) Despite understanding the importance of mental illness to the case, 7 trial counsel unreasonably failed to enter and support an NGI plea. As discussed 8 above, trial counsel’s failure to timely consult with a mental health expert fell well 9 below the standard of care in a case that counsel knew depended heavily on 10 petitioner’s mental state at the time of the crime. (NOL C2 Ex. 154 at 2748, 2749.) 11 Reasonably competent counsel alerted to the possibility that his client may have a 12 tenable NGI defense would have interviewed the client’s family and friends for 13 descriptions of the client’s behavior at and around the time of the crime. 14 counsel’s failure to interview people who knew petitioner well and were in contact 15 with him during this time was objectively unreasonable and not the product of a 16 tactical decision. See, e.g., Seidel v. Merkle, 146 F.3d 750 (9th Cir. 1998) (counsel 17 unreasonably failed to investigate the extent or possible ramifications of petitioner’s 18 mental illness). 19 20 21 22 2. Trial Petitioner Was Prejudiced By Trial Counsel’s Unreasonable Failure To Offer An NGI Defense. Petitioner’s guilt phase jury was never informed that, as a result of a severe mental illness, over which he had no control, petitioner 23 was not in control of any of his actions during [the] incident; at best, he 24 was a spectator, watching someone else act, as if watching a movie of 25 himself. He was therefore not in a position to appreciate the moral quality 26 of his behavior, or distinguish right from wrong in those moments. The 27 28 discussed above, he unreasonably failed to call any mental health expert to explain petitioner’s mental state to the jury in the guilt phase of the trial. 48 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 emotional encounter with Mrs. Miller, her casual dress in a bathrobe, and 2 her statement “[g]ive it to me,” pushed to the surface his deeply rooted 3 ambivalence towards his own mother, and provoked the symbolic image of 4 that ambivalence, the image of her in bed with another man, setting off the 5 dissociative process and psychosis after which he had no control over 6 either his thoughts or actions. 7 (NOL C2 Ex. 154 at 2755.) 8 If trial counsel had more timely hired and consulted with mental health experts, 9 petitioner would not have been deprived of a mental state defense that included a plea 10 of NGI. (See NOL C2 Ex. 154 at 2754 (trial counsel failed to ask Dr. Thomas if 11 petitioner satisfied the criteria for an NGI plea “If he had, I would have testified that 12 Mr. Jones was not in control of any of his actions during the incident. … He was 13 therefore not in a position to appreciate the moral quality of his behavior, or 14 distinguish right from wrong in those moments.”).) Despite the paucity of information 15 (id. at 2756-57), time (id. at 2749), and guidance (id. at 2749, 2753-55) given to Drs. 16 Thomas and Spindell by trial counsel, petitioner’s mental illness and its clear effect on 17 his behavior at the time of the crime were obvious, and quickly determined by them. 18 (Id. at 2750.) Had trial counsel performed reasonably and timely hired the necessary 19 mental health experts, they would have had the time to assist him in investigating, 20 preparing and presenting a plea of NGI. (See id. at 2749 (“By the time that I was 21 retained, Mr. Manaster had very little time to prepare a mental state defense.”).) 22 Neither the mental health experts, nor petitioner’s jury heard how “strange” and 23 “bizarre” petitioner acted in the days and months before the crime, behavior that was 24 consistent with petitioner ultimately being “incapable of knowing or understanding the 25 nature and quality of his [] act and of distinguishing right from wrong at the time of the 26 commission of the offense,” Cal. Penal Code § 25(b) (West 1994). Several witnesses 27 could have given trial counsel important information about petitioner’s functioning in 28 the months leading up to the crime. For example, during the riots that erupted after the 49 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Rodney King verdict, petitioner’s behavior was especially bizarre. He was asked to 2 protect his uncle’s transmission shop, he was “given a gun” and directed “to stand 3 guard all night.” (NOL C2 Ex. 10 at 99). Petitioner “lived in the shop for three days 4 straight wearing army pants tucked into combat boots and a beret.” (Id.) During this 5 time, petitioner was hyper-vigilant, if “he heard the smallest of noises, he over-reacted, 6 as if he was being personally attacked. He could not keep still and was really pumped 7 up. He had that strange glassy, faraway look in his eyes that he got when he talked 8 about prison. . . Meso thought he was at war.” (Id.; see also NOL C2 Ex. 21 at 227.) 9 Eugene Maxwell, who worked for petitioner’s uncle, vividly recalled that “[d]ays 10 before his arrest, I became increasingly concerned about Meso. One day, he showed up 11 at my door in the middle of the afternoon. It was frightening because he looked like a 12 different person. His eyes were glazed over and unfocused. He really scared me that 13 day.” (NOL C2 Ex. 10 at 99.) Mr. Maxwell saw petitioner the day before he was 14 arrested, and noted that from “the look in his eyes and his babbling speech, it seemed 15 like he was talking to someone other than me.” (Id. at 100.) Petitioner’s Uncle 16 Thomas similarly recalled how petitioner’s mental illness affected his behavior days 17 before the crime: 18 Meso was working at my shop in the days leading up to his arrest. He was 19 acting strange, and was jumpy and agitated, as if he was wired on some 20 drug. His speech did not make sense, and he was literally talking nonsense. 21 He was convinced that people were talking about him behind his back. He 22 was also convinced that no one cared about him and that there was no 23 reason to go on living. 24 (NOL C2 Ex. 21 at 227.) 25 Had the jury been presented with this strong and compelling evidence 26 supporting an NGI defense, which counsel had no strategic reason not to develop and 27 present, it is more likely than not that the result of the trial would have been different. 28 See, e.g., Rompilla v. Beard, 545 U.S. at 393, 125 S. Ct. at 2469, 162 L. Ed. 2d 360. 50 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 2 E. Trial Counsel Unreasonably Failed to Conduct a Constitutionally Adequate Voir Dire. 3 Trial counsel unreasonably conducted a superficial and constitutionally 4 inadequate voir dire examination of all prospective jurors. Trial counsel failed to 5 object to the trial court’s use of a defective jury questionnaire, for which critical 6 questions on the death penalty were drafted by the prosecutor. Trial counsel’s failure 7 to conduct and ensure an adequate and meaningful voir dire of potential jurors was 8 objectively unreasonable and prejudicial. See, e.g., Harris ex rel. Ramseyer v. Wood, 9 64 F.3d 1432 (9th Cir. 1995) (conviction reversed for various instances of 10 ineffectiveness, including counsel’s performance in failing to conduct adequate voir 11 dire); see Irvin v. Dowd, 366 U.S. 717, 81 1639, 6 L. Ed. 2d 751 (1961) (constitutional 12 right to jury trial requires fair and impartial jurors). 13 As demonstrated below and in the Petition at pages 60-63, petitioner has 14 demonstrated his entitlement to an evidentiary hearing by alleging a colorable claim 15 for relief as a result of trial counsel’s unreasonable failure to conduct a reasonable and 16 meaningfully voir dire. 17 The jury questionnaire asked prospective jurors whether they automatically 18 would impose a death sentence or life without the possibility of parole for “intentional, 19 deliberate” first degree murder cases. (See, e.g., II Supp. 4 CT 1091; II Supp. 7 CT 20 1767; II Supp. 8 CT 2343 (Juror Questionnaires, Questions 60 and 61).) 21 questionnaire failed to also inquire whether or not a prospective juror would 22 automatically impose either sentence for felony murder. (See, e.g., id; 7 RT 1462.) 23 Trial counsel was aware of this major defect in the juror questionnaire and 24 unreasonably failed to correct it or bring it to the court’s attention on his own accord. 25 Trial counsel admitted that he unreasonably abdicated his responsibility to ensure voir 26 dire resulted in fair and impartial jurors when he informed the court that he had 27 “agreed” to the questions the prosecution drafted. (7 RT 1462.) The 28 51 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Trial counsel prepared petitioner’s case as if a penalty phase was a foregone 2 conclusion: early in his representation he decided to concede the rape charge before 3 investigating it (see NOL C2 Ex. 12 at 107; Ex. 150 at 2730) and the only mental 4 health experts he hired were for the penalty phase. (NOL C2 Ex. 150 at 2731.) In 5 light of the manner in which trial counsel prepared the case the unreasonableness, and 6 resulting prejudice, of trial counsel’s abdication of responsibility in drafting critical 7 sentencing based juror questionnaire questions was magnified. 8 Trial counsel compounded his failure to ensure the juror questionnaire contained 9 all questions relevant to the facts and legal theories of the case by questioning 10 prospective jurors with incomplete statements of the law. Trial counsel incompletely 11 stated the law as to first degree murder in an attempt to reflect the poorly drafted juror 12 questionnaire. As a result of his dependence on the questions inadequately drafted by 13 the prosecution, trial counsel misstated the law when he asked a potential juror “if you 14 got to the penalty phase we would be talking about guilt of intentional, deliberate first 15 degree murder[.]” (7 RT 1458.) 16 Trial counsel’s approach to the case was that felony murder was the 17 predominant theory of murder. (See, e.g., NOL C2 Ex. 12 at 107; Ex. 150 at 2730.) 18 Abdicating responsibility to the prosecution to draft vital questions for the juror 19 questionnaire regarding a prospective juror’s potential sentencing bias against those 20 convicted of both a felony and a murder was objectively unreasonable. 21 Had trial counsel undertaken minimal steps to ensure a fair and legally complete 22 juror questionnaire, the jury chosen to render petitioner’s guilt and penalty verdicts 23 would have been impartial. Unfortunately, counsel’s failure to ensure that only jurors 24 who were not biased, understood, and agreed to follow the law sat on petitioner’s jury, 25 resulted in verdicts that can only be explained by the jury’s inability to follow, or 26 worse, their blatant disregard for the law. Several of the jurors based their verdicts on 27 their emotional reaction to the case, and not on the law. (E.g., NOL C2 Ex. 9 at 94-96 28 (Declaration of Emil Ruotolo); NOL C2 Ex. 139 at 2693 (Declaration of Blanche 52 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Harris-Goosby).)12 2 “undermine[s] confidence in the outcome actually reached” at trial. Rompilla v. Beard, 3 545 U.S. at 393, 125 S. Ct. at 2469, 162 L. Ed. 2d 360 (inner citation omitted.) Trial counsel’s deficient performance in jury selection F. Trial Counsel Unreasonably and Prejudicially Failed to Investigate and 4 Impeach Pamela Miller, a Critical Prosecution Witness. 5 6 In December 1993, trial counsel requested that the trial court order the 7 prosecution to disclose “RAP” sheets (criminal histories) for the prosecution’s 8 witnesses, arguing “I would like to indicate that the credibility of two of the witnesses 9 in particular Pamela Miller and Shamaine Love are very important in the case and any 10 impeachments of them by their prior record would be important.” (1 RT 529.) 11 Although counsel understood the importance of Ms. Love to the prosecution’s case; he 12 unreasonably failed to conduct even a minimal investigation into her criminal 13 background or the status of any pending cases against her. See, e.g., Thompson v. 14 Calderon, 120 F.3d 1045 (counsel unreasonably failed to discover and present 15 impeachment evidence); see also Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 16 1110, 39 L. Ed. 2d 347 (“Cross-examination is the principal means by which the 17 believability of a witness and the truth of his testimony are tested. … One way of 18 discrediting the witness is to introduce evidence of a prior criminal conviction of that 19 witness.”). 20 As demonstrated below and in the Petition at pages 64-67, petitioner has 21 demonstrated his entitlement to an evidentiary hearing by alleging a colorable claim 22 23 12 24 25 26 27 28 Jurors Rutolo’s and Harris-Goosby’s declarations are not offered to impeach the verdict based on revelations concerning the jurors’ subjective thought processes. See Fed. R. Evid. 606(b); Tanner v. United States, 483 U.S. 107, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987) (juror affidavits are admissible only to show “external” matters, i.e., “improper outside influences” and the introduction of extraneous information). Rather, their observations are proffered to show how the question of the appropriate sentence, “apparent to one on the spot,” was viewed. Lowenfield v. Phelps, 484 U.S. 231, 240, 108 S. Ct. 546, 552, 98 L. Ed. 2d 568 (1988). 53 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 for relief as a result of trial counsel’s unreasonable failure to investigate and present 2 evidence to impeach the testimony and credibility of Ms. Love. 3 1. Trial Counsel Unreasonably Failed to Investigate And Develop 4 Criminal History and Other Evidence To Impeach A Key 5 Prosecution Witness Was Prejudicial. 6 Ms. Love testified at the preliminary hearing that she was selling drugs to 7 petitioner at least four to five months prior to the crime. (1 CT 45.) Trial counsel 8 knew that she could give the same false testimony at trial and was, therefore, on notice 9 of his duty to demonstrate that she was not a credible, reliable, or unbiased witness. 10 Trial counsel knew that Ms. Love had a criminal history worthy of further 11 investigation. Counsel obtained a police report, dated October 26, 1992, that detailed a 12 police raid of Ms. Love’s home and her subsequent arrest. (NOL C2 Ex. 120.) On 13 October 26, 1992, two months before she was to testify at petitioner’s preliminary 14 hearing, the police executed a search warrant at Ms. Love’s home and found illegal 15 drugs and a .12 gauge shotgun. (Id. at 2467.) Ms. Love was arrested for the unlawful 16 possession of controlled substances—a quantity of cocaine (approximately 6 grams) 17 and marijuana (approximately 38 grams) of sufficient size to merit felony charges. 18 Three days after her arrest, the same District Attorney’s Office that was preparing to 19 prosecute petitioner declined to prosecute Ms. Love, and instead dismissed all charges 20 against her. (Id. at 2474.) Her case was allegedly referred to the City Attorney’s 21 office for a simple misdemeanor prosecution. (Id.) A California Law Enforcement 22 Telecommunication System printout revealed that on November 2, 1992, all charges 23 against Ms. Love had been dropped in the “Interest of Justice.” 24 Trial counsel knew, or reasonably should have known, Ms. Love had received 25 highly favorable treatment by the prosecution, but he unreasonably failed to question 26 her about it. There was no tactical reason for counsel’s failure to ask Ms. Love if she 27 received such favorable treatment in exchange for her false, inculpatory testimony 28 against petitioner. Trial counsel’s failure to question Ms. Love about the dismissal of 54 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 her drug charges by the same agency prosecuting petitioner was objectively 2 unreasonable. 3 Trial counsel further unreasonably failed to impeach Ms. Love’s testimony and 4 corroborate petitioner’s testimony with official records and a law enforcement witness. 5 Trial counsel possessed a copy of petitioner’s official parole records, and he had 6 spoken to petitioner’s parole agent, Rolondo Sizemore. The official parole record 7 could have served as formal documentation and Mr. Sizemore could have testified to 8 each of petitioner’s clean drug tests. 9 witnesses of such a nature that corroboration most certainly would have been of critical 10 value to the jury,”13 trial counsel’s failure to use official evidence from official 11 documents and witnesses to support petitioner’s testimony was objectively 12 unreasonable and prejudicial. Riley v. Payne, 352 F.3d 1313, 1324 (9th Cir. 2003). 2. 13 Since “[t]his was a cast of characters and Trial Counsel’s Failure to Investigate And Develop Criminal 14 History and Other Evidence To Impeach A Key Prosecution 15 Witness Was Prejudicial. 16 Trial counsel’s failure to investigate, develop, and present evidence to impeach 17 Ms. Love’s credibility and impartiality, damaged the defense case. By failing to 18 impeach Ms. Love with her windfall dismissal of drug charges, counsel failed to 19 discredit her testimony regarding petitioner’s early drug use. 20 evidence that supported petitioner’s testimony, that prior to the day of the crime he had 21 not used cocaine since 1985 (24 RT 3593-94), was petitioner’s additional 22 uncorroborated testimony that he had been subjected to random drug tests while he 23 was on parole. 24 corroboration, this testimony required jurors to know that a single positive drug test 25 was sufficient to revoke his parole and result in him being returned to prison. That she 26 27 28 (22 RT 3296.) The only potential Aside from coming from petitioner with no 13 Prosecution witnesses Pamela Miller’s and Shamaine Love’s relationship with petitioner gave them an aura of false credibility. For example, when Ms. Love testified that “she was a good friend of Mr. Jones and the victim’s daughter,” one juror “realized she did not have any reason to lie.” (NOL C2 Ex. 9 at 93.) 55 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 received the dismissal of potential felony drug charges for no apparent reason would 2 have assisted the jury in properly determining Ms. Love’s credibility and bias. By 3 failing to impeach Ms. Love’s testimony, trial counsel failed to support and 4 corroborate petitioner’s credibility and testimony, and that part of the mental state 5 defense that relied on his recent drug use. See, e.g., Riley v. Payne, 352 F.3d at 1324 6 (counsel’s failure to interview and offer testimony corroborating self-defense theory 7 was prejudicial). But for trial counsel’s failure to impeach Ms. Love and support 8 petitioner’s testimony, credibility and mental state defense the result of the trial would 9 have been different. Id. 10 11 G. Trial Counsel Unreasonably Failed to Investigate and Fully Litigate the Admissibility of Prior Crimes Evidence. 12 Trial counsel was aware that the prosecution intended to use petitioner’s prior 13 crimes at trial; however, he unreasonably and prejudicially failed to adequately 14 investigate the prior crimes, their admissibility, and potential defenses to them. See 15 Rompilla v. Beard, 545 U.S. at 383, 125 S. Ct at 2464, 162 L. Ed. 2d 360 (counsel’s 16 failure to investigate petitioner’s prior convictions he knew would be used in 17 aggravation “fell below the level of reasonable performance.”); (Ex. D at 35 (the 18 standard of care at the time of petitioner’s trial “required defense counsel to conduct an 19 investigation of the defendant’s criminal history and account for the possibility that the 20 prosecution might seek to introduce evidence about the defendant’s prior criminal 21 conduct at the guilt or penalty phases of the trial.”)). Had trial counsel undertaken 22 such an investigation, he would have been prepared to challenge the admissibility of 23 the prior crimes and, if admitted, should have been able to restrict their use at trial and 24 offer mitigating aspects of the prior crimes to the jury. 25 As demonstrated below and in the Petition at pages 67-71 and 144-54, petitioner 26 has demonstrated his entitlement to an evidentiary hearing by alleging a colorable 27 claim for relief as a result of trial counsel’s unreasonable failure to investigate, litigate, 28 and mitigate the prior crimes evidence. 56 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1. 1 Trial Counsel Unreasonably Failed To Investigate Prior Crimes Evidence. 2 3 Trial counsel unreasonably and prejudicially failed to investigate and mitigate 4 petitioner’s prior crimes. Trial counsel had no reason for failing to investigate the facts 5 surrounding petitioner’s prior convictions since he believed that they, and the present 6 charges, strongly indicated that petitioner suffered from a serious mental illness. 7 (NOL C2 Ex. 150 at 2731.) a. 8 Harris Conviction. 9 In light of trial counsel’s ultimate concession to the admission of the facts of the 10 Doretha Harris case at the guilt phase (2 RT 724), counsel had a duty to investigate this 11 prior conviction in an effort to mitigate its effect on the jury. Trial counsel failed to 12 obtain easily discoverable facts about petitioner’s deteriorating mental state around the 13 time of the Harris crime. Had trial counsel performed reasonably and interviewed 14 petitioner’s friends and family, he could have presented compelling evidence of 15 petitioner’s mental deterioration immediately prior to the crime. Trial counsel’s failure 16 to conduct a constitutionally adequate investigation deprived petitioner’s jury from 17 hearing and considering important evidence such as petitioner’s increased drug use, 18 homelessness, and his increasingly irrational behavior prior to his assault on Mrs. 19 Harris. 20 Mrs. Harris told the police that she heard glass breaking when she was in her 21 kitchen making lunch (NOL C2 Ex. 136 at 2669), and that petitioner asked her to kill 22 him with a knife that he picked up near the bedroom’s hallway door. (Id. at 2670.) 23 Mrs. Harris never reported or testified that petitioner entered her home armed. (Id. at 24 2669; 20 RT 3163-64, 3176.) Instead, Mrs. Harris had the knife when she encountered 25 petitioner in her hallway. The vital fact that Mrs. Harris was armed with a nine inch 26 knife when she first encountered petitioner was not included in her testimony at 27 petitioner’s trial. (20 RT 3163, 3170-72.) The addition of this critical fact helps 28 demonstrate why petitioner’s psychotic break was triggered—he felt his life was 57 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 threatened when he was confronted by Mrs. Harris holding a nine inch kitchen knife. 2 (See also NOL C2 Ex. 178 at 3152, 3155 (stressful events petitioner perceives as 3 threatening trigger dissociative episodes).) 4 b. Kim Jackson. 5 Trial counsel was impressed with Kim Jackson’s strong sense of empathy and 6 compassion for petitioner after his arrest, and her preference that his obvious mental 7 illness be treated in lieu of punishment. (NOL C2 Ex. 12 at 107.) Despite this, trial 8 counsel unreasonably made only a token attempt to contact and interview this witness 9 who could have given compelling mitigating evidence. 10 Similar to the instant crime, petitioner did not initially perceive a threatening 11 situation, during the Jackson incident. It was only during the course of smoking 12 marijuana and drinking alcohol with Ms. Jackson that petitioner misperceived a threat, 13 and as a result of a psychotic break, became completely unaware of, and unable to 14 regulate, his actions. 15 Ms. Jackson began talking about petitioner’s brother Carl who had been killed 16 recently. Notwithstanding the fact that the topic was too difficult for him, Ms. Jackson 17 continued making comments about Carl, while petitioner became increasingly agitated. 18 (NOL C2 Ex. 178 at 3146.) As he became more unstable, petitioner felt that he had to 19 leave, so Ms. Jackson left the room to retrieve his coat. (Id.) The drugs and alcohol he 20 had consumed exacerbated petitioner’s mental illness. 21 friendship, he misperceived Ms. Jackson’s comments and abrupt departure to retrieve 22 his coat as threats to his safety. 23 petitioner’s mental illness and severe brain damage made him highly susceptible to 24 misperceiving social cues (see, e.g., NOL C2 Ex. 175 at 3065), the addition of drugs 25 and alcohol significantly increased this vulnerability. 26 mental state, petitioner’s tenuous grasp on reality disintegrated and he experienced a 27 psychotic episode. (NOL C2 Ex. 178 at 3155-56.) (Id. at 3156-57.) Despite their longstanding Without drugs and alcohol, Already in a compromised 28 58 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Prior to the incident with Ms. Jackson, petitioner behaved in the same odd and 2 bizarre manner as he did before the Miller crime. His family noticed that he “began to 3 live in his own world more often.” (NOL C2 Ex. 16 at 167.) Petitioner would often sit 4 awake all night “in the dark, silent and by himself, for hours, just staring out and 5 saying nothing.” (Id. at 168.) It was difficult to talk to petitioner because often “he 6 did not remember later that you had tried to talk to him” and he appeared to be “lost 7 somewhere in his own mind.” (Id. at 167.) 8 These compelling facts that mitigate the prior convictions and corroborate 9 petitioner’s mental state defense were not heard by petitioner’s jury because of trial 10 counsel’s wholly unreasonable failure to investigate the Harris and Jackson prior 11 convictions. 12 2. 13 Trial Counsel Unreasonably Failed To Present Meritorious Reasons to Exclude Evidence of the Harris Crime. 14 Trial counsel unreasonably and prejudicially failed to investigate, and marshal 15 available evidence, in support of his opposition to the prosecution’s motion to 16 introduce the facts of the Doretha Harris sexual assault case, pursuant to Evidence 17 Code section 1101(b). Trial counsel’s failure to develop a strategy for addressing the 18 prosecution’s use of this evidence, in the event that it was held admissible in the guilt 19 phase, and to ensure that the jury received all necessary instructions to prevent the 20 impermissible use, or influence, of the prior crimes evidence fell below the standard of 21 care for capital defense attorneys. See, e.g., Crotts v. Smith, 73 F.3d 861 (9th Cir. 22 1996), superseded by statute on other grounds, as stated in Van Tran v. Lindsay, 212 23 F.3d 1148 (9th Cir. 2000) (counsel unreasonably failed to object to highly prejudicial 24 testimony that was likely inadmissible.) 25 The prosecution filed a motion to allow the introduction of the facts of the 26 Harris sexual assault to help establish identity, intent, and common scheme or plan for 27 the rape charge in the capital case. (II Supp. 1 CT 1-9.) Trial counsel opposed the 28 motion, both in writing and orally; however, in doing so he unreasonably failed to set 59 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 forth critical facts and explain how they prevented the Harris crime from having any 2 legally permissible evidentiary value to the current crime. Reasonably competent 3 counsel would have presented the following reasons for denying the prosecution’s 4 motion. 5 6 a. The Harris Attack Was Not Probative Of A Common Plan or Scheme. 7 Petitioner’s mental illness precluded any ability to plan the Harris crime. (NOL 8 C2 Ex. 178 at 3155-54.) Petitioner’s actions during the entirety of the Harris incident, 9 a chaotic and disturbed series of events, demonstrated his inability to plan. At that 10 time, petitioner was homeless and experiencing extreme stress and mental turmoil. 11 (NOL C2 Ex. 8 at 88; NOL C2 Ex. 14 at 137.) The day of the crime, he went 12 searching for his ex-girlfriend, Glynnis Harris, and their son, Tristan, at the home of 13 Glynnis’s mother, Mrs. Harris. Petitioner was motivated by the paranoid belief that 14 Glynnis and her mother would never allow him to see his son again. (NOL C2 Ex. 178 15 at 3147.) As petitioner stood outside the residence, he fell into a trance-like state and 16 began to hear voices. (Id.) Though he had decided against entering the home just 17 moments earlier, along with voices in his head—which had become overwhelming— 18 petitioner “felt an overwhelming force driving him to go into the house.” 19 Petitioner felt as though he was watching a movie where he could view, but not control 20 his actions. (See also NOL C2 Ex. 154 at 2754-55 (Dr. Thomas determined at the time 21 of the Miller crime petitioner “was not in control of any of his actions during this 22 incident; at best, he was a spectator, watching someone else act, as if watching a movie 23 of himself. He was therefore not in a position to appreciate the moral quality of his 24 behavior, or distinguish right from wrong in those moments.”).) The tragic encounter 25 that took place that day was the direct result of petitioner’s psychosis, paranoia, and 26 stress and fear induced dissociation. (NOL C2 Ex. 178 at 3155-54.) (Id.) 27 Petitioner’s inability to plan a crime at this time is evidenced by the rash and 28 erratic nature of his encounter with Mrs. Harris. In broad daylight, he smashed and 60 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 crawled through a bedroom window (20 RT 3162-63); when he saw Mrs. Harris in the 2 hallway with a knife, he engaged in an abrupt and disjointed assault on her. (Id. at 3 3163-69.) Following the assault, he curled up on the bed and fell asleep rather than try 4 to leave (NOL C2 Ex. 136 at 2670; 20 RT 3169). When he awoke, he still did not 5 leave; he sat with Mrs. Harris and cried while viewing a picture of himself with 6 Glynnis and Tristan. (20 RT 3171.) 7 encounter and did not wield a weapon against Mrs. Harris (see id. at 3172); the only 8 time petitioner handled a weapon was when he picked up the knife Mrs. Harris 9 dropped, pressed it to his stomach, and pleaded with her to kill him. (Id.; see also II 10 Supp. 1 CT 47 (preliminary hearing testimony of Mrs. Harris); NOL C2 Ex. 136 at 11 2669-70 (police report).) Petitioner “became remorseful and expressed sorrow” over 12 Mrs. Harris’s injuries. (II Supp. 1 CT 19 (Harris police report).) He obtained alcohol 13 and cotton and applied alcohol to the injuries on Mrs. Harris’s neck with the cotton. 14 Mrs. Harris declined his offer to “apply alcohol to [her] eye and face.” (Id.) Those 15 who observed petitioner following his arrest recognized that the confusing, disordered, 16 and bizarre events were the product of mental illness rather than methodical thought. 17 (NOL C2 Ex. 104 at 2177 (an in-custody evaluation of petitioner concluded his offense 18 reflected “underlying mental and emotional problems”); id. at 2184 (investigating 19 officer said petitioner was mentally ill).) Petitioner did not arm himself before the 20 Trial counsel’s mental health expert determined, at the time of the instant crime, 21 petitioner suffered a psychotic break. (30 RT 4428, 4442.) Trial counsel had no 22 tactical reason for not presenting this evidence to the trial court to demonstrate that the 23 Harris attack could not show a common plan or scheme for the capital crime. At the 24 time of his attack on Mrs. Miller, petitioner “was not in control of any of his actions,” 25 (NOL C2 Ex. 154 at 2755); therefore, he was unable to plan, or rely upon any 26 hypothetical previously conceived plan. 27 Trial counsel possessed the facts of the Harris case, the opinions of law 28 enforcement that petitioner’s crime was the result of mental illness, and the expert 61 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 opinion of Dr. Thomas. (NOL C2 Ex. 136; NOL C2 Ex. 104 at 2177, 2184; NOL C2 2 Ex. 154.) The crucial information from petitioner and his family and friends regarding 3 his highly impaired functioning at the time of the crime was readily available had 4 counsel performed reasonably and conducted a minimally adequate investigation of 5 this prior crime and timely hired mental health experts. b. 6 The Harris Attack Was Not Sufficiently Similar To The Miller Case To Be Probative Of The Disputed Issues At Trial. 7 8 Petitioner had a friendly relationship with Julia Miller (16 RT 2556), and was 9 involved in a casual relationship with her daughter, Pam Miller, at the time of the 10 crime (see 22 RT 3297 (petitioner knew Ms. Miller was having an affair with Sonny 11 Brooks)). In contrast, Mrs. Harris and petitioner had a strained, distrustful relationship 12 (NOL C2 Ex. 14 at 136), and petitioner was estranged from her daughter, Glynnis, at 13 the time of the attack (id. at 137; 20 RT 3162). 14 The Harris crime involved petitioner entering the home without permission, and 15 the assault ensuing almost immediately upon entry. In the latter case, petitioner was 16 invited into Mrs. Miller’s home, the two socialized and Mrs. Miller prepared food for 17 petitioner. (26 RT 3904.) 18 Petitioner was the initial aggressor in the Harris incident; Mrs. Harris never 19 fought back. (See Ex. 136; 20 RT 3163 et seq.) Mrs. Miller, after a congenial chat 20 with petitioner, began yelling and suddenly attacked him with a knife, and threatened 21 to kill him with a rifle. (22 RT 3329-30, 3333.) 22 At the time of the Harris crime, petitioner had no job and no source of income. 23 (NOL C2 Ex. 14 at 136-37.) He took forty dollars from the victim’s purse, but he did 24 not take jewelry or other items. (NOL C2 Ex. 136 at 2670.) In contrast, at the time of 25 the capital crime, petitioner was receiving over $150 a month from the county General 26 Relief program. (22 RT 3381; NOL C2 Ex. 8 at 89.) He did not take credit cards or 27 checks from the victim despite the availability of these items in Mrs. Miller’s purse. 28 (17 RT 2719.) 62 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Most significantly, the different nature of the crimes themselves precluded the 2 Harris crime from having any probative value as to the capital crime. The prior crime 3 did not involve a homicide. 4 petitioner; there was no evidence of semen, and the victim was sodomized. Rape was 5 the primary issue in the Harris case. (NOL C2 Ex. 136; II Supp. 1 CT 19-24.) By 6 contrast, the pivotal factual issues in the second crime were intent and timing: Did 7 petitioner form the intent to rape Mrs. Miller prior to her death and was she attacked 8 and killed before she was ever penetrated sexually. 9 10 11 There was no weapon used or even brandished by Trial counsel possessed the above information and unreasonably failed to demonstrate the utter dissimilarity of the prior and capital crimes. c. The Prior Crime Was Not Probative On The Issue Of The Specific Intent Required For The Capital Charges. 12 13 The Harris rape was a general intent crime; the requisite elements consisted of 14 the commission of particular acts. (See, e.g., 2 CT 314 (CALJIC 10.00 - Rape of Non- 15 Spouse).) The formation of specific intent is required for rape felony murder (id. at 16 291 (CALJIC 8.21 First Degree Felony Murder)) and the rape special circumstance (id. 17 at 307 (CALJIC 8.80.1 (1993 Revision) Special Circumstances). Thus, the prior rape, 18 a general intent crime, could have no probative value on the disputed issues in 19 petitioner’s capital trial. 20 d. The Prior Crime Was Not Probative Of Petitioner’s Identity. 21 Identity was never a disputed issue in petitioner’s trial. Prior to the admission of 22 evidence regarding the prior crime, the court had already ruled that DNA evidence 23 identifying petitioner as the perpetrator was admissible in the capital case. (1 RT 686.) 24 Counsel’s failure to investigate the prior crime and his failure to use the facts 25 and evidence in his possession, to demonstrate the dissimilarity between the prior and 26 capital crimes, was not tactical. A tactical decision could not have been made since 27 defense counsel failed to “conduct a reasonable investigation enabling him to make 28 informed decisions about how best to represent his client.” Sanders v. Ratelle, 21 F.3d 63 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 1446, 1456 (9th Cir. 1994); see Strickland v. Washington, 466 U.S. at 690-691, 104 S. 2 Ct. at 2066-67, 80 L. Ed. 2d 674 (only “strategic choices made after thorough 3 investigation of law and facts relevant to plausible options are virtually 4 unchallengeable.”). Aside from his failure to adequately investigate, that counsel “did 5 not want any evidence of the facts surrounding Mr. Jones’s prior conviction for the 6 rape of his girlfriend’s mother to come before the jury at all” (NOL C2 Ex. 12 at 108), 7 strips any semblance of strategy from his failure to reasonably investigate and 8 demonstrate the dissimilarities between the Harris prior and the capital crime to 9 prevent admission of the Harris prior in the guilt phase. 3. 10 Trial Counsel Unreasonably Failed To Object To The Trial Court’s 11 Use of The Wrong Legal Standard In Determining Whether to 12 Admit the Harris Crime. 13 After the trial court held that the prior crimes evidence was probative of intent, 14 identity, and common plan or scheme, he deferred the Evidence Code section 352 15 ruling. The judge stated “obviously your biggest concern on behalf of your client in a 16 setting of discussion [sic] would be whether the prejudicial effect totally outweighs the 17 probative value. . . . But under the 352 weighing process, it is my intention to wait to 18 make a determination on whether or not I would permit it.” (14 RT 2377 (emphasis 19 added).) Trial counsel unreasonable failed to object to the trial court’s use of the 20 incorrect standard. No tactical reason existed for trial counsel’s failure to inform the 21 court that the proper legal standard - one much more favorable to petitioner - was that 22 the probative value of the evidence sought to be admitted must substantially outweigh 23 the probability that admission will create a substantial danger of prejudice. Cal. Evid. 24 Code § 352 (West 1994). 25 // 26 // 27 // 28 // 64 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 4. Trial Counsel Unreasonably Failed To Ensure That The Jury Was 2 Properly And Adequately Instructed On The Limited Purpose For 3 Which The Prior Crimes Evidence Was Admitted. 4 Trial counsel unreasonably failed to ensure the jury received only instructions 5 that would properly limit its use and consideration of the prior crimes evidence. See, 6 e.g., White v. McAninch, 235 F.3d 988 (6th Cir. 2000) (counsel ineffective for failing 7 to seek limiting instructions on, inter alia, evidence of uncharged offense). As a result 8 of trial counsel’s deficient performance, petitioner’s jury received two instructions, 9 CALJIC 2.50 and CALJIC 17.18, (2 CT 270, 323-24, respectively), that encouraged 10 them to use the Harris sexual assault as propensity evidence. 11 CALJIC 2.50 was modified by deleting this crucial sentence: “You are not 12 permitted to consider such evidence for any other purpose.” (Id. at 270.) As modified, 13 CALJIC 2.50 allowed petitioner’s jury to consider the prior crimes evidence in 14 determining virtually every facet of the case: motive, intent, identity, and common 15 scheme or plan. The instruction absolutely failed to prevent the jury from drawing 16 improper propensity inferences because it specifically informed the jurors that the prior 17 crimes evidence could be used to determine the issues before them. CALJIC 17.18 18 (“Defendant Served Prior Term in Prison”), an instruction that should not have been 19 given, compounded the error and prejudice of CALJIC 2.50 by repeating the prior 20 crimes evidence and instructing the jury to consider this evidence for improper 21 purposes. (Id. at 323-24.) 22 Petitioner was further prejudiced when the court improperly gave the jury 23 CALJIC Instruction 17.18 (“Defendant Served Prior Term in Prison”). (2 CT 323-24.) 24 The court modified this instruction by adding, to the sentence “You shall not consider 25 such allegation or evidence offered thereon in your determination of the defendant’s 26 guilt of the crimes for which he is now on trial,” the clause “except for the limited 27 purposes as stated previously in these instructions.” (Id. at 323.) Where, as here, 28 “Defendant admits prior conviction and service of prison term and testifies on his own 65 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 behalf,” CALJIC Instruction 17.18 should not be given. CALJIC, Use Note to 2 CALJIC No. 17.18 (5th ed. 1988) at 446. This instruction thus was improper under the 3 circumstances and, with the court’s amendment, reiterated to the jury that the 4 irrelevant and prejudicial prior crimes evidence could be considered when deliberating 5 every element of each “crime for which [petitioner] is now on trial.” (2 CT 323.) 6 Trial counsel’s objectively unreasonable failure to request the appropriate 7 limiting instructions, prevented the jurors from being able to make the crucial legal 8 distinction that the prior crimes evidence must not be considered in evaluating the 9 elements of the capital case. 10 5. Trial Counsel Unreasonably Failed To Request Reconsideration Of The Admissibility Of The Prior Crimes Evidence. 11 12 The prosecution argued that it needed the prior crimes evidence to help prove 13 that Mrs. Miller was raped. (1 RT 680-81.) The prosecution stated the prior crimes 14 evidence would be unnecessary if trial counsel conceded the rape. (Id.) Once the 15 DNA evidence was held admissible, trial counsel planned his defense around 16 conceding the rape charge. (NOL C2 Ex. 12 at 106, 107; NOL C2 Ex. 150 at 2730.) 17 Trial counsel’s failure to request reconsideration of the prior crimes evidence in light 18 of his intention to concede that the victim had been raped was unreasonable. Trial 19 counsel planned to concede the rape charge and he tried to prevent the admission of the 20 prior crimes evidence. (NOL C2 Ex. 12 at 108 (“I did not want any evidence of the 21 facts surrounding Mr. Jones’s prior conviction for the rape of his girlfriend’s mother to 22 come before the jury at all.”).) No tactical reason could exist, therefore, for counsel’s 23 failure to prevent the admission of this highly prejudicial evidence. 24 6. Trial Counsel Unreasonably Failed To Object To The Prosecution’s 25 Improper Use Of The Prior Crimes Evidence As Propensity 26 Evidence. 27 The prosecution egregiously violated petitioner’s constitutional rights to due 28 process and a fair trial by continually encouraging the jury to consider the prior crimes 66 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 evidence to draw impermissible conclusions. The prosecution was allowed to make 2 repeated and unjustified references to petitioner’s conviction for the prior crimes, and 3 by doing so effectively shifted the burden of proof from the prosecution onto 4 petitioner, as a result of defense counsel’s patently unreasonable, and continual, failure 5 to object. Counsel’s unreasonable failure to object permitted the prosecution to use, 6 and urge the jury to use, the prior crimes evidence, as unadulterated, improper 7 propensity evidence. 8 The prosecution compensated for the lack of evidence as to petitioner’s specific 9 intent to rape, and the lack of evidence countering petitioner’s defense of mental 10 disturbance and intoxication, by improperly and prejudicially referring to prior crimes 11 to which petitioner had plead guilty: 12  The last request the prosecutor made to the jury at the close of the 13 guilt phase was, “to accept that [petitioner] formed the specific intent 14 to rape the same way he did it with Mrs. Harris, and to come back 15 with the first degree murder.” (27 RT 3991-92.) Such a request was 16 deliberately misleading and dishonest as specific intent to rape was 17 not an element of the prior crimes; however, trial counsel 18 unreasonably failed to object. 19  As to the timing of the sexual contact, which the jury would have 20 had to find occurred prior to the murder to convict petitioner of rape, 21 felony murder rape and find true the special circumstance allegation, 22 the prosecutor argued that petitioner, “tied her up just like he tied up 23 Mrs. Harris, … [h]e did that first.” (26 RT 3902.) 24  The prosecutor argued that the jury could find evidence of intent 25 from the assertion that the prior crime and the capital crime were 26 “[t]he same thing except this time she is killed.” (27 RT 3978.) 27 // 28 // 67 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1  The occurrence of the rape charged at trial could be inferred from the 2 prior crime, the prosecution argued, because “[h]e had done it, the 3 same thing, to his prior girl friend’s mother.” (26 RT 3902.) 4  The prosecution urged the jury not to believe petitioner’s defense 5 because, “you find out that he has been out of prison for less than a 6 year for committing an almost identical offense, but for the fact that 7 he killed her.” (27 RT 3991.) 8  Discussing petitioner’s prior guilty plea to burglary, the prosecutor 9 also improperly suggested the jury consider that “people who do 10 similar acts often harbor similar intents when they commit those 11 acts.” (Id. at 3976.) 12 Trial counsel had no tactical reason for failing to protect petitioner from the 13 prosecution’s unlawful use of propensity evidence, as well as its prejudicial 14 exhortation to the jury to impermissibly use propensity evidence to convict petitioner 15 of rape and find the rape special circumstance true. 16 7. Trial Counsel’s Deficient Performance Was Prejudicial. 17 Trial counsel admits that the bizarre nature of petitioner’s prior convictions 18 triggered his interest in pursuing a mental state defense. (NOL C2 Ex. 150 at 2731.) 19 Despite counsel’s recognition that the prior crimes were bizarre, he unreasonably 20 failed to investigate them. Counsel’s failure to investigate the prior crimes deprived 21 petitioner of vital evidence regarding his mental state during each of his priors that 22 would have supported his mental state defense as well as Dr. Thomas’ testimony and 23 opinion, demonstrated the impossibility that the Harris prior revealed a common 24 scheme or plan, and provided rich mitigation evidence. 25 Investigation of the prior convictions revealed facts that provide further support 26 for Dr. Thomas’s diagnosis that petitioner suffered from severe mental illnesses and 27 additional evidence that petitioner was suffering from these disorders at the time Mrs. 28 Miller was murdered. No tactical or logical reason exists for reasonably competent 68 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 trial counsel to fail to present corroborated expert mental health evidence that 2 petitioner was unable to form the requisite intent for the charged crimes. If he had 3 investigated and obtained these facts, trial counsel could have presented a mental 4 health expert to the jury to explain that, as with each of his other two offenses, 5 petitioner’s psychotic break, prior to the incident with Mrs. Miller, was preceded by a 6 perceived threat to his safety. (NOL C2 Ex. 178 at 3156.) In light of such evidence, 7 the jury would have been unable to find that petitioner was able to form the requisite 8 intent for any of the charged crimes. 9 Trial counsel’s failure to investigate the facts surrounding the Harris conviction 10 also led him to incorrectly and prejudicially argue that petitioner went to the Harris 11 household with the intention of raping Mrs. Harris. Trial counsel argued in closing 12 that “there is no doubt that when Mr. Jones entered Mrs. Harris’s house about ten years 13 ago there was a burglary … There is no question about that and Mr. Jones admits that.” 14 (26 RT 3925.) Contrary to trial counsel’s argument, petitioner testified that he did not 15 enter the Harris household with the intent to commit a crime; he went there to talk to 16 the mother of his son. (22 RT 3371.) Petitioner’s “heightened paranoia” created and 17 fed the delusion that Glynnis Harris and her mother “were out to get him” and were 18 plotting to keep his son Tristan from him. (NOL C2 Ex. 178 at 3147.) Trial counsel’s 19 failure to investigate the Harris case, or even to listen to his client’s trial testimony, led 20 to an unnecessary, erroneous, and highly prejudicial concession that allowed the 21 prosecution to argue that even according to his attorney, petitioner was lying about the 22 facts of the Harris case. (27 RT 3976 (“Mr. Manaster said there’s no doubt he 23 committed the burglary back when he went into Mrs. Harris’ location. . . .Mr. Jones 24 didn’t even own up to that in front of you.”).) 25 The prosecution’s evidence against petitioner was weak in the absence of the 26 improper propensity evidence. Critically, the jury rejected all counts relating to 27 burglary and robbery, leaving rape the only special circumstance they found to be true. 28 (2 CT 365.) The disputed issues regarding the rape-related allegations—whether 69 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 petitioner had the specific intent for rape felony murder and whether the sequence of 2 events supported a rape special circumstance—were similarly weak. There was no 3 evidence presented to counter petitioner’s defense of mental disturbance and 4 intoxication, and no testimony supporting the prosecution’s argument that Ms. Miller 5 had been raped before she was killed. 6 Counsel failed to conduct sufficient investigation from which he could 7 reasonably determine no further investigation was necessary. See, e.g., Strickland v. 8 Washington, 466 U.S. at 690, 104 S. Ct. at 2065, 80 L. Ed. 2d 674; Sanders v. Ratelle, 9 21 F.3d at 1456. Trial counsel, therefore, had no tactical reason for failing to 10 investigate the prior crimes evidence, adequately litigate its admissibility, use the 11 evidence to support guilt and penalty defenses, object to its repeated misuse by the 12 prosecution, and to ensure the jury was instructed on its sole and proper use. 13 As a result of counsel’s deficient performance, the jury was instructed to rely on 14 evidence that suggested petitioner had the propensity to rape his girlfriend’s mothers, 15 this unconstitutional tipping of the balance in favor of conviction and a finding that the 16 rape special circumstance was true, “undermine[s] confidence in the outcome actually 17 reached at trial.” Rompilla v. Beard, 545 U.S. at 393, 125 S. Ct. at 2469, 162 L. Ed. 2d 18 360 (inner citation omitted). 19 20 H. Trial Counsel Unreasonably Failed to Request Necessary and Proper Jury Instructions and Verdict Forms. 21 Trial counsel unreasonably failed to request appropriate and necessary jury 22 instructions on the substantive crime of rape and failed to ensure the jury had adequate 23 and complete verdict forms for the special circumstance allegations. See, e.g., Pirtle v. 24 Morgan, 313 F.3d 1160 (9th Cir. 2002) (deficient performance found where counsel 25 put on evidence to show petitioner was unable to premeditate and failed to request 26 diminished capacity instruction); Harris ex rel. Ramseyer v. Wood, 64 F.3d at 1438 27 (among the deficiencies that amounted to cumulative error was counsel’s “failure to 28 propose, or except to, jury instructions”). 70 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 As demonstrated below and in the Petition at pages 75-81, petitioner has 2 demonstrated his entitlement to an evidentiary hearing by alleging a colorable claim 3 for relief as a result of trial counsel’s unreasonable failure to request all necessary jury 4 instructions and ensure the verdict forms are complete. 1. 5 Counsel Failed To Request Appropriate And Necessary Jury Instructions For The Crime Of Rape. 6 7 Trial counsel failed to seek an instruction that for the crime of rape to occur, the 8 perpetrator must harbor the intent to rape while the victim is alive. The guilt phase 9 instructions failed to inform the jurors that to find that the crime of rape occurred, they 10 had to first determine that the victim was alive at the time the attempt to rape was 11 initiated. Trial counsel requested, and was granted, a similar instruction on robbery, 12 which explained that the victim must be alive when the property is taken in order to 13 constitute robbery. (26 RT 3803-05; 2 CT 318.) Counsel’s failure to request a similar 14 instruction for the substantive crime of rape was objectively unreasonable. Not only 15 was this a crucial factor in the case, that the jury received such an instruction regarding 16 robbery, but not rape, would lead it to believe that unlike robbery a rape does not 17 require a living victim. 18 Trial counsel was acutely aware of the high potential for juror confusion. He 19 requested clarifying instructions on the special circumstances, including the rape 20 special circumstance, (2 CT 352-54), and he expressed concern that the differing intent 21 requirements for the rape charge and allegations would be confusing for the jury (22 22 RT 3361-62.) Counsel’s failure to request a clarifying instruction of equal importance 23 is inexcusable, and particularly egregious in light of his valid concern for juror 24 confusion. 25 2. Counsel Failed To Ensure The Verdict Forms Were Complete. 26 Trial counsel’s representation was objectively deficient because he failed to 27 ensure that the verdict forms were accurate, complete, and actually provided for each 28 of the charged offenses, allegations, and special circumstance allegations. 71 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Petitioner’s jury received no verdict forms for special circumstance findings. 2 The homicide verdict form was titled “Verdict (Guilty) Count One,” and bore a footer 3 that read “Verdict (Guilty).” (2 CT 365.) It contained a blank space for the jury to 4 write in the degree of murder and to check boxes titled “True” or “Not True” regarding 5 the allegations of burglary, rape, robbery, and whether or not petitioner had sustained a 6 prior conviction within five years. (Id.) The term “special circumstance” appeared 7 nowhere on the verdict form. 8 unreasonably informed the court “they appear to be accurate” even though they were 9 missing the special circumstance allegations. (27 RT 4005-06.) Trial counsel reviewed the verdict forms and 10 The guilty-murder verdict form returned by petitioner’s jury only indicated that 11 the jury found petitioner guilty of first degree murder. (2 CT 365.) The jury indicated 12 on the “murder” verdict form it found petitioner guilty of felony murder rape, by 13 writing in “first” to indicate the degree of murder and checking the rape allegation. 14 There were no verdict forms that asked the jury whether or not the special 15 circumstances were true. Accordingly, the jury never made, and could not have made, 16 a special circumstance finding. (See 2 CT 307 (“You will state your special findings 17 … on the form that will be supplied”).) 18 19 3. Trial Counsel Unreasonably Allowed The Court To Illegally Subject Petitioner To A Penalty Phase Trial. 20 Even though the jury made no special circumstance findings, the trial court 21 allowed the verdict to be interpreted as if a special circumstance had been found true 22 by the jury. Trial counsel unreasonably allowed the court erroneously to interpret the 23 jury’s felony murder rape verdict as a verdict that included a true special circumstance 24 finding, and failed to object to the verdict as insufficiently specific to meet the 25 requirements of the law. Trial counsel also performed unreasonably for failing to 26 object to the trial court’s violation of Penal Code section 190.4, which requires a jury 27 to make a true finding on at least one special circumstance in order for a case to 28 72 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 proceed to the penalty phase, or to move that petitioner be sentenced according to the 2 jury’s returned verdict of first degree felony murder with no special circumstances. 3 4. Counsel’s Failures Were Prejudicial. 4 As a result of trial counsel’s failure to ensure that the jurors were properly 5 instructed, the state of the instructions allowed the jury to conclude that, unlike 6 robbery, a dead victim can be raped. In light of the overwhelming evidence that the 7 victim was dead prior to any sexual contact and the jury’s finding that no robbery 8 occurred, had trial counsel requested that the jury be properly instructed as to the crime 9 of rape, given the state of the evidence, there is a reasonable probability that petitioner 10 would not have been convicted of rape, felony murder rape, the rape special 11 circumstance found true, nor would he have been exposed to a sentence of death. 12 Moreover, the failure to object to the absence of a special circumstance finding or to 13 the case proceeding to a penalty phase in the absence of the valid special circumstance 14 unquestionably constitutes prejudice warranting relief. Strickland v. Washington, 466 15 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d 674. 16 17 I. Trial Counsel Unreasonably and Prejudicially Failed to Object to Numerous Instances of Prejudicial Prosecutorial Misconduct. 18 Trial counsel unreasonably failed to object to several instances of prejudicial 19 prosecutorial misconduct that included: the elicitation of false testimony and 20 inferences; closing arguments rife with misstatements of both the evidence and the 21 law; arguing facts that were not in evidence; and blatant appeals to the jury to base its 22 verdicts on emotion and passion rather than the evidence and the law. Counsel’s 23 failure to ensure petitioner’s jury was not subjected to false and misleading evidence 24 and statements of law and grossly inflammatory appeals to vengeance and passion 25 prejudicially violated petitioner’s federal constitutional rights to confrontation, due 26 process, a fair trial by an unbiased jury, and the effective assistance of counsel. See, 27 e.g., Harris ex rel Ramseyer v. Wood, 64 F.3d 1432 (counsel deficient for, inter alia, 28 failing to make appropriate objections); Gravley v. Mills, 87 F.3d 779 (6th Cir. 1996) 73 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 (counsel’s failure to object to several serious instances of prosecutorial misconduct 2 established cause and prejudice for procedural default); Burns v. Gammon, 260 F.3d 3 892 (8th Cir. 2001) (counsel ineffective for failure to object to prosecution’s rebuking 4 petitioner’s exercise of Sixth Amendment right of confrontation by arguing petitioner 5 forced the victim to testify). 6 As demonstrated below and in the Petition at pages 81-85 and 196-204, 7 petitioner has demonstrated his entitlement to an evidentiary hearing by alleging a 8 colorable claim for relief as a result of trial counsel’s unreasonable failure to object to 9 prejudicial prosecutorial misconduct. 10 11 1. Trial Counsel Unreasonably Failed to Object To The Prosecution’s Presentation of False Evidence And Inferences. 12 The prosecution violated petitioner’s federal constitutional rights by eliciting, 13 and failing to correct, false testimony and inferences regarding the nature of the 14 injuries sustained by the victim. See, e.g., Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 15 1173, 3 L. Ed. 2d 1217 (1959); Killian v. Poole, 282 F.3d 1204 (9th Cir. 2002). Trial 16 counsel was, or reasonably should have been, aware of the falsity of the testimony, yet 17 unreasonably failed to object to the prosecution’s failure to correct it. 18 Trial counsel knew, or reasonably should have known, that the prosecution 19 knew two of its witnesses lied during their testimony about petitioner’s drug use. 20 Shamaine Love testified at petitioner’s preliminary hearing that she sold drugs to 21 petitioner at least four months before the crime (1 CT 45), and testified at his trial that 22 she sold drugs to petitioner throughout the month of August 1992 (16 RT 2621). 23 Pamela Miller similarly testified that she knew petitioner was using drugs several 24 months before the capital crime. (28 RT 4135.) Like the prosecution, trial counsel 25 possessed petitioner’s parole file (see, e.g., NOL C2 Ex. 82), and knew that petitioner 26 was drug free from at least February 6, 1992, through August 5, 1992. (Id. at 1690.) 27 Trial counsel’s failure to object to the prosecution’s elicitation of, and failure to 28 74 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 correct, this materially false testimony from Ms. Love and Ms. Miller was objectively 2 unreasonable. 3 Trial counsel similarly failed to object to the prosecution’s false and prejudicial 4 inference and argument that the physical evidence proved that petitioner raped the 5 victim with a knife. The victim sustained a stab wound to her peritoneum that entered 6 her uterus. (NOL C2 Ex. 177 at 3087.) The prosecution elicited testimony from the 7 medical examiner that this stab “penetrated into the left side of the vulva.” (17 RT 8 2797.) Despite this specific testimony, the prosecution thereafter mischaracterized the 9 doctor’s testimony and referred to that wound as a “vaginal wound,” or a wound to the 10 victim’s vagina. (Id. at 22804, 813; 26 RT 3892, 3936.) Even though the medical 11 examiner never referred to the stab wound as a “vaginal wound,” in either the autopsy 12 report or his trial testimony, trial counsel never objected to the prosecution’s 13 prejudicial and gross mischaracterization of this wound. Trial counsel’s failure to 14 object to the prosecution’s misconduct in falsely mischaracterizing the victim’s wound, 15 was objectively unreasonable. 16 Trial counsel knew, or reasonably should have known, that the wrist ligatures 17 left “crease marks but no other disturbance on the skin” (NOL C2 Ex. 171 at 3038), 18 because he received in discovery the autopsy report in which this was specifically 19 noted by Medical Examiner Dr. Steven Scholtz. At trial, the prosecution questioned 20 the medical examiner about injuries to the binding sites. (17 RT 2775.) The medical 21 examiner falsely testified that the “only area that I could attribute injury from bindings 22 was the left wrist area in which there was a bruising and abrasion which could have 23 been caused from the bindings.” (Id. at 2775-76.) Trial counsel’s failure to object to 24 Dr. Scholtz’s demonstrably false testimony, and the prosecution’s failure to correct it, 25 was patently unreasonable because it went to a material issue of the case, the timing of 26 events in relation to the victim’s death, and as such could not have been strategic. 27 Trial counsel’s failure to object to the false testimony of Ms. Love and Ms. 28 Miller was prejudicial. Ms. Love and Ms. Miller’s testimony regarding petitioner’s 75 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 alleged pre-crime drug use contradicted petitioner’s testimony that the day of the crime 2 was the first day he used cocaine since he got out of prison. (24 RT 3593-94.) Part of 3 petitioner’s mental state defense at trial involved the strong effect the drugs he used 4 that day had on him as a result of abstaining from drug use for so long. The mental 5 state defense was petitioner’s only defense to the murder charge and special 6 circumstance allegations. Trial counsel’s failure to object allowed the prosecution to 7 present false testimony that defeated petitioner’s sole defense to a capital murder 8 conviction. Had trial counsel objected, the false and prejudicial testimony would have 9 been removed from the record and the jury would have had the opportunity to observe 10 Ms. Love and Ms. Miller willfully lying on the stand at a capital murder trial. 11 The prosecution’s false and inflammatory description of the victim’s wounds 12 was prejudicial. As a result of counsel’s failure to object, by the time prosecution gave 13 his closing argument, the alleged “vaginal wound” had transmogrified into a “rape 14 with the knives.” (26 RT 3892.) During closing arguments, the prosecutor elevated 15 this stab wound from an actual wound (albeit a mischaracterized “vaginal wound”) to 16 the manner in which the victim was raped. Trial counsel had no strategic reason for 17 failing to object when the prosecution falsely argued “[t]here’s a knife in the vaginal 18 area. These knives are part and parcel of the sexual assault,” and that petitioner had 19 committed a “rape with the knives.” (Id. at 3892.) The jury’s consideration and 20 reliance on the prosecution’s blatantly false description of the stab wound as a “vaginal 21 wound” and ultimately as a “rape with the knives” was especially prejudicial because 22 petitioner was charged with having raped the victim. This misleading, false, and 23 highly inflammatory characterization of the knife wound prejudiced petitioner in that 24 there was virtually no evidence of rape and no actual evidence that petitioner 25 specifically intended to rape the victim. By conjuring up the false image that petitioner 26 raped the victim with a knife, however, the prosecutor capitalized on the jurors’ fears 27 and emotions, and blurred the crucial legal question of whether petitioner truly 28 possessed the specific intent to commit rape. This false, but hugely prejudicially 76 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 argument enabled petitioner’s jury to find him guilty of rape, felony murder rape, and 2 the rape special circumstance true, despite the lack of evidence of rape and petitioner’s 3 intent to commit rape. Trial counsel had no strategic reason for failing to object to the 4 prosecution’s gross and prejudicial distortion of the facts, and his failure to do so 5 “unnecessarily risked [petitioner’s] life.” Thompson v. Calderon, 120 F.3d at 1053. 6 By failing to object to the prosecution’s failure to correct the medical examiner’s 7 false testimony, trial counsel allowed the jury to make the erroneous inference that 8 because the victim sustained a bruise as a result of her bindings, she was alive at the 9 time her wrists were bound. There was no evidence to support the prosecution’s 10 theory of the crime that petitioner bound the victim, raped her, and killed her. The 11 physical evidence, including the victim’s autopsy, strongly indicated events happened 12 in reverse order: the victim was killed, there was sexual contact with her body, and 13 only after was she was bound. (See NOL C2 Ex. 177 at 3086.) Trial counsel’s failure 14 allowed the jury to consider patently false evidence (the victim sustained a bruise to 15 the wrist binding site), which, in turn, allowed the jury to make a wholly erroneous 16 inference (the victim was alive at the time she was bound), resulting in the jury 17 convicting petitioner and finding a special circumstance true based on materially false 18 evidence. Had it not been for trial counsel’s unreasonable failure to object to the 19 prosecution’s failure to correct Dr. Scholtz’s false and misleading testimony, the jury 20 would have clearly understood that the victim’s death preceded all other events. (See 21 id.) The ligatures, an afterthought, were the product of petitioner’s severe mental 22 illness rather than a calculated effort to subdue a live victim. 23 But for counsel’s failure to object to this false testimony, there is a reasonable 24 probability that petitioner’s jury would not have convicted him and found true the 25 special circumstance. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064, 26 80 L. Ed .2d 674. 27 // 28 // 77 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 2 2. Trial Counsel Unreasonably Failed To Object To Prejudicial Misstatements Of Governing Law. 3 Trial counsel’s performance was constitutionally deficient for unreasonably 4 failing to object to the incorrect statements of the law that governed the case. See 5 Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S. Ct. 2078, 2080, 124 L. Ed. 2d 182 6 (1993) (improper for prosecution to shift its burden of proof). 7 In his first closing the prosecution improperly and prejudicially argued that, if 8 the jury convicted petitioner of one of the lesser-included offenses, this necessarily 9 meant that the jury believed petitioner’s story. (26 RT 3907.) This argument is not 10 only a patently incorrect statement of the law, it unconstitutionally lightened the 11 prosecution’s burden of having to prove each and every element of the charged 12 offenses beyond a reasonable doubt. Nevertheless, trial counsel failed to object and 13 request that the jury be correctly instructed. Trial counsel unreasonably failed to 14 request that the jury be properly instructed that it could find petitioner guilty of a 15 lesser-included-offense if it found the prosecution failed to prove that petitioner was 16 guilty of committing a first-degree murder beyond a reasonable doubt, regardless of 17 whether or not they believed petitioner. 18 Trial counsel also unreasonably permitted the prosecution to conflate the general 19 intent requirement for the crime of rape with the specific intent requirement for the 20 crime of felony murder rape and the rape special circumstance. By doing so, the 21 prosecution again unconstitutionally lightened its burden of having to prove, beyond a 22 reasonable doubt, that petitioner harbored the specific intent necessary for first-degree 23 felony murder rape and the rape special circumstance. (27 RT 3992.) 24 objection, counsel allowed the prosecution to argue, “[a]nd in this case that is to reject 25 the voluntary intoxication and mental disorder, to accept that he formed the specific 26 intent to rape the same way he did it with Mrs. Harris, and to come back with first- 27 degree murder.” (27 RT 3991-92.) The prosecution finished his rebuttal closing 28 argument with this erroneous and prejudicial statement of law, which trial counsel’s With no 78 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 patently unreasonable failure to object, allowed to ring in the jurors’ ears as they 2 retired to deliberate. 3 No strategic reason existed for counsel’s unreasonable failure to object to these 4 prejudicial misstatements of law. These misstatements not only served to remove the 5 burden of proving every element of each offense, beyond a reasonable doubt, they also 6 rendered irrelevant petitioner’s mental state defense, which was his sole defense to the 7 murder charge and special circumstance allegations. Trial counsel’s unreasonable 8 failure to object was exacerbated by the timing of these statements, which came at the 9 end of the prosecution’s rebuttal argument. The argument that took away the element 10 of specific intent came just before the jury was to retire and start their deliberations. 11 (27 RT 3992.) 12 Counsel’s failure to object permitted the prosecution to erroneously conflate the 13 Harris rape case with the capital crime. The manner in which the prosecution 14 compared the two dissimilar cases informed the jury that the general intent for the 15 substantive crime of rape was all they need find in order to find petitioner guilty of 16 first-degree felony murder rape. The prosecution’s argument was neither cured nor 17 mitigated by the jury instruction, because trial counsel unreasonably failed to request 18 that the jury be instructed that a dead body cannot be raped. 19 Counsel’s prejudicial failures to object stripped petitioner of his “only defense to 20 the charge of capital murder” (NOL C2 Ex. 12 at 109), and thus were not strategic. 21 (See id. at 107 (“Although I was unable to attack the rape charge. I planned to defend 22 against the rape special circumstance”); accord id. at 109; Ex. 150 at 2730.) 23 24 3. Trial Counsel Unreasonably Failed to Object When The Prosecution Argued Facts Not In Evidence. 25 The prosecution violated petitioner’s Fifth, Sixth, Eighth, and Fourteenth 26 Amendment rights by arguing facts that were not in evidence. See, e.g., Berger v. 27 United States, 295 U.S. 78, 84, 55 S. Ct. 629, 631, 79 L. Ed. 1314 (1935) (improper to 28 misstate and argue facts not in evidence); United States v. Molina, 934 F.2d 1440, 79 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 1446 (9th Cir. 1991) (improper to argue facts not in evidence). Even though the 2 prosecution’s “undignified and intemperate, [argument] containing improper 3 insinuations and assertions calculated to mislead the jury,” Berger v. United States, 4 295 U.S. at 85, 55 S. Ct. at 633, 79 L. Ed. 1314, challenged vital parts of the defense 5 case, trial counsel unreasonably failed to object to it. 6 Trial counsel admits that he believed his only defense in the guilt phase was 7 based on petitioner’s mental health. (NOL C2 Ex. 12 at 109; Ex. 150 at 2730, 2731.) 8 Even specious and improper attacks on this defense, however, went unchallenged by 9 trial counsel. Despite testimony that a qualified and licensed medical doctor felt it 10 necessary to prescribe the powerful anti-psychotic Haldol, the prosecution argued, 11 without evidentiary support, that due to budget cuts jail doctors were routinely 12 “fooled” 13 Compounding the prejudice, the prosecution continued arguing, with no objection 14 from trial counsel, “Is it possible he is getting these pills and palming them or giving 15 them to another inmate?” (Id. at 3972.) Despite the utter lack of any evidentiary 16 foundation for these arguments that attacked petitioner’s sole defense to capital 17 murder, counsel unreasonably did not object. into prescribing anti-psychotic medications. (27 RT 3970-71.) 18 The prosecution’s prejudicial and unfounded arguments that petitioner was 19 faking his mental illness and did not need psychotropic medication were particularly 20 prejudicial because they painted petitioner as a conniving con artist who wanted to be 21 medicated only to help with his mental health defense. Trial counsel’s failure to object 22 to these prejudicial and improper attacks on his only guilt phase defense was 23 indefensible and not the result of a reasoned strategic decision. (NOL C2 Ex. 12 at 24 107 (“Although I was unable to attack the rape charge. I planned to defend against the 25 rape special circumstance”); see also id. at 109; NOL C2 Ex. 150 at 2730.) 26 The prejudice petitioner suffered as a result of counsel’s failure to object to the 27 prosecution’s argument, including extra-record facts, was compounded because these 28 extra-record facts were demonstrably false. Trial counsel’s failure to object and to 80 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 request that the jury be instructed to disregard the non-record facts and to request that 2 the false facts be corrected, served only to help secure petitioner’s conviction. But for 3 counsel’s unreasonable failure to object there is a reasonable probability that 4 petitioner’s jury would not have convicted him and found the special circumstance 5 true. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d 674. 6 7 J. Trial Counsel Rendered Ineffective Assistance of Counsel as a Result of His Disabling Conflict of Interest. 8 Petitioner’s Sixth Amendment right to the effective assistance of counsel in his 9 capital case were in direct conflict with the arbitrary and unfair Los Angeles County 10 Public Defender (“LACPD”) staffing policy, and this conflict adversely affected trial 11 counsel’s performance. See, e.g., Mickens v. Taylor, 535 U.S. 162, 172 n.5, 122 S. Ct. 12 1237, 1244 n.5, 152 L. Ed. 2d 291 (2002); Strickland v. Washington, 466 U.S. at 692, 13 104 S. Ct. at 2067, 80 L. Ed. 2d 674. 14 15 1. The LACPD’s Refusal To Adequately Staff Petitioner’s Capital Case Resulted In A Conflict Of Interest. 16 The LACPD prevented petitioner’s capital case from being adequately 17 investigated and viable and compelling guilt and penalty phase defenses developed 18 because of its arbitrary and unreasonable staffing policy. At the time of petitioner’s 19 trial, it was the policy and practice of the LACPD to assign a single attorney to special 20 circumstance cases. The staffing assignment was not changed once it was determined 21 the prosecution would seek a death sentence nor when it was determined the case 22 involved complex scientific, forensic, and mental health issues. (See NOL C2 Ex. 12 23 at 105; NOL C2 Ex. 150 at 2730; see also 1 RT 715 (trial court expresses concern 24 about defense counsel’s case load weeks before the start of trial; Ex. D at 26 25 (representing a capital client is “a complex and time-consuming endeavor,” in which 26 counsel must “understand and analyze the evidence” against his client, while 27 concurrently developing an “effective theory of the case and defense strategy for either 28 phase of the trial.”).) 81 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 2 2. The Conflict Of Interest Created By The LACPD Adversely Affected Trial Counsel’s Performance. 3 As evident from the discussion of trial counsel’s performance in the guilt and 4 penalty phases, there were numerous instances in counsel’s workload that adversely 5 affected his representation of petitioner. 6 investigation into the actual crime. Petitioner’s capital guilt phase defense was decided 7 by default: once the DNA evidence was held admissible, trial counsel believed that he 8 had to concede the rape charge and that the only viable defense was a mental state 9 defense. (NOL C2 Ex. 150 at 2739; see also NOL C2 Ex. 12 at 107; NOL D1 Ex. 181 10 at 3163.) Trial counsel’s decision was neither well reasoned nor arrived at after 11 research and investigation. Petitioner’s guilt phase defense was the product of trial 12 counsel’s ignorance of the issues and failure to investigate. Despite strong physical 13 evidence, trial counsel failed to investigate whether or not the victim was alive when 14 she was bound and had sexual contact. Trial counsel unreasonably conceded the rape 15 in his closing argument, essentially pleading petitioner guilty to a crime to which he 16 pled innocent and which he did not commit. Trial counsel conducted virtually no 17 Trial counsel hired two mental health experts and specifically asked them both 18 to assess petitioner’s mental state at the time of the crime. (NOL C2 Ex. 154 at 2748.) 19 Trial counsel was informed that the assessment revealed that, at the time of the crime, 20 petitioner was legally insane. (Id. at 2750; 30 RT 4501.) Trial counsel did not further 21 investigate or develop a plea of not guilty by reason of insanity. 22 Trial counsel conducted virtually no investigation into petitioner’s mental state 23 at the time of the crime; the sole defense to the charged crimes was that petitioner was 24 unable to form the requisite intent for the charged crimes. Even though he was warned 25 against doing so by his own mental health expert (NOL C2 Ex. 154 at 2754), trial 26 counsel “decided that Mr. Jones would have to testify on his own behalf during the 27 guilt phase” (NOL C2 Ex. 150 at 2732) and called petitioner to testify as the primary 28 guilt phase witness. After the trial court ruled petitioner could not testify to his mental 82 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 health history prior to 1992 (22 RT 3359), trial counsel failed to request a continuance 2 so that he could find and prepare lay and expert witnesses to testify about petitioner’s 3 mental state at the time of the crime. 4 The LACPD knew, or reasonably should have known, that the complex 5 scientific, forensic, and mental health issues involved in petitioner’s case could not be 6 adequately researched, investigated, developed, and presented at trial by a single 7 lawyer. 8 LACPD’s forensic consultant. (NOL C2 Ex. 12 at 106-07.) The LACPD consultant 9 failed to adequately consult and utilize the DNA expert the LACPD hired to assist trial 10 counsel. (NOL C2 Ex. 176 at 3078-79, 3083-84.) As a result, trial counsel failed to 11 challenge the DNA evidence at trial, and instead allowed petitioner’s jury to believe 12 the testing was performed accurately and reliably. Trial counsel did not understand DNA and sought the assistance of the 13 The LACPD’s arbitrary and harmful policy and practice of appointing only one 14 attorney to petitioner’s capital murder case was greatly prejudicial as it deprived 15 petitioner of, among other things, not being tried while incompetent to stand trial; a 16 defense to the charged crimes based on a full investigation; and, non-conceded pleas of 17 innocence. The implementation of the LACPD’s one-attorney-per-capital-case policy 18 created a direct and irreconcilable conflict of interest with petitioner’s right to the 19 effective assistance of counsel. 20 21 K. Petitioner Is Entitled to a Hearing on Each Claim of Ineffective Assistance to Establish Cumulative Prejudice. 22 With the understanding that together, “[s]ome errors will have had a pervasive 23 effect on the inferences to be drawn from the evidence, altering the entire evidentiary 24 picture,” Strickland requires that a reviewing court assess the cumulative prejudicial 25 impact of counsel’s deficient performance. 466 U.S. at 695-96, 104 S. Ct. at 2069, 80 26 L. Ed. 2d. At each stage of petitioner’s capital trial, he was denied adequate protection 27 from the numerous constitutional violations attributable to the action and inaction of 28 his counsel. These multiple deficiencies merit a collective or cumulative assessment of 83 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 prejudice; errors that do not require a judgment to be set aside when viewed alone, 2 may require relief in the aggregate. The dearth of evidence of petitioner’s guilt 3 presented at trial and counsel’s deficient performance that included, but was not 4 limited to, an unreasonable and uninformed decision to forego investigating the actual 5 crime, failing to adequately prepare the one defense he chose to pursue against a 6 capital murder conviction, failing to develop an NGI plea, pleading petitioner guilty to 7 a rape he could not have committed, and failing to ensure the jury was properly 8 instructed and provided with complete verdict forms, cumulatively undermine any 9 confidence in the guilt verdicts actually reached at trial. Id. at 466 U.S. at 694, 104 S. 10 Ct. at 2068, 80 L. Ed. 2d 674. 11 // 12 // 13 // 14 // 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 84 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 III. PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING ON 2 CLAIM THREE: THE PROSECUTION FAILED TO DISCLOSE 3 EXCULPATORY MATERIAL EVIDENCE. 4 The Petition sets forth detailed factual allegations at pages 98 to 107 that the 5 prosecution denied petitioner the ability to meaningfully defend against the charges 6 brought against him by suppressing evidence that was exculpatory and material. The 7 prosecution’s action, whether knowing or not, violated petitioner’s federal 8 constitutional rights to due process of law, a fair trial, the assistance of counsel, and a 9 non-arbitrary jury determination of guilt and penalty. 10 Respondent has failed to admit or deny any of the facts alleged in the Petition. 11 (See, e.g., Doc. 28, filed Apr. 6, 2010 at 4 (“Respondent denies, or lacks sufficient 12 knowledge to admit or deny, every factual allegation made in support of Petitioner’s 13 thirty claims for relief (including all subclaims)”.) Petitioner, therefore, requests an 14 evidentiary hearing on this claim, since respondent has placed at issue all facts upon 15 which it relies. 16 Petitioner is entitled to a hearing on Claim Three if the allegations demonstrate 17 that he is entitled to relief because of the prosecution’s prejudicial failure to disclose 18 exculpatory material. 19 exculpatory evidence, including impeachment evidence, to the defense, Brady v. 20 Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215 (1963); Giglio v. 21 United States, 405 U.S. 150, 155, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972). The 22 “prosecutor's office is an entity and as such it is the spokesman for the Government,” 23 therefore, what is known by one member of the prosecutor’s office “must be attributed, 24 for these purposes, to the Government.” Giglio v. United States, 405 U.S. at 154, 92 S. 25 Ct. at 766, 31 L. Ed. 2d 104. The intent behind the violation is irrelevant—if the 26 undisclosed evidence is material and exculpatory, whether maliciously, recklessly, or 27 innocently withheld, the prosecution’s failure to disclose it equally deprives a criminal 28 defendant of due process and requires that relief be granted. See, e.g., Brady v. The constitution mandates that the prosecution disclose all 85 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Maryland, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d 215; Jackson v. Brown, 2 513 F.3d 1057 (9th Cir. 2008). Evidence is material if there is a reasonable probability 3 that the result of the proceeding would have been different had the evidence been 4 properly disclosed, United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 5 87 L. Ed. 2d 481 (1985), and a reasonable probability of a different outcome is 6 demonstrated when the suppressed evidence “undermines confidence in the outcome 7 of the trial,” id. at 678, 105 S. Ct at 3381, 87 L. Ed. 2d 481. Finally, materiality does 8 not require a sufficiency of the evidence test. “A defendant need not demonstrate that 9 after discounting the inculpatory evidence in light of the undisclosed evidence, there 10 would not have been enough left to convict,” instead materiality is determined by 11 looking collectively at all withheld evidence and deciding whether cumulatively the 12 effect of the constitutional violation is to undermine confidence in the verdict. Kyles v. 13 Whitley, 514 U.S. 419, 434-37, 115 S. Ct. 1555, 1565-1567, 131 L. Ed. 2d 490 (1995); 14 see also Benn v. Lambert, 282 F.3d 1040, 1053 & n.9 (9th Cir. 2000) (and cases cited 15 therein). 16 At an evidentiary hearing, to prove the factual allegations the prosecution 17 unconstitutionally withheld exculpatory material evidence, petitioner will present the 18 following evidence in support of the following: 19 20 21 A. The Prosecution Unlawfully Failed to Disclose Petitioner’s 1984 Beverly Hills Medical Record. The prosecution possessed, and withheld from the defense, a medical record that 22 documented the longstanding nature of petitioner’s serious mental illness. This 23 medical record corroborated petitioner’s testimony regarding his blackout at the time 24 of the crime, and fully supported his guilt phase mental state defense and the penalty 25 phase testimony of Dr. Claudewell Thomas. The facts set forth below establish “a 26 colorable claim to relief” and, therefore, entitlement to an evidentiary hearing. Earp v. 27 Ornoski, 431 F.3d at 1170. 28 86 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 1. The Prosecution Possessed And Failed to Disclose the 1984 Beverly Hills Medical Record. 2 3 The prosecution first disclosed this medical record to petitioner during formal 4 post-conviction discovery proceedings, pursuant to Penal Code section 1054.9, on 5 August 20, 2004. (NOL D1 at 2, 10.) Neither trial counsel nor habeas counsel was 6 aware of this exculpatory record prior to its disclosure by the prosecution in August 7 2004. (Id. at 10; NOL D5 at 5; NOL C2 Ex. 181 at 3161-62.) 8 2. The 1984 Beverly Hills Medical Record Was Exculpatory. 9 The guilt phase defense at trial was that petitioner was unable to form the 10 specific intent for felony murder or the special circumstances. The defense presented 11 evidence, in the form of petitioner’s testimony, that petitioner dissociated and was 12 unaware of, and thus unable to govern, his actions. (22 RT 3335-36.) Dr. Claudewell 13 Thomas testified in the penalty phase that petitioner suffered from a dissociative 14 disorder, and that at the time of the crime, he was in a dissociative state unaware of, 15 and unable to control, his actions. (30 RT 4435.) The Beverly Hills Medical report 16 fully supported both petitioner’s and Dr. Thomas’s testimony. See Brown v. Borg, 951 17 F.2d 1011 (9th Cir. 1991) (prosecutor violated Brady by withholding exculpatory 18 evidence and pursuing conviction based on withheld evidence). 19 3. The Beverly Hills Medical Record Was Material. 20 Petitioner’s mental state at the time of the crime was the primary issue at trial: 21 with the exception of the rape charge, the jury had to determine that petitioner had the 22 intent to commit the charged crime before they could find him guilty or the special 23 circumstances true. Trial counsel decided to concede the rape charge and focus on 24 presenting a mental state defense to the rape felony murder charge and rape special 25 circumstance allegation. (NOL C2 Ex. 12 at 107; NOL C2 Ex. 150 at 2730; see also 26 NOL D1 Ex. 181 at 3161 (if he had it, trial counsel would have presented evidence 27 victim not raped which was compatible with psychiatric defense).) The importance of 28 evidence that supported petitioner’s sole defense to the charges of which he was 87 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 ultimately convicted, rape and rape felony murder, and the rape special circumstance 2 that was found true, cannot be overstated. 3 The Beverly Hills Medical Center physician who saw petitioner noted that he 4 had a history of “transient memory loss.” (NOL D1 Ex. 180 at 3159.) Even with the 5 limited information available to him, this doctor was able to diagnose petitioner— 6 consistent with Dr. Thomas’s diagnosis of “schizoaffective schizophrenia” (30 RT 7 4414) with dissociative features (id. at 4435)—as suffering from “transient memory 8 lapse.” (NOL D1 Ex. 180 at 3159.) This undisclosed medical record was highly 9 material because it gave documented historical medical support to both the guilt phase 10 11 mental state and penalty phase mental health defenses. The prosecution took gross advantage of his failure to properly disclose this 12 exculpatory and material medical record. The prosecution falsely implied during 13 cross-examination and argued during closing arguments, that petitioner not only did 14 not suffer from a dissociative disorder as he testified, but in an attempt to avoid a 15 capital murder conviction petitioner blatantly lied about blacking out at the time of the 16 crime. (See, e.g., 23 RT 3481 (cross-examination); 26 RT 3905-06, 3972 (closing); 27 17 RT 3969 (closing (“He only blacks out the times that he can’t – he has no other 18 explanation for”)).) Similarly, during the penalty phase, the prosecution falsely argued 19 to the jury that Dr. Thomas’s diagnosis of petitioner was not one that was medically 20 supported and with which other experts could agree: 21 Another psychiatrist would come in here and might say something very 22 different. And that's not to say that Dr. Thomas is not a very bright man 23 who is not doing some good with what he does when he does therapy, but it 24 does say question a diagnosis here, question to what extent he can tell you 25 what is going on in this man's mind in 1992. 26 (31 RT 4645.) The medical records unconstitutionally withheld by the prosecution laid 27 bare the false premise of the prosecution’s argument that Dr. Thomas’s diagnosis was 28 not medically supported. 88 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 The materiality of the withheld medical record is made clear by trial counsel: 2 Given the nature of the information contained in the Beverly Hills Medical 3 Center emergency room record, I would have used it at Mr. Jones's trial. 4 This medical record is strong evidence, which would have supported my 5 guilt phase defense that Mr. Jones was unable to form the requisite intent to 6 commit a felony murder or to commit any of the charged special 7 circumstances. If I had this document, I would have given it to Dr. Thomas 8 to support his expert opinion in the penalty phase. Dr. Thomas testified that 9 Mr. Jones had a propensity to dissociate in certain situations and he 10 discussed how this dissociation was directly relevant to his psychosis. 11 (NOL D1 Ex. 181 at 3162.) The result of the proceeding would have been different 12 had the prosecution properly disclosed petitioner’s 1985 emergency room medical 13 record. See, e.g., United States v. Bagley, 473 U.S. at 678, 105 S. Ct. at 3381, 87 L. 14 Ed. 2d 481. 15 Petitioner has made a colorable showing that the prosecution’s suppression of 16 the Beverly Hills medical record “undermines confidence in the outcome of the trial,” 17 United States v. Bagley, 473 U.S. at 678, 105 S. Ct. at 3381, 87 L. Ed. 2d 481, and is, 18 therefore, entitled to an evidentiary hearing on this claim. See, e.g., Williams v. Ryan, 19 623 F.3d 1258, 1266-67 (9th Cir. 2010) (holding that the district court abused its 20 discretion for failing to hold an evidentiary hearing on a Brady claim); Earp v. 21 Ornoski, 431 F.3d at 1170. 22 B. Petitioner Is Entitled to an Evidentiary Hearing on the Prosecution’s 23 Suppression of Material, Exculpatory Portions of Petitioner’s Los 24 Angeles County Jail Medical Record. 25 Despite trial counsel’s request for petitioner’s complete jail medical records, the 26 prosecution withheld, and continues to withhold, exculpatory, material documents, 27 including those that detailed an evaluation of petitioner’s mental health functioning; 28 the clinical basis for prescribing Haldol, a powerful antipsychotic medication, to treat 89 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 symptoms of psychosis; descriptions of petitioner’s symptoms; the reasons why the 2 antipsychotic drug Haldol was prescribed; and, the date Haldol was first prescribed. 3 1. The Prosecution Possessed And Failed To Disclose Material Exculpatory Portions Of Petitioner’s Jail Medical Records. 4 5 Trial counsel requested but never received petitioner’s complete jail medical 6 file. Petitioner had been in the care and custody of the State since his arrest on August 7 25, 1992. Prior to and during trial, the Los Angeles County Sheriff’s Department was 8 solely responsible for providing him medical and psychiatric care and had been the 9 custodian and caretaker of petitioner’s medical and psychiatric records. Although the 10 Sherriff’s Department is a separate entity, the Los Angeles District Attorney’s Office 11 was responsible for ensuring petitioner’s exculpatory jail medical records were 12 preserved and properly disclosed. See Kyles v. Whitley, 514 U.S. 419, 437, 115 S. Ct. 13 1555, 1567 131 L. Ed. 2d (the “prosecutor has a duty to learn of any favorable 14 evidence known to the others acting on the government’s behalf in the case, including 15 the police”); Maxwell v. Roe, 628 F.3d 486, 509 (9th Cir. 2010) (acting on behalf of 16 the government, the prosecution’s duty to disclose includes exculpatory evidence in 17 the custody of the police); Jackson v. Brown, 513 F.3d 1057, 1072 (9th Cir. 2008) 18 (“the prosecutor’s duty to disclose evidence favorable to the accused extends to 19 information known only to the police.”). The prosecution withheld at the time of trial, 20 and continues to withhold, exculpatory portions of petitioner’s medical jail file that 21 include the clinical basis for the jail medical staff’s determination that petitioner 22 required anti-psychotic medication, how much and what medication was prescribed to 23 him, and when such medication was determined to be medically necessary. 24 2. The Jail Medical Records Were Exculpatory. 25 Petitioner’s guilt phase defense to the rape felony murder and rape special 26 circumstance was solely based on his mental state at the time of the crime, which was a 27 direct function of his mental illness at the time of the crime, which continued through 28 the time of trial. Petitioner’s jail medical records could have corroborated his guilt 90 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 phase trial testimony by documenting his severe mental illness. (See 23 RT 3562 2 (without the suppressed medical records trial counsel was unable to establish the initial 3 circumstances under which Haldol was prescribed; the symptoms petitioner was 4 experiencing at the time it was prescribed; or the diagnostic basis for the prescription).) 5 See Brown v. Borg, 951 F.2d 1011 (9th Cir. 1991) (prosecutor violated Brady by 6 withholding exculpatory evidence and pursuing conviction based on withheld 7 evidence). 8 3. The Jail Medical Records Were Material. 9 The prosecution knew that the jail mental health staff found it necessary to 10 prescribe psychiatric medication for petitioner, within months of his arrival at the Los 11 Angeles County jail. 12 unconstitutionally suppressing the exculpatory portions of petitioner’s jail medical 13 records, petitioner was prevented from bolstering his testimony with admissible 14 documentary evidence, lend material credence to his mental state defense, and enhance 15 his credibility. The prosecution took further advantage of his failure to properly 16 disclose the exculpatory medical record by engaging in several patently false 17 arguments that went to the very heart of petitioner’s only defense to capital murder. 18 The prosecution falsely argued that petitioner lied and did not receive the strong anti- 19 psychotic medication Haldol in 1992, as he testified, because the only records 20 disclosed show Haldol prescribed in June 1993. (27 RT 3971 (guilt closing); 31 RT 21 4652 (penalty closing).) The prosecution used his failure to properly disclose the jail 22 medical records to falsely argue that petitioner (1) lied about when he first received the 23 medication (27 RT 3971 (guilt closing); 31 RT 4652 (penalty closing)); (2) received 24 the mediation only because he requested it (27 RT 3971-72 (guilt phase closing)); and, 25 (3) specifically requested the medication in order to fake a mental illness in order to 26 manufacture a psychiatric defense to the charged crimes (27 RT 3971-72 (guilt 27 closing); 31 RT 4652 (penalty closing)). The prosecution’s failure to disclose this (Declaration of Floyd Nelson, Ex. A, at 4.) By 28 91 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 material exculpatory evidence “undermines confidence in the outcome of the trial.” 2 United States v. Bagley, 473 U.S. at 678, 105 S. Ct. at 3381, 87 L. Ed. 2d 481. 3 As petitioner has established his entitlement to relief on this claim, an 4 evidentiary hearing is warranted. Stanley v. Schriro, 598 F.3d 612, 624 (9th Cir. 2010) 5 (“an evidentiary hearing is required where the petitioner’s allegations, if true, would 6 entitle him to relief, and the petitioner has satisfied the requirements of Townsend v. 7 Sain, 372 U.S. 293, 83 S. Ct., 745, 9 L. Ed. 2d 770 (1963)). 8 C. Petitioner Is Entitled to an Evidentiary Hearing on the Prosecution’s Suppression of Exculpatory Impeachment Material. 9 10 The prosecution unconstitutionally and prejudicially withheld exculpatory 11 impeachment evidence for key prosecution witnesses Shamaine Love and Pamela 12 Miller. Both of these witnesses were known drug users; Ms. Love was also a drug 13 dealer. 14 1. The Prosecution Possessed And Failed to Disclose Exculpatory 15 Impeachment Evidence. 16 a. Shamaine Love. 17 On July 11, 1993, Ms. Love signed a statement for the prosecution, informing 18 them that she would alter her testimony to ensure petitioner’s conviction. (NOL C2 19 Ex. 169.) The prosecution failed to disclose this exculpatory statement made by this 20 key witness. 21 b. Johnnie Anderson and Pamela Miller. 22 On December 7, 1994, the police and prosecution interviewed Mrs. Johnnie 23 Anderson. (21 RT 3203.) During the interview, Mrs. Anderson provided strong 24 impeachment evidence against Pamela Miller. The prosecution provided the defense 25 with a police report that detailed the interview with Mrs. Anderson. The prosecution, 26 however, excluded Mrs. Anderson’s exculpatory statement from the police report. 27 Trial counsel only learned that Mrs. Anderson considered Ms. Miller a liar when the 28 prosecution verbally relayed the impeaching information to him. (Id. at 3199-3200.) 92 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 2. The Impeachment Evidence Was Exculpatory. a. 2 Shamaine Love. 3 Ms. Love wrote and signed a statement for the prosecution that stated, in part, 4 “if I’m wrong on any account which I don’t think I am I’ll add it during the testimony 5 at court. Other than that he guilty [sic.].” (NOL C2 Ex. 169.) b. 6 7 8 9 Johnnie Anderson and Pamela Miller. During her interview, Mrs. Anderson confessed to the prosecution that she “loves Pam very much, [but] Pam lies.” (21 RT 3213; see also id. at 3199.) 3. The Impeachment Evidence Was Material. 10 Part of petitioner’s mental state defense involved the unusual effect the cocaine 11 and marijuana he consumed had on him on the day of the crime. Petitioner testified 12 that the day of the crime was the first time he had used cocaine or the combination of 13 cocaine, marijuana, and alcohol since 1985 (24 RT 3593-94) and, as a result, the drug 14 had a significant effect on him. (See, e.g., 22 RT 3300 (petitioner last used drugs in 15 1985), 3303 (it had “been a very long time since” petitioner used cocaine), 3301 (the 16 effect of the drugs he bought from Shamaine, “was like speed. It has your mind racing, 17 you know. Your mind is racing, paranoid.”).) 18 petitioner did not use drugs as frequently as Ms. Love and Ms. Miller said he did came 19 from petitioner when he testified that he was drug tested every month and subjected to 20 random drug tests. (22 RT 3296.) Both Shamaine Love and Pamela Miller gave 21 testimony that questioned petitioner’s veracity and the guilt and penalty phase defenses 22 that relied on petitioner’s significantly impaired mental state at the time of the crime as 23 a result of his drug use. See Bagley v. Lumpkin, 798 F.2d 1297, 1301 (9th Cir. 1986) 24 (“When the evidence shows that the government’s only witnesses lied under oath, it is 25 contrary to reason that confidence in the outcome of the case would not objectively be 26 undermined.”); see also Jackson v. Brown, 513 F.3d 1057 (Brady violated for failure to 27 disclose favorable); Benn v. Lambert, 283 F.3d 1040 (9th Cir. 2002) (failure to 28 disclose impeachment evidence violated Brady). The only potential evidence that 93 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 a. Shamaine Love. 2 Ms. Love, an admitted drug user and dealer, testified that she sold illegal drugs 3 to petitioner. Ms. Love testified that she sold cocaine to petitioner on the day of the 4 crime, as well as throughout August 1992. (16 RT 2621.) According to Ms. Love, 5 petitioner consumed approximately $40 to $60 of cocaine a week, throughout the 6 month of August. (Id.) Ms. Love essentially testified that petitioner lied on the 7 witness stand regarding his drug use and there was no reason, therefore, for petitioner 8 to have reacted as strongly to the drugs as he said he did. Ms. Love’s biased testimony 9 was allowed to challenge an important part of petitioner’s mental state defense by 10 11 remaining unimpeached. b. Pamela Miller. 12 Pamela Miller testified in the penalty phase that after she and petitioner moved 13 in together, in May 1992, she became aware that he used both marijuana and cocaine. 14 (28 RT 4135.) She further testified that during the time they were together, including 15 the night of the crime, petitioner never told her that he heard voices, acted like he 16 heard voices, or appeared to be talking to voices. 17 testimony, by contradicting petitioner’s guilt phase testimony regarding his lack of 18 drug use and auditory hallucinations as well as challenging the basis for Dr. Thomas’s 19 diagnosis that petitioner suffered from schizoaffective disorder, gave the jury reason to 20 dismiss significant mitigating factors such as any lingering doubt they may have had 21 about petitioner’s mental state defense and Dr. Thomas’s testimony that “the offense 22 was committed while the defendant was under the influence of extreme mental or 23 emotional disturbance,” Cal. Penal Code § 190.3(d) (West 1994). (Id. at 4136.) Ms. Miller’s 24 It is significant that the jury received evidence that cast doubt on Ms. Love’s and 25 Ms. Miller’s credibility regarding the burglary and robbery charges, and the jury 26 acquitted petitioner of those charges. For, example, despite the testimony of Ms. Love 27 and Ms. Miller, the jury apparently concluded that petitioner did not attempt to steal 28 the victim’s jewelry, possibly believing that the timing of Ms. Love’s transactions with 94 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 petitioner appear to have taken place prior to Mrs. Miller’s death. Had the exculpatory 2 impeachment evidence not been unconstitutionally suppressed, petitioner would have 3 been able to similarly impeach Ms. Love’s and Ms. Miller’s general credibility and 4 their specific testimony regarding petitioner’s mental state at the time of the crime. 5 Petitioner has demonstrated a colorable showing that the prosecution’s 6 suppression of material, exculpatory evidence that impeached his two key witnesses 7 “undermines confidence in the outcome of the trial” and is, therefore, entitled to an 8 evidentiary hearing on this claim. See, e.g., Williams v. Ryan, 623 F.3d at 1266-67; 9 Earp v. Ornoski, 431 F.3d at 1170. 10 // 11 // 12 // 13 // 14 // 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 95 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 IV. PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING ON 2 CLAIM FOUR: PETITIONER WAS DEPRIVED OF HIS 3 CONSTITUTIONAL RIGHTS TO BE PRESENT AT HIS TRIAL AND 4 NOT TO BE TRIED WHEN HE WAS UNABLE TO COMPREHEND 5 CRITICAL PORTIONS OF THE PROCEEDINGS OR TO 6 COMMUNICATE AND COOPERATE WITH COUNSEL. 7 The Petition sets forth detailed factual allegations at pages 107 to 124 that 8 petitioner’s constitutional rights were violated because the state prosecuted, convicted, 9 and sentenced him while he was unable to comprehend the proceedings against him or 10 effectively communicate and assist trial counsel. Both the nature and extent of 11 petitioner’s mental impairments were readily evident to the trial court, defense counsel, 12 prosecutor, and other state officials who had custody and control of petitioner as a pre- 13 trial detainee; and said individuals and officials unreasonably and intentionally failed 14 to inquire into the need for or to employ readily available remedies to enable petitioner 15 to comprehend and participate in the proceedings, thus violating petitioner’s Fifth 16 Amendment right to due process of law and a fair trial, Sixth Amendment right to 17 counsel, confrontation, compulsory process, testify competently in his own defense, 18 and Eighth Amendment protections against cruel and unusual punishment. 19 A criminal defendant has a due process right to be competent when tried. See 20 Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960); Pate v. 21 Robinson, 383 U.S. 375, 377-78, 86 S. Ct. 836, 838, 15 L. Ed. 2d 815 (1966). The test 22 for whether a defendant is competent to stand trial is whether “he has sufficient present 23 ability to consult with his lawyer with a reasonable degree of rational understanding 24 and whether he has a rational as well as factual understanding of the proceedings 25 against him.” Dusky 362 U.S. at 402. There is a wealth of background information 26 relating to petitioner’s life history, his functioning before and during the trial, 27 including medical evaluations, witness accounts, and numerous other documents 28 directly relevant to petitioner’s mental functioning, including that petitioner has 96 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 exhibited lifelong symptoms of delusional thought patterns, affective disorders, 2 psychotic disorders including schizophrenia, and the sequelae of severe trauma 3 typically found in those suffering from Posttraumatic Stress Disorder. Petitioner’s 4 convictions and sentence are invalid because he was incompetent in fact. 5 Moreover, trial counsel’s performance fell below the prevailing Sixth 6 Amendment norms because counsel failed prejudicially to continue to evaluate 7 petitioner’s competency during the course of the trial, and failed to follow the advice 8 of his expert, having petitioner testify after being advised by his expert that petitioner 9 was incompetent to do so. “Counsel’s failure to move for a competency hearing 10 violates the defendant’s right to effective assistance of counsel when there are 11 sufficient indicia of incompetence to give objectively reasonable counsel reason to 12 doubt the defendant’s competency, and there is a reasonable probability that the 13 defendant would have been found incompetent to stand trial had the issue been raised 14 and fully considered.” Stanley v. Cullen, ___ F.3d ___, 2011 WL 285218, *7, 11 Cal. 15 Daily Op. Serv. 1415, 2011 Daily Journal D.A.R. 1790 (9th Cir. Jan. 31, 2011) (citing 16 Jermyn v. Horn, 266 F.3d 257, 283 (3d Cir. 2001) (internal quotation marks omitted)). 17 Respondent generally denies or alleges insufficient knowledge to admit or deny 18 the allegations in support of petitioner’s claim. (Answer at 26, Doc. 28, filed Apr. 6, 19 2010.) Given respondent’s general denials, petitioner cannot determine which facts are 20 in dispute. Therefore, a hearing is warranted. In any event, petitioner is entitled to an 21 evidentiary hearing on the issue of competency to stand trial where he presents 22 sufficient facts to create a substantial doubt as to his competency, even if those facts 23 were not presented at trial. See, e.g., Deere v. Woodford, 339 F.3d 1084, 1086 (9th 24 Cir. 2003) (citing Boag v. Raines, 769 F.3d. 1341, 1343 (9th Cir. 1985)). “Substantial 25 doubt” as to a petitioner’s competency to stand trial exists when there is substantial 26 evidence of incompetence. Id. “Even if the evidence before the trial judge was 27 insufficient to raise a good faith doubt with respect to [a defendant’s] competency, he 28 97 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 would still be entitled to [a hearing] if it now appears that he was in fact incompetent.” 2 Id. (citing Steinsvik v. Vinzant, 640 F.2d 949, 954 (9th Cir. 1981) (citation omitted)). 3 4 At an evidentiary hearing on this Claim, petitioner will present the following evidence in support of the following: 5 A. Petitioner Suffered From a Severe Mental Illness That Prevented Him 6 From Comprehending or Participating in the Pre-Trial and Trial 7 Proceedings. 8 1. 9 Petitioner’s Multiple Mental Impairments Raised A Substantial Doubt As To His Competency To Stand Trial. 10 The evidence as to competence must be taken together as a whole; in 11 determining whether a substantial doubt has been raised, a trial judge must evaluate the 12 probative value of each piece of evidence and view it in light of the others. Chavez v. 13 United States, 656 F.2d 512, 517-18 (9th Cir 1981). When weighing the evidence of 14 incompetence, “evidence of a defendant’s irrational behavior, his demeanor at trial, 15 and any prior medical opinion on competence to stand trial are all relevant in 16 determining whether further inquiry is required, but ... even one of these factors 17 standing alone may, in some circumstances, be sufficient” to raise a genuine doubt as 18 to competency. Drope v. Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908, 43 L. Ed. 2d 19 102 (1975). Evidence of a history of mental illness and psychiatric treatment create a 20 doubt as to competence. See, e.g., Pate 383 U.S. at 386, 86 S. Ct. 842, Boag, 769 F.2d 21 at 1343, Chavez v. United States, 656 F.2d at 519. 22 Petitioner exhibited lifelong symptoms of organic brain impairment, delusional 23 thought patterns, affective disorders, psychotic disorders including schizophrenia, 24 sleep disorders, and the sequelae of severe trauma typically found in those suffering 25 from Posttraumatic Stress Disorder. Petitioner possessed a history of suicide attempts 26 and suicidal ideation, including a suicide attempt immediately prior to his arrest for the 27 instant offenses. (NOL C2 Ex. 154 at 2750-52, 2757, 2760-61; NOL C2 Ex. 178 at 28 3152-55; see also Petition at P.2.a.(15)-(16).) The trial court, trial counsel, and state 98 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 authorities were aware of petitioner’s history of suicide attempts and suicidal ideation. 2 (16 RT 2504; 20 RT 3172; 22 RT 3343-45.) 3 Petitioner’s behavior prior to and during trial revealed the severity of his mental 4 illnesses and the resulting deterioration of his mental functioning. Petitioner was 5 admitted to Los Angeles County Jail on September 7, 1992, following treatment at 6 USC and UCLA Medical Centers for a self-inflicted gunshot wound. (NOL C2 Ex. 33 7 at 637.) Petitioner had periods of dizziness and blackouts while in custody. On 8 September 18, 1992, medical personnel at the Los Angeles County Jail responded to a 9 “man down” call involving petitioner. Jail personnel found petitioner on the floor of 10 the jail elevator. Petitioner stated that he had passed out. (Id. at 651.) On November 11 6, 1992, the Municipal Court entered an order directed to the Sheriff of the County of 12 Los Angeles and Medical Services of Los Angeles County Jail that petitioner was 13 “suffering from extreme stress and need[ed] to be examined by a psychologist or 14 psychiatrist.” (1 CT 116.) Medical personnel at the jail observed that petitioner was 15 “paranoid,” displayed “agitation,” and experienced sleep disturbances. (NOL C2 Ex. 16 33 at 651.) 17 During the course of his pretrial detention, jail medical personnel prescribed 18 petitioner the following psychiatric medications: Atarax, an anti-anxiety medication; 19 Cogentin, an anticholinergic medication used to control extrapyramidal disorders 20 caused by neuroleptical drugs; Haldol, an antipsychotic medication; and Sinequan, an 21 antidepressant. On November 5, 1992, medical personnel prescribed 200 milligrams 22 of Sinequan once a day. (Id. at 674.) Petitioner’s treatment was reviewed on several 23 subsequent occasions and found to be medically indicated. 24 prescribed Sinequan for petitioner continuously from November 5, 1992, through trial 25 and sentencing. 26 September 21, 1993); id. at 647-48, 669-71; see also id. at 596, 600, 602-604, 606, 27 608, 610, 613, 616, 618, 620, 622, 624-25, 628, 630, 632, 634; NOL C2 Ex. 34 at 678, 28 680, 682, 685.) Medical personnel (NOL C2 Ex. 33 at 663, 669 (entries for August 3, 1993, and 99 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC On June 8, 1993, petitioner was examined by Dr. E. Eugene Kunzman, a 1 2 psychiatrist at the jail. Petitioner stated that he wanted vitamins; Dr. Kunzman 3 determined that petitioner required Atarax for “nerves.” (NOL C2 Ex. 33 at 648, 670.) 4 Petitioner received 50 milligrams of Atarax for two months. (Id. at 622, 647, 669-70.) 5 On September 21, 1993, petitioner’s anxiety was noted and the prescription of Atarax 6 was reinstated at 50 milligrams three times per day. (Id. at 647, 669.) Petitioner 7 continued to receive the Atarax three times a day through December 27, 1994. (See, 8 e.g., id. at 596, 600, 602, 604, 606, 608, 610, 613, 616, 618, 620; NOL C2 Ex. 34 at 9 678, 685.) 10 On June 30, 1993, petitioner began taking 10 milligrams of Haldol two times a 11 day. (NOL C2 Ex. 33 at 622.) On August 3, 1993, Dr. Kunzman continued the 12 prescriptions for Haldol and Cogentin because petitioner was hearing “voices,” but 13 changed the dosage of Haldol to 5 milligrams once a day and the dosage of Cogentin 14 to 2 milligrams once a day. Two weeks later, Dr. Kunzman noted petitioner’s erratic 15 behavior and the need to further evaluate petitioner for a possible underlying mental 16 disorder. (NOL C2 Ex. 33 at 641.) 17 Without any change in medical condition or the need for the medication, 18 petitioner abruptly was taken off of the Haldol and Cogentin on November 2, 1994, 19 just twenty-eight days before jury selection began. Petitioner continued to receive 20 Sinequan, but the dosage was changed to 200 milligrams in the evening and 50 21 milligrams in the morning. (Id. at 663.)14 On January 24, 1995, the day that petitioner 22 concluded his testimony in the guilt phase of the trial, he again was placed on the 23 regimen of Haldol and Cogentin, which continued through sentencing and until April 24 15, 1995. (Id. at 682, 690, 693.) (See also Ex. 33 at 596, 600, 602-04, 606, 608, 610, 25 613, 616, 618, 620, 622; Ex. 34 at 680, 682, 685, 690, 694.) Adverse effects of 26 27 28 14 The order for changing the dosage of Sinequan does not appear to have been followed, and petitioner continued to receive 200 milligrams of Sinequan, as per the original orders. (NOL C2 Ex. 34 at 678.) 100 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Cogentin include toxic psychosis, confusion, disorientation, and an exacerbation of 2 preexisting psychotic symptoms. 3 cumulative, the recommended therapy is gradual initiation and gradual withdrawal of 4 the drug. Such a therapy was not followed in the abrupt withdrawal of the drug in 5 November or its reinstitution in January 1995. Sinequan was prescribed to petitioner 6 to “counter symptoms of depression and facilitate[] sleeping.” (23 RT 3560.) Because the effects of Cogentin are rapid and 7 Petitioner’s mental condition was such that trial counsel informed the court in 8 the spring of 1993 that a competency evaluation was necessary. On March 8, 1993, 9 trial counsel requested the appointment of two psychiatrists to evaluate petitioner 10 “regarding his present sanity and competency to proceed with the trial.” (1 RT 14.) 11 The court appointed Dr. John Stalberg and Dr. John Mead to examine petitioner and 12 report their findings to trial counsel. (1 RT 14-15.) Drs. Stalberg and Mead examined 13 petitioner, reviewed only a portion of the material relating to petitioner’s mental 14 functioning, and concluded that he was competent at that time. The materials provided 15 to Drs. Stalberg and Mead did not include petitioner’s jail records or medical records 16 (apart from the treatment records from Kedren Community Health Center), school 17 records, or any of the other readily available social history records that would have 18 alerted Dr. Stalberg and Dr. Mead to the need for further evaluation and would have 19 raised in their minds a doubt about petitioner’s mental competence. The evaluations 20 also did not include any information from the Los Angeles County Jail medical staff. 21 More significantly, the evaluations predated jail staff’s observations of petitioner’s 22 psychosis in June 1993. 23 Evaluations conducted immediately before and during trial by defense mental 24 health experts confirmed that petitioner’s mental state had deteriorated to the point that 25 he was incompetent to stand trial. In the fall of 1994, petitioner was examined by Dr. 26 Claudewell S. Thomas, Professor Emeritus of Psychiatry at UCLA School of 27 Medicine. After reviewing petitioner’s medical and school records and interviewing 28 petitioner, Dr. Thomas concluded that he suffered from a lifelong schizoaffective 101 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 disorder, was paranoid and psychotic, and experiencing auditory hallucinations and 2 referential thinking. Dr. Thomas communicated his findings to trial counsel orally and 3 in a report dated December 7, 1994. (NOL C2 Ex. 154 at 2750, 2752.) Following Dr. 4 Thomas’s conclusions, trial counsel informed the court, by way of a request pursuant 5 to California Penal Code section 987.9, that petitioner suffered from a “major 6 dissociative process as part of a chronic schizophrenic disorder.” (II Supp. 23 CT 7 6520.) In November 1994, William Spindell, Ph.D., administered an abbreviated 8 battery of psychological and neuropsychological tests to petitioner. Although Dr. 9 Spindell’s evaluation was truncated due to time constraints, he too concluded his 10 testing supported a “diagnosis of chronic schizophrenia.” (30 RT 4432.) 11 The trial court heard testimony that petitioner reported hearing voices that were 12 consistently and relentlessly intruding into his thinking. During petitioner’s testimony 13 during the guilt phase, trial counsel informed the court that petitioner had been 14 prescribed Haldol, “a strong antipsychotic drug for people that hear voices.” (23 RT 15 3542.) At the guilt phase, Dr. Kunzman of the Los Angeles County Jail medical staff 16 testified that petitioner was taking Haldol for “voices.” (Id. at 3547.) Dr. Kunzman 17 testified that Haldol, “one of our most potent medications,” “is used for people who are 18 describing primarily auditory hallucinations, may additionally be delusional and have 19 paranoia.” (Id. at 3549.) 20 In the penalty phase, Dr. Thomas testified that petitioner suffered from 21 schizoaffective schizophrenia, “a major psychiatric disorder of a psychotic nature.” 22 (30 RT 4413-14.) Dr. Thomas described this disabling disorder as “progressive.” (Id. 23 at 4418.) Petitioner’s disorder “is characterized by psychotic responses, either as a 24 usual sort of thing or as an intermittent and unpredictable pattern such that an 25 individual’s customary reality-oriented judgment is disrupted.” (Id. at 4433.) Dr. 26 Thomas also informed the court that petitioner has experienced auditory hallucinations. 27 (Id. at 4460.) Dr. Thomas also testified about petitioner taking Haldol, Cogentin, and 28 Sinequan and Theodrine (an anti-asthmatic) while in custody. He testified that Haldol 102 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 was a very powerful drug, Sinequan was an anti-depressant, and Cogentin was 2 prescribed to combat the side effects of Haldol. (Id. at 4453.) See de Kaplany v. 3 Enomoto, 540 F.2d 975, 983-84 (9th Cir. 1976) (psychiatric testimony is further 4 evidence supporting a bona fide doubt as to petitioner’s competence to stand trial). 5 The information the court received was sufficient to reasonably have raised a 6 doubt in the mind of the trial judge whether petitioner was sufficiently mentally alert 7 for the trial to proceed. Based on the facts known to the trial judge, or which he 8 reasonably should have apprehended, the trial judge had a duty to suspend the trial and 9 conduct a hearing in order to determine whether petitioner was able to attend to the 10 external reality of his trial sufficiently to meet the requirement that he be mentally 11 present. Pate, 383 U.S. at 385-87, 86 S. Ct. at 842-43; see also Hernandez v. Ylst, 930 12 F.2d 714, 716 (9th Cir. 1991). 13 14 2. Petitioner Did Not Have A Rational And Factual Understanding Of The Proceedings Against Him. 15 Petitioner’s bizarre behavior in the courtroom raised serious doubts about his 16 ability to understand the proceedings and assist his counsel and to testify on his own 17 behalf. At a pre-trial hearing on December 24, 1992, petitioner was asked if he 18 consented to setting the matter for the following month. Petitioner did not seem to 19 follow the exchanges between the prosecutor, the judge, and trial counsel because he 20 stated that he was agreeable to setting the matter for the following month, as long as he 21 was not waiving time. However, waiving time was not an issue because 60 days had 22 not elapsed since the preliminary hearing on December 10, 1992, and neither the trial 23 court nor trial counsel had asked petitioner to do so. (1 RT 3-4.) At the next hearing, 24 on January 25, 1993, petitioner interjected “leave me alone, leave me alone,” when no 25 one appeared to be addressing him at the time. (Id. at 5-6.) Petitioner refused to waive 26 time even though trial counsel was not prepared to defend the case, as there was still 27 “quite a bit to be done.” (Id. at 6-7.) 28 103 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 On April 14, 1993, petitioner declared a conflict with his attorney which was 2 construed as a motion brought pursuant to People v. Marsden, 2 Cal.3d 118, 84 Cal. 3 Rptr. 156 (1970). (1 RT 18.) Petitioner misapprehended that his trial attorney was 4 encouraging him to agree to a plea bargain of fifteen to life. (Id. at 21.) In fact, no 5 offer had been made in the case, and trial counsel explained that he was simply 6 explaining to petitioner possible sentences for first- and second-degree murder, and 7 manslaughter. However, at that time, he also had explained to petitioner that this was 8 a special circumstance case, and that petitioner was facing life without parole or the 9 death penalty. (Id. at 22.) After the judge denied petitioner’s request to replace trial 10 counsel, following what the judge referred to as petitioner’s “outbursts,” petitioner 11 refused to speak to the judge. (Id. at 25, 27.) 12 Petitioner dissociated at critical times during the course of his trial. (NOL C2 13 Ex. 144 at 2707). Even the jury noted his strange demeanor. (NOL C2 Ex. 138 at 14 2689.) At other times, petitioner became agitated over insignificant and irrelevant 15 issues. (Id.) Because of his mental impairments, the trial paralegal frequently had to 16 repeat herself to petitioner so he could understand what action the defense team was 17 taking. (NOL C2 Ex. 19 at 207.) Petitioner had difficulty concentrating, as evidenced 18 by his statements to the prosecutor that he was “straining his brain” to remember 19 events and could not follow the prosecutor’s line of questioning, admitting “you lost 20 me there.” (23 RT 3481.) Trial counsel also noticed that “Mr. Jones was very fatigued 21 during his testimony, especially during the district attorney’s cross-examination. He 22 seemed more than normally tired, and had more trouble responding to the district 23 attorney’s questions than one would expect.” (NOL C2 Ex. 150 at 2733.) Wanda 24 Keith, who visited petitioner at the jail after she had testified, observed that petitioner 25 “seemed like he was really climbing the walls, and was not actually understanding all 26 of what was going on.” (NOL C2 Ex. 24 at 246.) 27 Petitioner’s medications during the guilt phase also precluded his ability to 28 communicate with defense counsel in a meaningful manner to assist in developing his 104 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 capital defense. Petitioner suffered significant prejudice to his trial rights due to being 2 involuntarily medicated with Atarax and Sinequan at the guilt phase of the trial. He 3 was unable to testify persuasively about his mental state prior to, or at the time of the 4 crimes. Moreover, his demeanor was adversely affected by the medically unsound 5 manner in which the psychiatric medication prescribed to him was given and withheld. 6 The abrupt withdrawal and then reinstitution of the Haldol and Cogentin, coupled with 7 the rest of the drug treatment and his long-standing mental impairments, thwarted 8 petitioner’s participation at critical junctures of the criminal proceedings. “The lack of 9 appropriate medication not only distorted Mr. Jones’s appearance and demeanor, but 10 also adversely affected his ability to attend, concentrate, assist his attorneys, and 11 testify.” (NOL C2 Ex. 154 at 2762.) 12 13 B. Trial Counsel Unreasonably and Prejudicially Failed to Declare a Doubt as to Petitioner’s Competence to Stand Trial. 14 Petitioner’s mental impairments remained an ongoing condition throughout the 15 pre-trial, trial, and sentencing proceedings. Trial counsel was personally aware that 16 petitioner could not communicate effectively with him or assist him in the preparation 17 and presentation of a defense. As petitioner’s mental condition deteriorated following 18 the brief competency evaluations in the spring of 1993, trial counsel undertook no 19 efforts to evaluate petitioner’s competency to proceed to trial. 20 unreasonably failed to move for a stay of the proceedings and/or to conduct a 21 competent and reliable evaluation of petitioner’s ability to comprehend and attend the 22 proceedings. Trial counsel’s failure to do so fell below the minimum constitutional 23 standards. See United States v. Howard, 381 F.3d 873, 881 (9th Cir. 2004) (counsel 24 may be ineffective for failure to investigate when counsel has reason to question his 25 client’s competence); see also Kimmelman v. Morrison, 477 U.S. 365, 385, 106 S. Ct. 26 2574, 91 L. Ed. 2d 305 (1986) (counsel has an obligation either to investigate possible 27 defenses or make reasonable decisions that particular investigations are unnecessary); 28 Burt v. Uchtman, 422 F.3d 557, 565-70 9 (7th Cir. 2005) (counsel ineffective for Trial counsel 105 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 failing to request a second competency hearing where defendant’s mental status had 2 changed, including that his medications changed significantly between the time of his 3 competency evaluation and his trial). 4 5 1. Trial Counsel’s Failure to Have Petitioner Evaluated for Competence Was Unreasonable. 6 Trial counsel knew, or reasonably should have known, that notwithstanding any 7 preliminary determination of the issue, and regardless of his own untrained 8 observations, it was critical to monitor the issue of petitioner’s competence. 9 Petitioner’s flat affect, eagerness to please, and constant efforts to appear “normal” to 10 others, tended to mask other signs of his serious mental illness. (NOL C2 Ex. 154 at 11 2751 (“Mr. Jones devotes a great deal of energy to appearing ‘normal’ to others, and is 12 anxious about how others will perceive him. . . . In conversation, Mr. Jones was 13 generally non-reactive, and a concrete thinker. His affect was depressed and relatively 14 flat, and at times inappropriate . . .”).) Significantly, trial counsel also was aware, 15 through his own mental health expert, that petitioner’s psychiatric disorders of major 16 dissociative status and schizoaffective disorder or schizophrenia, by their nature, 17 waxed and waned, and needed to be evaluated based upon petitioner’s 18 symptomatology and behavior over time, not at any one particular moment. (Id. (“Mr. 19 Jones’s psychiatric condition waxes and wanes, and can be more or less apparent or 20 active at any given time.”).) 21 Trial counsel’s failure to request the trial court to declare a doubt as to 22 petitioner’s competence to stand trial was professionally unreasonable because he had 23 access to additional information that petitioner was incompetent. Dr. Thomas had 24 informed trial counsel in his December 7, 1994 report: 25 I noted the necessity of his medication regimen at the County Jail and 26 cautioned Mr. Manaster in my report of December 7, 1994, about the 27 serious competency issues: “In order to be sure that [Mr. Jones] is 28 106 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 competent to stand trial under the provisions of 1368 P.C., he should be 2 treated until he is free of hallucinations and delusional thought.” 3 (NOL C2 Ex. 154 at 2754.) 4 Dr. Thomas “had genuine doubts that Mr. Jones was able to cooperate with 5 counsel and rationally assist in the preparation of his case for trial.” (Id.) Dr. Thomas 6 never had the opportunity to present this information to petitioner’s jury during the 7 penalty phase, because trial counsel did not question him on the topic of competency. 8 Dr. Thomas’s professional medical opinion is clear, however: “If Mr. Manaster had 9 asked me, I would have opined that Mr. Jones was not competent to stand trial.” (Id.) 10 Trial counsel unreasonably failed to request a further inquiry into petitioner’s 11 competence following the disturbing findings from his own psychiatric expert. Trial 12 counsel deficiently and prejudicially overlooked this critical issue by (1) failing to 13 follow up on his own expert’s findings (id. at 2754, 2761-62); (2) failing to conduct a 14 thorough investigation into petitioner’s life history and lifelong mental impairments, 15 which also would have placed him on notice of the need to monitor the competency 16 issue closely, and alerted him to the possibility of petitioner’s fluctuating mental 17 conditions; (3) failing adequately to request and/or review petitioner’s medical records 18 revealing the inappropriate medical regimen petitioner endured at the hands of jail 19 psychiatric staff; (4) failing to alert his own expert to this problem, and accordingly 20 failing to present this information to the jury through Dr. Thomas; (5) failing to 21 adequately interview or prepare Dr. Kunzman, the jail psychiatrist, to testify on 22 petitioner’s behalf, because any minimally competent witness preparation would have 23 revealed that Dr. Kunzman was responsible for the clinically inappropriate medication 24 regimen and would have precluded any misleading and inaccurate testimony on the 25 topic; and, (6) failing to monitor petitioner’s courtroom demeanor at any time other 26 than his testimony. (NOL C2 Ex. 150 at 2733). 27 Trial counsel’s failure to request a competency evaluation in light of petitioner’s 28 deteriorating mental health symptoms and the evidence and his own expert’s opinion 107 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 was unreasonable. See, e.g., Smith v. McCormick, 914 F.2d 1153, 1170 (9th Cir. 1990) 2 (ruling that petitioner was entitled to an evidentiary hearing on the basis of a colorable 3 claim that counsel was ineffective for failing to evaluate his competency prior to 4 changing his plea from not guilty to guilty; counsel failed to seek a psychiatric 5 examination based on a misunderstanding of the applicable legal standard of a 6 competent guilty plea); Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997) ( counsel 7 ineffective for failing to seek a pretrial competency determination when he knew of his 8 client’s history of mental problems, including a previous determination that he was 9 incompetent, knew that he was being medicated prior to trial, and observed his client’s 10 bizarre behavior; instead, counsel unreasonably relied on a finding that his client was 11 competent from an unrelated proceeding two years before the relevant time period in 12 determining that it was not worthwhile to seek a competency determination pretrial); 13 Owsley v. Peyton, 368 F.2d 1002, 1003 (4th Cir. 1966) (trial counsel’s failure to raise 14 the issue of competency rendered his representation ineffective to the point of 15 depriving the defendant of his Constitutional right to counsel). 16 2. Trial Counsel’s Deficient Representation Was Prejudicial. 17 Had trial counsel apprised the court of the fact that his expert believed petitioner 18 was incompetent to stand trial under the provisions of California Penal Code Section 19 1368, and that petitioner “should be treated until he is free of hallucinations and 20 delusional thought,” there is a reasonable probability that petitioner would have been 21 found incompetent to stand trial. Hull v. Kyler 190 F.3d 88, 111 (3rd Cir. 1999) 22 (where evaluations indicate that petitioner is incompetent, prejudice to a defendant is 23 manifest when defendant’s attorney fails to effectively use the procedures to determine 24 competency that are mandated by Supreme Court precedent). Even more prejudicially, 25 trial counsel offered to stipulate to petitioner’s competence immediately preceding the 26 testimony of Dr. Thomas. 27 petitioner was competent to stand trial amounts to “constructive denial of the (30 RT 4404-05.) Trial counsel’s “agreement” that 28 108 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 assistance of counsel altogether[, which] is legally presumed to result in prejudice.” 2 Hull v. Kyler, 190 F.3d at 112 (internal citation omitted). 3 Moreover, without petitioner receiving the benefit of adequate mental health 4 treatment, the jury was affirmatively misled as to petitioner’s true mental condition, 5 and as to the medications influencing and impairing his conduct in the courtroom. The 6 jury was also prejudicially misled about petitioner’s conduct outside the courtroom. 7 For example, the jury heard during the penalty phase that on New Year’s Eve, 1994, 8 petitioner and his sister spoke on the telephone, had an argument, during which 9 petitioner allegedly stated, “I don’t give a f--- about Pam or her family.” (28 RT 4149- 10 65.) The jury was led to believe that at this time, petitioner was drugged with anti- 11 psychotic medication and that the effects of his paranoia, psychosis, delusional thought 12 processes and hallucinations were controlled, and that petitioner’s comments were the 13 product of intentioned and purposeful behavior. Had they instead realized that no anti- 14 psychotic medication was being administered to keep his psychosis in check, they 15 would have been far more likely to discount petitioner’s comments as the product of 16 his mental illness. More importantly, had trial counsel been able to raise this issue 17 with the trial court prior to any testimony concerning this telephone call, it is 18 reasonably likely that he would have been able to exclude it entirely. These errors and 19 omissions had a substantial and injurious effect or influence on the jury’s 20 determination of the verdicts at the guilt and penalty phases. 21 C. Trial Counsel Unreasonably and Prejudicially Failed to Ensure 22 Petitioner Was Competent and Prepared to Testify or to Advise Him 23 About the Possible Consequences of Testifying. 24 Without investigating any other potential defense, trial counsel based his entire 25 guilt defense on petitioner’s testimony. “I planned to have Mr. Jones testify in the 26 guilt phase about what happened at the time of the crime. Because we had no defense 27 to the rape charge, I needed Mr. Jones to admit the rape.” (NOL C2 Ex. 12 at 107; see 28 also Ex. 150 at 2731-32.) Trial counsel’s entire mental state defense was based on 109 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 “Mr. Jones testify[ing] about his dissociative mental illness, mental health symptoms, 2 and background as evidence that he was incapable of forming the required intent for 3 the rape special circumstance.” (NOL C2 Ex. 12 at 107.) Trial counsel performed 4 unreasonably by basing an important part of the trial defense on the testimony of his 5 mentally ill, psychotic client, and by not ensuring petitioner could competently testify, 6 and was prepared to testify. 7 1. Trial Counsel’s Failure To Ensure Petitioner Was Competent And Prepared To Testify Fell Below The Standard Of Care. 8 9 Trial counsel unreasonably persuaded petitioner to alter his version of events 10 when his mental illness and delusional beliefs prevented him from being able recall 11 events. As a result of his mental impairments and suggestibility, although he had no 12 memory of the events, petitioner adopted a version of events that trial counsel 13 suggested to him. (NOL C2 Ex. 19 at 208.) Even though petitioner had never been 14 capable of recounting accurately or completely the events on the night of the crime 15 (NOL C2 Ex. 154 at 2752), trial counsel continued to consider petitioner his primary 16 defense to the rape and felony murder special circumstance allegations. (NOL C2 Ex. 17 12 at 107, 109.) 18 Questioned by trial counsel, petitioner essentially admitted his guilt, when in 19 fact he was unable to genuinely state that he knew what he had done: 20 Q: After the first few stab wounds, do you remember the rest? 21 A: No. 22 Q: But you know you killed her? 23 A: Yes. 24 Q: And she was tied up? 25 A: Yes, she was. 26 Q. Other than grabbing the scarf, do you have any memory of tying her up? 27 A: No. 28 Q: And you know somebody had sex with her? 110 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 A: Yes. 2 Q: And do you have any memory of doing that? 3 A: No, but I know that it had to be me, though. 4 (22 RT 3336.) 5 Trial counsel acted unreasonably by calling petitioner as a witness, after Dr. 6 Thomas expressly informed him that petitioner was not competent to testify at trial and 7 that petitioner’s psychosis would interfere with his ability to comprehend and answer, 8 in a rational manner, questions posed to him. (NOL C2 Ex. 154 at 2752; see id. at 9 2754.) After interviewing petitioner, Dr. Thomas informed trial counsel: 10 [I]n my professional medical opinion, Mr. Jones was not mentally fit to 11 testify on his own behalf. The unique characteristics and manifestations of 12 his mental disorders made him a poor candidate for testimony. Because of 13 Mr. Jones’s frank dissociation at the time of the events in question, the Mr. 14 Jones in the courtroom was not the same person as the Mr. Jones who had 15 acted that evening. Anything he could remember, he would remember as a 16 spectator, watching as if from outside his body, with no emotions to call 17 upon to seem credible to the jury. 18 (NOL C2 Ex. 154 at 2752.) Despite Dr. Thomas’s expressed opinion on petitioner’s 19 competence, and his further opinion to trial counsel that petitioner was not able 20 competently to testify, trial counsel proceeded to have petitioner testify. Although Dr. 21 Thomas was readily available, trial counsel unreasonably failed to use his mental 22 health expert to determine whether, and under what circumstances, petitioner was 23 capable of being adequately prepared to testify on his own behalf. Trial counsel 24 recklessly proceeded without a clear understanding of the extreme psychological 25 difficulties that petitioner would, and did, experience as a result of being forced to 26 confront the events during his dissociative break on the night of the crimes. 27 Trial counsel knew that petitioner’s testimony and behavior on the witness stand 28 would be controlled, and adversely affected, by his long-standing mental impairments 111 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 and the drug regimen that the Los Angeles County Jail medical staff had prescribed. 2 (See, e.g., Ex. 154 at 2754 (Dr. Thomas informed counsel “In order to be sure that [Mr. 3 Jones] is competent to stand trial under the provisions of 1368 P.C., he should be 4 treated until he is free of hallucinations and delusional thought.”).) The Los Angeles 5 County Jail staff prescribed petitioner an inappropriate and fluctuating medication 6 regimen. Trial counsel was unaware of petitioner’s inappropriate medication regimen 7 because he failed to request and/or review petitioner’s jail medical records that 8 revealed this problem. (NOL C2 Ex. 150 at 2733.) Trial counsel’s unreasonable 9 failure to adequately interview and prepare the jail psychiatrist, Dr. Kunzman, to 10 testify prevented him from discovering the problems with petitioner’s medication 11 regimen. (Id.) 2. 12 Trial Counsel’s Deficient Representation Was Prejudicial. 13 Petitioner’s jury did not know he was not competent to stand trial, or that his 14 medication regimen had been suddenly and dangerously changed, or that “[b]ecause of 15 Mr. Jones’s frank dissociation at the time of the events in question, the Mr. Jones in the 16 courtroom was not the same person as the Mr. Jones who had acted that evening.” 17 (NOL C2 Ex. 154 at 2752.) 18 Even though trial counsel premised the mental state defense on petitioner’s 19 testimony, which included the flashback to petitioner’s childhood, “[w]ith no 20 corroboration and no context, Mr. Jones’s clipped memory of a flashback would make 21 little sense to the jury.” (Id. at 2753; see, e.g., NOL C2 Ex. 140 at 2694 (trial juror 22 found petitioner’s testimony regarding flashback “didn’t make sense” and required 23 corroborative evidence); NOL C2 Ex. 138 (juror needed information about petitioner); 24 NOL C2 Ex. 9 (juror concerned about lack of explanation for petitioner’s behavior).) 25 Dr. Thomas was readily available to testify and explain the significance of petitioner’s 26 flashback. 27 Thomas (NOL C2 Ex. 154 at 2753-55), in response to the prosecution’s query 28 regarding the whereabouts of the psychiatrist (26 RT 3905), trial counsel asked the Instead of arguing the compelling evidence presented to him by Dr. 112 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 jury “not to blame Mr. Jones, you know for maybe a witness that I did not put on[.]” 2 (26 RT 3951). 3 Regardless of whether trial counsel under certain circumstances may make a 4 tactical decision to present a client’s testimony, trial counsel’s decision to have 5 petitioner testify was unreasonable because counsel learned that petitioner’s mental 6 illness rendered him not competent to testify. See Deere v. Cullen, 713 F. Supp. 2d 7 1011 (C.D. Cal. 2010) (“Where there are ‘sufficient indicia of incompetence to give 8 objectively reasonable counsel reason to doubt the defendant’s competency,’ counsel 9 must request the trial court to order a hearing or evaluation on the issue of the 10 defendant’s competency” to satisfy due process and provide effective assistance 11 (internal quotation marks omitted)). But for trial counsel’s unreasonable failures, there 12 is a reasonable probability the result of the trial would have been different. Strickland 13 v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d 674. 14 // 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 113 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 V. PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING ON 2 CLAIM FIVE: PETITIONER WAS DEPRIVED OF HIS 3 CONSTITUTIONAL RIGHTS BECAUSE HE WAS MEDICATED AT THE 4 TIME OF TRIAL. 5 The Petition sets forth detailed factual allegations at pages 124 to 130 that 6 petitioner’s constitutional rights were violated because, throughout his trial, petitioner 7 was involuntarily under the medical treatment of personnel employed by the Los 8 Angeles County Jail. 9 throughout his custody in the jail, and during trial, he was medicated involuntarily with 10 Atarax, Cogentin, Haldol, and Sinequan in violation of petitioner’s Fifth and 11 Fourteenth Amendment right to due process of law and a fair trial, Sixth Amendment 12 right to counsel, confrontation, compulsory process, testify competently in his own 13 defense, and Eighth Amendment protections against cruel and unusual punishment. The jail medical staff prescribed powerful medication 14 Respondent generally denies or alleges insufficient knowledge to admit or deny 15 the allegations in support of petitioner’s claim. (Answer at 28, Doc. 28, filed Apr. 6, 16 2010.) Given respondent’s general denials, petitioner cannot determine which facts are 17 in dispute. 18 In Riggins v. Nevada, 504 U.S. 127, 112 S. Ct. 1810, 118 L. Ed. 2d 479 (1992), 19 the United States Supreme Court held that the forced administration of antipsychotic 20 medication during trial violated a defendant’s right to due process, unless the trial 21 court made findings that the medication was necessary for the sake of the defendant’s 22 safety or the safety of others and that there were no other reasonable alternatives 23 available. No such findings were made in petitioner’s case. In order to determine 24 which facts are in dispute and whether the administration of psychotropic drugs was 25 necessary, an evidentiary hearing is warranted. 26 performance fell below the prevailing Sixth Amendment norms because trial counsel 27 unreasonably and prejudicially failed to object to the drug regimen, and failed to object Furthermore, trial counsel’s 28 114 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 to the capital murder trial proceedings on the ground that petitioner could not obtain a 2 fair trial while being medicated with antipsychotic drugs. At an evidentiary hearing on this Claim, petitioner will present the following 3 4 evidence in support of the following: 5 A. Petitioner Is Entitled to Relief Because He Was Improperly Medicated. 6 In order to justify the forced medication of a defendant against his will, prior to 7 the administration of the medication, a determination must be made that psychotropic 8 medication is medically appropriate and no “less intrusive alternatives” exist to ensure 9 that defendant does not pose a danger to himself or others. Riggins, 504 U.S. at 135. 10 In Riggins, the court also held that it was entirely possible that the side effects of 11 antipsychotic drugs not only had an impact on the defendant’s “outward appearance, 12 but also the content of his testimony on direct or cross examination, his ability to 13 follow the proceedings, or the substance of his communication with counsel.” Id. at 14 137. 15 medicating the defendant cannot be shown from the record, prejudice is presumed. Id. Under these circumstances, where the precise consequences of forcibly 16 In Sell v. United States, 539 U.S. 166, 123 S. Ct 2174, 156 L. Ed. 2d 197 (2003), 17 the United States Supreme Court held that a defendant’s right to due process is not 18 violated where antipsychotic drugs are administered to a mentally ill defendant facing 19 serious criminal charges where those drugs are substantially likely to render him 20 competent to stand trial. However, in order to do so, the court must find that (1) the 21 administration of drugs furthers an important government interest; (2) the involuntary 22 medication of a defendant will further those interests; (3) involuntary medication is 23 necessary to further those interests; and (4) the court must find that the administration 24 of the drugs is medically indicated, in the best interests of the defendant in light of his 25 medical condition. See United States. v. Hernandez-Vasquez, 513 F.3d 908, 913 (9th 26 Cir. 2008) (citing Sell). Furthermore, in Sell the Court stated that the treatment must 27 not have side effects that “interfere significantly with the defendant’s ability to assist 28 counsel in conducting a trial defense, thereby rendering the trial unfair.” 539 U.S. at 115 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 181. The administration of the drugs must be in the best interests of the defendant 2 given his medical condition. 3 medication may be important as, “[d]ifferent kinds of antipsychotic drugs may produce 4 different side effects and enjoy different levels of success.” Id. Id. The Court also noted that the exact type of 5 During the course of petitioner’s pretrial detention, jail medical personnel 6 prescribed Atarax, an anti-anxiety medication; Cogentin, an anticholinergic medication 7 used to control extrapyramidal disorders caused by neuroleptic drugs; Haldol, an 8 antipsychotic medication; Sinequan, an antidepressant medication; and Theodrine 9 (phenobarbitol), a barbiturate. 10 Petitioner received 50 milligrams of Atarax two times a day from at least as 11 early as June 8, 1993, to August 3, 1993, and 50 milligrams of Atarax three times a day 12 from September 21, 1993, through December 27, 1994. (NOL C2 Ex. 33 at 622, 647, 13 648, 669, 670; Ex. 34 at 678, 685.) 14 Petitioner received 2 milligrams of Cogentin once a day, from at least as early as 15 June 30, 1993, through November 1, 1994, when the prescription was abruptly 16 discontinued with no clinical basis for the discontinuation indicated. (NOL C2 Ex. 33 17 at 622, 640, 663, see also id. at 596, 600, 602, 604, 606, 608, 610, 613, 616, 618, 620.) 18 On January 24, 1995, the day that petitioner concluded his testimony in the guilt phase 19 of the trial, his prescription for Cogentin was renewed, and it continued through 20 sentencing until April 15, 1995. (See, e.g., NOL C2 Ex. 34 at 680, 682, 685, 690, 21 693.) Adverse effects of Cogentin include toxic psychosis, confusion, disorientation, 22 and the potential exacerbation of preexisting psychotic symptoms. Because the effects 23 of Cogentin are both rapid and cumulative, the recommended therapy is for gradual 24 initiation, as well as gradual withdrawal, of the drug. This therapy was not followed in 25 the administration of Cogentin to petitioner. Although the jail placed petitioner on a 26 regimen of daily doses of these drugs for more than a year, the drugs were suddenly no 27 longer prescribed to petitioner in November 1994; just as abruptly, the regimen was 28 renewed, full strength, in the middle of petitioner’s capital trial, in January 1995. 116 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 This same pattern of abrupt discontinuation and abrupt resumption also occurred 2 with respect to petitioner’s prescription for the antipsychotic medication Haldol. 3 Petitioner received 5 milligrams of Haldol once a day, from at least as early as June 30, 4 1993, through November 1, 1994, when the prescription was discontinued, again 5 without any clinical basis. (NOL C2 Ex. 33 at 640, 663; see also id. at 596, 600, 602, 6 604, 606, 608, 610, 613, 616, 618, 620, 622.) On January 24, 1995, the day that 7 petitioner concluded his testimony in the guilt phase of the trial, he again was placed 8 on the regimen of Haldol, which continued through sentencing and until April 15, 9 1995. (NOL C2 Ex. 34 at 680, 682, 685, 690, 693.) 10 Petitioner received 200 milligrams of Sinequan, once a day, from at least as 11 early as November 5, 1992, through trial and sentencing and until April 15, 1995. 12 (NOL C2 Ex. 33 at 663, 669, 674; Ex. 34 at 678, 680, 682, 685.) 13 Petitioner received Theodrine from approximately October 1993, through April 14 15, 1995. (NOL C2 Ex. 33 at 596, 600, 602, 604, 606, 608, 610, 613, 618, 620; Ex. 34 15 at 678, 680, 682, 685.) Theodrine can cause psychosis. (NOL C2 Ex. 154 at 2754.) 16 Petitioner’s involuntary medication, and interruptions in his medication regimen, 17 induced distortions of his demeanor that negatively influenced jurors’ perceptions of 18 him. (See, e.g., NOL C2 Ex. 138 at 2689.) In addition, these distortions rendered the 19 jurors more receptive to, and more willing to believe, the prosecutor’s argument that 20 petitioner was exaggerating his mental health symptoms of schizophrenia, was not 21 mentally ill, and was fabricating the defense at trial that he had blacked out on the 22 night of the murder. (See, e.g., NOL C2 Ex. 23 at 239 (“the defense tried to make it 23 sound like Mr. Jones had some kind of serious mental illness . . . but he looked fine to 24 me.”).) The jurors’ view of petitioner was particularly influenced by petitioner’s 25 confused behavior during cross-examination. 26 By drugging petitioner, and severely interrupting his medication regimen, the 27 state impaired his ability to testify and assist in his defense. Further, because petitioner 28 was drugged during his trial, his defense was adversely affected not only because of 117 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 his distorted appearance, but also by his inability to follow the proceedings and 2 communicate effectively with counsel. 3 The state’s unpredictable and abrupt changes in petitioner’s medication regimen 4 included the abrupt discontinuation of antipsychotic medications immediately after jail 5 psychiatric staff consulted with a member of the defense team, and the equally abrupt 6 reinstating of these medications immediately following petitioner’s testimony in the 7 guilt phase. (NOL C2 Ex. 33 at 640, 663; NOL C2 Ex. 34 at 690.) As trial counsel’s 8 mental health expert, Dr. Claudewell Thomas explains, 9 If I had been asked, I could have testified that it was extremely important 10 for someone with Mr. Jones’s mental impairments to receive regular and 11 proper medications, particularly to decrease psychotic symptoms as much 12 as possible. Haldol is a difficult drug to take, and often has significant side 13 effects, so it is not prescribed unless an individual is severely impaired. 14 (NOL C2 Ex. 154 at 2754.) Prior to abrupt changes in the medication regimen, 15 petitioner received a relatively higher dosage of 5 milligrams at a time, (id.), which 16 ensured that the clinically inappropriate fluctuations had an even more deleterious 17 impact. 18 Moreover, the prejudice caused by the creation of a negative demeanor is not 19 simply that petitioner appeared indifferent and cold. The medication inhibited 20 petitioner’s capacity to react and respond to the proceedings and to demonstrate 21 remorse or compassion. See Riggins, 504 U.S. at 137-38, 112 S. Ct. at 1816-17 22 (having an expert testify about the effects of the drugs on defendant’s demeanor was 23 not sufficient to cure the possibility that the drugs affected defendant’s testimony, 24 interactions with counsel, or his comprehension at trial). 25 Petitioner also suffered significant prejudice to his trial rights at the penalty 26 phase due to the involuntary administration of antipsychotic drugs during the 27 proceedings and the effects of the severe interruptions in his medication regimen. The 28 jurors necessarily assessed his mental state before, during, and after the commission of 118 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 the offenses in reaching their determination of penalty. (See Petition Claim Twelve.) 2 However, as a result of the medication, petitioner conveyed to the jurors the 3 impression that he lacked remorse and that he did not care whether the jury imposed a 4 sentence of life or death. 5 In addition, as a result of the antipsychotic medication and the effects of the 6 severe interruptions in his medication regimen, petitioner could not assist defense 7 counsel meaningfully, rationally, and fully in developing mitigating evidence to 8 present during his penalty trial or in participating in the development of a defense at 9 trial. Further, because petitioner was heavily drugged and also suffering the effects of 10 severe interruptions in his medication regimen, he was unable to present to the jurors 11 evidence of his mental condition without the masking and distorting effects of 12 medication. The central mitigating fact defense counsel attempted to present to the 13 jury was the reality of petitioner’s mental illness and its disabling effect upon his 14 mental faculties and behavior. 15 petitioner’s mental illness, they would have viewed him also as a tragic victim in this 16 case. 17 presentation in an unmedicated state, the state in which he had been prior to and during 18 the offenses, was never seen by the jury. 19 (petitioner’s behavior led one juror to inform other jurors petitioner was medicated 20 with antidepressants).)15 To the extent that the jurors empathized with But the most convincing proof of petitioner’s mental dysfunction, i.e., his (See, e.g., NOL C2 Ex. 138 at 2689 21 Petitioner was effectively barred from presenting to the jury significant 22 mitigating evidence, i.e., the closest possible replication of his mental state and 23 outward appearance as they were at the time of the offenses. Physically, petitioner 24 looked very different at trial than he had at the time of the offenses, due to side effects 25 26 27 28 15 In Benson v. Terhune, 304 F.3d 874, 881 (9th Cir. 2002), the court noted that even antidepressants and tranquilizers could “alter the chemical processes of the brain” and produce side effects such as “sedation, drowsiness, agitation, aggression and inappropriate behavior and anxiety.” 119 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 of the antipsychotic medication he was being administered and the effects suffered by 2 the interruption of his medication regimen. 3 Petitioner is entitled to have his guilt and penalty verdicts invalidated, even if 4 the administration of antipsychotic drugs had been indicated in order to render 5 petitioner competent to stand trial. Assuming, arguendo, that the prosecution could 6 have established or did establish that it was necessary to administer antipsychotic 7 drugs to petitioner, such justification is insufficient to overcome the violation of his 8 right to due process caused by his having been administered antipsychotic drugs during 9 his capital murder trial. 10 Petitioner is entitled to have the guilt and penalty verdicts invalidated even if he 11 is deemed to have consented to being medicated with antipsychotic drugs during his 12 trial proceedings. Even if petitioner were to be deemed to have assented to the 13 administration of antipsychotic drugs during his criminal proceedings, his then current 14 mental state prevented such acquiescence from constituting an informed and valid 15 consent, and rendered his competency and capital trials fundamentally unfair. See 16 Benson v. Terhune, 304 F.3d at 883-84 (consent to treatment must be knowing and 17 voluntary). 18 B. Trial Counsel Unreasonably and Prejudicially Failed to Object to the 19 Drug Regimen, and Failed to Object to the Capital Murder Trial 20 Proceedings on the Ground That Petitioner Could Not Obtain a Fair 21 Trial While Being Medicated With Antipsychotic Drugs. 22 1. Trial Counsel’s Failure To Object To The Inappropriate 23 Administration Of Psychotropic Drugs Was Unreasonable. 24 Trial counsel unreasonably and prejudicially failed to object to the drug 25 regimen, object to the capital murder trial proceedings on the ground that petitioner 26 could not obtain a fair trial while being medicated with antipsychotic drugs, even if he 27 consented to being so medicated, or take other steps to protect petitioner’s rights. See, 28 e.g., Wilson v. Gaetz, 608 F.3d 347, 355 (7th Cir. 2010) (counsel was deficient for 120 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 failing to have a psychiatrist evaluate petitioner after he had been treated with 2 antipsychotic medication; remanded for evidentiary hearing on prejudice); United 3 States v. Ruiz-Gaxiola, 623 F.3d 684, 696 (9th Cir. 2010) (ruling, in the context of 4 whether to approve involuntary medication of a defendant, the fact that a medication 5 regimen is designed to reduce delusions does not make it likely that it will do so in 6 order to render a defendant competent to stand trial). Trial counsel had no strategic 7 reason for failing to object to petitioner’s drug regimen. In fact, trial counsel was 8 deficient for failing even to be aware of the improper treatment of his client, and 9 requesting no change in his client’s medications. (NOL C2 Ex. 150 at 2733.) 2. 10 Trial Counsel’s Deficient Representation Was Prejudicial. 11 Since petitioner’s mental illness was his sole defense to the crimes (NOL C2 Ex. 12 12 at 107), it was critical for the jury to understand his mental state and its 13 manifestations in his behavior. 14 constitutional right to present himself to the jury in an unmedicated state resulted in the 15 jurors being unable to assess fairly petitioner’s true demeanor and mental state during 16 the trial. Had the jury been able to do so, there is a reasonable probability that they 17 would not have found him guilty of the crimes charged and sentenced him to death. Trial counsel’s failure to assert petitioner’s 18 Moreover, the state’s interference in petitioner’s ability to assist counsel in his 19 defense by involuntarily medicating him resulted in a per se denial of the right to 20 counsel. See Perry v. Leeke, 488 U.S. 272, 280, 109 S. Ct. 594, 102 L. Ed. 2d 624 21 (1989). Therefore, a prejudice analysis under Strickland is not required. Perry, 488 22 U.S. at 280, 109 S. Ct. at 600 (“‘Actual or constructive denial of the assistance of 23 counsel altogether,’ is not subject to the kind of prejudice analysis that is appropriate in 24 determining whether the quality of a lawyer's performance itself has been 25 constitutionally ineffective.”) (internal citation omitted). 26 // 27 // 28 // 121 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 VI. PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING ON 2 CLAIM FIFTEEN: TRIAL COUNSEL’S PERFORMANCE WAS 3 DEFICIENT FOR FAILING TO OBJECT TO NON-STATUTORY 4 AGGRAVATING EVIDENCE AND FAILURE TO INVESTIGATE AND 5 MITIGATE THE STATE’S AGGRAVATORS. 6 The Petition sets forth detailed factual allegations at pages 207 to 223 that 7 petitioner’s convictions and sentence of death were rendered in violation of his rights 8 to a fair, reliable, rational, and individualized determination of penalty based on the 9 jury’s consideration and weighing only of materially accurate, nonprejudicial, relevant 10 record evidence presented during the trial and as to which petitioner had notice and a 11 fair opportunity to test and refute; have the jury give full effect to all evidence in 12 mitigation of penalty; the privilege against self-incrimination, confrontation and 13 compulsory process; due process; a jury trial by a fair and impartial jury; conviction 14 beyond a reasonable doubt; and the effective assistance of counsel as guaranteed by the 15 First, Fifth, Sixth, Eighth, and Fourteenth Amendments. 16 compounded by trial counsel’s unreasonable and prejudicial failures to investigate and 17 rebut the potential aggravation and protect petitioner’s rights to a reliable sentencing 18 process. These errors were 19 Trial counsel’s performance fell below the prevailing Sixth Amendment norms 20 because he failed to investigate potential aggravation; failed to object to the 21 prosecution’s late and insufficient notice of the aggravation; failed to request a more 22 specific proffer of the intended aggravating evidence; and, failed to request a 23 continuance to prepare for this newly announced aggravation. 24 Respondent generally denies or alleges insufficient knowledge to admit or deny 25 the allegations in support of petitioner’s claim. (Answer at 47, Doc. 28, filed Apr. 6, 26 2010.) Given respondent’s general denials, petitioner cannot determine which facts are 27 in dispute. In order to determine which facts are in dispute, an evidentiary hearing is 28 warranted. 122 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 2 3 4 At an evidentiary hearing on this Claim, petitioner will present the following evidence in support of the following: A. Trial Counsel’s Failure to Investigate and Challenge the State’s Aggravating Circumstances Was Unreasonable. 5 In a capital case, defense counsel should “personally review all evidence that the 6 prosecution plans to introduce in the penalty phase proceedings, including the records 7 pertaining to criminal history and prior convictions.” Correll v. Ryan, 539 F.3d 938, 8 943 (9th Cir. 2008) (quoting Summerlin v. Schriro, 427 F.3d 623, 630 (9th Cir. 2005).) 9 The prosecution was constitutionally and statutorily required to provide notice 10 of the aggravating evidence it intended to introduce a reasonable amount of time 11 before trial. Cal. Penal Code § 190.3 (West 1994). The prosecution prejudicially and 12 impermissibly failed to provide notice to petitioner of the evidence it intended to 13 introduce in aggravation during the sentencing portion of petitioner’s trial, both with 14 regard to a prior crime and a statement petitioner allegedly made two and a half years 15 after the crime. 16 On February 1, 1995, the day the jury reached a verdict in the guilt phase, the 17 prosecutor provided petitioner and trial counsel with his first notice of the aggravation 18 he planned to present. 19 witnesses that he planned to call, Pamela Miller and Kim Jackson. He intended to call 20 Ms. Jackson, “a prior rape victim of the defendant,” to “testify to the circumstances” 21 involved in that incident. (27 RT 4064-65.) This notice of aggravation was given 22 verbally. The prosecution made no further oral or written proffer regarding Ms. 23 Jackson’s testimony. The prosecution informed trial counsel that he had two 24 Despite this untimely and insufficient notice, the prosecutor presented extensive 25 permissible and impermissible aggravating evidence, including the emotional and 26 highly inflammatory testimony of the victims of petitioner’s prior crimes. During Ms. 27 Jackson’s testimony, the prosecution elicited details of an incident in which petitioner 28 allegedly raped her. Ms. Jackson testified that she and petitioner drove to her 123 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 apartment after a barbecue at petitioner’s sister’s home. On the way home they 2 stopped to buy marijuana. They smoked the marijuana at her apartment and talked. 3 Ms. Jackson testified that when she went to her bedroom to get petitioner’s coat, he 4 followed her and raped her at knifepoint. (28 RT 4173-84.) 5 Trial counsel’s deficient performance in investigating the prior incident with 6 Ms. Jackson resulted in false information being presented to, and mitigating aspects 7 concerning the incident being withheld from, the jury. Reasonably competent counsel 8 handling a capital case at the time of petitioner’s trial knew that a thorough 9 investigation of the prosecution’s possible evidence in aggravation was essential to the 10 development and presentation of a defense at penalty trial. Reasonably competent 11 counsel also recognized that a thorough investigation of a defendant’s background and 12 family history, including the investigation of any prior crime, was essential to the 13 adequate preparation of both the guilt and penalty phases. See, e.g., Rompilla v. Beard, 14 545 U.S. 374, 377, 125 S. Ct. 2456, 2460, 162 L.Ed.2d 360 (2005) (“lawyer is bound 15 to make reasonable efforts to obtain and review material that counsel knows the 16 prosecution will probably rely on as evidence of aggravation at the sentencing phase of 17 trial”). (See also NOL C2 Ex. 183 at 3178; 3184-85.) 18 Prior to the start of petitioner’s capital trial, trial counsel knew that Ms. Jackson 19 was a long-term family friend; the facts surrounding the charges and the conviction 20 stemming from the incident with Ms. Jackson; that petitioner apologized to Ms. 21 Jackson in the immediate aftermath, and that he had likewise apologized to Mrs. 22 Harris, right before requesting that Mrs. Harris kill him; and, that petitioner suffered 23 from a major dissociative disorder, and that this encounter was one more of 24 petitioner’s dissociative episodes. (NOL C2 Ex. 154 at 2752; see also Ex. 150 at 25 2731.) 26 Prior to the penalty phase, trial counsel knew of the prior conviction stemming 27 from the incident with Ms. Jackson, but unreasonably conducted virtually no 28 investigation into the circumstances of this incident, other than to retrieve the court 124 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 files related to the case and make a few unsuccessful attempts to contact Ms. Jackson. 2 Indeed, the only person who even attempted to contact Ms. Jackson was investigator 3 Daniel Bazan, whose role on the case was strictly confined to an investigation of guilt 4 phase issues. (NOL C2 Ex. 19 at 204; Ex. 12 at 105.) 5 Given these facts, reasonably competent trial counsel would have concluded that 6 further investigation of this prior crime, including consultations with the defense’s own 7 mental health expert, was warranted. Trial counsel unreasonably failed to conduct 8 such an investigation prior to trial or upon learning that the prosecution intended to 9 introduce the evidence in the penalty phase. See, e.g., Rompilla v. Beard, 545 U.S. at 10 377, 125 S. Ct. at 2460. Moreover, trial counsel unreasonably failed to request 11 additional time to perform these essential tasks. See, e.g., Bigelow v. Williams, 367 12 F.3d 562, 572 (6th Cir. 2004) (counsel deficient for failing to investigate leads or 13 request a continuance to do so). 14 Trial counsel unreasonably failed to locate or interview any further witnesses 15 concerning this prior crime. Despite the availability of petitioner’s family members 16 and friends who had knowledge of the incident and petitioner’s state of mind at the 17 time of the incident, trial counsel failed to do more than superficially question them 18 about the incident to develop relevant mitigating information. 19 Trial counsel failed to object that evidence regarding this incident was untimely 20 under California Penal Code section 190.3 and, therefore, inadmissible at petitioner’s 21 penalty trial. See, e.g., Crotts v. Smith, 73 F.3d 861, 866-67 (9th Cir. 1996) (granting 22 relief for trial counsel’s unreasonable failure to object to inadmissible evidence). Ms. 23 Jackson offered no testimony during the guilt phase, and it is reasonably probable that 24 a timely, proper objection from trial counsel as to the timeliness and adequacy of the 25 notice would have precluded her testimony in the penalty phase as well. No more than 26 five days, and only three business days, elapsed between the prosecution’s notice of 27 aggravation and Ms. Jackson’s testimony. 28 125 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Trial counsel further failed to demand a proffer of Ms. Jackson’s testimony. A 2 proffer would have supported his request for a continuance, which was necessary so 3 that he could adequately prepare to challenge the newly surfaced facts in Ms. 4 Jackson’s account of events. As a result, trial counsel was ill equipped to prepare to 5 cross-examine Ms. Jackson. Even if trial counsel failed to object because he possessed 6 the case file and probation reports from this incident, and he believed he had sufficient 7 notice as to all of those facts, his assumption that Ms. Jackson’s testimony would be 8 limited to the facts in the case file was professionally unreasonable and factually 9 erroneous. For example, on direct examination, Ms. Jackson took pains to add 10 additional, damaging facts to her new version of the events that evening. She testified 11 that during the assault, petitioner, with a knife at her throat, told her “to shut up or he 12 would kill me.” (28 RT 4180.) She also testified that during intercourse, “all the time 13 he was doing it, he kept saying ‘I’m going to kill you.’” (Id. at 4181.) This version of 14 events was not recorded in any documents regarding Ms. Jackson’s case, and was 15 inconsistent with her testimony during the preliminary hearing for petitioner’s trial. 16 (NOL C2 Ex. 102 at 2065-93.) Trial counsel attempted to cross-examine her about her 17 inconsistent statements, but without adequate notice, trial counsel missed his 18 opportunity to investigate Ms. Jackson’s credibility, or argue that Ms. Jackson’s new 19 story was inadmissible because it was unreliable and unduly prejudicial. 20 Trial counsel unreasonably failed to present the mitigating evidence regarding 21 this prior conviction of which he was actually aware. Ms. Jackson’s cross-examination 22 testimony spans eleven pages in the trial record, but trial counsel never elicited certain 23 basic, mitigating facts pertinent to petitioner’s mental condition and state of mind at 24 the time of this encounter. 25 voluntarily turned himself into the police the morning after this incident. (NOL C2 Ex. 26 14 at 135.) This critical evidence of petitioner’s state of mind, including his sense of 27 remorse, is all the more significant when placed against Ms. Jackson’s testimony that 28 petitioner tried to hide from what he had done, purportedly asking that Ms. Jackson not For example, the jury never heard that petitioner 126 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 tell anyone what had happened. (28 RT 4183.) Trial counsel had no strategic reason 2 for failing to present this readily available information. 3 Trial counsel unreasonably failed to conduct a minimally competent 4 investigation into this prior conviction, including interviewing further lay witnesses 5 and consulting with mental health experts. (See Petition at 67-71.) Had trial counsel 6 conducted such an investigation, he would have been able to present a more complete 7 and compelling description of the events that evening. Trial counsel had no strategic 8 reason for failing to do so. 9 Trial counsel failed to provide any mental health experts with the additional 10 facts that such an investigation would have revealed, in order to ensure a thorough 11 evaluation of petitioner. Trial counsel, likewise, failed to have a mental health expert 12 meaningfully discuss the circumstances of this incident during psychiatric or clinical 13 interviews with petitioner. Had he done so, he would have been able to present to the 14 jury, through the mental health experts, a more complete and compelling account of 15 petitioner’s state of mind during this encounter. Rather than present a mental health 16 expert who could only guess at the sequence of events, as Dr. Thomas was forced to do 17 during his cross-examination (30 RT 4520-21), trial counsel could have presented the 18 jury with expert testimony to explain that petitioner’s traumatic life experiences and 19 the circumstances on the night of the crime, including Ms. Jackson’s derogatory 20 comments to petitioner that evening about his dead brother Carl, combined to trigger 21 petitioner’s dissociative break and bring out the “entirely different person” that Ms. 22 Jackson encountered. (28 RT 4194 (“It was like he took on a new person, like he was 23 in a trance, and then afterwards, he seemed to snap back.”); NOL C2 Ex. 178 at 3146.) 24 Trial counsel had no strategic reason for failing to conduct such an investigation 25 and make these objections and requests. To the extent that trial counsel made any 26 decisions, they were with without sufficient information. See Gerlaugh v. Stewart, 129 27 F.3d 1027, 1033 (9th Cir. 1997) (“[a] reasonable tactical choice based on an adequate 28 inquiry is immune from attack under Strickland”). In order for the adequate strategic 127 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 choice to be considered constitutional, however, the decision must be made after 2 counsel has conducted “reasonable investigations or [made] a reasonable decision that 3 makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S. Ct. 4 2052. “Even if [a] decision could be considered one of strategy, that does not render it 5 immune from attack - it must be a reasonable strategy.” Jones v. Wood, 114 F.3d 6 1002, 1010 (9th Cir.1997) (emphasis in original).) When considered objectively, trial 7 counsel’s failure to adequately investigate the prior crime and to establish what 8 evidence the prosecutor intended to introduce about the crime cannot be considered 9 reasonable. 10 Trial counsel’s failure to object to the introduction of evidence of petitioner’s 11 alleged statement to his sister Gloria Hanks as aggravation, and failure to investigate 12 and explain the context of the statement resulted in false information being presented 13 to, and mitigating aspects concerning the incident being withheld from, the jury. The 14 trial court, over objection, admitted testimony of petitioner’s sister regarding a highly 15 prejudicial and irrelevant statement made by petitioner to his sister in a telephone call 16 on or about New Year’s Eve 1994. 17 Petitioner called his sister to wish her a Happy New Year. During the course of 18 the telephone call, Ms. Hanks told petitioner that she did not want to get involved in 19 his trial or to be a witness for either side because of what she perceived he had done. 20 (28 RT 4151, 4155-57.) Ms. Hanks had consumed a bottle and a half of champagne 21 that evening before the telephone call took place. (Id. at 4156.) Ms. Hanks inquired of 22 petitioner whether he cared about Pam Miller’s family. Petitioner said that he did, but 23 “what [did] that matter when his own family members [were] trying to turn against 24 him.” (Id. at 4157.) Ms. Hanks continued to press petitioner on this point, at which 25 stage he allegedly said “he didn’t give a fuck about Pamela or her family.” (Id. at 26 4154, 4159.) At no time during their conversation did petitioner or Ms. Hanks mention 27 the victim, Mrs. Miller, (Id. at 4164 ), nor did petitioner ask his sister to lie for him or 28 do anything morally questionable (Id. at 4157). 128 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 On December 30, 1994, Kim Jackson contacted the prosecution. Ms. Jackson 2 gave the prosecution information that petitioner’s sister allegedly told Ms. Jackson 3 about the telephone call; that petitioner had become angry when she told him that she 4 refused to testify on his behalf; and that he made a disparaging comment about Pam 5 Miller and her family. (28 RT 4083-84.) Around the first week of January 1995, the 6 prosecutor orally informed defense counsel about the alleged telephone conversation 7 between petitioner and Ms. Hanks, and later provided written notice of his intention to 8 use this evidence as potential remorse rebuttal evidence. (Id. at 4084.) However, the 9 prosecutor changed his mind and announced his intention to call Ms. Hanks in his 10 case-in-chief (id. at 4073-74), not knowing “if Mr. Jones is going to get on the stand 11 and express remorse” (id. at 4112). 12 testimony was admissible (1) as proper rebuttal for the “sense of remorse that the 13 defendant put on” in the guilt phase, even though he was unable to point to any 14 specific expressions of remorse (id.); and (2) that the alleged statement “increases the 15 heinousness of the crime” (id. at 4113). The prosecution argued that Ms. Hanks’s 16 Trial counsel objected to the introduction of this evidence on the following 17 grounds: (1) The prosecution violated the notice requirements of California Penal 18 Code section 190.3 by failing to provide sufficient notice of Ms. Hanks’ testimony 19 prior to trial (id. at 4078-79, 4109-10); (2) evidence of lack of remorse is not a 20 statutory aggravating factor and can only come in as rebuttal evidence (id. at 4110); (3) 21 the introduction of this evidence would be unduly prejudicial, unreliable, confusing, 22 and misleading (id. at 4079, 4110-11); (4) the prosecution twisted the alleged 23 statement to mean something it did not, as the victim’s name was never mentioned (id. 24 at 4111); and (5) the defense had not presented any evidence regarding petitioner’s 25 remorse; therefore, the prosecution was statutorily barred from presenting evidence of 26 lack of remorse until such time as the defense offered such evidence in the penalty 27 phase. Over trial counsel’s objections, the trial court admitted the irrelevant and highly 28 prejudicial evidence. (Id. at 4115-16.) 129 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Trial counsel’s unreasonable failure to object on other grounds to the 2 introduction of the telephone call in aggravation, and trial counsel’s failure to 3 reasonably investigate the mitigating circumstances of petitioner’s conversation with 4 his sister was professionally unreasonable. Trial counsel objected to the admission of 5 this evidence on notice grounds. (28 RT 4078-79.) However, he failed to object on 6 the additional grounds that petitioner’s testimony was not evidence of remorse. Trial 7 counsel also failed to request any continuance to prepare further arguments to preclude 8 this testimony. 9 objections and requests. Trial counsel had no strategic reason for failing to make these 10 Upon learning of this telephone call, trial counsel made no effort to contact or 11 interview Ms. Hanks about this incident prior to her testimony as a prosecution 12 witness. The prosecutor later reported to the court that Ms. Hanks reported to him that 13 she could not remember the incident because she drank excessively that night. (Id. at 14 4074.) Due to his failure to investigate, trial counsel had no information about the 15 truth or accuracy of this statement, and offered no argument as to why the subject on 16 which Ms. Hanks was to testify was clearly inadmissible. (See id. 4078-79.) As a 17 result of these failures, Ms. Hanks testified on behalf of the prosecution. (Id. at 4093- 18 108.) 19 At the time petitioner spoke to his sister on the telephone, she was severely 20 intoxicated, having drunk a bottle and a half of champagne just that evening. Despite 21 knowledge of this drinking, trial counsel failed to further investigate and present 22 evidence of Ms. Hanks’s longstanding drinking problems, and the legacy of substance 23 abuse in petitioner’s family, going back through multiple generations, that would have 24 cast serious doubt upon the reliability and credibility of Ms. Hanks’s testimony 25 pertaining to the telephone call. (NOL C2 Ex. 178 at 3103-08, 3142 (discussing legacy 26 of family substance abuse); NOL C2 Ex. 124 at 2547-49; NOL C2 Ex. 2 at 16-17; 27 NOL C2 Ex. 21 at 228; NOL C2 Ex. 16 at 164.) 28 130 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Trial counsel similarly made no effort to interview Ms. Jackson, who reported 2 the telephone call to the prosecution, after the New Year’s Eve call and prior to her 3 testimony as a prosecution witness. 4 unreasonably failed to interview Ms. Jackson to obtain even more evidence with which 5 to demonstrate that petitioner’s severe mental illness caused him to react strongly to 6 what he perceived as his sister’s rejection of him. Such testimony from Ms. Jackson, 7 to support the defense theory that petitioner’s comments were not evidence of a lack of 8 remorse, but in fact evidence of his worsening mental health for which he had never 9 received adequate care, would have been compelling. (See, e.g., NOL C2 Ex. 102 at 10 2034 (Jackson believed the incident with her was “a cry for help because he has a lot 11 of family problems including the death of his brother” and her “only interest was that 12 [petitioner] become involved in therapy in order to resolve his personal problems”).) 13 Not only would her testimony acknowledging he needed psychiatric care further 14 support the defense, but such supporting testimony coming from a prosecution witness 15 would have gone far in deflating the prejudicial effect of petitioner’s improperly 16 admitted comment. (28 RT 4113-14, 4118-19.) Trial counsel 17 Trial counsel failed to investigate and present evidence of the inappropriate and 18 dangerous medication regimen that directly affected petitioner’s state of mind on the 19 evening of the phone call. At the time of the telephone call with Ms. Hanks, petitioner 20 had been prescribed, and was supposed to be taking, the antipsychotic drug Haldol, as 21 well as Sinequan (an antidepressant) and Cogentin (an anticholinergic). (NOL C2 Ex. 22 33 at 622, 647, 649, 651, 663, 669, 671, 674.) The antipsychotic drug Haldol had been 23 mysteriously and abruptly discontinued in November 1994 and was not recontinued 24 until the day petitioner’s testimony in the guilt phase ended, January 24, 1995. (NOL 25 C2 Ex. 33 at 663; NOL C2 Ex. 34 at 690, 693.) The anti-anxiety medication Atarax 26 that petitioner had been taking from as early as June 8, 1993 was discontinued on 27 December 27, 1994 (NOL C2 Ex. 33 at 648, 670; NOL C2 Ex. 34 at 678), and 28 131 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 petitioner did not receive it, or any other anti-anxiety medication, after that date. 2 (NOL C2 Ex. 34 at 678, 680, 682). 3 Trial counsel’s failure to conduct a minimally competent social history 4 investigation prevented him from obtaining information to explain, and place in 5 context, the telephone call. Many witnesses, including Ms. Hanks herself, were ready 6 and willing to provide trial counsel with a wealth of information that could have placed 7 petitioner’s remarks more fully in context. 8 adequate social history investigation is summed up by Ms. Hanks’s statement of her 9 discussions with petitioner’s defense team, “[w]e did not go into anything about 10 [petitioner] or my family background too deeply.” (NOL C2 Ex. 124 at 2546.) Had 11 trial counsel conducted a minimally competent investigation into petitioner’s family 12 history and background, he also would have been able to present compelling evidence 13 relevant to the exchange between sister and brother, including, but not limited to: Trial counsel’s failure to conduct an 14 The extreme difficulties petitioner had communicating with others and 15 expressing his emotions, due to his lifetime of trauma (NOL C2 Ex. 178 at 3117, 3152- 16 53; NOL C2 Ex. 151 at 2736; NOL C2 Ex. 16 at 149; NOL C2 Ex. 152 at 2741); 17 The central communication style of the Jones family, which was verbal and 18 physical confrontation, ready to challenge and to fight over anything, rather than 19 healthy, affectionate, or calm conversation (NOL C2 Ex. 152 at 2741-42; NOL C2 Ex. 20 124 at 2502-03; NOL C2 Ex. 146 at 2714; NOL C2 Ex. 147 at 2719); 21 An accurate picture of petitioner’s poor intellectual and cognitive functioning, 22 impaired impulse control, sub-par executive reasoning and planning skills, and his 23 substantially impaired ability to understand, process, and react to information quickly 24 and appropriately, all of which is the direct result of the profound damage to his frontal 25 lobe (NOL C2 Ex. 175 at 3069; NOL C2 Ex. 154 at 2755-56; NOL C2 Ex. 178 at 26 3154-55); 27 // 28 // 132 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Ms. Hanks’s role in petitioner’s life as one of the few individuals who made a 2 genuine, but ineffectual, effort to play a caretaker role, despite her youth (NOL C2 Ex. 3 124 at 2505; NOL C2 Ex. 16 at 170); and 4 Petitioner’s unshakable ethic of loyalty to family and friends which he always 5 maintained, and which he believed Gloria and his other siblings would accord him 6 (NOL C2 Ex. 151 at 2735-36; NOL C2 Ex. 149 at 2728; NOL C2 Ex. 148 at 2725; 7 NOL C2 Ex. 178 at 3131, 3155). 8 Trial counsel unreasonably made no attempt to provide any mental health expert 9 with the above information to evaluate petitioner’s mental state and the substance of 10 petitioner’s comments during the telephone call. As a result, no expert testified to 11 petitioner’s severe mental illness and worsening decompensation so that the jury could 12 place the heated exchange between petitioner and his sister in its proper, mitigating 13 context. (NOL C2 Ex. 154 at 2750-51.) 14 Trial counsel failed to explain the importance of mitigation to petitioner’s 15 family. At no time before or during petitioner’s trial did trial counsel explain to Gloria 16 Hanks the clear purpose of seeking mitigation testimony from family members. Had 17 trial counsel conducted a reasonably competent penalty phase investigation, 18 thoroughly interviewing petitioner’s family members, and adequately explaining to 19 them the process of a capital trial and the significance of mitigation testimony, there is 20 a reasonable probability that the entire disastrous exchange between petitioner and his 21 sister over the telephone would never have occurred. As Ms. Hanks notes about her 22 misinformed reluctance to testify at that time: 23 I wish someone had explained to me that testifying about all of my family’s 24 problems, and all of [petitioner’s] strange behaviors, could have been 25 useful at his trial. I had no idea. If I had known that, I could have provided 26 all of this information [about the family] and helped my brother. But the 27 whole reason I did not want to testify was because I did not think I could 28 help. 133 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 (NOL C2 Ex. 124 at 2547.) 2 B. Trial Counsel’s Deficient Representation Was Prejudicial. 3 As noted above, there were several meritorious grounds for excluding Kim 4 Jackson’s testimony. Had trial counsel adequately raised and argued to exclude the 5 testimony of Kim Jackson, the trial court would have done so and the jury likely would 6 not have voted for death. 7 In addition, had trial counsel adequately developed and presented the substantial 8 mitigating evidence related to this prior conviction, there is a reasonable probability 9 that of a different sentencing verdict. If trial counsel had taken the time to convey the 10 fundamental concepts of mitigation in a capital trial to Ms. Hanks, she would have 11 understood the role of mitigation, and there is a reasonable probability that the tragic 12 fight during the telephone call, and petitioner’s frustrated outburst, would never have 13 occurred. Similarly, had trial counsel provided the jury with a more truthful and 14 drastically different picture of the New Year’s Eve conversation between petitioner 15 and his sister, the jury would have discounted the prosecutor’s contention that 16 petitioner’s comments displayed a “lack of remorse.” Whether the telephone call was 17 admitted or not, had trial counsel conducted a reasonably competent investigation and 18 presentation of petitioner’s family history and background through lay and expert 19 witnesses, the jury would have had sufficient evidence with which to spare his life. 20 (See Ex. 9 at 95; Ex. 138 at 2691; NOL C2 Ex. 133 at 2644-45.) Trial counsel’s 21 failure to do so was constitutionally deficient, and had a substantial and injurious 22 influence and effect on the jury’s penalty verdict. See Summerlin, 427 F.3d at 643 23 (“we conclude that the failure of trial counsel to investigate, develop, and present 24 mitigating evidence at the penalty phase hearing has undermined our confidence in the 25 sentence of death imposed by the trial judge”); Smith v. Stewart, 189 F.3d 1004, 1011 26 (9th Cir. 1999) (“Because of [counsel’s] failure to provide competent representation, 27 our confidence in the outcome of Smith’s sentencing has been undermined.”). But for 28 134 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 trial counsel’s errors, there is a reasonable probability that, absent this damaging 2 evidence, the result of petitioner’s penalty phase would have been different. 3 // 4 // 5 // 6 // 7 // 8 // 9 // 10 // 11 // 12 // 13 // 14 // 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 135 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 VII. PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING ON 2 CLAIM SIXTEEN: PETITIONER WAS DEPRIVED OF HIS RIGHT TO 3 THE EFFECTIVE ASSISTANCE OF COUNSEL IN PREPARATION FOR 4 AND DURING THE PENALTY PHASE BY TRIAL COUNSEL’S 5 PREJUDICIALLY DEFICIENT PERFORMANCE. 6 The Petition sets forth detailed factual allegations at pages 223 to 339 that 7 petitioner was deprived of the effective assistance of counsel throughout the planning, 8 development, investigation, and presentation of the evidence in the penalty phase in 9 violation of his Sixth Amendment right to counsel. Trial counsel failed to conduct a 10 reasonable mitigation investigation on petitioner’s development, behavior, functioning, 11 and character; follow up on investigative leads; present compelling mitigation obtained 12 during the penalty phase investigation; prepare and elicit favorable testimony from the 13 witnesses that he did interview; investigate, develop, and present compelling expert 14 testimony in the penalty phase regarding petitioner’s mental illnesses and myriad 15 mental impairments; present readily available evidence regarding petitioner’s drug and 16 alcohol use and its effects on his behavior at the time of the crimes; challenge evidence 17 of petitioner’s prior crimes and aggravators; failed to object to the prosecutor’s 18 improper arguments, misstatements of both law and evidence, and arguing facts not in 19 evidence; request, obtain, and admit into evidence documents containing compelling 20 information about petitioner’s and petitioner’s family’s medical, mental, educational, 21 and other social history; or support those mitigation themes presented at trial with 22 readily available evidence. 23 Trial counsel’s errors and omissions were such that a reasonably competent 24 attorney acting as a diligent and conscientious advocate would not have performed in 25 such a fashion. Reasonably competent counsel handling a capital case at the time of 26 petitioner’s trial knew that a thorough investigation of a defendant’s background and 27 family history, including the defendant’s medical, mental health, academic, and social 28 history, was essential to the adequate preparation of the penalty phase. (See, e.g., 136 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Declaration of Quin Denver, Ex. E at 44-45; Ex. D at 23-37.) See 1989 ABA 2 Guidelines, Commentary to Guideline 11.4.1 (“The assistance of one or more experts 3 (e.g., social worker, psychologist, psychiatrist, investigator, etc.) may be determinative 4 as to outcome, as set out in Guideline 11.4.1(a) and 11.4.1(7).”); see also 2003 ABA 5 Guidelines, Commentary to Introduction (“In particular, mental health experts are 6 essential to defending capital cases.”).) 7 Under the American Bar Association Guidelines, ‘preparation for the 8 sentencing phase, in the form of investigation, should begin immediately 9 upon counsel’s entry into the case.’” ABA Guidelines 11.8.3 (1989). The 10 reason for the ABA’s direction is obvious—there must be sufficient time 11 for interviews, research, and adequate testing before strategic planning can 12 even begin. Additionally, if counsel waits until immediately before trial, it 13 is too late to correct any invalid tests or to pursue leads discovered during 14 the testing process, a requirement for counsel to be effective. . . . The rush 15 to prepare will invariably lead to unnoticed and untapped resources. 16 Wilson v. Summers, 536 F.3d 1064, 1085 (10th Cir. 2008). Trial counsel has admitted 17 to having no strategic reason for failing to present such compelling mitigating evidence 18 to the jury. (NOL C2 Ex. 150 at 2733-34.) Had trial counsel presented such evidence 19 to the jury, the jury would not have sentenced petitioner to death. 20 Respondent states that he generally denies or alleges insufficient knowledge to 21 admit or deny the allegations in support of petitioner’s Claim Sixteen. (Answer at 48, 22 Doc. 28, filed Apr. 6, 2010.) Given respondent’s position, petitioner and this court are 23 completely ignorant of which facts are in dispute. Therefore, a hearing is warranted. 24 (See, e.g., Marshall v. Hendricks, 307 F.3d 36 (3rd Cir. 2002) (record inadequate to 25 determine if trial counsel’s performance is objectively unreasonable; evidentiary 26 hearing required to explore the claimed ineffective assistance of counsel.)) In the 27 alternative, if respondent does not dispute the material facts, petitioner is entitled to 28 summary judgment. 137 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 2 3 At an evidentiary hearing on this claim, petitioner will present evidence in support of the following. A. Trial Counsel Rendered Ineffective Assistance by Failing to Present 4 Readily Available Mitigation Evidence. 5 1. 6 Trial Counsel Wholly Failed To Investigate, Develop, And Present Compelling Mitigation Evidence. 7 In preparing for the penalty phase of a capital trial, defense counsel has a duty to 8 “‘conduct a thorough investigation of the defendant’s background’” in order to 9 discover all relevant mitigating evidence. Correll v Ryan, 539 F.3d 938, 942 (9th Cir. 10 2008) (quoting Williams v. Taylor, 529 U.S. 362, 396, 120 S. Ct. 1495, 146 L. Ed. 2d 11 389 (2000)); see also Williams, 529 U.S. at 415, 120 S. Ct. 1495 (O’Connor, J., 12 concurring) (counsel has a duty to make a “diligent investigation into his client’s 13 troubling background and unique personal circumstances”). 14 beyond acquiring “only rudimentary knowledge of [petitioner’s] history from a narrow 15 set of sources.” Wiggins v. Smith, 539 U.S. 510, 524, 123 S. Ct. 2527, 2537, 156 L. 16 Ed. 2d 471 (2003); see also Heishman v. Ayers, 621 F.3d 1030 (9th Cir. 2010). 17 Reasonably competent counsel in California at the time of petitioner’s trial were fully 18 aware of the duty to conduct a reasonable investigation of the circumstances of the 19 case and explore all avenues leading to facts relevant to potential guilt or penalty 20 defenses. (Declaration of James S. Thomson, Ex. at D at 23-24.) Counsel’s failure to 21 present mitigating evidence at the penalty phase of a capital trial constitutes ineffective 22 assistance of counsel. See, e.g., Wiggins v. Smith, 539 U.S. at 524, 123 S. Ct. at 2537. This obligation goes 23 Petitioner intends to present evidence at a hearing that trial counsel’s 24 performance fell below the prevailing standard of care by failing to investigate, 25 develop, and present compelling mitigation evidence during the penalty phase. Trial 26 counsel unreasonably failed to investigate and present evidence of petitioner’s 27 developmental, medical and mental health history, educational history, employment 28 history, and family and social history, including family dynamics and physical and 138 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 sexual abuse, and present that history through lay witnesses and appropriate experts, 2 including a social historian. (See, e.g., Ex. D at 23-37; Ex. E at 44-45.) Similarly, trial 3 counsel failed to investigate and present evidence of petitioner’s family’s 4 developmental, medical, and mental health history, educational history, employment 5 and training history, and family and social history. As a result of counsel’s failures, he 6 was unable to present a comprehensive and coherent case in mitigation. Trial counsel 7 readily admits that he had no strategic reason for failing to present or develop this 8 evidence. (NOL C2 Ex. 150 at 2734.) 9 Trial counsel failed to identify and interview witnesses regarding all potential 10 mitigating themes, including family members, friends, neighbors, teachers, co- 11 workers, and employers. Reasonably competent counsel would have systematically 12 identified and interviewed witnesses and made adjustments to the investigation plan 13 and mitigation themes as information was obtained and witnesses were interviewed. 14 (Ex. D. at 31-32.) 15 responsibility for planning and developing mitigation themes and preparing witnesses 16 to testify to the trial paralegal. (Ex. NOL C2 Ex. 19 at 203, 204-05; see also NOL Ex. 17 12 at 105-06 (the trial paralegal was primarily responsible for collecting and reviewing 18 social history documents, and for identifying and following up interviews of potential 19 penalty phase witnesses).) 20 knowledgeable investigator to assist in the investigation and preparation of the penalty 21 phase, leaving these tasks to the inexperienced trial paralegal16 who made decisions 22 about what background information was important and what topics to cover during 23 witness interviews. (NOL C2 Ex. 19 at 203, 204-05.) As a result, trial counsel failed 24 to supervise the penalty phase investigation, and to ensure that key family members 25 were contacted and interviewed in a timely manner and in a manner conducive to 26 airing sensitive information. See, e.g., Earp v. Ornoski, 431 F.3d. at 1178 (petitioner Instead, trial counsel unreasonably abdicated much of the Trial counsel failed to employ an experienced and 27 16 28 Petitioner’s case was one of the first capital cases on which the trial paralegal worked. (NOL C2 Ex. 19 at 202.) 139 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 met burden of showing a colorable claim and was entitled to an evidentiary hearing 2 where trial counsel unreasonably curtailed investigation into mitigation evidence. 3 Trial counsel relied on completely her defense investigator and did not direct the 4 investigation or instruct the investigator to investigate specific areas). 5 Trial counsel failed to fulfill his obligations by limiting the investigation to an 6 unreasonably narrow set of witnesses and by conducting only cursory interviews of 7 those witnesses. (See generally Petition at 224-25, 252.) During the penalty phase 8 investigation, the defense paralegal interviewed six family members (petitioner’s 9 parents, three sisters and one brother), three extended family members (two of 10 petitioner’s paternal uncles and one aunt by marriage), two ex-girlfriends, one friend 11 from junior high school, and one of petitioner’s supervisors in the prison industries 12 program at Folsom Prison. Of the family members interviewed, only three appear to 13 have been interviewed individually and in person. 14 petitioner’s aunt by marriage, who trial counsel knew was a critical witness for the 15 penalty phase, was not conducted until the end of November 1994, while the jury was 16 being selected. On at least one occasion, petitioner’s family was interviewed in a 17 group setting, thus compromising the ability to build rapport and precluding an honest 18 and frank recounting of family life in the Jones household. The telephonic interview of 19 Because trial counsel did not take an active part in the investigation, he failed to 20 integrate emerging information into the investigation and development of the penalty 21 phase defense, and re-direct questioning of potential witnesses. Trial counsel realized 22 that petitioner’s mental health was the key to his defense to the crimes (NOL C2 Ex. 23 12 at 107), but he failed to develop and present to the jury an accurate and thorough 24 description of petitioner’s mental health symptoms, the life-long duration of 25 petitioner’s mental illnesses, the debilitating nature of his illnesses, and his 26 deteriorating mental functioning over time and which culminated in a complete 27 psychotic break that resulted in the death of Mrs. Miller. 28 Although trial counsel presented petitioner’s testimony during the guilt phase about his (Petition at 308-20). 140 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 mental health symptoms, the trial court had erroneously ruled that petitioner could 2 testify only to certain mental health events occurring in 1992. (22 RT 3358-60.) 3 Despite this limitation, trial counsel made no attempt to present lay witness testimony 4 in the penalty phase to describe the evolution of petitioner’s mental illness from his 5 childhood through to 1992, or to corroborate petitioner’s guilt phase testimony in 6 which he described, as best he could, his own mental health symptoms. See Riley v. 7 Payne, 352 F.3d. at 1319-20 (failure to present corroborating evidence of a critical 8 element of defendant’s sole defense to the crimes, where such evidence could be 9 obtained with diligent investigation, is objectively unreasonable). 10 During the penalty phase investigation, trial counsel was made aware of 11 additional friends and family members who could provide the defense with mitigating 12 evidence, but he failed to develop these leads. One such example is petitioner’s 13 maternal aunt, Angela, who is just three months older than petitioner.17 The defense 14 paralegal made one attempt to telephone her and mailed one letter after the initial 15 attempt to reach Angela by phone was unsuccessful. Angela could have provided 16 information regarding petitioner’s mother’s family, including, but not limited to, her 17 mother’s obsessive behaviors; her mother’s abandonment of two of her children; her 18 brother Carvis’s mentally ill and sexually inappropriate behaviors; her sister Ree’s 19 religious fanaticism; her sister Delbra’s alcoholism; her brother Ronnie’s and sister 20 Jackie’s addiction to drugs, and Jackie’s expulsion from Ree’s house for her improper 21 relationship with her young nephew. (See NOL C2 Ex. 3 (Declaration of Angela 22 Ramey).) 23 presented the testimony of the numerous readily available witnesses who knew 24 petitioner throughout the critical stages of his life. 25 (Declaration of Alice Jones); NOL C2 Ex. 2 (Declaration of Alvin Jones); NOL C2 Ex. 26 4 (Declaration of Bertha Mae Jones; NOL C2 Ex. 5 (Declaration of Bobbie Wilson; Indeed, reasonably competent counsel would have interviewed and (See, e.g., NOL C2 Ex. 1 27 17 28 Trial counsel failed to interview any of petitioner’s mother’s family even though her mother, three sisters, and one brother were alive at the time of petitioner’s trial. 141 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 NOL C2 Ex. 7 (Declaration of Ernest Doc Jones); NOL C2 Ex. 10 Declaration of 2 Eugene Maxwell); NOL C2 Ex. 13 (Declaration of Gloria Russ); NOL C2 Ex. 14 3 (Declaration of Glynnis Harden); NOL C2 Ex. 15 (Declaration of Henrietta Kyle); 4 NOL C2 Ex. 16 (Declaration of Joyce Jean Chaney); NOL C2 Ex. 17 (Declaration of 5 Juanita Reshell Henderson); NOL C2 Ex. 18 (Declaration of Minnie Pearl Williams); 6 NOL C2 Ex. 20 (Declaration of Roosevelt Jones); NOL C2 Ex. 21 (Declaration of 7 Thomas Jones); NOL C2 Ex. 22 (Declaration of Vernice Talley Baldwin); NOL C2 8 Ex. 25 (Declaration of William Henry Wright); NOL C2 Ex. 124 (Declaration of 9 Gloria Hanks); NOL C2 Ex. 126 (Declaration of Marsha Binkley); NOL C2 Ex. 128 10 (Declaration of Samuel Jones); NOL C2 Ex. 129 (Declaration of Sherman Harper); 11 NOL C2 Ex. 132 (Declaration of Cassandra Jones); NOL C2 Ex. 134 (Declaration of 12 Robert Norris); NOL C2 Ex. 135 (Declaration of Vernice M. Baldwin; NOL E2 Ex. 13 189 (Declaration of Robert Jones); NOL E2 Ex. 191 (Declaration of Emma Louise 14 Bryant). 15 Finally, trial counsel unreasonably failed to consult with, retain, or present the 16 testimony of an expert social historian to testify on petitioner’s behalf in order to 17 synthesize, interpret, and provide a mitigating context of his genetic make-up, 18 environmental factors, traumatic events, and other relevant aspects of his life. At the 19 time of petitioner’s trial, reasonably competent counsel understood the importance of 20 presenting expert testimony in mitigation and understood the critical role a social 21 historian could play in explaining the mitigating value of evidence. (Ex. D at 14.) At 22 no time did trial counsel consider consulting with or presenting the expert testimony of 23 a social historian. 24 2. Trial Counsel Failed Adequately To Prepare Lay Witnesses To 25 Testify And Failed to Call Witnesses Who Could Have Provided 26 Compelling Mitigation Testimony. 27 Trial counsel has a duty to prepare witnesses for their testimony, to explain the 28 purpose of their testimony, reveal the types of questions he intends to ask, and to 142 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 instruct them on what kind of information the jury would find helpful. See, e.g., 2 Douglas v. Woodford, 316 F.3d 1079, 1089 (9th Cir. 2003) (trial counsel’s failure to 3 prepare lay witnesses in order to effectively present their testimony to the jury in a 4 detailed and sympathetic manner constitutes deficient performance). 5 Petitioner will prove that trial counsel failed adequately to interview and prepare 6 those witnesses who testified. (Petition at 225-41.) For example, because trial counsel 7 failed to devote time to prepare petitioner’s father to testify, his testimony left the false 8 impression that petitioner’s childhood, while difficult, was not the nightmare that it 9 actually was. Earnest Jones testified that there were some family problems and fights 10 when petitioner was growing up, he had caught his wife in bed with another man, and 11 his wife had once stabbed him in the hand. He also testified that while he had a 12 problem with alcohol during petitioner’s childhood, he had become clean and sober 13 when petitioner was in prison. Petitioner’s father’s reluctance to volunteer information 14 about petitioner’s childhood was hardly surprising given his involvement in the abuse 15 suffered by petitioner and his siblings.18 16 information about petitioner’s learning difficulties; his own impoverished upbringing 17 in the cotton fields of Mississippi and Arkansas; his father’s mental breakdown in the 18 1960s when he attacked family members, pointed a gun at people in the street and sat 19 in the dark talking to people no one else could see; the animosity between his family 20 and his wife’s family; mental illness on petitioner’s maternal side of the family; and 21 how petitioner had changed when he was released from prison in 1991, appearing 22 more isolated, withdrawn, and introverted. (See generally NOL C2 Ex. 8.) Wanda 23 Barrow who testified on behalf of petitioner described giving testimony as “an awful 24 experience.” (NOL C2 Ex. 24 at 245.) Trial counsel did not speak to her until minutes Nevertheless, he could have provided 25 18 26 27 28 Petitioner’s father did nothing to take care of the children when their mother was not around. He could be found drunk in the house with no food while his children complained of going hungry. (NOL C2 Ex. 123 at 2485.) He beat the children with belts, extension cords, and his fists, and also attacked them with knives. (NOL C2 Ex. 16 at 155; NOL C2 Ex. 124 at 2502, 2518; NOL C2 Ex. 88 at 1795.) 143 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 before she was to testify; when she took the stand she did not know what to expect. 2 (Id.) Petitioner’s youngest sister, Tanya, was similarly ill-prepared to testify and was 3 surprised by a lot of the questions she was asked while on the stand. (NOL C2 Ex. 131 4 at 2623.) Petitioner’s aunt by marriage, Geraldine White-Jones did not speak to trial 5 counsel until the night before she testified. (NOL C2 Ex. 123 at 2497.) She was 6 surprised and disappointed by trial counsel’s lack of interest in hearing more about 7 petitioner’s upbringing in a “drunken, violent, crazy, neglectful family.” (Id.) All 8 three of these witnesses could have provided additional compelling mitigation had they 9 been interviewed and prepared properly for their testimony. (See NOL C2 Ex. 123 10 (Declaration of Geraldine White-Jones); NOL C2 Ex. 131 (Declaration of Tanya 11 Jones; NOL C2 Ex. 24 (Declaration of Wanda Keith).) 12 Trial counsel failed prejudicially to explain the objective and purpose of 13 mitigation testimony to critical family members, in order to allay their misimpressions 14 or fears about the trial process, including their mistaken beliefs that testifying could 15 only hurt, not assist petitioner. For example, trial counsel was ineffective for not 16 questioning Gloria Hanks, petitioner’s oldest sister, about petitioner’s background and 17 mental impairments. Trial counsel was aware of Gloria’s role in the family and of her 18 bond with petitioner. 19 petitioner dissociate “several times.” (NOL C2 Ex. 144 at 2708.) Trial counsel was 20 aware, or reasonably should have been aware, of the long and detailed history Gloria 21 could have recounted of petitioner and his family, going back two and three 22 generations, including, information about their parents factious relationship, their 23 chaotic and violent family life, and petitioner’s mental deterioration. Nonetheless, trial 24 counsel unreasonably failed to present any of her mitigation testimony. Miss Hanks 25 told petitioner that she could not testify on his behalf only because she did not 26 understand what her testimony could do to help him, not because she refused him help. 27 (NOL C2 Ex. 124 at 2545-46.) As Ms. Hanks notes about her misinformed reluctance 28 to testify at that time, “I wish someone had explained to me that testifying about all of Trial counsel was aware that Gloria previously witnessed 144 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 my family’s problems, and all of Meso’s strange behaviors, could have been useful at 2 his trial. I had no idea.… [T]he whole reason I did not want to testify was because I 3 did not think I could help.” (NOL C2 Ex. 124 at 2547.) 4 Because trial counsel did not maintain responsibility for the investigation, and 5 delegated strategic decision making to the trial paralegal, trial counsel failed to present 6 compelling mitigation testimony obtained from family members regarding petitioner’s 7 long-standing and deteriorating mental health symptoms. (Petition at 308-20). As trial 8 counsel was well aware, petitioner’s struggle with mental illness began, and the effects 9 of trauma were visible, while he was still a young boy. When petitioner was just a 10 toddler he hallucinated seeing a man with a hat in the closet.19 Petitioner’s sister, 11 Gloria, told the defense paralegal and defense counsel at a family meeting just days 12 before the guilt phase began that petitioner’s uncle Carvis used to terrorize petitioner 13 by locking him in the closet to prove there was no one in there. A number of family 14 members recounted that petitioner was a quiet boy with few friends. Petitioner’s sister 15 Gloria told the defense paralegal that her brother was always “different.” In that same 16 interview, Gloria recalled that her brother had seemed sad and depressed through most 17 of his teenage years. Petitioner’s uncle, Thomas Jones, told the defense paralegal that 18 he noticed that something was wrong with petitioner from the time petitioner was 19 about sixteen or seventeen years of age. Family members were in accord in describing 20 a drastic change in petitioner after the death of his brother Carl in 1983, when 21 petitioner became even more “withdrawn.”20 22 23 24 25 26 27 28 19 Although trial counsel knew that petitioner had visions of a man with a hat in the closet when he was a child, and that these visions caused him great distress, he did not question petitioner’s father or sister about these hallucinations. This evidence only came out on cross-examination of petitioner’s sister by the prosecutor. (29 RT 424830.) 20 Trial counsel did not educe testimony about the remarkable change in petitioner following the death of his brother. In fact, he did not raise it until re-direct examination of petitioner’s sister, Tanya, and then only because it had been raised by the prosecutor on cross examination. (29 RT 4247, 4248.) Although trial counsel 145 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Moreover, trial counsel knew that the prior crime involving Mrs. Harris 2 occurred as a result of petitioner’s chronic mental illness. (30 RT 4423-24.) Trial 3 counsel obtained information and could have presented lay witness testimony 4 describing petitioner’s odd demeanor at the time of the Harris incident. In an interview 5 on June 9, 1994, petitioner’s uncle Thomas told the defense paralegal that he had seen 6 petitioner on the night before the incident involving Mrs. Harris, and that, at that time, 7 he had observed that petitioner appeared disturbed and had a distant look. 8 Petitioner’s uncle Thomas also could have testified to petitioner’s worsening 9 mental health symptoms in the months and days leading up to the capital crime. 10 Thomas Jones described guarding the transmission shop with petitioner at the time of 11 the Los Angeles riots when petitioner drank a fifth of whiskey, which seemed to have 12 no effect on him other than that he became more withdrawn. He also told the defense 13 paralegal that petitioner had appeared “wired up” on the day before the murder. In 14 addition to this critical information regarding petitioner’s demeanor in the period 15 leading up to and the day before the crime, trial counsel failed to present lay witness 16 testimony that petitioner was suicidal immediately after the murder. In an interview on 17 June 9, 1994, petitioner’s sister, Gloria, told the defense paralegal that her brother had 18 called their father’s house sometime after 10:00 pm on the night of the murder, saying 19 it was “all over” and told his brother Al that he was proud of him. Trial counsel’s 20 failure to call Thomas or Gloria to testify about petitioner’s behaviors that were 21 consistent with, and corroborative of, petitioner’s mental illness during this critical 22 period of time was unreasonable.21 See Collier v. Turpin, 177 F.3d 1184, 1204 (11th 23 Cir. 1999) (counsel’s deficient performance in sentencing phase of capital murder trial, 24 25 26 27 28 asked petitioner’s father about the drastic change in him, Earnest Jones was unable to speak to this matter because he had been out of state at the time of Carl’s death and had not seen his family for four years. (29 RT 4377.) 21 Because trial counsel failed to explain the purpose of mitigation evidence, petitioner’s sister, Gloria, felt that her testimony might harm rather than help her brother. (NOL C2 Ex. 124 at 2545.) 146 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 including inadequate presentation of mitigating evidence regarding defendant's 2 background, prejudiced defendant, thus constituting ineffective assistance of counsel; 3 jury was not presented with “the particularized circumstances of his past and of his 4 actions on day of the crime that would have allowed them fairly to balance seriousness 5 of his transgressions with the conditions of his life. Had they been able to do so, [ ] it 6 is at least reasonably probable that jury would have returned a sentence other than 7 death.”) . 8 Another example of trial counsel’s failure to fully develop the evidence he 9 presented at trial is demonstrated in the death of two of petitioner’s brothers. (29 RT 10 4225.) Trial counsel recognized that these deaths were significant and proper 11 mitigation evidence, yet he failed to obtain records relating to either of the deaths or, at 12 a minimum, present lay witness testimony describing the effects these deaths had on 13 the family and on petitioner. 14 Petitioner’s younger brother Mario died in 1965 when he was just three months old. 15 (NOL C2 Ex. 27 at 301). Although no one in the family seems to be sure what caused 16 his death, it is clear that his parents were out late partying the night before and when 17 they woke up the next morning, Mario was dead. (NOL C2 Ex. 124 at 2504; NOL C2 18 Ex. 8 at 82; NOL C2 Ex. 16 at 175; NOL C2 Ex. 155 at 2767.) Petitioner’s mother 19 was depressed after the death and, not long afterwards, appeared to give up on 20 motherhood. (NOL C2 Ex. 124 at 2504-05; NOL C2 Ex. 135 at 2658; NOL C2 Ex. 18 21 at 197; NOL C2 Ex. 123 at 2484.) Trial counsel in his opening statement stated that 22 the death of petitioner’s brother, Carl, had a “big effect” on petitioner growing up. 23 But, as discussed above, the discussion of the effect of Carl’s death on petitioner was 24 confined to cross-examination by the district attorney. (29 RT 4247, 4248.) Had trial 25 counsel investigated this issue, as was his duty, he could have presented testimony that 26 Carl’s death was devastating to petitioner: After Carl’s death, petitioner suffered from 27 nightmares, depression, auditory and visual hallucinations, and had dissociative Both deaths occurred as a result of tragic events. 28 147 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 episodes. (NOL C2 Ex. 178 at 3144; see also NOL C2 Ex. 131 at 2615; NOL C2 Ex. 3 2 at 28; NOL C2 Ex. 135 at 2665; NOL C2 Ex. 16 at 167; NOL C2 Ex. 134 at 2652.) 3 Trial counsel also understood the importance of investigating petitioner’s 4 genetic predisposition to mental illness and to substance abuse. In his penalty phase 5 opening statement, trial counsel told the jury “we have evidence to show that there was 6 an aunt that committed suicide, and the father’s grandfather had mental problems, was 7 put in a mental institution for about six months. So there is a pattern from the 8 grandfather through the father of—alcoholism, through Mr. Jones to his son.” (29 RT 9 4232.) Petitioner’s father, Earnest Jones, testified to the simple fact that petitioner’s 10 maternal aunt committed suicide (29 RT 4387), and that his father “had a few mental 11 problems” (id.). 12 generational history of mental illness in petitioner’s family. There was no description 13 of the behaviors preceding petitioner’s aunt’s suicide or his grandfather’s 14 institutionalization because trial counsel had failed to investigate these events. Nor did 15 trial counsel investigate and present petitioner’s predisposition and early exposure to 16 alcohol and substance abuse despite Geraldine Jones telling the defense paralegal in 17 the November 1994 interview that at “any given point in time, Ernest Sr. had one 18 brother or another living with him, and the Jones children were exposed to marijuana 19 and cocaine smoking in the home.” This was the sum total of the evidence regarding the multi- 20 Trial counsel knew there was a connection between petitioner’s mother’s 21 treatment of him and the dissociative encounters with Mrs. Harris and Mrs. Miller. (29 22 RT 4231.) He also knew that petitioner was exposed to sexual behavior at a young 23 age, having been found in bed with his mother and another man. (29 RT 4231, 4363- 24 64.) Although these facts all point to the possibility of sexual abuse, trial counsel 25 failed to follow up on the likelihood that petitioner had been sexually abused as a 26 child. Evidence that petitioner was sexually abused were not limited to these events; 27 further signs of petitioner being a victim of sexual abuse were demonstrated by 28 petitioner’s premature sexual behavior as described in the June 9, 1994 interview with 148 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 petitioner’s Uncle Thomas. Had trial counsel followed up on investigating petitioner’s 2 early exposure to sexual conduct and sexuality, he would have learned that petitioner 3 was sexually abused by his mother, starting when he was a small child; and when this 4 happened his defense mechanism was to dissociate. (NOL C2 Ex. 128 at 2579, NOL 5 C2 Ex. 178 at 3129.) Moreover, if trial counsel pursued this area of investigation, he 6 could have presented lay witness testimony that petitioner’s mother had herself been 7 sexually abused; that petitioner’s father had been exposed to his own father’s sexual 8 abuse of his daughters and other sexual infidelities; and that all the children in 9 petitioner’s family were affected by sexual abuse and inappropriate sexual behavior. 10 (Petition at 270-73; NOL C2 Ex. 3 at 22, 25; NOL Ex. 4 at 56; NOL C2 Ex. 6 at 67, 11 68, 69; NOL C2 Ex. 7 at 72; NOL C2 Ex. 8 at 80, 82, 84; NOL C2 Ex. 13 at 113, 114; 12 NOL C2 Ex. 18 at 188; NOL C2 Ex. 20 at 215; NOL C2 Ex. 21 at 221; NOL C2 Ex. 13 28 at 332-33; NOL C2 Ex. 109 at 2259; NOL C2 Ex. 123 at 2481; NOL C2 Ex. 124 at 14 2516; NOL C2 Ex. 128 at 2568; NOL C2 Ex. 129 at 2586; NOL C2 Ex. 132 at 2636; 15 NOL C2 Ex. 178 at 3128-29; NOL E2 Ex. 189 at 3395.) 16 Trial counsel knew that petitioner’s home life was chaotic as a result of 17 domestic violence, sexual infidelity, and physical abuse in the home. (29 RT 4228.) 18 As petitioner’s uncle Robert informed the defense paralegal, “it was a regular hell- 19 hole.” In a feeble attempt to illustrate the violence in petitioner’s home, trial counsel 20 presented evidence of two incidents: one in which petitioner’s father beat his mother 21 and dragged her around the neighborhood after finding her in bed with another man 22 (31 RT 4570); and another incident when petitioner’s mother stabbed his father22 (29 23 RT 4379-80). Had trial counsel conducted even a minimal investigation, however, he 24 25 26 27 28 22 Although trial counsel knew that petitioner’s mother was on welfare (29 RT 4227), he never requested social services records. Had he obtained the records, he could have presented evidence that shortly after petitioner’s mother’s arrest for stabbing her husband, a referral was made to social services because the parents were “always fighting.” Petitioner left home and refused to return, telling a case worker that the conditions at home were not safe. (NOL C2 Ex. 88 at 1795.) 149 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 would have discovered that these were not isolated incidents in the Jones household, 2 and that petitioner had been exposed to unremitting, extreme physical violence from 3 birth. (Petition at 278-88). Trial counsel could have presented lay witness testimony 4 showing that the level of violence between petitioner’s father and mother was 5 remarkable, even in the violent and crime-infested neighborhood of South Central Los 6 Angeles where they lived. (NOL C2 Ex. 178 at 3108-10; see also NOL C2 Ex. 132 at 7 2628; NOL C2 Ex. 131 at 2606.) Much of the violence perpetrated in the Jones 8 household was related to sexuality.23 (Petition at 281-83.) However, even mundane 9 events were filled with brutality. For example, during family meals, petitioner’s father 10 kicked his wife under the table until her legs were bloody and she could not stand. 11 (NOL C2 Ex. 126 at 2559.) Trial counsel could have presented lay witness testimony 12 on how exposure to this constant, extreme violence affected petitioner: that from an 13 early age, he began to experience dissociative episodes. (NOL C2 Ex. 178 at 3118.)24 14 Trial counsel knew that petitioner was raised by alcoholic parents (RT 4226-27), 15 but he failed to follow up on the most basic facts emanating from this information, 16 such as, the fact that petitioner’s mother drank while pregnant with him. (NOL C2 Ex. 17 178 at 3091.) Trial counsel could have presented evidence that as a result of both 18 parents’ alcoholism, the Jones children were frequently neglected and went hungry.25 19 Even when they were sober, petitioner’s parents neglected the Jones children, and 20 petitioner suffered the effects of neglect, abuse and poverty from the time he was an 21 infant. (Petition at 298-301.) 22 23 24 25 26 27 28 23 Trial counsel did not investigate petitioner’s father’s sexual infidelities even though petitioner’s mother had told the defense paralegal that her husband had affairs. 24 This behavior was observed by onlookers as petitioner staring vacantly, standing away from everything and everyone, wearing a “faraway” or “glazed” expression. (NOL C2 Ex. 16 at 146, 148, 149; NOL C2 Ex. 1 at 2.) 25 Mr. and Mrs. Jones were incapable of performing simple tasks, such as getting the children ready for school or buying groceries. (NOL C2 Ex. 132 at 2714; NOL C2 Ex. 124 at 2512.) 150 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 3. Trial Counsel Failed To Investigate, Research, Collect, Present, 2 And Admit Into Evidence Pertinent 3 Records Regarding Petitioner’s Background Or History. 4 Obtaining readily available documentary evidence of a defendant’s background 5 is fundamental to preparing for the penalty phase of a capital trial, and failure to do so 6 constitutes ineffective assistance of counsel. See, e.g., Robinson v. Schriro, 595 F.3d 7 1086, 1108-09 (9th Cir. 2010) (citing Ainsworth v. Woodford, 268 F.3d 868, 877 (9th 8 Cir. 2001)). While trial counsel obtained some records on petitioner, he made no 9 attempt to gather records pertaining to other family members and caretakers. He also 10 failed completely to obtain multi-generational social history records. Reasonably 11 competent counsel at the time of petitioner’s trial knew that the collection of such 12 records was essential to provide contemporaneous evidence of the events and 13 influences affecting a client’s life, and were potential sources of witnesses and leads to 14 other documents. (Ex. D at 30.) 15 At a hearing, petitioner will present evidence that trial counsel obtained 16 petitioner’s school records, prior prison records, trial records from his two prior 17 crimes, treatment records from Kedren Community Mental Health Center, general 18 relief records, and an incomplete set of jail records. 19 unreasonably and prejudicially failed to present to the jury the substantial mitigating 20 information contained in the documents he obtained. 21 Petitioner’s school records alone contain rich material documenting his longstanding 22 history of compromised cognitive functioning; poor academic performance; 23 intelligence testing in the intellectual disability range of functioning; placement in 24 Special Education and remedial classes throughout his time at school; his 25 unpredictable school pattern; his extended absences from school; and his parents’ 26 neglect. (NOL C2 Ex. 50 (Education Records Ernest Dewayne Jones, L.A. Unified 27 School District); NOL C2 Ex. 51 (Education Records Ernest Dewayne Jones (Testing), However, trial counsel (Petition at 243-51.). 28 151 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 L.A. Unified School District.) Trial counsel unreasonably failed to introduce 2 petitioner’s school records as exhibits at trial. 3 The prosecutor repeatedly and prejudicially characterized petitioner’s perceived 4 failure to take advantage of psychiatric treatment and systemic support as aggravating 5 evidence. (31 RT 4640-41.) Trial counsel failed to object to this mischaracterization 6 of the evidence, which he readily could have done had he reviewed the records from 7 Kedren. Trial counsel was ineffective for failing to present evidence from the Kedren 8 records as follows: Petitioner was seen at Kedren on three occasions. (NOL C2 Ex. 9 30 at 359.) Petitioner was seen for an initial assessment evaluation on January 9, 1985, 10 when he was diagnosed with atypical anxiety, with a secondary diagnosis of 11 compulsive traits. (Id. at 360.) At the time of the initial evaluation, petitioner was 12 assessed to require only six visits, and was to have been discharged on February 17, 13 1985. (Id. at 375.) Petitioner was seen on January 21, 1985, and again on February 4, 14 1985, when he was described as somewhat anxious and depressed. (Id. at 378, 381.) 15 Trial counsel was ineffective for failing to use these records to illustrate that only two 16 months had elapsed between petitioner’s first treatment session and the offense 17 involving Mrs. Harris. And that far from being put on “a psychological treatment 18 program” which he had “refused to go along with” (31 RT 4640-41), petitioner was 19 offered only six hours of counseling. (NOL C2 Ex. 30 at 375.) 20 Trial counsel also was ineffective for failing to use the records he obtained to 21 support evidence of symptoms of petitioner’s mental illness. The diagnostic study 22 performed on petitioner in 1986 at Tehachapi prison contains evidence that petitioner 23 exhibited signs and symptoms consistent with dissociation (e.g., periods in which he 24 carried on activities without knowing later what he had been doing; he had blank spells 25 during which his activities were interrupted and he did not know what was going on 26 around him; he often felt as if things were not real) and psychosis (e.g., evil spirits 27 possessed him at times; much of the time his head seems to hurt all over; he had 28 strange and peculiar thoughts). (NOL C2 Ex. 87 at 1699.) Trial counsel failed also to 152 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 present evidence from jail medical records, admitted as Defendant’s Exhibit V, that 2 medical personnel at the Los Angeles County Jail had prescribed antidepressant and 3 antipsychotic medication because petitioner was depressed, paranoid, anxious, and 4 hearing voices. (NOL C2 Ex. 33 at 593-677.) 5 Trial counsel was ineffective for failing to obtain a complete copy of petitioner’s 6 jail medical records. Although petitioner’s jail medical records were admitted as an 7 exhibit, those records were incomplete, and presented an inaccurate record to the jury 8 of petitioner’s treatment and medication regimen at the Los Angeles County Jail. Trial 9 counsel had no strategic reason for failing to obtain these records. (NOL C2 Ex. 150 at 10 2733.) 11 Trial counsel unreasonably failed to review the records he received to 12 investigate, develop, and present the testimony of education personnel who could 13 review petitioner’s school records and explain petitioner’s academic failures and 14 learning problems that were the direct product of his compromised mental functioning. 15 (See NOL C2 Ex. 125 (Declaration of Linda Schumitzky); NOL C2 Ex. 130 16 (Declaration of Sylvia Dean).) Trial counsel believed that petitioner’s poor grades 17 were the result of a bad home environment. (29 RT 4228.) Qualified and competent 18 education personnel also could have testified about the connection between a student’s 19 academic achievement against the backdrop of a chaotic and unstable home 20 environment, such as petitioner’s. (See Exs. 125 and 130.) The only evidence the jury 21 heard regarding petitioner’s school performance was presented through the testimony 22 of Dr. Thomas. Dr. Thomas testified that, according to the school records, petitioner 23 performed below age expectation, and petitioner had self-reported what amounted to a 24 conduct disturbance and a disruption in the classroom. (30 RT 4449-50.) 25 The jury was left with misleading, incomplete, and inaccurate information that 26 petitioner’s problems in school were largely behavioral, rather than the result of his 27 cognitive and other mental impairments. An accurate, complete and reliable portrait of 28 petitioner’s performance and struggles in school from education personnel would have 153 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 included information that petitioner was placed in an Educably Mentally Retarded 2 (“EMR”) program for three years commencing in the first grade, when he was six 3 years old. (NOL C2 Ex. 50 at 1103.) From an early age, petitioner exhibited limited 4 academic and social skills. He did not recognize most letters and did not know most 5 beginning consonant sounds; reversed many numerals and letters in writing; had poor 6 listening skills and was slow in responding to directions; and did not work well in 7 group activities. (NOL C2 Ex. 125 at 2552.) He had limited language skills and some 8 difficulty following directions. He showed weaknesses in vocabulary, description and 9 comprehension, visual memory, perceptual discrimination, spatial relationships and 10 psychomotor coordination. (NOL C2 Ex. 125 at 2552-53; NOL C2 Ex. 50 at 1103; 11 NOL C2 Ex. 51 at 1158.) Placement in the EMR program enabled petitioner to attend 12 school in a much smaller classroom, of typically 12 to 15 students. (NOL C2 Ex. 130 13 at 2599-600.) Petitioner adjusted well to the small class size with individualized 14 instruction. (NOL C2 Ex. 125 at 2553.) Upon exiting the EMR program, petitioner 15 returned to general education classes, and his subsequent school records reflect his 16 inability to succeed in the larger general education class. (NOL C2 Ex. 130 at 2600.) 17 Petitioner received Individualized Education Programs in at least the following 18 school years, at three different schools: El Camino Real High School, September 1980 19 to June 1981; Crenshaw High School, September 1981 to June 1982; and, Workman 20 High School September 1981 to June 1982. (NOL C2 Ex. 51 at 1153.) At El Camino, 21 he was assessed to have an IQ of 84 on the Wechsler Adult Intelligence Scale (WAIS). 22 (NOL C2 Ex. 51 at 1149.) His academic achievement was extremely poor, ranging 23 from the second to the sixth grade level. (NOL C2 Ex. 130 at 2601-02.) Petitioner 24 was sent to his school of residence (Crenshaw) for the eleventh grade where he had all 25 his classes in the Educationally Handicapped Program. (NOL C2 Ex. 125 at 2556-57.) 26 In the second semester of eleventh grade, petitioner transferred to Workman High 27 School in the Hacienda La Puente Unified School District (HLPUSD) when he lived 28 154 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 with his Uncle Robert and Aunt Geraldine. (NOL C2 Ex. 52 at 1168.) He had four 2 remedial classes and two non-academic classes. (NOL C2 Ex. 125 at 2557.) 3 Petitioner’s inability to benefit from the special education programs or succeed 4 in school may have been exacerbated by his frequently changing schools. Petitioner 5 attended two elementary schools, four junior high schools, and three high schools. 6 Petitioner also suffered inconsistent school attendance. For example, in the sixth grade 7 he was absent sixty days; he was absent twenty-three days in fourth grade. (NOL C2 8 Ex. 130 at 2602-03.) 9 From his first semester in seventh grade, petitioner’s academic performance 10 deteriorated. By the end of junior high school, his signs of distress were apparent in 11 his grades and an injury to his left hand. From his first semester in tenth grade, 12 petitioner’s inability to keep up with the regular program was obvious. His success in 13 the Special Education program was interrupted by transfers to another home and 14 another school district. It is remarkable that he was continuously enrolled in school 15 through twelfth grade and that he tried to return to an educational setting that met his 16 needs. (NOL C2 Ex. 125 at 2557-58.) 17 18 4. Trial Counsel’s Failure To Present This Mitigation Evidence Was Prejudicial. 19 The jury heard testimony as to only a few of the numerous adverse experiences 20 that petitioner suffered as a child, and heard relatively little about their effect on him. 21 Trial counsel’s failure to present a full account of petitioner’s background, and to 22 convey the true terror and trauma of his childhood, resulted in the jury thinking that 23 petitioner’s life was not all that bad. (NOL C2 Ex. 127 at 2565; see also Ex. 138 at 24 2690; NOL C2 Ex. 9 at 95.) Many witnesses were ready and willing to provide trial 25 counsel with this wealth of information that would have placed petitioner’s conduct 26 more fully in context, and given the jury a full, accurate picture of who he was. 27 Numerous lay witnesses, substantial documentation, and mental health experts, 28 including a social historian, would have more completely attested to petitioner’s 155 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 longstanding mental disorders and impairments. Trial counsel’s failure to build a 2 picture of petitioner’s mental illness, delusional beliefs, and dissociative symptoms 3 allowed the prosecutor to argue that petitioner was a liar who, as he was about to 4 testify, conveniently invented a story about flashing back to a time when he was a 5 child.26 (31 RT 4651). Moreover, trial counsel’s failure to obtain a complete set of jail 6 records meant that the jury did not know that at the time petitioner testified he was not 7 receiving his antipsychotic, anti-anxiety, or anticholinergic medication.27 8 The evidence that trial counsel could have presented on petitioner’s behalf 9 describing the legacy of multi-generational sexual, physical, psychological and 10 emotional abuse, neglect, poverty, addiction, mental illness and impaired cognitive 11 functioning was powerful and moving. As Dr. Matthews, a psychiatrist retained by 12 habeas counsel explains, 13 The tragic combination of Ernest’s traumatic experiences, neglect and 14 isolation, genetic predisposition to the development of a major mental 15 illness, numerous head injuries, and alcohol and drug abuse, thwarted 16 Ernest Jones’s ability to develop and function adequately as an adult and 17 impaired his mental functioning throughout his life. 18 Ex 178 at 3157. 19 Had trial counsel presented to the jury this comprehensive picture of petitioner’s 20 serious mental illness and lifelong mental impairments, the jury would have had the 21 22 23 24 25 26 27 28 26 In contrast, documents and lay witness accounts amply demonstrate that petitioner’s dissociation was his only means of coping with his horrifying childhood. Petitioner’s response to the overwhelming and constant fear and trauma of psychological, physical and sexual abuse was one of mentally shutting down and psychological numbing. (NOL C2 Ex. 178 at 3118, 3129, 3137, 3153, 3154.) Petitioner continues to dissociate through to this day. (Id. at 3129.) 27 The jury also never heard that the New Year’s Eve phone call between petitioner and his sister Gloria, which was admitted in aggravation as evidence of petitioner’s lack of remorse, was the result of petitioner’s untreated mental illness. (NOL C2 Ex. 34 at 678-94.) 156 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 tools to understand the connection between petitioner’s mental health history, and in 2 particular his dissociative defense mechanism and his actions on the night of the crime. 3 The presentation of the multiple risk factors across petitioner’s lifetime, and a 4 comprehensive presentation of petitioner’s mental health history, would have 5 demonstrated to the jury the true hardships and tragedies of petitioner’s life and 6 provided the jury with knowledge of the “development of the person who committed 7 the crime” with a reasonable probability that the result of the proceedings would have 8 been different. Ainsworth v. Woodford, 268 F.3d 868, 878 (9th Cir 2001). 9 Had trial counsel conducted a minimally competent social history investigation 10 he would have been able to present a compelling, unified mitigation case to the jury 11 and to convey to the jurors numerous important mitigation themes related to 12 petitioner’s life and background, such as multi-generational family histories of sexual 13 abuse, physical abuse, psychological battering, mental illness, poverty, lack of 14 education, and chemical dependency; the dangers and violence of petitioner’s 15 immediate neighborhood in South Central Los Angeles, including the presence of 16 gangs, drug trafficking and the constant competing firing of bullets; petitioner’s early 17 and constant exposure to domestic violence, sexual violence, and confrontation; 18 petitioner’s constant dislocation and displacement due to family moves, evictions, or 19 his parents’ inability to care for their children; petitioner’s educational and academic 20 problems; petitioner’s emotional and social isolation; petitioner’s gentleness, kindness, 21 loyalty to friends and family, and respect for women; the marked contrast between 22 petitioner and his other siblings; the hunger, malnutrition and parental neglect of 23 petitioner and his siblings; and the steady development and progressive worsening of 24 petitioner’s mental illnesses. Trial counsel prejudicially failed to locate, interview, and 25 present this compelling testimony from witnesses already known to him, as well as 26 from other numerous family relatives, neighbors, friends, acquaintances and education 27 personnel whom trial counsel failed even to identify. The evidence that petitioner 28 157 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 intends to present at a hearing in support of allegations contained in paragraphs P.2.e. 2 of the Petition includes, but is not limited to, the following: 3 Petitioner was predisposed to developing a mental illness due to the existence of 4 mental illness, including major depression, psychotic disorders, attention deficit 5 hyperactivity disorder, learning disabilities, chemical dependency and posttraumatic 6 stress disorder, on both the maternal and paternal sides of the family. (NOL C2 Ex. 7 178 at 3103.) Petitioner’s grandfather, Ernest “Doc” Jones, suffered from mental 8 dysfunctions that produced erratic, psychotic, violent, controlling and dysfunctional 9 behavior. He exhibited violent outbursts and beat his family with switches, belts, or 10 extension cords, leaving bloody, painful welts on their bodies. In the early 1960s, his 11 behavior had become so irrational that his father, petitioner’s great grandfather, had 12 him committed to a state hospital after he knocked his daughter unconscious, pulled 13 guns on family members, tried to run over animals in the street, experienced auditory 14 hallucinations, and acted like a dog. His erratic and violent behavior continued after 15 his institutionalization. (See id. at 3103-34.)28 16 Petitioner’s maternal family suffered from similar mental problems. Petitioner’s 17 maternal grandmother, Vernice Talley Baldwin (“Miss Vernice”), exhibited signs of 18 mental illness that manifested themselves in her obsessive, unpredictable, and 19 physically and emotionally abusive behaviors. 20 agitated; she had delusional beliefs about dirt; she was obsessed with cleaning, order, 21 and neatness; and she developed rituals around cleaning. (NOL C2 Ex. 178 at 3104.)29 She became easily anxious and 22 28 23 24 25 26 27 28 See also NOL C2 Ex. 1 at 3, 7; NOL C2 Ex. 4at 45; NOL C2 Ex. 6 at 65-66; NOL C2 Ex. 8 at 78; NOL C2 Ex. 17 at 179; NOL C2 Ex. 18 at 186-87; NOL C2 Ex. 20 at 212; NOL C2 Ex. 21 at 218-19; NOL C2 Ex. 42 832-840; NOL C2 Ex. 108 at 2258; NOL C2 Ex. 128 at 2569-72; NOL C2 Ex. 135 at 2655; NOL E2 Ex. 191 at 3410. 29 See also NOL C2 Ex. 2 at 9; NOL C2 Ex. 3 at 24; NOL C2 Ex. 4 at 48, 49; NOL C2 Ex. 6 at 66-67, 68; NOL C2 Ex. 8 at 79-80; NOL C2 Ex. 18 at 189-91; NOL C2 Ex. 48 at 939, 989, 1019, 1024, 1028-29, 1032-33, 1043, 1045-46; NOL C2 Ex. 123 at 2478-79; NOL C2 Ex. 135 at 2653. 158 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Miss Vernice received treatment for depression and anxiety for many years and was 2 prescribed anti-depressant and anti-anxiety medication. (Id. at 3015.) Other maternal 3 family members exhibited symptoms consistent with mood disorders; obsessive 4 compulsive tendencies; delusional thinking; grandiosity; violent and erratic behaviors; 5 and suicidal ideation. (Id.)30 Petitioner’s maternal aunt, Jackie Baldwin, was seriously 6 mentally ill. She suffered from depression, experienced hallucinations, and, after 7 previous suicide attempts and drug addiction, shot herself. After her death, the family 8 found scraps of paper with delusional writings scattered throughout the apartment 9 where she had been living. (Id. at 3105-06.)31 10 Petitioner’s immediate family all exhibit symptoms of serious mental illness, 11 including depression, mood disorders and the effects of severe traumatization. 12 Petitioner’s mother, Joyce Beatrice Jones, had multiple mental health impairments, 13 including delusional thinking, auditory and visual hallucinations, mood disorders, and 14 exhibited violent, obsessive compulsive, and abusive behaviors. (NOL C2 Ex. 178 at 15 3106, 3122-23).32 Like her mother, Joyce was obsessed with cleanliness and went on 16 irrational cleaning rampages, including getting the children out of bed in the middle of 17 the night to clean. Joyce’s mental impairments made her unpredictable and violent: 18 one moment, things were fine; in the next moment, her mind had taken her back to a 19 bad time in her life and overwhelmed any sense of self or self-control she had. She 20 21 22 23 24 25 26 27 28 30 See generally NOL C2 Ex. 8 at 83; NOL C2 Ex. 13 at 112-13, 117, 120-21, 125, 128-29; NOL C2 Ex. 20 at 214; NOL C2 Ex. 21 at 223, 224; NOL C2 Ex. 22 at 233; NOL C2 Ex. 123 at 2479, 2480; NOL C2 Ex. 129 at 2584, 2589, 2590, 2593; NOL C2 Ex. 132 at 2628; NOL C2 Ex. 135 at 2657; NOL E2 Ex. 189 at 3396. 31 See also NOL C2 Ex. 3 at 35-36; NOL C2 Ex. 13 at 130; NOL C2 Ex. 22 at 237; NOL C2 Ex. 21 at 223; NOL C2 Ex. 27 at 305; NOL C2 Ex. 97 at 1944, 1948; NOL C2 Ex. 124 at 2537-38); NOL C2 Ex. 128 at 2568; NOL C2 Ex. 129 at 2586, 2588; NOL C2 Ex. 135 at 2662-63; NOL C2 Ex. 147 at 2721. 32 See also NOL C2 Ex. 3 at 26; NOL C2 Ex. 13 at 119; NOL C2 Ex. 16 at 156, 157; NOL C2 Ex. 18 at 190, 197, 200; NOL C2 Ex. 21 at 220; NOL C2 Ex. 22; NOL C2 Ex. 123 at 2482-84, 2507; NOL C2 Ex. 124 at 2506; NOL C2 Ex. 145 at 2710; NOL C2 Ex. 146 at 2713; NOL C2 Ex. 152; NOL C2 Ex. 155 at 2766. 159 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 also suffered from severe moods swings; she was quick to anger and could be seen 2 crying one minute and cursing someone out in the next. (Id.)33 3 Petitioner’s father, Earnest Lee Jones, exhibited behaviors consistent with 4 hypomania. He engaged in spending sprees, literally spending every dime he had to 5 impress people and leaving himself penniless. (NOL C2 Ex. 25 at 249.) He gambled, 6 drank, partied, and had numerous affairs throughout his marriage to petitioner’s 7 mother. (NOL C2 Ex. 18 at 195; NOL C2 Ex. 25 at 249; NOL C2 Ex. 124 at 2512.) 8 He frequently called family meetings in the middle of the night when he ranted to 9 petitioner and his siblings about what a bad person their mother was. (NOL C2 Ex. 10 124 at 2517.) In addition to these behaviors, he had an explosive temper: once his rage 11 took hold, there was no way of stopping him. (NOL C2 Ex. 189 at 3397; NOL C2 Ex. 12 190 at 3403.) People walked on eggshells around him because they did not know what 13 might set off his anger. (NOL C2 Ex. 190 at 3403, 3404-05, NOL C2 Ex. 124 at 14 2518). 15 All of petitioner’s siblings exhibit signs of the long-term effects of massive and 16 continuous trauma, as well as battling depression and other mental health problems. 17 (NOL C2 Ex. 178 at 3107.)34 Petitioner’s sister, Jean, has battled depression for many 18 years and attempted suicide when she was only a teenager. (Id.)35 Gloria inherited her 19 mother’s obsessive behaviors and cleans compulsively, often in the middle of the 20 night. (NOL C2 Ex.143 at 2703; NOL C2 Ex. 2 at 17.) Petitioner’s sister, Cassandra 21 or “Bam,” is an irrational drunk, like her mother. She even threatened her husband at 22 23 24 25 26 27 33 See also NOL C2 Ex. 3 26-27; NOL C2 Ex. 16 at 157; NOL C2 Ex. 18 at 197; NOL C2 Ex. 22 at 237-38; NOL C2 Ex. 123 at 2480; NOL C2 Ex. 124 at 2504; NOL C2 Ex. 135 at 2658. 34 See also NOL C2 Ex. 2 at 17; NOL C2 Ex. 124 at 2548-49; NOL C2 Ex. 131 at 2621; NOL C2 Ex. 143 at 2704; NOL C2 Ex. 145 at 2712; NOL C2 Ex. 146 at 2716; NOL C2 Ex. 16 at 162. 35 28 NOL C2 Ex. 16 at 169, 171-72; NOL C2 Ex. 123 at 2490-91; NOL C2 Ex. 164 at 2980. 160 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 knifepoint. (NOL C2 Ex. 153 at 2745.) Cassandra was diagnosed with major 2 depression after an attempted suicide. (NOL C2 Ex. 39 at 801-06.) 3 Petitioner’s paternal and maternal families have a history of cognitive deficits, 4 including intellectual deficits, difficulties with reading and writing, lack of education, 5 and difficulties progressing in school. 6 illiterate. (NOL C2 Ex. 123 at 2477.) Petitioner’s father and his older siblings had 7 very little formal education because they missed so much school working in the cotton 8 fields. (NOL C2 Ex. 18 at 187; NOL C2 Ex. 4 at 42-43.) Petitioner’s uncle, Robert 9 Jones, had an IQ score of 66, placing him within the range of an intellectual disability. 10 (NOL C2 Ex. 72 at 1504.) Petitioner’s maternal grandmother, Miss Vernice, was 11 “dim-witted” and although her other siblings left the family farm to find work, Miss 12 Vernice lacked the academic ability or skills to do so. (NOL C2 Ex. 6 at 65.) Miss 13 Vernice’s brother, Artis Talley, had a speech problem. He was difficult to understand 14 because his words sounded jumbled. (NOL C2 Ex. 22 at 232.) Petitioner’s paternal grandparents were 15 Petitioner’s immediate family displayed evidence of impaired cognitive 16 functioning, severe intellectual impairments, intellectual disability, and learning and 17 speech disorders. Petitioner’s mother, Joyce, had an intellectual disability (formerly 18 referred to as mental retardation). Joyce twice scored an IQ of 61 on mental ability 19 tests, which placed her squarely in the intellectual disability range of functioning. 20 (NOL C2 Ex. 69 at 1498.) Those who knew her believed that her mind never matured 21 and observed that she acted as though she had stopped maturing at fifteen years old, 22 about the age she first became a mother. (NOL C2 Ex. 123 at 2483-84; NOL C2 Ex. 23 25 at 249.) Joyce was uneducated, and was unable to learn to read. (NOL C2 Ex. 142 24 at 2698; NOL C2 Ex.143 at 2701; NOL C2 Ex. 152 at 2740; NOL C2 Ex. 156 at 25 2777.) She had difficulty telling time from a regular clock; had difficulty following 26 rules and simple instructions; and got stuck on things, unable to let things go. (NOL 27 C2 Ex. 147 at 2719; NOL C2 Ex. 142 at 2698; NOL C2 Ex. 143 at 2701; NOL C2 Ex. 28 124 at 2528-29; NOL C2 Ex. 22 at 235; NOL C2 Ex. 3 at 26.) Petitioner’s siblings 161 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Gloria, Jean, Carl, and Alvin, along with petitioner, all attended Special Education 2 classes at some point. (NOL C2 Ex. 16 at 144; NOL C2 Ex. 132 at 2642.) Gloria, 3 Jean and Carl were assessed for eligibility in the Educably Mentally Retarded (EMR) 4 program in elementary school. (NOL C2 Ex. 66 at 1476, 1479; NOL C2 Ex. 118 at 5 2443, 2449; NOL C2 Ex. 119 at 2449, 2452, 2453, 2454, 2455, 2457, 2461; NOL C2 6 Ex. 56 at 1419; NOL C2 Ex. 57 at 1423-24, 1427.) Petitioner’s youngest brother, 7 Alvin, was unable to apply simple concepts, and as a young boy had trouble making 8 his way to school on his own. (NOL C2 Ex. 124 at 2536.) He exhibited signs of 9 hyperactivity and did not calm down until the sixth or seventh grade. (NOL C2 Ex. 16 10 at 158.) Alvin also exhibits signs of poor adaptive functioning and an inability to live 11 as an independent adult. (NOL C2 Ex. 146 at 2716; NOL C2 Ex. 2 at 16.) 12 Petitioner’s maternal and paternal family history is replete with instances of 13 sexual abuse, incest, and deviant sexual practices. Petitioner’s maternal grandmother, 14 herself a victim of sexual abuse, believed that sexual abuse was something that 15 “happen[ed] to everyone.” (NOL C2 Ex. 129 at 2592.) Joyce’s sister, Ree, was 16 molested by one of her uncles and coerced by her brother, Carvis, into having sex with 17 him. (NOL C2 Ex. 129 at 2584-85.) Carvis’s sexual deviancy was notorious in the 18 family. He hung up women’s dirty underwear in his bedroom after he slept with them, 19 hung up nude photos of himself in his house (including life-sized photos), and 20 constantly talked about sex, and what he liked to do sexually. (NOL C2 Ex. 135 at 21 265; NOL C2 Ex. 3 at 30; NOL C2 Ex. 132 at 2626; NOL C2 Ex. 128 at 2582; NOL 22 C2 Ex. 147 at 2723-24; NOL C2 Ex. 134 at 118, 121-22; NOL C2 Ex. 25 at 248; NOL 23 C2 Ex. 155 at 2770.) Joyce’s sister, Jackie, repeatedly orally copulated her nephew, 24 Ree’s son Reggie, when he was about seven years old. (NOL C2 Ex. 129 at 2587; 25 NOL C2 Ex. 135 at 2662.) Jackie also spent a good deal of time with petitioner; after 26 being thrown out of Ree’s home for molesting Reggie, Jackie went to live with 27 petitioner and his family. (NOL C2 Ex. 135 at 2663; NOL C2 Ex. 129 at 2587.) 28 162 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Petitioner’s paternal grandfather, Doc Jones, began sexually abusing his eldest 2 daughter, Bertha Mae, from the time she was a very young girl. (NOL C2 Ex. 4 at 50.) 3 Doc repeatedly raped Bertha Mae at least two or three times a week, over a period of 4 several years. He raped her at home, in the fields, or anywhere he could get her, 5 covering her mouth with his hand so that no one would hear her screams of pain. (Id. 6 at 51.) Doc raped his other daughters as well. (NOL C2 Ex. 4 at 52; NOL C2 Ex. 1 at 7 6-7; NOL C2 Ex. 6 at 66; NOL C2 Ex. 18 at 188; NOL C2 Ex. 25 at 247.) Petitioner’s 8 paternal uncle, Thomas, followed his father’s own abusive patterns and practices, 9 sexually molesting, among others, children in the Jones household when he lived there. 10 He pulled the children onto his lap and made them squirm until he had an erection. 11 (NOL C2 Ex. 16 at 173; NOL C2 Ex. 123 at 2494; NOL C2 Ex. 124 at 2507.) He also 12 openly masturbated in front of the children. (NOL C2 Ex. 124 at 2516.) Thomas’s 13 sexual abuse was not confined to the females in the family. When petitioner was very 14 young, he recalls waking up and finding Thomas over his bed, touching him. As he 15 often did when traumatic events happened, petitioner simply kept his eyes closed and 16 acted like nothing was happening. (NOL C2 Ex. 178 at 3113-14.) 17 In petitioner’s immediate family there is a history of sexual abuse, exposure to 18 sexually inappropriate behavior, and sexual promiscuity. Petitioner’s mother, Joyce, 19 was sexually molested when she was a girl. (NOL C2 Ex. 8 at 82.) Joyce’s early 20 exposure to inappropriate sexual behavior also included, among other things, her 21 mother’s notorious promiscuity and sexual indiscretions. (NOL C2 Ex. 4 at 48; NOL 22 C2 Ex. 6 at 67.) Miss Vernice’s affairs were numerous and well-known in the small 23 farming community where she lived. (NOL C2 Ex. 13 at 113; NOL C2 Ex. 6 at 67.) 24 For example, it was well known in the community that she and Doc Jones were having 25 an affair; in fact, it was believed that Miss Vernice’s daughter, Delbra, was Doc’s 26 daughter. (NOL C2 Ex. 6 at 67; NOL C2 Ex. 3 at 25.) Not surprisingly, Joyce quickly 27 became sexually active as a young teenager and was obsessed with attracting men at a 28 very young age. (NOL C2 Ex. 8 at 82; NOL C2 Ex. 6 at 68.) It appears that she was 163 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 about eleven or twelve years old when she first experienced consensual sexual 2 intercourse. (NOL C2 Ex. 6 at 68; NOL C2 Ex. 20 at 215.) At age fifteen, Joyce gave 3 birth to petitioner’s oldest sister, Gloria. (NOL C2 Ex. 26 at 270.) About the same 4 time that Joyce was pregnant with Gloria, Miss Vernice was pregnant by a man named 5 Toby Reynolds, who was known as Jack. (NOL C2 Ex. 26 at 272; NOL C2 Ex. 22 at 6 234.) 7 Earnest Lee was exposed to his father’s sexual infidelities and abuse from an 8 early age, and was traumatized by the violence and domestic instability that grew out 9 of them. Doc had two children by different mothers before he even met and married 10 Virgie Lee. (NOL C2 Ex. 7 at 72.) In fact, when he married Virgie Lee, he was still 11 married to his first wife whom he did not divorce until June 15, 1973. (NOL C2 Ex. 12 28 at 332-33; NOL C2 Ex. 109 at 2259.) Doc did not try to hide his affairs and they 13 were a source of constant strife between Earnest Lee’s parents. (NOL C2 Ex. 4 at 44- 14 45; NOL C2 Ex. 18 at 188.) Doc encouraged his boys to be like him, drinking and 15 chasing girls. (NOL C2 Ex. 6 at 69.) Like Joyce, Earnest Lee became sexually active 16 from a very young age. (NOL C2 Ex. 6 at 215; NOL C2 Ex. 20 at 215.) 17 In the Jones household in Los Angeles, petitioner was witness to his parents’ 18 many sexual indiscretions. From the time he was a toddler, through adulthood, 19 petitioner repeatedly saw his mother in bed with other men. (NOL C2 Ex. 124 at 20 2516; NOL C2 Ex. 8 at 84; NOL C2 Ex. 21 at 221.) His father also had many 21 girlfriends; neither parent did much to hide their infidelities. (NOL C2 Ex. 21 at 221; 22 NOL C2 Ex. 123 at 2481; NOL C2 Ex. 129 at 2586.) Because the family lived in a 23 two-bedroom apartment, the younger children had to sleep in their parents’ bedroom, 24 while the older children shared the other bedroom. (NOL C2 Ex. 189 at 3395.) When 25 the children were older, and petitioner was a teenager, Joyce claimed the living room 26 as her bedroom, and had sex there with her long-term boyfriend Horace Jenkins, or any 27 other man she brought in from off the street. (NOL C2 Ex. 178 at 3128-29; NOL C2 28 Ex. 132 at 2636.) 164 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 The children in the family were traumatized and affected by sexual abuse and 2 exposure to inappropriate sexual behavior. Cassandra was barely a teenager when she 3 began having sex and quickly earned a reputation for being sexually promiscuous. 4 (NOL C2 Ex. 16 at 161; NOL C2 Ex. 124 at 2530; NOL C2 Ex. 155 at 2774.) When 5 she got older, Cassandra was arrested on prostitution charges for soliciting a 6 plainclothes police officer. Jean also turned to prostitution, at times, to support her 7 drug habit. (NOL C2 Ex. 129 at 2593; NOL C2 Ex. 134 at 2648.) Alvin too displayed 8 the effects of being constantly exposed to his parents’ sexual exploits; he often tried to 9 grab his sister on her private parts. (NOL C2 Ex. 134 at 2647.) 10 For petitioner, this multi-generational pattern of violent and inappropriate 11 sexuality culminated in his own sexual abuse at the hands of his mother, starting when 12 he was a small child. (NOL C2 Ex. 128 at 2579, NOL C2 Ex. 178 at 3129.) When it 13 was happening to him, he would do what he always did when so many other bad things 14 happened: dissociate as a defense against the trauma. (NOL C2 Ex. 178 at 3129.) As 15 petitioner grew older, his mother continued to exert her “strange, strong” hold on him; 16 when he went to live with his aunt by marriage, Geraldine, his mother acted as if 17 Geraldine was taking one of her men away from her and made petitioner feel so guilty 18 that he returned to her home. (NOL C2 Ex. 123 at 2495.) 19 Both of petitioner’s parents grew up in physically and psychologically violent 20 households, and grew up having to fight merely to survive in their own physically and 21 mentally abusive childhood homes. Petitioner’s father, Earnest Lee Jones, was the 22 eldest of thirteen children born to Doc and Virgie Lee. (NOL C2 Ex. 26 at 267.) With 23 a family of twelve children and little money from sharecropping, the Jones family 24 lived in dismal poverty with no running water or plumbing and slept four or five to a 25 bed. (NOL C2 Ex. 18 at 184-85; NOL C2 Ex. 20 at 213; NOL C2 Ex. 21 at 217; NOL 26 C2 Ex. 128 at 2568; NOL C2 Ex. 4 at 42.) Petitioner’s paternal grandparents, Doc and 27 Virgie Lee, were not affectionate or gentle with one another or their children. They 28 were both physically strong and ready to fight at a moment’s notice. (NOL C2 Ex. 18 165 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 at 188; NOL C2 Ex. 17 at 179.) Doc brooked no disagreement from any family 2 member. From the time when he came home in the evening, he expected that his every 3 whim be indulged; he expected his wife and daughters to shave him, remove his shoes 4 and socks, and have his meals ready as he demanded. (NOL C2 Ex. 15 at 141-42; 5 NOL C2 Ex. 17 at 179; NOL C2 Ex. 18 at 186; NOL C2 Ex. 21 at 218; NOL C2 Ex. 6 123 at 2478.) Unflinching obedience and respect was required from his sons as well. 7 If he did not get what he wanted, his beatings were fierce, with switches, belts, or 8 extension cords, leaving bloody welts on their bodies. (NOL C2 Ex. 128 at 2569-70; 9 NOL C2 Ex. 21 at 218.) 10 Petitioner’s mother was raised in similarly impoverished and violent 11 circumstances in the same cluster of hamlets on the Arkansas/Missouri state line. 12 Petitioner’s maternal family was principally of mixed African American and Native 13 American descent. Petitioner’s grandmother’s grandfather, John Talley, was white, 14 and several of petitioner’s great aunts and uncles were fair-skinned. (NOL C2 Ex. 22 15 at 229.) Petitioner’s maternal family was “color struck,” taking pride in the lighter- 16 skinned members of the family, and their ability to pass for white, and taking pains to 17 hide or humiliate the darker-skinned members of the family. (NOL C2 Ex. 132 at 18 2625-26; NOL C2 Ex. 6 at 68; NOL C2 Ex. 18 at 189-90.) Joyce was the darkest- 19 skinned child in her family, and was not the recipient of her mother’s affection, 20 encouragement, or pride. (NOL C2 Ex. 4 at 49; NOL C2 Ex. 18 at 190.) 21 When Joyce was about six years old, her mother married Chester Baldwin who 22 proved to be a violently abusive, unfaithful spouse, and father figure. (NOL C2 Ex. 22 23 at 234; NOL C2 Ex. 135 at 2653; NOL C2 Ex. 3 at 20-21.) During her marriage to 24 Chester, Miss Vernice had four children: Carvis, Vernice, Delbra; and Ronnie. (NOL 25 C2 Ex. 26 at 262, 294, 266, and 284; NOL C2 Ex. 135 at 2653.) Miss Vernice gave up 26 Delbra, Ronnie, and Jackie for adoption when they were young children. (NOL C2 27 Ex. 6 at 68; NOL C2 Ex. 135 at 2654-55.) Delbra was so unhappy in her new home 28 that the family who adopted her returned her to Miss Vernice within the year. (NOL 166 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 C2 Ex. 6 at 68.) All of the siblings were deeply scarred by their mother’s 2 abandonment of the two young children. 3 Miss Vernice’s family looked down on petitioner’s paternal family, the Jones 4 family, in part as a result of skin color. (NOL C2 Ex. 7 at 75; NOL C2 Ex. 123 at 5 2479; NOL C2 Ex. 135 at 2655.) When Joyce became pregnant with Gloria, her 6 mother was furious because Earnest Lee is dark-skinned. (NOL C2 Ex. 132 at 2625- 7 26.) The families sat down and fought over what should be done. (NOL C2 Ex. 4 at 8 50.) Miss Vernice’s brother L.J. did not approve of the relationship. (NOL C2 Ex. 9 135 at 2655; NOL C2 Ex. 7 at 75; NOL C2 Ex. 8 at 81.) L.J. planned to send Gloria 10 away when they saw that her skin was dark. Before this plan could succeed, L.J. died 11 suddenly. (NOL C2 Ex. 7 at 75; NOL C2 Ex. 124 at 2499.) 12 Brought up to watch his father demand the complete obedience and 13 subservience of the women around him, Earnest Lee began early to assert himself as 14 eldest son, demanding that his sisters obey his orders when his father was not around, 15 and stepping into his father’s shoes in every way he could. (NOL C2 Ex. 18 at 186; 16 NOL C2 Ex. 4 at 43.) Joyce was raised by a mentally ill, physically abusive, irrational 17 mother who beat her, cursed at her and treated her more like a maid than a daughter. 18 (NOL C2 Ex. 4 at 50; NOL C2 Ex. 18 at 190-91; NOL C2 Ex. 21 at 219.) When 19 petitioner’s parents had their own family, they replicated the dysfunctional and 20 physically and psychologically brutal environments in which they had grown up, and 21 intensified that cycle of violence against each other and against their own children. 22 Petitioner was exposed to physical and psychological violence from birth. 23 petitioner’s family, there was no safety for a small child, and no safe place for 24 petitioner to learn, develop, or grow. His family was not affectionate or loving. (NOL 25 C2 Ex. 124 at 2502.) His parents did not speak to each other in a regular voice, they 26 yelled at each other. (NOL C2 Ex. 2 at 9-10.) Nor did his mother speak to her 27 children in a normal voice; when she addressed them, she was angry and screaming. 28 (NOL C2 Ex. 155 at 2771; NOL C2 Ex. 146 at 2714.) When petitioner was about five In 167 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 years old, he first saw other parents hug and kiss their children, and he wondered why 2 he could not have that kind of love in his own family. (NOL C2 Ex. 178 at 3111.) 3 Rampant and terrifying family violence, constant psychological, physical and sexual 4 abuse, inappropriate and premature sexualization, and extreme alcoholism were the 5 only family dynamics known to petitioner. Even before birth, petitioner was exposed 6 to alcohol, nicotine, and physical assaults in utero. (NOL C2 Ex. 18 at 195-96; NOL 7 C2 Ex. 124 at 2501; NOL C2 Ex. 4 at 55.) 8 Physical and psychological brutality was a core dynamic to petitioner’s parents’ 9 relationship. The domestic violence in the Jones household was frightening and 10 uninhibited. Petitioner’s parents engaged in brutal and long physical fights that 11 terrorized the children and made them fear for their lives. (NOL C2 Ex. 155 at 2768.) 12 The family did not talk things over; if someone was upset, there was a fight. (NOL C2 13 Ex. 132 at 2629.) After the fight, no one talked about that either. Everyone acted as 14 though nothing had happened. (NOL C2 Ex. 132 at 2631.) 15 Much of the violence that engulfed petitioner as he struggled to develop a sense 16 of self was related to sexuality. When he was young, the apartments the Jones family 17 lived in were small, cramped and overcrowded, and everyone heard everything. One 18 fight erupted in the parents’ bedroom after sex, and culminated with his mother 19 screaming her threat to petitioner’s father that she was going to cut off his penis for 20 cheating on her. (NOL C2 Ex. 16 at 154.) Joyce was ceaselessly angry about Earnest 21 Lee’s affairs, at the same time she was having her own. (NOL C2 Ex. 123 at 2482; 22 NOL C2 Ex. 124 at 2503, 2512.) In the late 1960s, she waited at the Jones home while 23 all the children watched television. When petitioner’s father walked through the door, 24 she sprang up and attempted to stab him. (NOL C2 Ex. 124 at 2512.) Later, in the 25 mid-1970s when they were separated, she broke into his apartment, and patiently 26 waited for him to come home. When he opened the front door, she jumped out at him 27 and stabbed him with a large kitchen knife. Petitioner witnessed the stabbing. His 28 mother went to jail and was released only when the older children persuaded their 168 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 father to drop the charges. (NOL C2 Ex. 124 at 2527-28; NOL C2 Ex. 132 at 2630; 2 NOL C2 Ex. 131 at 2608; NOL C2 Ex. 178 at 3136; NOL C2 Ex. 88 at 1795.) 3 Still other times, petitioner’s mother went after Earnest Lee’s girlfriends 4 directly, cursing and beating them, or smashing their cars or homes. (NOL C2 Ex. 132 5 at 2630; NOL C2 Ex. 16 at 155; NOL C2 Ex. 128 at 2577; NOL C2 Ex. 145 at 2711; 6 NOL C2 Ex. 189 at 3397.) In a fight with one of petitioner’s father’s longstanding 7 girlfriends, in the early 1970s, petitioner’s mother fiercely bit off a chunk of the 8 woman’s lip after attacking her. (NOL C2 Ex. 135 at 2660-61; NOL C2 Ex. 132 at 9 2630; NOL C2 Ex. 131 at 2606-07; NOL C2 Ex. 16 at 155.) 10 Petitioner’s father’s violence against his wife was likewise linked to his anger 11 over her sexual transgressions. It is almost universally agreed by all who know 12 petitioner’s parents that the defining moment in the Jones family occurred on that early 13 morning in 1968, when Earnest Lee discovered his wife in bed with his best friend, 14 William “Dubee” Howell. 15 William E. Howell, for four or five years. On a regular basis, Dubee came to the Jones 16 apartment when Earnest Lee left for his night shift at work, and Joyce had Dubee leave 17 in the morning before Earnest Lee arrived home. 18 However, following a late night birthday party at the Jones house, petitioner’s father 19 returned home early from his graveyard shift to find his wife in bed with Dubee. (Id.) 20 Petitioner’s sister Gloria tried to keep Earnest Lee out, but petitioner, then four or five 21 years old, scrambled past his sister and unlocked the door for his father, not 22 understanding what was going on. Earnest Lee beat Gloria with a belt as he came 23 through the door; he then proceeded to the bedroom where he beat Joyce so 24 mercilessly, that the white bedspread was soaked with her blood. (NOL C2 Ex. 124 at 25 2514-15; NOL C2 Ex. 123 at 2484-85.) A neighbor who witnessed part of the fight 26 was awakened by breaking glass and yelling. (NOL C2 Ex. 155 at 2768.) Before 27 petitioner’s mother was taken to hospital by an ambulance, his father threw all of his 28 wife’s clothes out of the house, screaming she should never come back. Petitioner and In the 1960s, Joyce dated Earnest Lee’s good friend (NOL C2 Ex. 145 at 2710.) 169 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 his siblings watched as these horrendous acts of violence unfolded. (NOL C2 Ex. 124 2 at 2515; NOL C2 Ex. 16 at 152; NOL C2 Ex. 155 at 2768.) Petitioner’s father then 3 took petitioner aside and asked him what he had seen, feeding him birthday cake as the 4 young child described sex acts for his father. It was one of the only times petitioner’s 5 father had singled him out for attention and treats. (NOL C2 Ex.124 at 2515-16.) 6 Petitioner’s mother left the hospital without a word to anyone, and did not come 7 back for a while; when she did return, the cheating and the beatings resumed, but any 8 semblance petitioner’s parents had of a relationship disintegrated. (NOL C2 Ex. 124 at 9 2516.) This one event changed not only the marital landscape, but also forever tainted 10 the mother-son relationship. Petitioner’s mother blamed, and never forgave, petitioner 11 for unlocking the door that night for his father. (NOL C2 Ex. 123 at 2484-85.) As he 12 grew up, his mother singled out petitioner for abuse and punishment. (NOL C2 Ex. 13 124 at 2513; NOL C2 Ex. 123 at 2495.) 14 After this incident, petitioner’s parents fought even more, and were no longer a 15 constant couple. Joyce went on to have many other boyfriends. Earnest Lee was 16 usually with his girlfriend Bea, and could be gone as long as six or seven months at a 17 time before attempting to reconcile with Joyce. Once he returned to the family home, 18 Earnest Lee and Joyce almost immediately began fighting, and the fighting intensified 19 until Joyce kicked him out or he left voluntarily. (NOL C2 Ex. 145 at 2710-11.) The 20 apartment was too small for any children to escape the fighting while inside. (NOL C2 21 Ex. 135 at 2660.) When the fighting exploded, the younger children looked to the 22 older children to protect them from harm’s way. (NOL C2 Ex. 128 at 2577; NOL C2 23 Ex. 178 at 3110.) Sometimes there was no time to escape to the relative safety of the 24 corner, “as a little boy, [petitioner] did not know when he might become an intended or 25 accidental casualty of his parents’ unrelenting domestic warfare.” (NOL C2 Ex. 178 at 26 3110.) 27 Petitioner’s parents constantly were angry with one another, and became 28 enraged over the most minor of events. (NOL C2 Ex. 146 at 2713.) Joyce fought 170 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 using any close at hand household object—such as, knives, dishes, pots and pans, and 2 heavy, deadly marble ashtrays—as a weapon. (NOL C2 Ex. 18 at 194-95; NOL C2 3 Ex. 132 at 2629; NOL C2 Ex. 25 at 250; NOL C2 Ex. 16 at 155; NOL C2 Ex. 124 at 4 2502, 2512, 2521; NOL C2 Ex. 123 at 2483; NOL C2 Ex. 128 at 2578.) Even in the 5 violent and frightening neighborhood where they lived, the battles between petitioner’s 6 father and mother stood out. (NOL C2 Ex. 132 at 2628; NOL C2 Ex. 131 at 2606; 7 NOL C2 Ex. 178 at 3108-10.) They fought as if they were fighting to the death. (NOL 8 C2 Ex. 124 at 2502.) Their fights were so loud people could sometimes hear the 9 physical blows, not just the screaming. (NOL C2 Ex. 132 at 2629.) Police responded 10 to domestic violence calls, but after a while, once they recognized the address, they 11 often did not respond. When they did respond, the most they did was make Earnest 12 Lee temporarily leave the apartment. (NOL C2 Ex. 124 at 2521; NOL C2 Ex. 132 at 13 2629; NOL C2 Ex. 147 at 2718.) The family lost more than one apartment because of 14 their parents’ violence. (NOL C2 Ex. 132 at 2628.) This deadly cycle of violence was 15 exacerbated by their alcoholism, and they were almost always drunk. (NOL C2 Ex. 16 131 at 2604; NOL C2 Ex. 132 at 2629; NOL C2 Ex. 124 at 2502.) 17 Petitioner’s parents regularly took out their anger on their children and turned 18 their attention to their children to punish them. (NOL C2 Ex. 123 at 2483.) Joyce’s 19 need to fight often lasted long past the time when the target of her initial anger had 20 gone. Frequently after fights with Earnest Lee, she was so worked up that when he 21 left, she redirected her anger at her children. (NOL C2 Ex. 143 at 2701; NOL C2 Ex. 22 145 at 2711.) 23 Petitioner’s mother in particular singled out petitioner for her most constant 24 physical assaults, which could come at any time, without warning. (NOL C2 Ex. 124 25 at 2513; NOL C2 Ex. 123 at 2495.) She beat the children with belts, shoe heels, mops 26 and other household objects, and threw objects at the children when they were not 27 within arm’s reach. (NOL C2 Ex. 124 at 2513; NOL C2 Ex. 21 at 221; NOL C2 Ex. 28 123 at 2489; NOL C2 Ex. 128 at 2576; NOL C2 Ex. 155 at 2770-71.) Her mentally ill, 171 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 irrational behavior and her alcoholism made her a random, violent, and unpredictable 2 assailant. (NOL C2 Ex. 132 at 2639.) Even when the children grew to be bigger than 3 Joyce, they still knew better than to defend themselves against her attacks. (NOL C2 4 Ex. 155 at 2770-71.) 5 Joyce rained down curses and screamed at her children from the moment they 6 walked in the door until the moment they left the house. (NOL C2 Ex. 16 at 157.) She 7 called her children “bitches,” “bastards,” “whores,” “motherf---ers,” and other 8 derogatory words. (NOL C2 Ex. 25 at 251; NOL C2 Ex.143 at 2702; NOL C2 Ex. 123 9 at 2486; NOL C2 Ex. 18 at 194.) 10 Joyce spent her days “drinking beer, smoking cigarettes, cleaning, and 11 screaming at her children.” (NOL C2 Ex.155 at 2766.) Joyce’s alcoholism amplified 12 her mental illness. (NOL C2 Ex. 152 at 2740.) She angered easily, even asking her to 13 repeat an instruction could trigger one of her vicious, obscenity-laden diatribes or a 14 beating. (NOL C2 Ex. 143 at 2702; NOL C2 Ex. 155 at 2771.) 15 Petitioner’s father was equally uncompromising in his verbal assaults. 16 Petitioner’s father, though not progressing past the fifth grade himself, often screamed 17 at the children that they were dumb and stupid. (NOL C2 Ex. 16 at 144; NOL C2 Ex. 18 124 at 2503-04.) Petitioner was always mentally slow, and his father often ridiculed 19 him for not being as smart as his younger sister, Cassandra; he had a hard time in 20 school, and his father made it worse. (NOL C2 Ex. 132 at 2636-37.) 21 Petitioner’s father was brutal physically as well. He beat the children with belts, 22 extension cords, and his fists. (NOL C2 Ex. 16 at 155; NOL C2 Ex. 124 at 2502.) 23 Petitioner’s father made petitioner strip naked before he beat him bloody with a belt. 24 (NOL C2 Ex. 16 at 155.) Like his father before him, he beat his children whenever he 25 wanted to, for any reason, and for no reason at all; he also went after them with knives. 26 (NOL C2 Ex. 124 at 2518; NOL C2 Ex. 88 at 1795.) He continued to beat his 27 children, after they had become adults, and even after he had undergone extensive 28 172 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 treatment at a rehabilitation center for his alcoholism. (NOL C2 Ex. 2 at 16, 18; NOL 2 C2 Ex. 20 at 216; NOL C2 Ex. 16 at 147.) 3 Earnest Lee ranted that Joyce was a terrible mother, a “bitch” and a “whore,” 4 from the time petitioner was a little boy. In order to provide “leadership,” petitioner’s 5 father convened “family meetings,” often in the middle of the night, the agenda of 6 which was exclusively their mother’s bad character. (NOL C2 Ex. 124 at 2503; NOL 7 C2 Ex. 8 at 87.) The meetings could last for hours, and when the children fell asleep 8 their father would wake them up again. Whenever their father woke them in the 9 middle of the night for one of his “family meetings,” the children inevitably went to 10 school the next day tired and sleepy. When petitioner’s father was displeased with 11 them for falling asleep during the meeting, or for some other reason, he sent them to 12 school without lunch money or a bus pass. (NOL C2 Ex. 124 at 2517-18.) 13 For petitioner, the tentacles of violence reached far beyond his mother and 14 father. Petitioner was also subject to physical abuse at the hands of his siblings, other 15 mentally ill relatives, and neighbors. The chaotic violence in the family spread in 16 every direction: Parent on parent, parent on child, and sibling on sibling. One cousin 17 reports of the Jones family, “[t]hey were more like warriors, all in one household 18 together. They learned to survive and fought to survive by going to battle, often with 19 each other.” (NOL C2 Ex. 155 at 2765; see also NOL C2 Ex. 152 at 2741-42.) The 20 constant violence resulted in a persistent state of agitation, anxiety, and emotional 21 overload for petitioner. 22 Petitioner’s older brother Carl, who petitioner naively looked up to and followed 23 around, often goaded petitioner until petitioner had no other recourse than to attempt to 24 defend himself. (NOL C2 Ex. 132 at 2635; NOL C2 Ex. 124 at 2532.) Carl became 25 another bully like their father Earnest Lee, and a fighter like both his mother and 26 father. (NOL C2 Ex. 142 at 2699; NOL C2 Ex. 143 at 2702.) In the neighborhood, 27 Carl earned a reputation for fighting in the streets, burglarizing neighbor’s homes, and 28 running from the police. (NOL C2 Ex. 126 at 2561; NOL C2 Ex. 142 at 2699. Carl 173 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 was so out of control that he even burglarized his own relatives. (NOL C2 Ex. 156 at 2 2778-79; NOL C2 Ex. 155 at 2773.) 3 At home, Carl took over his father’s role of ordering his family around, and 4 expecting them to follow his rules. (NOL C2 Ex. 152 at 2741-42.) He acted just like 5 Earnest Lee: he wanted everyone to take his orders, but did nothing fatherly or 6 affectionate. (NOL C2 Ex. 152 at 2742.) Carl beat up petitioner, who always lost 7 those fights, and tried to avoid the fight until Carl forced him to defend himself. (NOL 8 C2 Ex. 155 at 2771.) Typically, petitioner emerged from those fights with a bloody 9 mouth or nose. (NOL C2 Ex. 2 at 13). Carl was “very mean” to petitioner, yet 10 petitioner revered his brother and did not treat Carl badly. (NOL C2 Ex. 156 at 2778.) 11 When petitioner’s father left California and his mother took up with Horace Jenkins, 12 Carl repeatedly beat him as well. One time Carl beat Horace so badly that Horace 13 appeared to be having seizures. On that night, petitioner was the one to call the 14 ambulance, and made sure that Horace received medical attention. (NOL C2 Ex. 134 15 at 2650-51; NOL C2 Ex. 126 at 2560; NOL C2 Ex. 124 at 2537.) 16 Several members of petitioner’s extended family used alcohol or drugs to deal 17 with the traumas inflicted upon them, and the often violent circumstances in which 18 they were raised. Across petitioner’s paternal and maternal families, the substance 19 abuse was widespread and multi-generational. On his father’s side, both his paternal 20 grandparents, petitioner’s father, and most of petitioner’s paternal aunts and uncles 21 were alcoholics. (See, e.g., NOL C2 Ex. 123 at 2492-94; NOL C2 Ex. 128 at 2574; 22 NOL C2 Ex. 131 at 2614-15; NOL C2 Ex. 1 at 6; NOL C2 Ex. 2 at 14-15; NOL C2 23 Ex. 115 at 2365-76.) Several of petitioner’s paternal aunts and uncles also succumbed 24 to drugs, or both, often as early as their pre-teenage years. (NOL C2 Ex. 18 at 187; 25 NOL C2 Ex. 128 at 2573, 2579; NOL C2 Ex. 123 at 2492-93; NOL C2 Ex. 3 at 35; 26 NOL C2 Ex. 131 at 2614-15.) 27 On the maternal side of petitioner’s family, a number of family members also 28 abused alcohol and drugs. Petitioner’s maternal grandmother kept jugs of homemade 174 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 wine in her living room. (NOL C2 Ex. 11 at 103.) Alcohol-related diseases were 2 contributing conditions to the death of Miss Vernice’s brothers, William and Charles. 3 (NOL C2 Ex. 27 at 313; NOL C2 Ex. 157 at 2780.) Petitioner’s maternal uncle, 4 Carvis, and maternal aunt Delbra were both alcoholics. (NOL C2 Ex. 3 at 33; NOL C2 5 Ex. 124 at 2547; NOL C2 Ex. 129 at 2593; NOL C2 Ex. 168 at 3027 NOL C2 Ex. 124 6 at 2547; NOL C2 Ex. 27 at 304; NOL C2 Ex. 135 at 2653; NOL C2 Ex. 21 at 222.) 7 Petitioner’s maternal uncle, Ronnie Baldwin, was an intravenous drug user, 8 commencing in high school when he injected cocaine and shared needles. He also 9 smoked marijuana. (NOL C2 Ex. 44 at 885.) Ronnie died at thirty-five of 10 complications related to AIDS. (NOL C2 Ex. 27 at 311.1; NOL C2 Ex. 3 at 34.) 11 Petitioner’s maternal aunt, Jackie, quickly became addicted to drugs when she moved 12 to Los Angeles. (NOL C2 Ex. 21 at 223; NOL C2 Ex. 129 at 2588.) Jackie freebased 13 cocaine and used PCP. (NOL C2 Ex. 3 at 35; NOL C2 Ex. 16 at 173.) Not long after 14 this, she shot herself in the head using her brother Carvis’s gun. (NOL C2 Ex. 21 at 15 224.) 16 Most of petitioner’s family members have relied on self-medicating the 17 symptoms of mental dysfunction and long-term effects of traumatization through the 18 use and abuse of alcohol or drugs. Petitioner’s parents were both severe alcoholics 19 throughout his childhood and well into his adulthood. By the time petitioner was nine 20 or ten years old, his parents were constantly drunk. 21 Petitioner and his siblings watched his father drink constantly. While Joyce loved 22 beer, Earnest Lee drank hard liquor and “[i]t got to the point where he drank gin like it 23 was water.” (NOL C2 Ex. 146 at 2714-15.) He was arrested and jailed several times 24 for drunk driving offenses, and often could not hold a job due to his alcoholism. (NOL 25 C2 Ex. 8 at 87; NOL C2 Ex. 145 at 2710; NOL C2 Ex. 123 at 2487.) Of the jobs he 26 did secure, he lost at least three of them due to his drinking; eventually, he could not 27 hold a job at all. (NOL C2 Ex. 145 at 2710.) Due to alcoholism, he often cannot 28 remember events from his own children’s upbringing. (NOL C2 Ex. 124 at 2501.) (NOL C2 Ex. 21 at 221.) 175 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Petitioner’s mother’s alcoholism was chronic and extreme. She drank from 2 morning to night and at all hours in between, and throughout her pregnancies. (NOL 3 C2 Ex. 146 at 2714; NOL C2 Ex. 18 at 195, 196; NOL C2 Ex. 155 at 2766-67; NOL 4 C2 Ex. 124 at 2523.) When she drank, she became loud, vulgar, angry, violent, and 5 frequently irrational. (NOL C2 Ex. 152 at 2740; NOL C2 Ex. 21 at 221; NOL C2 Ex. 6 18 at 195-96; NOL C2 Ex. 145 at 2710; NOL C2 Ex. 143 at 2702.) As Earnest Lee 7 came around to visit his family less often, Joyce drank more and more. Increasingly, 8 her efforts and her money went almost exclusively to alcohol. “She used food stamps 9 to buy something small at a store so that she could use the change to buy beer.” (NOL 10 C2 Ex. 147 at 2719.) Eventually, she drank anything that contained alcohol, not just 11 beer. (Id. at 2718.) The children began to find her passed out in the street. (NOL C2 12 Ex. 21 at 222.) Petitioner would try to get his mother to come home when he found 13 her drunk out on the street. (NOL C2 Ex. 131 at 2612.) Often, she was so inebriated 14 she urinated all over herself, leaving the children to clean up after her. (NOL C2 Ex. 15 123 at 2488; NOL C2 Ex. 126 at 2560.) Joyce drank until she died. (NOL C2 Ex. 145 16 at 2712.) Exceedingly ill and frail, and only four days before her death, she physically 17 struggled in a car with her eldest daughter, Gloria, as Gloria tried to pry a beer out of 18 her hands. (NOL C2 Ex. 124 at 2545.) 19 Several of petitioner’s siblings have recurrent and often severe problems with 20 drug and alcohol abuse. (NOL C2 Ex. 131 at 2621; NOL C2 Ex. 21 at 228.) 21 Petitioner’s sister, Jean, started using drugs in the 1970s. 22 marijuana laced with PCP; she smoked even more PCP after Carl was murdered. 23 (NOL C2 Ex. 152 at 2741.) In addition to her drug addiction, Jean also has a history of 24 chronic alcoholism. (NOL C2 Ex. 146 at 2716; NOL C2 Ex. 163 at 2961-65; NOL C2 25 Ex. 164 at 2980.) Both Cassandra and Gloria have severe problems with alcohol. 26 Cassandra took after her mother and her father: she drinks excessively, and becomes 27 violent and irrational when drunk. She is easily provoked to fight once she has been 28 drinking, and she has been unable to keep a job due to her alcohol use. (NOL C2 Jean was addicted to 176 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Ex.143 at 2703-04; NOL C2 Ex. 145 at 2712; NOL C2 Ex. 124 at 2549.) Gloria also 2 drinks to excess, and has been arrested for Driving Under the Influence. (NOL C2 Ex. 3 2 at 17.) 4 Carl not only abused drugs, but once his father left California, he also 5 manufactured them in, and sold them from, his family’s two bedroom apartment. He 6 manufactured crack cocaine on the stove and stored PCP in the refrigerator. (NOL C2 7 Ex. 134 at 2650; NOL C2 Ex. 16 at 164; NOL C2 Ex. 131 at 2610; NOL C2 Ex. 132 at 8 2635.) People routinely hung out in his and petitioner’s bedroom to use drugs; in fact, 9 the Jones house was a “major hangout” for young people, because there were no rules 10 and effectively, no adult oversight, despite Joyce’s physical presence. (NOL C2 Ex. 11 16 at 164; NOL C2 Ex. 132 at 2638; NOL C2 Ex. 126 at 2561-62.) The constant traumas petitioner experienced did not end at the Jones’s family 12 13 doorstep. The neighborhood where petitioner grew up was blighted by poverty, 14 violence, street crime, drugs, and gangs. Growing up, petitioner’s neighborhood in and 15 around the Eighth Avenue section of South Central Los Angeles, where his family 16 most often resided, was violent, gang-ridden, and drug-infested. (NOL C2 Ex. 25 at 17 251.) Shootings, stabbings, police helicopters, and police sirens were routinely seen 18 and heard. (NOL C2 Ex. 151 at 2737; NOL C2 Ex. 134 at 2648; NOL C2 Ex. 124 at 19 2526.) As a child, petitioner watched, stunned, as a neighbor shot her husband five 20 times in the chest point blank with a .22 caliber pistol. (NOL C2 Ex. 124 at 2526.) 21 Another boy petitioner knew, who was confined to a wheelchair as a result of paralysis 22 sustained in an earlier shooting, was shot in the street as a revenge killing. (NOL C2 23 Ex. 134 at 2649-59; NOL C2 Ex. 153 at 2744; NOL C2 Ex. 126 at 2562.) In addition 24 to his own parents’ violent confrontations, petitioner witnessed at least a dozen 25 incidents of shootings and stabbings in his neighborhood. (NOL C2 Ex. 178 at 3138- 26 39.) 27 Petitioner’s immediate neighborhood was the territory of a gang called the 28 “Rollin’ 60s,” a part of the Crips gang. The presence of the Rollin’ 60s alone made the 177 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 neighborhood dangerous. (NOL C2 Ex. 142 at 2700.) In petitioner’s neighborhood, 2 streets frequently were roped off with police tape, and little children had to learn early 3 on to duck when shots rang out. Police helicopters with their loud microphones and 4 bright searchlights operated constantly, and often people could be seen hiding under 5 cars or in backyards to avoid being detected by the police. Drugs were omnipresent. 6 Many lots lay vacant in the neighborhood, often populated with little shacks people 7 used as drug houses. (NOL C2 Ex. 151 at 2737.) A few blocks east of petitioner’s 8 neighborhood, between Vernon and Florence Streets, gang members congregated and 9 confronted one another. 10 Drive-by shootings and other killings occurred more frequently there. (NOL C2 Ex. 152 at 2741.) 11 Petitioner suffered from devastating neglect, abuse, and extreme poverty from 12 the time he was an infant. As early as 1966, following the birth of Casssandra, 13 petitioner’s mother showed little sign of any desire to parent. (NOL C2 Ex. 124 at 14 2504-05.) Her drinking only amplified the neglect, and had a terrible effect on her 15 children. She could not mother them because she was drunk, often unable to perform 16 simple tasks like getting them ready for school. (NOL C2 Ex. 132 at 2714.) Through 17 the combined forces of oversight, abuse, alcoholism, neglect, and poverty, petitioner 18 rarely experienced consistent mealtimes and adequate nutrition. By the late 1960s, 19 petitioner’s eldest sister Gloria, not petitioner’s mother, was responsible for much of 20 the cooking and the household chores. (NOL C2 Ex. 135 at 2659; NOL C2 Ex. 124 at 21 2505.) When he was not passed out, Earnest Lee was not much of a father to the 22 children either; he basically ignored them or was not home at all. (NOL C2 Ex. 18 at 23 198; NOL C2 Ex. 135 at 2659; NOL C2 Ex. 21 at 221.) From approximately 1971, 24 petitioner’s father no longer permanently lived with the family. (NOL C2 Ex. 124 at 25 2521.) However, he came by to see them, and when he did, he usually caused trouble. 26 (NOL C2 Ex. 155 at 2770; NOL C2 Ex. 128 at 2576; NOL C2 Ex. 88 at 1796; NOL 27 C2 Ex. 132 at 2630.) 28 178 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 From late 1979 through mid-1983, petitioner’s father completely abandoned the 2 family. He left the state without a word to his children. (NOL C2 Ex. 124 at 2534; 3 NOL C2 Ex. 132 at 2631.) When he returned for his son Carl’s funeral, it was the first 4 time that anyone in the family had seen him for years. (NOL C2 Ex. 132 at 2633.) 5 While he was gone the family’s only income was from Joyce’s welfare checks, which 6 she spent on alcohol. 7 Occasionally, Earnest Lee sent money to Cassandra, but not to anyone else, because 8 she was his special daughter. (NOL C2 Ex. 124 at 2530; NOL C2 Ex. 131 at 2610.) 9 Petitioner and his siblings often were left to fend for their own food, particularly since 10 their mother spent her welfare money on alcohol and deliberately hid what little food 11 she had from the children. (NOL C2 Ex. 147 at 2719.) Neighbors knew of their plight 12 and often let the Jones children eat a meal with them. (NOL C2 Ex. 126 at 2560.) As 13 a teenager, petitioner and his younger siblings often lacked electricity. (NOL C2 Ex. 14 135 at 2661.) When the electricity was turned off due to unpaid utility bills, they ran 15 extension cords from a neighbor’s apartment in order to run appliances and have light. 16 (NOL C2 Ex. 126 at 2560.) In the 1970s, petitioner missed a lot of school as he tried 17 to find odd jobs here and there to help feed his younger siblings. (NOL C2 Ex. 123 at 18 2487.) Petitioner was unable to secure steady employment, but he did what he could to 19 earn money, spending it on food or other necessities for his two youngest siblings, 20 Alvin and Tanya. (NOL C2 Ex. 16 at 163-64; NOL C2 Ex. 131 at 2610.) (NOL C2 Ex. 123 at 2488; NOL C2 Ex. 131 at 2610.) 21 The emotional instability in the Jones household was mirrored by the physical 22 instability of the family. Repeatedly, the Jones family was evicted from apartment 23 buildings because of domestic violence, overcrowding, or because Earnest Lee could 24 not refrain from getting into an argument with the landlord. (NOL C2 Ex. 132 at 2628; 25 NOL C2 Ex. 124 at 2523-24.) The family moved constantly; sometimes petitioner’s 26 father lived with them, and sometimes he did not. (NOL C2 Ex. 124 at 2503; NOL C2 27 Ex. 178 at 3112.) At several points during petitioner’s childhood, his family had no 28 place to live. When this happened, the children were often split up among various 179 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 relatives and friends, for days, weeks, or months at a time. (NOL C2 Ex. 124 at 2523.) 2 Petitioner sometimes stayed with his aunt, Geraldine, at least once for a number of 3 months, but inevitably, his mother would make him return home so she could keep 4 receiving welfare. (NOL C2 Ex. 123 at 2495-96.) 5 After their mother was evicted from her apartment for failing to pay rent, the 6 family was once again dispersed. Initially, the younger children, Tanya and Alvin, 7 lived with Joyce and her boyfriend, Horace, at his home. (NOL C2 Ex. 135 at 2661.) 8 Petitioner moved from place to place, and often had to find his own place to live. 9 (NOL C2 Ex. 135 at 2661; NOL C2 Ex. 14 at 134.) Prior to the death of his brother 10 Carl, petitioner went to live with his Uncle Thomas and his wife, Kim Jones, for 11 several months. 12 assaulting Mrs. Harris, petitioner, his father, and sister slept on the floor of Thomas’s 13 auto shop. (NOL C2 Ex. 16 at 167.) (NOL C2 Ex. 124 at 2539.) Just before petitioner’s arrest for 14 Petitioner’s problems reached even beyond his dysfunctional family dynamics, 15 and his violent and dangerous community environment, into the physiology and 16 biochemistry of his own brain. Even before birth, petitioner was an at-risk child, with 17 an increased likelihood of organic brain damage and other problems as a result of his 18 mother’s drinking and smoking while pregnant with him. (NOL C2 Ex. 124 at 2501; 19 NOL C2 Ex. 4 at 55; NOL C2 Ex. 18 at 195.) After birth, petitioner’s risks of organic 20 brain damage further increased when he suffered numerous head injuries, many before 21 he was even of school age. In addition to those head injuries petitioner received as a 22 casualty of his parents’ fights (NOL C2 Ex. 124 at 2512; NOL C2 Ex. 29 at 345), and 23 the physical abuse suffered at the hands of family members (NOL C2 Ex. 155 at 2769; 24 NOL C2 Ex. 21 at 221; NOL C2 Ex. 1 at 2), petitioner was teased and beaten up as a 25 small child in the neighborhood. Frequently he stood passively, suffering violent 26 blows to the head. (NOL C2 Ex. 16 at 147-48; NOL C2 Ex. 124 at 2511-12.) 27 Petitioner exhibited other classic signs of organic impairment early in his life. 28 He was a clumsy little boy, always running or bumping into things. (NOL C2 Ex. 16 180 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 at 146.) Growing up, some of his friends noticed he had a strange speech pattern and 2 that his language was not fluid. (NOL C2 Ex. 148 at 2727; see also NOL C2 Ex. 149 3 at 2728.) In addition to language, petitioner had difficulties with auditory processing. 4 He did not always appear to understand what was being said to him, the words did not 5 seem to sink in, or it took him time to process what was being said. (NOL C2 Ex. 124 6 at 2518.) He could not always follow basic instructions, or forgot what he had been 7 told. When this happened, his father got extremely angry and beat him. (NOL C2 Ex. 8 16 at 146; NOL C2 Ex. 178 at 3132.) 9 As a boy, petitioner was curious about how things worked, and took things 10 apart, but was unable to reassemble them. (NOL C2 Ex. 124 at 2513; NOL C2 Ex. 155 11 at 2775; NOL C2 Ex. 8 at 85; NOL C2 Ex. 132 at 2637; NOL C2 Ex. 131 at 2609.) 12 Petitioner’s mother’s response to these failures was to beat him. (NOL C2 Ex. 124 at 13 2513.) This curiosity persisted into adulthood, but petitioner never mastered the skills 14 necessary to put things back together. (NOL C2 Ex. 124 at 2539.) 15 Petitioner had several learning problems, especially in simple math, and as a 16 consequence, had trouble making change, so he could not be sent to the store alone. 17 (NOL C2 Ex. 16 at 145.) Petitioner was not able to learn the simple process of baking, 18 despite paying close attention to the steps involved. Petitioner’s father brought him to 19 California Donuts some nights to learn how to do the baking. Although petitioner 20 never got the hang of it, he still went because he was eager to get out of the house at 21 night. (NOL C2 Ex. 8 at 85.) Later on, petitioner wanted to learn how to become a 22 mechanic, but he could not work on cars because he was unable to learn simple, let 23 alone complex, car mechanics. (NOL C2 Ex. 21 at 226; NOL C2 Ex. 10 at 97.) 24 As a result of petitioner’s impairments, school became one more obstacle for 25 him. From the start, he was behind his peers in academic performance and ability, and 26 never caught up. (NOL C2 Ex. 16 at 144-45.) He had trouble sequencing, performing 27 simple tasks, and was already behind his peers in knowing the alphabet and counting. 28 He did not recognize most letters and did not know most beginning consonant sounds. 181 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 He reversed many numerals and letters in writing. He had poor listening skills and 2 was slow in responding to directions. While he was able to work independently, he did 3 not work well in group activities. He did not play and communicate with his peers. 4 (NOL C2 Ex. 125 at 2552; NOL C2 Ex. 51 at 1159.) He also showed weaknesses in 5 vocabulary, description and comprehension, visual memory, perceptual discrimination, 6 spatial relationships and psychomotor coordination. (NOL C2 Ex. 51 at 1158.) 7 Towards the end of the first grade school year, his teacher referred petitioner to 8 the school psychologist for a determination of whether he should be placed in Special 9 Education classes. The school psychologist administered the Stanford-Binet 10 intelligence test, and he scored a full scale IQ score of 68, placing him in the 11 intellectual disabled range of cognitive functioning. He was appropriately placed in 12 Educably Mentally Retarded (EMR) classes, where he could receive individualized 13 instruction and attention. (NOL C2 Ex. 125 at 2552-53; NOL C2 Ex. 50 at 1104.) 14 Petitioner did not learn how to write his own name until the third grade. (NOL 15 C2 Ex. 16 at 145.) After three years in the EMR program, petitioner was found 16 ineligible for Special Education classes based solely upon IQ test scores, despite his 17 significant lag on achievement tests. (NOL C2 Ex. 130 at 2600; NOL C2 Ex. 125 at 18 2553-54.) Petitioner was returned to the fourth grade into the larger, mainstream 19 classes where he faltered again, and achieved no real success in school after that. 20 (NOL C2 Ex. 130 at 2600.) 21 By the fifth grade, he was still having trouble reading whole sentences while his 22 sister Cassandra, his junior by two years, was reading books. (NOL C2 Ex. 132 at 23 2636-37.) He received remedial reading in both the fifth and sixth grades. (NOL C2 24 Ex. 125 at 2554.) He was markedly below average in all academic subjects, which 25 caused him a great deal of frustration. (NOL C2 Ex. 125 at 2554.) By the end of 26 elementary school, petitioner’s signs of distress were apparent in his grades and his 27 behavior. (NOL C2 Ex. 125 at 2557.) 28 182 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 While his other siblings found different ways to stay out of the house and away 2 from their parents, petitioner continued to go home, despite the danger there. (NOL 3 C2 Ex. 16 at 146, 175; NOL C2 Ex. 131 at 2609.) Others noticed that petitioner was 4 not as mature or as smart as his siblings (NOL C2 Ex. 143 at 2703), and was, 5 generally, mentally slower than children his age (NOL C2 Ex. 16 at 147). He played 6 with his much younger cousin as if he was his peer. (NOL C2 Ex. 123 at 2491-92.) 7 Children in the neighborhood took advantage of his gullibility and used him as a foil to 8 their schemes. (NOL C2 Ex. 16 at 148-49.) 9 Petitioner skipped from school to school as his family moved around or farmed 10 him out to other people, and he continued to miss school in junior high school due to 11 the worsening family environment and the need to work to take care of other siblings. 12 (NOL C2 Ex. 14 at 134; NOL C2 Ex. 123 at 2486; NOL C2 Ex. 131 at 2610.) At 13 Horace Mann Junior High School, where he attended the seventh and part of the eighth 14 grade, it was even more difficult to get by; the school was one of the most violent in 15 South Central Los Angeles, with in-school gangs, drive-by shootings at the school, 16 students beating up teachers, and constant physical fights. (NOL C2 Ex. 124 at 2525- 17 26; NOL C2 Ex. 134 at 2649; NOL C2 Ex. 155 at 2772, 2774.) 18 From his first semester in seventh grade, petitioner’s academic performance 19 deteriorated. From his first semester in tenth grade, petitioner’s inability to keep up 20 with the regular program was apparent. His success in the Special Education program 21 was interrupted by transfers to another home and another school district. (NOL C2 Ex. 22 125 at 2557-58.) 23 When petitioner was bussed to the predominantly white El Camino High School 24 in Woodland Hills, he was once more referred for assessment for Special Education 25 because of learning problems. (NOL C2 Ex. 130 at 2601; NOL C2 Ex. 51 at 1151). 26 The School Psychologist administered an IQ test to petitioner, and measured those 27 results against his achievement to determine eligibility for placement into Special 28 Education. In this particular instance, there was a sufficient discrepancy between 183 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 petitioner’s higher IQ test and his achievement test to consider placement into the 2 Special Education program. (NOL C2 Ex. 130 at 2602.) Achievement testing at that 3 time showed weakness in all academic areas. Petitioner was functioning at a D and F 4 grade level in the classroom. Results of the Peabody Individual Achievement Test 5 showed academic skills from the third to sixth grade level. (NOL C2 Ex. 125 at 2556; 6 NOL C2 Ex. 51 at 1154.) 7 Petitioner was then sent to his school of residence (Crenshaw) for the eleventh 8 grade. He had all his classes in the Educationally Handicapped Program. Instructional 9 goals on his Individualized Education Program (IEP) for math were to master 10 functions of addition, subtraction, multiplication and division, for reading to read a 11 paragraph silently and answer comprehensive questions, and for language arts to write 12 sentences with correct structure, spelling, punctuation and grammar. (NOL C2 Ex. 13 125 at 2556-57; NOL C2 Ex. 14 at 133-34.) 14 Petitioner’s problems with reading and writing followed him into adulthood 15 when he was unable to fill out job applications because he could not read or spell very 16 well. (NOL C2 Ex. 14 at 134, 136.) Thus, petitioner was unable to find and hold 17 down jobs, other than the most unskilled, menial and undemanding temporary ones. 18 (NOL C2 Ex. 16 at 163-64.) 19 Petitioner also had difficulties reading social cues. When he was a young pre- 20 schooler, although he already was watchful and observant, he was not always capable 21 of interpreting the events and social cues around him, failing to understand danger and 22 take evasive action to protect himself. (NOL C2 Ex. 16 at 147-48; NOL C2 Ex. 124 at 23 2511.) As he got into his teens and as an adult, he often misinterpreted behavior and 24 interactions with women. (NOL C2 Ex. 132 at 2637-38.) For example, when he lived 25 at his Uncle Thomas’s, he thought that his Aunt Kim was romantically interested in 26 him because she was kind to him. (NOL C2 Ex. 147 at 2723.) 27 None of these signs and symptoms of organic impairment was presented to the 28 jury. In fact, reliable and thorough neuropsychological testing shows that as a result of 184 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 these multiple insults to the brain, petitioner suffers severe organic brain damage, to 2 the frontal and parietal lobes, and also to the corpus callosum. This organic damage 3 severely affects numerous aspects of petitioner’s mental functioning, including 4 memory, concentration, attention, perception of spatial relationships, and overall 5 academic aptitude. 6 neuropsychological testing, “Mr. Jones suffers from such severe brain damage that he 7 is unable to function at the same level as 99 percent of those in his age category.” 8 (NOL C2 Ex. 175 at 3072.) As indicated by his extremely poor performance during 9 In addition to organic brain damage, petitioner suffers from a severe and 10 debilitating mental illness, and exhibits symptoms consistent with exposure to chronic 11 trauma. Petitioner’s nickname, “Meso,” was one of the first, among many, things 12 petitioner was teased about as a child, because his face had red bumps that resembled 13 measles. (NOL C2 Ex. 155 at 2765.) Practically from birth, petitioner often seemed to 14 be “not there,” with no one paying much attention to him at all, he was the “invisible 15 child.” (NOL C2 Ex. 146 at 2715.) 16 Petitioner began exhibiting signs of mental impairment when he was barely a 17 toddler. Petitioner’s oldest sister, Gloria, who helped take care of him, saw that, 18 “[f]rom the beginning, my little brother Meso was different. He was always a weird 19 kid, and acted strangely.” (NOL C2 Ex. 124 at 2508.) Petitioner experienced auditory 20 and visual hallucinations from an early age. 21 conversations with people he saw and heard in his closet, whom others could neither 22 see nor hear. (NOL C2 Ex. 124 at 2508; NOL C2 Ex. 16 at 146.) Petitioner exhibited 23 early signs of paranoid tendencies, expressing irrational fears, sleep disturbances, and 24 heightened anxiety. (NOL C2 Ex. 178 at 3115-16.) From very early childhood, as 25 soon as he started sleeping in his parents’ bed, petitioner was terrified of the dark. 26 (NOL C2 Ex. 16 at 147.) Rather than address petitioner’s emerging mental health 27 problems, his caretakers aggravated their effect on him. Petitioner’s Uncle Carvis used 28 to lock petitioner in the closet, telling him that the people he saw and spoke to in the His family heard him carry on 185 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 closet were monsters. These experiences terrified petitioner and served to only 2 intensify his fear of the dark and the closet. After these episodes, petitioner often 3 could not calm down for hours. (NOL C2 Ex. 124 at 2508-09; NOL C2 Ex. 16 at 147.) 4 When he was alone in the house, petitioner was compelled to turn on all the 5 lights and open all the windows. He believed that by doing this, someone could watch 6 over and protect him, and it made him feel safer. 7 Petitioner also experienced constant and terrifying nightmares all throughout his 8 childhood, including one dream where he was being chased by a dark presence. (NOL 9 C2 Ex. 178 at 3116.) Petitioner woke up screaming and yelling from these nightmares; 10 they became so frequent that his parents ignored his screams. (NOL C2 Ex. 16 at 146; 11 NOL C2 Ex. 178 at 3115-16; NOL C2 Ex. 123 at 2496.) (NOL C2 Ex. 178 at 3116.) 12 From an early age, petitioner began to experience dissociative episodes. 13 Dissociation appears to have been his only means of coping with his horrifying 14 childhood. Throughout his childhood, the multiple sexual, physical and psychological 15 traumas he experienced impeded his ability to develop a coherent self, or find any 16 external place of safety. Petitioner’s response to the overwhelming and constant fear 17 was one of mentally shutting down, psychological numbing, and repression. (NOL C2 18 Ex. 178 at 3118.) Neighbors could see petitioner’s struggle, and his dissociation. 19 Meso was not involved in arguments and fighting. He clearly could not 20 deal with the violence and madness that went on in that home. Whenever 21 fights broke out, it was like some part of Meso just shut down and he had 22 to escape, instead of fight, so that he could survive. 23 (NOL C2 Ex. 152 at 2742.) 24 Even when engaged in some other activity, petitioner could not stop the 25 dissociative process: witnesses sometimes described this as petitioner being “lost in his 26 own thoughts” or having a “glazed expression” (NOL C2 Ex.142 at 2700; NOL C2 Ex. 27 147 at 2722.) Petitioner’s only defense mechanism that allowed him to survive the 28 repeated assaults from his parents, his siblings, and others was to involuntarily become 186 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 “frozen,” “like a statue,” and unresponsive. Too overwhelmed to express what was 2 bothering him, he withdrew more and more, sitting and saying nothing for hours. He 3 did not know how to tell others what was wrong. (NOL C2 Ex. 152 at 2741.) When 4 the devastating violence in the family was raging, petitioner stared vacantly, standing 5 away from everything and everyone, psychologically numbing himself to the pain that 6 was too overwhelming for a small child to bear. (NOL C2 Ex. 16 at 148; NOL C2 Ex. 7 1 at 2.) 8 As a young boy and as a young man, numerous witnesses describe petitioner as 9 quiet, sweet, kind, polite, respectful and shy. (NOL C2 Ex. 142 at 2699; NOL C2 Ex. 10 14 at 132; NOL C2 Ex. 126 at 2563; NOL C2 Ex. 132 at 2635; NOL C2 Ex. 16 at 147; 11 NOL C2 Ex. 149 at 2728.) Unlike any of his siblings, he was a “homebody” who kept 12 to himself. He stayed close to wherever he was living, watching television or helping 13 out in the house. (NOL C2 Ex. 142 at 2699.) People found it “strange” and “odd” that 14 he did not seem to have much social interaction because he was such a good boy. 15 (NOL C2 Ex. 147 at 2723.) He did not initiate conversations but would speak when 16 spoken to. (NOL C2 Ex. 147 at 2722.) His demeanor stood out because he was a very 17 serious little boy, thinking rather than taking much interest in having fun. (NOL C2 18 Ex. 151 at 2735.) It seemed like he enjoyed laughing, but he never let out a laugh 19 easily, and never seemed happy enough to give anything but a little laugh. (NOL C2 20 Ex. 151 at 2737.) 21 Petitioner had no specific caretaker, even as a small child. When petitioner was 22 small, he was fed and clothed by whoever was around that morning, or that day. (NOL 23 C2 Ex. 124 at 2511.) The neglect became evident: petitioner’s childhood records tell 24 the story with evidence of sores, untreated and infected insect bites, lacerations, and a 25 nail that was stuck in his foot for four days before anyone sought treatment. (NOL C2 26 Ex. 29 at 336-58.) Despite petitioner’s school sending home notice regarding his left 27 eye exophoria, no action was ever taken by his parents to have this eye condition 28 treated. (NOL C2 Ex. 51 at 1164; NOL C2 Ex. 50 at 1116.) 187 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Petitioner also exhibited obsessive behaviors like several of his siblings and 2 extended family. When he was a toddler, he had to eat each item of food off his plate 3 separately. (NOL C2 Ex. 124 at 2510.) As he got older, he was very clean and had to 4 keep things in his room organized in a certain way, and spent a lot of time making sure 5 that they were organized exactly the way he wanted. (NOL C2 Ex. 124 at 2527.) 6 Petitioner was uncomfortable in groups, or around strangers, unsure of how to 7 behave. (NOL C2 Ex. 123 at 2497.) He spent most of his time alone, and did not have 8 a lot of friends, but treasured those he had. (NOL C2 Ex. 149 at 2728; NOL C2 Ex. 9 151 at 2735-36.) Having learned as a young child to hide his emotions and not trouble 10 others with his feelings, petitioner was emotionally isolated even from his friends. 11 (NOL C2 Ex. 142 at 2699; NOL C2 Ex. 145 at 2712.) Although it was clear to outside 12 observers—even those who did not know his family—that his home situation was 13 deplorable, petitioner was unable to talk about, let alone seek assistance, for his pain. 14 (NOL C2 Ex. 151 at 2736.) Even when his own brother Carl beat him up, petitioner 15 acted like nothing bad had happened. (NOL C2 Ex. 143 at 2704.) At most, he “acted 16 like he had a lot on his mind.” (NOL C2 Ex. 151 at 2736.) 17 Petitioner’s sense of self, and self-identity, was further challenged by the 18 uncertainty of who his real father was. When he was a teenager, he overheard his 19 parents fighting about whether Earnest Lee was really his father. (NOL C2 Ex. 124 at 20 2527.) Overhearing conversations and his parent’s fights was the only way the issue 21 was ever raised to him. (NOL C2 Ex. 123 at 2496-97; NOL C2 Ex. 128 at 2579; NOL 22 C2 Ex. 146 at 2715.) Petitioner had no help from anyone else in dealing with this 23 sudden and traumatizing revelation. As with everything else that overwhelmed and 24 plagued him, it remained inside him, unresolved. Earnest Lee’s response was to never 25 speak to petitioner about it. (NOL C2 Ex. 8 at 82.) Earnest Lee did not want to accept 26 that petitioner was not his son (NOL C2 Ex. 135 at 2658), and the prospect upset him 27 enough that he avoided the topic with petitioner. (NOL C2 Ex. 147 at 2719.) 28 188 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 As he had done as a young child, petitioner continued to experience dissociative 2 episodes in his teenage years. His expression became fixed and glazed and he would 3 lose contact with the present. Without notice, he could change into a completely 4 different person. This sudden dissociation occurred often in moments of stress, when 5 his siblings were fighting, or someone was trying to fight him. (NOL C2 Ex. 124 at 6 2529-30, 2539; NOL C2 Ex. 131 at 2615.) Drugs or alcohol did not induce these 7 altered states of consciousness. (NOL C2 Ex. 124 at 2530; NOL C2 Ex. 147 at 2722.) 8 Petitioner was exposed to drugs and alcohol at an early age. He first tried 9 marijuana when he was in the third grade when he found his older paternal cousin, 10 Alvin Wright’s, marijuana which he kept in a shoebox. (NOL C2 Ex. 178 at 3142.) 11 However, petitioner did not tolerate drugs well, and he worried about using drugs. 12 With cocaine in particular, he felt disoriented and out of touch with reality, and lost his 13 sense of control. Marijuana and alcohol exacerbated petitioner’s mental problems. 14 Because marijuana heightened his paranoia, he did not like to smoke it around people 15 he did not know. When he was under the influence of drugs or alcohol, he lost control 16 of himself and acted without thinking, later unable to recall what had occurred. 17 Several times when Ernest used alcohol he experienced blackouts. (NOL C2 Ex. 178 18 at 3143.) 19 The death of petitioner’s older brother, Carl, was another blow to petitioner’s 20 already fragile mental condition. (NOL C2 Ex. 132 at 2638.) Petitioner was distraught 21 at the death of his brother Carl in July 1983. He had been around the corner from 22 where the murder occurred, and blamed himself for not being there to help his brother 23 as he bled to death in the street. (NOL C2 Ex. 124 at 2526, 2540; NOL C2 Ex. 131 at 24 2615; NOL C2 Ex. 27 at 300.) Carl’s body lay in the street for several hours waiting 25 for the coroner’s office to retrieve it. 26 including petitioner, gathered in the street, staring at Carl’s lifeless body. (NOL C2 27 Ex. 123 at 2491; NOL C2 Ex. 131 at 2615.) Although petitioner’s mother and sisters 28 were hysterical after the murder, petitioner was still and silent and had that “faraway During this time, a number of onlookers, 189 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 glazed-over look” that he had worn as a child when he was distressed. (NOL C2 Ex. 2 131 at 2615.) Although this tragedy affected everyone in the family, petitioner seemed 3 to suffer the most. (NOL C2 Ex. 3 at 28.) For a long time afterwards, he was agitated, 4 trying to figure out who had done this. (NOL C2 Ex. 135 at 2665; NOL C2 Ex. 16 at 5 167.) 6 After Carl’s death, petitioner began to have flashbacks of the body, lying in the 7 pool of blood on the street, as well as visual hallucinations of his brother. (NOL C2 8 Ex. 178 at 3144.) His behavior also became increasingly bizarre. A neighbor recalls 9 often seeing petitioner 10 yelling crazy things to people in the neighborhood, just like a street person. 11 He talked trash to people for no reason, even to gang members who could 12 have easily killed him. It made no sense. Fortunately, people realized that 13 Meso was off of his rocker, so they left him alone. Still, it was like he had 14 a death wish. Everyone knew that Meso had lost it. 15 (NOL C2 Ex. 134 at 2652.) He began to dress differently, his eyes were blank, and 16 friends could barely recognize him. It was as if a dark cloud had fallen over him. (Id.) 17 Petitioner continued to experience dissociative trance-like states where he was 18 unresponsive to external stimuli. Shortly after Carl’s death, one evening at his sister’s 19 house, he suddenly dissociated while they were arguing. She called out his nickname 20 several times, but he could not hear her. She left the room until his trance was over. 21 (NOL C2 Ex. 124 at 2539-40.) Petitioner dissociated one evening in front of a family 22 friend, Kim Jackson. At the time, Ernest was engaged to Glynnis Harris, and Glynnis 23 was pregnant with his son. (NOL C2 Ex. 14 at 135.) After a barbecue, Ernest and 24 Kim Jackson went back to her apartment and smoked marijuana and talked about Carl. 25 (NOL C2 Ex. 102 at 2009-11, 2032, 2065, 2080; NOL C2 Ex. 178 at 3146.) The topic 26 was too difficult for him, and Ernest became more agitated, but he could not do 27 anything about it. That moment of great vulnerability and stress touched off for Ernest 28 an extreme dissociative reaction. Ms. Jackson could see this change immediately. His 190 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 entire face and demeanor changed, and he forced her to have intercourse. (28 RT 2 4194.) Immediately after he came out of the trance, he saw her crying and slowly 3 began to understand that something bad had happened, and apologized to her 4 profusely. (NOL C2 Ex. 102 at 2033, 2068-69.) Petitioner turned himself into the 5 police. (NOL C2 Ex. 14 at 135.) Immediately following his arrest, petitioner was 6 taken to Beverly Hills Medical Center by LAPD officers, complaining of transient 7 memory loss. (NOL C2 Ex. 180 at 3159.) Ms. Jackson initially accused petitioner of 8 rape, but later agreed to have Ernest plead to a lesser charge, recognizing that he 9 needed psychological treatment. (NOL C2 Ex. 102 at 2034.) Petitioner was sentenced 10 to 104 days jail time and ordered to cooperate with the probation department for 11 mental health treatment. (NOL C2 Ex. 102 at 1990.) Petitioner was released from jail 12 in October 1984, and reported to his probation officer every month subsequently, 13 except for the month of March. (NOL C2 Ex. 102 at 2045.) Petitioner was referred to 14 Kedren Community Health Center by his probation officer, and attended an assessment 15 evaluation there on January 9, 1985. He had two subsequent one hour individual 16 sessions on January 21, 1985, and February 4, 1985, just prior to becoming homeless. 17 (NOL C2 Ex. 30 at 359-61, 375, 378-81.) Petitioner’s family was in denial about his 18 problems, and was too caught up in their own problems to help him, if they even cared. 19 (NOL C2 Ex. 21 at 226; NOL C2 Ex. 124 at 2542-43.) Petitioner did not receive the 20 medical treatment he needed for his severe mental disorders. (NOL C2 Ex. 178 at 21 3146.) 22 Shortly after his son Tristan was born on October 22, 1984, petitioner suffered 23 many setbacks, and his depression and suicidal tendencies, along with his other mental 24 illnesses, worsened. Petitioner’s girlfriend, Glynnis, had noticed petitioner’s sudden 25 mood changes a couple of years into their relationship. (NOL C2 Ex. 14 at 134-35; 26 NOL C2 Ex. 104 at 2183.) After he was released from jail petitioner had no place to 27 live, his sister, Gloria, refused to have him stay with her, and he ended up living in the 28 garage behind Glynnis’s mother house. (NOL C2 Ex. 14 at 136.) Petitioner had 191 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 dissociative episodes and heard voices telling him to do things when no one else was in 2 the room. (NOL C2 Ex. 14 at 137.) He could not find a job and as his relationship 3 faltered, his paranoia deepened, and he believed that Glynnis and her mother were 4 plotting against him. (NOL C2 Ex. 178 at 3145.) Petitioner attempted to minimize the 5 intensifying symptoms of depression and paranoia by self-medicating; accordingly, he 6 began using increasing amounts of marijuana and alcohol. (NOL C2 Ex. 14 at 136- 7 37.) When Glynnis finally severed ties with him, and her mother told him he could no 8 longer stay in the garage, his anxiety and depression increased further. (NOL C2 Ex. 9 14 at 137; NOL C2 Ex. 30 at 378, 381.) Completely homeless, in approximately 10 February 1985, he went to live at his uncle’s auto shop, sleeping on the floor. (NOL 11 C2 Ex. 8 at 88.) Petitioner’s father, his sister Jean, and petitioner were all living in 12 Thomas’s transmission shop at this time. Jean and her father would wake up at night 13 to see petitioner staring blankly, silent, for hours. (NOL C2 Ex. 16 at 167-68.) 14 In March 1985, petitioner walked up to the home of his ex-girlfriend Glynnis 15 Harris’s mother, Doretha Harris. His heightened paranoia made him think that Glynnis 16 and her mother were out to get him. He stood outside the house, and another trance- 17 like interlude began to crystallize. Petitioner felt like he was watching a movie. 18 Voices told him to go forward, and he felt an overwhelming force driving him to go 19 inside the house. After entering the house, and upon being confronted by Mrs. Harris 20 who was holding a large knife, petitioner dissociated and assaulted her. Once he 21 realized what he had done, he retrieved the knife she had originally confronted him 22 with and, holding the knife to his stomach, begged Mrs. Harris to kill him. (NOL C2 23 Ex. 178 at 3147.) 24 Following his conviction for the assault on Mrs. Harris, and prior to his 25 sentencing in that case, petitioner was referred to the California Department of 26 Corrections (CDC) for an evaluation under California Penal Code section 1203.03. 27 Clinical staff at the California Institute for Men recommended that he be committed to 28 the CDC because of his underlying mental and emotional problems, evident from the 192 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 nature of the offenses. (NOL C2 Ex. 83 at 1691; NOL C2 Ex. 84 at 1694-95.) During 2 his evaluation, petitioner was noted to have experienced symptoms consistent with 3 delusional thoughts and dissociation. (NOL C2 Ex. 87 at 1699.) Later, when he talked 4 about his incarceration, he said that prison was a scary place: He got a glassy, faraway 5 look in his eyes as he recounted to one witness that he had seen things that no man 6 should ever have happen to him.36 (NOL C2 Ex. 10 at 97.) Petitioner was not placed 7 in a mental health treatment program nor did he receive mental health treatment during 8 his incarceration. 9 Upon his release from prison in 1991, petitioner’s mental condition had 10 deteriorated, and he often behaved even more bizarrely. He clearly needed mental 11 health treatment, but he did not have the skills to cope with his problems on his own, 12 and his family preferred to simply try to avoid upsetting him. (NOL C2 Ex. 135 at 13 2666; NOL C2 Ex. 131 at 2621.) Sometimes, he seemed the same as he had always 14 been; polite, sweet, gentle, not bitter about prison, and eager to start out again and 15 make his life better. (NOL C2 Ex. 149 at 2728.) Other times, he was depressed, 16 constantly worried about what people thought of him, and convinced that people were 17 out to get him. He reacted irrationally to everyday situations. (Id.) His voice was flat, 18 and his eyes had a glazed, faraway look. (Id.) Petitioner was unable to hold down a 19 steady job, and he had trouble interacting with people. His uncle Thomas gave him 20 work at his transmission shop. (Id.) Because petitioner lacked the mental capacity to 21 repair cars, he was given janitorial jobs, asked to run simple errands, and also given the 22 task of driving home those customers whose cars were left at the shop. (NOL C2 Ex. 23 21 at 226-27.) He was not given enough work to be around the shop full-time because 24 too many of the shop employees thought he was too strange. (NOL C2 Ex. 10 at 98.) 25 Petitioner clearly needed support and guidance, but his uncles who worked at 26 the shop, as well as other employees, tried to avoid him by giving him a few dollars to 27 36 28 See, e.g., Declaration of Jimmy Camel, Ex. C at 15; Declaration of Larry Williams, Ex. B at 10. 193 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 make him go away. (Id.) During the Los Angeles riots, in the summer of 1992, his 2 uncle asked him to help watch over the shop and gave him a gun. (NOL C2 Ex. 21 at 3 227; NOL C2 Ex. 10 at 99.) Petitioner dressed up in military attire and marched 4 around the store like a soldier. He could not sit still, and when he let other employees 5 in, he opened the gate just a crack, peering around suspiciously to make sure they had 6 not been followed. He saluted as they entered, as if he was at war. The employees in 7 the shop mocked him, but petitioner did not grasp their teasing, and continued to 8 behave as if he were on a military mission. (NOL C2 Ex. 10 at 99.) Each night of the 9 riots, petitioner sat in the shop all night to make sure that the place was not looted or 10 burned down. Petitioner sat in the dark, for four to five hours at a time, staring out the 11 window. (NOL C2 Ex. 21 at 227.) Petitioner’s self-medication with alcohol increased 12 significantly during this period. At one point during the riots, petitioner drank an 13 entire fifth of whiskey, which seemed to have no effect on him, except that he 14 appeared more withdrawn. (NOL C2 Ex. 21 at 227.) 15 Up to the day before his arrest, petitioner’s debilitating depression worsened, 16 and he was noticeably suicidal. He told one acquaintance that he had no reason to live, 17 did not care if he lived or died, and that his uncles did not care about him. (NOL C2 18 Ex. 10 at 99.) His paranoia increased, and he began taping telephone conversations. 19 His sister Gloria recalls that he played a tape for her. When the tape finished, he 20 instructed her that she was not to talk about him on the telephone, and then he sat 21 mutely on her couch “staring right through [her] with blank scary eyes.” (NOL C2 Ex. 22 124 at 2544.) Petitioner’s dissociative trances also plagued him. Two days before he 23 was arrested, he acted bizarrely, again with his sister Gloria, coming to her door and 24 asking for her car keys with no conversation or explanation. 25 expression and his voice was low, deep, and strange. (NOL C2 Ex. 124 at 2544.) The 26 day before he was arrested, his conversations were nonsensical. When asked if he was 27 okay, Ernest started talking about trees. He had a glazed 28 194 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 He was mumbling to himself about how people were out to get him and 2 that he did not want to go on. He did not care if he lived or died. From the 3 look in his eyes and his babbling speech, it seemed like he was talking to 4 someone other than me, but I was the only one there. I was afraid that he 5 was going to kill himself. 6 (NOL C2 Ex. 10 at 99-100.) 7 On the day of the offense, petitioner drank two forty-ounce beers and whisky, 8 smoked marijuana, as well as crack cocaine. (22 RT 3299-301, 3318; 24 RT 3594-96.) 9 The events that transpired that evening were the direct result of petitioner’s chronic 10 mental impairments. Petitioner’s psychosis and dissociative disorder overwhelmed his 11 rational functioning and prevented him from modulating his behavior. His reactions to 12 the events around him were the product of his distorted and impaired world-view and 13 delusional thinking. (NOL C2 Ex. 178 at 3156-57; NOL C2 Ex. 154 at 2754-55.) 14 It was not difficult for those who knew petitioner and his family to see the 15 connection between his mother’s treatment of him and his dissociative encounters with 16 Mrs. Harris and Mrs. Miller. 17 understood the tremendous and damaging effect she had on him. A neighbor who 18 remembered petitioner as a “quiet, gentle child” explained, “I was not too surprised 19 when I found out the victim was his girlfriend’s mother. Meso was constantly exposed 20 to the Mr. Hyde side of his mother—the drinking, cussing and fighting. He did not 21 know how to talk about the way he felt when his mother was acting up, and he kept it 22 all inside. Although he tried to physically escape from these situations . . . his feelings 23 never had a chance to escape.” (NOL C2 Ex. 152 at 2742-43.) Even lay witnesses who knew petitioner’s mother 24 On the night of the murder, during the car chase that ensued, petitioner heard 25 multiple voices telling him to kill himself. (NOL C2 Ex. 178 at 3150.) Overcome 26 with guilt and shame, petitioner shot himself in the chest. (NOL C2 Ex. 154 at 2752; 27 NOL C2 Ex. 178 at 3156.) 28 195 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Petitioner’s multiple mental impairments were evidenced by the Los Angeles 2 County Jail medical staff who prescribed anti-depressant, anti-anxiety, and anti- 3 psychotic medications. Petitioner received Cogentin and Hadol for hearing voices. 4 (NOL C2 Ex. 33 at 647.) Petitioner received the Haldol and Cogentin for sixteen 5 months, but immediately prior to trial these medications were abruptly discontinued. 6 (NOL C2 Ex. 33 at 596-620; NOL C2 Ex. 34 at 685.) On the final day of petitioner’s 7 testimony during the guilt phase, jail officials re-prescribed those two medications, and 8 petitioner was under the influence of these drugs throughout the remainder of the 9 proceedings. (NOL C2 Ex. 34 at 690, 678-85.) 10 Although petitioner grew up in a violent environment with fighting all around 11 him, he was not a fighter. (NOL C2 Ex. 16 at 147.) He was the protective older 12 brother, and the peacemaker in the family. He tried to prevent fights and get his 13 siblings to settle their disputes without resorting to violence. (NOL C2 Ex. 2 at 13; 14 NOL C2 Ex. 132 at 2635.) Petitioner also tried hard to be obedient, and respectful; he 15 was always respectful to his parents even when they were drinking and acting in ways 16 that did not demand respect. (NOL C2 Ex. 21 at 228; NOL C2 Ex. 142 at 2699.) 17 When he found his mother drunk in the street, he tried to coax her back inside, and 18 never spoke badly to her or treated her poorly. (NOL C2 Ex. 14 at 132.) 19 Petitioner participated in athletics and football at school, even though he was not 20 a natural athlete. (NOL C2 Ex. 124 at 2532; NOL C2 Ex. 155 at 2774; NOL C2 Ex. 21 21 at 226; NOL C2 Ex. 16 at 150; NOL C2 Ex. 134 at 2651.) Petitioner loved to play 22 football, and football was what he wanted to do most, but sometimes his grades were 23 not good enough. (NOL C2 Ex. 16 at 150; NOL C2 Ex. 124 at 2538.). Then, he 24 suffered an injury and could no longer play. (NOL C2 Ex. 21 at 226; NOL C2 Ex. 8 at 25 86.) Being unable to play football was devastating to petitioner because he was not 26 good at many things: after his injury, what he perceived as his “only chance to succeed 27 at something [] vanished.” (NOL C2 Ex. 16 at 150-51.) 28 196 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Petitioner tried hard in school because he wanted to do something with his life, 2 but given his home environment, the neighborhood he grew up in, and his learning 3 problems it was very difficult for him to succeed. (NOL C2 Ex. 126 at 2563; NOL C2 4 Ex. 14 at 133-34.) 5 numerous schools and having inconsistent attendance.37 It was his determination to 6 learn that got him passed onto the next grade when he was in school, not his ability to 7 do the work, but, ultimately, he fell so far behind that the pressure was too great and he 8 dropped out of school. (NOL C2 Ex. 16 at 145; NOL C2 Ex. 14 at 133-34; NOL C2 9 Ex. 124 at 2538.) By the time petitioner would have graduated, his father had left and 10 his mother had fallen apart. He was often absent from school taking care of his 11 younger siblings because their mother had disappeared for days at a time, or trying to 12 earn pocket money to help clothe and feed them. (NOL C2 Ex. 14 at 133; NOL C2 Ex. 13 131 at 2610; NOL C2 Ex. 2 at 14; NOL C2 Ex. 178 at 3133-34.) However, petitioner persevered at school despite attending 14 Petitioner was never in a gang; he was never interested in joining any gang, and 15 the gang members never showed any interest in him. While older boys in the violent 16 neighborhood often beat up younger boys just because they could, petitioner never 17 engaged in this violence, and was described instead as polite, sweet, respectful, 18 jumping to help anyone in need. (NOL C2 Ex. 132 at 2638; NOL C2 Ex. 16 at 151; 19 NOL C2 Ex. 142 at 2700; NOL C2 Ex. 134 at 2651; NOL C2 Ex. 123 at 2495-96; 20 NOL C2 Ex. 126 at 2563; NOL C2 Ex. 102 at 2026.) 21 Petitioner was a loyal and devoted friend to the few friends he had. (NOL C2 22 Ex. 149 at 2728.) One of his elementary school friends remembered how petitioner 23 had waited after school every day to walk her home because she had been threatened 24 by other students and was afraid to walk home alone. (NOL C2 Ex. 151 at 2735-36.) 25 26 27 28 37 Petitioner attended two elementary schools, four junior high schools, and three high schools. (NOL C2 Ex. 125 at 2557-58.) In the sixth grade he was absent sixty days and in fourth grade he missed twenty-three days of school. (NOL C2 Ex. 130 at 2602-03.) 197 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Although she was new to the school, petitioner made her feel safe there. (NOL C2 Ex. 2 151 at 2736.) 3 Petitioner was a calm person, and he was particularly respectful toward women. 4 He was known for not treating people, and women in particular, badly or speaking 5 poorly of others. (NOL C2 Ex. 146 at 2717; NOL C2 Ex. 147 at 2723; NOL C2 Ex. 6 148 at 2725; NOL C2 Ex. 149 at 2728; NOL C2 Ex. 24 at 242.) He tried hard to 7 please others; he preferred to try and make his few friends laugh rather than talk about 8 anything negative. (NOL C2 Ex. 148 at 2725.) His female friends felt protected and 9 taken care of when they were with him. (NOL C2 Ex. 149 at 2728.) 10 Many witnesses noted that the incidents involving Ms. Jackson and Mrs. Harris 11 were uncharacteristic for petitioner, and were shocked by his arrest. (NOL C2 Ex. 135 12 at 2665; Ex. 146 at 2717.) When petitioner faced a prison sentence after being 13 convicted for assaulting Mrs. Harris, he stated that he preferred to serve time in prison 14 so that he could learn about himself and further his education than to get probation. 15 (NOL C2 Ex. 84 at 1695.) However, without support petitioner simply lacked the 16 skills and ability to seek out resources himself, and his family was unwilling or 17 incapable of assisting him in getting appropriate treatment for his multiple mental 18 impairments. (NOL C2 Ex. 135 at 2666; NOL C2 Ex. 10 at 98.) 19 In addition to failing to locate the numerous witnesses that would have provided 20 the jury with this compelling mitigation, trial counsel unreasonably failed to locate, 21 request, obtain and admit into evidence readily available documents and records 22 containing information about petitioner’s and his family’s medical, military, 23 educational, and social history, thereby failing to discover compelling mitigation 24 evidence.38 A reasonable attorney would have obtained these records, or at minimum, 25 obtained records of which he was aware, or should have been aware existed. For 26 27 28 38 As with the social history investigation, trial counsel handed over the responsibility of obtaining and reviewing social history records to the defense paralegal. (NOL C2 Ex. 12 at 105; NOL C2 Ex. 19 at 203.) 198 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 example, trial counsel knew that petitioner’s grandfather, Doc, had been 2 institutionalized on account of some mental problems but never tried to obtain the 3 records. Had trial counsel obtained the records he could have presented evidence that 4 Doc’s father filed a charge of insanity against him and that after his arrest, Doc was 5 examined by a doctor and found to be insane. (NOL C2 Ex. 108 at 2258.) During his 6 stay in hospital, he was also diagnosed with syphilis. (NOL C2 Ex. 42 at 832.) 7 Trial counsel also knew that petitioner’s aunt, Jackie, had committed suicide but 8 failed to request any records relating to this event. Had he done so, he could have 9 presented evidence that Jackie had multiple tears or cuts on her left wrist consistent 10 with prior suicide attempts, and that she had been depressed prior to killing herself. 11 (NOL C2 Ex. 97 at 1848, 1950-51.) 12 Although trial counsel presented evidence that petitioner’s mother, Joyce, was 13 on welfare and used her welfare money to buy alcohol instead of paying her bills, trial 14 counsel did not obtain social services records. 15 presented evidence that documented Joyce’s arrest for fighting in 1976; petitioner’s 16 father’s attack on Carl with a knife; and petitioner’s fear for his own safety at age 17 twelve, and his attempts to escape the domestic terror in his family because 18 “conditions in the home are not safe.” (NOL C2 Ex. 88 at 1795.) Examples of additional records that trial counsel should have obtained include, 19 20 Had he done so, he could have but are not limited to, the following: 21  Childhood medical records of petitioner, indicating abuse and neglect in 22 the late 1960s and early 1970s, including a number of visits for infected 23 insect bites, and a head injury incurred “running into the corner of a 24 coffee table.” (NOL C2 Ex. 29 at 336-58.)  Medical records of petitioner’s siblings describing petitioner’s mother 25 suffering from dizziness and headaches during pregnancy, and 26 27 // 28 // 199 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1  2  Medical records and court records chronicling alcoholism, substance 3 abuse, and drunk driving with respect to various family and extended 4 family members.40 documenting neglect and abuse of the Jones children.39 5  Petitioner’s siblings’ school records, demonstrating low intellectual 6 functioning of several of petitioner’s siblings, including referral to special 7 education classes; vision problems; petitioner’s mother’s refusal to accept 8 the children’s placement in special education; difficulty functioning and 9 progressing in school; behavioral problems indicative of the chaotic 10 environment in the home; dispersion of the Jones children to relatives and 11 others in loco parentis.41 12  School records of petitioner’s parents and their siblings, attesting to low 13 average intellectual functioning, as well as lack of education and 14 difficulty progressing in school.42 15 Finally, trial counsel’s failure to employ the services of a social history expert 16 precluded the jury from understanding the severe effect that the chaotic and abusive 17 upbringing and multiple traumas had on petitioner. Had trial counsel reasonably 18 investigated, developed, and presented an adequate penalty phase defense based on 19 20 21 22 23 24 25 26 27 28 39 See NOL C2 Ex. 37 at 707-15; NOL C2 Ex. 40 at 815-18; NOL C2 Ex. 35 at 695-99. 40 See NOL C2 Ex. 106 at 2234; NOL C2 Ex. 43 at 845; NOL C2 Ex. 45 at 89197; NOL C2 Ex. 46 at 898; NOL C2 Ex. 44 at 885-90; NOL C2 Ex. 36 at 700-05; NOL C2 Ex. 163 at 2961-70. 41 See NOL C2 Ex. 53 at 1171-73; NOL C2 Ex. 54 at 1174-1395; NOL C2 Ex. 56 at 1401-22; NOL C2 Ex. 57 at 1423-27; NOL C2 Ex. 61 at 1435-54; NOL C2 Ex.66 at 1467-86; NOL C2 Ex. 76 at 1509-20; NOL C2 Ex. 118 at 2436-51; NOL C2 Ex. 119 at 2452- 66. 42 See NOL C2 Ex. 55 at 1397; NOL C2 Ex. 59 at 1429-32; NOL C2 Ex. 63 at 1463; NOL C2 Ex. 64 at 1464-65; NOL C2 Ex. 69 at 1497-500; NOL C2 Ex. 71 at 1502; NOL C2 Ex. 72 at 1503-05; NOL C2 Ex. 73 at 1506; NOL C2 Ex. 74 at 1507; NOL C2 Ex. 75 at 1508; NOL C2 Ex. 77 at 1527; NOL C2 Ex. 79 at 1676-79. 200 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 readily available evidence, presented percipient witnesses who would have testified in 2 accordance with the above facts, and a social historian to explain the effects of these 3 events, he would have been able to argue and the jury would have considered 4 compelling mitigation factors. 5 All of the available evidence constituted classic mitigation evidence that 6 certainly had the potential to persuade “an objective fact-finder” that 7 [petitioner] was, at the time of the crimes, incapable of appreciating the 8 wrongfulness of his conduct. Summerlin, 427 F.3d [623, 643 (9th Cir. 9 2005)]. To use the Supreme Court’s words, ‘[h]ad[a] jury been able to 10 place petitioner’s excruciating life history on the mitigating side of the 11 scale, there is a reasonable probability that at least one juror would have 12 struck a different balance. Wiggins, 539 U.S. at 537, 123 S. Ct. 2527’.” 13 Correll v. Ryan, 539 F.3d 938, 954 (9th Cir. 2008). 14 B. Trial Counsel Rendered Ineffective Assistance for Failing to Retain, 15 Consult, and Prepare Mental Health Experts During the Penalty Phase. 16 Trial counsel has a duty to conduct a thorough investigation and to present 17 “mitigating evidence of mental impairment” during the penalty phase of a capital trial. 18 Bean v Calderon, 163 F.3d 1074, 1080 (9th Cir. 1998). Failure to conduct sufficient 19 preparation and to explain “the significance of all available [mitigating] evidence” 20 constitutes ineffective assistance of counsel. See, e.g., Williams v. Taylor, 529 U.S. 21 362, 399, 120 S. Ct. 1495, 1516 (2000). A trial attorney’s failure to obtain and prepare 22 a psychiatric witness constitutes deficient performance. Bloom v. Calderon, 132 F.3d 23 at 1277. Moreover, trial counsel has “an affirmative duty to provide mental health 24 experts with information needed to develop an accurate profile of the defendant’s 25 mental health.” Caro v. Woodford, 280 F.3d 1247, 1254 (9th Cir. 2002). This duty 26 extends beyond providing the expert with specific information that he requests and 27 requires defense counsel to seek out information about a defendant’s background to 28 201 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 bring to the attention of his experts. Wallace v. Stewart, 184 F.3d 1112, 1118 (9th 2 Cir.1999). 3 Petitioner will present evidence at a hearing that trial counsel failed to 4 adequately retain and consult with appropriate experts; failed to provide experts with 5 whom he did consult with information about petitioner’s background in order for them 6 to develop a complete picture of petitioner’s mental health and cognitive functioning; 7 failed to prepare his mental health expert to testify; failed to explain the role of 8 mitigation in a capital trial; and failed to develop and present compelling expert 9 testimony at the penalty phase, thereby violating petitioner’s right to the effective 10 assistance of counsel. The evidence that petitioner will present at a hearing includes, 11 but is not limited to, the following: 12 13 1. Trial Counsel Failed To Adequately Retain, Consult, And Prepare Mental Health Experts. 14 As early as 1993, trial counsel knew from the nature of the crime and 15 petitioner’s prior offenses that retaining a mental health expert was of the utmost 16 necessity. (NOL C2 Ex. 150 at 2731.) Despite this recognition, trial counsel failed to 17 provide his experts with adequate time to conduct their evaluations or develop 18 sufficient information to frame the correct referral question. Trial counsel did not 19 retain Dr. Thomas until August 1994. At that time, trial counsel asked Dr. Thomas to 20 evaluate petitioner, and in particular, asked him whether he believed 21 that [Mr. Jones] was legally insane at the time of the offense. If you do not 22 believe he was legally insane or even if you do, whether he is suffering 23 from some mental condition or defect which he could not control and 24 which might help explain his behavior. 25 (NOL C2 Ex. 154 at 274.) 26 Dr. Thomas interviewed petitioner in September 1994, and recommended that 27 trial counsel retain another expert to conduct a complete battery of neuropsychological 28 tests. Dr. Thomas presented his findings to trial counsel in December 1994, after 202 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 petitioner’s trial had begun, and after the neuropsychological testing was completed. 2 Those findings included Dr. Thomas’s opinion that petitioner’s competence to stand 3 trial was an issue (id.), and that petitioner suffered from schizoaffective schizophrenia, 4 with a depressive cast, and also suffered from a major dissociative disorder (id. at 5 2750). These conditions had been progressively worsening over time, and while in 6 custody at the Los Angeles County jail, petitioner required prescriptions of powerful 7 antipsychotic medications. Petitioner’s mental disorder waxed and waned: At any 8 given moment he might look alert and oriented, but petitioner’s mental state could 9 deteriorate rapidly. (Id. at 2750-51.) 10 Trial counsel did not meet with Dr. Thomas until December 20, 1994, at which 11 time Dr. Thomas explained the rarity and severity of petitioner’s mental disorders in 12 more detail. (Id. at 2752; NOL C2 Ex. 150 at 2731.) As a result of this and other 13 consultations, Dr. Thomas opined to trial counsel that petitioner was in any event not 14 competent to testify in his own behalf; that the nature of petitioner’s disorder resulted 15 in petitioner’s own great shame and remorse; that petitioner had great difficulty 16 recalling events as they occurred, often trying to fill in the memory gaps with 17 inaccurate, but genuinely held, delusional beliefs; and that petitioner could not control 18 or predict when his dissociative episodes might be triggered. (NOL C2 Ex. 154 at 19 2752.) Dr. Thomas presented these findings to the jury only at the penalty phase of the 20 trial, not at the guilt phase. (30 RT 4408-554.) 21 Over the course of the Fall of 1994—and at least through the end of December 22 1994, after Dr. Thomas presented his initial findings to trial counsel orally and in 23 writing—trial counsel provided various materials to Dr. Thomas for his review in 24 connection with his psychiatric evaluation of petitioner, including police and probation 25 reports, previous mental health evaluations, and a limited number of witness interview 26 summaries. (NOL C2 Ex. 154 at 2749-50.) Dr. Thomas was dissatisfied with the 27 limited nature of the materials and his contact with trial counsel, but he did not receive 28 any additional materials despite his requests. Dr. Thomas observed, 203 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Mr. Manaster had very little time to prepare a mental state defense and thus 2 did not have much time to direct or assist in my evaluation of Mr. Jones. I 3 wanted to work on the case as best I could, but my limited contact with Mr. 4 Manaster was very dissatisfying. The case apparently had caused Mr. 5 Manaster a great deal of distress, which adversely affected his decision- 6 making . . . Upon reviewing the materials provided by Mr. Manaster, I 7 noted several areas in which information about Mr. Jones’s social history 8 and functioning were lacking. I conveyed to Mr. Manaster the need to 9 obtain this information, but at no time was this information provided to me. 10 (NOL C2 Ex. 154 at 2749.) 11 Trial counsel further unreasonably failed to prepare Dr. Thomas for his 12 testimony. Prior to petitioner’s guilt phase testimony, trial counsel discussed with 13 petitioner his flashback to seeing his mother in bed, as part of the preparation for 14 petitioner’s testimony. Trial counsel neither informed Dr. Thomas of this critical 15 revelation nor consulted with him about it in any way prior to petitioner’s testimony. 16 When petitioner later discussed this flashback with Dr. Thomas on February 1, 1995, 17 Dr. Thomas was unaware that petitioner had discussed it with counsel, and that he had 18 testified about it to the jury. In fact, Dr. Thomas was unaware that petitioner had even 19 testified until the prosecutor informed him of this fact during his cross-examination. 20 (NOL C2 Ex. 154 at 2752-53.) Trial counsel’s failure to apprise Dr. Thomas of 21 petitioner’s testimony, to consult with Dr. Thomas regarding petitioner’s testimony, to 22 have Dr. Thomas sit in while petitioner testified, or at a minimum, provide the doctor 23 with petitioner’s testimony, was unreasonable. 24 Trial counsel failed to provide his expert with materials already available to him, 25 including the testimony of key penalty phase witnesses, such as, petitioner’s father, 26 petitioner’s sister, petitioner’s aunt, Mrs. Harris, and Ms. Jackson. 27 counsel failed to investigate, develop and convey to the expert the results of a 28 minimally competent investigation into petitioner’s history and background. Further, trial Dr. 204 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Thomas, therefore, could not evaluate or corroborate his own preliminary findings with 2 the type of basic social history data mental health professionals typically relied upon in 3 developing and presenting their medical opinions. Trial counsel had no strategic 4 reason for this failure. (NOL C2 Ex. 150 at 2733-34; NOL C2 Ex.154 at 2750.) 5 Trial counsel further failed to inform Dr. Thomas about the unique procedures 6 of a capital trial to ensure that Dr. Thomas understood his role in petitioner’s penalty 7 trial and the unique role of mitigation in a capital penalty trial. Dr. Thomas believed 8 he was retained to opine on petitioner’s mental state at the time of the crime, and was 9 never informed there was any other role he could play as a testifying expert at the 10 penalty phase. Trial counsel did not explain to the experts their roles in the case or 11 guide their assessment in light of the California death penalty statute and counsel’s 12 own trial strategy. 13 At no time prior to my testifying did Mr. Manaster explain my role in the 14 capital sentencing context. 15 mitigation in a capital trial or the importance that such information may 16 have on a jury’s decision. 17 mitigating factors in Mr. Jones’s case. He did not explain the scope of potential Thus, I did not testify about substantial 18 I wish I had better understood the role of mitigation in a capital case. 19 I would have wanted an opportunity to testify about even the limited 20 information I did have of the dysfunctional family life Mr. Jones had, and 21 the impact it had on his growth and functioning. I received a limited 22 amount of information from Mr. Manaster, and did not know whether that 23 information was presented to the jury through other witnesses. I mentioned 24 the information briefly a few times during my testimony, but the majority 25 of Mr. Manaster’s questions focused specifically on Mr. Jones’s mental 26 state at the time of the crime. 27 (NOL C2 Ex. 154 at 2755.) 28 205 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Trial counsel failed to present to the jury many of Dr. Thomas’s relevant 2 psychiatric findings. At the penalty phase, Dr. Thomas’s testimony focused on 3 petitioner’s mental state at the time of the crime. As a result, Dr. Thomas never 4 testified about a number of his other, relevant findings of which trial counsel was 5 actually, or reasonably should have been aware, including: that petitioner’s 6 competence to stand trial was at issue; petitioner’s delusional thought disorder and 7 memory impairments, particularly related to dissociative episodes, rendered him an 8 unreliable witness on his own behalf and he should not have testified; petitioner’s 9 medications included Theodrine, which has been known to cause psychosis; and, 10 petitioner’s mental disorder was not one that can be detected from observation alone, 11 but was severe and longstanding nonetheless. A reasonably competent and adequately 12 prepared mental health expert further could have testified that petitioner had been 13 prescribed antipsychotic medication by jail medical staff, and that there was a 14 substantial doubt as to whether petitioner was competent to stand trial, particularly 15 where that medical regimen had been interrupted without clinical basis for the change. 16 (Id. at 2751-54.) 17 Trial counsel failed to have Dr. Thomas discuss and give effect to what little 18 mitigation evidence had been offered through lay witnesses at the penalty phase. At a 19 minimum, Dr. Thomas could have reviewed all of the evidence presented in the 20 penalty phase and explained to the jury some of the effects petitioner’s parents’ 21 alcoholism, fighting, and domestic disturbances had on a young child, as well as the 22 effect of his father’s departure, his brother’s violent death, and his family’s poverty. 23 Dr. Thomas could have also explained the nexus between the incident in which Earnest 24 Lee found his wife in bed with Bill Howell, and the effect that must have had on 25 petitioner, a pre-schooler at the time. (Id. at 2758.) Critically, trial counsel failed to 26 elicit from Dr. Thomas much information concerning petitioner’s two prior 27 convictions, and why they too, were the product of a mentally ill, depressed, and 28 206 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 suicidal individual, and not a man with any desire or intent to hurt women. (NOL C2 2 Ex. 178 at 3155-56.) 3 Trial counsel failed to have Dr. Thomas explain and testify to the family 4 dynamic at work during the critical telephone call between petitioner and his oldest 5 sister Gloria on New Year’s Eve, 1994.43 He also failed to provide his expert with 6 critical social history information to enable the expert to evaluate petitioner’s mental 7 state and the substance of petitioner’s comments during the telephone call. 8 Consequently, no expert testified about this telephone call during the penalty phase to 9 place this heated exchange in context, against the backdrop of petitioner’s severe 10 psychosis and worsening decompensation. (NOL C2 Ex. 154 at 2750-51.) Moreover, 11 trial counsel’s failure to obtain a complete copy of petitioner’s jail medical records 12 meant that he was unable to mitigate the aggravating nature of this call by showing that 13 petitioner was not receiving his anti-anxiety or anti-psychotic medication at the time he 14 placed the phone call to Gloria. Had trial counsel furnished his expert with a copy of 15 the records, a mental health expert could have explained that petitioner’s agitation and 16 inability to modulate his thoughts and reactions to his sister’s perceived abandonment 17 of him were the effect of untreated mental illness and delusional thought processes, 18 and his behavior was not that of a rational, competent individual. 19 Had Dr. Thomas been provided with the numerous lay witness accounts, 20 pertinent documentation, and ample time to interview and evaluate petitioner, he could 21 have synthesized all of the information that was, or reasonably should have been 22 presented at the penalty phase (see, supra, 1.d.), to render “a more complete diagnosis 23 43 24 25 26 27 28 An explanation of the phone call would have included a discussion of the Jones family communication style, which was one of confrontation and physical violence; petitioner’s poor intellectual and cognitive functioning; Gloria’s role in petitioner’s life as caretaker, and petitioner’s ethic of family loyalty. (NOL C2 Ex. 178 at 3117, 3131, 3152-53, 3154-55; NOL C2 Ex. 151 at 2735-36; NOL C2 Ex. 16 at 149, 170; NOL C2 Ex. 152 at 2741-42; NOL C2 Ex. 124 at 2502-03, 2505; NOL C2 Ex. 146 at 2714; NOL C2 Ex. 147 at 2719; NOL C2 Ex. 175 at 3069; NOL C2 Ex. 154 at 2750, 2751, 2755-56, 2761; NOL C2 Ex. 149 at 2728; NOL C2 Ex. 24 at 245.) 207 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 and assessment of Mr. Jones’s mental condition, and given a more persuasive account 2 of his development and background leading up to the night of the incident.” (NOL C2 3 Ex. 154 at 2756-57.) The evidence would have provided the jury with a far more 4 accurate and comprehensive picture of the origin and etiology of petitioner’s mental 5 health, and a fuller context in which to place petitioner’s account of the incident with 6 Mrs. Miller. 7 2. Trial Counsel’s Deficient Performance Was Prejudicial. 8 As trial counsel admitted, Dr. Thomas’s testimony was the “cornerstone” of the 9 penalty phase defense. (NOL C2 Ex. 12 at 110.) In fact, Dr. Thomas was the only 10 mental health expert to testify in the penalty phase. Trial counsel’s failure to prepare 11 Dr. Thomas to testify resulted in the jury not hearing how mentally ill Mr. Jones really 12 is. (See id.) More importantly, trial counsel’s failure to prepare his expert and provide 13 him with information needed to develop an accurate profile of the defendant’s mental 14 health, including records of family members and a minimally competent social history, 15 left Dr. Thomas vulnerable on cross-examination and undermined his medical 16 conclusions in the eyes of the jury, as evidenced by the following exchange: 17 Q: Let me ask you this: 18 If what the grandfather’s illness was was [sic] related to a stress breakdown 19 late in life, would that necessarily have been a genetic predisposition to 20 schizophrenia? 21 No 22 Q: Do you have any medical records to talk about what the grandfather’ s 23 illness was? 24 A. I don’t have medical records, no. 25 Q. Do you have any independent verification of that other than what you 26 got from the defendant or from the other statements that were in the report? 27 A. You mean the relative statements? 28 Q . The relative statements. 208 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 A. No, that is purely based on that kind of information. 2 Q. And then with respect to the paternal aunt who committed suicide, 3 would it make a difference if it was a maternal aunt? 4 A. I understood it was a maternal aunt. 5 Q. Would that make any difference to you? 6 A. It would mean the two sides of the family now contribute to the disease, 7 not one. 8 Q. Would it make any difference to you under the circumstances in which 9 the aunt committed suicide, for instance, if she had a lifetime of depression 10 and killed her [sic] or if there was a single traumatic incident that took 11 place just before the suicide caused her to kill herself with no hint of 12 mental illness? Would that be important? 13 A. It would be important. 14 Q. Do you have any of those kind of details? 15 A. No. 16 30 RT 4518-19. Unquestionably, the prosecutor’s attack on Dr. Thomas’s 17 lack of knowledge of basic background facts affected the jury’s sentencing 18 decision. 19 Similarly, had trial counsel prepared Dr. Thomas for his testimony, and provided 20 him with petitioner’s testimony and evidence corroborating petitioner’s testimony, he 21 could have anticipated the prosecutor’s cross examination and explained why 22 petitioner’s actions and experiences on the night of the murder, and his subsequent 23 testimony and recounting of those events, were consistent with someone who suffered 24 from delusions and a thought disorder with dissociative states and not the mendacities 25 of someone trying to build a psychiatric defense. (31 RT 4652.) 26 The prosecutor also argued that petitioner lacked remorse. (RT 4658-60.) Had 27 Dr. Thomas been properly prepared, he could have explained that petitioner’s lack of 28 insight was a symptom of his mental illness. He also could have explained that 209 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 petitioner’s tendency to dissociate and his appearance while he is in a dissociative 2 state, e.g., lack of emotion or expression, or blank, staring eyes, might leave the 3 impression that he lacked remorse.44 Petitioner dissociated during his trial (NOL C2 4 Ex. 144 at 2707) and it is likely that the jury, observing his demeanor, was influenced 5 by the prosecutor’s argument, leading them to impose the death penalty because they 6 believed that petitioner posed a future danger. 7 Dr. Thomas testified about virtually none of the mitigation evidence available or 8 reasonably available to trial counsel had he conducted a minimally competent social 9 history investigation. The jury, therefore, was not afforded the benefit of expert 10 testimony explaining the effects that petitioner’s mental impairments, which are of 11 long-standing etiology and predated the crime, had on his ability to comprehend 12 events, plan responses, and control his behavior, particularly during stressful 13 situations. By explaining that petitioner’s dissociation affected that part of his brain 14 governing rational thought, rendering him incapable of forming the mental construct to 15 make sense of what happened to him, the jury would have found that he could not form 16 the intent to kill or rape, thereby reducing his moral culpability. There is a reasonable 17 probability that, but for trial counsel’s deficient performance, the jury would not have 18 sentenced petitioner to death. 3. 19 Trial Counsel Failed To Consult With, Retain And Provide 20 Materials To Dr. William Spindell Or Obtain The Services Of 21 Another Neuropsychologist. 22 Trial counsel unreasonably failed to consult with, retain, and provide materials 23 to a competent neuropsychologist with an adequate referral question. Trial counsel 24 unreasonably failed to provide the expert with direction as to what constituted legally 25 cognizable mitigation in order to guide his assessment of petitioner’s functioning and 26 27 28 44 Petitioner’s jury noticed his demeanor, noting that he had a faraway look in his eyes, and that his expression was the same throughout the trial. (NOL C2 Ex. 138 at 2689.) 210 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 behavior in assisting him to prepare a defense. Petitioner will present evidence at a 2 hearing that after Dr. Thomas recommended that neuropsychological testing be 3 conducted, trial counsel requested and had appointed Dr. William Spindell 4 immediately before the trial began. Trial counsel wrote to Dr. Spindell asking him to 5 administer[] psychological and neuropsychological tests, and give[] me 6 your opinion regarding the defendant’s mental condition at the time of the 7 offense. In particular, I would like to know whether you believe he was 8 legally insane at the time of the offense. If you do not believe he was 9 legally insane or even if you do, whether he is suffering from some mental 10 condition or defect which he could not control and which might help 11 explain his behavior. 12 With almost no time and incomplete materials, Dr. Spindell completed a partial 13 battery of neuropsychological tests on petitioner and provided a report to trial counsel 14 on November 11, 1994, just nineteen days before trial began. Dr. Spindell offered his 15 diagnosis, based on the administration of the Minnesota Multiphasic Personality 16 Inventory (MMPI), that petitioner suffered from schizophrenia. Trial counsel failed to 17 have Dr. Spindell testify either during his case-in-chief or as a rebuttal witness. Trial 18 counsel was not satisfied with some of the work, including multiple factual errors Dr. 19 Spindell wrote in his final report to trial counsel. Trial counsel had wanted two mental 20 health experts to testify at petitioner’s trial, and he had no strategic reason for failing to 21 do so; by the time he determined that the work of one of the experts was not 22 satisfactory, petitioner’s trial was beginning and he had no time left to hire anyone 23 else. (NOL C2 Ex. 150 at 2732-33.) 24 Reasonably competent counsel would have employed a neuropsychologist and 25 provided the expert with sufficient time and information upon which to complete a full 26 evaluation of petitioner’s cognitive functioning, asked the neuropsychologist to 27 investigate the possibility of organic brain damage in addition to mental illness, and 28 provided the expert with a complete social and medical history relevant to this testing. 211 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Had trial counsel done so, the jury would have heard compelling testimony that 2 petitioner suffers from severe brain damage, with profound impairments particularly to 3 his frontal and parietal lobes, as well as the corpus callosum. This organic damage 4 severely affects numerous aspects of petitioner’s mental functioning, including 5 memory, concentration, attention, perception of spatial relationships, and overall 6 academic aptitude. Damage to the frontal lobes alone can impair judgment, insight, 7 control, the ability to plan and organize, and overall self-regulation. (NOL C2 Ex. 175 8 at 3065-66.) 9 The jury also would have heard that on the standard Wechsler Adult Intelligence 10 Scale–III test, petitioner earned a full-scale IQ of no higher than 77, which placed him 11 only a few points above the intellectual disability range. (Id. at 3063.) 12 intelligence instruments, however, place his score squarely within the mental 13 retardation range. (NOL C2 Ex. 51 at 1161.) Reasonably competent counsel would 14 have also presented this expert witness testimony, and trial counsel had no informed 15 strategic reason not to retain and present this evidence during the penalty phase. (NOL 16 C2 Ex. 150 at 2732.) 17 18 4. Other Trial Counsel’s Failure To Present The Evidence Of A Neuropsychologist In The Penalty Phase Resulted In Prejudice. 19 Dr. Spindell’s diagnosis of schizophrenia conformed with and corroborated Dr. 20 Thomas’s findings and medical conclusions. Given the complete agreement of these 21 two experts that petitioner suffered from a major mental illness at the time of the 22 crime, trial counsel’s failure to present evidence of petitioner’s mental state during the 23 guilt phase proceedings deprived petitioner of a compelling defense to the murder. 24 Had trial counsel presented this evidence to the jury, it is likely that they would have 25 found that petitioner lacked the ability to form the necessary intent for first degree 26 murder. Trial counsel’s failure to present this evidence at the penalty phase in order to 27 mitigate the circumstances of the crime, and the special circumstances which rendered 28 petitioner eligible for the death sentence, was even more egregious and prejudicial. 212 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 The prosecutor constantly branded petitioner as a liar who had fabricated symptoms of 2 mental illness in order to avoid responsibility for the crimes. (31 RT 4652.) The 3 prosecutor made much of Dr. Thomas’s reliance on the MMPI in forming his opinion, 4 and asked Dr. Thomas a number of questions about the administration of the test, 5 which version of the test had been administered, the reliability of the test, and the fact 6 that Dr. Thomas used the results of the test but was not an expert in the MMPI. (30 RT 7 4493-4517.) These questions were not within the doctor’s area of expertise, but would 8 have been within Dr. Spindell’s. The prosecutor’s attack on Dr. Thomas undermined 9 his credibility as a witness and the reliability of his diagnoses with the jury. Had trial 10 counsel called Dr. Spindell to testify he could have answered the prosecutor’s 11 questions and lent support to Dr. Thomas’s findings. Had Dr. Spindell testified to 12 corroborate Dr. Thomas’s findings, there is a reasonable probability that the jury 13 would not have sentenced petitioner to death.45 14 The jury heard nothing about petitioner’s cognitive functioning during the trial. 15 Trial counsel had speculated that petitioner’s functioning and poor academic 16 performance were the result of Attention Deficit Disorder (ADD). 17 neuropsychologist prepared with available evidence could have provided the following 18 compelling information: that petitioner’s organic brain damage was longstanding and 19 developed early in life (NOL C2 Ex. 175 at 3073-75); 46 petitioner suffers from frontal 20 lobe damage, which has produced cognitive rigidity, distorted perception, and an 21 inability to inhibit unwanted responses; petitioner suffers from damage to the frontal A competent 22 45 23 24 25 26 27 28 See NOL C2 Ex. 140 at 2694 (no evidence presented to support doctor’s conclusions). 46 Petitioner likely developed brain damage as a result of his mother’s heavy alcohol consumption and smoking while she was pregnant, numerous serious head injuries sustained as a child, and malnutrition and neglect. (NOL C2 Ex. 124 at 2501, 2505, 2511, 2512; NOL C2 Ex. 4 at 55; NOL C2 Ex. 18 at 195; NOL C2 Ex. 29 at 345; NOL C2 Ex. 16 at 147-48; NOL C2 Ex. 123 at 2488; NOL C2 Ex. 131 at 2610; NOL C2 Ex. 147 at 2719; NOL C2 Ex. 155 at 2769; NOL C2 Ex. 126 at 2560; NOL C2 Ex. 156 at 2778.) 213 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 and temporal lobes, and resulting deficits in memory and attention make it difficult for 2 petitioner to respond flexibly to new situations, particularly when he is under the 3 influence of drugs or alcohol (Id. at 3076); and “Mr. Jones suffers from such severe 4 brain damage that he is unable to function at the same level as 99 percent of those in 5 his age category” (NOL C2 Ex. 175 at 3072). Had the jury heard that this type of brain 6 damage, coupled with petitioner’s severe mental illness, history of trauma, physical 7 and sexual abuse, and drug and alcohol intake on the day of the crime, rendered 8 petitioner incapable of controlling his behavior, forming the specific intent to commit 9 the crimes, or otherwise modulate his behavior to conform to the law, there is a 10 reasonable probability that they would not have sentenced him to death. See Detrich v. 11 Ryan, 619 F.3d 1038, 1060-62 (9th Cir. 2010), (failure to introduce evidence of the 12 effect of petitioner’s neuropsychological dysfunctions and abusive childhood on his 13 mental state was prejudicial). 14 15 C. Trial Counsel Rendered Ineffective Assistance During the Penalty Phase by His Failure to Object to Prosecutorial Misconduct. 16 Trial counsel failed to object to the prosecutor urging the jury to consider non- 17 statutory aggravating evidence. Under the guise of discussing petitioner’s age as a 18 factor in aggravation, the prosecutor argued that petitioner had agreed to receive 19 treatment after the Kim Jackson incident in order to get a reduced sentence. The 20 prosecutor argued that petitioner had either refused treatment or they had been unable 21 to treat him, and advised the jury to “think about that and his lack of participation in 22 the program.” (31 RT 4640-41.) Petitioner’s failure to take advantage of mental 23 health resources is not a proper factor to consider in aggravation, yet trial counsel 24 failed to object and ensure that the jury was properly instructed not to consider such 25 evidence in aggravation. 26 permitted the prosecutor to argue facts that were not in evidence. For example, the 27 prosecutor falsely argued that the victim experienced blood pooling in her mouth as a 28 result of the stab wounds. (31 RT 4661.) Not only was this argument false (NOL C2 Moreover, trial counsel’s repeated failures to object 214 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Ex. 171 at 3034-35), it was also a highly prejudicial appeal to the jury’s emotions. 2 Trial counsel failed to object on either of these two grounds. 3 Trial counsel failed to object to several acts of misconduct regarding the 4 presentation of correctional consultant, James Park’s, testimony, or to present 5 testimony to rebut the prosecutor’s mischaracterization of petitioner. For instance, the 6 prosecutor informed the court that he would like to bring out the fact that gangs have a 7 potential violence problem while in prison because petitioner had gotten into a fight 8 “over Crip business” during his prior incarceration. (29 RT 4215.) The prosecutor 9 then introduced this evidence, for which there was no support, in order to characterize 10 petitioner as a gang member with a predisposition to commit acts of violence. (Id. at 11 4307-08.) 12 informed the jury that he “resent[ed] the implication Mr. Jones is a gang member.” (31 13 RT 4684.) Moreover, had trial counsel conducted an adequate investigation into 14 petitioner’s background, he would have discovered that not only was the evidence 15 improper it was demonstrably false.47 Trial counsel, rather than objecting to this harmful evidence, merely 16 Trial counsel failed to object to the prosecutor’s appeal to the jury to ignore the 17 law and evidence. Under the guise of victim impact, the prosecutor counseled the jury 18 to sentence petitioner to death solely on the grounds that they had already convicted 19 him of murder. 20 prosecutor urged the jury that if they were considering showing petitioner sympathy, 21 they should show him the same sympathy that he had shown Mrs. Miller. (31 RT 22 4643; see also id. at 4657 [same argument].) He also told the jury that the police had 23 saved the defendant’s life after he had shot himself, but there was no one to save the Under factor (k) of California Penal Code section 190.3, the 24 25 26 27 28 47 Trial counsel only asked Herman Evans if he and petitioner were ever involved in gangs; Evans testified they were not. (29 RT 4252.) Numerous declarants confirm that throughout his life—not just the few years he and Mr. Evans were close friends— any allegation that petitioner was a member of any gang, was patently and demonstrably false. (NOL C2 Ex. 142 at 2700; NOL C2 Ex. 153 at 2744; NOL C2 Ex. 134 at 2648-51; NOL C2 Ex. 124 at 2525.) 215 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 victim. (31 RT 4661.) Trial counsel had no strategic reason for failing to object to 2 these prejudicial instances of prosecutorial misconduct. 3 Trial counsel offered petitioner’s past incarceration history as evidence that he 4 would not be a danger in prison. The prosecutor’s improper and false argument that 5 petitioner was a violent gang member in fact affected and undermined the presentation 6 of this evidence. Because trial counsel failed to object to this mischaracterization of 7 petitioner, the jury was more likely to believe the prosecutor that petitioner was a gang 8 member and, therefore, a future danger. See United States v. Young, 470 U.S. 1, 18- 9 19, 105 S. Ct. 1038, 84 L.Ed.2d 1 (1985) (a “prosecutor’s opinion carries with it the 10 imprimatur of the Government and may induce the jury to trust the Government’s 11 judgment rather than its own view of the evidence”); see also Berger v. United States, 12 295 U.S. 78, 88-89, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). Likewise, by failing to 13 object to the prosecutor’s false statement that petitioner refused mental health 14 treatment or was untreatable, the jury was left with the impression that petitioner posed 15 a future danger. 16 The prosecutor’s remarks regarding the victim’s death were calculated to incite 17 the passions and prejudices of the jury. The prosecutor requested that the jury sentence 18 petitioner to death on the basis that the victim’s death required petitioner’s death. The 19 jury, therefore, made their sentencing decision not on the law or the evidence before 20 them, but on emotion, thereby undermining confidence in the verdict. See Saffles v. 21 Parks, 494 U.S. 484, 493, 110 S. Ct. 1257, 108 L.Ed.2d 415 (1990) (“capital 22 sentencing must be reliable, accurate, and nonarbitrary”). Petitioner’s constitutional 23 rights to a fair trial, due process of law, confrontation, and a reliable guilt and penalty 24 verdict were thus violated by trial counsel’s failure to object to the prosecutor’s 25 misconduct. But for trial counsel’s errors there is a reasonable probability that the jury 26 would not have sentenced petitioner to death. 27 // 28 // 216 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 VIII. PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING ON 2 CLAIM EIGHTEEN: THE JURY COMMITTED PREJUDICIAL 3 MISCONDUCT. 4 Petitioner was tried in the shadow of an unusual media circus atmosphere due to 5 two high profile cases—the criminal prosecutions of O.J. Simpson and Heidi Fleiss— 6 which were being tried at the same time.48 As a result, petitioner’s trial took place in 7 an environment that made the jury highly susceptible to considering impermissible and 8 extraneous evidence in its deliberations. Both of petitioner’s presiding judges, acutely 9 aware of this risk, repeatedly and extensively instructed the jurors about their duties 10 and obligations. 11 committed numerous instances of misconduct during the guilt and penalty phases of 12 petitioner’s trial. Members of the jury failed to fulfill their obligations to (1) render 13 their verdict following consideration of only the evidence presented in the case; (2) 14 avoid discussing petitioner’s case with anyone other than fellow deliberating jurors; (3) 15 avoid premature discussions with other jurors; (4) avoid prejudging the case before the 16 presentation of all evidence; (5) avoid inserting their own untested knowledge of 17 expert matters into the deliberation process; (6) pay close attention to all of the 18 evidence presented at trial; and, (7) follow the law as laid out in the instructions. 19 Because it “is vital in capital cases that the jury should pass upon the case free from 20 external causes tending to disturb the exercise of deliberate and unbiased judgment[,]” 21 Mattox v. United States, 146 U.S. 140, 149, 13 S. Ct. 50, 53, 36 L. Ed. 917 (1892), the 22 jury’s failure to do so violated petitioner’s Sixth, Eighth, and Fourteenth Amendment 23 rights, Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S. Ct. 546, 550, 13 L. Ed. 2d 424 24 (1965), and had “a substantial and injurious effect” on the outcome of the trial, Brecht 25 v. Abrahamson, 507 U.S. at 638, 113 S. Ct. at 1722, 123 L. Ed. 2d 353. 26 27 28 Despite these repeated instructions and admonitions, jurors 48 O.J. Simpson was being tried “just down the hall” (NOL C2 Ex. 127 at 2764; see also NOL C2 Ex. 133 at 2645; 138 at 2689), and petitioner’s jurors “saw many of the main players in O.J.’s case, either in the hallway, the cafeteria, or on the elevator” (NOL C2 Ex. 127 at 2764). 217 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Respondent has failed to admit or deny any of the facts alleged in the Petition. 2 (See, e.g., Doc. 28, filed Apr. 6, 2010 at 4 (“Respondent denies, or lacks sufficient 3 knowledge to admit or deny, every factual allegation made in support of Petitioner’s 4 thirty claims for relief (including all sub-claims)”.) Petitioner, therefore, requests an 5 evidentiary hearing on this claim, since respondent has placed at issue all facts upon 6 which it relies. 7 8 9 At an evidentiary hearing on this Claim, petitioner will present the following evidence in support of the following: A. The Trial Court Instructed Petitioner’s Jury About Its Obligations. 10 Throughout the trial, the court repeatedly instructed the jurors on their 11 obligations and duties. The jurors were instructed (1) not to discuss the case with 12 anyone other than other jurors during deliberations; (2) to base their deliberations only 13 upon the evidence presented in the case; and, (3) not to prejudge the case or determine 14 the penalty before hearing all of the evidence to be presented. Upon swearing in the 15 jurors at the outset of the trial, Judge Trammell took the unusual step of explaining the 16 nature of juror misconduct to the jury and strongly admonishing them to avoid it: 17 I am going to do something I have never done before but I feel compelled 18 in light of what happened next door in the Heidi Fleiss case; that is, I am 19 ordering each and every one of you not to discuss this case with anyone 20 until the case is actually submitted to the jury. . . . In the guilt phase you are 21 not to discuss or consider the issue of penalty or punishment. . . . Lastly . . . 22 you are not to talk to anyone about the case or the subject matter of penalty 23 or punishment. That order is being made under penalty of contempt of 24 court if any of you violates that order. . . . One of the questions we asked 25 all of you in the questionnaire and to which some of you objected to and 26 that was we said, if you observe anything going on with the other jurors 27 that you feel is wrong, would you report it to the court? It’s imperative that 28 that be done because if we catch juror misconduct where we can substitute 218 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 — if, in fact, there is misconduct, and we can remove the juror who’s 2 involved in the misconduct and substitute in one of the alternates, it saves 3 the possibility of a new trial having to be granted or some additional 4 repercussions along the way. 5 (13 RT 2331-33.) In addition to the form instructions he read to them, the trial court 6 explained to the jury in explicit terms what types of behavior constituted misconduct 7 and that jurors were expected to immediately report anyone that committed misconduct 8 during the trial. 9 Prior to the guilt phase deliberations, Judge Ferns read the jury CALJIC 1.00, 10 which instructed the jury to base its verdict “on the facts and the law. . . . [Y]ou must 11 determine the facts from the evidence received in the trial and not from any other 12 source. . . . You must not be influenced by mere sentiment, conjecture, sympathy, 13 passion, prejudice, public opinion or public feeling.” (26 RT 3816, 3818; 2 CT 254.) 14 The second instruction read by the court, CALJIC 1.03, reinforced the idea in CALJIC 15 1.00 for the jury to base its decision on the evidence presented at trial and further 16 instructed the jurors they were not to consult non-jurors or reference works for 17 additional information. (26 RT 3819-20; 2 CT 258.) Judge Ferns then emphasized 18 this point by stating: 19 And I usually don’t highlight an instruction, but I had two instances last 20 year, both homicide cases where one juror went and got a 1972 penal code 21 to look up something, and that juror didn’t remain. Another case, some 22 jurors brought a newspaper article in and used that in their deliberations. 23 Nobody told me about it until after the fact. So everything that you – and 24 the only source of information on this information [verify] is what you got 25 in here and the instructions that I’m giving to you that you’ll take into the 26 jury room. 27 (26 RT 3820.) 28 219 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 The court expressly instructed the jury not to consider petitioner’s penalty 2 during guilt-phase deliberations: “In your deliberations, the subject of penalty or 3 punishment is not to be discussed or considered by you. This is a matter which must 4 not in any way affect your verdict or affect your finding as to the special circumstances 5 alleged in this case.” (26 RT 3861-62; 2 CT 310 (CALJIC 8.83.2).) The court 6 repeated this instruction, shortly thereafter. (26 RT 3875.) 7 Prior to the penalty phase deliberations, the court again instructed the jury with 8 CALJIC No. 1.03. (2 CT 258; 31 RT 4611-12.) At this point, the jury had been 9 admonished no less than four times about their obligation to avoid discussing the case 10 with anyone other than deliberating jurors and to avoid considering evidence and 11 information extraneous to the trial. In addition, both presiding judges had felt it 12 necessary to reinforce and emphasize this instruction to the jury. The court also gave 13 the jurors CALJIC 17.40, which instructed them to form their own opinion, but only 14 after hearing all of the evidence and discussing it with fellow deliberating jurors. (2 15 CT 331; 31 RT 4693.) 16 In addition to the instructions noted above, the trial court also clearly 17 admonished the alternate jurors not to discuss the case with other jurors or form an 18 opinion prematurely. (2 CT 338 (CALJIC 17.53); see, e.g., 16 RT 2546; 23 RT 3457; 19 31 RT 4697.) Before each and every recess, the jurors were again instructed not to 20 discuss the case with anyone. (2 CT 337 (CALJIC 17.52); see, e.g., 18 RT 2892; 24 21 RT 3688; 29 RT 4287.) 22 Despite these clear and emphatic admonitions repeated throughout the trial, 23 several jurors committed clear and highly prejudicial misconduct by: considering 24 evidence extraneous to that presented at trial, discussing the case prematurely among 25 themselves and with third parties, and considering and determining petitioner’s penalty 26 during the guilt phase of the trial. 27 // 28 // 220 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 B. Petitioner’s Jury Committed Prejudicial Misconduct by Introducing Extraneous Information Into Deliberations. 2 3 Jurors committed prejudicial misconduct by injecting extraneous evidence and 4 their own untested specialized knowledge into the deliberation process. By doing so, 5 these jurors violated petitioner’s Sixth, Eighth, and Fourteenth Amendment rights to 6 confront and cross-examine witnesses, and essentially became unsworn witnesses at 7 petitioner’s trial. The prejudice is manifest because their comments were not 8 substantially the same as any evidence admitted in court. See, e.g., Jeffries v. Wood, 9 114 F.3d 1484, 1490 (9th Cir. 1997) (“A juror’s communication of extrinsic facts 10 implicates the Confrontation Clause.”); Sassounian v. Roe, 230 F.3d 1097, 1108 (9th 11 Cir. 1999). 12 13 1. Jurors Introduced Extraneous Evidence Into Guilt and Penalty Deliberations. 14 Despite the trial court’s concern about outside influences, it did not order 15 petitioner’s jury not to watch television newscasts; therefore, they “were aware of what 16 was happening in O.J.’s trial.” (NOL C2 Ex. 127 at 2564.) Several of petitioner’s 17 jurors were impressed by the testimony of a DNA expert in the Simpson trial. (NOL 18 C2 Ex. 9 at 93; NOL C2 Ex. 127 at 2564.) They “talked about how she went to the 19 same school as the DNA expert in the Simpson trial so we know she had to be good.” 20 (Id.; see NOL C2 Ex. 127 at 2564.) The fact that the prosecution’s DNA expert 21 attended the same school as the DNA expert in the Simpson trial, entered into 22 petitioner’s jury’s deliberations despite being evidence learned from an extraneous 23 source—the televised Simpson trial—not from the evidence adduced at petitioner’s 24 trial. (NOL C2 Ex. 9 at 93.) 25 During penalty deliberations, Juror Youssif Botros, an Egyptian Coptic 26 Christian, informed the other jurors about consulting with his priest about petitioner’s 27 case. Mr. Botros told the other jurors “His priest told him to read the Bible for 28 guidance.” (NOL C2 Ex. 127 at 2565.) Mr. Botros also informed the other jurors 221 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 “that he read the section of the Bible that spoke about ‘an eye for an eye’ and was 2 therefore able to vote for death.” (Id.) In recounting to the rest of the jury his 3 conversation with his priest and the particular section of the Bible that enabled him to 4 reach a verdict of death, Juror Botros necessarily involved, and thereby tainted, the 5 entire jury with his misconduct. 6 Juror Omar Muhammad, a physician’s assistant working at the Metropolitan 7 Federal Prison in Los Angeles, committed similar misconduct by taking it upon 8 himself to educate the rest of the jurors about petitioner’s medications: 9 During trial, Mr. Jones had a faraway look in his eyes. He looked the same 10 throughout the entire trial. I know from my experience with psychiatric 11 medications that Mr. Jones looked like someone who was medicated with 12 anti-depressants. I recognized the names of the anti-depressants that Mr. 13 Jones was taking and told the other jurors what I knew about the 14 medications. 15 16 (NOL C2 Ex. 138 at 2689.) 2. The Jurors’ Introduction Of Extraneous Evidence Into Guilt And Penalty Deliberations Was Prejudicial. 17 18 DNA evidence played a crucial role in petitioner’s case. As a result of the jury’s 19 misconduct, the testimony of the prosecution’s DNA expert was unfairly and 20 improperly bolstered by extraneous evidence that positively connected her to the high- 21 profile O.J. Simpson trial that had “enormous amounts of resources” (NOL C2 Ex. 133 22 at 2645) with which to hire the best experts (see NOL C2 Ex. 122 at 2645 (discussing 23 financial disparities between petitioner’s and Simpson’s trial); NOL C2 Ex. 139 at 24 2692 (same)). 25 petitioner’s trial were obscured by the overwhelming extra-record information about 26 DNA received by the jury through the media coverage of the Simpson trial and left 27 uncorrected by trial counsel. (See, supra, Claim II.C (counsel ineffective for failing to 28 challenge DNA).) Furthermore, the deficiencies in the DNA evidence presented at 222 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Juror Muhammad’s injection of his own specialized, yet untested and potentially 2 inaccurate, knowledge about petitioner’s medications and their effects on him, 3 rendered Mr. Muhammad an unsworn witness at the trial, violating petitioner’s 4 fundamental Sixth Amendment right to cross-examine and confront witnesses against 5 him. See, e.g., Mach v. Stewart, 137 F.3d 630, 634 (9th Cir. 1997). Such knowledge 6 did not fall within the acceptable category of juror experience brought into 7 deliberations. Rather, juror Muhammad’s “knowledge” of anti-depressant medications 8 was the product of his specialized occupation and had no place in the deliberation 9 process. Juror Muhammad’s injection of his specialized knowledge of petitioner’s 10 medication went to the key issue of petitioner’s mental state, heightening the prejudice 11 to petitioner. Juror Muhammad, and the rest of the jurors, committed prejudicial 12 misconduct by considering extraneous, unreliable evidence in determining petitioner’s 13 guilt. 14 Juror Botros’s introduction of a passage from the Bible (“an eye for an eye”) 15 into the deliberative process constituted the introduction of a particularly prejudicial 16 type of extraneous evidence—the Bible. See, e.g., Oliver v. Quartermain, 541 F3d 17 329, 339 (5th Cir. 2008) (by introducing bible passages into deliberations “the juror 18 has crossed an important line.”); Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989). 19 This misconduct was compounded by the remaining jurors. By failing to follow the 20 trial court’s explicit instructions, and not immediately reporting Juror Botros’s 21 misconduct and his improper injection of Biblical tenets into petitioner’s penalty 22 deliberations, the remaining jurors committed further misconduct. 23 The introduction of “extraneous prejudicial information,” Fed. R. Evid. 606(b), 24 into the deliberative process at petitioner’s trial had a substantial and injurious effect 25 on the outcome of petitioner’s trial. Brecht v. Abrahamson, 507 U.S. at 638, 113 S. Ct. 26 at 1722, 123 L.Ed.2d 353; Mach v. Stewart, 137 F.3d at 634. 27 // 28 // 223 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 2 C. The Jurors Committed Prejudicial Misconduct by Prematurely Deliberating and Prejudging the Case. 3 Several other jurors directly violated the trial court’s admonition to avoid 4 premature discussion with fellow jurors and prejudgment of the charges against 5 petitioner and any potential penalty. 6 7 8 1. Jurors Prematurely Deliberated And Judged The Case. Before they even retired for guilt phase deliberations many, if not all, of the jurors had considered and decided that petitioner deserved a sentence of death: 9 Two men were extremely vocal about voting for the death penalty from the 10 moment we stepped into the Jury Room for the guilt deliberations. . . . 11 They said that Mr. Jones was guilty of these crimes and therefore he should 12 get the death penalty. We talked about how the case was all about the guilt 13 phase because once we decided that we knew we had to vote for death. . . . 14 By the time the penalty phase came it was too late, our minds were already 15 made up. We needed something to work with in the guilt phase, but there 16 was nothing. 17 (NOL C2 Ex. 138 at 2690-91.) A juror, whose wife and two daughters were of similar 18 ages to the victim and her two daughters, blatantly ignored the court’s instruction and 19 decided guilt and penalty early in the trial: 20 During guilt deliberations, one of the other jurors told us that he had a wife 21 and two daughters about the same age as the victim and her daughters. He 22 said he could understand how upset the daughter was and said that if his 23 two daughters found his wife like that, that would be it, he would get the 24 death penalty. He said right then and there, after hearing the daughter, he 25 knew he had to vote for death. We all listened and felt for him, it must 26 have been hard to hear that stuff with a wife and two kids so close in age to 27 the victims. 28 (NOL C2 Ex. 9 at 93.) 224 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Petitioner’s jury not only discussed the case prematurely, and in direct 2 contravention of the court’s explicit order, they discussed it with someone who was not 3 one of the twelve seated jurors. Alternate Juror Virginia Surprenant discussed the case 4 with the seated jurors often enough that she was aware most of them planned to vote 5 for a sentence of death. (NOL C2 Ex. 23 at 240.) Ms. Suprenant shared those jurors’ 6 concern about another juror who obeyed the court’s admonition and refused to discuss 7 the case: 8 Occasionally I went out to lunch with a couple of other jurors. We got to 9 know each other pretty well. There was one juror in particular, an African 10 American woman, who we were worried about. She never shared her 11 feelings, so we feared that she was planning to vote for the other side. But 12 when they started deliberating she was the first to speak her mind and she 13 was very vocal that the jury had no choice but to sentence him to death. 14 15 16 (Id.) 2. The Jurors’ Premature Deliberations And Judging Of The Case Was Prejudicial. 17 These jurors committed prejudicial misconduct by deciding petitioner was both 18 guilty of capital murder and deserved a sentence of death during the presentation of 19 guilt phase evidence, in direct contravention of the trial court’s clear instructions. The 20 verdicts from petitioner’s jury were not based on the evidence presented in the guilt 21 phase and the existence and weight of mitigating and aggravating factors in the penalty 22 phase. These verdicts were the prejudicial and unconstitutional result of jurors who 23 ignored the trial court’s clear instructions and allowed passion and outrage to guide 24 their judgment. (See NOL C2 Ex. 9 at 93 (during guilt deliberations a juror “said right 25 then and there, after hearing the daughter, he knew he had to vote for death.”); NOL 26 C2 Ex. 138 at 2690 (“Two men were extremely vocal about voting for the death 27 penalty from the moment we stepped into the Jury Room for the guilt deliberations.”).) 28 The jury’s failure to abide by the trial court’s instructions and discuss the case only 225 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 during deliberations, not to deliberate outside of the jury room, and not to arrive at an 2 opinion until the close of evidence had a substantial and injurious effect on the guilt 3 and penalty phase deliberations and verdicts. Brecht v. Abrahamson, 507 U.S. at 638, 4 113 S. Ct. at 1722, 123 L.Ed.2d 353; Mach v. Stewart, 137 F.3d at 634. 5 D. The Jurors Committed Prejudicial Misconduct by Failing to Follow the Court’s Instructions. 6 7 Jurors may not disregard the law or the court’s instructions regarding the law. 8 In particular, when instructed on the meaning of legal terms and concepts, jurors must 9 accept the definitions and explanations as offered to them by the court and must apply 10 the law as set forth in the court’s instructions. See, e.g., Morgan v. Illinois, 504 U.S. 11 719, 735-46, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992) (a juror who does not “follow 12 the dictates of law” creates an unacceptable risk that a capital verdict is not fair and 13 impartial); see also McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 14 554, 104 S. Ct. 845, 850, 78 L. Ed. 2d 663 (1984) (a fair trial requires an impartial jury 15 that will follow the court’s instructions and decide the case solely on the evidence). 1. 16 Jurors Failed To Follow The Court’s Instructions. 17 During guilt phase deliberations, petitioner’s jury committed egregious 18 misconduct by ignoring the court’s clear instruction not to discuss possible sentences. 19 Several jurors had determined petitioner’s guilt and death sentence during the 20 prosecution’s case-in-chief; for those who had not, it was decided during guilt 21 deliberations that “the case was all about the guilt phase because once we decided that 22 we knew we had to vote for death.” (NOL C2 Ex. 138 at 2690.) Moreover, by 23 prematurely determining petitioner’s penalty, the jurors committed serious and 24 prejudicial misconduct by failing to follow the court’s instruction relating to the 25 meaning of a sentence of death versus that of life without parole. Juror Emil Ruotolo 26 admitted: 27 It was not difficult for us to vote for the death penalty, because regardless 28 of our verdict, we knew that Ernest would end up getting life. We talked 226 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 about how his drug use would save him from ever being executed. I just 2 knew, as I still know, that there is no way they would actually execute him. 3 (NOL C2 Ex. 9 at 96.) The jury did not follow the court’s instructions regarding its 4 ultimate responsibility for petitioner’s fate, and instead based its decision upon the 5 unfounded assumption that a sentence of death would not be carried out. See, e.g., 6 Morgan v. Illinois, 504 U.S. at 735-46, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (a juror who 7 does not “follow the dictates of law” creates an unacceptable risk that a capital verdict 8 is not fair and impartial); Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S. Ct 9 2633, 2639, 86 L. Ed. 2d 231 (1985) (“it is constitutionally impermissible to rest a 10 death sentence on a determination made by a sentencer who has been led to believe 11 that the responsibility for determining the appropriateness of the defendant’s death 12 rests elsewhere”). 2. 13 The Jurors Failure To Follow The Court’s Instructions Was Prejudicial. 14 Petitioner’s jurors demonstrated a patent disregard for the law. 15 Their 16 unwillingness to follow the trial court’s instructions resulted in a jury primed to render 17 an unreliable and arbitrary death sentence based on unfounded and erroneous 18 conjecture. This multi-layered juror misconductdiscussing the inevitability of a death 19 sentence while engaged in guilt phase deliberations; the failure to follow the court’s 20 instructions; and, the introduction of extraneous, erroneous, prejudicial evidence 21 regarding whether or not a sentence of death is a real sentence, in the penalty phase 22 deliberationsconstitutes misconduct of a magnitude higher than that of a single 23 instance of misconduct by a jury. The entire jury was tainted by this blatant disregard 24 for the court’s instructions and misapplication of the law, which had a substantial and 25 injurious effect on the guilt and penalty phase verdicts. Brecht v. Abrahamson, 507 26 U.S. at 638, 113 S. Ct. at 1722, 123 L. Ed. 2d 353; Mach v. Stewart, 137 F.3d at 634. 27 // 28 // 227 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 2 E. Juror Ruotolo Committed Prejudicial Misconduct by Falling Asleep During the Testimony of Petitioner’s Sole Mental Health Expert. 3 Juror inattention or absence during the presentation of evidence is misconduct. 4 One of petitioner’s jurors committed serious misconduct by failing to pay attention to 5 the evidence presented by the defense in the penalty phase of petitioner’s trial. 6 1. Trial. 7 8 9 Juror Rutolo Committed Misconduct By Falling Asleep During Juror Emil Ruotolo admits that he fell asleep during the defense expert’s testimony at the penalty phase: 10 The penalty phase was brief. The doctor who testified for the defense was 11 difficult to understand. . . . He talked about some mental problem that Mr. 12 Jones had, but he never said what that mental problem was. He also said 13 something about how Mr. Jones’s son could have the same mental 14 problem. His testimony was impossible to pay attention to, and I kept 15 falling asleep. 16 (NOL C2 Ex. 9 at 95.) 17 2. Petitioner Was Prejudiced By Juror Ruotolo’s Misconduct. 18 A sleeping juror is an absent juror. United States v. Olano, 62 F.3d 1180, 1189 19 (9th Cir. 1995). Juror Ruotolo’s inattention suggests that he, along with the other 20 jurors, had prejudged the outcome of the case and closed his mind to further 21 consideration of evidence. 22 failure to pay close attention to the scant defense testimony places into question the 23 reliability of petitioner’s penalty determination. Juror Ruotolo’s sleeping during the 24 testimony of the sole mental health expert had a substantial and injurious effect on the 25 penalty verdict. Brecht v. Abrahamson, 507 U.S. at 638, 113 S. Ct. at 1722, 123 L. Ed. 26 2d 353; see United States v. Barnett, 703 F.2d 1076, 1083 (9th Cir. 1983) (court 27 abused discretion by failing to investigate the “‘sleeping’- juror question”). In an admittedly brief penalty phase, Juror Ruotolo’s 28 228 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Petitioner has alleged a colorable claim for relief as to each of his jury 2 misconduct sub-claims. These sub-claims were fairly presented to the state court (see 3 NOL, Doc 30, filed Apr. 8, 2010, “Joint Stipulation Re: Briefing Schedule at 2), and 4 without “a full and fair opportunity to develop” the facts for this claim, the state court 5 denied it solely on the merits. (NOL C7.) Petitioner has established his entitlement to 6 an evidentiary hearing on each of the five sub-claims of jury misconduct. 7 // 8 // 9 // 10 // 11 // 12 // 13 // 14 // 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 229 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 IX. PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING ON 2 CLAIM TWENTY-THREE: PETITIONER’S SENTENCE 3 CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT BECAUSE OF 4 HIS MENTAL RETARDATION AND MENTAL IMPAIRMENTS. 5 The Petition sets forth detailed factual allegations at pages 382 to 393 that 6 petitioner is ineligible for the death sentence under Atkins v. Virginia, 536 U.S. 304, 7 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), because petitioner’s low and lifelong level 8 of functioning falls squarely within the range of intellectual disability. Moreover, 9 petitioner’s severe and multiple mental illnesses substantially diminish his moral 10 culpability as to the offenses for which he was convicted and sentenced to death, and 11 render any death judgment grossly and unlawfully disproportionate in violation of his 12 Eighth and Fourteenth Amendment rights to be free of cruel and unusual punishment. 13 In Atkins v. Virginia, the United States Supreme Court declared that the Eighth 14 Amendment’s ban on excessive and cruel and unusual punishments prohibited the 15 execution of individuals with mental retardation. The decision in Atkins relied upon 16 three related rationales: The empirically established consensus against executing the 17 mentally retarded; the Court’s independent determination that retaining the death 18 penalty for the mentally retarded would not further any interest in retribution or 19 deterrence; and the fact that the nature of the impairment of mental retardation leads to 20 an unacceptable “risk of wrongful executions.” 536 U.S. at 314-21, 122 S. Ct. at 2249- 21 52. The Court further noted that individuals with mental retardation “have diminished 22 capacities to understand and process information, to communicate, to abstract from 23 mistakes and learn from experience, to engage in logical reasoning, to control impulses 24 and to understand the reactions of others.” Id. at 318, 122 S. Ct. at 2250. 25 Respondent generally denies or alleges insufficient knowledge to admit or deny 26 the allegations in support of petitioner’s claim. (Answer at 60, Doc. 28, filed Apr. 6, 27 2010.) Given respondent’s general denials, petitioner cannot determine which facts are 28 in dispute. In order to determine which facts are in dispute and whether petitioner 230 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 suffers from an intellectual disability such that he is ineligible for the death penalty a 2 hearing is warranted. See Walker v. True, 399 F.3d 315, 326-27 (4th Cir. 2005) 3 (evidentiary hearing necessary to determine whether petitioner is mentally retarded 4 when petitioner did not have the opportunity to develop facts in state court). At an 5 evidentiary hearing, to prove the factual allegations that petitioner is ineligible for the 6 death penalty, is plagued with deficits in functioning, has severely limited adaptive 7 functioning, and, from early childhood, tested in the mentally retarded range of 8 functioning, petitioner will present evidence in support of the following: 9 A. Petitioner Meets the Criteria for an Intellectual Disability 10 Petitioner suffers from an intellectual disability. In Atkins, the Supreme Court 11 noted the definition of mental retardation provided by the American Association on 12 Mental Retardation (“AAMR”)49 in Mental Retardation: Definitions, Classification, 13 And Systems Of Supports (9th ed. 1992) (“Mental Retardation I”). 536 U.S. at 309 14 n.3, 318, 122 S. Ct. at 2245 n.3, 2250. As provided therein, 15 Mental retardation refers to substantial limitations in present functioning. 16 It is characterized by significantly subaverage intellectual functioning, 17 existing concurrently with related limitations in two or more of the 18 following applicable adaptive skill areas: communication, self-care, home 19 living, social skills, community use, self-direction, health and safety, 20 functional academics, leisure, and work. 21 before age 18. 22 Mental Retardation I at 1. Mental retardation manifests 23 Five days before the Supreme Court issued its decision in Atkins, the AAMR 24 released the tenth edition of its publication and revised its definition of mental 25 retardation as “a disability characterized by significant limitations in both intellectual 26 27 28 49 The AAMR is an organization of professionals and citizens concerned about intellectual and developmental disabilities. The AAMR currently is known as the American Association on Intellectual and Developmental Disabilities. 231 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 functioning and in adaptive behavior as expressed in conceptual, social, and practical 2 adaptive skills. 3 Definitions, Classification, And Systems Of Support (“Mental Retardation II”) (10th 4 ed. 2002) at 1. This disability originates before age 18.” Mental Retardation: 5 On September 18, 2009, the American Association on Intellectual and 6 Developmental Disabilities (“AAIDD”) released the eleventh edition of its publication, 7 replaced the term “mental retardation” with the term “intellectual disability.” The 8 definition of intellectual disability is as follows: “Intellectual disability is characterized 9 by significant limitations both in intellectual functioning and in adaptive behavior as 10 expressed in conceptual, social, and practical adaptive skills. This disability originates 11 before age 18.” Intellectual Disability: Definition, Classification, And Systems Of 12 Supports (“AAIDD 2010”) (11th ed. 2010) at 3. 13 The American Psychiatric Association utilizes a definition that is “similar” to 14 the AAMR’s 1992 definition, Atkins, 536 U.S. at 309, n.3, 122 S. Ct. at 2245 n.3, and 15 defines mental retardation as: 16 [S]ignificantly subaverage general intellectual functioning (Criterion A), 17 that is accompanied by significant limitations in adaptive functioning in at 18 least two of the following skill areas: communication, self-care, home 19 living, social interpersonal skills, use of community resources, self- 20 direction, functional academic skills, work, leisure, health and safety 21 (Criterion B). The onset must occur before age 18 years (Criterion C). 22 Diagnostic And Statistical Manual Of Mental Disorders (4th ed. 2000) (“DSM-IV- 23 TR”) at 41. 24 The Court in Atkins left it to the states to “develop[] appropriate ways to enforce 25 the constitutional restriction upon [their] execution of sentences.” 536 U.S. at 317, 122 26 S. Ct. at 2250. In response to Atkins, the California Legislature enacted California 27 Penal Code Section 1376(a), which provides that the term mentally retarded means 28 “the condition of significantly subaverage general intellectual functioning existing 232 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 concurrently with deficits in adaptive behavior and manifested before the age of 18.” 2 Cal. Penal Code § 1376(a) (West 2011). 1. 3 Petitioner Has Significantly Subaverage Intellectual Functioning. 4 Petitioner has been administered IQ tests approximately eight times, at ages 6, 9, 5 16, 20, 21, 30, 37, and 46. The Full Scale IQ (FSIQ) scores, before adjustment for the 6 Flynn effect50 are 68, 87, 84, Low/Normal, 79, 87, 77, 75. When adjusted for the 7 Flynn effect, the scores are 65, 80, 77, 78, 76, 75, all placing petitioner in the 8 borderline mentally retarded range of functioning. Test Date Given FSIQ 9 10 Date of Publication Flynn Adjusted IQ Stanford Binet 03/31/1971 68 1960 65 Wechsler Intelligence Scale for Children (WISC) 02/22/1974 87 1949 79.8 Wechsler Adult Intelligence Scale (WAIS) 04/21/1981 84 1955 76.8 05/02/1985 Low/ Normal 1962 Unknown 17 Ammons Picture Vocabulary Test of Intelligence 18 Shipley Hartford51 12/20/1985 79 Unknown Unknown 19 Ammons Quick Test of 11/12/1994 87 1962 77.4 11 12 13 14 15 16 20 50 21 22 23 24 25 26 27 28 The Flynn effect accounts for the increase in IQ scores over time that result when older tests are used. In the United States, this increase is approximately 0.3 points per year, or 3 IQ points every 10 years. See generally James R. Flynn, The Mean IQ of Americans: Massive Gains 1932 to 1978, Psychological Bulletin 95, 29-51 (1984); James R. Flynn, Massive IQ gains in 14 Nations: What IQ Tests Really Measure, Psychological Bulletin 101: 171-191 (1987); Flynn, J. R.. IQ Gains Over Time, Encyclopedia of Human Intelligence 617-23 (R. J. Sternberg ed. New York MacMillan 1994); Flynn, J. R. Searching for Justice: The Discovery of IQ Gains Over Time, American Psychologist 54, 5-20 (1999). 51 The Shipley Hartford tests were developed as brief screening tests for organic brain damage, but have been used as a rough estimate of functional intelligence. It is unclear which test was administered to petitioner. 233 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Test Date Given FSIQ 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Date of Publication Flynn Adjusted IQ Intelligence WAIS III 06/25/2002 77 1997 75.5 WAIS IV 06/30/2010 75 2008 75 Toward the end of first grade, petitioner was tested and found to have a full scale IQ score of 68 on the Stanford Binet, and was placed in the Educably Mentally Retarded (EMR) program at Hyde Park Elementary School. (NOL C2 Ex. 50 at 1103.) After three years in the EMR program, petitioner was found ineligible to continue receiving special education services, based solely on his IQ score of 87 on the WISC. (NOL C2 Ex. 130 at 2600.) Petitioner did not earn enough credits to graduate from junior high school, and received a special transfer to senior high school. (NOL C2 Ex 125 at 2554.) During his sophomore year at El Camino High School, petitioner was re-referred for special education services. Petitioner was administered the WAIS in April 1981, and scored an IQ of 84. At Crenshaw High School during the first semester of eleventh grade, petitioner had all his classes in the Educationally Handicapped (EH) program. (NOL C2 Ex. 125 at 2556.) When he transferred to Workman High for the second semester of eleventh grade, he had four remedial classes and two non-academic classes. (Id at 2557.) Petitioner returned to the EH program at Crenshaw for twelfth grade, but dropped out of school before graduating. Petitioner’s performance on the WAIS IV placed his overall level of intellectual ability within the borderline range. These findings indicate that petitioner functions intellectually at a level below 95 percent of the population. Significant limitations in intellectual functioning are met by “an IQ score that is approximately two standard deviations below the mean, considering the standard of error of measurement for the specific assessment instruments used and the instruments’ strengths and limitations.” AAIDD 2010 at 6. The DSM-IV-TR notes that “there is a measurement error of approximately 5 points in assessing IQ, although this may vary from instrument to instrument (e.g., a Wechsler IQ of 70 is considered to represent a range of 65-75).” 234 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 DSM-IV-TR at 41. As a result, petitioner’s Full Scale IQ score of 75 means that, with 2 a 95 percent degree of confidence, his true IQ will fall within the range of scores 3 between 70 and 80. Petitioner thus meets the first criterion for an intellectual disability 4 as his general intellectual functioning is significantly subaverage. 2. 5 Petitioner Has Significant Deficits in Adaptive Behavioral Skills. 6 Adaptive behavior is defined as, “the collection of conceptual, social and 7 practical skills that have been learned and are performed by people in their everyday 8 lives.” AAIDD 2010 at 15. These three skill types are further characterized as 9 follows: 10 • number concepts; and self-direction. 11 12 Conceptual skills: language; reading and writing; money, time, and • Social skills: interpersonal skills, social responsibility, self-esteem, 13 gullibility, naïveté (i.e., wariness), follows rules/obey laws, avoids 14 being victimized, and social problem solving. 15 • Practical skills: activities of daily living (personal care), occupational 16 skills, use of money, safety, travel/transportation, schedules/routines, 17 and use of the telephone. 18 Id. at 44. In a retrospective assessment of mental retardation, among other things, it is 19 essential to conduct a thorough social history; conduct a thorough review of school 20 records; and use multiple informants in assessing adaptive behavior. User’s Guide: 21 Mental Retardation: Definition, Classification, and Systems of Supports – 10th Edition 22 (AAIDD 2007) at 18-20. 23 Petitioner’s social history reveals that his subaverage intellectual functioning is 24 not an isolated case within his family. Almost all of his siblings attended special 25 education classes. (NOL C2 Ex. 16 at 144; NOL C2 Ex. 132 at 2642; NOL C2 Ex. 54; 26 NOL C2 Ex. 57; NOL C2 Ex. 66; NOL C2 Ex. 119.) They too exhibited problems in 27 adaptive behavior, including an inability to live independently, find and hold a job, or 28 keep an apartment on their own without assistance from a parent or friend. (NOL C2 235 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Ex. 124 at 2548; NOL C2 Ex. 8 at 90; NOL C2 Ex. 146 at 2716.) Petitioner’s mother 2 was intellectually disabled as well; twice during high school she received full scale IQ 3 scores of 61. (NOL C2 Ex. 69 at 1498.) Petitioner’s mother also suffered severe 4 limitations in her adaptive functioning: Joyce could not tell time on an analog clock 5 (NOL C2 Ex. 147 at 2719), and was illiterate (NOL C2 Ex. 142 at 2698; NOL C2 Ex. 6 143 at 2701.) Like petitioner, Joyce never held a job for any length of time, and most 7 of the time she did not work at all. (NOL C2 Ex. 142 at 2698; NOL C2 Ex.143 at 8 2701; NOL C2 Ex. 123 at 2488; NOL C2 Ex. 16 at 157.) She was constantly involved 9 in car accidents because she was unable to learn and apply the tasks required to drive a 10 car safely. (NOL C2 Ex. 124 at 2528-29.) 11 Numerous lay witnesses and childhood friends observed petitioner’s limitations 12 in adaptive behavior and functioning from an early age. Friends noticed problems in 13 petitioner’s speech pattern (NOL C2 Ex. 148 at 2727; NOL C2 Ex. 149 at 2728), his 14 poor communication skills, and his genuine difficulty in initiating conversation or 15 expressing abstract emotional concepts (NOL C2 Ex. 16 at 149; NOL C2 Ex. 132 at 16 2636; NOL C2 Ex. 143 at 2703; NOL C2 Ex. 147 at 2722; NOL C2 Ex. 151 at 2736; 17 NOL C2 Ex. 152 at 2741); and his inability to learn from the experience of mistakes 18 (NOL C2 Ex. 124 at 2508; NOL C2 Ex 2 at 15). 19 Witnesses describe petitioner’s immaturity at various stages of his development. 20 (E.g., Ex. 123 at 2491-92; NOL C2 Ex. 143 at 2703; NOL C2 Ex. 124 at 2541.) 21 Petitioner had difficulty picking up on spoken and unspoken cues, and lacked the 22 capacity to understand the reactions of others or protect himself from threats. (NOL 23 C2 Ex. 132 at 2637-38; NOL C2 Ex. 19 at 207; NOL C2 Ex. 178 at 3116-17; NOL C2 24 Ex. 16 at 147-48). 25 Petitioner was unable to complete simple errands. For example, when his father 26 gave him money to give to his mother, petitioner forgot why he had the money and 27 spent it. On returning home, his father asked about the money, and petitioner had to 28 admit that he had forgotten that the money was for his mother. (NOL C2 Ex. 178 at 236 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 3132.) Since he had problems with simple math and counting, he could not count 2 money and make change. When he went to the store, someone had to accompany him 3 to ensure he received the correct change. (NOL C2 Ex. 16 at 145.) Even petitioner’s 4 mother recognized his limitations; she depended on petitioner’s brother to purchase 5 items at the corner store instead of sending petitioner. (NOL C2 Ex. 155 at 2766.) 6 As he grew older, petitioner displayed his inability to live independently. (NOL 7 C2 Ex. 16 at 166; Ex. 189 at 3400.) Long after his other siblings had fled his mother’s 8 house, petitioner remained, unable to fend for himself. Numerous witnesses noted that 9 petitioner spent a lot of time inside his homes, rather than venturing out into the world. 10 This was true at his mother’s house, and even when he lived with other relatives. 11 (NOL C2 Ex. 147 at 2723; NOL C2 Ex. 16 at 150, 174-75; NOL C2 Ex. 142 at 2698- 12 99.) The only known time he lived alone was for a brief period when he lived in the 13 garage behind Mrs. Harris’s home. 14 Petitioner had no stable employment history, and most of the time held no job at 15 all. Petitioner could perform very simple, unskilled tasks, but was unable to develop 16 any special skills, and never was entrusted with more complicated tasks. (NOL C2 Ex. 17 10 at 97; NOL C2 Ex. 21 at 226.) Petitioner’s inability to obtain even non-skilled 18 employment was a frequent and contentious issue between him and his girlfriend, 19 Glynnis Harris; she reports that she had to help him fill out one or more job 20 applications because he could not do so by himself. 21 Petitioner liked to take mechanical items apart, but he could not put them back 22 together. When he lived with his sister Gloria as a young adult, he took her television 23 apart and it never worked again. (NOL C2 Ex. 124 at 2539.) (NOL C2 Ex. 14 at 136.) 24 Deeply concerned over how others perceive him (NOL C2 Ex. 154 at 2751), 25 petitioner has engaged in behaviors, typically referred to as “masking” behaviors, 26 designed to hide his shortcomings. Throughout his life, he has been eager to please, 27 reluctant to disagree with others, and preferred to be the listener, rather than the talker. 28 (NOL C2 Ex. 141 at 2697; Ex. 147 at 2722; NOL C2 Ex. 16 at 148-49; NOL C2 Ex. 237 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 152 at 2742.) He consistently avoided challenging environments, such as large groups 2 of people, interactions with strangers, as well as the intimidating environment of 3 school. (NOL C2 Ex. 148 at 2726; NOL C2 Ex. 151 at 2735; NOL C2 Ex. 132 at 4 2638; NOL C2 Ex. 134 at 2651; NOL C2 Ex. 123 at 2497; NOL C2 Ex. 14 at 134.) 5 Petitioner’s school records confirm lay witnesses’ descriptions of petitioner’s 6 disabilities. When petitioner was first assessed for placement in the EMR program at 7 Hyde Park Elementary school, he had limited language skills and some difficulty 8 following directions. 9 comprehension, visual memory, perceptual discrimination, spatial relationships and He displayed weaknesses in vocabulary, description and 10 psychomotor coordination. (NOL C2 Ex. 125 at 2553.) He had difficulty 11 communicating and playing with his peers, and did not work well in groups. (Id. at 12 2552; Ex. 51 at 1159.) A Wide Range Achievement Test (WRAT) was administered 13 at the same time as the Stanford Binet. A review of the test data reveals that petitioner 14 appeared to have difficulty writing the letters of the alphabet, did not know most 15 beginning consonant sounds, and had difficulty recognizing very basic sight words, 16 such as cat or dog. (NOL C2 Ex. 125 at 2552; Ex. 130 at 2599.) His low ratings on 17 the behavior scales indicated problems with making appropriate decisions, caring for 18 self, and responding age appropriately to social situations. (NOL C2 Ex. 130 at 2599.) 19 Although chronologically petitioner should have been functioning at a first grade level, 20 his reading was at a mid-kindergarten level (GE K6), spelling was at a beginning first 21 grade level (GE 1.1), and his arithmetic was at a beginning kindergarten level (GE 22 K.2). (NOL C2 Ex. 50 at 1103; NOL C2 Ex. 51 at 1158, 1161, 1162; NOL C2 Ex. 125 23 at 2552-53.) Petitioner achieved modest success in the EMR program, learning to read 24 at a second grade level. (NOL C2 Ex. 125 at 2553; Ex. 50 at 1105.) 25 At the time of his triennial assessment in February 1974, petitioner was given a 26 battery of tests. His academic skills were two years below his expected fourth grade 27 level: both reading and spelling were at a low second grade level and arithmetic was at 28 a high second grade level. (NOL C2 Ex. 51 at 1163-64, Ex. 125 at 2553.) Despite his 238 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 obvious subaverage performance, however, based on his IQ score, he was returned to 2 regular class although he continued to receive remedial reading in fifth and sixth grade. 3 (NOL C2 Ex. 125 at 2554.) While petitioner was eligible to have been placed in fifth 4 grade when he exited the EMR program, he was retained in the fourth grade. (NOL 5 C2 Ex. 125 at 2553.) As soon as he returned to the regular class, petitioner once again 6 began to experience academic difficulties and was unable to conform his behavior to 7 the larger class setting. (Id.; Ex. 50 at 1106.) By the sixth grade, he was markedly 8 below average in all academic subjects which seemed to cause him a great deal of 9 frustration. (NOL C2 Ex. 50 at 1106; Ex. 125 at 2554.) 10 Petitioner was bussed to El Camino High School for tenth grade. In the first 11 semester, he passed only two classes. In March 1981 at El Camino High School, 12 petitioner’s academic achievement was once again assessed using a battery of tests. 13 Petitioner was found to be performing between a third and sixth grade level. The 14 results of the Peabody Individual Achievement (PIAT) showed that petitioner’s 15 general information was at a sixth grade level (GE 6.3); Mathematics (reasoning) (GE 16 4.2) Reading Recognition (GE 4.1), and Reading Comprehension (GE 4.4) were at a 17 fourth grade level (GE 4.2); and Spelling (recognition) (GE 3.8) was at a third grade 18 level. On the WRAT, petitioner’s academic skills ranged from the second to fifth 19 grade level: Reading (sight words) (GE 5.2); Spelling (recall) (GE 3.3); Arithmetic 20 (computation) (GE 2.3). (NOL C2 Ex. 125 at 2556; NOL C2 Ex. 51 at 1154.) The 21 instructional goals on his Individualized Education Plan (IEP) were to master functions 22 of addition, subtraction, multiplication and division; to read a paragraph silently and 23 answer comprehension questions; and to write sentences with correct structure, 24 spelling, punctuation and grammar. (NOL C2 Ex. 51 at 1152.) Petitioner also was 25 assessed to have “poor expressive and receptive language.” (NOL C2 Ex. 51 at 1155.) 26 At this time, petitioner was found to meet eligibility criteria for Learning Disability. 27 (NOL C2 Ex. 125 at 2556.) 28 239 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 At Crenshaw High School in the first semester of eleventh grade, all of his 2 classes were in the Educationally Handicapped program. (NOL C2 Ex. 52 at 1168; Ex. 3 125 at 2556) Petitioner attended Workman High School for the second semester where 4 he had four remedial classes and two non-academic classes. He received the following 5 grades: reading (NM), math (D-), language (F), history (B), auto shop (F) and track 6 (A). (NOL C2 Ex. 52 at 1168). Petitioner returned to Crenshaw for twelfth grade, but 7 never graduated. 8 9 Various mental health professionals have also documented petitioner’s impairments through testing and evaluation. Petitioner has basic problems 10 understanding and processing information, and fundamental problems with judgment 11 and impulse control. (NOL C2 Ex. 178 at 3154-57.) Some of petitioner’s more 12 marked deficits include problems with memory, attention, and concentration. 13 Petitioner also exhibits deficits in judgment, self-awareness, misperception of social 14 expectations, problem-solving abilities, planning, organizing and sequencing. (NOL 15 C2 Ex. 175 at 3064-66.) Petitioner exhibits little ability to engage in abstract thinking. 16 (NOL C2 Ex. 175 at 3065-66; NOL C2 Ex. 154 at 2761; NOL C2 Ex. 178 at 3155.) 17 18 3. The Onset of Petitioner’s Significantly Subaverage Intellectual Functioning Occurred Before Age Eighteen. 19 In addition to testing in the mentally retarded and borderline mentally retarded 20 range of functioning during elementary school and high school, petitioner’s deficits 21 were evident long before he turned eighteen. The Eighth Amendment, therefore, 22 prohibits his execution. Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242. 23 24 B. Petitioner Is Ineligible for the Death Penalty Because He Is Mentally Ill and Suffers From Organic Brain Damage. 25 Apart from petitioner’s intellectual disability, the reasoning and logic of Atkins 26 applies to petitioner, whose mental impairments render him volitionally incapacitated. 27 When the Supreme Court concluded that mentally retarded murderers are categorically 28 so lacking in moral blameworthiness as to be ineligible for the death penalty, its 240 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 rationale for doing so compels the conclusion that the volitionally incapacitated are 2 likewise ineligible. The Court noted the obvious cognitive limitations of the retarded, 3 but also stressed their “diminished capacit[y] . . . to control impulses,” and the 4 “abundant evidence that they often act on impulse rather than pursuant to a 5 premeditated plan,” characterizations that have even greater applicability to those who 6 because of mental illness or brain damage are completely unable to conform their 7 conduct to the requirements of the law. 536 U.S. at 318, 122 S. Ct. 2250 8 At the time of the crime, petitioner suffered from a myriad of mental 9 impairments, the most debilitating of which were psychotic disorders, including 10 schizophrenia and schizoaffective disorder. Prior to the crime, petitioner also 11 exhibited lifelong symptoms of delusional thought patterns, affective disorders, sleep 12 disorders, and the sequelae of severe trauma typically found in those suffering from 13 post-traumatic stress disorder. (See Petition ¶ P.2.) The unrebutted testimony at trial 14 was that, because of these mental impairments, petitioner did not have “the ability to 15 control the normal functioning self.” (30 RT 4435; see also id. 4465; 4466-67.) 16 Indeed, as a result of his mental illness, petitioner was incapable of controlling his 17 behavior, forming intent to commit the crimes, or otherwise modulate his behavior to 18 conform to the law. Each of the psychiatrists who conducted a thorough evaluation of 19 petitioner—whether those evaluations occurred near the time of the crime or more 20 recently—agree that petitioner was not in control of his actions or behavior at the time 21 of the crime. (NOL C2 Ex. 154 at 2754-55; NOL C2 Ex. 178 at 3155-57.) 22 The Court in Atkins also noted the particular danger that a mentally retarded 23 person’s demeanor “may create an unwarranted impression of lack of remorse for their 24 crimes,” which could enhance the likelihood that the jury will impose the death penalty 25 due to a belief that they pose a future danger. 536 U.S. at 321, 122 S. Ct. at 2252. 26 Petitioner faced this risk as a result of his mental illness because one of his central 27 defense mechanisms to trauma is his dissociation; often he appears to others with a flat 28 affect, a lack of expression or emotion, or “frozen,” as if he is unaware or uninterested 241 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 in the world around him. (NOL C2 Ex. 1 at 2; NOL C2 Ex. 10 at 97; NOL C2 Ex. 131 2 at 2615; NOL C2 Ex. 16 at 146; NOL C2 Ex. 124 at 2530; NOL C2 Ex. 147 at 2722.) 3 Moreover, he experienced such dissociation during his trial. (NOL C2 Ex. 144 at 4 2707.) This demeanor may easily be mistaken for a lack of remorse, and is the type of 5 mistaken and prejudicial impression of the jury Atkins is designed to prevent. 6 Petitioner’s jury noticed his demeanor, noting that he had a faraway look in his eyes, 7 and that his expression was the same throughout the trial. (NOL C2 Ex. 138 at 2689.) 8 In addition to severe mental illness, petitioner suffers from severe brain 9 dysfunctions suggestive of significant damage to petitioner’s frontal and parietal lobes 10 and corpus callosum. (NOL C2 Ex. 175 at 3075-76.) As indicated by his extremely 11 poor performance during neuropsychological testing, “Mr. Jones suffers from such 12 severe brain damage that he is unable to function at the same level as 99 percent of 13 those in his age category.” (NOL C2 Ex. 175 at 3072.) Frontal lobe damage has 14 produced cognitive rigidity, distorted perception, and an inability to inhibit unwanted 15 responses. In addition, damage to the frontal and temporal lobes, and resulting deficits 16 in memory and attention, make it difficult for petitioner to respond flexibly to new 17 situations, particularly when he is under the influence of drugs or alcohol. (NOL C2 18 Ex. 175 at 3076.) Demyelination in petitioner’s corpus callosum means that the 19 coordination of communication between different parts of petitioner’s brain is 20 deficient, and exacerbates his other deficits. (Id.) 21 Petitioner’s organic brain impairment is longstanding and developed early in 22 life. Petitioner’s mother drank excessively and smoked while pregnant with him. 23 (NOL C2 Ex. 124 at 2501; NOL C2 Ex. 4 at 55; NOL C2 Ex. 18 at 195.) After birth, 24 petitioner suffered numerous head injuries as a result of physical abuse and accidents, 25 many before he was of school age. (NOL C2 Ex. 124 at 2512; NOL C2 Ex. 29 at 345; 26 NOL C2 Ex. 16 at 147-48; NOL C2 Ex. 124 at 2511, 2512.) 27 experienced extended periods of malnutrition and neglect. 28 without food due to his parents’ alcoholism, when they either forgot to buy food or Petitioner also Petitioner often went 242 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 spent all their money on alcohol. (NOL C2 Ex. 124 at 2505, 2512; NOL C2 Ex. 123 at 2 2488; NOL C2 Ex. 131 at 2610; NOL C2 Ex. 147 at 2719; NOL C2 Ex. 155 at 2769; 3 NOL C2 Ex. 126 at 2560; NOL C2 Ex. 156 at 2778.) Similarly, petitioner’s mother 4 and father were uninterested in their children, rarely if ever giving them attention, 5 unless it was to punish them. (NOL C2 Ex. 124 at 2504-05; NOL C2 Ex. 123 at 2483; 6 NOL C2 Ex. 129 at 2583; NOL C2 Ex. 146 at 2714; NOL C2 Ex. 18 at 198; NOL C2 7 Ex. 135 at 2659; NOL C2 Ex. 21 at 221.) 8 As a child, petitioner exhibited classic signs of organic brain impairment. He 9 was a clumsy little boy, always running or bumping into things, had speech problems, 10 limited language skills, and problems with auditory processing, and was often unable 11 to understand what was being said to him or to follow instructions. (NOL C2 Ex. 16 at 12 146; NOL C2 Ex. 148 at 2727; see also NOL C2 Ex. 149 at 2728; NOL C2 Ex. 125 at 13 2552-53; NOL C2 Ex. 50 at 1103; NOL C2 Ex. 51 at 1158; NOL C2 Ex. 124 at 2518; 14 NOL C2 Ex. 178 at 3132.) 15 neuropsychological assessment at the time of trial, there was evidence of the cognitive 16 rigidity, deficits in abstract reasoning, and perseveration revealed by previous 17 psychological testing. Petitioner was administered a personality test, the Minnesota 18 Multiphasic Personality Inventory, after the incident involving Mrs. Harris. 19 psychologist who administered the testing noted that petitioner was a very concrete 20 individual, had great difficulty with abstract ideas, and functioned best under 21 structured conditions. (30 RT 4419.) Dr. Thomas, who examined petitioner at the 22 time of trial, similarly observed symptoms of organic brain impairment: Petitioner 23 exhibited memory impairments, concrete thinking, and an inability to shift topics. 24 (NOL C2 Ex. 154 at 2761.) Although petitioner was not given a complete The 25 Petitioner’s organic brain damage and resulting impairment directly affected his 26 behavior, functioning, and personality for most of his life and the behavior for which 27 he was convicted. (NOL C2 Ex. 175 at 3076.) This type of brain damage, coupled 28 with petitioner’s severe mental illness, and drug and alcohol intake on the day of the 243 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 crime, meant that petitioner was incapable of controlling his behavior, forming the 2 specific intent to commit the crimes, or otherwise modulating his behavior to conform 3 to the law. 4 Apart from the Court’s decision and reasoning in Atkins, petitioner’s mental 5 impairments equally prevent the carrying out his death sentence because his moral 6 culpability for the crimes is thereby substantially diminished, making his death verdict 7 unlawfully disproportionate to his actual, personal responsibility for the crimes. A 8 sentence that is “grossly out of proportion to the severity of the crime” violates the 9 Eighth Amendment. Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925, 49 L. 10 Ed. 2d 859 (1972) (joint opinion of Stewart, Powell and Stevens, JJ.). Here again, 11 because during the time of the crime petitioner was neither able to control his conduct, 12 nor intended the crimes for which he was convicted and sentenced to death (see NOL 13 C2 Ex. 154 at 2754-55; NOL C2 Ex. 178 at 3155-57), and was unable to plan, 14 organize, initiate, regulate, or monitor his behavior (NOL C2 Ex. 175 at 3065-66, 15 3069), petitioner’s execution is barred by the Eighth Amendment’s requirement of 16 proportionality. 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 244 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 X. PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING ON 2 CLAIM TWENTY-FOUR: CALIFORNIA’S DEATH PENALTY STATUTE 3 FAILS TO NARROW THE CLASS OF PEOPLE ELIGIBLE FOR THE 4 DEATH PENALTY. 5 The Petition sets forth detailed factual allegations at pages 394 to 401 that 6 petitioner’s death sentence is unconstitutional because it was imposed pursuant to the 7 statute that fails to comport with the Eighth Amendment’s requirement that a state's 8 capital sentencing scheme genuinely narrow the class of persons eligible for the death 9 penalty. 10 To comport with the Eighth Amendment, a death penalty statute must, by 11 rational and objective criteria, genuinely narrow the group of murderers who may be 12 subject to the death penalty, Zant v. Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733, 13 2742, 77 L. Ed. 2d 235 (1983); Gregg v. Georgia, 428 U.S. 153, 189, 96 S. Ct. 2909, 14 2932, 49 L. Ed. 2d 859 (1976) (plurality opinion); see also Furman v. Georgia, 408 15 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and cannot wantonly and freakishly 16 choose a few persons for the ultimate sanction from among the thousands of 17 prosecuted murderers. Furman, 408 U.S. at 309-10, 96 S. Ct. at 2762 (Opinion of 18 Justice Stewart). The United States Supreme Court consistently has held that the 19 Eighth Amendment requires that capital punishment statutes meet two obligations: 20 death-penalty statutes must “genuinely narrow” the subclass of offenders who can be 21 subjected to a sentence of death at the election of prosecutors and juries,52 and a death 22 penalty statute may not permit the wanton and freakish application of the ultimate 23 sentence on a small percentage of death-eligible defendants. See, e.g., Gregg, 428 U.S. 24 25 26 27 28 52 See, e.g., Gregg, 428 U.S. at 188-89, 96 S. Ct. at 2932-33; Zant, 462 U.S. at 877, 103 S. Ct. at 2742; Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S. Ct. 546, 554, 98 L. Ed. 2d 568 (1988); Arave v. Creech, 507 U.S. 463, 474, 113 S. Ct. 1534, 1542, 123 L. Ed. 2d 188 (1993); Atkins v. Virginia, 536 U.S. 304, 319-20, 122 S. Ct. 2242, 2251-52, 153 L. Ed. 2d 335 (2002); Roper v. Simmons, 543 U.S. 551, 568-69, 125 S. Ct. 1183, 1194-95, 161 L. Ed. 2d 1 (2005). 245 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 at 182 n.26 (plurality opinion) (“It has been estimated that before Furman less than 20 2 percent of those convicted of murder were sentenced to death in those states that 3 authorized capital punishment.”); id. at 222 (White, J. concurring) (if juries “impose 4 the death penalty in a substantial portion of the cases so defined . . . it can no longer be 5 said that the penalty is being imposed wantonly and freakishly or so infrequently that it 6 loses its usefulness as a sentencing device”); Furman, 408 U.S. at 309-10, 92 S. Ct. at 7 2762 (opinion of Justice Stewart)). 8 Contrary to this constitutional mandate, the California death penalty statute was 9 designed without regard to any limitation as to its scope or narrowing considerations. 10 (See, e.g., NOL C2 Ex. 187 at 3329-51.) Indeed, the statute is so broad as to permit 11 ninety-five percent of first-degree murders to be charged capitally. (Declaration of 12 David Baldus, Ex. F.) Under such circumstances, California’s death penalty statute 13 fails to genuinely narrow the class of persons eligible for the death penalty and to 14 reasonably justify the imposition of a more severe sentence upon petitioner, as 15 compared to others found guilty of murder, thus rendering petitioner’s death sentence 16 freakish, wanton, arbitrary, and capricious. 17 Respondent has failed to admit or deny any of the facts alleged in the Petition. 18 (See, e.g., Doc. 28, filed Apr. 6, 2010 at 4 (“Respondent denies, or lacks sufficient 19 knowledge to admit or deny, every factual allegation made in support of Petitioner’s 20 thirty claims for relief (including all subclaims)”.) Petitioner, therefore, requests an 21 evidentiary hearing on this claim, since respondent has placed at issue all facts upon 22 which it relies.53 23 24 25 26 27 28 53 The question of whether California’s capital sentencing scheme genuinely and constitutionally narrows the class of death eligible offenders is currently in litigation in federal court. See, e.g., Ashmus v. Wong, No. 3:93-cv-00594-TEH (N.D. Cal. filed Feb. 17, 1993); Riel v. Ayres, No. 2:01-cv-00507-LKK-KJM (E.D. Cal. Filed Mar. 14, 2001); Frye v. Ayers, No. 2:99-cv-00628-LKK-KJM (E.D. Cal. Mar. 29, 1999). The evidentiary hearing in Ashmus has been completed and briefing is scheduled to be completed by July 1, 2011. 246 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 At an evidentiary hearing, to prove the factual allegations that California’s death 2 penalty statute unconstitutionally fails to perform its narrow functioning, petitioner 3 will present evidence in support of the following: 4 A. The California Death Penalty Statute Was Enacted and Amended Without Regard to Eighth Amendment Requirements. 5 6 In 1977, the California Legislature enacted a death penalty statute, in which one 7 of twelve special circumstances had to be proved beyond a reasonable doubt to make a 8 murderer death eligible. 1977 Cal. Stat. 1255-66. 9 eligibility was to be the exception rather than the rule. The 1977 law was superseded 10 in 1978 by the enactment of Proposition 7, known as the “Briggs Initiative,” the statute 11 under which petitioner was tried and convicted in 1995. 12 objective of the Briggs Initiative was to make the law as broad and inclusive as 13 possible. 14 Regarding California’s Death Penalty Statutes, Ex. M, at 708, 826-27, 878-91, 920-21, 15 1228-43, 1257; News Articles Regarding Death Penalty Statutes, Ex. N, at 1535, 1539, 16 1547, 1550, 1552, 1559-60, 1563, 1565, 1572, 1579-80, 1582-83, 1585, 1596, 1654- 17 55, 1666-67.) The statute was intended to “apply to all homicides committed while the 18 defendant was engaged in, or was an accomplice in, the commission of, the attempted 19 commission of, or the immediate flight after, committing or attempting to commit 20 serious felonies, as well as all willful and intentional homicides,” including all first 21 degree murders as then defined by California Penal Code section 189. (Declaration of 22 Donald H. Heller, Ex. J at 262-63.) The Briggs Initiative achieved this result first, by 23 expanding the scope of California Penal Code section 190.2 to more than double the 24 number of special circumstances compared to the prior law, and second, by 25 substantially broadening the definitions of the prior law’s special circumstances, most 26 significantly by eliminating the across-the-board homicide mens rea requirement of the 27 1977 law. (NOL C2 Ex. 187 at 3333.) Indeed, under the Briggs Initiative, the Under the 1977 statute, death The drafter’s express (NOL C2 Ex. 185 at 3314-15; see also Legislative History Material 28 247 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 majority of the special circumstances in section 190.2 have no homicide mens rea 2 requirement for the actual killer. 3 Legislative amendments and this Court’s jurisprudence have further extended 4 the statute’s reach since its enactment. (Declaration of Gerald F. Uelman, Ex. I at 230- 5 32.) At the time of the crime for which petitioner was charged was committed, 6 California Penal Code section 190.2 contained twenty-six different crimes punishable 7 by death.54 8 California’s death penalty statute contains none of the measured restrictions in its 9 application required by the Eighth Amendment. Professor Gerald F. Uelman, who 10 provided expert testimony before the United States District Court in Ashmus, 11 concluded: As a result of the original drafting and subsequent amendments, 12 After following and studying the enactment, amendment, litigation and 13 interpretation of the California death penalty law for the past 39 years, I 14 have concluded that the California death penalty law imposes no 15 meaningful limitations on the broad discretion of prosecutors and juries to 16 seek and impose the death penalty for first degree murders in California. 17 There is nothing “special” about the special circumstances in California’s 18 death penalty law; they have been deliberately designed to encompass 19 nearly all first degree murders. This has resulted in widespread geographic 20 and racial disparity in the administration of California’s death penalty law. 21 (Ex. I at 245.) 22 B. California’s Death Penalty Statute Does Not Perform Constitutionally Required Narrowing. 23 24 Empirical evidence demonstrates that the overwhelming majority of murders in 25 California could be charged as capital murders and in virtually all of them, at least one 26 27 28 54 A twenty-seventh special circumstance—the “heinous, atrocious, or cruel” special circumstance, Penal Code section 190.2(a)(14)—had been invalidated previously by this court but remains in section 190.2 (Declaration of Steven F. Shatz, Ex. H, at 201 n.5.) 248 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 special circumstance could be proved. As a result, the California death penalty statute 2 fails to genuinely narrow the class of death-eligible murderers in violation of the 3 Eighth and Fourteenth Amendments, and there was, and is, no meaningful basis upon 4 which to distinguish the cases in which the death penalty is imposed, from those in 5 which it was not at the time of petitioner’s case and presently. 6 Professor David Baldus studied 27,453 first degree murder, second degree 7 murder, or voluntary manslaughter convictions in California with an offense date 8 between January 1, 1978, and June 30, 2002 (“Baldus Study”). (Declaration of David 9 Baldus, Ex. F.) The study demonstrated that the special circumstances enumerated in 10 Penal Code section 190.2 fail to perform the narrowing function required by the Eighth 11 and Fourteenth Amendments. (Id. at 48, 59.) Among persons convicted of first degree 12 murder between January 1978 and June 2002, ninety-five percent would have been 13 eligible for the death penalty based on facts of the offense under the 2008 California 14 law.55 (Id. at 59, 62 (Table 2), 81.) When the ninety-five percent death-eligibility rates 15 are compared with the one-hundred percent of first degree murders that were death 16 eligible under pre-Furman Georgia law, the resulting five percent narrowing rate 17 confirms the inability of California law to constitutionally limit death eligibility in 18 accordance with Furman and its progeny. (Id. at 62, 16.) Among persons convicted of 19 first degree murder, second degree murder, and voluntary manslaughter between 20 21 22 23 24 25 26 27 28 55 For purposes of the Baldus Study, death eligibility was determined according to the law in place as of January 1, 2008 and during the so-called Carlos Window. (Id. at 57, 60 (Table 1).) The Carlos Window refers to the time period governed by the California Supreme Court’s decision in Carlos v. Superior Court, 35 Cal. 3d 131, 197 Cal. Rptr. 79 (1983), which held that the robbery felony murder special circumstance (Penal Code section 190.2(a)(17)(i)) required proof that the defendant had the intent to kill or to aid in a killing. In People v. Anderson, 43 Cal. 3d 1104, 240 Cal. Rptr. 585 (1987), the Court overturned Carlos, holding that intent to kill is not a requirement to find a felony murder special circumstance for a person who is the actual killer. Carlos applies to murders committed between December 2, 1983, and October 13, 1987, the dates of the Carlos and Anderson opinions. The offense for which petitioner was charged did not occur during the Carlos window. 249 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 January 1978 and June 2002, fifty-nine percent would have been eligible under the 2 2008 law, and fifty-five percent under the Carlos Window. (Id. at 59-60.) The Baldus 3 Study establishes that California’s death sentencing rate, or the rate at which persons 4 that were factually eligible for the death penalty and actually received a death 5 sentence, was 4.6 percent. (Id. at 73, 74 (Fig. 2), 75 (Table 5), 77-81.) For those 6 convicted of first-degree murder and whose crimes were factually eligible for a death 7 sentence, the death-sentencing rate is 8.7 percent. (Id. at 79.) 8 Two studies conducted by Steven F. Shatz, a Professor at the University of San 9 Francisco School of Law, confirm Professor Baldus’s findings. (Ex. H.) The results 10 from Professor Shatz’s studies verify that the overwhelming majority of murders in 11 California could be charged as capital murders and in virtually all of them, at least one 12 special circumstance could be proved. (Id. at 206-17.) Professor Shatz’s studies also 13 demonstrate that California’s death sentencing rate falls below the fifteen to twenty 14 percent rate deemed unconstitutional in Furman. (Id. at 200, 216-17.) 15 The studies of Professors Baldus and Shatz independently confirm other each 16 because of their strikingly similar statistical results. For example, when Professor 17 Shatz excludes juveniles from both of his studies and uses 2000 California law, 91.4 18 percent of the cases in the Statewide Study and 91.5 percent of the cases in the 19 Alameda Study were death-eligible (id. at 204, 209, 212); whereas, using a different 20 data set Professor Baldus found a death-eligibility rate of ninety-five percent (Ex. F at 21 59, 62 (Table 2), 81.) The nearly identical rates obtained using differing sources of 22 information—appellate decisions, court files, and data from the California Department 23 of Corrections and Rehabilitation—serve to confirm the accuracy of Professors 24 Baldus’s and Shatz’s statistical findings. 25 Several measures demonstrate that no other state possesses a death penalty 26 statutory scheme as broad as California’s or its astronomical death eligibility rate 27 among California homicides. First, the rate of death eligibility among California 28 homicides is by far the highest among death penalty jurisdictions. (Ex. F at 71-73.) 250 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 Second, California’s death-eligibility rate is so much higher than any other death 2 penalty jurisdiction, that it can be described as a statistical outlier. (Id.; Amended 3 Declaration of George Woodworth, Ph.D., Ex. G, at 174-78.) Third, the rate at which 4 California’s death penalty statute narrows death-eligibility from pre-Furman Georgia 5 law to 2008 California law, is far lower than similar rates for other states. (Ex. F at 81- 6 82.) 7 Petitioner has made a colorable showing that the present death penalty law in 8 California is unconstitutional because it is truly a “wanton and freakish” system that 9 randomly chooses a few victims for the ultimate sanction from among the thousands of 10 murderers in California. Earp v. Ornoski, 431 F.3d at 1170. Petitioner specifically 11 requests that this Court order an evidentiary hearing on this claim, or, in the 12 alternative, allow the record and future findings in Ashmus v. Wong, 3:93-CV-00594 13 TEH (N.D. Cal) to be accepted as part of petitioner’s evidentiary proffer for this claim. 14 CONCLUSION 15 16 17 18 For these reasons, this Court should grant petitioner’s Motion for An Evidentiary Hearing. Dated: February 17, 2011 Respectfully submitted, 19 HABEAS CORPUS RESOURCE CENTER 20 21 By: 22 23 By: 24 25 By: 26 27 /s/ Michael Laurence Michael Laurence /s/ Patricia Daniels Patricia Daniels /s/ Cliona Plunkett Cliona Plunkett Attorneys for Petitioner Ernest Dewayne Jones 28 251 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 252 MOTION FOR AN EVIDENTARY HEARING CV-09-2158-CJC

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