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)
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
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San Francisco, California 94107
5 Telephone: (415) 348-3800
6 Facsimile: (415) 348-3873
Email:
docketing@hcrc.ca.gov
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mlaurence@hcrc.ca.gov
pdaniels@hcrc.ca.gov
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cplunkett@hcrc.ca.gov
9 Attorneys for Petitioner ERNEST DEWAYNE JONES
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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION
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13 ERNEST DEWAYNE JONES,
Case No. CV-09-2158-CJC
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Petitioner,
DEATH PENALTY CASE
v.
MOTION FOR AN EVIDENTIARY
HEARING
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17 VINCENT CULLEN, Warden of
California State Prison at San Quentin,
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Hearing Date To Be Determined
Respondent.
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TO: KAMALA D. HARRIS, ATTORNEY GENERAL OF THE STATE OF
CALIFORNIA, AND HERBERT S. TETEF, DEPUTY ATTORNEY
GENERAL:
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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
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By: /s/ Michael Laurence
MICHAEL LAURENCE
Attorneys for Petitioner
Ernest Dewayne Jones
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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
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12 II.
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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
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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
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K. Petitioner Is Entitled to a Hearing on Each Claim of Ineffective
Assistance to Establish Cumulative Prejudice. ............................................ 83
9
10 III.
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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
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C. Petitioner Is Entitled to an Evidentiary Hearing on the
Prosecution’s Suppression of Exculpatory Impeachment
Material. ....................................................................................................... 92
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19 IV.
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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
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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.
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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
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12 VI.
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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
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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
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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
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13 IX.
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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
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19 X.
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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
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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
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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
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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
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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.)
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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
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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
//
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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
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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
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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
//
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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
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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
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MOTION FOR AN EVIDENTARY HEARING
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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”).
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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.
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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
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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)
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(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
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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
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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
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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
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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
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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,
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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
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MOTION FOR AN EVIDENTARY HEARING
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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.”).)
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MOTION FOR AN EVIDENTARY HEARING
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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
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MOTION FOR AN EVIDENTARY HEARING
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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
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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
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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
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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
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MOTION FOR AN EVIDENTARY HEARING
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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
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MOTION FOR AN EVIDENTARY HEARING
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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.
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MOTION FOR AN EVIDENTARY HEARING
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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
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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
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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
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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.)
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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
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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
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MOTION FOR AN EVIDENTARY HEARING
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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
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11
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12
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17
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18
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19
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20
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21
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22
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23
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24
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25
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26
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27
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28
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MOTION FOR AN EVIDENTARY HEARING
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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
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MOTION FOR AN EVIDENTARY HEARING
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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
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MOTION FOR AN EVIDENTARY HEARING
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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
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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
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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.)
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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
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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
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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
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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
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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
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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
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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
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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
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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?
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MOTION FOR AN EVIDENTARY HEARING
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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.
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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
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16
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17
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18
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19
//
20
//
21
//
22
//
23
//
24
//
25
//
26
//
27
//
28
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MOTION FOR AN EVIDENTARY HEARING
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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
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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
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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.
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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
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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
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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.”
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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
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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
//
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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.
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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
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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
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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
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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
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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
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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).
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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.)
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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
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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
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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
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28
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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.
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(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
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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
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4
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5
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6
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7
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8
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9
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10
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12
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13
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27
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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
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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
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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
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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.)
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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).
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MOTION FOR AN EVIDENTARY HEARING
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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.
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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
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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.)
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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
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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
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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.)
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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
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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
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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.)
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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.)
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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
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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
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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
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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
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MOTION FOR AN EVIDENTARY HEARING
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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
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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.)
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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
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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.
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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.
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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.
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MOTION FOR AN EVIDENTARY HEARING
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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
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MOTION FOR AN EVIDENTARY HEARING
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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
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MOTION FOR AN EVIDENTARY HEARING
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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
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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.)
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MOTION FOR AN EVIDENTARY HEARING
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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
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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
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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
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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
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MOTION FOR AN EVIDENTARY HEARING
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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
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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
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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
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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
//
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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.
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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
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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
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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,
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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.
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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
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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
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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.)
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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.
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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
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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.)
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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.
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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.
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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.)
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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
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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.)
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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
//
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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).
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MOTION FOR AN EVIDENTARY HEARING
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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
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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
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MOTION FOR AN EVIDENTARY HEARING
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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
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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
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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
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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
//
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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.)
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MOTION FOR AN EVIDENTARY HEARING
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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
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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
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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 misconductdiscussing 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
deliberationsconstitutes 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
//
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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
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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
//
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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
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MOTION FOR AN EVIDENTARY HEARING
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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.
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MOTION FOR AN EVIDENTARY HEARING
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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
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MOTION FOR AN EVIDENTARY HEARING
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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.
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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).”
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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
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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
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MOTION FOR AN EVIDENTARY HEARING
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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.
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MOTION FOR AN EVIDENTARY HEARING
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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
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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
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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
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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
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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
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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
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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
//
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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).
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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.
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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
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MOTION FOR AN EVIDENTARY HEARING
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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.)
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MOTION FOR AN EVIDENTARY HEARING
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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.
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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
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sentence, was 4.6 percent. (Id. at 73, 74 (Fig. 2), 75 (Table 5), 77-81.) For those
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convicted of first-degree murder and whose crimes were factually eligible for a death
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sentence, the death-sentencing rate is 8.7 percent. (Id. at 79.)
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Two studies conducted by Steven F. Shatz, a Professor at the University of San
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Francisco School of Law, confirm Professor Baldus’s findings. (Ex. H.) The results
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from Professor Shatz’s studies verify that the overwhelming majority of murders in
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California could be charged as capital murders and in virtually all of them, at least one
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special circumstance could be proved. (Id. at 206-17.) Professor Shatz’s studies also
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demonstrate that California’s death sentencing rate falls below the fifteen to twenty
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percent rate deemed unconstitutional in Furman. (Id. at 200, 216-17.)
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The studies of Professors Baldus and Shatz independently confirm other each
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because of their strikingly similar statistical results. For example, when Professor
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Shatz excludes juveniles from both of his studies and uses 2000 California law, 91.4
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percent of the cases in the Statewide Study and 91.5 percent of the cases in the
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Alameda Study were death-eligible (id. at 204, 209, 212); whereas, using a different
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data set Professor Baldus found a death-eligibility rate of ninety-five percent (Ex. F at
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59, 62 (Table 2), 81.) The nearly identical rates obtained using differing sources of
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information—appellate decisions, court files, and data from the California Department
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of Corrections and Rehabilitation—serve to confirm the accuracy of Professors
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Baldus’s and Shatz’s statistical findings.
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Several measures demonstrate that no other state possesses a death penalty
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statutory scheme as broad as California’s or its astronomical death eligibility rate
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among California homicides. First, the rate of death eligibility among California
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homicides is by far the highest among death penalty jurisdictions. (Ex. F at 71-73.)
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MOTION FOR AN EVIDENTARY HEARING
CV-09-2158-CJC
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Second, California’s death-eligibility rate is so much higher than any other death
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penalty jurisdiction, that it can be described as a statistical outlier. (Id.; Amended
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Declaration of George Woodworth, Ph.D., Ex. G, at 174-78.) Third, the rate at which
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California’s death penalty statute narrows death-eligibility from pre-Furman Georgia
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law to 2008 California law, is far lower than similar rates for other states. (Ex. F at 81-
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82.)
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Petitioner has made a colorable showing that the present death penalty law in
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California is unconstitutional because it is truly a “wanton and freakish” system that
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randomly chooses a few victims for the ultimate sanction from among the thousands of
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murderers in California. Earp v. Ornoski, 431 F.3d at 1170. Petitioner specifically
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requests that this Court order an evidentiary hearing on this claim, or, in the
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alternative, allow the record and future findings in Ashmus v. Wong, 3:93-CV-00594
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TEH (N.D. Cal) to be accepted as part of petitioner’s evidentiary proffer for this claim.
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CONCLUSION
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For these reasons, this Court should grant petitioner’s Motion for An
Evidentiary Hearing.
Dated: February 17, 2011
Respectfully submitted,
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HABEAS CORPUS RESOURCE CENTER
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By:
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By:
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By:
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/s/ Michael Laurence
Michael Laurence
/s/ Patricia Daniels
Patricia Daniels
/s/ Cliona Plunkett
Cliona Plunkett
Attorneys for Petitioner
Ernest Dewayne Jones
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MOTION FOR AN EVIDENTARY HEARING
CV-09-2158-CJC
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MOTION FOR AN EVIDENTARY HEARING
CV-09-2158-CJC
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