After the major decision handed down by the United States Supreme Court yesterday, all bets are off on the likely success of claims for ineffective assistance of counsel for failure to introduce mitigating brain evidence at trial. The case may have such broad implications that the double-edged rhetoric about brain damage evidence in the majority opinion is of minor interest by comparison (note, however, that Justice Thomas included similar equivocal or double-edged dicta in Schriro v. Landrigan, not too long ago).
In Cullen v. Pinholster, the Court made more difficult federal review under §2254(d)(1). It held that review under §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits, and not based on any new evidence introduced in federal evidentiary hearings on appeal. This is a significant development. As I’ve previously reported (most recently here, here, and here), a popular claim for ineffective assistance of counsel if failure to introduce particular mitigating evidence at trial. If §2254(d)(1) is limited to the record before the state court, then the days of new evidentiary hearings on federal habeas review for ineffective assistance of counsel cases is numbered or over.
The new evidence at stake pertained to brain damage, where the Respondent sought to introduce evidence that he didn’t suffer merely from a “personality disorder” but from brain damage that could help explain his long history of criminally violent behavior. The Court found the investigation to have been reasonable, and the new evidence by no means “clearly mitigating, as the jury might have concluded that [Respondent] was simply beyond rehabilitation.”
(Hat tip to Ken Murray, of the capital habeas unit at the Federal Public Defender’s Office in Arizona, who alerted me about this case and says: “This time the Court went so far as to refer to the ‘current infatuation with ‘humanizing’ the client as the be all and end-all of mitigation’ and notes that this ‘disregards the possibility that this may be the wrong tactic in some cases because experienced lawyers [might] conclude that the jury simply won’t buy it.”)
Habeas, Cumulative Evidence, Double-Edged Sword, Brain Injury
Cullen v. Pinholster, No. 09–1088, Slip. Op., April 4, 2011
The United States Supreme Court granted certiorari to resolve two questions, upon which it reversed the en banc opinion of the Ninth Circuit. First, whether review under §2254(d)(1) permits consideration of evidence introduced in an evidentiary hearing before the federal habeas court. Second, whether the Court of Appeals properly granted Respondent’s habeas relief on his claim of penalty-phase ineffective assistance of counsel. Respondent—Scott Lynn Pinholster—was convicted of first-degree murder, and sentenced to death. After the California Supreme Court twice unanimously denied him habeas relief, a Federal District Court held an evidentiary hearing and granted him habeas relief under 28 U. S. C. §2254. The District Court concluded that Respondent’s trial counsel had been constitutionally ineffective at the penalty phase of trial. Sitting en banc, the Court of Appeals for the Ninth Circuit affirmed. Considering the new evidence adduced in the District Court hearing, the Court of Appeals held that the California Supreme Court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law.” §2254(d)(1).
During the District Court evidentiary hearing, a prior trial expert testified that the trial counsel had provided him with only some police reports and a 1978 probation report. He claimed that if he had known about the material that had since been gathered by Respondent’s habeas counsel, he would have conducted “further inquiry” before concluding that Respondent suffered only from a personality disorder. Respondent’s school records showed evidence of “some degree of brain damage.” The parties stipulated that this declaration had never been submitted to the California Supreme Court. Two new experts also testified. A psychiatrist diagnosed Respondent with organic personality syndrome, and a pediatric neurologist diagnosed him with partial epilepsy and brain injury. The District Court granted habeas relief. Over a dissent, a panel of the Court of Appeals for the Ninth Circuit reversed. On rehearing en banc, the Court of Appeals vacated the panel opinion and affirmed the District Court’s grant of habeas relief.
The Court first considered the scope of the record for a §2254(d)(1) inquiry. The State argued that review is limited to the record that was before the state court that adjudicated the claim on the merits. Respondent contended that evidence presented to the federal habeas court should also be considered. The Court agreed with the State, and held that review under §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.
The Court found the Ninth Circuits alternative holding to be erroneous. It found the trial counsel to have conducted a mitigating evidence investigation and reasonable trial strategy to focus on evoking sympathy for the Respondent’s family instead of the Respondent himself who was entirely unsympathetic.
The Court also concluded that under Strickland, the Respondent was unlikely to have suffered prejudice by failing to have the new evidence considered by the federal habeas proceedings. “To the extent the state habeas record includes new factual allegations or evidence, much of it is of questionable mitigating value. . . the “new evidence . . . [is] by no means clearly mitigating, as the jury might have concluded that [Respondent] was simply beyond rehabilitation.”