Wednesday, July 14, 2010


Per Curiam is a Latin phrase meaning "speaking for the court." More often than not these opinions speak for a unanimous multi-judge appellate court. No one particular jurist is tasked with writing a signed opinion. Dissenting opinions, typically rare, are signed by the judge disagreeing with the per curiam decision.

Sears v. Upton is, bar none, the most interesting per curiam decision that I've ever read. That is thanks to Associate Justice Scalia's contumaciously stubborn streak!

The long title of the case is Demarcus Ali Sears v. Stephen Upton, Warden [of Georgia's Jackson State Prison]. Mr. Sears is on Death Row for "kidnapping with bodily injury. He is not on Death Row for having murdered anyone.

He was convicted in 1993 of violating Ga. Code Ann. §16–5–40(d)(4) (2006). Sears and an accomplice kidnapped a woman in Georgia. She was killed in Kentucky. The fact of the lady's demise in Kentucky is a statutory aggravating circumstance, under Georgia law, warranting the imposition of a capital sentence. This follows a theory of felony murder.

Felony murder does not require the criminal defendant commit the fatal act, he need only be a perpetrator in a crime where a person died as a direct and proximate result of the underlying crime. He doesn't need to pull the trigger. For instance consider a store being robbed and a police officer becomes involved in a shootout with the criminals. The store clerk is killed by the officer's bullet. The robbers are guilty of Felony Murder. This is Black Letter Law and Demarcus Ali Sears is wrong thinking that the law is unfair.

That last sentence really goes to the heart of the case. The problem with the sentencing is the problem with Sears' cognitive function. More on that later.

Sears launched a categorical Eighth Amendment challenge to his conviction under the kidnapping theory, which the Court declined to address. The Court footnoted that any jurisdictional challenge for Georgia imposing the Death Sentence which occurred in Kentucky was not before them.

The Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

During the penalty phase of Sears' capital trial, the mitigation phase, the defense presented evidence that this crime was out of character for Sears who had been reared in a loving middle-class home. Several witnesses testified that an imposition of the Death Sentence would adversely affect them.

Anyone who watches crime drama knows that this wasn't a good idea. A 59 year old woman, wife, mother, grandmother, named Gloria Ann Wilbur, was raped and murdered. The convicted defendant's evidence is that his family and friends will be burdened by his execution. That dog don't hunt.

The State turned that argument on the defendant, boy howdy! Here's what they did:

With Sears, the prosecutor told the jury, “[w]e don’t have a deprived child from an inner city; a person who[m] society has turned its back on at an early age. But, yet, we have a person, privileged in every way, who has rejected every opportunity that was afforded him.”

I'd say "Oh Boy How Do You Do!" as an expression of amazement and surprise, but the Southern translation of that is "Boy Howdy!" Sears is portrayed as a typical Ohio youth seized with all the advantages that modern society can offer. But is that true? Yes he came from Ohio. Did Sears' attorney at trial portray a correct depiction of Sears? Did the attorney do a good job? That question is at the crux of the Court's analysis.

Mitigation means to lessen the severe impact of the offense, to partly excuse the crime. It does not mean anything like absolution, which would wash the crime away. Mitigation, that's a noun. Mitigate is a transitive verb. Did Sears' attorney at trial investigate his client? If you don't investigate your client how can you determine the best strategy to pursue in the mitigation, or conversely the worst?

The Trial Court which oversaw Sears' postconviction relief ruled that Sears had made a mitigation defense. That court demonstrated that Sears' mitigation defense was Constitutionally inadequate.

"After finding constitutionally deficient attorney performance under the framework we set forth in Strickland v. Washington, 466 U. S. 668 (1984), the state post conviction court found itself unable to assess whether counsel’s inadequate investigation might have prejudiced Sears... Because Sears’ counsel did present some mitigation evidence during Sears’ penalty phase—but not the significant mitigation evidence a Constitutionally adequate investigation would have uncovered—the state court determined it could not speculate as to what the effect of additional evidence would have been."
So what did the Court say in Strickland v. Washington? Well, that was a case from 1984 where the Supreme Court reversed a Death Penalty case from Florida on Sixth Amendment Grounds.

The Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The abbreviated facts of Strickland have the defendant going on a 10 day crime spree during which time he stabbed 3 persons to death while committing various other crimes. The issue before the Supreme Court was whether Strickland had received the effective Assistance of Counsel required by the Sixth Amendment.

Associate Justice O'Connor delivered the 8 - 1 opinion of the Court, Associate Justice Thurgood Marshall was the lone dissenter. Strickland provides us with a two part test for determining if trial counsel was effective or not.

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show, first that counsel's performance was deficient and, second that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.

Those are the two parts of Strickland test, the lawyer underperformed and the deficient lawyering deprived the defendant of a fair trial. Remember that fairness is the essence of Due Process of Law.

Back to Sears. After sentencing the case goes into postconviction relief mode where the judgments and sentencing of the trial court are appealed. During Sears' postconviction proceedings it turns out that the rosy depiction of Sears' upbringing was not based in fact.

His parents provided a combative home filled with their physically abusive relationship. They divorced while Sears was young. Sears had been sexually abused by an adolescent male cousin. His mother's pet name for her children was "Mother's little fuckers." Sears' father was verbally abusive. An art teacher recalled with shock Sears' father severely berating the child at a parent teacher conference. The father also disciplined Sears with age inappropriate military style drills. Sears struggled in school, demonstrating substantial behavior problems from a very young age. By the time Sears reached high school, he was described as severely learning disabled and as severely behaviorally handicapped.

It gets worse. Sears suffered significant frontal lobe abnormalities. Two different psychological experts testified that Sears had substantial deficits in mental cognition and reasoning—i.e., “problems with planning, sequencing and impulse control,” —as a result of several serious head injuries he suffered as a child, as well as drug and alcohol abuse.

Regardless of the cause of his brain damage, his scores on at least two standardized assessment tests placed him at or below the first percentile in several categories of cognitive function, making him among the most impaired individuals in the population in terms of ability to suppress competing impulses and conform behavior only to relevant stimuli.

The assessment also revealed that Sears’ ability to organize his choices, assign them relative weight and select among them in a deliberate way is grossly impaired. Sears lacks the capacity to make good choice, forget about wise choices.

From an etiological standpoint, one expert explained that Sears’ history is replete with multiple head trauma, substance abuse and traumatic experiences of the type expected to lead to these significant impairments.

Sears performed dismally on several of the forensic tests administered to him to assess his frontal lobe functioning. On the Stroop Word Interference Test, which measures response inhibition, id., at 36–37, 99.6% of those individuals in his cohort (which accounts for age, education, and background) performed better than he did.

On the Trail-Making B test, which also measures frontal lobe functioning, Sears performed at the first (and lowest) percentile. Based on these results, the expert’s first-hand observations, and an extensive review of Sears’ personal history, the expert’s opinion was unequivocal: There is clear and compelling evidence” that Sears has “pronounced frontal lobe pathology.

Sears' older brother was a criminal, a convicted drug dealer and user, who introduced Sears to a life of crime. These facts actually are consistent with a mitigation theory portraying Sears as an individual with diminished judgment and reasoning skills, who may have desired to follow in the footsteps of an older brother who had shut him out of his life.

The fact that some of the evidence may have been “hearsay” does not necessarily undermine its value—or its admissibility—for penalty phase purposes. The Court footnoted that "we have also recognized that reliable hearsay evidence that is relevant to a capital defendant’s mitigation defense should not be excluded by rote application of a state hearsay rule."

Competent counsel should have been able to turn some of the adverse evidence into a positive—perhaps in support of a cognitive deficiency mitigation theory. In particular, evidence of Sears’ grandiose self-conception and evidence of his magical thinking, were features, in another well credentialed expert’s view of a “profound personality disorder." This evidence might not have made Sears any more likable to the jury, but it might well have helped the jury understand Sears, and his horrendous acts—especially in light of his purportedly stable upbringing.

Because counsel failed to conduct an adequate mitigation investigation, none of this evidence was known to Sears’ trial counsel. It emerged only during state postconviction relief.

The Trial Court noted that Sears' trial counsel was Constitutionally deficient as to the penalty phase investigation. In the Trial Court's view, the cursory nature of counsel’s investigation into mitigation evidence—“limited to one day or less, talking to witnesses selected by [Sears’] mother”—was “on its face . . . Constitutionally inadequate.”

The lawyer underperformed. Clearly the first prong of the Strickland test has been met. The Supreme Court was surprised at the Trial Court's analysis under the second prong of the Strickland test. Did the deficient lawyering prejudice the defense so much that the proceeding were not fair?

The per curiam opinion says "Although the court appears to have stated the proper prejudice standard, it did not correctly conceptualize how that standard applies to the circumstances of this case. The Trial Court asked whether “there is a reasonable likelihood that the outcome of his trial would have been different if [Sears'] counsel had done more investigation.”

The Trial Court reasoned that since some mitigation evidence was produced during the penalty phase that other cases where little or no mitigation evidence was produced were not on point. The Trial Court said it could not make a reasonable prediction as to whether Sears' defense was so prejudiced by Constitutionally deficient lawyering to render the mitigation phase Constitutionally infirm.

The Supreme Court finds two problems with the Trial Court's analysis. First the Trial Court placed undue reliance on the assumed reasonableness of counsel's mitigation theory, and curtailed its prejudice inquiry. Rather, the Supreme Court says "The court’s determination that counsel had conducted a constitutionally deficient mitigation investigation, should have, at the very least, called into question the reasonableness of this theory." The prejudice inquiry should be pursued.

The second problem was that when the Trial Court found a Constitutionally deficient mitigation then it should have, at minimum, called into question of the reasonableness of counsel's theory. Relying on Wiggins v. Smith, the Court said “counsel’s failure to uncover and present voluminous mitigating evidence at sentencing could not be justified as a tactical decision . . . because counsel had not ‘fulfill[ed] their obligation to conduct a thorough investigation of the defendant’s background."

One of the reasons I called this the most interesting per curiam decision that I've ever read is because it is rare for disagreements on the Court to break out into open skirmishes. Footnote nine takes a direct shot at Associate Justice Scalia.

9 Channeling powers of telepathy, JUSTICE SCALIA asserts that what the trial court actually decided in this case is that “Sears’ trial counsel presented a reasonable mitigation theory and offered evidence sufficient to support it, so the prejudice inquiry was more difficult—so difficult that Sears could not make the requisite showing.” Post, at 4. Such a highly favorable reading of the trial court’s analysis would be far more convincing had the trial court engaged with the evidence as JUSTICE SCALIA does. But it offered no such analysis in its opinion; indeed, it appears the court did not even conduct any real analysis, explaining that it was “impossible to know what effect” the evidence might have had on the jury.

The Court notices that Associate Justice Scalia chides them in his dissent. Associate Justice Scalia's rancor stems from the per curiam opinion's conclusion that the Trial Court made assumptions rather than judicial findings. The majority rebuffs that saying:

"But our point is that any finding with respect to the reasonableness of the mitigation theory counsel utilized—in this case, family impact—is in tension with the trial court’s unambiguous finding that counsel’s investigation was itself so unreasonable as to be facially unconstitutional. This point is plain in Williams: We rejected any suggestion that a decision to focus on one potentially reasonable trial strategy—in that case, petitioner’s voluntary confession—was “justified by a tactical decision” when “counsel did not fulfill their obligation to conduct a thorough investigation of the defendant’s background.” 529 U. S., at 396. A “tactical decision” is a precursor to concluding that counsel has developed a “reasonable” mitigation theory in a particular case. [emphasis added]"
Recall that when scrutinizing statutes the Court tells us that facial challenges are the most difficult to proove.  The standard for being facially infirm is the inconceivable standard.  It is inconceivable that under any circumstance the statute does not violate the Constitution.  Here the Court is telling us that it is inconceivable under any circumstance that counsel's investigation leads to a Constitutionally sound tactical theory.

The Supreme Court rejects the argument that the reasonableness of the theory is relevant when evaluating the impact of evidence that would have been available and which would likely have been introduced but for counsel's Constitutionally inadequate investigation. The standard is clear, if you are going to try a Capital Case you must look at every conceivable circumstance of the defendant's background. Do not get in a hurry with your theory and place all of your eggs in one basket.

Once the State has proven each and every element of the Capital offense beyond a reasonable doubt to a jury and a guilty verdict has been rendered defense counsel's duty is to fully engage in the mitigation phase of the trial. That cannot be done where counsel is ignorant of the facts of the defendant's life and health.

Then there is Associate Justice Scalia, joined by Associate Justice Thomas. The dissent found no error of law in the proceedings below. Remanding this case, as the Court has done, is purposeless, according to Associate Justice Scalia. He says the Trial Court has already found that "no reasonable likelihood that the mitigation evidence...would have persuaded a jury to change its mind about the death sentence for this brutal rape-murder."

Associate Justice Scalia's thinking is troubling. The jury is not to have made up its mind as to the death sentence or any other punishment until after evidence is presented to them during the mitigation phase of the trial. They are sent to deliberate on that evidence. Their mind is to be made up during that deliberation. Associate Justice Scalia presumes the jurors have violated their oaths to keep their minds open on this issue until the sentencing part of the case is presented to them.

Associate Justice Scalia attacks the Court's implementation of the two pronged test from Strickland. Both the dissent and the per curiam opinion agree that the first part of the Strickland test was properly applied. The dispute is about the second part, whether the defense was prejudiced to the point of rendering the case unfair.

Scalia challenges the Court's finding that the Trial Court made two errors determining prejudice. As noted above, Scalia says the Trial Court made judicial findings and did not engage in making assumptions. Scalia gives deference to the Trial Court.

Then Scalia feathers his argument claiming the Court's second error is encased within the first. The Court claims, says Scalia, that the Trial Court limited its prejudice inquiry under Strickland where there was little or no mitigation evidence presented. The Supreme Court holds that the Trial Court erred by determining that presentation of some mitigation evidence foreclosed further prejudice inquiry. Scalia says that is not a fair reading of the case. "The state court did not hold that a defendant could never suffer prejudice whenever his counsel provided any mitigation evidence."

That appears to me as a distinction without a difference. During the postconviction phase of the case the defense is making its last arguments. Habeas Corpus relief does not provide for more than one bite at the apple. When the Appellate Court held that Sears' was not prejudiced by his attorney's ineffective assistance, they held that Sears, absent relief from the Federal Judiciary, could never suffer prejudice in this case.

A word about jurisdiction, the Court addressed the subject in footnote one. "Although this is a state-court decision, it resolved a federal issue on exclusively federal-law grounds. We therefore have jurisdiction. 28 U. S. C. §1257; see also Padilla v. Kentucky, 559 U. S. ___ (2010) (reviewing state postconviction decision raising Sixth Amendment question)."

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