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Media Alerts - John Doe v. Robert L. Ayers, Jr., Warden, of California State Prison at San Quentin
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May 7, 2015
  John Doe v. Robert L. Ayers, Jr., Warden, of California State Prison at San Quentin
Headline: Ninth Circuit Vacates Defendant's Capital Sentence After His Counsel Failed To Present Available Mitigating Evidence During The Penalty Phase Of Trial

Area of Law: Criminal Procedure, Capital Punishment, Antiterrorism and Effective Death Penalty Act (AEDPA)

Issue Presented:
Under pre-AEDPA standard of review, can a criminal defendant who was sentenced to death have his sentence vacated when his appointed counsel failed to present available mitigating evidence such as past sexual abuse, mental illness, neglect and illness during childhood, and substance abuse.

Brief Summary:
Defendant was convicted of felony-murder. At a separate sentencing proceeding, the jury returned a sentence of death. Defendant challenged his sentence prior to the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) claiming his appointed counsel provided ineffective assistance of counsel by failing to investigate and present mitigating evidence at his sentencing phase of trial. To reverse his sentence, defendant must prove his appointed counsel performed deficiently, and as a result, defendant was prejudiced. After his conviction, defendant hired habeas counsel who thoroughly investigated the case. The investigation revealed multiple levels of mitigating evidence that was never presented at the defendants sentencing phase. The Ninth Circuit panel granted defendants petition to vacate his capital punishment due to the appointed counsel failure to effectively investigate and present mitigating evidence at the penalty phase of trial.

Under a pre-AEDPA standard of review, a defendant may receive a "second bite of the apple" at the sentencing phase of trial if he can prove his government appointed counsel failed to meet constitutional requirements of effective counsel.

Extended Summary:
In 1984, defendant was charged with one count of murder and two counts burglarizing a home after a female body was found naked from the waist down. The women was murdered having been beaten, stabbed and strangled. The court appointed counsel to represent defendant in his murder trial. The appointed counsel had never worked on a death penalty case nor had he ever observed the death penalty phase of trial. After pleading not guilty, the jury returned a verdict finding defendant guilty of both the murder and burglary charges and he was sentenced to death.

In California, capital trials consist of two phases: the guilt phase and the sentencing phase. During the sentencing phase of trial, "the jury weighs aggravating and mitigating evidence to determine whether the death penalty is appropriate." Defendant appealed his death sentence claiming his appointed counsel failed to provide effective assistance of counsel. Using a pre-AEDPA standard of review, defendant must prove he was provided counsel that fell below the objective standard of reasonableness and that he was prejudiced as a result. He claimed his appointed counsel failed to present relevant mitigating evidence that was readily available if competent investigation was performed.

The California Supreme Court denied the defendants direct appeal, his petition for certiorari, and multiple habeas petitions. Defendant then filed a habeas petition in federal court challenging the effectiveness of his counsel at both phases of trial. While the district court rejected his guilt phase challenge, the court did find defendant had received ineffective assistance of counsel at the penalty phase of his trial. However, the district court concluded defendant was not prejudiced as a result of the deficient representation. The Ninth Circuit agreed defendant had received ineffective counsel, and disagreed with the district court by holding defendant was prejudiced as a result. The Ninth Circuit vacated defendants sentence and ordered the federal district court to grant defendants habeas writ.

In determining whether defendant's counsel fell below the objective standard of reasonableness, the Ninth Circuit compared the appointed counsels investigation to the evidence presented by defendant's habeas attorney. The entirety of the sentencing phase comprised just five witnesses whose testimony produced only thirty-five pages of transcript. Of which, defendants mother provided mitigating evidence, but the court stated it was presented in a "bland" and non-compelling manner. Defendant's ex-girlfriend testified that he was compassionate but sometimes angry or crushed. The three other witnesses did not know defendant prior to adulthood, including defendants father whom he had no relationship with prior to the murder charge, defendants aunt who temporarily took him in when he moved to California, and a prison friend who shared bible study with defendant.

Defendant's habeas attorney presented an overwhelming amount of compelling mitigating evidence. The habeas attorney presented prison records which showed defendant was "brutally and repeatedly raped" on several occasions. Evidence showed the rapes occurred during defendants first time in prison while he was just 17. The habeas attorney had a prison guard testify who he saw defendant raped first hand in the back of a garbage truck by a large inmate who was much larger than defendant. Also, a fellow inmate testified that defendant was forced into prostitution for the benefit of another inmate who "owned" defendant. A psychotherapist provided analysis from sessions with defendant where she learned he was raped by a close friend in prison which left him feeling powerless and in constant state of shame.

The psychotherapist also disclosed to the court defendants serious mental illness that arose out of his prison experience and childhood neglect/abuse. The doctor stated defendant provided signs of posttraumatic stress disorder after his first experience in prison. This experience apparently left defendant a "broken man" in major depression that self medicated with drugs and alcohol. The Ninth Circuit was convinced defendant received ineffective counsel after hearing the mitigating evidence presented by defendant's habeas attorney.

The court was unsatisfied with the appointed counsel's the lack of investigation once presented with the findings of the habeas attorney. Appointed counsel did not listen to any available interview tapes nor did he read any transcripts of any interviews with defendant. He read just one interview summary but concluded there was no material evidence for the sentencing phase of trial. There were obvious leads available that defendants appointed counsel did not follow regarding defendants prison files and psychological history. He was satisfied with defendants nine-page prison "rap sheet" that provided basic procedural information and missed all available rape evidence. The appointed attorney only interviewed defendant once. He hired one psychological expert but only asked her to determine whether any mental state defenses could be mounted based on "obvious signs of mental impairment" and nothing more.

The Ninth Circuit held the district court erred in deciding defendant was not prejudiced by his appointed counsel's ineffective counsel. A "but for" standard is used to determine prejudice. The Ninth Circuit determined "but for" appointed counsels unprofessional errors, the result of defendants sentencing phase would have been different. The Ninth Circuit found a substantial probability existed that a different result would have occurred if defendant had received effective counsel.

To read the full opinion, please visit:

Panel: Harry Pregerson, Stephen Reinhardt, and Kim McLane Wardlaw, Circuit Judges.

Docket Number: No. 15-99006

Decided: Murder conviction affirmed but capital sentence was vacated and remanded.

Case Alert Author: Brian D. Shapiro

Counsel: John R. Grele (argued), Tiburon, California; and David W. Fermino, Sideman & Bancroft, San Francisco, California, for Petitioner-Appellant.
Barry J. Carlton (argued), Supervising Deputy Attorney General, San Diego, California, for Respondent-Appellee.

Author of Opinion: Judge Stephen Reinhardt

Circuit: Ninth

Case Alert Circuit Supervisor: Ryan T. Williams

    Posted By: Ryan Williams @ 05/07/2015 11:33 PM     9th Circuit  

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