Defining Counsel’s Role in Discovery and Disclosure of Mental Illness

Facts of the Case

A jury in the Common Pleas Court of Cuyahoga County sentenced David Hamblin to death after his conviction for aggravated murder, aggravated robbery, attempted murder, and having a weapon while under disability. His case involved the nonfatal shooting of Metropolitan Park Ranger John English and the fatal beating of Lillian Merrick in Cleveland, Ohio, in 1983. On the day of the shooting, Ranger English was investigating alleged homosexual activity in a local park when Mr. Hamblin shot him in the leg. Prior to the shooting, Mr. Hamblin had been seen by the ranger and other witnesses sitting in his car at the park. Twenty minutes after the shooting, Lillian Park was found unconscious in a nearby parking lot, having been robbed of her purse and groceries. She had sustained a blow to the head by a blunt object and a wound to her hand. She never regained consciousness and died three days later.

Fred Jurek and Arthur Lambros were attorneys appointed by the court to defend Mr. Hamblin. Neither had any experience in trying a capital case. In an affidavit, Attorney Jurek later stated that he did not investigate the case or pursue expert consultation under the assumption that the case would not go to trial. He further reported that he did nothing in preparation for the penalty phase of the trial until after the guilty verdict had been returned.

In preparing for the penalty phase of the trial, Mr. Hamblin’s attorneys did not obtain information regarding his family and social history and did not evaluate his mental condition, believing that the only admissible psychological evidence for mitigation purposes was competency to stand trial. As a result, the jury did not learn of his unstable upbringing, including an emotionally and physically abusive home in a setting of extreme poverty. His father had been physically abusive toward him. His mother, a reported prostitute, had been arrested for child neglect and public intoxication and had on occasion abandoned her children. Mr. Hamblin turned to stealing at a very young age to provide for himself and his sister. He was not educated beyond the seventh grade, had a criminal record as a juvenile, and left home at the age of 16, when he was already showing evidence of a mental disorder.

Also missing from the penalty phase presentation was any information regarding Mr. Hamblin’s mental health, including an evaluation report prepared for a previous criminal case in 1964. There was no consultation with a mental health professional.

Attorney Jurek did not contact Mr. Hamblin’s relatives, even after 22 family members and friends submitted affidavits expressing willingness to testify about his long history of childhood deprivation and violence. As its only witness, the defense attorneys called Rhonda Lezark, the mother of Mr. Hamblin’s daughter and a witness for the prosecution. They had not prepared her for the testimony, and she informed the jury that she did not wish to testify on Mr. Hamblin’s behalf, stating only that his relationship with his daughter was good. The only other testimony was Mr. Hamblin’s brief and incoherent personal statement.

On appeal, the district court upheld the death penalty, identifying two justifications for counsel’s performance. First, it found that for “strategic” reasons the defense counsel chose not to investigate Mr. Hamblin’s mental condition further because that evidence could have been used to hurt him as well as help him. Second, it found that counsel did not prepare or investigate for the mitigation phase of the case, because his client instructed him not to present evidence in mitigation. The district court’s decision was upheld in the Cuyahoga County Court of Appeals and the Ohio Supreme Court.

In November 1995, Mr. Hamblin filed a petition for habeas review. The U.S. District Court for the Northern District of Ohio denied his request, holding that counsel had not been ineffective and the lack of investigation by counsel had been strategic. Mr. Hamblin appealed the decision to the Sixth Circuit Court of Appeals.

Ruling

The U.S. Court of Appeals for the Sixth Circuit reversed the judgment of the district court and ordered that the defendant’s petition for habeas review be granted unless Mr. Hamblin received a new penalty phase trial within 180 days of the order.

Reasoning

In its reasoning, the court harkened to the 1932 decision in Powell v. Alabama, 287 U.S. 45 (1932), in which the Supreme Court ruled that the right to effective counsel in capital punishment cases is a constitutionally protected right under the Due Process Clause of the Fourteenth Amendment. The court also cited Strickland v. Washington, 466 U.S. 668 (1984), which defined “effective assistance of counsel” and set the standard for effective counsel as representation with “reasonableness under prevailing professional norms…guided [by] American Bar Association standards and the like,” with the caveat that the defendant must overcome “a strong presumption” that counsel’s action is reasonable.

In further explicating the benchmark for effective counsel, the appellate court looked at the most recent ruling on ineffective assistance in Wiggins v. Smith, 539 U.S. 510 (2003), in which it was held that counsel’s work “fell short of the standards for capital defense work articulated by the American Bar Association…, standards to which we have long referred as ‘guides to determining what is reasonable.’ ” The appellate court reasoned that, even prior to the Wiggins ruling, it had consistently upheld such standards of investigation into mitigating evidence at the penalty phase, as evidenced by a series of cases dealing with ineffective counsel. In Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995), the court set aside the death verdict after finding evidence of ineffective counsel at the penalty phase. It held that counsel was required to conduct a thorough investigation of mitigating evidence, including defendant’s “history, background, and organic brain damage” and that counsel had indeed failed to make any “systematic effort to acquaint themselves with their client’s social history.” Similarly in Austin v. Bell, 126 F.3d 843 (6th Cir. 1997) and Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001), the court found that prevailing professional norms required full investigation of mitigating evidence.

The appellate court noted that the present case was tried prior to publication of the 1989 American Bar Association (ABA) Guidelines; therefore, counsel’s performance needed to be considered against prevailing standards at the time of the case. The court held that the guidelines had simply codified well-established “common-sense” principles of representation by competent counsel in capital cases. No new law or newly discovered norms were developed in these guidelines, and indeed these long-standing norms had been cited in Strickland and Glenn concerning cases adjudicated prior to Hamblin.

The appellate court found defense counsel’s representation of Mr. Hamblin at the penalty phase grossly inadequate. The court cited counsel’s failure to investigate background, to obtain available records, to obtain and use available records, to seek expert advice, and to prepare Mr. Hamblin for his statement in the penalty phase as falling far short of prevailing standards of effective assistance of counsel.

Further, the appellate court rejected the trial court’s two justifications for counsel’s failure to investigate mitigating evidence. First, it rejected counsel’s proposition that the failure to investigate was a “strategic” ploy, that is, that counsel had anticipated that such an investigation would be negative for psychological problems or organic brain injuries and would thereby preclude an argument for mitigation based on those circumstances. The court ruled that counsel had a duty to unearth facts, not to guess or assume their relevance or value to the defense.

Secondly, the appellate court rejected the trial court’s ruling that counsel’s failure to investigate was justified because the defendant had allegedly asked him not to present mitigating evidence. The appellate court ruled that even if the defendant posed such a request, neither counsel nor defendant is capable of making informed decisions regarding appropriate courses of action without first conducting an exhaustive investigation. The court further ruled that it is impossible for counsel to establish with confidence the competence of his client to make a decision regarding mitigation efforts without first having the facts on which such a decision would be made.

Equally as important as finding substantial evidence of failure of counsel to provide effective assistance was the court’s determination that such failure would have changed the outcome with reasonable probability, as required by the second or “prejudice” prong established by Strickland. The appellate court found that counsel’s failure to investigate and present mitigating evidence at the penalty phase was significant enough to prejudice the defendant and “undermine confidence in the outcome.” The court deemed that there was substantial enough mitigating evidence in Mr. Hamblin’s background that “there is a reasonable probability that at least one juror would have struck a different balance,” thereby changing the outcome and preventing the death penalty. Such a reasonable probability entitled the defendant to a new trial at the penalty phase.

The appellate court denied the request for a new trial at the culpability phase, despite additional evidence of ineffective assistance of counsel and other errors it deemed substantially harmless in balance against the overwhelming physical evidence. These errors included evidence of inappropriate remarks made by the prosecutor and failure of the prosecution to hand over exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 (1963). The appellate court found that the jury would have likely convicted based on substantial damning physical evidence, even in the absence of the prosecution’s inappropriate remarks. Regarding the prosecution’s failure to turn over exculpatory evidence, the court found no bad faith and deemed that the evidence would not have changed the outcome with reasonable probability.

Mr. Hamblin challenged the admission of his taped police interrogation, arguing that the questioning occurred after he had requested a lawyer and was informed he could not have one until after the weekend. Although the court agreed that the tapes were inappropriately admitted into evidence, the information contained in the tapes was deemed not substantial and the physical evidence otherwise so overwhelming that the verdict was not likely affected by the tapes. The court ruled the admission of the tapes a harmless error and did not overturn the conviction.

Discussion

This case joins recent U.S. Supreme Court and circuit court rulings that delineate the standards for effective representation of defendants facing the death penalty. The appellate rulings have established death penalty cases as a unique genre of cases in which the role of forensic psychiatry is extensive and relevant during the penalty phase of the trial. The Supreme Court has defined and more recently clarified the specific meaning of “effective assistance of counsel.” This process began in Strickland, where it was determined that counsel in such death penalty cases was required to act according to ABA standards, including counsel’s “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” That ruling essentially embraced two principals in determining whether ineffective counsel occurred: (1) to determine if counsel’s actions were deficient and (2), if such actions were deficient, whether they prejudiced the defense. The Supreme Court decided at that time, however, to refrain from delineating any further standard-of-duty clarifications in an effort to avoid the escalation of ineffective assistance of counsel challenges in death penalty cases and preferred to adhere to the broad ABA standards for defining dereliction of duty by counsel.

More recently, in Wiggins, the U.S. Supreme Court held that ineffective assistance of counsel had occurred in that counsel did not adequately present mitigating evidence concerning the defendant’s personal history and background. That Court decided, in an effort to move away from the vague, antiquated, and generalized language in Strickland, to adopt an additional ABA Guideline 11.8.6 to further suggest what the detailed content of counsel’s investigative efforts should contain, including “medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences.” The Wiggins clarification opens the arena for psychiatric analysis even in the absence of specific diagnosis.

In Bryan v. Mullin, 335 F.3d 1207 (10th Cir. 2003), another capital case in which the defendant had a history of mental illness, the court held that counsel had not rendered ineffective assistance and denied habeas corpus relief. That case was complicated by the adamant request made of counsel by the defendant and his family that evidence concerning the defendant’s psychiatric history and background not be presented. What sets Bryan off from the present case is that, in Bryan, counsel investigated and pursued the relevant mental health questions prior to making a decision to act in accordance with the wishes of the defendant and his family.

The decisions in these cases begin to delineate the exceptions to presenting mitigating evidence in a death penalty trial—namely, strategy and acting on a competent defendant’s insistence that personal history or background not be presented as mitigating evidence. As with most capital cases, the question of mitigation is complex. The role of forensic psychiatry becomes increasingly relevant as the standard for mitigation investigation develops. The translation of background, cultural, family, and mental health history into a personal narrative becomes a tool of mitigation. Regardless of how counsel decides to proceed with the presentation of mitigating evidence, what is clearly outlined in current ABA Guidelines and highlighted in these capital cases is that counsel must first investigate a defendant’s personal history and background to make the determination to strategically present or withhold the content of what the investigation reveals.