Ineffective Counsel Resulting From Failure to Explore History of Brain Injury in a Capital Case

Wil Berry; Heather Knott

Failure to Fully Investigate and Present Potentially Mitigating Evidence During the Sentencing Phase Violates a Defendant's Sixth Amendment Right to Effective Counsel

In Mann v. Ryan, No. 09-9901 (9th Cir. 2014), the Ninth Circuit Court of Appeals reviewed the habeas corpus petition of a man with a state conviction and death sentence for two first-degree murders. The Ninth Circuit affirmed in part and reversed in part the Arizona district court ruling, which had denied the petition. The Ninth Circuit found that defense counsel had failed to adequately investigate and present mitigating evidence at sentencing, including a full investigation of a possible past brain injury and any resulting symptoms.

Facts of the Case

On the evening of November 23, 1989, Richard Alberts and Ramon Bazurto arrived at a Tucson house rented by Eric Mann and his girlfriend, Karen Miller. Mr. Mann had arranged the meeting to sell approximately one kilogram of cocaine to Mr. Alberts for approximately $20,000. When they met, Mr. Mann gave Mr. Alberts a box in exchange for a bag of money. When Mr. Alberts opened the box, he realized it was filled, not with cocaine, but with paper. At that moment, Mr. Mann grabbed a pistol and shot Mr. Alberts and then Mr. Bazurto, killing both men. Afterward, Mr. Mann picked up a friend named Carlos Alejandro to help move the bodies, which were put in a car and transported to a remote area. The next day, Mr. Mann and Ms. Miller worked to hide any evidence of the crime.

Ms. Miller ended her relationship with Mr. Mann in 1993 and moved to Washington. In January of 1994, she reported the murders to the Pima County Sheriff's Department, and her information led investigators to Mr. Alejandro. Subsequently, Mr. Mann was arrested and charged with two counts of first-degree murder. He was tried in Pima County Superior Court during October of 1994. The testimony of Ms. Miller and Mr. Alejandro, who were both granted immunity, was the primary factor in the prosecution's case. Mr. Mann's attorney argued that Mr. Mann shot the men out of self-defense and that the shootings were not premeditated. Mr. Mann was found guilty on both counts.

After the conviction, Mr. Mann's attorney requested more time to investigate his background and asked the court to appoint a psychologist from the superior court clinic to evaluate his client's mental health. The court approved both requests. An autobiography written by Mr. Mann during this period also mentioned a traffic accident from 1985 in which he had sustained a head injury and his two passengers had been killed. A court-appointed psychologist evaluated Mr. Mann and diagnosed alcohol abuse, polysubstance abuse, and antisocial personality disorder. The psychologist also concluded that Mr. Mann was probably a “psychopath.”

The judge specifically denied that Mr. Mann had proved remorse for the murders, and pointed out that in Mr. Mann's autobiography he had not indicated remorse for the deaths of the two passengers from the accident in 1985. This, along with the psychologist's report, led the judge to conclude that Mr. Mann was “incapable of remorse” and had “no conscience,” and he was sentenced to death. On direct appeal, the Arizona Supreme Court affirmed his convictions and, after independently reviewing the factors, concluded that the mitigating factors were not enough to justify leniency. The United States Supreme Court denied his petition for writ of certiorari.

Mr. Mann appealed to the state trial court for postconviction relief. He claimed violation of his constitutional right to effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), caused by his lawyer's failure to investigate and present reasonably available mitigating evidence pertaining to the effects of the traffic accident in 1985 and retain an independent mental health expert. In evidentiary hearings during the postconviction proceedings, the judge heard testimony from Dr. James Comer, a clinical neuropsychologist who had conducted a battery of tests to detect evidence of organic brain injury and also considered a psychological evaluation conducted by Dr. Richard Hinton and medical records from the 1985 accident.

The state court denied the petition for postconviction relief and, regarding the claim of ineffective assistance for failure of counsel to present reasonably available mitigating evidence, the court concluded that Mr. Mann failed to show that his counsel's conduct had prejudiced him. The Arizona Supreme Court denied a petition for review without comment, and the district court denied Mr. Mann's habeas corpus petition. The district court's denial was reviewed de novo by the Ninth Circuit Court of Appeals, which ruled on each prong of the Strickland analysis.

Ruling and Reasoning

Examining the deficiency prong of the Strickland analysis, the Ninth Circuit ruled two to one that defense counsel's performance at sentencing was constitutionally deficient. They cited the Supreme Court's past emphasis that judgment of an attorney's performance in such cases is based on “reasonableness under prevailing professional norms” (Strickland, p 688) and that this would include a “thorough investigation of a defendant's background” (Williams v. Taylor, 529 U.S. 362 (2000)). Citing the American Bar Association (ABA) standards in place at the time of Mr. Mann's sentencing, the court wrote that counsel's investigation should reflect an effort to “discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence” introduced by the prosecution (ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1C, 1989).

The Ninth Circuit found that defense counsel's preparation for a possible sentencing phase was below an objective standard of reasonableness, pointing out counsel's request for a continuance to conduct further investigation. Beyond the lack of preparation, they cited Wiggins v. Smith, 539 U.S. 510 (2003), and concluded that the investigation conducted was unreasonable “in light of what counsel actually discovered” (Wiggins, p 525) concerning Mr. Mann's history of head trauma. Despite knowledge of the 1985 accident, counsel did not try to obtain medical records or otherwise investigate possible brain damage, even after a consulting expert had advised counsel to seek neuropsychological testing. The court found counsel's failure to further investigate this history to be evidence of deficient performance.

Examining the prejudice prong of the Strickland analysis, the Ninth Circuit ruled two to one that defense counsel's deficient performance prejudiced Mr. Mann's case. The court found that, in Mr. Mann's case, mitigating evidence that counsel failed to uncover and present would have significantly changed the sentencing profile presented to the judge during the sentencing hearing. Specifically, they reasoned that after the 1985 accident, medical records indicated that Mr. Mann was grieving deeply about the deaths caused by the tragedy. The court would refer to this documented presence of grief as evidence that could have been presented to refute the claim the Mr. Mann was a psychopath who did not experience remorse.

In contrast to the state court, the Ninth Circuit found counsel's failure to seek and present the results of neuropsychological testing especially damaging. They cited the evaluation in 2001, when Dr. Comer had performed a battery of tests and concluded that Mr. Mann had a traumatic brain injury that led to cognitive defects and may have contributed to behavioral changes. In addition, the court cited the psychological evaluation conducted in 2000 by Dr. Hinton, which described Mr. Mann as having lingering emotional effects of the 1985 accident. These evaluations led the court to conclude that, had evidence of Mr. Mann's serious brain injury and changes in personality been presented, it could have altered the balance of mitigating and aggravating factors.

Thus, the Ninth Circuit ruled that Mr. Mann was denied his Sixth Amendment right to effective assistance of counsel, and the case was remanded to the district court.

Discussion

This case highlights that effective assistance of counsel, in regard to mitigating and aggravating sentencing factors requires that any past incident that may have led to brain injury be fully investigated and presented. Of note, despite an evaluation being performed by a court-appointed psychologist during the sentencing phase, the Ninth Circuit cited the lack of an “independent” expert. This may suggest that court-appointed evaluators can be seen by some courts to favor the prosecution and that the defense should consider hiring its own experts.

Histories of concussions or other brain injuries are not uncommon and often have occurred many years before the time of an evaluation; in addition, there is often a lack of data about brain function before or shortly after such injuries. Although sparse information may limit a clinician's ability to draw conclusions about the relationship between present behavior or symptoms and past brain injuries, Mann suggests that fully investigating such incidents, including obtaining records and conducting neuropsychological tests, is an essential part of mitigation, especially in capital cases when a defendant's life is in the balance.

Consideration of prior brain injuries may be especially important when certain aspects of a defendant's personality, such as traits associated with antisocial personality disorder or psychopathy, which often accompany claims that a defendant is unable to experience remorse, are highlighted during sentencing. Because such characteristics may be related to head trauma or other brain injuries, a full investigation into such a possibility must be undertaken by defense counsel when questions related to a defendant's personality or empathic capacity are raised.

Globally, there is a trend toward the abolition of the death penalty. In the United States, there has been a movement to exclude certain groups of individuals, such as the intellectually impaired, from the death penalty based on the Eighth Amendment to the U.S. Constitution (Atkins v. Virginia, 536 U.S. 304 (2002)). Individuals with impairments such as head injuries or major mental illnesses may represent a group of similarly situated individuals. This trend suggests an increasingly important role of the forensic psychiatrist or psychologist in identifying such individuals in capital cases.