Choosing Not to Pursue a Mental Health Defense in a Capital Case

Facts of the Case

On April 17, 1995, Clark Elmore brutally raped and murdered his 14-year-old stepdaughter after an argument about his past sexual abuse of her. He concealed her body in a secluded area. When she was reported missing, he feigned concern before fleeing to another state. He eventually surrendered and gave a tape-recorded confession. He was charged with aggravated first-degree murder, initially refusing an attorney and attempting to plead guilty. The plea was refused, and a public defender, Jon Komorowski, who had no capital case experience, was appointed.

Attorney Komorowski believed Mr. Elmore to be mentally competent and assisted in preparing his guilty plea. Research by an assembled defense team that included two focus groups and a mock trial, suggested that a sentencing mitigation strategy based solely on remorse and personal responsibility was best and that presentation of mental illness or brain damage as mitigating factors might undermine that defense. In determining this strategy, Mr. Elmore was evaluated by two mental health experts, both of whom found him capable of complex and logical thinking, noting that he “appreciated the seriousness of his crime and tried to cover it up” (Elmore, p 1165). Mr. Elmore's plea was accepted, and the sentencing jury, having heard his “remorse” mitigation claim, unanimously recommended the death penalty.

Mr. Elmore litigated appeals through the state court system, raising numerous claims, including ineffective assistance of counsel for not pursuing potentially mitigating mental health claims. His conviction and sentence were affirmed by the Washington Supreme Court. He then filed a personal restraint petition in the same court, including the claim that counsel erred in not presenting evidence of his diminished mental capacity. The Washington Supreme Court then remanded the case to the superior court for an evidentiary hearing regarding that claim.

At the hearing, Mr. Komorowski provided detailed testimony regarding his choice of defense strategy and several mental health experts testified. In defending his remorse strategy, Attorney Komorowski noted concern about introducing “dueling mental health experts” (Elmore, p 1167) and thereby opening the door for the prosecution to introduce evidence of Mr. Elmore's sexual abuse of the victim and others. The experts testified whether Mr. Elmore's mental impairments may have adversely impacted his capacity to understand the crime committed or to control his behavior. Their opinions conflicted; the two defense psychologists maintained that the crime was committed under “an extreme emotional disturbance” which might have “reduced ability to control himself” or “impaired his ability to comply with the law.” The prosecution psychologist opined that at the time of crime, Mr. Elmore was “calm, calculating, able to conform conduct to requirements of law and … took rather significant measures during crime to cover it up,” and could be accurately characterized as “a thinking and calculating individual.” (Elmore, p 1167).

After reviewing the findings of the hearing, the state supreme court denied all of his claims and upheld the conviction and sentence (In re Elmore, 172 P.3d 335 (Wash. 2007)). He then filed a federal habeas petition, which was denied by the district court, leading to the appeal to the Ninth Circuit.

Ruling and Reasoning

The circuit court's analysis was guided by two sign posts: one a statutory mandate, the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, and the other the U.S. Supreme Court's construction of the Sixth Amendment right to counsel, which the Court set out in Strickland v. Washington, 466 U.S. 668 (1984). The statutory authority of federal courts to grant habeas corpus relief for persons in state custody is 28 U.S.C. § 2254 (2006), as amended by the AEDPA of 1996. To grant relief, a federal court must determine whether the state court's decision was “unreasonable” or opposite the conclusion reached by the U.S. Supreme Court on a question of law. A violation of the Sixth Amendment right to counsel is found when Strickland's two-pronged standard is met, namely demonstrating that counsel's performance “fell below an objective standard of reasonableness” and that the alleged deficient performance “prejudiced the defense,” to the extent that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different” (Elmore pp 1169–70, quoting Strickland, p 694). In addition, federal relief under the AEDPA requires a showing that the state adjudication was objectively unreasonable in denying the ineffective counsel claim, thus, federal courts are “doubly deferential” to state court judgments (Elmore, p 1168).

In its reasoning, the circuit court did specifically consider the soundness of trial counsel's decision to use a remorse strategy, as opposed to a psychological or brain disease strategy. The court concluded that given counsel's concerns about bolstering the remorse strategy, his decision to avoid a mental health defense was a reasonable one. In addition, the circuit court held that the state supreme court was not objectively unreasonable in dismissing claims of ineffective counsel, agreeing that counsel's pursuit of a “remorse defense” was a “reasonable strategic decision” (Elmore, p 1171).

Concurring (in part), Judge Hurwitz agreed with the majority opinion upholding Mr. Elmore's conviction and death sentence. His concurrence acknowledges, as did the majority opinion, the strictures placed on the federal courts by the AEDA and Strickland; the substantial deference afforded to final state court decisions; and the substantial deference Strickland affords trial counsel's strategy choices.