Mitigating Mental Health Evidence in Death Penalty Cases

Facts of the Case

In March 1992, Mr. Jones was drinking alcohol and using crystal methamphetamine with Robert Weaver in Mr. Weaver’s garage. At some point over the course of the evening, Mr. Jones killed Mr. Weaver with a baseball bat, assaulted Mr. Weaver’s grandmother, Katherine Gumina, with the bat, and killed Mr. Weaver’s daughter by hitting and suffocating her. After these attacks, Mr. Jones stole Mr. Weaver’s collection of guns and sold them, using that money to flee from Arizona to Nevada, where he was later arrested. He was indicted on two counts of murder in the first degree and one count of attempted murder. Ms. Gumina died from her injuries seven months later.

Mr. Jones was assigned a public defender who requested $5,000 from the court for expert witnesses and was authorized $2,000, which he split between a crime scene investigator and an addictionologist. Mr. Jones was convicted on all counts.

At the sentencing hearing the public defender presented testimony from Mr. Jones’s second stepfather, Randy Jones, who testified to multiple complications when Mr. Jones’s mother gave birth to him, as well as Mr. Jones’ experiencing numerous head injuries as a child. Randy Jones provided the history that Mr. Jones’s first step-grandfather introduced him to cannabis when he was nine or 10 years of age, noting that Mr. Jones had a significant personality and behavioral change around the age of 13 or 14, including problematic behaviors such as lying, skipping school, drinking, and using drugs.

In accordance with Arizona Rules of Criminal Procedure, the trial court appointed an independent forensic psychiatrist, Dr. Jack Potts, to examine Mr. Jones. Dr. Potts evaluated Mr. Jones for four hours. At sentencing, Dr. Potts testified that it would be valuable to have “some neurologic evaluations,” including an MRI, CT, and EEG, as well as additional neurological testing. He indicated a strong possibility that Mr. Jones had traumatic brain injury and possible organic neurologic dysfunction. Mr. Jones was given two death sentences, and the Supreme Court of Arizona affirmed his conviction and sentence on direct review.

Following his two first-degree murder convictions and subsequent death sentence, Mr. Jones filed a petition for a writ of habeas corpus, claiming ineffective assistance of counsel for defense counsel’s failure to hire a mental health expert and failure to obtain neurological and neuropsychological testing. The U.S. district court granted an evidentiary hearing and subsequently dismissed both claims. Mr. Jones appealed this dismissal, and the Ninth Circuit reversed and remanded the case to the district court with an order to issue a writ of certiorari. The state appealed and the U.S. Supreme Court granted certiorari, ultimately vacating the Ninth Circuit’s ruling and remanding the case for further consideration. On remand, the district court again denied the petition, which Mr. Jones appealed again to the Ninth Circuit.

Ruling and Reasoning

A panel of three judges for the Ninth Circuit Court of Appeals denied a petition for a panel rehearing and denied a petition for a rehearing en banc. The panel reversed and remanded the case for the second time, holding that Mr. Jones’ claims of ineffective counsel were reasonable, and they ordered that a writ of habeas corpus be issued.

In coming to their decision, the Ninth Circuit panel reviewed de novo the district court’s dismissal of Mr. Jones’s habeas petition. They found that the record indicated that the defending counsel’s failure to hire a mental health expert to present mitigating evidence, especially during the sentencing phase of a capital case, fell below “prevailing professional norms.” They noted that reliance on a court-appointed witness was not sufficient to present mitigating evidence, in part because a court-appointed witness is not obligated to further the interest of the defendant, and that not hiring a mental health defense expert in this case was not a strategic choice but rather the result of poor planning. The Ninth Circuit held that the defense’s failure to investigate further mental health factors satisfied the first prong of the Strickland standard for proving ineffective assistance of counsel: that counsel’s performance was deficient.

Regarding the second Strickland prong, whether counsel’s deficient performance prejudiced the defense, the Ninth Circuit panel’s de novo analysis led them to examine additional evidence that was presented in the federal district court hearing. This evidence included testimony from several other expert witnesses for the defense, including psychiatrist Dr. Pablo Stewart, psychologist Dr. David Foy, and neuropsychologist Dr. Alan Goldberg. The panel found that additional mental health assessment and testimony suggested that Mr. Jones had sustained numerous traumas, head injuries, and mental health diagnoses that were not adequately explored during his trial and that there was the reasonable probability that, had this information been presented during trial, the outcome of his sentencing might have been altered. Finding that both Strickland prongs for ineffective assistance were met, the panel reversed and remanded back to the district court.

Dissents

Judge Bennett, joined by eight other judges, dissented from the denial of rehearing en banc and said that the panel’s analysis lowered the high bar of the Strickland standard and failed to give proper deference to the district court’s findings. The dissent presented a point-by-point refutation of the additional evidence presented in the federal district court, which the panel considered potentially mitigating, arguing that evidence of cognitive impairment, posttraumatic stress disorder, attention deficit hyperactivity disorder, mood disorder, substance abuse, and new sexual and physical abuse evidence was all contestable or inconclusive. Ultimately, the dissent said that the panel gave excess weight to these potential mitigating factors over the overwhelming aggravating evidence, and that there was not a reasonable probability that the reweighing of evidence would change the sentencing outcome. The dissent also indicated that en banc review was warranted owing to the importance of the case and to “maintain uniformity” in its cases.

In a second dissenting opinion, three more of the Ninth Circuit judges also disagreed with the denial of rehearing en banc; they said that the panel should not have conducted a de novo review and should have given deference to the district court’s factual findings.

Discussion

This case highlights the necessity of thorough mental health evaluations in capital trials, especially during the sentencing phase. Given the life-and-death stakes in such cases, it is unsurprising that there are high expectations for defense attorneys to explore adequately any potential mitigating factors, and a failure to do so can result in ineffective assistance of counsel. That 12 of the Ninth Circuit judges dissented on grounds that this case should have been heard en banc also highlights the contentious nature and perceived importance of the question of mitigation in capital trials.

The Ninth Circuit’s reasoning in this case provides interesting insight into how courts might view mental health expert witnesses in capital trials. Dr. Potts, the psychiatrist in the original trial, was assessed by the Ninth Circuit to be an insufficient witness in part because he was court-appointed and therefore not under obligation to further the defense’s cause. This particular view of the psychiatrist as expert witness seems to contradict the forensic psychiatrist’s ethical imperative to “strive for objectivity,” regardless of the retaining party. Additionally, the Ninth Circuit panel appeared to give weight to factors like the number of potential different diagnoses uncovered or the sheer amount of time spent by an evaluator on a case (i.e., Dr. Stewart’s spending 130 hours on the case versus Dr. Potts’ “short and cursory” four-hour evaluation) when assessing potentially mitigating evidence. In performing assessments in capital cases, it is useful for forensic evaluators to be aware of how such factors may influence the court.

A final interesting question raised by this case is who will fund the in-depth mental health evaluations considered essential in death penalty cases. The original $2,000 allotted to Mr. Jones’s trial attorney would presumably have only covered a small fraction of a forensic psychiatrist’s 130 hours of billing time. It would seem unfair if the ability of a capital defendant to receive a just sentence were predicated in part on having sufficient money to hire forensic evaluators to do extensive work, but this scenario is a possible implication of the ruling in this case.