Mason v. Mitchell (CA6)

Mason v. Mitchell, No. 05-4511 (capital case) — The court granted relief on a claim of ineffective assistance of counsel at the penalty phase.

The petitioner was charged in September 1993 with aggravated murder, rape, and possession of a firearm by a prohibited possessor.  He was convicted in June 1994, and two weeks later the penalty phase began.  Counsel presented testimony from two deputy sheriffs regarding the petitioner’s good behavior in jail, and from his mother, brother, sister, and cousin, who asked for mercy.  The petitioner testified, continuing to protest his innocence and asking the jury for a life sentence so that he could complete the appeals process.  The defense rested, and the prosecution did not offer any rebuttal evidence.  After four and a half hours of deliberation, the jury informed the judge they could not reach a unanimous sentencing recommendation.  Once they had slept on it, they recommended a death sentence.  The Ohio Supreme Court ultimately affirmed the conviction and sentence.

Ultimately the petitioner filed a federal habeas petition, raising a claim of ineffective assistance at sentencing.  The district court denied relief initially, and the Sixth Circuit remanded for an evidentiary hearing.  The district court held the hearing and denied relief, and the petitioner appealed.

In light of the prevalent ABA Guidelines for representing capital defendants at the penalty hearing, the court found trial counsel’s performance deficient.  The guidelines required counsel to present all reasonably available mitigating evidence.  But counsel’s preparation consisted of a 75-minute phone call with the Ohio Public Defender’s office five days before the penalty hearing.  Counsel had before him only information provided by the state; he “inexplicably failed to conduct his own independent investigation and interview members of the petitioner’s family regarding the circumstances of his childhood and background.”  He did briefly interview a couple of family members, but only after he made the decision not to include any information about the petitioner’s childhood in his mitigation case.

The information the state had provided showed that the petitioner “was born into a drug-dependent family, that the family had in the past and currently was dealing drugs, and that both parents had been previously incarcerated for drug trafficking.”  A psychological evaluation of the petitioner at the age of 13 showed he “had been exposed to quite a lot of violence” and that he came “from a family which has had many problems over the years.”  A police report from that time indicated that the petitioner had suffered several injuries from a beating at the hands of his father.  His parents would whip him and his brothers, tie them up, and stab him.  Counsel failed to talk to the petitioner’s two sisters and two brothers, who could have confirmed this information.

The failure to present this missing information was prejudicial to the petitioner.  The petitioner only had to persuade one juror to impose a noncapital sentence, and the jury was initially deadlocked.  None of the family-background evidence gave rise to a potential for rebuttal by the state; indeed, the only evidence the prosecution considered using in rebuttal was a deposition from a psychologist regarding the extent of the petitioner’s past criminal behavior.  The Supreme Court has held that the failure to present the kind of mitigation evidence not presented here is prejudicial.  See Wiggins v. Smith, 539 U.S. 510 (2003). The Ohio Supreme Court’s ruling ran contrary to Wiggins, and thus the court ordered a new penalty hearing.

Judge Boggs dissented, arguing that counsel is not ineffective merely because the petitioner receives a death sentence.  “Although one might argue that trial counsel’s decision to forego a mitigation defense based on family history was a foolish one, it was not the product of a constitutionally deficient investigation….  He possessed all of the essential facts regarding the petitioner’s background necessary to make a reasonable strategic choice.”  Judge Boogs also complained that the ABA Guidelines were an “impossibly high” benchmark for defense counsel to achieve.