Bryan v. Mullin

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 21 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ROBERT LEROY BRYAN,
Petitioner-Appellant,
v. No. 00-6090
MIKE MULLIN, Warden, Oklahoma
State Penitentiary,
Respondent-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-97-1967-R)
Robert A. Nance of Riggs, Abney, Neal, Turpen, Orbison & Lewis (F. Andrew
Fugitt, with him on the briefs), Oklahoma City, Oklahoma, for Petitioner-
Appellant.
David M. Brockman, Assistant Attorney General (W.A. Drew Edmondson,
Attorney General of Oklahoma, with him on the briefs), Oklahoma City,
Oklahoma, for Respondent-Appellee.
Before TACHA , Chief Judge, SEYMOUR , EBEL , KELLY , HENRY ,
BRISCOE , LUCERO , MURPHY , HARTZ , and O’BRIEN , Circuit Judges. *
*
Judges Michael W. McConnell and Timothy M. Tymkovich joined the
court after oral argument in the instant case and did not participate in this
decision.
MURPHY , Circuit Judge.
I. INTRODUCTION
Robert Leroy Bryan was convicted in Oklahoma state court of first degree
malice murder and sentenced to death. See Bryan v. State (Bryan I), 935 P.2d
338 (Okla. Crim. App. 1997). After the Oklahoma Court of Criminal Appeals
denied his state petition for post-conviction relief, see Bryan v. State (Bryan II),
948 P.2d 1230 (Okla. Crim. App. 1997), Bryan filed the instant 28 U.S.C. § 2254habeas petition in federal district court, alleging, inter alia: (1) the state failed to
adduce sufficient evidence to support his conviction for first degree malice
murder; (2) counsel labored under a conflict of interest; (3) counsel was
ineffective at both the guilt and penalty phases of his trial because counsel failed
to present mental health evidence; and (4) he was incompetent to stand trial. The
district court denied relief. A panel of this court unanimously concluded that
Bryan was not entitled to relief on his evidence-sufficiency, conflict of interest,
and competency claims. See Bryan v. Gibson (Bryan III), 276 F.3d 1163, 1166-
68, 1172-75, 1168-72 (10th Cir. 2001); id. at 1179, 1180 (Henry, J., concurring
in part and dissenting in part). The panel, although divided, further held that trial
counsel had not rendered ineffective assistance during either the guilt or penalty
phase of the trial by failing to present mental health evidence. Compare id. at
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1172-79 (panel majority), with id. at 1182-85 (Henry, J., concurring in part and
dissenting in part). 1
A majority of the active judges of this court ordered the case reheard en
banc and requested that the parties brief whether trial counsel rendered
constitutionally ineffective assistance when he failed to present evidence of
Bryan’s mental illness “during either the guilt or penalty phases of the trial.” 2
Upon consideration of the parties’ briefs and submissions, we vacate that portion
of the panel opinion addressing Bryan’s claim of ineffective assistance of trial
counsel, see id. at 1175-79, and affirm the denial of habeas relief for the reasons
set out below. We do not reconsider as an en banc court the panel’s denial of
habeas relief as to Bryan’s evidence-sufficiency, competency, or conflict of
interest claims. See id. at 1166-68, 1168-72, 1172-75. Accordingly, all
remaining portions of the panel opinion remain undisturbed.
1
As to Bryan’s argument that his counsel rendered ineffective assistance
during the guilt phase of the trial, Judge Henry simply indicated as follows: “I
believe that counsel was ineffective in the guilt phase, but I will concentrate on
Mr. Bryan’s best argument: that he received unreasonably ineffective assistance
in the all-important ‘second’ or ‘sentencing phase.’” Bryan III, 276 F.3d at 1180(Henry, J., concurring in part and dissenting in part).
2
In his supplemental brief before the en banc court, Bryan focuses
exclusively on the question whether his trial counsel was ineffective in failing to
present potentially mitigating mental health evidence during the penalty phase of
the trial. He does not address at all whether counsel was constitutionally
ineffective during the guilt phase of the trial.
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II. BACKGROUND
A. Factual Background
The evidence presented at trial linking Bryan to the murder of his aunt,
Inabel Bryan, was almost entirely circumstantial. Inabel disappeared from her
home in September of 1993. A neighbor found tire marks at Inabel’s home
matching the tracks of a car Bryan had rented at that time. A potted plant was
also found at Inabel’s home; Bryan purchased that plant the day Inabel
disappeared. Police found Inabel’s body, and a receipt for the purchase of the
plant, several days after her disappearance on a parcel of property owned by
Bryan’s parents. Inabel died from a gunshot wound to the forehead; a pillowcase
was duct-taped over her head. There was a single set of vehicle tracks present at
the scene; the tracks matched the tread pattern of the right rear tire on Bryan’s
rental car.
Authorities searched the property where Inabel’s body was found because,
several years earlier, Bryan had solicited an undercover police officer to kidnap
and kill a local banker and dump the body at the same location. This solicitation
scheme included plans to force the banker to sign a number of fraudulent
promissory notes and personal checks. Similarly, in this case, Bryan possessed
several handwritten promissory notes and agreements in which Inabel purportedly
agreed she owed him millions of dollars as a result of an investment in his failed
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businesses. A handwriting expert testified Bryan wrote the agreements and
forged Inabel’s signature. Police also found in Bryan’s possession several of
Inabel’s personal checks. According to the expert, Bryan had forged Inabel’s
signature on one of the checks and had made four others signed by Inabel payable
to himself in varying amounts. Police found Inabel’s checkbook just outside the
Bryan home, burned in a can of ashes.
Before Inabel’s disappearance, Bryan rented a car from a local dealership.
When making the arrangements, he requested a car with a large trunk. When he
returned the car two days after Inabel’s disappearance, he could not pay the rental
fee. He did, however, show the owner of the dealership one of the forged
checks. Police found a hair in the trunk similar to the hair of the victim. They
also found grass and vegetation, like that on the property where Inabel’s body
was discovered, throughout the car’s undercarriage. Fibers lining the trunk were
similar to those on Inabel’s clothes and tape found on or near her body.
Police located additional evidence in Bryan’s bedroom tying Bryan to the
murder. They discovered a roll of duct tape of the same type as pieces found
near Inabel’s body and on the pillowcase over her head. An expert testified that
the edges of the tape taken from Bryan’s bedroom matched the edges of one of
the pieces of tape near Inabel’s body. Police also found ammunition in Bryan’s
bedroom consistent with the type of ammunition used to kill Inabel and
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consistent with a bullet in the rental car. A metallurgy study indicated that all the
bullets—the one that killed Inabel, the one in the rental car, and the ones in the
Bryan home—were manufactured at the same time and could have come from the
same box.
B. Additional Background
The issues before this court turn on evidence of Bryan’s mental health at
the time of the murder and the non-use of that evidence during both the guilt and
penalty phases of Bryan’s trial. As a consequence, some brief additional
background is in order.
Bryan has a history of organic brain disease, possibly related to his severe
case of diabetes mellitus, dating back to his mid-twenties. In 1989, when Bryan
was forty-nine-years-old, he was charged with solicitation of murder relating to
the scheme to kidnap and kill the banker described above. He was initially found
incompetent to stand trial and was sent to Eastern State Hospital in March of
1989 for treatment. Bryan was diagnosed as suffering from an organic delusional
disorder and was considered severely psychotic at the time of his admission to the
hospital. Doctors also discovered that Bryan’s brain exhibited significant signs
of atrophy. Doctors treated Bryan’s diabetes and medicated him with Navane, an
antipsychotic drug, until Bryan was determined competent in 1990.
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After Bryan was charged in 1993 with Inabel’s murder, Bryan’s family
hired Raymond Munkres to represent Bryan. At the arraignment, Munkres
expressed serious doubt as to Bryan’s competency and made an oral motion for a
competency determination. A jury trial on the question of Bryan’s competency
was eventually held on December 30, 1993. Because it was beyond the financial
resources of Bryan’s family, Munkres did not present any medical testimony at
the hearing. Instead, Munkres adduced the testimony of Mike Jackson, an
individual who volunteered his services to Munkres as an investigator. The
essence of Munkres’ presentation at the competency hearing was that Bryan was
incompetent because the version of events he described surrounding the murder
had no basis in reality, but that Bryan nonetheless sincerely believed in the
veracity of his version of events. The jury concluded that Bryan had failed to
demonstrate that he was incompetent to undergo further criminal proceedings. 3
On January 3, 1994, just four days after the competency trial was
completed, Bryan filed a letter with the trial court indicating as follows: “I wish
to advise the court that as [of] this date I am dismissing my attorney of record
3
This competency hearing failed to comply with the dictates of the United
States Supreme Court’s decision in Cooper v. Oklahoma, 517 U.S. 348 (1996),
because Bryan was required to prove his incompetence to stand trial by clear and
convincing evidence. See Bryan I, 935 P.2d at 347. Accordingly, a retrospective
competency hearing was conducted in 1996 utilizing the proper preponderance-
of-the-evidence standard; Bryan was also found competent during this
proceeding. See id.; Bryan III, 276 F.3d at 1168-72.
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because of philosophical differences in how this case should proceed in my best
and most aggressive defense to the charges leveled against me.” The trial court
allowed Munkres to withdraw from the case and appointed the Oklahoma
Indigent Defense System (“OIDS”) to represent Bryan.
Wesley Gibson of the OIDS replaced Munkres as Bryan’s attorney. Like
Munkres, Gibson could not verify Bryan’s version of the events surrounding the
murder. Gibson hired Dr. J.R. Smith, a board-certified psychiatrist, to evaluate
Bryan. It was Dr. Smith’s opinion that Bryan’s “delusional system and
circumstantiality of thought (as well as the fluctuating blood sugar levels) affect
his ability to assist his attorney in his own defense. He produces volumes of
information that are irrelevant and often erroneous (but believed by the patient).”
Based on the information provided by Dr. Smith, Gibson requested a second
competency hearing. At a hearing on the application, the trial court considered
the testimony of Gibson and the sheriff in charge of the jail where Bryan was
housed, as well as the affidavit of Dr. Smith. The trial court denied the
application for a new competency hearing, concluding that there was no doubt
that Bryan was then competent.
Gibson continued to represent Bryan until May of 1994, when he had a
slight stroke. He was replaced by Steven Hess, also of the OIDS. Hess
continued to consult medical experts and hired Dr. Philip Murphy, a clinical
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psychologist, to evaluate Bryan. Based on an evaluation which included
numerous psychological tests and a review of relevant medical records, Dr.
Murphy concluded as follows: “Mr. Bryan suffers from a serious mental disorder
which places into serious question his competence to stand trial, as well as his
legal culpability in the crimes for which he is charged.”
Based on the opinions expressed by Drs. Smith and Murphy, and the two
unsuccessful attempts to challenge Bryan’s competency, Hess thought it was in
Bryan’s best interest to utilize an insanity defense rather than to continue to
litigate the competency issue. Accordingly, Hess filed a notice of intent to rely
on the insanity defense and a witness list setting out expert witnesses, including
particularly Drs. Smith and Murphy, in support of such a defense. When Hess
informed Bryan and his parents that he intended to utilize an insanity defense,
both Bryan and his parents expressed their disapproval. Shortly thereafter, Bryan
and his parents informed Hess that he would be replaced by privately retained
counsel. In so doing, they indicated that Hess was being replaced because he had
filed the notice to rely on an insanity defense.
Hess was replaced by Jack Freeman. Freeman contacted Hess and
indicated that he would be Hess’ replacement. He also set up a meeting with
Hess and the medical experts. Hess turned over Bryan’s file to Freeman,
including all of the records and expert reports on Bryan’s mental health.
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Freeman did not ultimately present any mental health evidence during either the
guilt or penalty phase of Bryan’s trial, although he arranged for Dr. Murphy to be
available in case his testimony would be helpful during the guilt phase of the
trial.
III. ANALYSIS
A. Standard of Review
On direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”),
Bryan asserted that Freeman was ineffective during both the guilt and penalty
phases of the trial because he failed to present evidence of Bryan’s mental
illness. 4 Contemporaneously with the filing of his opening brief on direct appeal,
Bryan filed an application for an evidentiary hearing, supported by affidavits,
seeking a hearing on the issue of trial counsel’s ineffectiveness for “failure to
utilize available evidence of [Bryan’s] mental illness at any point in the trial.”
The OCCA did not specifically reject Bryan’s request for an evidentiary hearing;
it did so implicitly, however, when it proceeded to the merits of Bryan’s
ineffective assistance claims without an evidentiary hearing and denied him
relief. See Bryan I, 935 P.2d at 263.
On direct appeal to the OCCA, Bryan was represented by William Luker
4
of the OIDS.
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In the instant § 2254 habeas corpus petition, Bryan asserted the same
claims of ineffective assistance he asserted in state court. The federal district
court granted Bryan an evidentiary hearing, made findings of fact and
conclusions of law, and denied relief. Although the respondent contended before
the district court that an evidentiary hearing was unnecessary because “there is
plenty of information in the record before this Court to make that determination,”
he did not raise the propriety of that hearing before this court. Accordingly, the
panel declined to address the question whether the district court should have
granted Bryan an evidentiary hearing on his claims of ineffective assistance. See
Bryan III, 276 F.3d at 1172 n.6 (citing Romano v. Gibson, 239 F.3d 1156, 1174
n.9 (10th Cir. 2001) (declining to consider propriety of district court’s grant of an
evidentiary hearing when such hearing had already taken place and respondent
had not challenged on appeal district court’s decision to grant hearing)).
In the order granting rehearing en banc, this court instructed the parties to
address the following questions:
Did the district court’s decision to take evidence on Mr. Bryan’s
claim that his counsel was ineffective in failing to present mental
health evidence at trial comport with 28 U.S.C. § 2254(e)(2)? By
failing to argue the issue on appeal, did the government waive its
objection to the district court’s grant of an evidentiary hearing?
In his supplemental brief, the respondent cites Romano and asserts that the issue
is not “properly before this court for review at this time” because he did not
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appeal the district court’s grant of an evidentiary hearing. The respondent
nevertheless proceeds to brief the issue on the merits and again asserts that an
evidentiary hearing was unnecessary because “there [was] plenty of information
in the [existing state court] record” to decide the merits of Bryan’s claims of
ineffective assistance. We conclude that the district court’s decision to grant
Bryan an evidentiary hearing on his claims of ineffective assistance did not
contravene 28 U.S.C. § 2254(e)(2). Accordingly, it is unnecessary to determine
what steps a respondent must undertake to preserve an objection, predicated on §
2254(e)(2), to a district court decision to grant a habeas petitioner an evidentiary
hearing.
Section 2254(e)(2) provides that “[i]f the applicant has failed to develop
the factual basis of a claim in State court proceedings, the court shall not hold an
evidentiary hearing on the claim unless the applicant” satisfies one of the two
exceptions set out in § 2254(e)(2)(A) or (B). If, however, the petitioner did not
“fail[] to develop the factual basis of [his] claim in State court,” id., § 2254(e)(2)
is not applicable and a federal habeas court should proceed to analyze whether a
hearing is appropriate or required under pre-AEDPA standards. Miller v.
Champion, 161 F.3d 1249, 1253 (10th Cir. 1998). Under those standards, Bryan
is entitled to an evidentiary hearing “so long as his allegations, if true and not
contravened by the existing factual record, would entitle him to habeas relief.”
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Id. See generally Medina v. Barnes, 71 F.3d 363, 369-71 (10th Cir. 1995)
(discussing at length pre-AEDPA standard for obtaining an evidentiary hearing).
In his supplemental brief before the en banc court, the respondent does not
dispute that Bryan diligently sought to develop the factual basis underlying his
claims of ineffective assistance in state court. 5 Instead, he argues that the
evidentiary hearing was inappropriate because Bryan’s allegations “are
contravened by the existing record.” Respondent’s Brief at 19. Notably,
however, the respondent does not identify those portions of the state court record
which allegedly contravene the allegations of ineffective assistance set out in
Bryan’s § 2254 habeas petition. Instead, he broadly asserts that the trial record
contained sufficient information to allow the OCCA to decide the merits of
Bryan’s claims without an evidentiary hearing and that, in light of that record, the
decision of the OCCA rejecting Bryan’s claims of ineffective assistance is neither
5
See Williams v. Taylor, 529 U.S. 420, 432 (2000) (“Under the opening
clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not
established unless there is lack of diligence, or some greater fault, attributable to
the prisoner or the prisoner’s counsel.”); Miller v. Champion, 161 F.3d 1249,
1253 (10th Cir. 1998) (noting that the petitioner had sought and been denied an
evidentiary hearing in state court and concluding that where “a habeas petitioner
has diligently sought to develop the factual basis underlying his habeas petition,
but a state court has prevented him from doing so, § 2254(e)(2) does not apply”).
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contrary to nor an unreasonable interpretation of governing Supreme Court
precedent. 6
We find the respondent’s argument, which is not supported by a single
citation to the state court record, unconvincing. This court has reviewed the
entire state court record, including the transcript of the retrospective competency
hearing. Although that record contains much information relevant to the question
whether Freeman’s failure to utilize mental health evidence during both the guilt
and penalty phases of Bryan’s trial was constitutionally ineffective, it is missing
key testimony from Freeman regarding what he knew and understood about
Bryan’s mental health history and, most importantly, why he decided not to
utilize that evidence. It is exactly this information Bryan sought to develop in
state court when he requested an evidentiary hearing before the OCCA. Because
Bryan diligently sought to “develop the factual basis of [his] claim in State court
proceedings,” § 2254(e)(2) does not bar an evidentiary hearing.
Accordingly, the appropriate question is whether Bryan was entitled to a
hearing under pre-AEDPA law. See Miller, 161 F.3d at 1253 (holding that pre-
AEDPA standards govern question of propriety of granting an evidentiary
6
See Respondent’s Brief at 20 (“[B]ecause Petitioner did develop his
ineffective assistance of trial counsel [claim] for not presenting the mental health
evidence there was sufficient information in the record to determine if the state
court decision was contrary to, or an unreasonable application of, clearly
established law.”).
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hearing when a petitioner diligently sought to develop the factual basis of his
claim in state court and citing Medina, 71 F.3d at 368-69, as setting out the
controlling pre-AEDPA standard). The answer to that question is clearly “yes.”
See Medina, 71 F.3d at 369-70 (examining controlling Supreme Court cases and
holding that those cases require “an evidentiary hearing when the facts were not
adequately developed in the state court, so long as that failure is not attributable
to the petitioner”).
Having determined that the district court correctly afforded Bryan an
evidentiary hearing on his claims of ineffective assistance, the appropriate
standard of review is that set out in Miller.
[I]neffective assistance claim[s] present[] a mixed question of law
and fact. Because our analysis of this claim primarily involves
consideration of legal principles, we review this claim de novo.
Further, we note that because the state court did not hold any
evidentiary hearing, we are in the same position to evaluate the
factual record as it was. Accordingly, to the extent the state court’s
dismissal of [petitioner’s ineffective assistance claim] was based on
its own factual findings, we need not afford those findings any
deference.
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Miller, 161 F.3d at 1254 (citations omitted). 7 But see Valdez v. Cockrell, 274
F.3d 941, 953 (5th Cir. 2001) (specifically rejecting Miller approach and holding
instead that even where a petitioner was denied a full and fair hearing, federal
court is obligated to apply the deferential review standards set out in § 2254(d)
and (e)). 8 In these circumstances, this court accepts the district court’s factual
findings unless they are clearly erroneous and reviews de novo whether counsel’s
performance was legally deficient and whether the deficiencies prejudiced the
defendant. See United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995).
B. Discussion
“A convicted defendant’s [or habeas petitioner’s] claim that counsel’s
assistance was so defective as to require reversal of a conviction or death
sentence has two components.” Strickland v. Washington, 466 U.S. 668, 687
7
In light of Miller, the panel erred in applying the deferential review
standards set out in § 2254(d) and (e) in reviewing Bryan’s claims that his trial
counsel was ineffective. See Bryan III, 276 F.3d at 1177 (concluding that
OCCA’s resolution of Bryan’s claim of ineffective assistance during guilt phase
was not contrary to or an unreasonable application of Supreme Court precedent
pursuant to § 2254(d)(1)); id. (same as regards OCCA’s resolution of Bryan’s
claim of ineffective assistance during penalty phase).
8
In a published dissent from the denial of rehearing en banc, four judges of
the Fifth Circuit registered their agreement with Miller and noted that the rule
adopted by the Fifth Circuit mandated the perverse result of deferring to legal
and factual determinations made by state courts, even though a habeas petitioner
had never been afforded a full and fair opportunity to develop the factual basis of
his claim in state court. See Valdez v. Cockrell, 288 F.3d 702, 703-05 (5th Cir.
2002) (Dennis, J., dissenting from the denial of the Petition for Rehearing En
Banc).
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(1984); see also id. at 697 (“The principles governing ineffectiveness claims
should apply in federal collateral proceedings as they do on direct appeal or in
motions for a new trial.”). To be entitled to relief, a petitioner must prove both
that his counsel’s performance was deficient and that the deficient performance
prejudiced his defense. See id. at 687 (“Unless a defendant makes both
showings, it cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result unreliable.”). To carry
his burden of demonstrating that counsel’s performance was deficient, a
petitioner must show “that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. To carry his burden of demonstrating prejudice, a petitioner must show “that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id.
The Supreme Court has made clear that “there is no reason for a court
deciding an ineffective assistance claim to approach the inquiry in [any particular
order] or even to address both components of the inquiry if the defendant makes
an insufficient showing on one.” Id. at 697. As set out more fully below, this
court resolves Bryan’s claim of ineffective assistance on the basis of Strickland’s
performance prong. For that reason, and because it is important to reemphasize
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that “[j]udicial scrutiny of counsel’s performance must be highly deferential,” we
set out the Supreme Court’s teachings on the matter at some length. Id. at 689.
The proper measure of attorney performance is that of reasonably effective
assistance under prevailing professional norms, considering all of the
surrounding circumstances. Id. at 687-88. The Court has been crystal clear that
“[j]udicial scrutiny of counsel’s performance must be highly deferential. It is all
too tempting for a defendant to secondguess counsel’s assistance after conviction
or adverse sentence, and it is all too easy for a court, examining counsel’s
defense after it has proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable. ” Id. at 689. For that reason, a reviewing
court must “reconstruct the circumstances of counsel’s challenged conduct [and]
evaluate [that] conduct from counsel’s perspective at the time.” Id.; see also id.
at 690 (“[A] court deciding an actual ineffectiveness claim must judge the
reasonableness of counsel’s challenged conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.”). Because of the difficulties
that inhere in such a process, “a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689 (emphasis added). The importance of this presumption
cannot be overstated. This is made clear by the Court’s repeated invocation of
the “strong presumption” that counsel provided constitutionally adequate
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assistance. See id. at 690 (“[T]he court should recognize that counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.”); id. at 696 (“In every case
the court should be concerned with whether, despite the strong presumption of
reliability, the result of the particular proceeding is unreliable because of a
breakdown in the adversarial process that our system counts on to produce just
results.”).
Thus, this court must analyze whether Bryan has adduced sufficient
evidence to overcome the strong presumption that trial counsel provided
constitutionally adequate assistance during both the guilt and penalty phase of
Bryan’s capital trial. In so doing, we recognize the “need to apply even closer
scrutiny when reviewing attorney performance during the sentencing phase of a
capital case.” Battenfield v. Gibson, 236 F.3d 1215, 1226 (10th Cir. 2001)
(quotations omitted).
1. Failure to present mental health evidence during the guilt phase
In his brief before the panel, 9 Bryan contended that Freeman should have
presented evidence of his mental illness during the trial’s guilt stage in support of
either an insanity defense or in support of a second-degree murder instruction. In
9
As noted above, Bryan’s counsel ignored this court’s request that he
address in his supplemental en banc brief the question of the effectiveness of
trial counsel’s performance during the guilt phase. See supra n.2.
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particular, Bryan relies on a report prepared by Dr. Murphy for the defense in
May of 1994 which indicates that “Mr. Bryan suffers from a serious mental
disorder which places into serious question . . . his legal culpability in the crimes
for which he is charged.” Bryan asserts that this evidence, when coupled with
the interview performed by Dr. Smith, evidence derived from CAT and SPECT
scans of Bryan’s brain, and the Eastern State Hospital records, casts doubt on his
ability to form an intent to kill.
Bryan’s arguments regarding the viability of a guilt-phase insanity defense
are completely at odds with the testimony adduced at the evidentiary hearing
conducted by the district court. To assert an insanity defense, “Oklahoma . . .
requir[es] the defendant to show that at the time of the crime he suffered from a
mental disease or defect rendering him unable to differentiate between right and
wrong, or unable to understand the nature and consequences of his actions.”
James v. Gibson, 211 F.3d 543, 553 (10th Cir. 2000) (quotation omitted).
Despite the statements in Dr. Murphy’s May 1994 report relied upon so heavily
by Bryan, Freeman testified unequivocally that both Drs. Murphy and Smith told
him that Bryan was not legally insane and that he relied on the doctors’ opinions
in formulating his trial strategy. 10 Freeman’s testimony in this regard was fully
10
Freeman testified as follows:
Counsel: Do you recall at that County Line meeting what Dr.
(continued...)
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corroborated by testimony provided by Hess at the federal evidentiary hearing.
Hess specifically testified there was no medical evidence indicating that Bryan
did not understand the consequences of his actions and no medical evidence that
would provide a defense during the guilt phase of the trial. Instead of presenting
a viable defense based on medical evidence during the guilt phase of the trial,
Hess’ strategy was to utilize the guilt phase to lay the foundation for a mitigation
10
(...continued)
Smith’s opinion was as to the petitioner’s sanity?
....
Freeman: Yes, sir, I do, because that was one of the things that
I wanted to learn was where we stood on the matter of insanity
question. And Dr. Smith’s response was, in being asked a question
as to whether or not Mr. Bryan was legally insane, that he was not. I
believe what he said was, if I refresh my recollection, that he might
be crazy but he was not legally insane.
....
Counsel: Mr. Freeman, we were discussing your meeting with
certain members of the defense team at the County Line Restaurant.
Now, let me ask you: Do you recall that Dr. Smith provided you an
opinion as to whether the petitioner could or could not form the
intent to kill?
Freeman: No, sir, I do not remember. I do not recollect him
giving me any such opinion.
Counsel: You do recall or do you recall, though, that he gave
you an opinion as to legal sanity?
Freeman: Yes.
Counsel: And did Dr. Murphy give you an opinion, likewise?
Freeman: Yes, he did.
Counsel: And was it the same as Dr. Smith’s, essentially?
Freeman: Yes, sir.
Counsel: And did you rely on the opinion of these experts?
Freeman: Yes, sir.
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case at the penalty phase. 11 Accordingly, Freeman lacked the medical evidence
necessary to present an insanity defense at the guilt stage of Bryan’s trial. 12
11
Hess testified as follows:
Counsel: After you had talked with some various experts and
talked with Mr. Bryan and conducted your investigation, did you
arrive at a strategy for how to defend the case?
Hess: Yes, I did.
Counsel: And what was that strategy, please?
Hess: We filed a notice of intent to rely on the insanity
defense, the reason being the version of the case that was provided
with—by Mr. Bryan varied very little over the two months that I
spent talking to him. It was the same story every time we talked.
That factual basis provided by Mr. Bryan did not meet what
the factual basis was as the evidence in this case showed, and our
belief was to put Mr. Bryan—try the case, put Mr. Bryan on the
stand in Stage 1, let him tell the jury his story, and then follow that
up with either Dr. Smith or Dr. Murphy, to start laying the
groundwork for where all my evidence was invariably going to go,
which was a Stage 2 mental health defense in mitigation to—in an
attempt to save Mr. Bryan from the death sentence.
12
Nor would the medical evidence Freeman possessed have supported an
instruction for second degree murder. Under Oklahoma law, second degree
murder “occurs ‘[w]hen perpetrated by an act imminently dangerous to another
person and evincing a depraved mind, regardless of human life, although without
any premeditated design to effect the death of any particular individual.’” Gilson
v. State, 8 P.3d 883, 917 (Okla. Crim. App. 2000) (quoting Okla. Stat. Ann. tit.
21, § 701.8(1)). The facts in this case do not suggest the lack of a premeditated
intent to kill the victim. Rather, Inabel was abducted from her home and shot,
having had a pillowcase taped over her head. Further, as the testimony of Hess
and Freeman set out above demonstrate, there was simply no evidence available
at trial specifically indicating Bryan was not capable of forming the requisite
intent for first degree malice murder.
-22-
Significantly, Bryan did not want his attorney to present evidence
suggesting he was mentally ill 13; he was also apparently unwilling to accept a
guilty plea to avoid a possible death sentence. 14 This court must presume that
Bryan was competent to rationally assist defense counsel at trial, as he was
adjudicated competent at the retrospective competency hearing. See Bryan III,
276 F.3d at 1169-72. “The reasonableness of counsel’s actions may be
determined or substantially influenced by the defendant’s own statements or
actions. Counsel’s actions are usually based, quite properly, on informed
Bryan testified at the federal evidentiary hearing as follows:
13
Counsel: Mr. Bryan, is it fair to say that neither you nor your
parents wanted Mr. Freeman or any earlier lawyer, for that matter, to
use any evidence of your alleged mental evidence in court?
Bryan: That’s correct.
Counsel: Was that clearly communicated to Mr. Freeman?
Bryan: It was.
14
With regard to the possibility of a plea agreement, Gibson, Bryan’s first
OIDS attorney, testified as follows during Bryan’s retrospective competency
hearing:
Gibson: There were considerable plea negotiations in the case.
There were plea offers of plea—again, my discussions and advice to
Mr. Bryan was on numerous occasions that he accept those offers.
....
Counsel: Well, Mr. Gibson, since its been opened up, what
was the only offer ever made to you for a recommendation in regard
to this man?
Gibson: I don’t want to misspeak, [Counsel]. There were
discussions and I’m not absolutely sure whether a firm offer was
made or what some DA’s would consider an offer, but I—it was my
understanding and what I communicated to Mr. Bryan was that the
State would accept a plea, even a plea of nolo contendere to a life
without parole sentence.
-23-
strategic choices made by the defendant and on information supplied by the
defendant.” Strickland, 466 U.S. at 691; see also Romano, 239 F.3d at 1181(collecting cases for this proposition). “Although trial counsel has an
independent duty to investigate and make a case in [defense], counsel also has to
be responsive to the wishes of his client.” Romano, 239 F.3d at 1181; see also
Wallace v. Ward, 191 F.3d 1235, 1247-48 (10th Cir. 1999) (concluding counsel’s
decision to acquiesce to petitioner’s wishes that attorney not present any
mitigating evidence during penalty phase was not deficient performance).
Additionally, the prosecution’s case, although strong, was almost entirely
circumstantial. See Smith v. Gibson, 197 F.3d 454, 461-62 (10th Cir. 1999)
(holding defense counsel’s innocence-based defense was reasonable strategy in
light of circumstantial nature of prosecution’s case). There was evidence
admitted at trial indicating that Bryan’s physical condition had so deteriorated at
the time of the murder, due to his diabetes, that he was physically incapable of
carrying out this crime.
Accordingly, based on the record before this court, it appears that Freeman
had two options during the guilt phase of the trial. He could put the prosecution
to its burden of proof, as he was specifically instructed to do by Bryan. Or,
alternatively, he could present a non-viable insanity defense, as foundation for a
mitigation case during the penalty phase, the very strategy that led to Bryan’s
-24-
termination of Munkres 15 and Hess. Freeman’s decision to follow the former
course—after meeting with the medical experts, reviewing all of the additional
medical evidence, consulting with Bryan on numerous occasions, and noting the
circumstantial nature of the prosecution’s case and the evidence of Bryan’s
deteriorated health—is not objectively unreasonable. See Strickland, 466 U.S. at
690 (“[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.”).
2. Failure to present mental health evidence during the penalty phase
In his supplemental brief before the en banc court, Bryan argues that
Freeman provided objectively unreasonable representation during the penalty
phase of the trial through ignorance of the law and failure to act as a
knowledgeable guide and advisor. In particular, Bryan asserts that Freeman did
not understand the importance of thoroughly investigating and presenting
mitigating evidence as demonstrated by his view that evidence of mental illness
short of insanity was not relevant during the penalty phase. He further asserts
that in light of this failure, Freeman “failed adequately to advise Mr. Bryan
regarding the mitigating evidence which was available and its potential benefits.”
As noted above, Bryan replaced Munkres four days after Bryan’s first
15
competency trial because of “philosophical differences in how this case should
proceed in my best and most aggressive defense to the charges leveled against
me.” See supra Section II.B., at 7.
-25-
This court finds Bryan’s arguments unconvincing on several levels. First,
Freeman’s testimony at the federal evidentiary hearing relied upon by Bryan in
support of his claim that Freeman did not understand the relevance of Bryan’s
mental health evidence is presented out of context and is clearly insufficient to
overcome the strong presumption that Freeman “rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690. Second, Hess clearly testified that he
discussed with Bryan his preferred strategy of utilizing mental health evidence
during both the guilt and penalty phases of Bryan’s trial, with a focus on the
penalty phase and preventing a sentence of death, and that Bryan had vigorously
rejected the use of mental health evidence and terminated him. Accordingly,
Bryan was certainly apprised of the benefits of using mental health evidence in
mitigation at the penalty phase and rejected that strategy. Freeman was well
aware of this history, having spent an extensive amount of time with Bryan 16 and
having met with Hess to discuss the case and the available mental health
evidence. Finally, the only testimony adduced at the federal evidentiary hearing
on the question demonstrates that the use of mental health evidence during the
penalty phase would not have been effective following a guilt phase defense of
16
Freeman testified at Bryan’s retrospective competency hearing that he
spent between 1200 and 1500 hours working on Bryan’s case and that “the bulk
of that would have been with Mr. Bryan.”
-26-
actual innocence. See infra n.22. Accordingly, Freeman’s decision not to
employ medical evidence, viewed from “his perspective at the time” of the trial,
is not objectively unreasonable. Strickland, 466 U.S. at 689.
Relying on limited portions of Freeman’s testimony at the evidentiary
hearing held by the district court, Bryan argues that Freeman did not understand
the potential usefulness of mental health evidence during the penalty phase,
instead thinking that such evidence was irrelevant unless it demonstrated insanity
or lack of competence. A review of Freeman’s statements in context, however,
confirms the district court’s conclusion that “[t]rial counsel’s decision not to
present evidence of Petitioner’s organic brain syndrome and mental illness [at the
penalty phase] was clearly a strategic one.” 17
For instance, Bryan notes at the evidentiary hearing, Freeman responded
affirmatively to the following cross-examination question: “So you saw no use
for the experts’ mental testimony, except to prove either insanity or
incompetence, right?” When read in context, however, it is clear that Freeman is
17
Cf. Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998)
(“Inquiries into strategic or tactical decisions challenged as ineffective assistance
of counsel involve both a factual and a legal component. The question of
whether an attorney’s actions were actually the product of a tactical or strategic
decision is an issue of fact . . . . By contrast, the question of whether the
strategic or tactical decision is reasonable enough to fall within the wide range of
professional competence is an issue of law not one of fact . . . .”).
-27-
referring only to the guilt stage of the trial. 18 Furthermore, Bryan simply
misreads the transcript in asserting Freeman testified that he thought the
testimony of the medical experts “would not have been relevant at all.” Instead,
when read in context, Freeman was indicating that it was the opinion of Bryan’s
parents that was irrelevant to his determination not to mount an insanity defense
18
Freeman testified during cross-examination as follows:
Counsel: Now, Leroy . . . could have had public defenders put
on the organic brain damage evidence and the mental health
evidence at no cost to Leroy or to the family, right?
Freeman: That’s right.
....
Counsel: And your strategy was to try to create a reasonable
doubt by basically attacking the testimony and the credibility of the
State’s witnesses?
Freeman: Yes, sir.
....
Counsel: And you resolved to create that reasonable doubt
without using any of the mental health experts?
Freeman: Yes, sir.
....
Counsel: Okay. And you allowed the mental health witnesses
to stay on the witness list that you finally went to trial with, right?
Freeman: Yes, sir.
Counsel: And you did that in the hopes that maybe they would
come up with something where they could say Leroy was insane or
he was incompetent, right?
Freeman: That was a part of it. The other part was that I
didn’t want to cut my options and I didn’t want the district attorney
to know that I might not raise that defense, because I wanted them to
be concerned about other things that I could create for them to be
concerned with.
Counsel: So you saw no use for the experts’ mental testimony,
except to prove either insanity or incompetence, right?
Freeman: That’s right.
-28-
during the guilt phase of the trial, not the opinions of the medical experts. 19 Nor
can it be asserted that Freeman thought that he was ethically prohibited from
presenting mental health evidence during the penalty phase of the trial. Instead,
taken in context, Freeman’s testimony reflects the fact that he had no medical
evidence supporting a guilt-phase insanity defense and that he was fearful that
any testimony by Dr. Murphy during the second stage would do more harm than
good. 20
19
Freeman testified on cross-examination as follows:
Counsel: Now, you [indicated] on direct . . . that it was in the
final preparation for the trial that Leroy’s parents first told you they
didn’t think he was insane?
Freeman: It was at some time during the preparation, closer to
trial time than closer to the time I was hired. . . .
Counsel: Would I be correct in saying that Leroy’s parents
vociferously and adamantly denied there was anything wrong with
Leroy?
Freeman: Yes, they did. You’d be correct in saying that.
Counsel: And you were guided by that judgment rather than
the judgment of the doctors, weren’t you?
Freeman: No. No. No matter what, they stated—the doctors
had said that Mr. Bryan was neither incompetent to stand trial or was
not insane at the time and could form the intent and so forth. What
they said would not have been relevant at all.
Counsel: Okay. And if any mental health expert was not
going to say that he was legally insane or he was legally
incompetent, he wasn’t going to be of any benefit to you, right?
Freeman: That was my feeling.
Counsel: All right. There was no question in your mind,
though, that Leroy’s parents thought he was not mentally ill?
The Court: He’s made that clear.
20
Freeman testified as follows in this regard:
(continued...)
-29-
20
(...continued)
Counsel: Now, what arrangements did you make with Dr.
Murphy regarding his testimony in the second stage of the trial?
Freeman: I arranged with him to come to Elk City the evening
before we anticipated calling him if we were going to call him. . . .
And then that evening, though, after having evaluated the evidence
that was presented by the State in the second stage, and as I recollect
we had put on some of our evidence, I determined that in putting
him on with the conclusion that he was going to give the State, that
although he would say that there were brain abnormalities in Mr.
Bryan’s brain, that his bottom line, his conclusions were that he had
the ability to form intent, that he knew what he was doing and he
knew the consequences of his acts.
And I was fearful that if I did that, that would just more nearly
accentuate the position of the State, that he was prone to be and
could be a danger to society and would probably hurt my case more
than it would help it. So I elected not to call him and I called him
that evening and told him that he could go back home.
....
Counsel: In your own words, please explain your second-stage
trial strategy in this case.
Freeman: We had taken the position throughout the trial, by
reason of the fact that I could not demonstrate by medical testimony
or evidence that Mr. Bryan was insane, he had already been
determined competent on, I believe, either two or three occasions,
. . . that if I raised that as a defense and put on that evidence . . . I
started a process and I couldn’t get to where I wanted to go ethically
and honestly because they were not going to say that he was insane.
If I tried to do that, then I compromised Mr. Bryan’s position
in the trial of the case and elected to make the State prove and
try—beyond a reasonable doubt and try to create a sufficient doubt
that the jury would believe that he had not committed the offense
with which he was charged.
In the second stage, then, as I said, Dr. Smith was out. He
hadn’t been considered for some time because of what he said. I had
visited on either two or three occasions with Dr. Murphy, and he had
told me, you know, that he found brain abnormalities, but that the
(continued...)
-30-
Accordingly, when viewed as a whole, the testimony at the evidentiary
hearing simply does not support Bryan’s assertion that Freeman suffered under a
misapprehension as to the propriety of adducing mental health evidence short of
an insanity diagnosis during the penalty phase of the trial. Instead, the testimony
set out above demonstrates a concern with two considerations. First, Freeman
was concerned that testimony by either Dr. Smith or Dr. Murphy might play into
the prosecution’s case that Bryan was a continuing threat to society. See Cannon
v. Gibson, 259 F.3d 1253, 1277-28 (10th Cir. 2001) (noting that mental health
evidence like that at issue here has the possibility of being a “two-edged
sword”). 21 Second, Freeman was concerned that an about-face during the penalty
(...continued)
20
bottom line was that he could form the intent, that he knew the
difference in right and wrong, and that he knew the consequences of
his acts.
And as I say, in the second stage, I felt that I would
compromise myself if I tried to get into that or compromise Mr.
Bryan and myself and I was fearful that his testimony would simply
support the theory and the evidence of the State.
21
Hess admitted the truth of this proposition under cross-examination at the
evidentiary hearing:
Counsel: Regarding mitigation evidence, and particularly
evidence of a psychological problem with the defendant, would you
agree that that sometimes can be a double-edged sword in a capital
case?
Hess: Very much so.
Counsel: And that often a jury might accept evidence of
psychological or emotional problems as evidence of aggravation?
Hess: Yes, sir. I’ve had that happen in several cases.
-31-
phase might compromise Bryan in the eyes of the jurors. 22 Bryan has simply not
pointed to any evidence in the record sufficient to overcome the “strong
presumption” that Freeman’s decision not to present mental health evidence
during the penalty phase of the trial was a strategic decision. Strickland, 466
U.S. at 689. 23
Having determined that Freeman’s decision not to present mental health
evidence during the penalty phase was strategic, this court moves on to the
question whether that strategic decision was reasonable when viewed from
Freeman’s perspective at the time of the trial. See id. at 690. Perhaps most
importantly, Bryan did not want Freeman to present any psychiatric evidence,
Bryan’s legal expert witness, Tim Wilson, testified during the evidentiary
22
hearing that this was an important consideration:
Counsel: You mentioned that sometimes the second stage
investigation ends up being used in the first stage. Why does that
happen?
Wilson: Well, the kiss of death in death penalty litigation
would be to have an inconsistent defense to—pardon the expression
“kiss of death,” but to run a denial—typically a denial defense in
first stage and then in second stage suddenly turn around and
introduce remorse and things like that are inconsistent and simply
don’t work. And the theory is that both stages must dovetail
together. You should try to front-load as much of your mitigation as
possible in an effort to save your client’s life.
23
See also Bullock v. Carver, 297 F.3d 1036, 1047, 1051 (10th Cir. 2002)
(noting that although the ultimate question is always whether counsel’s
performance fell below an objective standard of reasonableness, “where it is
shown that a challenged action was, in fact, an adequately informed strategic
choice, we heighten our presumption of objective reasonableness and presume
that the attorney’s decision is nearly unchallengeable”).
-32-
was adamant about pursuing an innocence defense during the guilt phase of his
trial, and had apparently refused to even consider a guilty plea in exchange for a
life sentence. See, e.g., Romano, 239 F.3d at 1181; Smith v. Massey, 235 F.3d
1259, 1278 (10th Cir. 2000); Wallace, 191 F.3d at 1247-48. This court must
presume that Bryan was competent to make that determination. See Bryan III,
276 F.3d at 1169-72. Furthermore, the record reveals that Hess specifically
discussed with Bryan his proposed strategy of utilizing mental health evidence
during the first stage of the trial as a foundation for a strong mitigation case
during the penalty phase of the trial, asserting that this was the only viable
strategy to save Bryan’s life. 24 In response, Bryan terminated Hess and hired
Freeman. Freeman, well aware of this history after having met with Hess to
discuss the case, and well aware that no medical expert would support a guilt-
phase insanity defense, complied with Bryan’s informed strategic choice and put
the government to its proof at trial.
It is worth emphasizing again what was stated above: “Counsel’s actions
are usually based, quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant.” Strickland, 466 U.S. at
691. Although this strategy limited Bryan’s options during the penalty phase, it
24
As noted above, Bryan’s legal expert, Wilson, concurred with Hess’
assessment that to be effective mitigation evidence, the mental health evidence
had to be incorporated into the guilt phase of the trial. See supra n.22.
-33-
was not objectively unreasonable for Freeman to utilize an innocence defense
during the guilt phase for those reasons set out above. Furthermore, in light of
the testimony of Hess, Wilson, and Freeman regarding the need for consistency
between guilt and penalty phase presentations, and the possibility that Dr.
Murphy’s testimony during the second stage could have supported the
prosecution’s argument that Bryan constituted a continuing threat to society, it
was not unreasonable for Freeman to utilize a mercy approach during the penalty
phase. 25 Bryan has simply not overcome the strong presumption set out in
25
The dissent relies on the Supreme Court’s recent decision in Wiggins v.
Smith, 123 S. Ct. 2527 (2003), to support its assertion that Freeman’s
performance during the penalty phase was ineffective because Freeman did not
present evidence of Bryan’s mental illness. In Wiggins, however, the basis of the
petitioner’s claim was that his counsel’s failure to present potential mitigation
evidence flowed from the failure to conduct an adequate investigation. See id. at
2535 (“In this case, as in Strickland, petitioner’s claim stems from counsel’s
decision to limit the scope of their investigation into potential mitigation
evidence.”). The Court began its analysis of petitioner’s claim by noting as
follows: “[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and stratgic choices
made after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on investigation.”
Id. at 2535 (quotation omitted). Because petitioner’s counsel had conducted a
plainly inadequate investigation, and because copious and powerful mitigating
evidence would have been discovered if an adequate investigation would have
been conducted, the court concluded that counsel’s failure to present mitigation
evidence during the penalty phase was not insulated from review as a strategic
decision and was, in fact, unreasonable. Id. at 2541-42.
As set out at length above, there is no question that Freeman was fully
aware of Bryan’s history of mental illness. Well aware of that history, and its
failure to provide a defense at the guilt stage of the trial, Freeman complied with
(continued...)
-34-
Strickland that Freeman provided objectively reasonable assistance during the
penalty phase of the trial. 26
IV. CONCLUSION
This court cannot say, under the facts set out above, that Freeman’s
strategic choice not to present mental health evidence during Bryan’s trial was
objectively unreasonable. “There are countless ways to provide effective
assistance in any given case.” Strickland, 466 U.S. at 689; see also Nix v.
Whiteside, 475 U.S. 157, 165 (1986). We are mindful that it is “all too easy for a
court, examining counsel’s defense after it has proved unsuccessful, to conclude
that a particular act or omission of counsel was unreasonable.” Strickland, 466
25
(...continued)
his competent client’s wishes to put the government to its burden of proof at the
guilt stage of the trial. Aware of the serious problems associated with presenting
inconsistent theories during the guilt and penalty phases, concerned that Dr.
Murphy’s testimony might do more harm than good during the penalty phase, and
conscious of his client’s consistently expressed refusal to rely on mental health
evidence, Freeman made a strategic choice to seek mercy during the penalty
phase. This strategic choice is “virtually unchallengeable.” Id. at 2535. Wiggins
simply does not speak at all to the circumstances of this case.
26
Bryan seems to assert that, even independent of the question of the use of
medical evidence during the penalty phase, Freeman’s presentation was deficient.
He does not, however, present a Strickland analysis of anything other than the
failure to utilize the medical evidence. Accordingly, this court does not consider
the matter further. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th
Cir. 1998) (holding that “[a]rguments inadequately briefed in the opening brief
are waived”).
-35-
U.S. at 689. Thus, “in considering claims of ineffective assistance of counsel, we
address not what is prudent or [even] appropriate, but only what is
constitutionally compelled.” Burger v. Kemp, 483 U.S. 776, 794 (1987)
(quotation omitted). In this case, Bryan has failed to establish that “in light of all
the circumstances, [counsel’s] identified acts or omissions were outside the wide
range of professionally competent assistance.” Strickland, 466 U.S. at 690.
-36-
HENRY, J., concurring in part and dissenting in part; Judges SEYMOUR,
EBEL, and LUCERO, join:
RE: 00-6090, Bryan v. Mullin
Robert Leroy Bryan is a delusional, severely diabetic victim of organic
brain damage. He had been charged with solicitation of murder several years
previous to this crime, but was found incompetent and subsequently
institutionalized. Unfortunately for many, after intensive treatment, he was
released. Amazingly, he was not monitored. Mr. Bryan’s illness manifested
itself again in his deluded and tragic actions that led to the case at hand. Mr.
Bryan repeated the most significant portions of his earlier attempted crime, using
the same location to conceal the body that he had revealed to the police in the
solicitation crime and the same tactic of seeking to use unsigned and forged
checks to repay his “business losses.” He “repeated” his previous crime, but this
time, he killed his Aunt Inabel, whom he believed (and this is not contested)
owed him several million dollars from cheating him out of fictional monies owed
for fictional inventions.
Despite the compelling evidence in the record regarding Mr. Bryan’s
history of mental illness, and despite the fact that the sentencing jury never heard
that evidence, the majority concludes that Mr. Bryan did not receive ineffective
assistance of counsel at sentencing. The majority concludes that Mr. Freeman
was fully aware of the potential use of mental health testimony at sentencing, but
that his client forbade the use of this compelling testimony in the sentencing
phase. The majority also notes that counsel feared adopting an approach in the
sentencing phase that might appear inconsistent with the guilt phase strategy.
And, the majority concludes that counsel was concerned that the mental health
testimony might be viewed to support future dangerousness.
This reasoning is untenable. Mr. Bryan’s counsel provided the most
ineffective defense I have ever seen, amounting to a concession of guilt and
relating none of the reams of compelling mitigating evidence. First, the record
shows that Mr. Bryan’s counsel clearly did not even understand that the mental
health evidence might have been used in an attempt to reduce Mr. Bryan’s
culpability at sentencing. Next, case law and common sense make clear that
counsel’s reliance on directions from a deeply disturbed client such as Mr. Bryan
cannot insulate him from his duty to present mitigating evidence. Third, counsel
did not inform his client about the purpose of the sentencing stage and what role
the mental health history might have played, thus, further negating any reliance
on Mr. Bryan’s wishes. Finally, counsel’s performance at Mr. Bryan’s sentencing
cannot be insulated by conferring upon it an ex post strategy that did not exist.
Similarly, we cannot insulate an unreasonable tactic not to present mitigating
evidence by labeling it a two-edged sword. Mr. Bryan’s lawyer was clearly
ineffective as a matter of law.
-2-
I. BACKGROUND
Mr. Bryan had three defense attorneys (two of them court-appointed)
before his parents, seeking to help him, fired his public defender and mortgaged
their home to hire Mr. Freeman. Mr. Freeman, in what was his third capital case,
charged the elderly Bryans the sum of $50,000 for his services. Had the Bryans
not tried to help, paradoxically, I believe that Leroy Bryan would not be facing
execution today.
Mr. Bryan sincerely relayed the same intricate plots and stories to all four
of his attorneys, explaining the circumstances regarding the murder in elaborate
and unwavering detail, which apparently had no factual basis at all. All four
attorneys agreed, however, that Mr. Bryan adamantly and genuinely believed this
story to be true. In addition, each attorney explained the difficulties he had in
attempting to communicate with Mr. Bryan, and explained that no facet of Mr.
Bryan’s outrageous stories could be confirmed. At times he appeared delusional,
would ramble, appeared agitated, and would exhibit apparent paranoia through
bizarre discourses concerning attorneys, bankers, jailers, and even a judge, all of
whom, Mr. Bryan believe, were out to get him. See e.g. Retro. Comp. Hr’g, vol.
II, at 285, 301 (Mr. Bryan exhibited “what to me was paranoid delusional talk,
and then that coupled with the fact that the information was all unverifiable or
incorrect.” “He simply was not able to separate reality from fiction.”) (testim. of
-3-
Wesley Gibson, former counsel); id. vol. I, at 229 (“[A]s for a rational
communication effectively assisting me, I didn’t see it.”) (testim. of Steven B.
Hess, previous counsel).
All the three previous counsel also indicated that they did not believe Mr.
Bryan was able to assist in his defense. Two medical experts, well-versed in Mr.
Bryan’s medical history and also familiar with his delusions and history of mental
illness, also testified that Mr. Bryan was unable to assist in his defense, because
he suffered from an irreversible brain pathology, chronic paranoid schizophrenia.
There was evidence also of organic delusional disorder, evidenced by a brain
SPECT scan. 1
Only one “expert” examined Mr. Bryan for the State. The expert’s cursory
one-hour evaluation, which preceded the trial by more than one year, produced no
evidence of a mental illness at the time of the exam. The expert testified that he
did not review the complete discharge summary from Mr. Bryan’s earlier
commitment to Eastern State Hospital, which revealed that Mr. Bryan suffered
from organic delusional disorder. This expert, who was conducting his third or
perhaps his fourth such evaluation at the time, acknowledged that Mr. Bryan’s
delusional disorder might be so well integrated that he would not have been able
to discern it during his evaluation. This expert never spoke with Mr. Bryan on
1
The SPECT scan, like all the evidence proving organic brain damage,
was never presented to the jury.
-4-
any topic relating to his delusions, which were only apparent when the
conversation turned to a topic related to his paranoia, or his fictional schemes.
This expert was, incredibly, unfamiliar with Navane, the anti-psychotic agent and
“most important drug” that Mr. Bryan was prescribed while at Eastern State. See
Retro. Comp. Hr’g, vol. I., at 138 (testim. of Dr. Philip J. Murphy). Thus, he was
familiar with neither Mr. Bryan’s record of treatment nor his treatment.
Although the State initially offered to sentence him to life without parole,
as the majority points out, Mr. Bryan stands today on the brink of execution,
because his final lawyer’s “strategy” was to hide from the jury any suggestion of
the above evidence at either the guilt or the sentencing phases. Influenced
perhaps by Mr. Freeman’s underwriters–Mr. Bryan’s parents–and also by Mr.
Bryan’s insistence upon his mental clarity, Mr. Freeman, who admits that he did
little preparation for the crucial sentencing phase, supposedly adopted a “residual
doubt” strategy, after that terminological haven was offered to him by the State
during postconviction proceedings. His “residual doubt” strategy entailed
admitting in his closing argument that Bryan had “killed” his aunt, and that this
act was “vile.”
Despite counsel’s purported familiarity with the above history, and his
admission that the stories relayed in all sincerity by Mr. Bryan were unrealistic
and “crazy,” and despite the remaining reams of documentation supporting Mr.
-5-
Bryan’s organic brain disorder, Mr. Freeman apparently thought the better tack
was to pretend Mr. Bryan was a perfectly normal defendant who was in a bad
spot. Thus, Mr. Freeman presented none of the information discussed above to
the jury.
So, found guilty and given no coherent defense in the sentencing phase,
Mr. Bryan is sentenced to die. His competency called into question again, a
constitutionally “disfavored” new competency hearing was ordered, where the
jury was fully informed of the nature of his crime, the persons affected thereby,
his conviction, and his sentence–essentially suggesting that he might be released
if not found competent. Not surprisingly, the jury found Mr. Bryan, clad
throughout the proceedings in his prison issue orange jumpsuit, competent. 2
2
Curiously, we have infrequently deemed it necessary to assess the
propriety of such questionable hearings. The record reveals that the prospective
jurors were told about the crime, and about Mr. Bryan’s conviction and that they
were simply revisiting Mr. Bryan’s competency at the time of the crime.
I regret that out of the pool of twelve prospective jurors, several knew Mr.
Bryan personally, having lived close by. One attended church with Mr. Bryan,
and knew him through church events. Another was a former student from Mr.
Bryan’s science class. At least two had read about the crime, had followed the
trial in the newspapers, and had formed opinions about Mr. Bryan’s guilt. Retro.
Comp. Hr’g, vol. I, at 20 (“Yeah. I believe he done it.”). The final six chosen to
serve included Mr. Bryan’s former student, and the juror who testified that she
believed Mr Bryan had committed the crime. Mr Bryan was also easily
identifiable by witnesses and jurors alike, because he wore the orange jumpsuit
of a convicted inmate.
Although the makeup of the jury has not been contested and is not
contested by Mr. Bryan, I am even more inclined to disfavor reliance on such
retrospective hearings when the jurors are informed of the conviction and his
(continued...)
-6-
The Supreme Court recently reminded us that
“retribution and deterrence of capital crimes by prospective offenders
[are] the social purposes served by the death penalty. Unless the
imposition of the death penalty on a mentally retarded person
“measurably contributes to one or both of these goals, it is nothing
more than the purposeless and needless imposition of pain and
suffering, and hence an unconstitutional punishment.”
Atkins v. Virginia, 536 U.S. 304, 319 (2002) (quoting Enmund v. Florida, 458
U.S. 782, 798 (1982)). As discussed in detail below, the imposition by the State
of Oklahoma of the death penalty against Mr. Bryan contributes nothing to either
of these two legitimate goals, and also is not constitutional.
2
(...continued)
status on death row facing execution before and while they pondered his
competency, and while staring at his convict’s orange jumpsuit. I would hope
that in holding a retrospective competency hearing, a judge, and the OCCA,
would “foresee the possibility of a jury becoming so incensed or angered about
the circumstances of a crime that the decision regarding [competence] is unduly
influenced. The . . . hearing . . . would seek to forestall that possibility and
assist” the court. Murphy v. State, 54 P.3d 556, 569 n.24 (Okla. Crim. App.
2002) (outlining aspirations for “an Atkins hearing”). Similarly, the hearing
should “not to be a mere rubber-stamping of the jury’s factual determinations, but
an independent review of the evidence of [competency] by an objective, neutral
[jury], uninfluenced by the nature and circumstances of the crime, the persons
affected thereby, or any outside influence.” Id. at n.25. Clearly, Mr. Bryan
benefitted from no such insulation of the jury at his retrospective competency
hearing.
-7-
II. OVERVIEW
Before turning to the disagreements I have with the majority’s approach, I
must compliment the majority’s studiously fair recitation of the case’s
background. And, I concur with the majority’s conclusion in Part III.A that Mr.
Bryan was entitled to an evidentiary hearing before the district court, and that
pursuant to Miller, we review de novo whether counsel’s performance was
legally deficient and whether the deficiencies prejudiced the defendant.
As to the majority’s conclusion that Mr. Freeman did not provide
ineffective assistance of counsel at the guilt phase, as stated in my original panel
dissent, I believe Mr. Freeman’s performance was ineffective for failing to
introduce evidence of Mr. Bryan’s mental illness. However, as I did previously, I
will focus on Mr. Bryan’s strongest argument, that is, whether Mr. Freeman’s
performance at the sentencing stage was similarly ineffective.
As stated in my original panel dissent, even under AEDPA’s rigid and
deferential standard of review, I believe that the OCCA unreasonably applied
federal law when it concluded that Mr. Freeman’s performance was effective.
See Bryan v. Gibson, 276 F.3d 1163, 1171-85 (10th Cir. 2001) (Henry, J.,
dissenting). However, given our de novo review of Mr. Freeman’s performance,
this conclusion is that much easier to reach. Mr Freeman’s performance during
the sentencing phase fell outside the range of professionally competent assistance
-8-
and constituted ineffective assistance of counsel for failure to present testimony
regarding Mr. Bryan’s history of mental illness.
A. The Majority’s Holdings Regarding Counsel’s Performance at
Sentencing
The majority summarizes Mr. Bryan’s ineffective assistance claim at
sentencing as twofold: first, that Mr. Freeman did not understand that he did not
have to establish incompetence to present mental health evidence in mitigation;
and second, that Mr. Freeman failed to advise and inform Mr. Bryan of the use
and potential benefit of the mental health evidence. As to Mr. Freeman’s
ignorance, the majority responds that the evidentiary hearing testimony
establishes that Mr. Freeman was well-versed in the use of mental health history
at the sentencing phase. The majority also relies on Mr. Freeman’s hesitance to
use the information because it might provide support for the continuing threat to
society aggravator. And, in response to the challenge to Mr. Freeman’s failure to
explain the import and significance of the sentencing phase to his client, the
majority relies on Mr. Bryan’s perceived instructions not to present an insanity
defense and defends Mr. Freeman’s strategy at sentencing.
B. Summary of Why the Majority Opinion Fails
-9-
Upon a very close examination of these unique facts, the faulty premises of
these arguments emerge. First, Mr. Freeman did not fully appreciate the nature
of the testimony offered by the medical experts regarding his client’s condition.
The testimony presented at the evidentiary hearing clearly establishes that Mr.
Freeman felt compelled to present mental health testimony only if it would be
“useful,” that is, to establish incompetence. He did not recognize that testimony
of organic brain damage, delusions, and that his client was “crazy” would be
valuable mitigation evidence.
Second, a client’s wishes or direction as to the approach at sentencing is
not unassailable and is by no means binding, even in a case where there is little
or no indication of mental distress. Here, society’s real interest is in securing a
just result that accurately assesses the culpability of those it prosecutes.
Additionally, there is evidence that Mr. Bryan’s parents influenced the decision
not to present any of this compelling evidence.
Third, Mr. Freeman did not adequately inform his client about the purpose
of the sentencing phase or the nature of the evidence that might be presented.
The majority errs by relying on Mr. Freeman’s reliance on conversations his
client may have had with previous counsel as to the purpose of, and strategy
behind, the sentencing phase.
-10-
Fourth, the majority mischaracterizes Mr. Freeman’s “strategic decision” to
adopt a “residual doubt” strategy because of the “need for consistency” between
the guilt and sentencing phases. Unquestionably, consistency between the phases
is ideal, but Mr. Freeman’s purported strategy did nothing to preserve such
consistency – his sentencing strategy squarely contradicted his guilt phase
approach. The majority implicitly admits as much recognizing that Mr.
Freeman’s residual doubt approach was at best weak, and by characterizing it as a
“mercy” approach. The majority also credits Mr. Freeman’s concerns about the
mental health evidence serving to support the continuing threat aggravator,
without consideration of the particular mitigating evidence present before us. As
a whole, Mr. Freeman’s sentencing stage performance was completely
deficient–resulting in a residual doubt strategy that admitted the crime–and hence
resulted in prejudice to his client.
III. DISCUSSION
A. Deficiency of Counsel’s Performance
In reviewing Mr. Freeman’s performance, we bear in mind that “‘[o]ur duty
to search for constitutional error with painstaking care is never more exacting
than it is in a capital case.’” Mitchell v. Gibson, 262 F.3d 1036, 1063 (10th Cir.
2001) (quoting Kyles v. Whitley, 514 U.S. 419, 422 (1995) (internal quotation
-11-
marks omitted)). The Supreme Court has held that it is critical to the reliability
of a capital sentencing proceeding that the jury render an individualized decision.
See Gregg v. Georgia, 428 U.S. 153, 206 (1976) (in upholding the Georgia
capital sentencing scheme at issue, emphasizing that “[t]he new Georgia
sentencing procedures . . . focus the jury’s attention on the particularized nature
of the crime and the particularized characteristics of the individual defendant”)
(emphasis added). “The jury in this case was effectively walled off from key
mitigating evidence that went to the particularized characteristics of the
individual defendant.” Id. at 206. No judge or jury has ever weighed Mr.
Bryan’s “particularized characteristics” in deciding whether the death penalty
would be a constitutionally appropriate punishment.
“The sentencing stage is the most critical phase of a death penalty case.
Any competent counsel knows the importance of thoroughly investigating and
presenting mitigating evidence.” Romano v. Gibson, 239 F.3d 1156, 1180 (10th
Cir. 2001). “[T]he sentencer may not refuse to consider or be precluded from
considering ‘any relevant mitigating evidence.’” Skipper v. South Carolina, 476
U.S. 1, 4 (1986) (quoting Eddings v. Oklahoma, 455 U.S. 104, 114 (1982)).
Accordingly, “the sentence imposed at the penalty stage should reflect a reasoned
moral response to the defendant’s background, character, and crime.” California
v. Brown, 479 U.S. 538, 545 (1987) (emphasis in original) (O’Connor, J.,
-12-
concurring); see also Mayes v. Gibson, 210 F.3d 1284, 1288 (10th Cir. 2000)
(noting that mitigation evidence “affords an opportunity to humanize and
explain– to individualize a defendant outside the constraints of the normal rules
of evidence”). “Consideration of such evidence is a ‘constitutionally
indispensable part of the process of inflicting the penalty of death.’” Brown, 479
U.S. at 541 (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976)
(plurality)).
Thus, a criminal defendant who is charged with a capital offense has the
right to present virtually any evidence in mitigation at the penalty phase. See
Hitchcock v. Dugger, 481 U.S. 393, 399 (1987). “We are therefore compelled to
insure that the sentencing jury makes an individualized decision while equipped
with the ‘fullest information possible concerning the defendant's life and
characteristics,’ and must scrutinize carefully any decision by counsel which
deprives a capital defendant of all mitigation evidence.” Mayes, 210 F.3d at
1288 (quoting Lockett v. Ohio, 438 U.S. 586, 603 (1978)). When examining
counsel’s investigation and presentation of mitigation evidence, “the right to
present mitigating evidence to the jury is constitutionally protected,” Mayes, 210
F.3d at 1288, and, as the majority points out, that there is a corresponding “need
to apply even closer scrutiny when reviewing attorney performance during the
sentencing phase of a capital case.” Battenfield v. Gibson, 236 F.3d 1215, 1226
-13-
(10th Cir. 2001) (quoting Cooks v. Ward, 165 F.3d 1283, 1294 (10th Cir. 1998));
see also Duckett v. Mullin, 306 F.3d 982, 997 (10th Cir. 2002) (same) (quoting
Battenfield).
a. Counsel’s Ignorance of the Use of Mental Health Testimony at
Sentencing
The majority asserts that Mr. Freeman appreciated the nature of the reports
and conclusions offered by two psychiatrists, Drs. John R. Smith and Philip J.
Murphy. Dr. Smith made the following conclusions regarding Mr. Bryan’s
mental state:
[Mr. Bryan suffers from an] extensive paranoid delusional system,
fragmentation of thought, circumstantial thinking, and . . . diabetes.
[The] delusional system and circumstantiality of thought . . . affect his
ability to assist his attorney in his own defense.
....
While he has an understanding of the charges against him, as
many schizophrenic people do, this is no way modifies their real belief
in their delusional system and cannot be interpreted accurately by the
court to mean that he is capable, as in a person without a serious mental
disorder, of participating in their own defense.
Evid. Hr’g Ex. 1.
Dr. Murphy reported that “Mr. Bryan suffers from a serious mental
disorder which places into serious question his competence to stand trial, as well
as his legal culpability in the crimes for which he is charged.” Evid. Hr’g Tr. at
-14-
95. Finally, in language that Mr. Freeman should have clearly understood, both
Drs. Smith and Murphy referred to Mr. Bryan as “crazy.” Evid. Hr’g Tr. at 83;
Retro. Comp. Hr’g, vol. I, at 135.
In addition, Dr. E. William Allen, testified about the results of Mr. Bryan’s
SPECT scan. The SPECT scan results independently verified the preliminary
tests performed by Drs. Murphy and Smith. The SPECT scan enables one to
detect areas of dead or severely damaged brain tissue. Dr. Allen concluded that
Mr. Bryan suffered from multiple areas of brain damage that raised serious
concerns. He also noted that the brain deterioration was irreversible. As to what
the SPECT scan indicated and would have shown had it been presented, Dr.
Murphy later testified that Mr. Bryan suffered from “organic delusional
disorder,” meaning, in Dr. Murphy’s words, that Mr. Bryan is “crazy” and suffers
from “paranoid,” “grandiose,” and “persecutory” thinking. Retro. Comp. Hr’g
vol. I, at 135.
In response to such reports, Mr. Freeman stated that he understood both
Drs. Smith and Murphy to have said that Mr. Bryan was crazy, but that he was
not legally insane. Mr. Freeman feared that because Mr. Bryan had the ability to
form intent, that any testimony regarding his mental distress would indicate that
Mr. Bryan was a danger to society.
-15-
In response to the request to “please explain your second-stage trial
strategy in this case,” Mr. Freeman responded:
We had taken the position throughout the trial, by reason of the fact
that I could not demonstrate by medical testimony or evidence that Mr.
Bryan was insane, he had already been determined competent on, I
believe, either two or three occasions, two juries in Beckham County
and one other doctor, plus the doctor in Granite had determined that he
was competent, that if I raised that as a defense and put on that
evidence, No. 1, I started a process and I couldn’t get to where I
wanted to go ethically and honestly because they were not going to say
he was insane.
If I tried to do that, then I compromised Mr. Bryan’s position in the
trial of the case and elected to make the State prove and try – beyond
a reasonable doubt and try to create a sufficient doubt that the jury
would believe that he had not committed the offense with which he was
charged.
In the second stage, then, as I said, Dr. Smith was out. He hadn’t been
considered for some time because of what he said. I had visited on
either two or three occasions with Dr. Murphy, and he had told me, you
know, that he found brain abnormalities, but that the bottom line was
that he could form the intent, that he knew the difference in right and
wrong, and that he knew the consequences of his acts.
And as I say, in the second stage, I felt that I would compromise myself
if I tried to get into that or compromise Mr Bryan and myself and I was
fearful that his testimony would simply support the theory of the State.
Evid. Hr’g Tr. at 86-87. Besides underestimating Dr. Murphy’s written report I
quoted earlier, nowhere did Mr. Freeman apparently consider or recognize the
preeminent purpose of sentencing–to create an individualized history of Mr.
Bryan in hopes that the jury might base its sentencing decision on the fullest
information available. Nowhere did Mr. Freeman recognize that Mr. Bryan’s
-16-
organic delusional disorder might serve to humanize his client. Mr. Freeman
determined that if the experts could not say Mr. Bryan was insane or incompetent
at the trial stage, their testimony that he was delusional, “crazy,” and had
substantial dead brain tissue was therefore excluded because it was irrelevant. 3
Similarly, because no expert would say that Mr. Bryan was insane or
incompetent, their testimony, he incredibly believed, was rendered useless for any
portion of the trial. 4
Additionally, and perhaps even more telling, Mr. Freeman never asked Dr.
Allen about the importance of his findings. See Evid. Hr’g Tr. at 98. Mr.
3
As to note 19 of the majority opinion, I think it is not completely clear
whether Mr. Freeman had shifted gears and was commenting of the relevance of
the parents’ statements rather than those of the medical experts. In any event,
under any reading of the evidentiary hearing testimony, Mr. Freeman’s utter
disregard of the nature of the medical experts’ testimony is resoundingly clear.
4
Despite this, Mr. Freeman testified to the following:
Q: Up to this point, it has not occurred to you, has it, that if Leroy
were organically brain damaged and mentally ill he might not be
executed?
Mr. Freeman: It occurs to me that if that were a current opinion
based upon his current condition then your answer might be true.
Q: But if that were true at the time of trial, the jury might not have
given him the death penalty, right?
Mr. Freeman: They might not have.
Evid. Hr’g Tr. at 110.
-17-
Freeman never appreciated the visual uses of the SPECT scan. At the evidentiary
hearing, both former counsel Mr. Hess and defense expert and assistant public
defender Tim Wilson underscored the importance of the SPECT scan. See e.g.
Evid. Hr’g Tr. at 33 (“The major issue for mitigation would have been the
SPECT scan.”) (testim. of Steven B. Hess, previous counsel); id. at 58 (“[The
SPECT scan] makes a great exhibit.”) (testim. of Tim Wilson). And Mr.
Freeman, whose understanding of the SPECT scan was limited, never intended to
have Dr. Allen testify, which would have clearly and independently verified the
clinical results found by the psychiatrists.
Mr. Bryan had no appreciation that psychiatric mitigating evidence not
only can act in mitigation, it also could significantly blunt the force of the
aggravating factors. “[T]here is a great difference between failing to present
evidence sufficient to establish incompetency at trial and failing to pursue mental
health mitigating evidence at all.” Hardwick v. Crosby, 320 F.3d 1127, 1164
(11th Cir. 2003) (quoting Blanco v. Singletary, 943 F.2d 1477, 1503 (11th Cir.
1991)). The majority ignores the possibility that “[o]ne can be competent to
stand trial and yet suffer from mental health problems that the sentencing jury
and judge should have had an opportunity to consider.” Id. I cannot agree that
Mr. Freeman’s approach to the sentencing phase, which amounted to a denial of
-18-
any of Mr. Bryan’s serious and evident mental disorders, was justifiable or
reasonable.
b. Mr. Bryan’s Wishes Regarding Mental Health Evidence
Mr. Freeman attempts to defend his blueprint for the sentencing phase by
relying heavily upon his client’s wishes that he not present evidence of mental
health history. Despite the unrefuted evidence of Mr. Bryan’s longstanding
delusions, the majority’s holding adopts Mr. Freeman’s argument, which
contradicts case law from this and other circuits.
(i) Mr. Bryan’s desires are not sacrosanct
“Most importantly,” asserts the majority, “[Mr.] Bryan did not want [Mr.]
Freeman to present any psychiatric evidence.” Maj. Op. at 32. The majority thus
supplies a shield for Mr. Freeman: his “competent” client told him not to present
evidence of mental health. In light of Mr. Bryan’s long history of mental illness,
it is difficult to characterize his decision as an informed strategic choice.
“In every trial there is more at stake than just the interests of the accused.”
Mayberry v. Pennsylvania, 400 U.S. 455, 468 (1971) (Burger, C. J., concurring).
“Mitigating evidence plays an overwhelmingly important role in the ‘just
imposition of the death penalty. . . . As a practical matter, the defendant
probably has little or no chance of avoiding the death sentence unless the defense
-19-
counsel gives the jury something to counter both the horror of the crime and the
limited information the prosecution has introduced about the defendant.”
Romano, 239 F.3d at 1180 (internal quotation marks omitted).
A defendant’s desires not to present mitigating evidence do not terminate
counsel’s responsibilities during the sentencing phase of a death penalty trial:
“The reason lawyers may not ‘blindly follow’ such commands is that although the
decision whether to use such evidence is for the client, the lawyer first must
evaluate potential avenues and advise the client of those offering potential
merit.” Blanco, 943 F.2d at 1502 (internal quotation marks omitted). See id. at
n.19 (“We note that a defendant’s decision concerning the use of mitigating
evidence is more an aspect of overall strategy than a decision as to which
witnesses would provide the best legal support for a defense.”); see also State v.
Hightower, 518 A.2d 482, 483 (N.J. Super. Ct. App. Div. 1986) (noting that
despite competent defendant’s preference to simply appeal the guilt determination
and forego defense at sentencing hearing, counsel should insist upon presenting
any evidence of mitigating factors, because “[i]f the jury did not hear the
evidence allegedly in mitigation, it could have difficulty discharging its statutory,
and indeed moral, duty” to weigh aggravating and mitigating factors).
Thus, although Mr. Bryan was deemed competent at the constitutionally
disfavored, and in this case highly suspect, retrospective competency hearing, see
-20-
McGregor v. Gibson, 248 F.3d 946, 962 (10th Cir. 2001) (“Retrospective
competency hearings are generally disfavored.”) (internal quotation marks
omitted), his opinion about whether or not to present evidence of mental health
history during the sentencing phase is assuredly not sacrosanct. The attorney’s
duty to society may demand that, in narrow sets of circumstances, counsel
exercises her independent professional judgment. See Evid. Hr’g Tr. at 25 (“My
obligation, as trial counsel, . . . is to present the best defense, both in Stage 1 and
Stage 2, I can with an eye toward saving my client no matter what my client’s
desires are. . . . I consider the presentation of the insanity defense one of those
issues that my co-counsel and I decided which at times would conflict with our
client’s desires.”) (testim. of Steven B. Hess, former counsel) (emphasis added);
id. at 77 (“ I feel that if I have a client that’s insisting innocence that, if he chose
to, I would put him on the stand and let him testify. . . . But the client has no
choice about whether to present a mental health defense. . . . I’ll have him testify
he’s innocent, but I’ll present my mental health evidence.”) (testim. of Tim
Wilson). See also Hightower, 518 A.2d at 483 (reversing lower court conclusion
that legally competent defendant’s wishes should prevail).
(ii) Tenth Circuit precedent regarding waiver of mitigation evidence
Recently, in Battenfield v. Gibson, 236 F.3d 1215, the defendant, Mr.
Battenfield, who was deemed competent and had no documented history of
-21-
mental distress apart from chemical dependence, instructed his counsel not to
present any evidence at the sentencing phase of the trial. The available
mitigating evidence, as summarized by the court, included:
(a) evidence that Battenfield’s father and grandfather were involved in
moonshining, (b) Battenfield’s involvement in a serious car accident at
age 18, during which he sustained a serious head injury and after which
he heavily used alcohol and drugs, (c) Battenfield’s family history of
alcoholism and possible drug addiction, (d) mental health evidence,
including evidence that Battenfield suffered from substance addiction,
(e) the underlying circumstances of Battenfield’s previous conviction
for assault and battery, which allegedly occurred while he was under
the influence of drugs and alcohol and was an act of self-defense, (f)
evidence from family members and friends indicating that Battenfield
was known for his compassion, gentleness, and lack of violence, even
when provoked, and (g) testimony of prison personnel describing the
security where Battenfield would be incarcerated if given a life
sentence.
Id. at 1226 (emphasis added).
After Mr. Battenfield was found guilty, he instructed his counsel not to
present any mitigating evidence in the second stage. His counsel advised him to
proceed with the mitigating evidence, and the court made specific inquiries to
Mr. Battenfield as to why he was opting not to present any testimony for
mitigation. The OCCA determined that Mr. Battenfield voluntarily waived his
right to present any mitigating evidence. We noted in terms remarkably
descriptive of this case that counsel:
never explained the general meaning of mitigation evidence to
Battenfield or what specific mitigation evidence was available.
[Battenfield’s counsel] acknowledged he never advised Battenfield that
-22-
mitigation evidence might include evidence about Battenfield’s
substance abuse problems. At best, the evidence indicates that at some
point during the trial proceedings, [Battenfield’s counsel] discussed
with Battenfield his plan to present Battenfield’s parents as
second-stage witnesses and his strategy to have Battenfield’s parents
beg for Battenfield’s life. In an affidavit submitted in connection with
his application for post-conviction relief, Battenfield indicated that [his
counsel] never explained to him “the importance of mitigation or . . .
what mitigation actually [wa]s.” Battenfield Aff. ¶ 2.
Id. at 1229 (emphasis added). This bolstered our conclusion that, based on
counsel’s failure to apprise his client of “what particular mitigating evidence
was available in his case,” Mr. Battenfield’s waiver was not knowing and
voluntary. Id. at 1232. Judges Briscoe and Lucero thus held for the court that
“counsel’s deficient performance culminated in Battenfield waiving the right to
present mitigating evidence.” Id. at 1230.
Here, as indicated above, there is a serious question as to Mr. Freeman’s
level of appreciation for the vast amount of available evidence for mitigation.
Unlike in Battenfield, Mr. Freeman’s investigation was largely completed by his
predecessors and Mr. Freeman needed only to connect the dots. But
unfortunately for Mr. Bryan, Mr. Freeman arrived at the same spot as did
Battenfield’s counsel: He was “was unaware at the time of trial of various
mitigation strategies and accompanying pieces of evidence that could have been
presented during the mitigation phase by [mitigation witnesses]. Further,
[counsel] was wholly unprepared to rebut the aggravating factors argued by the
-23-
prosecution.” Id. at 1129. And, like counsel in Battenfield, Mr. Freeman’s
deficient performance “rendered unreasonable his alleged penalty-phase
strategy.” Id. 5 In addition, as noted below, Mr. Freeman’s failure to advise
5
As we noted in Battenfield, 236 F.3d at 1233, within months of Mr.
Bryan’s trial, the OCCA wisely established guidelines for courts to follow “when
a defendant refuses to allow the presentation of mitigating evidence in the
sentencing stage.” Wallace v. State, 893 P.2d 504, 512 (Okla. Crim. App. 1995).
The guidelines serve as benchmark for the trial court’s procedures, and ideally,
by trial counsel, when the record is replete with evidence of an organic brain
disorder. Those guidelines, intended to ensure that a defendant “has an
understanding of his or her rights . . . in the sentencing process, require a trial
court to:
‘(1) inform the defendant of the right to present mitigating evidence,
and what mitigating evidence is; (2) inquire both of the defendant and
his attorney (if not pro se) whether he or she understands these rights;
(3) inquire of the attorney if he or she has attempted to determine from
the defendant whether any mitigating evidence exists; (4) inquire what
that mitigating evidence is (if the defendant has refused to cooperate,
the attorney must relate that to the court); (5) inquire of a defendant
and make a determination on the record whether the defendant
understands the importance of mitigating evidence in a capital
sentencing scheme, understands such evidence could be used to offset
the aggravating circumstances proven by the prosecution in support of
the death penalty, and the effect of failing to present that evidence; (6)
after being assured the defendant understands these concepts, inquire
of the defendant whether he or she desires to waive the right to present
such mitigating evidence; and (7) make findings of fact regarding the
defendant’s understanding and waiver of rights.’
Battenfield, 236 F.3d at 1233 (quoting Wallace 893 P.2d at 512-13) (emphasis
added).
These guidelines are “little more than common sense and should have been
followed by the trial court.” Battenfield, 236 F.3d at 1233. They demonstrate
that, independent of his client’s wishes, counsel has the responsibility to evaluate
mitigating evidence and inform the trial court. Similarly, the Supreme Court has
(continued...)
-24-
his client as to the nature, importance, and purpose of the presentation of
mitigation evidence, foreclosed any possibility that he might reconsider his
position. See id. at 1230.
(iii) The Majority’s Misreading of Romano v. Gibson and Wallace v.
Ward
Despite our recent holding in Battenfield, the majority relies instead on
two of our circuit’s cases in support of its conclusion that Mr. Freeman had no
choice but to heed the wishes of his client. Undoubtedly, counsel’s strategy will
be based in part by the defendant’s choices and on information supplied by the
defendant. Thus, concludes the majority, Mr. Freeman’s second stage residual
doubt strategy was one that was responsive to Mr. Bryan’s wishes. See Maj. Op.
at 32.
(1) Romano v. Gibson
In Romano, the defendant challenged counsel’s effectiveness for failure to
present mitigating evidence of abandonment and possible abuse when he was a
toddler. In addition, he contended that he should have received a mental health
(...continued)
5
recently reiterated that the ABA Standards for Criminal Justice provide helpful
benchmarks for “determining what is reasonable.” Wiggins v. Smith, No. 02-311,
2003 WL 21467222, at *9 (U.S. June 26, 2003) (citing Strickland v. Washington,
466 U.S. 668, 688-89 (1984)). The ABA Standards require counsel to inform the
court of mitigating evidence. See A MERICAN B AR A SSOCIATION S TANDARDS FOR
C RIMINAL J USTICE 4-4.1, commentary, at 183 (1993) (“The lawyer also has a
substantial and important role to perform in raising mitigating factors both to the
prosecutor initially and to the court at sentencing.”).
-25-
examination. A previous report indicated that the defendant “did not suffer from
any psychiatric disorders and his test results at that time appeared normal.” 239
F.3d at 1182. Before the sentencing stage, the defendant directed counsel not to
have his parents and friends testify.
Notwithstanding his client’s wishes, trial counsel disregarded his client’s
instructions, and presented substantial mitigating testimony, including testimony
from his mother and various friends. The defendant testified and detailed his
childhood, schooling, activities, military service, and his love of children. He
described his childhood as “outstanding.” Id. at 1181. He also told the jury that
he “did not like having his friends and family testifying on his behalf and that his
defense attorney had presented what mitigating testimony he had against [the
defendant’s] wishes.” Id. at 1181-82.
Rather than chide counsel for disregarding his client’s directive, we
concluded that counsel’s performance was a logical strategy to portray the
defendant’s childhood as normal and happy, and we found no deficiency in his
performance. The defendant was allowed to testify and to articulate his
discomfort with the testimony presented by his counsel. Finally, through
counsel’s pretrial preparation, counsel discovered nothing that would suggest an
abusive childhood.
-26-
Here, Mr. Freeman’s “strategy” can hardly be similarly characterized: he
severely curtailed Mr. Bryan’s testimony at the sentencing stage, allowing him no
opportunity to humanize himself before the jury. Unlike counsel in Romano, Mr.
Freeman was exposed to virtual volumes of evidence of psychiatric disorders,
including the scientific “picture” of the SPECT scan. Counsel in Romano clearly
discussed the sentencing phase with his client and explained his strategy, and
opted to allow his client to testify as to his discomfort with having his mother
and friends testify. In stark contrast to counsel in Romano, Mr. Freeman made no
such effort to inform his client about the purposes of the sentencing phases, and
did not discuss any mitigation strategy with him. See Evid. Hr’g Tr. at 36-37.
And finally, given Mr. Bryan’s uninformed and likely delusional perspective, Mr.
Freeman still opted to heed Mr. Bryan’s wishes.
(2) Wallace v. Ward
The majority’s reliance on Wallace v. Ward, 191 F.3d 1235, is similarly
unavailing. In Wallace, after the defendant pleaded guilty, he instructed his
counsel not to present any evidence at the punishment trial and at the subsequent
sentencing. Unlike here, the record indicated that Mr. Wallace “knew what
mitigating evidence was, as his attorney discussed it with him. He likewise knew
he had the right to present mitigating evidence.” 191 F.3d at 1246 (quoting
Wallace v. State, 935 P.2d 366, 376 (Okla. Crim. App. 1997)). Mr. Wallace was
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the only defense witness at the sentencing phase, and he testified that he had
conferred with counsel and knew that counsel could have vigorously presented a
defense, and that he had instructed counsel not to cross-examine various
witnesses or to object to the death penalty, and that he had no desire to present
mitigating evidence. Id. at 1249. “Defense counsel’s closing statement
confirmed that he represented [Mr. Wallace’s] professed interests.” Id. We
recognized that Wallace embodied “unique” facts, and determined that counsel’s
performance was not deficient and that no prejudice was shown. Id. at 1248.
An attorney must weigh in his strategic calculus his client’s wishes. See
Romano, 239 F.3d at 1181. An attorney may disregard those instructions,
however, when the record presents evidence that is contrary to the defendant’s
wishes. Trial counsel can explain any inconsistencies by having her client testify
as to her decision. We cannot know with certainty why Mr. Bryan’s parents
feared exposing the mental illness of their son, nor can we explain Mr. Bryan’s
unwillingness to concede that he was ever mentally ill. There are clues though.
Mr. Bryan’s sister indicated that, to her parents, admission of mental illness
equated with “someone . . .who had no sense at all.” Evid. Hr’g Tr. at 43.
I concede that, absent a determination of incompetence, the autonomy of
the client generally prevails at the guilt phase. But at sentencing, the stigma that
might be associated by some with an insanity verdict, which may be worse than
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the stigma of conviction, is no longer a potential outcome. See Christopher
Slobogin and Amy Mashburn, The Criminal Defense Lawyer’s Fiduciary Duty to
Clients with Mental Disability, 68 Fordham L. Rev. 1581, 1633 (2000) (noting
that a conviction may be preferable to an insanity verdict because “the stigma
associated with an insanity verdict (which incorporates a finding that a crime was
committed) may be worse than the stigma of conviction,” and may itself lead to
institutional confinement).
The Supreme Court has held that the deficiencies borne by the mentally
retarded “do not warrant an exemption from criminal sanctions, but diminish
their personal culpability.” Atkins, 536 U.S. at 320. The Court’s logic applies no
less to those in Mr. Bryan’s shoes who suffer from severe mental deficiencies.
See Hardwick, 320 F.3d at 1164 (“One can be competent to stand trial and yet
suffer from mental health problems that the sentencing jury and judge should
have had an opportunity to consider.”) (internal quotation marks omitted).
“Society has interests both in reliable outcomes and a dignified process,
interests that are not waiveable by a defendant. More specifically, society has an
interest, independent of the defendant’s, in ensuring that the criminal justice
system accurately assesses the culpability of those it prosecutes and that its
procedures are not ignored or abused.” Slobogin and Mashburn, supra, 68
Fordham L. Rev. at 1633. Mr. Freeman’s failure to recognize that no jury could
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accurately assess the culpability of Mr. Bryan without presentation of his mental
health history was grossly deficient.
c. Counsel’s Preparation for the Mitigation Phase
The majority also concludes that Mr. Bryan gave counsel an informed
decision in part because he was “apprised of the benefits of using mental health
evidence in mitigation at the penalty phase.” Maj. Op. at 26. The majority
reasons that because Mr. Bryan’s previous counsel, whose strategy was to present
mental health evidence during both the guilt and penalty phases in his reliance
upon an insanity defense, had explained that strategy to his client, that Mr. Bryan
would somehow intuit the import of presenting mental health testimony as
applied to Mr. Freeman’s radically different approach (actual innocence) at both
the guilt and sentencing phases. However, Mr. Freeman, whose strategy clearly
diverged from that of his predecessors because he planned to assert actual
innocence during the guilt phase, did not discuss the strategic implications of
presenting mental health evidence during the sentencing phase. Cf. Romano, 239
F.3d at 1181.
As to preparation for the sentencing phase, Mr. Bryan testified to the
following:
Q: Could you tell the Court what preparation was made for the
penalty phase.
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Mr. Bryan: “That’s hard to answer, because there just wasn’t
any.”
Q: Were you told that you would be a witness?
Mr. Bryan: I was told that I would be called to the witness chair.
Q: And when were you told that? When did Mr. Freeman tell you
that?
Mr. Bryan: Just a few minutes before I was called.
Q: Did he have any time to prepare you for the questions he was going
to ask?
Mr. Bryan: No, sir.
Q: Did you ever discuss with Mr. Freeman the possibility of
using mental health evidence in the second stage of the trial?
Mr. Bryan: It was never mentioned.
Evid. Hr’g Tr. at 36-37. Based on this testimony, which neither Mr. Freeman nor
the State controverts, we cannot presume that Mr. Bryan had been counseled and
advised on the new guilt phase strategy and its implications for the second phase
strategy, when the testimony from the hearing indicates otherwise. 6
6
The ABA’s guidelines for capital defense work are “standards to which
[the Supreme Court has] long referred to as “‘guides to determining what is
reasonable.’” Wiggins, 2003 WL 21467222, at *9 (quoting Stricklin, 466 U.S. at
688). For example, “[p]rior to the sentencing phase . . . counsel should discuss
with the client the specific sentencing phase procedures . . . and advise the client
of steps being taken in preparation for sentencing.” ABA Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty Cases §
10.11(C) (2003). Similarly,
[c]ounsel at every stage of the case should discuss with the client the
content and purpose of the information concerning penalty that they
intend to present to the sentencing or reviewing body . . . , means by
(continued...)
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In Battenfield, we determined counsel’s performance to be deficient where
counsel “never explained the general meaning of mitigation evidence to [his
client] or what specific mitigation evidence was available.” 236 F.3d at 1229.
Additionally, counsel in Battenfield “never advised Battenfield that mitigation
evidence might include evidence about Battenfield’s substance abuse problems.”
Id. Mr. Freeman cannot now hide behind Mr. Bryan’s uncounseled and
uninformed wishes as to the sentencing phase. See also Thompson v.
Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986) (“The reason lawyers may not
blindly follow [a client’s] commands is that although the decision whether to use
such evidence in court is for the client . . . the lawyer first must evaluate potential
avenues and advise the client of those offering possible merit.”) (internal
quotation marks and citation omitted); see also Martin v. Maggio, 711 F.2d 1273,
1280 (5th Cir. 1983) (noting that defendant’s “instruction that his lawyers obtain
an acquittal or the death penalty did not justify his lawyers’ failure to investigate
the intoxication defense” and that such “[u]ncounseled jailhouse bravado,
6
(...continued)
which the mitigation presentation might be strengthened, and the
strategy for meeting the prosecution’s case in aggravation.
Id. § 10.11(D). Furthermore, “[c]ounsel should consider, and discuss with the
client, the possible consequences of having the client testify or make a statement
to the sentencing . . . body.” Id. § 10.11(E). Despite these “well-defined norms,”
Wiggins, 2003 WL 21467222, at *9, however, it appears that counsel disregarded
such responsibilities.
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without more, should not deprive a defendant of his right to counsel’s
better-informed advice”); Gaines v. Hopper, 575 F.2d 1147, 1150 (5th Cir. 1978)
(“[M]eaningful discussion with one’s client” is one of the “cornerstones of
effective assistance of counsel.”).
d. Counsel’s “Strategy” at the Sentencing Phase
The majority defends Mr. Freeman’s second stage performance by
declaring that to present any mental health testimony would be inconsistent with
his first stage defense “and would do more harm than good.” Maj. Op. at 29.
The majority also points to expert testimony that indicates that to have
inconsistent first and second stage strategies is unworkable, or, more specifically,
the “kiss of death,” particularly when there’s a “denial defense in the first stage”
followed by “remorse and things like that” in the second stage. See Maj. Op. at
32 n.22 (quoting testimony of Tim Wilson, Evid. Hr’g Tr. at 60); see also ABA
Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases § 10.11 comment. at 107 (2003) (“[W]hether or not the guilt phase
defense will be that the defendant did not commit the crime, counsel must be
prepared from the outset to make the transition to the penalty phase.”).
Neither Mr. Wilson, nor the other experts were suggesting that a mitigation
strategy employing this compelling mental evidence should not have been used.
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Mr. Wilson merely pointed out that the better defense would have been to utilize
the mental health evidence in the guilt phase. In any event, the testimony
highlighted by the majority merely indicates that he discouraged arguing actual
innocence in the first stage, followed by remorse in the second stage. It is simply
not correct to suggest that, given the guilt strategy that Mr. Freeman used, that
Mr. Wilson would not have utilized this “excellent organic brain damage”
evidence in the sentencing phase. Evid. Hr’g at 62. Indeed, former counsel Mr.
Hess, the defense expert who was asked how he would have “done th[e] second
stage differently,” answered that he “would have put [the] mental health experts
on.” Evid. Hr’g Tr. at 23.
In addition, the majority concludes that Mr. Freeman’s choice not to
present the mental health history at the sentencing stage was reasonable, given
his fear of the evidence acting as a two-edged sword. Hampered by these
constraints, the majority believes that Mr. Freeman opted “mercy” approach,
while the State continues to characterize his “strategy” as one of “reasonable
doubt.”
(i) Testimony elicited at the sentencing stage
The fairest way to evaluate Mr. Freeman’s strategy at sentencing is to
review the scant evidence Mr. Freeman did present at the mitigation phase, in
support of a purported “residual doubt” strategy. See Rec. doc. 56, Respondent’s
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Proposed Findings of Fact and Conclusions of Law ¶ 20 (filed Nov. 10, 1999)
(“Freeman relied upon the strategy of ‘residual doubt.’”). During the sentencing
stage, Mr. Freeman presented brief testimony from Mr. Bryan, his sister, and his
mother. First, Mr. Bryan testified to offer an explanation for an alleged assault
that took place while he was incarcerated. Next, Mr. Bryan’s mother and sister
testified that Mr. Bryan had high moral standards, believed in God, was non-
violent, and was a caring family member. Mr. Bryan’s sister testified that she
believed Mr. Bryan might reach a point that “he could be salvaged” and that she
“would ask the jury not to execute [her] brother.” Trial tr. vol. VII, at 1714. His
mother, when asked if she would ask the jury not to kill Mr. Bryan, responded
“Why sure.” Id. at 1728.
Next, Mr. Freeman presented his closing argument, and rather than
presenting a vivid portrait of Mr. Bryan’s life, he first noted that Mr. Bryan
posed no continuing threat to society, because he had served his time for his past
conviction. Despite his later comment that he could not present the mental health
history evidence because of “incompatib[ility],” with his earlier assertions of Mr.
Bryan’s innocence, Evid. Hr’g Tr. at 89, he next noted that “[w]e have to
remember that the guilt of Leroy is not an issue. You’ve determined that, we
know that, everybody in this courtroom, everybody in the world. The issue is
what should be the appropriate punishment.” Trial tr. vol. VII, at 1750-51. Mr.
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Freeman reminded the jury that Mr. Bryan could “be salvaged despite his vi[le]
act.” Id. at 1752. And despite the fact that “Leroy should not have killed,” id. at
1753, he asked the jury to impose a sentence of either life or life without parole.
This is the extent of the evidence that Mr. Freeman believed he could present in
support of any mitigating factors and to counter the government’s evidence of
aggravators. See id. at 1695-1734, 1748-59.
(ii) Presentation of diminished capacity after a guilty verdict
Although Mr. Wilson testified at the evidentiary hearing that his approach
to the trial and sentencing stage would have been markedly different from Mr.
Freeman’s, in that he would have utilized strategies that “dovetail[ed],” he does
not suggest a strategy that would have “dovetailed” in any way with Mr.
Freeman’s guilt phase approach. See Evid. Hr’g Tr. at 59-64. Mr. Wilson was
suggesting that the best approach would have been to introduce the mental health
testimony in the first stage. But he should not be read to answer a question that
he was not asked, as the majority does. See Maj. Op. at 31-32, and n.22.
In Antwine v. Delo, 54 F.3d 1357 (8th Cir. 1995), the Eighth Circuit
granted habeas relief where counsel failed to investigate fully and present
mitigating evidence of the defendant’s mental condition. Shortly after the
offense, a state psychiatrist conducted a twenty minute interview of Mr. Antwine
-36-
and “concluded that [he] did not suffer from any mental disease or defect, and
that his actions at the time of the offense were consistent with PCP intoxication.”
Id. at 1365. Several years later, Mr. Antwine was diagnosed with bipolar
disorder. The Missouri state court concluded that the evidence of mental defect
was insufficient to establish that the defendant suffered from bipolar disorder at
the time of the offense. In addition, the court found that the diagnosis was not
credible.
Counsel for Mr. Antwine defended his decision not to conduct followup
mental examination because it might only show diminished capacity in a bid for a
lesser offense, like second degree murder. Mr. Antwine instructed his counsel to
seek “acquittal rather than a reduced sentence, [and] counsel decided not to
investigate or pursue a diminished capacity defense.” Id. at 1366. Mr. Antwine’s
counsel “gave no reason, though, for not requesting a second examination in
preparation for the penalty phase of the capital murder trial.” Id.At the sentencing phase, counsel relied only on a plea for mercy and
presented only the testimony of the defendant’s brother. Counsel later testified
“that he had considered putting on elaborate evidence of mitigation, but had
rejected the idea in favor of an emotional beg-for-mercy approach. He was
concerned that the guilty verdict indicated that the jury had decided to give [his
client] the death penalty, and felt that the best course would be an appeal to their
-37-
compassion.” Id. at 1367. Mr. Antwine’s counsel also claimed “that he would
have lost credibility if he had presented evidence of a mental impairment at the
penalty phase, because such evidence would be inconsistent with the self-defense
claim presented in the guilt phase.” Id.Mr. Antwine’s counsel’s performance managed to meet the Strickland
standard at the guilt phase, because Mr. Antwine could not establish prejudice:
“If [Antwine’s] counsel had . . . presented evidence that [his client] was in the
throes of a manic episode during the offense, the jury might have found that he
did not have the specific intent – cool deliberation – required for capital murder.”
Id. at 1368. But the court could not say “that it was unreasonable of counsel not
to make a diminished capacity argument in the guilt phase.” Id.As to the sentencing phase, however, the court held that “there [wa]s a
reasonable chance that Antwine would not have been sentenced to death if
counsel had effectively presented evidence of Antwine’s mental impairment at
the penalty phase.” Id. “Since the jury found only two aggravating
circumstances, the balance of aggravating and mitigating circumstances in the
penalty phase of the trial would have been altered enough to create a reasonable
probability that the jury would not sentence Antwine to death.” Id.The Antwine court dealt with issues that parallel those before us. First,
Mr. Antwine’s counsel stated that his client’s goal was acquittal, and thus
-38-
counsel opted not to present evidence of mental impairment at either the guilt or
sentencing phase. Here, Mr. Bryan did not want his lawyer to present evidence
of mental illness. Additionally, Mr. Bryan rejected the idea of pleading guilty.
Second, Mr. Antwine’s counsel believed he would have lost credibility if
he had presented evidence of mental impairment because such evidence would be
inconsistent with the self-defense claim. Here, Mr. Freeman testified that “[a]ny
other position” apart from the one he took “would have been incompatible” with
his first stage strategy that Mr. Bryan did not commit the crime. Evid. Hr’g Tr. at
89.
Here, in fact, the rationale for a finding Mr. Freeman’s performance to
constitute ineffective assistance of counsel under Strickland is much stronger
than Antwine: In Antwine, counsel was deemed ineffective for not ordering
subsequent mental evaluations that might have determined the defendant suffered
from an episode during the time of the offense. We, however, do not need to
speculate as to what the evaluations of Mr. Bryan might have said – we know Mr.
Bryan has suffered from serious mental defects for several years, and that he
continues to suffer from them. Thus, I would hold that Mr. Freeman’s sentencing
phase “strategy” was no strategy at all – and that his failure to present evidence
of Mr. Bryan’s mental health history was deficient under Strickland.
(iii) Residual Doubt Strategy
-39-
Perhaps even more striking is the State’s defense of the reasonableness of
Mr. Freeman’s purported residual doubt strategy at sentencing. There is no
question that “[t]he guilt phase may . . . provide the opportunity to sow the seeds
of ‘residual’ doubt concerning the defendant’s guilt, enhancing the chances of a
life sentence.” James M. Doyle, The Lawyer’s Act: Representation in Capital
Cases, 8 Yale J. L. & Human. 417, 423 n.25 (1996). Counsel may further
attempt to stir up any lingering doubt concerning the guilt of the defendant
during the sentencing phase, hoping to cause the jury to decide against the
imposition of the death penalty. Residual, or “lingering,” doubt has been defined
as “(1) actual, reasonable doubt about guilt of any crime; (2) actual, reasonable
doubt that defendant was guilty of a capital offense, as opposed to other offenses;
(3) a small degree of doubt about (1) or (2), sufficient to cause the juror not to
want to foreclose (by execution) the possibility that new evidence might appear
in the future.” Christina S. Pignatelli, Residual Doubt: It’s a Life Saver, 13
Capital Defense Journal 307, 307-08 (2001) (internal quotation marks omitted).
Thus, the utilization of the “residual doubt” strategy can be an effective
form of mitigation. See Stephen P. Garvey, Aggravation and Mitigation in
Capital Cases: What Do Jurors Think?, 98 Colum. L. Rev. 1538, 1563 (1998)
(“‘[T]he best thing a capital defendant can do to improve his chances of receiving
a life sentence . . . is to raise doubt about his guilt.’”). However, there is no
-40-
evidence that Mr. Freeman made use of such a strategy or tried to raise any doubt
about his client’s guilt.
A “strategy” is defined as “a careful plan or method,” or “a clever
stratagem.” Merriam Webster’s Collegiate Dictionary 1162 (10th ed. 1997). Mr.
Freeman never used the terms “lingering” or “residual doubt” during the
sentencing hearing. Mr. Freeman did not even use the term “doubt” at the
hearing. Mr. Freeman admitted he was not familiar with the term “residual
doubt” until after the trial. See Evid. Hr’g Tr. at 106. Mr. Freeman never
planned nor asserted a residual doubt defense. He was not consciously aware of
relying on a residual doubt strategy at the sentencing trial, and never asserted the
use of a residual doubt strategy until he was deposed.
There was no testimony or reminder given to the jury during the sentencing
phase regarding Mr. Bryan’s potential innocence. The concept of a residual
doubt strategy makes sense when there is a chance of mistaken identification, or
when the guilt of others is implicated, such as in the case where there is a
codefendant. See Evid. Hr’g Tr. at 65 (Testim. of Tim Wilson); see generally
Margery Malkin Koosed, The Proposed Innocence Protection Act Won’t–Unless
it Also Curbs Mistaken Eyewitness Identifications, 63 Ohio St. L.J. 263, 313
n.44 (2002) (suggesting increased use of lingering doubt theory when suggestive
identification procedure is at issue).
-41-
A decision to pursue a lingering doubt strategy at the penalty phase, to the
exclusion of other strategies, should be granted wide deference, especially if
mitigating evidence is presented that complements that strategy. However, Mr.
Freeman presented no such evidence suggesting anything that might lessen Mr.
Bryan’s responsibility for the offense or to raise doubt about Mr. Bryan’s guilt. 7
Mr. Freeman relied upon and reiterated little, if any, evidence from the guilt
phase that might have cast doubt upon Mr. Bryan’s guilt. Instead, Mr. Freeman
went to the opposite extreme. Mr. Freeman admitted that Mr. Bryan “should not
have killed” that he should not have committed this “vile act.” Mr. Freeman thus
erased any doubt that might have weighed on the jury’s conscience. If the jurors
had retained any residual doubts, Mr. Freeman extinguished them.
The OCCA determined that it would not second guess Mr. Freeman’s
sentencing phase strategy where, “[a]ccording to the instruction on mitigating
evidence, [Mr.] Bryan still appeared to be claiming actual innocence,” Bryan v.
State, 935 P.2d 338, 363 (Okla. Crim. App. 1996), and effectively shielded Mr.
Freeman’s performance from scrutiny. Similarly, the district court defended Mr.
Freeman’s sentencing phase strategy and declared “Mr. Freeman’s decision was
7
When asked about his sentencing phase preparation, Mr. Freeman
testified that when he asked Mr. Bryan’s family about Mr. Bryan, they stated
“that [Mr. Bryan] had been a beautiful, good son, and had accomplished a great
deal in society by becoming a teacher.” Evid. Hr’g Tr. at 88. Mr. Freeman
elicited no such testimony during the sentencing phase.
-42-
correct or at least professionally reasonable.” Dist. Ct. Order at 65. I don’t
understand how the OCCA and the district court could be so charitable when Mr.
Freeman admitted that Mr. Bryan “killed” and committed a “vile act.”
It is certainly possible that a lawyer can present the elements of a defense
without knowing that there is a specific name for her strategy. Creative minds
can, indeed, devise strategies that others have reached via different paths. I
believe, however, that to credit Mr. Freeman with having relied upon a strategy
of residual doubt, where the evidence strongly suggests that he was unaware such
a strategy even existed–and where his actions completely undermined that
defense– is untenable. Mr. Freeman’s performance cannot be construed so that it
is “considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal
quotation marks and citation omitted). Strickland counsels deference to plausible
legal strategies, not to unilateral disarmament. See Wiggins, 2003 WL 21467222,
at *10 (in holding that the petitioner demonstrated ineffective assistance of
counsel, noting that counsel put on a “half-hearted mitigation case,” and
concluding that “the ‘strategic decision’ the state courts and respondents all
invoke to justify counsel’s limited pursuit of mitigating evidence resembles more
a post-hoc rationalization of counsel’s conduct that an accurate description of
their deliberations prior to sentencing”).
(iv) Characterizing the mental health evidence as a two-edged
sword
-43-
The OCCA also defended Mr. Freeman’s decision not to present mental
health evidence because “[g]iven the other evidence of violent behavior, the jury
could have thought this type of psychological problem indicated a propensity for
future violence.” 935 P.2d at 343. Again, Battenfield provides a useful analogy.
There, the OCCA determined that, as to the history of Mr. Battenfield’s drug use,
“[t]he psychologist’s conclusion that Battenfield was chemically dependent does
nothing to undermine our confidence in the jury’s determination that he
constitutes a continuing threat to society.” 236 F.3d at 1227 (quoting Battenfield
v. State, 953 P.2d 1123, 1147 (Okla. Crim. App. (1998)). We noted, however,
that evidence of Mr. Battenfield’s drug and alcohol reliance, and his potential
treatment for such reliance, might blunt the force of the continuing threat
aggravator. See id. at 1235.
The same is true here. Had the jury been given more information about
Mr. Bryan’s background, mental health and treatment history, 8 and the facts
surrounding his previous conviction, which would heighten the jury’s sensitivity
8
We also note that the jury heard nothing regarding how voluntary or
involuntary treatment with anti-psychotic drugs might blunt the force of the
continuing threat aggravator. Based on the record before us, we are unable to
discern the necessity of the forced administration of anti-psychotic drugs such as
Navane, except to note that “[t]here are often strong reasons for a court to
determine whether forced administration of drugs can be justified on these
alternative grounds [such as related to the individual’s dangerousness or to the
individual’s own interests].” Sell v. United States, 121 S. Ct. 2174, 2185 (2003).
-44-
to the ingrained nature of his organic disease, there is a reasonable probability
that the jury would not have sentenced Mr. Bryan to death, because the jury had
the option of sentencing Mr. Bryan to life without parole.
The decision not to put forth mental health evidence may sometimes be
characterized as strategic. See Cannon v. Gibson, 259 F.3d 1253, 1277-78 (10th
Cir. 2001) (noting presence of “two-edged sword” where counsel presented
“substantial” mitigating evidence and where mental health evidence would have
“displaced rather than supplemented” the mitigating evidence, such that
petitioner could not establish prejudice); see also Atkins, 536 U.S. at 320-21(recognizing that evidence of mental retardation may enhance likelihood of
finding of future dangerousness aggravator, and noting that “[m]entally retarded
defendants may be less able to give meaningful assistance to their counsel and
are typically poor witnesses, and their demeanor may create an unwarranted
impression of lack of remorse for their crimes”). However, surely the majority
does not suggest that any time counsel foregoes the presentation of mitigating
evidence that may be viewed to support an aggravator, such as evidence of
mental illness, evidence of alcohol abuse, or evidence of an abusive upbringing,
that he is assured blanket protection from review of his effectiveness. See Maj.
Op. at 31. To do so would be to arm counsel with a two-edged sword.
-45-
The Supreme Court’s most fundamental direction regarding the
presentation of mitigating evidence at sentencing demands that “precisely
because the punishment should be directly related to the personal culpability of
the defendant,” the jury must be allowed to consider all relevant mitigating
evidence. Penry v. Lynaugh, 492 U.S. 302, 318, 327-28 (1989). In a case such
as this, where the mitigating evidence that was actually presented was scant at
best, where counsel knew his client would make a poor witness because his
delusional state precluded him from being able to beg for mercy or to express
remorse, and where the mental health evidence is well-documented and long-
standing, Mr. Freeman’s performance left the jury no reason even to consider as a
possibility that Mr. Bryan might not be morally culpable enough, as the result of
his involuntarily adduced organic brain disorder, for the death penalty.
(iv) Post hoc “mercy” approach
The majority characterizes Mr. Freeman’s sentencing strategy as a “mercy
approach.” Maj. Op. at 34. Again, I do not think it is appropriate for the court
to supply a “post hoc rationalization” for Mr. Freeman. Wiggins, 2003
21467222, at *10 (rejecting state courts’ characterization of defense counsel’s
“halfhearted mitigation case” approach as a “strategic decision”). Even if his
beleaguered presentation at sentencing can be deemed as seeking mercy, though,
the presentation was unreasonably flawed. “As a practical matter, the defendant
-46-
probably has little or no chance of avoiding the death sentence unless the defense
counsel gives the jury something to counter both the horror of the crime and the
limited information the prosecution has introduced about the defendant.”
Jonathan P. Tomes, Damned if You Do, Damned if You Don’t: The Use of
Mitigation Experts in Death Penalty Litigation, 24 Am. J. Crim. L. 359, 364
(1997). I find it difficult to ascribe to Mr. Freeman the act of seeking mercy in
the same sentence that he denounced Mr. Bryan’s “vile act.” Mr. Freeman failed
to provide any individual portrayal of Mr. Bryan’s life, a portrayal that might
have included testimony about his being a college graduate, a high school
teacher, a man who was married and who began to suffer headaches, which
signaled the onset of his debilitating organic brain damage.
Asking for mercy requires some attempt to invoke compassion, a
sympathetic response of the jurors to explain those acts. See, e.g., Anthony V.
Alfieri, Mitigation, Mercy, and Delay: The Moral Politics of Death Penalty
Abolitionists, 31 Harv. C.R.-C.L. L. Rev. 325, 327 (1996) (“During the penalty
or sentencing phase of capital trials, lawyers present mitigating evidence of client
psycho-social deprivation to the jury in an attempt to explain specific violent acts
of criminal lawbreaking and, thus, invite mercy.”); Stephen P. Garvey, supra, 98
Colum. L. Rev. at 1539 (“On the side of mitigation, jurors tend to focus most on
factors that diminish the defendant’s individual responsibility for his actions.
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They attach significant mitigating potential to facts and circumstances that show
diminished mental capacity, such as mental disturbance at the time of the offense
(emphasis added); id. (“[Jurors] show little mercy to defendants who show no
remorse.”). The majority’s holding essentially insulates counsel’s sentencing
phase performance by supplying counsel with yet another justification for a
nonexistent strategy, not unlike the post hoc attempt to explain away Mr.
Freeman’s guilt-affirming sentencing performance by calling it a “residual doubt”
strategy.
Because Mr. Freeman made no attempt to provide the jury with the
“particularized nature of the crime and the particularized characteristics of the
individual defendant,” Gregg, 428 U.S. at 206, I cannot agree that he applied any
strategy at all at the sentencing phase.
B. Prejudice
As stated in the panel dissent, that Mr. Freeman’s deficient performance
resulted in fundamental prejudice is obvious. See 276 P.2d at 1185 (Henry, J.,
dissenting).
“[T]he death penalty is different in both its severity and its finality.” Neill
v. Gibson, 278 F.3d 1044, 1068 (10th Cir. 1998). “From the point of view of
society, the action of the sovereign in taking the life of one of its citizens . . .
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differs dramatically from any other legitimate state action.” Id. “[A] difference
exists when a defendant’s life is at stake. ‘In death cases, doubts with regard to
the prejudicial effect of trial error should be resolved in favor of the accused.’”
Moore v. Reynolds, 153 F.3d 1086, 1118 (10th Cir. 1998) (Brorby, J., dissenting)
(quoting Andres v. United States, 333 U.S. 740, 752 (1948)). “It is neither
possible nor desirable for a person to whom the state entrusts [such] an important
judgment to decide in a vacuum.” Barclay v. Florida, 463 U.S. 939, 950 (1983).
Psychiatric mitigating evidence “has the potential to totally change the
evidentiary picture.” Middleton v. Dugger, 849 F.2d 491, 495 (11th Cir. 1988);
see also Stephens v. Kemp, 846 F.2d 642, 653 (11th Cir. 1988) (stating that
“prejudice is clear” where attorney failed to present evidence that defendant
spent time in mental hospital). Here, we have testimony from two psychiatrists as
to Mr. Bryan’s delusions and his organic brain disorder, and a SPECT scan to
verify these clinical observations. We have hospitalization records documenting
his disorder. We have testimony from his previous attorneys regarding his
illness. We have Mr. Bryan’s own delusions and fantastic stories and his refusal
to admit he has ever been afflicted mentally. And we have the observation that
his condition was apparently so grave that one expert stated it “place[d] into
serious question his competency to stand trial, as well as his legal culpability in
the crimes for which he is charged.” Evid. Hr’g Tr. at 95.
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The compelling and extensive evidence of Mr. Bryan’s history of mental
illness creates a reasonable probability that the jury would have concluded that
the mitigating evidence outweighed the continuing threat aggravator and might
also be viewed in a mitigating light as to past violent behavior. See Battenfield,
236 F.3d at 1235 (concluding that had mitigating evidence, which included
defendant’s reliance on drugs and alcohol and mental health evidence, been
presented to jury, there was a reasonable probability that the jury would have not
have given defendant the death penalty); Antwine, 54 F.3d 1368 (holding that
presentation of defendant’s mental impairment would alter the balance of
aggravating and mitigating circumstances in the penalty phase of the trial . . .
enough to create a reasonable probability that the jury would not sentence [Mr.]
Antwine to death”).
This evidence could have materially altered the balance of aggravating and
mitigating factors underlying the jury’s sentencing decision. The failure to
present the evidence deprived the jury of a “vehicle for expressing its ‘reasoned
moral response’” to the substantial evidence of Mr. Bryan’s mental illnesses
when it rendered its sentencing decision. Penry, 492 U.S. at 328. Accordingly,
there is a substantial probability the jury, or that at least one juror, would have
determined that the mitigating circumstances outweighed the aggravating
circumstances. See Wiggins, 2003 WL 21467222, at *17 (holding that prejudice
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had been established where counsel presented only one significant mitigating
factor, noting that, “[h]ad the jury been able to place petitioner’s excruciating life
history on the mitigating side of the scale, there is a reasonable probability that at
least one juror would have struck a different balance”). Mr. Freeman’s
performance “‘so undermined the proper functioning of the adversarial process
that the [penalty phase of] of the trial cannot be relied on as having produced a
just result.’” Battenfield, 236 F.3d at 1235 (quoting Strickland, 466 U.S. at 686).
III. CONCLUSION
The majority’s conclusion revolves around the Supreme Court’s statement
that “‘[t]he reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own statement or actions. Counsel’s
action are usually based, quite properly, on informed strategic choices made by
the defendant and on information supplied by the defendant.’” Maj. Op. at 23-24
(quoting Strickland, 466 U.S. at 691) (emphasis added). I simply cannot agree
that Mr. Bryan made an informed strategic choice when his counsel decided to
forego presentation of any mental defect evidence at the sentencing stage. Mr.
Freeman did not ever know what use he could have made of the mental health
testimony. He claims to have felt constrained by the wishes of his client’s family
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and by his client to submerge any indication of mental distress in the Bryan
family, and rather than discuss the purpose of the sentencing phases and of
mitigating evidence generally with his client, he limited his discussion to merely
informing his client that he would be testifying minutes later. And finally, in an
inconceivable decision that completely destroyed any consistency between the
guilt and sentencing phases, Mr. Freeman assured the jury of his client’s guilt
and added his own condemnation of Mr. Bryan’s act.
In its recent and historic decision that declared the execution of mentally
retarded defendants unconstitutional, the Supreme Court observed that
[m]entally retarded persons frequently know the difference between
right and wrong and are competent to stand trial. Because of their
impairments, however, by definition they have diminished capacities to
understand and process information, to communicate, to abstract from
mistakes and learn from experience, to engage in logical reasoning, to
control impulses, and to understand the reactions of others. There is no
evidence that they are more likely to engage in criminal conduct than
others, but there is abundant evidence that they often act on impulse
rather than pursuant to a premeditated plan, and that in group settings
they are followers rather than leaders. Their deficiencies do not warrant
an exemption from criminal sanctions, but they do diminish their
personal culpability.
Atkins, 536 U.S. at 318 (footnotes omitted). The OCCA has acknowledged the
direction of the Supreme Court’s capital punishment jurisprudence and concluded
that “while mentally retarded individuals are capable of committing crimes in
Oklahoma, in light of Atkins, those who fit within its holding are no longer
eligible for the death penalty.” Murphy, 54 P.3d at 567. The OCCA has further
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acknowledged the Supreme Court’s holding that “‘[c]onstruing and applying the
Eighth Amendment in the light of our evolving standards of decency, we
therefore conclude that such punishment is excessive and that the Constitution
places a substantive restriction on the State’s power to take the life of a mentally
retarded offender.’” Id. at n.15 (quoting Atkins, 536 U.S. at 321).
I believe that others too can be “competent to stand trial and yet suffer
from mental health problems that the sentencing jury and judge should have had
an opportunity to consider.” Blanco, 943 F.2d at 1503. Or, as even Mr. Freeman
should have understood, whether Mr. Bryan was “insane” or not, he was clearly,
as both Drs. Smith and Murphy colorfully concluded, “crazy.” I hope that the
State of Oklahoma will reflect on these matters and consider settling this case by
either agreeing to a new sentencing phase where a fairly composed jury can
evaluate this compelling evidence or by renewing its offer of life imprisonment
with no possibility of parole. The prosecution’s victory on appeal does not
eliminate its obligation on an ongoing basis to conscientiously review whether to
exercise prosecutorial discretion. 9
9
See, e.g., Henry Weinstein, California Appeal Lost, Yet Freedom Won:
A dissenting opinion was so persuasive that prosecutors dropped the case that
convicted a man of immigrant smuggling, L.A. Times, Metro Section (Apr. 23,
2003) (discussing United States v. Ramirez-Lopez, 315 F.3d 1143, 1160-76 (9th
Cir. 2003) (Kozinski, J., dissenting), opinion withdrawn and appeal dismissed,
327 F.3d 829 (2003)).
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I do not quarrel with Mr. Bryan’s guilt; his crime and his irreversible brain
damage justify lifelong incarceration and treatment. But our Constitution does
not permit us to sentence this man to death without at least allowing a jury to
consider evidence of his diseased mental state.
I would therefore reverse the judgment of the district court and remand
with instructions that the district court grant the writ as to Mr. Bryan’s death
sentence, subject to the state district court conducting a new sentencing trial.
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