DocketNumber： 81-7417
Judges： Tjoflat, Clark, Tuttle
Filed Date： 5/13/1985
Status： Precedential
Modified Date： 10/19/2024
I. APPEALABILITY OF DISTRICT COURT’S ORDER
Following the publication of our opinion in this case at 737 F.2d 925 (11th Cir.1984), the Court withheld the mandate sua sponte to give further consideration to the appealability of the district court’s grant of the writ of habeas corpus. In that opinion, we announced what amounted to a new procedural rule touching upon the finality of judgments of habeas courts which enter judgments on some, but less than all, the “claims” before them. That rule is that each ground or basis which a habeas petitioner assigns as a ground or reason for the grant of the writ is a separate “claim” within the meaning of Fed.R.Civ.P. 54(b)
Since, as we recognized in our prior opinion, “The Federal Rules of Civil Procedure do not always apply to habeas proceedings,” we undertook to consider their applicability to the appeal in this case. The issue was not raised by either party and was, of course, not briefed.
Upon further consideration, we have concluded that our prior opinion should be vacated.
We perceive a substantial difference between the finality of a judgment by a district court granting the writ of habeas corpus on two of several grounds and of a judgment denying the writ on the basis of the court’s determining the sufficiency of less than all of the asserted grounds. The only question we have before us on appeal-ability is of the former kind of order.
We now conclude that a judgment ordering the release of a convicted defendant unless the state should retry him within a specified time “ends the litigation and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945).
Since both parties here were faced with a judgment that gave the petitioner all he could hope to achieve by the litigation and the state was required to hold a new trial or release the petitioner, it would defy logic for us to hold that such a judgment was not final within the meaning of 28 U.S.C. § 1291.
We arrive at this conclusion without reaching the question whether each separate ground alleged as a basis for granting the writ is a “claim” under Rule 54(b) and without reaching the question whether, assuming it is, Rule 54(b) should be adhered to in a case in which the district judge denies the writ on one or more, but less than all, the claims. Those two questions remain for a later day when they are presented to the Court in an actual case and they are fully briefed by the parties.
II. STATEMENT OF THE CASE
This is an appeal by the State of Georgia from the grant of the writ of habeas corpus to Joseph James Blake, following his conviction of murder in the first degree and sentence to death in the Superior Court of Chatham County, Georgia. The procedural history of this case, demonstrating that all state remedies have been exhausted may be found in the report of the district court’s opinion at Blake v. Zant, 513 F.Supp. 772 (S.D.Ga.1981).
As stated by the habeas court, “the circumstances leading up to the death of Tiffany Loury [aged two] are generally not in dispute.” The habeas court stated the facts as follows:
In November 1975, Jacquelyn Loury and the decedent child were living with her mother, Mrs. Florence Smith, and several of Mrs. Smith’s other children. Jacquelyn and Mr. Blake had dated for about nine months and planned to be married. The petitioner asked Jacquelyn to go out with him the evening of November 14, 1975, but she told him that she planned to go out with a girlfriend, Denise Walker, instead. Nonetheless, Mr. Blake persisted and, finally, after meeting her at the Walker home, Jacque*526 lyn agreed to let the petitioner take her out drinking.
Jacquelyn’s mother kept Tiffany while Jacquelyn, Ms. Walker, the petitioner and several other persons went first to one bar and then another. During the course of the evening, a dispute developed between Mr. Blake and Jacquelyn, perhaps because of her interest in another man. Petitioner struck Ms. Loury on the side of the head with his fist. He was ejected from the lounge at that time and again around midnight when he tried to return.
Mrs. Smith testified that Tiffany and the other children had gone to bed shortly after 9:30 p.m. Mrs. Smith left the house to visit friends around 10:15 p.m. and returned about two hours later. She then noticed that the window next to the front door had been opened, and the curtains pulled back. However, Mrs. Smith did not believe anything was seriously amiss at that time. At approximately 1:00 a.m., Mr. Blake called Mrs. Smith. He asked whether Jacquelyn was home. When told that she was not, Mr. Blake informed Mrs. Smith that he had taken Tiffany. Mrs. Smith began scolding him for having the child out so late on a cold evening. Mr. Blake then hung up without saying anything more. However, it did not appear that Mr. Blake’s having the child was in itself a source of major concern. He had taken the child out alone several times in the past, and his relations with her as well as the rest of the family had been good.
Petitioner testified that, after he had been thrown out of the bar the second time, he had gone back to Jacquelyn’s home. When no one answered, he opened the window, unlocked the door, and entered. He found everyone except Tiffany asleep. Mr. Blake testified that he asked Tiffany if she wanted to go with him. She agreed and they left by the back door. Mr. Blake indicated that his intention was to take the child away because her mother did not deserve the child and had mistreated her in a variety of respects.
Mr. Blake testified further that he first intended to run away with Tiffany and, accordingly, crossed the Talmadge Memorial Bridge as the quickest exit route. Mr. Blake stated that he drove as far as Buford, South Carolina. However, he realized at some point that he could not simply run away with the child without being chased by the authorities. Initially, he reacted to this fact by deciding to kill himself and Tiffany there in Buford. Petitioner later decided to return to Savannah. He testified that he stopped on the bridge. There he and Tiffany prayed about going to “another world” and being together forever “on the other side.” Petitioner then dropped the child off the bridge to her death, which occurred on impact or very shortly thereafter.
Mr. Blake explained that he postponed his own trip to “the other side” so that he could tell the child’s mother what had happened and why. Thus, petitioner did not in fact make any effort to conceal his actions. Quite the opposite, he contacted the police almost immediately after the incident, and began giving them substantially the same account of Tiffany’s death that he testified to at trial, emphasizing that “I know I did wrong, but in another way I did right,” while never once indicating that the child had been harmed or killed.3
The state’s brief in this Court quotes from Blake’s testimony at trial and says that the exact words used by Blake and Tiffany just before he stopped the car on the bridge were: “Would you like to go and stay with me forever?” She replied: “Yes.” The appellee replied: “Okay. That’s what we’ll do. Nobody won’t bother us again.” The brief then says: “Then he stopped the car. The appellee and the child then got out of the car and knelt down and prayed at the bridge about going into another world on the other side. Then he told
Although quoting this language from Blake’s testimony, the state’s brief appears to accept it as a true statement of what actually occurred.
Within six or seven hours after the baby’s death, Blake gave a full taped confession to the investigating officer after adequate warnings had been given. At this time, Blake stated that he did not want or need a lawyer because “he wouldn’t be around.” This statement, after describing his actions as outlined above, said:
All I know is I did wrong and in another way I did right. At least the baby don’t have to suffer about it because the mama and/or the real father ain’t fit to have a child like that. The baby is too good for any one of us. She is in a better place now.
Subsequently, within two or three days, while in jail, Blake wrote the following note, which was delivered to the jailer:
To Whom That Every Read This Letter, I have done the right thing by turning myself in, but I have a promise to keep to my little girl Tiffany. I told her that I would join her soon. But now the time has come for me to go to her. She came to me and said she wanted me now. So I must go because I promised Tiffany and I love her. That we’ll be together on the other side. So you see and understand that I never lost her cause she is wait for me. I’m just sorry that Jackie won’t be there with us. Me and Tiffany will live in peace now forever. I will go to her now. May god forgive me for all my sins. Joseph James Blake.
Some two weeks later, the trial court ordered a psychiatric examination for him. Following the then current policy for indigent defendants in Chatham County,
A police report describing the incident was given to Dr. Bosch. However, neither the taped confession nor the handwritten letter was given to the psychiatrist to aid him in his examination, although they were in the hands of the state when he was appointed by the court. Additionally, neither of them was given to defense counsel, nor was he made aware of their existence until the day before the trial on February 13, 1976.
Dr. Miguel Bosch, the examining psychiatrist,
He was depressed; he was tense; he have problem in his sleeping; he seemed to have some problem in concentrating; and, also, problem with his memory____ He seemed to be having some feeling of guilt about what he was going through____ He had a hopeless feeling about himself.
In response to a question posed by the state at the trial whether he found anything in his examination to indicate that Blake hated Jacquelyn, the mother of the dead child, Dr. Bosch answered: “No, I believe he was in love with her.”
The most significant thing about the report, however, was the fact that Dr. Bosch stated:
That as far as his condition of 'the alleged offense, I do not have an opinion. I didn’t say that he was sane or insane. I said I don’t have an opinion because I couldn’t get any information from him. He claimed he had no memory of doing anything wrong. He said he lacked memory about the particular incident. And then for that reason I could not formulate an opinion about his condition at the time of the offense.
Thus, with both parties and the court aware that the only issue in the trial was insanity at the time of the act, the court proceeded to trial with no psychiatric evidence on that point.
At the federal court habeas hearing, Blake’s counsel, Reginald C. Haupt, Jr., testified that in private conversation he personally sought appointment by the trial court of a private psychiatrist to examine his client, but was told that only a state employed psychiatrist would be provided and, further, that formal motion for private examination would be both unwelcome and unavailing. He also testified that the financial circumstances of Blake’s family were too limited for him to ask for their assistance and that his personal experience with local physicians had convinced him that no useful testimony or examination could be obtained without payment.
Thus, the trial started with the only professional statement relative to the sanity of the defendant at the time of the commission of the act being a statement by the state psychiatrist that he was unable to determine that fact.
The two statements by Blake were totally inconsistent with the premise that he had no recollection of the events of the night of November 14-15. Instead, however, of the psychiatrist having an opportunity to see these documents, and make such use of them as he might to comply with the court’s direction that he determine Blake’s sanity, the only use that could be made of them in Blake’s behalf was for his counsel to question the psychiatrist in cross-examination at the trial.
III. ISSUES PRESENTED
The state challenges the district court’s holding that, in a capital case, a defendant whose sanity at the time of the alleged crime is fairly in question, has “at a minimum the constitutional right to at least one psychiatric examination and opinion developed in a manner reasonably calculated to allow adequate review of relevant, available information, and at such a time as will permit counsel reasonable opportunity to utilize the analysis in preparation and conduct of the defense.”
The second issue is the correctness of the district court’s finding as to the “reasonably effective assistance” of counsel that it was “confronted with conduct that falls far short of the requirement that reasonably
A. Availability of Psychiatric Evidence
In discussing this issue, it is important to note what is not involved. In the first place, the trial court was not faced with the right of a defendant to ask for successive appointments at state expense of psychiatrists in order to obtain the kind of report that would be favorable to him. Cf. United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953); McGarty v. O’Brien, 188 F.2d 151 (1st Cir.1951). As stated by the district court:
However in the present case, this court does not find only objection to a particular psychiatrist or to use of publicly employed psychiatrists per se. Similarly, petitioner does not advance any demand for multiple opinions in the face of already abundant evidence. Here, it appears that no expert opinion at all was received on the central issue of petitioner’s mental state at the time of the alleged crime. It further appears that almost no lay opinion on this critical issue was received____ (emphasis added.)
The second thing not involved in the issues here is the burden of proof. Neither party here discusses the question as to who has the burden of proving the defendant’s mental condition at the time of the commission of the act. The state, therefore, seems to concede that the defendant in such a case where the issue of sanity is fairly raised is entitled to have an adequate psychiatric evaluation of his state of mind, contending only that the defendant here got what he was entitled to by the time the trial was completed.
Third, since we conclude upon a careful reading of the record, that even after the cross-examination of the psychiatric witness at the trial, he was still unable to give an opinion as to the sanity of the defendant, we are not faced with the issue of the correctness of a decision that the defendant was sane.
Finally, the state makes no contention that there was either a failure to exhaust state remedies or that petitioner was barred from relief because of a procedural default.
Then, what is before us for decision is whether the defendant was denied a federal constitutional right “to at least one psychiatric examination and opinion developed in a manner reasonably calculated to allow adequate review of relevant, available information, and at such a time as [would] permit counsel reasonable opportunity to utilize the analysis in preparation and conduct of the defense.”
In approaching this question, we must remember that the confession contained the statement by Blake “in another way I did right,” in light of the psychiatrist’s answer to the following questions at trial:
Q. If when the defendant dropped the child from the bridge and he thought he was doing something right but knew full well that he was dropping child off a bridge, would that be temporary insanity?
A. I say so.
Q. You think so?
A. Yes.
Q. In his own mind, you said that he felt that he was doing right?
A. I believe so.
We must also remember that in the letter not furnished to Dr. Bosch, written by Blake several days after the incident, he made the statement that “Tiffany came to me and said she wanted me now so I must go because I promised Tiffany and I love her. That we’ll be together on the other side. So you see and understand that I never lost her cause she is waiting for me” and further, “I will go to her now.” It hardly seems likely that a psychiatrist would not also have stated that if Blake in fact believed that Tiffany had “come to him” after her death this would be equally strong evidence of at least “temporary insanity.” We also must bear in mind the
We, of course, do not know whether the psychiatrist, if he had these statements before him and an opportunity further to question the accused, would have found them accurately to state Blake’s belief and, if so, whether he would have determined that Blake was insane at the time of the act. We hold, however, that the statements at least raise sufficient question as to Blake’s sanity that they should have been presented to the psychiatrist early enough to allow adequate consideration of them in preparation of his evaluation. As stated by the district court:
Moreover, it is obvious that the state made little or no effort to supply Dr. Bosch and apparently Mr. Haupt as well with such information as the defendant had already voluntarily provided. The state’s failure to produce the transcript of November 15, 1975 was hardly cured by events at trial. Careful analysis of the defendant’s statement would surely require more than a single reading. Yet this one reading was apparently the only expert analysis of the petitioner’s obviously quite bizarre account of the incident that has ever occurred. The court finds such analysis wholly inadequate, especially where there is little or no indication that serious efforts were made to obtain petitioner’s own firsthand statement after the initial interview had failed. Given petitioner’s willingness to discuss the incident on many other occasions, there is no obvious basis for believing that such efforts would have been futile.
The court finds that, in this case, reasonable efforts were not made to examine the petitioner with respect to his sanity at the time of the alleged crime. The court further concludes that, even were it impossible to interview the petitioner directly with respect to the incident, reasonable efforts were not made to provide Dr. Bosch with alternative means for consideration of the petitioner's condition. Consistent with this determination, the court must also conclude that Mr. Haupt was not provided with adequate expert assistance in the preparation of his case. Apparently, he was afforded no professional opinion on the question of Mr. Blake’s sanity at the time of the incident until Dr. Bosch’s comments were received on the witness stand at trial. At this point, with the presentation of evidence more than half complete and the theory of his defense already outlined for the jury, it was obviously too late for any significant benefit.
In sum, we conclude that on the facts of this case, Blake had the constitutional right posed by the above question and we agree with the district court that the right was denied him.
This conclusion is fully supported by the most recent Supreme Court decision dealing with the state’s obligation in a criminal case “to assure that the defendant has a fair opportunity to present his defense.” Ake v. Oklahoma, — U.S.-, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake a defendant in a murder trial had demonstrated bizarre conduct on arraignment and the trial court had him sent to a state psychiatric hospital for a determination as to his ability to stand trial. He was placed on medication and sent back for trial after several months. Thereupon Ake noted his defense to be that of insanity at the time of the commission of the killings. At no time had any psychiatrist made any inquiry into Ake’s sanity at the time of the acts he was charged with, although his counsel moved for appointment of a psychiatrist.
The court, after discussing the potential help that might be provided by a psychiatrist, stated:
We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the state must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, prep-
*531 aration, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the states the decision on how to implement this right.
— U.S. at-, 105 S.Ct. at 1097 (emphasis added).
The habeas court associated the effect of the actions by the state court, the prosecution and the psychiatric witness with the issue of effectiveness of counsel. The court cited United States v. Edwards, 488 F.2d 1154 (5th Cir.1974), stating that the courts have “long recognized a particularly critical interrelation between expert psychiatric assistance and minimally effective assistance of counsel.” 488 F.2d at 1163. The same concept has been stated in a state case: “In McCollum v. Bush, 5 Cir. 1965, 344 F.2d 672, we affirmed a decision holding that a state’s action in adjudicating an indigent defendant guilty without honoring his request for the assistance of psychiatric experts denied [him] both a fair trial and the effective assistance of counsel.” Pedrero v. Wainwright, 590 F.2d 1383, 1396 (5th Cir.1979).
So, too, does the Supreme Court seem to equate the need for psychiatric aid to assistance of counsel. — U.S. at-, 105 S.Ct. at 1093, citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Evitts v. Lucey, — U.S. -, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); and Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
We note that the Supreme Court has recently provided guidance in the resolution of a criminal defendant’s claim of ineffectiveness of counsel. In United States v. Cronic, — U.S. -, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Court held that unless the surrounding circumstances justify a presumption of effectiveness, the inquiry must focus on counsel’s actual performance at trial in order to ascertain whether counsel failed to function adequately as the government’s adversary. 104 S.Ct. at 2048.
In a companion case, Strickland v. Washington, supra, the Court announced a two-pronged test to be applied in ascertaining whether errors committed by a defendant’s counsel amounted to ineffective assistance of counsel:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
104 S.Ct. at 2064.
In Cronic, the Court concluded that a determination of whether counsel’s actual performance was constitutionally deficient requires an examination of specific errors in light of the test set forth in Washington. Cronic, 104 S.Ct. 2051 n. 41.
In this part of the habeas corpus petition, the appellee is not alleging acts on the part of his counsel which fell below constitutionally acceptable standards. Thus, Washington, which focuses on allegations of substandard representation, does not directly apply. Rather he is alleging actions on the part of the state which made it impossible for his counsel to render meaningful assistance on the issue of the appellee’s sanity. Our inquiry must therefore begin by focusing on the effect of the
We believe that it did. Blake’s sanity at the time of the alleged crime was fairly in question. Indeed, it was the only material issue presented to the jury on the question of guilt. At counsel’s request the trial judge ordered a psychiatric evaluation of the defendant as to both his competency to stand trial and his sanity at the time of the offense. Dr. Bosch interviewed the defendant and stated that he could reach no conclusion on the question of sanity at the time of the offense, largely because in the interview Blake could not remember anything about the crime. Thus, although Dr. Bosch was under a court order to express an opinion as to Blake’s sanity at the time of the offense, he had no factual information on which to base such an opinion, other than that provided in the police report, which he found insufficient. At the same time the police possessed two pieces of evidence — the tape of the confession and the suicide note — which Dr. Bosch later, at trial, indicated were highly relevant, or psychiatrically significant, on the question of Blake’s sanity. Nevertheless, neither of these pieces of evidence was made available to defense counsel until the day before the trial, or to Dr. Bosch until he testified.
Thus, Blake and his attorney were left with virtually no evidence on which to base a defense of insanity until the day before trial, though highly significant evidence relevant to that issue had been in the hands of the police since shortly after Blake’s arrest. Under these circumstances, we do not hesitate to find that the state so materially
B. Ineffectiveness of Counsel at the Sentencing Hearing
The district court also vacated the sentence of death on the ground that trial counsel’s service to Blake at the sentencing hearing fell “far short of the requirement that reasonably adequate assistance in fact be rendered.” 513 F.Supp. at 779.
Blake’s defense counsel, Haupt, testified at the habeas hearing that he made no preparations whatsoever for the penalty phase of Blake’s trial because he believed that Blake would be found not guilty by reason of insanity. It was his philosophy that a lawyer should try “to win [a case] rather than prepare for losing it.” Only after the jury had retired did Haupt sense that his client would be found guilty. At that time he sought a continuance, which was denied.
As a result, Haupt went into the sentencing phase without any idea whether there was or was not mitigating evidence available which might persuade the jury not to impose a death sentence, other than the psychiatric evidence introduced during the trial.
As noted earlier, the Supreme Court’s opinion in Strickland v. Washington enunciated a two-part test which must be applied in judging whether defense counsel’s errors amounted to ineffective assistance of counsel. 104 S.Ct. at 2064. We do not hesitate in agreeing with the district court that Blake has satisfied the first part of the test. It should be beyond cavil that an attorney who fails altogether to make any preparations for the penalty phase of a capital murder trial deprives his client of reasonably effective assistance of counsel by any objective standard of reasonableness.
This is not the end of the inquiry, for Blake must also demonstrate that he was prejudiced by his attorney’s conduct. The district court determined that Haupt's error was prejudicial per se and that even if prejudice needed to be affirmatively proved, Blake had adequately shown that Haupt’s ineffectiveness' was prejudicial: “[nevertheless, petitioner has made a credible, if hardly overwhelming, showing of prejudice.” 513 F.Supp. at 780.
However, because the district court was without the benefit of Strickland, we must reexamine this conclusion in light of that case’s holding. There the Court held, first, that “[c]onflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively proved prejudice.” 104 S.Ct. at 2067. The Court added that such claims “cannot be classified according to likelihood of causing prejudice.” Id.
The Court also enunciated the proper standard for proving prejudice resulting from ineffective counsel:
The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Id. 104 S.Ct. at 2068.
We agree with the district court that a presumption of prejudice would be proper where counsel’s representation was so deficient as to amount in every respect to no representation at all, see Adams v.
We must then turn to the question whether Blake has demonstrated actual prejudice — that is, whether it is reasonably probable that the jury would have imposed a lesser sentence, but for Haupt’s failure to prepare for the penalty phase of the trial. We note that, in finding actual prejudice, the district court applied a harmless error standard, which is incorrect under Strickland v. Washington.
Upon an exhaustive search of the record, we nevertheless believe that Blake has adequately demonstrated a reasonable probability that he would have received a lesser sentence but for Haupt’s complete failure to search out mitigating character evidence. As the district court found, “[p]etitioner has demonstrated that no favorable evidence was sought and that some was in fact available.” 513 F.Supp. at 781. Haupt apparently did interview Blake’s father on more than one occasion and there were other persons with the father during those interviews. It also appears that he met with both of Blake’s parents at his office one time before the trial. This apparently was the extent of his investigation into character evidence which might be used for mitigation at a penalty proceeding.
At the habeas hearing, Blake proffered four persons, in addition to his mother, who could and would have testified to mitigating circumstances on his behalf but who were never contacted by Haupt. Three had known him since childhood. All could have testified to the effect that Blake was a man who was respectful toward others, who generally got along well with people and who gladly offered to help whenever anyone needed something. His mother also named four other persons who would have testified on Blake’s behalf but who had since died.
Mr. Haupt in no way used or even considered additional evidence which might have been available to support the defendant’s cause. Such a performance hardly comports with the notion that the sentencing phase be in fact a distinct procedure where the jury’s attention is focused not just on the circumstances of the crime, but also on special facts about this defendant that mitigate against imposing capital punishment!
513 F.Supp. at 780 (citations omitted).
The state insists that the absence of any mitigating evidence did not prejudice Blake because each of the witnesses would also have testified, if asked, that he or she knew that Blake had once been arrested on an assault charge in connection with the stabbing of his estranged wife, Charlesetta Blake, who was pregnant at the time. We believe that while this very well could have persuaded a jury to impose the death sentence in any event, Blake was nevertheless prejudiced by the absence of the character evidence. In fact, during the guilt phase of the trial, the state was permitted to introduce testimony by Charlesetta Blake concerning the altercation which had preceded the stabbing, though any testimony about the stabbing was excluded. Mrs. Blake testified that, in an attempt to compel her
As we have already indicated, we find it a close question whether the petitioner received any defense at all in the penalty phase. Certainly he would have been unconstitutionally prejudiced if the court had not permitted him to put on mitigating evidence at the penalty phase, no matter how overwhelming the state’s showing of aggravating circumstances. See Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (plurality opinion); Bell v. Ohio, 438 U.S. 637, 642, 98 S.Ct. 2977, 2980, 57 L.Ed.2d 1010 (1978). Here, Haupt’s failure to seek out and prepare any witnesses to testify as to mitigating circumstances just as effectively deprived him of such an opportunity. This was not simply the result of a tactical decision not to utilize mitigation witnesses once counsel was aware of the overall character of their testimony. Instead, it was the result of a complete failure — albeit prompted by a good faith expectation of a favorable verdict — to prepare for perhaps the most critical stage of the proceedings. We thus believe that the probability that Blake would have received a lesser sentence but for his counsel’s error is sufficient to undermine our confidence in the outcome. Therefore, the decision of the district court is
AFFIRMED.
. This Rule provides as follows:
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the*525 absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Fed.R.Civ.P. Rule 54(b).
. This section provides as follows:
The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States____
28 U.S.C. § 1291.
. Blake later testified that he meant Bluffton, rather than Buford, South Carolina.
. This policy has now changed. A trial court may now permit appointment of a private psychiatrist at public expense for an indigent defendant.
. Dr. Bosch gave the following description of his credentials:
I finished Medical- School at the University of Havana, Cuba in 1954. I practiced medicine in my country until 1960. I came to the United States in 1961. I went to the School of Medicine, University of Miami, Took an examination that was given by the Medical Association and I have a diploma from there. Also, I took an examination from the Medical Board of the Examiner of Georgia and I’m a licensed physician to practice medicine and surgery in the State of Georgia____ Also, I went to work at Central State Hospital in 1963 as a regular M.D. in that association, until 1965. In 1965 I went into the psychiatric training which I finished in July, 1968. At that time I was given a diploma as a Psychiatrist. After that I was appointed Assistant Chief of the Psychiatric Services, Central State Hospital. And, after that when I complete my two year of clinical psychiatrist I was considered more eligible to the American Psychiatric Association. And, my present position at Central State Hospital is the Director of the Forensic Center, which is the maximum security hospital, Central State Hospital.
. In response to the question: When he [Blake] was talking with you was he — did he appear to be under the influence of alcohol?, the arresting officer said: "No, not really. He seemed reasonably sane.”
. This issue discussed in the dissenting opinion is therefore not before us.
. Contrary to the statement in the dissent that we fashion a rule for every criminal case, we make a decision solely on the facts of this case, in which the sanity of the defendant was fairly raised and which demonstrated the withholding of evidence from the psychiatrist which at trial he testified was "psychiatrically significant.”
. The Supreme Court has found state interference with the assistance of counsel presumptively unconstitutional in a variety of circumstances. See, e.g., Geders v. United States, 425 U.S. 80, 91, 96 S.Ct. 1330, 1336, 47 L.Ed.2d 592 (1976) (order prohibiting defendant from consulting with counsel during overnight recess); Herring v. New York, 422 U.S. 853, 865, 95 S.Ct. 2550, 2556, 45 L.Ed.2d 593 (1975) (refusal to permit defense attorney to make closing arguments in criminal bench trial); Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932) (failure to appoint specific counsel for indigent capital defendants prior to commencement of trial).
. Further support for our holding in this case can be found in the case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny. In Brady the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196. As the Court made clear in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) the absence of a request is not necessarily fatal to a Brady claim. In this case, the judge’s order of a psychiatric examination placed a duty upon the prosecution to provide the doctor and the defense with the transcript of the confession and the suicide note. This information was certainly material in that it indicated Blake’s state of mind at the time closest to the incident.
The prosecution did, however, release this information to the defendant the day before trial. In some instances that may be sufficient. See Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (names of witnesses can be disclosed on the day of trial). However, as other courts have recognized, some material must be disclosed earlier. See Grant v. Alldredge, 498 F.2d 376, 381 (2d Cir.1974); United States v. Donatelli, 484 F.2d 505 (1st Cir.1973). This is because of the importance of some information to adequate trial preparation. In this case, the information was critical to trial preparation. It not only affected the psychiatrist’s report, but also the defense’s ability to present an adequate insanity defense. Dr. Bosch testified he could not give an opinion as to Blake's sanity at the time of the crime due to a lack of information. Obviously, he was reluctant to give an opinion when confronted with this information for the first time on the witness stand. Had the prosecution disclosed the material it had in its possession, Dr. Bosch would not have been in this situation and possibly could have rendered an opinion. We further note that the state's disclosure of the police report, while simultaneously withholding the confession and the suicide note, is indicative of bad faith on the part of the prosecution.
. Petitioner suggests that Haupt’s failure to proffer his mother, Mrs. Bessie Blake, as a witness further prejudiced him because one of the jurors was a friend of Mrs. Blake who apparently did not recognize the petitioner as her friend’s son. This argument is wholly frivolous. In determining prejudice, we are required to presume jury impartiality. Strickland v. Washington, 104 S.Ct. at 2068.