State of Iowa v. Jarrod Dale Majors

IN THE SUPREME COURT OF IOWA
No. 18–0563
Filed March 6, 2020
STATE OF IOWA,
Appellee,
vs.
JARROD DALE MAJORS,
Appellant.
Appeal from the Iowa District Court for Taylor County, John D.
Lloyd, Judge.
Defendant appeals from a second resentencing order imposing a
mandatory minimum sentence for attempted murder committed as a
juvenile. AFFIRMED.
Bradley Bender, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, and Clinton L. Spurrier, County Attorney, for appellee.
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WATERMAN, Justice.
In this appeal, we must decide whether the district court abused its
discretion by imposing a seventeen and one-half-year mandatory
minimum prison term before parole eligibility on the defendant’s second
resentencing for attempted murder during a home invasion and whether
defense counsel provided constitutionally deficient representation. The
defendant was age seventeen at the time of the crime in 2002, and he has
been resentenced twice as our caselaw on juvenile sentencing evolved. See
State v. Majors, 897 N.W.2d 124, 127 (Iowa 2017) (remanding for
resentencing in light of State v. Roby, 897 N.W.2d 127 (Iowa 2017)
(plurality opinion), decided the same day). The defendant, now age thirty-
five, appeals his latest resentencing, contending that the district court
failed to follow our court’s 2017 mandate to apply Roby and that his
counsel was ineffective for failing to present a defense expert on the youth
sentencing factors. We retained the appeal.
On our review, we determine the district court did not abuse its
discretion by imposing the mandatory minimum after considering the
youth sentencing factors under Roby. The sentence is supported by
testimony from the State’s expert. The defendant personally chose not to
retain a defense expert, and we conclude his counsel was not
constitutionally ineffective for relying on cross-examination of the State’s
expert without retaining a defense expert that his client chose to forgo.
Accordingly, we affirm the district court’s judgment of sentence.
I. Background Facts and Proceedings.
On May 30, 2002, Jarrod Dale Majors was a seventeen-year-old high
school senior fifteen days away from his eighteenth birthday. He lived with
his parents on a quiet street in Bedford, Iowa. Majors had become
obsessed with Hollie Peckham, a thirty-year-old woman who lived across
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the street with her thirty-two-year-old husband, Jamie Peckham, and their
twenty-two-month-old twins. While the Peckhams were away one evening,
Majors entered their home, hid inside the closet of the master bedroom,
and awaited their return. Majors wore a ski mask and gloves to avoid
identification. He attached a large knife to his waistband, wrapped a roll
of duct tape around his wrist, and held a .22 caliber rifle with a plastic
soda bottle taped to the barrel to act as a makeshift silencer.
When the Peckhams returned home, Hollie went upstairs while
Jamie remained downstairs with the twins. As Hollie entered her bedroom,
Majors emerged from the closet and attacked while pointing the gun at
her. Hollie screamed for her husband, and Majors told her that he was
not there, which led Hollie to believe Majors had killed him. She ran out
of the bedroom, down the stairs, and out of the house screaming for help.
Hollie found a neighbor, who accompanied her back to the Peckham home
while his wife called the police. Meanwhile, Jamie subdued Majors after a
struggle witnessed by the toddlers. The neighbor helped Jamie restrain
Majors until the police arrived. Jamie later testified that he knew who the
assailant was before removing his ski mask because he had repeatedly
seen Majors trespassing and peering in bathroom windows at Hollie over
the preceding two years. Hollie injured her ankle during the incident, and
the entire family was emotionally traumatized. Jamie described it at the
most recent resentencing hearing as “[k]ind of feel[ing] like there’s a 9-11
that happened where we survived, but it changed everything. It’s a
watershed moment.”
Majors initially told the police that he was paid $100 to commit the
crime as a prank. His story later changed to claiming he had been
hallucinating and could not remember the crime due to using drugs and
prolonged sleep deprivation. As motive for his crime, he claimed to believe
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that Jamie was going to attack him and poison his dog. Majors had no
prior criminal record apart from a single offense for possession of alcohol
as a minor.
Majors pled guilty to attempted murder in exchange for the State’s
agreement to dismiss the remaining ten charges upon the expiration of the
appeal deadline and on the condition that there would be no appeal.
Majors was sentenced on January 22, 2003, to a prison term of up to
twenty-five years with a mandatory minimum of seventeen and one-half
years before parole eligibility. Majors appealed the sentence in violation of
the plea agreement, prompting the county attorney to refile the dismissed
counts. On May 13, Majors entered into a second plea agreement by
pleading guilty to burglary in the second degree. He was sentenced to a
ten-year term for that charge, which was to be served consecutively to his
sentence for attempted murder. In exchange, the State agreed to amend
the charge of burglary from first to second degree and to dismiss the
remaining charges after the appeal deadline as long as Majors did not
appeal. Majors did not file a direct appeal from his sentence.
In 2014, we decided State v. Lyle, holding that any automatic
mandatory minimum sentences of imprisonment for youthful offenders
violated the Iowa Constitution’s provision against cruel and unusual
punishment. 854 N.W.2d 378, 404 (Iowa 2014). Majors filed for a
resentencing hearing based on Lyle. On September 16 of that year, when
Majors was thirty years old, the district court conducted a resentencing
hearing applying the Lyle factors.
Majors was resentenced to a term of incarceration of up to twenty-
five years for attempted murder with a mandatory minimum of seventeen
and one-half-years before parole eligibility. His ten-year sentence on the
burglary conviction remained in place with the sentences to be served
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consecutively. Majors appealed, and the court of appeals affirmed the
sentence after determining the district court had properly considered the
Lyle factors. On further review, we determined that the district court
abused its discretion by imposing a minimum period of incarceration
without eligibility for parole under Roby, decided the same day. Majors,
897 N.W.2d at 127. We reversed Majors’ sentence and remanded for a
second resentencing consistent with the Lyle factors as explained in Roby,
which stated that “the factors must not normally be used to impose a
minimum sentence of incarceration without parole unless expert evidence
supports the use of the factors to reach such a result.” 897 N.W.2d at
147.
At the second resentencing hearing on March 5, 2018, when Majors
was age thirty-three, defense counsel told the court his client chose not to
retain an expert, and the court conducted a colloquy to confirm this was
Majors’ own decision:
MR. BOOTH: . . . I’ve had discussions with Mr. Majors
in regard to whether or not we should have requested or tried
to obtain an independent psychiatric evaluation since we
knew the State was intending to call a psychiatrist to testify
and to subject the defendant to a psychiatric evaluation on
behalf of the State.
In my discussions with Mr. Majors, it’s my
understanding that he does not wish to delay these
proceedings any longer, that he is comfortable proceeding
without the assistance of an independent psychiatric
evaluation, Your Honor. . . .
[the Court swore in Majors]
....
MR. BOOTH: I’ve also advised you that we could ask the
court for State funds in order to hire a psychiatrist or conduct
an independent psychiatric evaluation to support your
position at sentencing. Are you aware of that?
THE DEFENDANT: Yes.
MR. BOOTH: And was it your decision that we not hire
an independent or obtain an independent evaluation?
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THE DEFENDANT: Yes.
MR. BOOTH: Was that because your belief is that we
should proceed -- your desire is to not have any further delays
and proceed with resentencing; is that correct?
THE DEFENDANT: That’s correct.
MR. BOOTH: Thank you, Your Honor.
THE COURT: Mr. Majors, without telling me what [you
and] Mr. Booth discussed, do you feel you’ve had enough time
to discuss this issue with him, or would you like some more
time to discuss it with him?
THE DEFENDANT: I believe I’ve had enough time.
THE COURT: Is it your decision that you not ask for any
further continuances?
THE DEFENDANT: Yes, my decision.
The court additionally offered to leave the record open to give Majors an
opportunity to submit additional evidence later, but Majors declined the
offer.
The hearing proceeded with live testimony from two witnesses:
Deputy Nate Bucher and Dr. Theresa Clemmons, a psychiatrist at the
department of corrections serving as the State’s expert. Jamie Peckham
gave an oral victim-impact statement.
Dr. Clemmons formed her opinions after reviewing Majors’ records
and interviewing him by teleconference. Dr. Clemmons noted Majors’ prior
inconsistent statements regarding his mindset during the crime, but she
stated that “when we discussed what happened he was able to tell me
specifically” what he did and that Majors admitted he did not do the crime
on a dare. Dr. Clemmons testified that “[she did not] believe he’s taking
full responsibility for the entirety of all of his actions the night of the
offense.” The prosecutor and defense counsel each questioned
Dr. Clemmons extensively regarding her conclusions under the five
sentencing factors. Those factors are
(1) the age of the offender and the features of youthful
behavior, such as “immaturity, impetuosity, and failure to
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appreciate risks and consequences”; (2) the particular “family
and home environment” that surround the youth; (3) the
circumstances of the particular crime and all circumstances
relating to youth that may have played a role in the
commission of the crime; (4) the challenges for youthful
offenders in navigating through the criminal process; and (5)
the possibility of rehabilitation and the capacity for change.
Lyle, 854 N.W.2d at 404 n.10 (quoting Miller v. Alabama, 567 U.S. 460,
477–78, 132 S. Ct. 2455, 2468 (2012)); see also Roby, 897 N.W.2d at 135
(quoting same factors).
The prosecutor began with the first factor.
The first one is the youthful offender status or fact, that
the person was in fact not 18 years old at the time of the
commission of the crime.
....
Q. In looking at that factor, how did you think that
played into the defendant’s situation in this case? In other
words, do you feel that his status in the case at the time this
happened would mitigate his responsibility for what
happened, substantially or minimally mitigate it? A. I would
say more so minimally mitigate it. Looking at the overall
youthful offender, the idea of a youthful offender is the idea of
brain maturing and whether brains mature enough to make
good decisions, whether you have good control of your
emotions, good control [over] impulsivity, have good
development of your frontal lobe specifically, and the idea of
that is that over time your brain does develop, it matures.
But looking at his age, from 17 years and 50 weeks to
18 years is a very small change. It’s not a switch. It’s not on
an 18th birthday you flip a switch and the brain is fully
mature. It actually takes much longer than the 18th birthday
to reach the full maturity, and some people say your brain is
ever changing during your lifetime, and we have no mark for
full brain maturity.
So looking at kind of those ideas, there would have been
minimal brain change or brain growth or brain development
within those two weeks. So it wouldn’t have necessarily
changed his ability to make decisions, his ability to control
emotions better or worse, his ability to have impulse control,
that sort of thing.
....
Q. So in terms of mitigating his responsibility for the
crime, at best [the first factor] would have minimal mitigating
value; would that be fair? A. Yes.
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On cross-examination, Dr. Clemmons stated that she was looking
at this factor from the perspective of whether Majors was a risk to all
parties involved and emphasized her focus on whether he displayed any
empathy. Majors’ counsel asked whether she thought Majors may not
have contemplated the risks and consequences to the victims, and she
replied that she did not specifically ask him that so she could not answer.
The prosecutor’s direct examination then elicited the expert’s
testimony on the second factor, Majors’ supportive family and home
environment.
A. He described his family as supportive. He described his
relationship with his mother as a good relationship. He and
his mother still have frequent visits, and they talk regularly.
He mentioned that his mother was supportive growing up. He
denied any abuse.
He did mention with his father the physical abuse that
we talked about, but he did mention that through the years
that he and his father did have a good, supportive relationship
over the years, also came up for visits as well.
And then him and his brother also have a good
relationship, from my understanding. Growing up they had
some similar friends. And they denied any abuse going back
and forth. He mentioned they would have had, you know, the
typical brother relationship where they probably roughhouse
a bit and that but no abuse back and forth between the boys.
Q. So the only negative he described to you in relation
to his family relationship was a period of prior abuse by his
father; is that correct? A. Yes.
Q. And that would have ended when he would have
been roughly in sixth grade; correct? A. Yes, he mentioned
the physical abuse ended in sixth grade.
Q. He described to you after that period of time he and
his father developed a good relationship? A. To my
understanding, yes.
Dr. Clemmons testified that Majors’ other familial relationships with his
brother and mother had been good at the time of the crime and continue
to be, that there were no substance abuse issues within the family or other
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abuse, and that it would be fair to say that Majors basically described a
positive, supportive family.
Q. So again in terms of this factor, did you say anything
about his home environment or relationship would mitigate
his actions in terms of the crime? A. At the time of the
offense, there didn’t appear to be anything going on within the
family that would have mitigated anything.
Q. The people that you deal with in the prison system,
is it fairly common that many of them have very troubled home
lives? A. Absolutely.
Q. And that’s contributed to them being where they’re
at; would that be fair to say? A. Absolutely.
Q. And you didn’t see anything in this case; did you?
A. Not at the time of offense.
Q. Would it be fair to say that factor would have
minimum mitigating value in this case? A. Yes.
Majors’ counsel cross-examined Dr. Clemmons regarding how
Majors’ childhood scoliosis, surgery in the sixth grade, and his inability to
participate in sports affected his home environment. In response, she
noted she was focusing on his home environment at the time of the crime
many years later.
The prosecutor then turned to the third factor, the circumstances of
the crime, in which Dr. Clemmons noted the absence of peer pressure.
Q. The next factor I wanted to look at is the
circumstances of the crime and I think in terms of the Iowa
Supreme Court looking at the issue of outside influences
significantly. Did you look at that issue as well in relation to
the defendant? A Yes.
Q. And in terms of involvement of other youthful people
with him, did you find any evidence of that in this particular
case? A. No, I did not.
Q. I believe the supreme court case indicated if they
were jointly committing crimes with others. In this case is
there any evidence whatsoever that anyone else participated
with the defendant in the commission of this crime? A. No.
Q. Is there any indication that anybody else was
involved in the planning or preparation for this crime? A. No.
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Q. In terms of those factors such as peer pressure, did
he indicate to you any indication that peer pressure played a
role in what he did that night? A. No.
Dr. Clemmons went on to state that she would not classify Majors’ crime
as an impulsive one, but rather it appeared to be planned given the
clothing to mask his identity, the rifle with a makeshift silencer, and the
knife as a backup weapon.
Q. In terms of what we have here, we have one who had
a well thought out crime and did so in a way that was going
to minimize their likelihood of being caught and held
accountable; would that be correct? A. That is correct.
Q. Again in terms of the circumstances of the crime,
would you say that the factors and circumstances would
provide minimal mitigating value of the defendant’s youthful
offender in this case? A. Correct.
On cross-examination, defense counsel challenged Dr. Clemmons about
impulsivity and her belief that this was a planned crime.
When discussing the fourth factor, the defendant’s competency to
navigate legal proceedings, Dr. Clemmons testified on direct that she had
reviewed Majors’ competency evaluation from his forensic psychiatric
hospitalization close in time to the crime.
Q. And were you able to determine from that whether
the defendant was competent to understand what he was
doing in terms of being able to assist in his defense in the case
that was pending against him? A. Yes. . . . In the letter from
Dr. Hartman from August 2, 2002, Dr. Hartman mentions
that Mr. Majors was competent to participate in judicial
proceedings. He stated he currently does not have a mental
condition which prevents him from appreciating his charge,
understanding the proceedings or assisting in his own
defense.
I reviewed his history and available data surrounding
the activities in question and would indicate that Mr. Majors
understood the nature and quality of behavior in which he
was allegedly involved. That statement and information would
indicate at that time he had sufficient competency to
distinguish right from wrong. It is equally this writer’s opinion
that at this time he had capacity to form intent consistent with
accountability.
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Dr. Welch, who was also the psychologist who met with
him, stated he does appear to be well aware of the charges
against him and can aid in his own defense.
So both a licensed psychologist and a psychiatrist
mentioned that they thought he had no -- there was no
concern for diminished capacity or competency at that time.
Q. And that was based on an evaluation done in July
of 2002; correct? A. Yes, that is correct.
Q. Would you have expected that from May 25, 2002,
when the evaluation was done, any reasonable likelihood
there would have been a significant change in his mental
capacity and competency during that small window of time?
A. None of the information I have would have indicated that,
no.
Q. In this case would you say it’s also significant that
to an extent the defendant kind of throughout the progress of
this case kind of went through a checklist of more or less
minimizing any responsibility? First someone there, to
offering me money, next thing I’ve got a mental competency
issue, I don’t understand to the point of asking other prisoners
how to make it sound more effective, to I’m not responsible
because of use of drugs and a blackout? A. It seemed that he
was definitely trying to find ways to reduce his responsibility
for the actions that he had performed.
Q. And doing ways recognized by the legal system;
correct? A. Correct.
Q. Diminished capacity would provide a potential legal
defense; correct? A. Correct.
Q. So would substance abuse intoxication?
A. Correct.
Q. Again I would ask you in this case do you feel that,
based upon your information, that the defendant was fully
able to understand the legal proceedings and navigate the
legal system at that time? A. I don’t have any information to
the contrary.
Q. So again this would be another minimal mitigating
value in terms of his being a youthful offender; correct?
A. Yes.
Defense counsel cross-examined Dr. Clemmons about Majors’ difficulty in
school.
In terms of going into the alternative school, it sounds
like a smaller class size, more attention, and also he
mentioned to me it was only three hours a day versus the full
seven to eight hours of schooling, which was his preference.
12
Lastly, Dr. Clemmons addressed the fifth factor, capacity for
rehabilitation, recognizing in this case that they had the benefit of sixteen
years of hindsight since this 2002 crime, Majors’ prison disciplinary
history, and his long-standing and continuing lack of empathy and
remorse.
Q. And in terms of his rehabilitative capacity, what
would your thoughts be in that area? A. I have several
thoughts in that area. He does have . . . the ability in terms
of understanding what the treatment program would be like.
His IQ is good, so he would be able to understand the content.
He does not have any behavior problems right now. He
hasn’t had disciplin[e] since 2014, so there wouldn’t be any
problems with him sitting in class, going through treatment,
performing those kind of things.
The main point that I’ve been concerned about -- and I
think this was also mentioned in the presentence
investigation from 2002 but really gets him out of his
evaluation -- was the concern for feelings of remorse, empathy
for the victims and also feelings of guilt for his actions.
That really comes down to the core of what the
rehabilitation is in terms of taking responsibility for the
action, admitting wrongdoing and then going through that
treatment with kind of that desire to want to change so that
way in the future whatever underlying factor led you to that
offense doesn’t lead you to that offense in the future.
Q. Or other offenses? A. Right.
Q. In this case did you feel that the defendant showed
remorse for what he had done? A. I didn’t get that sense, no.
Q. We’ve already talked about the victim empathy and
accepting responsibility issues. And so together with those
three, in your opinion, do you think those things all will
reduce the effectiveness of full rehabilitation in relation to the
defendant? A. That would reduce the rehabilitation, correct.
Q. If you’re looking at whether the prospect of him
being a good candidate for parole rehabilitation, that would be
something that, based upon the information you’ve looked at
and reviewed, you would say he’s not a good prospect for full
rehabilitation; would that be fair? A. I would say that’s
correct.
Q. Again in evaluating this factor, rehabilitation would
be something that would be a minimal mitigating value in our
analysis of assessment of what the appropriate sentence
would be; would you say that’s fair? A. Yes.
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On cross-examination, Dr. Clemmons acknowledged that Majors had
shown a capacity for change since 2014 and that Majors apologized to the
Peckhams at his previous sentencing hearings, but she noted his motive
for secondary gain. Dr. Clemmons admitted to working primarily with
adults and that Majors’ was her first resentencing hearing on the
Miller/Lyle/Roby factors.
The district court subsequently issued its resentencing order
stating, “The court will consider the five factors as applied to this case, in
light of the explication of those factors contained in Roby.” The court
outlined in considerable detail Roby’s description of each factor and its
analysis of each factor’s application to Majors’ case.
Regarding the first factor, age and maturity, the district court noted
that Majors was fifteen days shy of his eighteenth birthday at the time of
the crime, and found
it [was] reasonable to assume that he would have been more
mature than a 15 or 16 year old defendant and not
appreciably less mature than if he had committed the crime
two weeks later, at which point he would have been treated as
an adult without question.
Elaborating, the district court cited to the evaluation done at the Iowa
Medical and Classification Center at Oakdale two months after the crime
that opined Majors understood the nature and quality of his behavior and
noted that he had been soliciting help from other inmates regarding how
to look more psychiatrically ill to aid in his defense. The district court
acknowledged that the report identified Majors as having “limited insight
and impaired judgment and being emotionally immature” as well as being
a loner bullied throughout his childhood. Noting Roby emphasized the
importance of expert testimony, the district court referenced
Dr. Clemmons’ determination that there was nothing about Majors’ age
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that mitigated against a mandatory sentence. “It does not appear to the
court that the defendant’s age is a mitigating factor in light of the
contemporaneous assessment and the current psychiatric testimony.”
Turning to the second factor, the family and home environment, the
district court noted that “[n]o one point[ed] to any home environment facts
that influenced the defendant’s behavior.” Indeed, Majors had no juvenile
criminal history apart from a single offense of possession of alcohol. The
court referred to the physical abuse by Majors’ father until about the sixth
grade, noting the father–son relationship subsequently improved and was
“in good shape” at the time of the crime. Majors himself had denied any
abuse issues, and his father had contacted the facility where Majors was
being held numerous times to advocate for greater phone access. The
district court noted, “Dr. Clemmons also did not identify any family or
household issues that in her opinion would have mitigated the offense.
The court concludes that this factor does not mitigate the defendant’s
conduct.”
In considering the third factor, the circumstances of the crime and
attendant youth factors, the district court determined,
This crime was a solo act by the defendant. There was
no one involved who encouraged or goaded the defendant into
acting. There is no indication that he was in any way seeking
to curry favor with or win approval of any peer group.
The court relied in part on the Oakdale report and Dr. Clemmons’
testimony.
Dr. Clemmons also found no indications of any outside
influences on the defendant in the planning and execution of
this crime. In addition, she noted the deliberate nature of the
crime -- the use of a ski mask and gloves, shoes with no
identifiable tread, a rifle with a homemade silencer attached
and a backup weapon -- was supportive of a finding that the
defendant was acting for himself and not impulsively or at the
behest of another.
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The district court emphasized the conclusions in the Oakdale report that
in 2002 Majors “understood the nature and quality of [his] behavior [and] at
that time he had the capacity to form intent consistent with accountability.”
The district court concluded that the third factor was not mitigating.
Regarding the fourth factor, competency to navigate the legal
system, the district court stated it “fails to see how this factor mitigates in
the defendant’s favor” and explained why:
While the crime occurred when the defendant was still a
minor, the only part of the criminal proceeding that occurred
while he was a minor was his initial appearance and his
preliminary hearing at which he successfully obtained
dismissal of two counts that had been filed initially. The entire
remainder of this criminal proceeding took place after he had
attained legal adult status. In addition, he was evaluated for
competency to stand trial as noted above. This evaluation
occurred in July 2002 and preceded the bulk of the
proceedings in this case. This evaluation found him
competent to assist in his own defense and to stand trial.
As an additional consideration, the defendant
demonstrated an understanding of the legal system that belies
any disability due to his age. He claimed to be suicidal in
order to get out of the Taylor County jail. He sought an
evaluation of his competency in order to try to aid his case.
He solicited other inmates at Oakdale for ideas on how he
could appear more worthy of a determination of psychiatric
incompetency. He tried out various lies in an effort to frame
an explanation that would allow him to avoid or ameliorate his
culpability. None of those actions indicate a defendant
overwhelmed by the system due to his age or immaturity.
Dr. Clemmons also found nothing in the 2002 evaluation that
would indicate that the defendant was overwhelmed by the
system and pointed in her testimony to these additional
factors as support for that conclusion.
Finally, the district court turned to the fifth factor, capacity for
reform, and noted that if it were only considering the defendant at the time
of the original sentencing in evaluating this factor, his youth and potential
to reform might weakly mitigate in Majors’ favor. Focusing on
Dr. Clemmons’ testimony, the court recognized her concern that Majors
has never shown empathy for the victims of his crime and his lack of
16
empathy “was a trait he brought to prison with him.” The court expressed
uncertainty over how to consider Majors’ prison conduct when evaluating
this factor, but concluded, “The only factor that came close to favoring
mitigation, the possibility of reform, is further weakened if not destroyed
by his prison conduct.” Majors had numerous prison disciplinary
violations before Lyle was decided in 2014. His behavior improved after
our decision in Lyle, but he committed another major violation (providing
a fake urine sample to fool a urinalysis) upon returning from his 2018
resentencing hearing. The court concluded the fifth factor “would mitigate
in the defendant’s favor, albeit somewhat weakly in the court’s
assessment.”
The district court determined “[a] mandatory minimum sentence, in
the absence of mitigating factors and the presence of ‘a frightening crime,’
seems appropriate” and that
after careful consideration of the Lyle factors . . . the
mandatory minimum sentence for adults convicted of
attempted murder applies to this defendant and that he
should be subject to serve 70% of the sentence before
becoming eligible for parole.
The court resentenced Majors on the charge of attempted murder to the
same sentence as before, twenty-five years imprisonment with eligibility
for parole after serving a mandatory minimum of seventeen and one-half-
years. The district court concluded that Majors’ sentence for burglary was
not up for resentencing, and it remained a ten-year sentence that would
run consecutively to his sentence for attempted murder.
Majors filed this direct appeal, which we retained.
17
II. Standard of Review.
If the sentence imposed is within the statutory limits, as it is here,
we review for an abuse of discretion. Roby, 897 N.W.2d at 137. As we
explained in Roby,
A discretionary sentencing ruling, similarly, may be [an abuse
of discretion] if a sentencing court fails to consider a relevant
factor that should have received significant weight, gives
significant weight to an improper or irrelevant factor, or
considers only appropriate factors but nevertheless commits
a clear error of judgment by arriving at a sentence that lies
outside the limited range of choice dictated by the facts of the
case.
Id. at 138 (alteration in original) (quoting People v. Hyatt, 891 N.W.2d 549,
578 (Mich. Ct. App. 2016), judgment affirmed in part and reversed in part
by People v. Skinner, 917 N.W.2d 292, 295 (Mich. 2018)). “Sentencing
decisions of the district court are cloaked with a strong presumption in
their favor.” State v. Crooks, 911 N.W.2d 153, 171 (Iowa 2018); see also
State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).
We review ineffective-assistance-of-counsel claims de novo. State v.
Ortiz, 905 N.W.2d 174, 179 (Iowa 2017). Normally such claims are
preserved for postconviction-relief actions, but ineffective-assistance-of-
counsel claims can be resolved on direct appeal when the record is
sufficient to allow a ruling. 1 State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005).
III. Analysis.
Majors argues that the district court abused its discretion by
imposing a mandatory minimum sentence on remand and that his trial
1In State v. Macke, we held that the 2019 amendment to Iowa Code section 814.7
does not apply to a direct appeal from a judgment and sentence entered before the
statute’s effective date of July 1, 2019. 933 N.W.2d 226, 228 (Iowa 2019). Although
under the current version of Iowa Code section 814.7 Majors would not have a right to
direct appeal on an ineffective-assistance-of-counsel claim, he did have such a right at
the time his judgment and sentence was issued on April 2, 2018. As such, we will
consider Majors’ ineffective-assistance-of-counsel claim in this appeal.
18
counsel was ineffective in failing to present expert testimony on the Lyle
factors at his 2018 resentencing. The State responds that the district
court properly applied the Lyle factors and that the mandatory minimum
was supported by expert testimony, while Majors’ own decision to forgo
retaining a defense expert precludes relief on his ineffective-assistance-of-
counsel claim.
A. No Abuse of Discretion. Our decisions have clarified that the
sentencing court must consider the Miller/Lyle/Roby factors in an
individualized sentencing hearing if it is contemplating imposing a
mandatory minimum sentence on a juvenile offender. Roby, 897 N.W.2d
at 148. The State must prove the defendant’s “irreparable corruption” for
a life-without-parole sentence. State v. Seats, 865 N.W.2d 545, 556 (Iowa
2015). That proof is not required for a shorter mandatory minimum
sentence.
We have given some procedural guidance. Our decision in Roby
allows district courts to impose minimum terms of incarceration “after a
complete and careful consideration of the relevant mitigating factors of
youth.” Roby, 897 N.W.2d at 148. Indeed, we stated that “‘[i]f the
mandatory minimum period of incarceration is warranted,’ we commanded
[our judges] to impose the sentence.” Id. at 143 (alteration in original)
(quoting Lyle, 854 N.W.2d at 404 n.10). If the factors are properly applied,
“the constitutional guarantee against cruel and unusual punishment is
satisfied.” Id. at 145. “[T]he factors must not normally be used to impose
a minimum sentence of incarceration without parole unless expert
evidence supports the use of the factors to reach such a result.” Id. at
19
147. 2 We now turn to addressing what the district court must find in order
to impose a mandatory minimum sentence for a crime committed under
age eighteen.
Our earlier opinions have been criticized for running the risk of
“mak[ing] it difficult, if not practically impossible, for a sentencing judge
to ever impose any minimum term of incarceration.” Id. at 151 (Zager, J.,
dissenting); see also State v. White, 903 N.W.2d 331, 337 (Iowa 2017)
(Mansfield, J., dissenting) (“Our court has extended Miller to all mandatory
minimums but has yet to say what the substantive standard is. Plainly it
isn’t ‘irreparable corruption’ . . . . Still, our court hasn’t told district courts
what that standard is. This isn’t about moving the goal posts. The court
has yet to erect the goal posts.”). Yet as we indicated in Roby, mandatory
minimum sentences are permissible. While there is a presumption against
minimum terms of incarceration for juvenile offenders, we have expressly
upheld, even commanded, their use if the court concludes that sentence
is warranted after consideration of the factors. Roby, 897 N.W.2d at 143
(plurality opinion). Such a conclusion does not need to rise to the level of
irreparable corruption.
We reiterate that our role on review is for abuse of discretion. An
abuse of discretion may exist if the sentencing court fails to consider a
factor, gives significant weight to an improper factor, or arrives at a
conclusion that is against the facts. Id. at 138. But if the court follows
our outlined sentencing procedure by conducting an individualized
2The State stops short of asking us to overrule Roby or Lyle. As we recently noted
in Goodwin v. Iowa District Court, “We do not ordinarily overrule our precedent
sua sponte.” 936 N.W.2d 634, 645 n.4 (Iowa 2019) (quoting Estate of McFarlin v. State,
881 N.W.2d 51, 59 (Iowa 2016)); see also State v. Roberson, 935 N.W.2d 813, 828 (Wis.
2019) (overruling precedent at the state’s request to “return to our past practice of
following decisions of the United States Supreme Court”). Adversarial briefing should
guide a supreme court’s weighty decision to overturn its precedent.
20
hearing, applies the Miller/Lyle/Roby factors, and imposes a sentence
authorized by statute and supported by the evidence, then we affirm the
sentence. Goodwin v. Iowa Dist. Ct., 936 N.W.2d 634, 637 (Iowa 2019);
see also Seats, 865 N.W.2d at 552–53 (explaining our review for abuse of
discretion and emphasizing the discretionary nature of judges). As we
stated in Formaro,
Judicial discretion imparts the power to act within legal
parameters according to the dictates of a judge’s own
conscience, uncontrolled by the judgment of others. It is
essential to judging because judicial decisions frequently are
not colored in black and white. Instead, they deal in differing
shades of gray, and discretion is needed to give the necessary
latitude to the decision-making process. This inherent
latitude in the process properly limits our review. Thus, our
task on appeal is not to second guess the decision made by
the district court, but to determine if it was unreasonable or
based on untenable grounds.
638 N.W.2d at 725 (citations omitted); see also Seats, 865 N.W.2d at 552–
53. We trust the sentencing courts to know, after applying the factors,
when a mandatory minimum term of incarceration for juvenile offenders
is warranted. Such trust is essential to the “respect afforded by the
appellate process.” Formaro, 638 N.W.2d at 725.
We recently affirmed a twenty-year mandatory minimum on a fifty-
year sentence for second-degree murder committed by a sixteen-year-old.
Goodwin, 936 N.W.2d at 637. The sentencing court conducted an
individualized sentencing hearing, relied on expert testimony in applying
the Miller/Lyle/Roby factors, and imposed a sentence within the statutory
limits. Id. at 645–47. Under circumstances in which two of the factors
were mitigating, we determined that imposing the twenty-year mandatory
minimum was neither illegal nor an abuse of discretion. Id. We reach the
21
same conclusion as to Majors’ seventeen and one-half-year mandatory
minimum prison term. 3
Under the first factor, the sentencing court must consider “the age
of the offender and the features of youthful behavior, such as ‘immaturity,
impetuosity, and failure to appreciate risks and consequences.’ ” Lyle, 854
N.W.2d at 404 n.10 (quoting Miller, 567 U.S. at 477–78, 132 S. Ct. at
2468). 4 The district court appropriately noted that Majors was nearly age
eighteen when he committed the crime in 2002. Majors argues the court
erred in emphasizing his age and states the fact that he was nearly
eighteen at the time of the crime is “immaterial to the crucial question
whether [he] possessed features of maturity beyond his years.” We reject
his attempt to alter the first factor. The court must consider “the age of
the offender and the features of youthful behavior,” which explicitly
articulates that each is a separate consideration under this factor. Id.
(emphasis added). The district court properly considered the present
expert testimony of Dr. Clemmons and the 2002 Oakdale psychiatric
3The district court, as noted, relied in part on the testimony of the State’s expert
psychiatrist, Dr. Theresa Clemmons. Majors’ trial counsel did not argue that
Dr. Clemmons was unqualified to testify as an expert because she was not a child
psychologist or child psychiatrist. Nor does Majors’ appellate counsel argue that trial
counsel provided constitutionally deficient representation by failing to challenge the
admissibility of Dr. Clemmons’ expert testimony on grounds that she was unqualified.
“Generally, we have been committed to a liberal view on the admissibility of expert
testimony.” Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010). Indeed, we
have stated that “an expert does not need to be a specialist in the area of the testimony
as long as the testimony is within the general area of expertise of the witness.” Id. at 687.
In Roby, we nowhere specified that the state was limited to using expert testimony of a
child psychologist or psychiatrist to support a mandatory minimum sentence. Such a
limitation on expert testimony would make little sense when, as here, the offender was
age thirty-three at the time of his second resentencing.
4“Studies that have examined logical reasoning abilities in structured situations
and basic information-processing skills, for instance, have found no appreciable
differences between adolescents age 16 and older and adults[.]” Laurence Steinberg et
al., Are Adolescents Less Mature Than Adults? Minors’ Access to Abortion, the Juvenile
Death Penalty, and the Alleged APA “Flip-Flop”, 64 Am. Psychologist 583, 586 (2009).
22
assessment of Majors’ decisional capacity contemporaneously with the
criminal offenses. The record supports the district court’s determination
that Majors’ maturity was comparable to a young adult and is not a
mitigating factor.
Under the second factor, the sentencing court must consider “the
particular ‘family and home environment’ that surround the youth.” Lyle,
854 N.W.2d at 404 n.10 (quoting Miller, 567 U.S. at 477–78, 132 S. Ct. at
2468). “This factor seeks to identify any familial dependency and negative
influences of family circumstances that can be ingrained on children” and
considers the impact of all home environments, financial situations, and
social backgrounds. Roby, 897 N.W.2d at 146. Majors, relying on an
article that outlined resentencing considerations for a potential sentence
of life without parole, urges that Dr. Clemmons should have interviewed
family members, reviewed school reports, and utilized social maturity
scales. 5 Such additional investigation is not required here, especially
given that Majors was age thirty-three at the time of this second
resentencing. Dr. Clemmons testified about how Majors had been picked
on by other kids and noted a report of abuse by his father that ended when
he was in sixth grade and had since improved. She found no mitigation
given his childhood or the family environment at the time of the crime, in
2002, when Majors was living on a quiet street in a loving, two-parent
household with good relationships with family members. The district court
considered her expert testimony and noted the absence of “any home
environment facts that influenced [Majors’] behavior.” Unlike many
youthful offenders raised in troubled home environments, Majors had no
5Elizabeth Scott et al., Juvenile Sentencing Reform in a Constitutional Framework,
88 Temp. L. Rev. 675, 696–97 (2016) (proposing considerations for a potential life-
without-parole sentence).
23
juvenile criminal record apart from a single offense for possession of
alcohol and thus had been able to conform his behavior to societal
expectations before he invaded the Peckham home. The record supports
the district court’s determination that the second factor is not mitigating
for Majors.
Under the third factor, the sentencing court must consider “the
circumstances of the particular crime and all circumstances relating to
youth that may have played a role in the commission of the crime.” Lyle,
854 N.W.2d at 404 n.10. Here, our caselaw directs the sentencing judge
to give attention to “the juvenile offender’s actual role and the role of
various types of external pressure.” Roby, 897 N.W.2d at 146. As such,
this factor is more relevant in situations of group participation in a crime.
Id. For homicide offenses, this also involves consideration of “the way
familial and peer pressures may have affected” the defendant. State v.
Zarate, 908 N.W.2d 831, 853 (Iowa 2018) (quoting Seats, 865 N.W.2d at
556). “Our sentencing courts can and should consider the heinous nature
of the crime in evaluating whether to impose a mandatory minimum
sentence.” Goodwin, 936 N.W.2d at 647.
Majors argues that the court did not give proper weight to his initial
assertions that he had been dared to commit the crime, had been acting
under direction of voices in his head due to drug use, and had blacked
out. However, Dr. Clemmons testified that Majors himself admitted to her
that he did not commit the crime on a dare, and his claim of being on a
drug binge was inconsistent with other evidence. The district court
appropriately relied on the absence of peer pressure, noting Majors acted
alone without anyone goading him. The court’s conclusion is supported
by the expert testimony of Dr. Clemmons, who “found no indications of
any outside influences . . . in the planning and execution of this crime.”
24
Nor was the crime impulsive; to the contrary, Majors acted deliberately
with careful planning. He observed the Peckham family for years, even
watching Hollie, the object of his obsession, through bathroom windows.
He learned their nightly routine, snuck into their home, and hid in Hollie’s
bedroom closet before emerging to attack her. He wore a ski mask and
gloves to avoid detection. He brought duct tape presumably to bind her.
He carried a rifle with a makeshift silencer and a knife as a backup weapon
to subdue or kill his victims. As we observed in our prior decision, he
committed a “frightening crime.” Majors, 897 N.W.2d at 125. And the
district court properly relied on present expert testimony and the 2002
contemporaneous Oakdale psychiatric assessment that at the time of the
crime Majors understood the nature of his conduct and had the decisional
capacity to be held accountable. The record supports the district court’s
determination that the third factor is not mitigating for Majors.
Under the fourth factor, the sentencing court must consider “the
challenges for youthful offenders in navigating through the criminal
process.” Lyle, 854 N.W.2d at 404 n.10. “This factor recognizes that
juveniles are typically less capable than adults at navigating the legal
process.” Goodwin, 936 N.W.2d at 647. But Majors was an adult
throughout these criminal proceedings. Dr. Clemmons testified that the
2002 Oakdale assessment found him competent to assist in his own
defense, and both a licensed psychologist and psychiatrist in 2002 found
there was no concern that Majors had diminished capacity or competency.
The record supports the district court’s determination that Majors
“demonstrated an understanding of the legal system that belies any
disability due to his age.” The record supports the district court’s
determination that the fourth factor is not mitigating for Majors.
25
Under the fifth factor, the sentencing court must consider “the
possibility of rehabilitation and the capacity for change.” Lyle, 854 N.W.2d
at 404 n.10. This factor typically favors mitigation because juveniles are
generally more capable of rehabilitation than adults. Roby, 897 N.W.2d at
147. Here, the district court appropriately gave weight to expert testimony
on Majors’ lack of empathy and remorse from his initial arrest to the
present. And the district court properly considered Majors’ prison
disciplinary violations, which as Dr. Clemmons explained were not
attributable to his youth because he continued to accrue violations as an
adult. Even at age thirty-three, and on the same day as his 2018
resentencing, Majors committed another disciplinary violation. The record
supports the district court’s determination that the fifth factor is, at best,
“weakly” mitigating for Majors.
The district court was unsure what weight to give Majors’ conduct
in prison. On resentencing, we encourage district courts to consider the
defendant’s conduct in prison—a sixteen-year span in this case. When
initially sentencing a juvenile offender shortly after the crime, the district
court must attempt to predict how the defendant will respond to the future
opportunities to mature and rehabilitate himself while incarcerated. By
contrast, we have observed that parole boards have
“the benefit of seeing the individual offender’s actual behavior,
rather than having to attempt to predict chances at maturity
and rehabilitation based on speculation.” As a result, the
parole board may decide to continue confinement of the
juvenile “[i]f rehabilitation has not yet occurred” until he or
she “has demonstrated through his or her own actions the
ability to appreciate the severity of the crime.” “This is
consistent with the approach of our prior holdings in the area
of juvenile sentencing, because it allows for a realistic and
meaningful opportunity for parole upon the juvenile’s
demonstration of maturity and rehabilitation.”
26
State v. Harrison, 914 N.W.2d 178, 201 (Iowa 2018) (quoting State v.
Propps, 897 N.W.2d 91, 102 (Iowa 2017)). On resentencing, the court, like
the parole board, can look back and rely on the defendant’s actual
behavior (good or bad) while incarcerated. 6 See Crooks, 911 N.W.2d at
170 (considering the “juvenile offender’s progress towards rehabilitation”
while incarcerated before imposing a new sentence). This may benefit
some defendants. For example, in State v. Louisell, we affirmed a
resentence that granted immediate parole eligibility to a juvenile offender
who had served twenty-six years in prison, noting “Louisell is a model
inmate who has achieved rehabilitation; grown from a naïve and impulsive
youngster to a mature, accomplished, and intelligent woman; and
accepted full responsibility for the crime she committed as a juvenile in
1987.” 865 N.W.2d 590, 595 (Iowa 2015). Majors has not been a model
inmate.
On balance, we determine the district court did not abuse its
discretion in applying the foregoing factors to impose the seventeen and
one-half-year mandatory minimum sentence. Importantly, as we
reiterated in Goodwin, “[o]ur district courts can and should [also] weigh
public safety (incapacitation), deterrence, and retribution when sentencing
juvenile offenders for violent felonies.” Goodwin, 936 N.W.2d at 647; see
also Harrison, 914 N.W.2d at 201 (“Despite our emphasis on rehabilitation,
juvenile sentences may still aim to promote additional penological goals,
including deterrence, retribution, and incapacitation.”); Zarate, 908
6Courts in other jurisdictions have held that prison disciplinary violations can be
considered on resentencing. See, e.g., State v. Swimm, 340 S.E.2d 65, 70 (N.C. 1986)
(allowing a defendant’s bad conduct while incarcerated to be considered on resentencing);
Commonwealth v. Losch, 535 A.2d 115, 123 (Pa. Super. Ct. 1987) (holding that during
resentencing the judge “may also allow the prosecution to introduce evidence relating to
appellant’s bad conduct, if any, since the time that judgment of sentence was last
imposed”).
27
N.W.2d at 854–55 (approving consideration of other goals of criminal
punishment when sentencing juvenile offenders, including incapacitation,
deterrence, and culpability).
B. No Ineffective Assistance of Counsel. Majors argues his trial
counsel had a duty to present an expert witness to testify regarding the
five sentencing factors. He asserts that his trial counsel’s failure to present
such an expert amounts to constitutionally deficient representation, that
is, ineffective assistance of counsel. The State contends that Majors
cannot establish that his trial counsel was ineffective for failing to retain
an expert witness because Majors himself, then age thirty-three, chose not
to do so. We begin with our framework for ineffective-assistance-of-
counsel claims.
To prevail on an ineffective-assistance-of-counsel claim, the
claimant must satisfy the two-prong test by proving that his trial counsel
failed to perform an essential duty and prejudice resulted. State v. Clay,
824 N.W.2d 488, 495 (Iowa 2012) (describing the two-prong test for
ineffective-assistance-of-counsel claims set out in Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). “A
defendant’s inability to prove either element is fatal.” State v. Graves, 668
N.W.2d 860, 869 (Iowa 2003).
Under the first prong, our presumption is that counsel performed
competently unless the claimant proves otherwise by a preponderance of
the evidence. Clay, 824 N.W.2d at 495. Counsel’s performance is
measured objectively against the prevailing professional norms after
considering all the circumstances. Id. A claimant can rebut the
presumption by showing that counsel failed to perform an essential duty.
State v. Ross, 845 N.W.2d 692, 698 (Iowa 2014). More is required than a
28
showing that counsel’s trial strategy backfired or the case would have been
tried differently by another attorney. Id.
To establish the second prong, prejudice, “the claimant must prove
by a reasonable probability that, but for counsel’s failure to perform an
essential duty, the result of the proceeding would have been different.”
State v. Ary, 877 N.W.2d 686, 705 (Iowa 2016). This proof does not require
a showing that counsel’s conduct “more likely than not altered the
outcome in the case,” but rather that “the probability of a different result
is ‘sufficient to undermine [our] confidence in the outcome’ of the trial.”
Id. (alteration in original) (quoting Graves, 668 N.W.2d at 882).
The record must be adequate to resolve an ineffective-assistance-of-
counsel claim on direct appeal. Id. at 704. We find that this record is
adequate, and we hold that Majors’ counsel did not breach an essential
duty by failing to present a defense expert to testify regarding the
sentencing factors. Our emphasis in Roby on the importance of presenting
expert testimony on the Miller/Lyle/Roby factors was directed at the
State—if the State wants to recommend that the sentencing court impose
a mandatory minimum sentence, Roby held that an expert is “normally”
necessary to analyze the factors. Roby, 897 N.W.2d at 148. Although the
option of presenting an expert is available to both parties, the defendant
does not need expert testimony in order to avoid a mandatory minimum
sentence.
Majors himself made the decision not to present an expert during
the resentencing hearing. Majors cannot now blame his counsel for
honoring his own decision. See Schertz v. State, 380 N.W.2d 404, 413
(Iowa 1985) (“[A]ppellant cannot now assert a claim of ineffectiveness of
counsel based primarily on appellant’s own decisions . . . .”); State v.
Lemburg, 257 N.W.2d 39, 46 (Iowa 1977) (rejecting a claim of ineffective
29
assistance of counsel for the attorney’s alleged failure to litigate certain
defenses because “[i]t was [the appellant’s] own decision to reject the
possibilities of these defenses”).
Calling a defense expert would run the risk that the prosecutor’s
cross-examination would elicit adverse information. Majors’ counsel made
a strategic decision to rely on his own cross-examination of the State’s
expert. “We believe that the question of whether or not to call an expert
witness is a matter of trial strategy.” Heaton v. State, 420 N.W.2d 429,
432 (Iowa 1988); see also State v. Polly, 657 N.W.2d 462, 468 (Iowa 2003)
(“Generally, the decision not to call a particular witness or the defendant
to testify implicates a reasonable tactical decision.”). Indeed, Majors’
counsel referred to that strategy to support his client’s decision to decline
to keep the record open for a psychiatric examination and a defense expert.
MR. BOOTH: . . . I’d like to indicate to the court again
that I’ve again advised Mr. Majors that we could at this point
ask for the record to remain open in order to get a psychiatric
examination done. Again on my recommendation it’s my
understanding that he is declining to have that done at this
time, Your Honor.
THE COURT: Mr. Booth, without detailing the legal
reason, can you place [on] record some reasons for your
recommendation?
MR. BOOTH: Well, with respect as indicated in my
cross-examination, Your Honor, I believe that I was able to
glean the information that I might otherwise be able to obtain
through the State’s witness, Your Honor, and in my personal
opinion and my professional opinion, I believe that that
should be sufficient, Your Honor. I’m not sure that an
independent evaluation would provide the same or similar
opportunity to present information.
THE COURT: It seems like a reasonable choice of trial
strategy, Mr. Booth.
We agree that this was a reasonable trial strategy rather than a
breach of duty. See State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006);
Polly, 657 N.W.2d at 468 (holding that the defendant’s ineffective-
30
assistance-of-counsel claim failed because “[t]rial counsel’s decision not to
call [the defendant] to testify clearly was a strategical decision we will not
second-guess”); State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992);
Heaton, 420 N.W.2d at 432 (holding defense counsel was not ineffective
for not calling an expert at trial); Kellogg v. State, 288 N.W.2d 561, 564
(Iowa 1980) (“[Defendant] shows no injury from [defense counsel’s]
decision not to consult the expert witnesses or use them at trial. He has
failed to carry his burden of proving [defense counsel] was incompetent or
in any way ineffective on this contention.”).
We reiterate that these sentencing hearings need not be a battle of
the experts. A “basic proposition” regarding this process is that “juvenile
sentencing hearings are not entirely adversarial. The goal is to craft a
‘punishment that serves the best interests of the child and of society.’ ”
Roby, 897 N.W.2d at 144 (quoting Lyle, 854 N.W.2d at 402). Requiring
the defense to present an expert in every juvenile sentencing case would
not serve that goal.
We hold Majors’ defense counsel had no duty to present an expert
to testify regarding the Miller/Lyle/Roby factors. Given that Majors failed
to prove the first element required to prevail on an ineffective-assistance-
of-counsel claim, a breach of duty, we end our analysis there. See Graves,
668 N.W.2d at 869 (“A defendant’s inability to prove either element is
fatal.”).
IV. Disposition.
For the foregoing reasons, we affirm the district court’s resentencing
order and judgment of sentence.
AFFIRMED.
Christensen, C.J., and Mansfield and McDonald, JJ., join this
opinion. McDonald, J., files a concurring opinion in which Christensen,
31
C.J., joins. Appel, J., files a dissenting opinion in which Wiggins, J., joins.
Oxley, J., takes no part.
32
#18–0563, State v. Majors
McDONALD, Justice (concurring specially).
For the reasons set forth in my special concurrence in Goodwin v.
Iowa District Court, 936 N.W.2d 634, 649 (Iowa 2019) (McDonald, J.,
concurring specially), I conclude the district court did not abuse its
discretion in imposing a minimum sentence on the defendant. I concur in
the majority opinion and the judgment of the court.
Christensen, C.J., joins this special concurrence.
33
#18–0563, State v. Majors
APPEL, Justice (dissenting).
I respectfully dissent.
The sentencing hearing in this case does not remotely resemble that
contemplated by State v. Roby, 897 N.W.2d 127 (Iowa 2017), State v. Seats,
865 N.W.2d 545 (Iowa 2015), State v. Lyle, 854 N.W.2d 378 (Iowa 2014),
and State v. Null, 836 N.W.2d 41 (Iowa 2013). The overarching problem is
that the district court failed to recognize the principles of developmental
child psychology that underlie our juvenile sentencing cases and entered
a sentencing order that failed to apply the proper framework to this case.
Further, counsel for Jarrod Majors made no effort to present the law or to
show, through competent expert testimony, how the law related to the
facts at hand. As a result, the sentence in this case should be vacated and
the matter remanded for resentencing.
I. By Failing to Recognize the Developmental Child Psychology
Underpinning Our Caselaw and the Proper Framework for Considering
Juvenile Culpability, the District Court Committed Reversible Error.
A. The Need for Qualified Expert Testimony on Developmental
Child Psychology in Cases Where Juvenile Offenders Face the
Possibility of the Imposition of Mandatory Adult Minimum Sentences.
The basic framework of the United States Supreme Court on juvenile
justice fundamentally turns on concepts of developmental child
psychology as articulated in the recent seminal trilogy of cases: Miller v.
Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012), Graham v. Florida, 560
U.S. 48, 130 S. Ct. 2011 (2010), and Roper v. Simmons, 543 U.S. 551, 125
S. Ct. 1183 (2005). 7
7“Developmental psychology, broadly defined, concerns the scientific study of
changes in physical, intellectual, emotional, and social development over the life cycle.”
Laurence Steinberg & Elizabeth Cauffman, The Elephant in the Courtroom: A
34
We applied child developmental psychology under the article I,
section 17 cruel and unusual punishment provision of the Iowa
Constitution in Roby, Seats, Lyle, and Null. Under our caselaw, the state
must show in an individualized hearing that a juvenile criminal defendant
facing a mandatory adult sentence falls outside the norm of most juveniles,
where age is presumptively considered a mitigating factor on the critical
issue of culpability.
In Roby, we explored the contours of an individualized hearing
required before the state may apply a mandatory adult minimum sentence
against a juvenile offender. We noted that the mitigating developmental
factor of “age of the offender and the features of youthful behavior” is most
meaningfully applied when based on qualified professional assessments of
the offender’s decision-making capacity utilizing the expert’s
“developmental and clinical knowledge.” Roby, 897 N.W.2d at 145 (first
quoting Lyle, 854 N.W.2d at 404 n.10; then quoting Elizabeth S. Scott et
al., Juvenile Sentencing Reform in a Constitutional Framework, 88 Temp. L.
Rev. 675, 697 (2016) [hereinafter Scott et al., Juvenile Sentencing Reform]).
As authority for its reliance on qualified professional assessments, the
Roby court cited the work of four leading authorities in the area: Thomas
Grisso, Marsha Levick, Elizabeth Scott, and Laurence Steinberg. 8 These
Developmental Perspective on the Adjudication of Youthful Offenders, 6 Va. J. Soc. Pol’y &
L. 389, 391 (1999) [hereinafter Steinberg & Cauffman, Adjudication of Youthful Offenders].
8These experts continue to provide valuable research on the issue of juvenile
development and the criminal justice system. See generally Thomas Grisso et al.,
Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities
as Trial Defendants, 27 Law & Hum. Behav. 333 (2003) (evaluating data indicating
impairment of judgment and competence in juveniles, affecting legal competence to stand
trial); Thomas Grisso & Antoinette Kavanaugh, Prospects for Developmental Evidence in
Juvenile Sentencing Based on Miller v. Alabama, 22 Psychol., Pub. Pol’y, & L. 235, 240
(2016) (exploring evidentiary considerations regarding the Miller developmental factors in
new sentencing cases); Marsha Levick & Neha Desai, Still Waiting: The Elusive Quest to
Ensure Juveniles a Constitutional Right to Counsel at All Stages of the Juvenile Court
35
four leading authorities on child development and the law state that
“[b]ecause the Miller factors are based upon developmental constructs,
expert assessments by forensic child clinical psychologist or psychiatrists
are required to inform courts making sentencing decisions.” Scott et al.,
Juvenile Sentencing Reform, 88 Temp. L. Rev. at 695 (emphasis added). 9
Scott and her colleagues further emphasize the importance of child
development expertise. According to these leading authorities, “[g]eneral
forensic mental health professionals who evaluate adults for criminal
courts are usually not qualified to undertake these assessments.” Id.
Yet, that is exactly what occurred in this case. The State’s expert
was a staff psychiatrist with the department of corrections. She was
named as an expert by the State at the last minute in this matter, on
Process, 60 Rutgers L. Rev. 175 (2007) (arguing that juveniles need counsel at all points
in legal proceedings as they generally do not understand their rights or the proceedings
well enough to make informed decisions); Elizabeth S. Scott & Laurence Steinberg,
Blaming Youth, 81 Tex. L. Rev. 799 (2003) (addressing how legal practitioners should
think about immaturity as it relates to competence and moral blameworthiness);
Elizabeth S. Scott & Thomas Grisso, Developmental Incompetence, Due Process, and
Juvenile Justice Policy, 83 N.C. L. Rev. 793 (2005) (applying legal trial competence
requirements to juveniles and examining the relationship between immaturity and
incompetence); Elizabeth S. Scott, Judgment and Reasoning in Adolescent
Decisionmaking, 37 Vill. L. Rev. 1607 (1992) (exploring existing literature on adolescent
decision-making within their capacities as legal actors); Scott et al., Juvenile Sentencing
Reform, 88 Temple L. Rev. 675 (analyzing the Miller framework and how it has been
applied by lower courts and states); Elizabeth S. Scott & Laurence Steinberg, Social
Welfare and Fairness in Juvenile Crime Regulation, 71 La. L. Rev. 35 (2010) (analyzing the
juvenile constitutional framework, underlying developmental science, and the principle
that “children are different”); Steinberg & Cauffman, Adjudication of Youthful Offenders,
6 Va. J. Soc. Pol’y & L. 389 (outlining aspects of adolescent development relevant to legal
proceedings); Laurence Steinberg & Elizabeth Cauffman, Maturity of Judgment in
Adolescence: Psychosocial Factors in Adolescent Decision Making, 20 Law & Hum. Behav.
249 (1996) (canvassing extant scientific literature to create a framework for psychosocial
evaluation of capacity for judgment in juveniles).
9The American Academy of Child and Adolescent Psychiatry recommends that
professionals conducting assessments should have adequate experience, education, and
training, including knowledge of normal growth and development and child
psychopathology. Louis J. Kraus et al., Am. Acad. Child & Adolescent Psychiatry, Practice
Parameter for Child and Adolescent Forensic Evaluations, 50 J. Am. Acad. Child &
Adolescence Psychiatry 1299, 1304 (2011).
36
January 30, 2018, conducting Majors’ psychiatric evaluation two weeks
later on February 13. The resentencing hearing was initially scheduled for
February 20 and only later was continued to March 5. She worked
primarily with adults and only came in contact with juveniles in the
corrections system. There is nothing in the record to establish her
qualifications with regard to child developmental psychology. Indeed, as
will be shown below, the State’s expert demonstrated little familiarity with
child developmental psychology.
In effect, while the State’s expert was testifying at the March 5
hearing, it was in fact the prosecutor testifying through repeated use of
leading questions that suggested the answer. By way of example,
Q. Through your evaluation, as well as a review of the
record, you found no psychiatric or mental health illness that
would have impacted his ability to understand what he was
doing at the time of the crime; correct? A. That’s correct.
....
Q. Is it also a concern in terms of rehabilitation if the
defendant doesn’t take full responsibility for his actions or
minimizes his conduct? A. This is kind of where the concern
for the treatment kind of comes up in terms of
rehabilitation. . . . That’s kind of where the rehabilitation is
founded upon.
....
Q. Taking that one step further, if one takes a little
responsibility but kind of minimizes what he did, it’s going to
minimize them because they’re going to get out or
rehabilitation programs; correct? A. Correct.
....
Q. Combined with a lack of empathy for the victims,
that doesn’t give us a very good forecast for his rehabilitation;
would that be fair? A. That would be fair.
....
37
Q. So in some respects the judicial declaration at 18 is
a demarcation point and somewhat of an partial line being
drawn; would that be fair? A. That would be fair.
Q. If you’re going to draw the line there, then if that’s
the best way the line gets drawn, then what you’re saying is
the development that this defendant would have had in the 15
days from commission of crime until he reached age of
majority would have been minimal, if any; correct? A. That’s
correct.
Q. So in terms of mitigating his responsibility for the
crime, at best it would have minimal mitigating value; would
that be fair? A. Yes.
While Majors’ counsel inexplicably did not object to the expert’s
qualifications or to her testimony, the testimony of the State’s expert is
entitled to little or no weight by the court. The repeatedly leading nature
of the questioning undermines any credibility in the testimony. See
Denniston Partridge Co. v. Romp, 244 Iowa 204, 210, 56 N.W.2d 601, 604
(1953) (“While the absence of proper objection left the answers in the
record for what they were worth, we think the weight of such testimony is
very slight.”). Further, the lack of qualifications in child developmental
psychology undermines her testimony. State ex rel. Leas in re O’Neal, 303
N.W.2d 414, 421 (Iowa 1981) (“[I]t is not sufficient that the expert be
generally qualified in the area of inquiry; ‘sufficient data must appear upon
which an expert judgment can be made (on the specific question
propounded,) and if absent, the opinion is incompetent.’ ” (quoting
Holmquist v. Volkswagen of Am., Inc., 261 N.W.2d 516, 524 (Iowa Ct. App.
1977))).
We have emphasized that “[p]erceptions applicable to adult behavior
cannot normally be used to draw conclusions from juvenile behavior.”
Roby, 897 N.W.2d at 147; see also Jenny E. Carroll, Brain Science and the
Theory of Juvenile Mens Rea, 94 N.C. L. Rev. 539, 598 (2016) (“I am not
asserting either that adolescent offenders are categorically incapable of
38
achieving any particular mens rea or should be rendered blameless by
their immaturity. Quite the contrary—I am arguing that, like all offenders,
adolescents should be held accountable for the mens rea they actually
achieved.”); Marsha Levick et al., The Eighth Amendment Evolves: Defining
Cruel and Unusual Punishment Through the Lens of Childhood and
Adolescence, 15 U. Pa. J.L. & Soc. Change 285, 293 (2012) (“Emerging
research in [the field of developmental psychology] indicates that
developmental immaturity consists of four components distinguishing
adolescents from adults: independent functioning, decision-making,
emotion regulation, and general cognitive processing.”). But by using a
psychiatrist with no demonstrable child development training and whose
clinical experience was largely with adults, the State’s presentation was
more akin to a sentencing process that might be appropriate for an adult
but assuredly was inappropriate for a juvenile. This is evidenced by a
number of specific errors and omissions in the expert testimony, which
was erroneously relied upon in the district court’s ruling.
B. “First and Foremost”: Direction Regarding Consideration of
the Mitigating Factors of Youth. Lyle states in clear language, “First
and foremost, the time when a seventeen-year-old could seriously be
considered to have adult-like culpability has passed.” 854 N.W.2d at 398
(emphasis added). The first-and-foremost principle is entirely absent from
the testimony of the expert and from the district court’s opinion. First and
foremost, lessened culpability for all juveniles under eighteen is the norm,
not the exception. First and foremost, because “children are
constitutionally different than adults,” they ordinarily cannot be held to
the same standard of culpability as adults in criminal sentencing. Miller,
567 U.S. at 470–72, 132 S. Ct. at 2464–65. First and foremost, the default
rule is that children are not subject to mandatory minimums of
39
incarceration. Roby, 897 N.W.2d at 144 (citing Null, 836 N.W.2d at 74).
First and foremost, “[m]itigation normally is warranted in all crimes.” Id.
at 146.
As noted by Scott and her colleagues, “[g]iven the background
principle embraced by the [United States] Supreme Court that most youths
are immature, the prosecutor carries a substantial burden.” Scott et al.,
Juvenile Sentencing Reform, 88 Temp. L. Rev. at 696. According to Scott
and Steinberg, “a strong presumption that mitigation applies categorically
to the juvenile offenders avoids innocent errors and more pernicious
influences that may distort individualized determinations.” Elizabeth S.
Scott & Laurence Steinberg, Rethinking Juvenile Justice 141 (2008)
[hereinafter Scott & Steinberg, Rethinking Juvenile Justice].
Roby embraces these principles. Under Roby, expert testimony may
be used to show that the normative mitigation principle does not apply by
showing that the particular juvenile offender “possessed features of
maturity beyond his or her years.” 897 N.W.2d at 146. The State has the
burden of showing the unusual or exceptional maturity, the prerequisite
showing for departure from child developmental norms. The State must
show that the juvenile’s maturity is so exceptional and so outside the norm
that an adult mandatory sentence is appropriate.
The State’s expert testified that she “found nothing about Majors’
age at the time of the offense that mitigated against a mandatory
sentence.” But that is not the child development framework presented in
Roby. Under the Roby framework, juveniles under eighteen are less
culpable than adults unless expert testimony shows maturity beyond his
or her years. Id. at 146. The record should not be viewed through the lens
ordinarily applied to adult behavior, but through the lens of child
developmental psychology principles. Id. at 147.
 40
No such expert testimony was offered in this case. Instead, the
State’s expert, through highly leading questions, flipped the Roby
framework on its head, put the burden of mitigation based on age on
Majors, and then declared that she had found nothing to establish
mitigation. She ignored, or more likely given her lack of qualifications was
unaware of, the normative developmental principle that teenagers,
including those that are seventeen years of age, are categorically less
culpable than adults absent expert testimony that the offender “possessed
features of maturity beyond his or her years.” Id. She occasionally cited
facts in the record germane to child development, but these facts were not
analyzed through the lens of child developmental psychology as required
by our caselaw.
Although not explicit, the district court ruling in this case appears
to have flipped the burden as well. It certainly does not start from the
general presumption of mitigation for seventeen-year-olds. Indeed, in key
passages, it reads very much like an ordinary adult sentencing order. If
the district court had operated from the assumption that “[f]irst and
foremost, the time when a seventeen-year-old could seriously be
considered to have adult-like culpability has passed” and the “children are
different” framework, the numerous and repeated shortcomings in the
State’s expert testimony would have been viewed as problematic. Lyle,
854 N.W.2d at 398; see Miller, 567 U.S. at 470–72, 132 S. Ct. at 2464–65.
A clear example of the district court’s endorsement of legal error arising
from expert testimony is presented in the erroneous treatment of a
seventeen-year-old as nearly an adult contrary to established caselaw.
Even if it is unclear that the district court applied the wrong legal
standard, reversal and remand is appropriate to clarify the basis of the
court’s ruling. See State v. Showens, 845 N.W.2d 436, 449–50 (Iowa 2014)
41
(finding reversal and remand proper where unsure whether the district
court applied correct legal standard).
C. Erroneous Treatment of Seventeen-Year-Old as Nearly an
Adult Contrary to Established Caselaw.
1. Introduction. The State’s expert and the district court
erroneously analyzed the impact of Majors’ age. They emphasized that
Majors’ offense occurred fifteen days before he turned eighteen and then
suggested that the proper analytical approach was to determine whether
fifteen days of additional life would have had any impact on Majors’
decision-making.
2. Contrary to principles of child developmental psychology. This
bizarre analytical framework is completely inconsistent with the principles
of child developmental psychology that underlie Miller, Graham, and Roper
and Roby, Seats, Lyle, and Null. The line for the presumption of lessened
culpability has been placed at eighteen years of age, many years inside the
scientific boundaries of the developing child. As noted by the Supreme
Court, the age of eighteen comes from history and social meaning of age,
but not from developmental psychology. Roper, 543 U.S. at 569, 125 S. Ct.
at 1195. This presumption exists in part because the law assumes that a
person eighteen years of age has the freedom to extricate themselves from
unfavorable social environments and in part because society generally
accepts eighteen as a threshold separating children from adults for a wide
variety of activities. Id. But with respect to persons under the age of
eighteen, “the presumption of immaturity can be applied confidently to
most persons in the group.” Scott & Steinberg, Rethinking Juvenile Justice
at 140.
It is simply wrong and completely inconsistent with developmental
psychology, however, to conclude that a seventeen-year-old is almost
42
eighteen and therefore not entitled to the presumption of immaturity. It is
well established that a lot of relevant social and emotional development
related to culpability occurs in juveniles after the age of eighteen and
through the mid-twenties. 10 According to two leading scholars in
adolescent development and the law, Scott and Steinberg, “[t]he research
clarifies that substantial psychological maturation takes place in the
middle of late adolescence and even into early adulthood.” Id. at 60. Thus,
Scott and Steinberg emphasize that “adolescents, even at age sixteen and
seventeen, are immature in their psychosocial and emotional development,
and this likely affects their decisions about involvement in crime in ways
that distinguish them from adults.” Id. at 131. Recently, Steinberg and
his colleagues stated,
Over the past decade, developmental psychologists and
neuroscientists have found that biological and psychological
development continues into the early twenties, well beyond
10The leading exploration of developmental psychology for “emerging adults” is
Jeffrey Jensen Arnett, Emerging Adulthood: A Theory of Development from the Late Teens
Through the Twenties, 55 Am. Psychologist 496 (2000). The article broadly examines the
subjective and objective differences of individuals between eighteen and twenty-five, as
compared to adolescents and youth adults. See also Elizabeth Cauffman & Laurence
Steinberg, (Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less
Culpable than Adults, 18 Behav. Sci. & L. 741, 758 (2000) (“The present study indicates
that . . . psychosocial characteristics continue to develop during late adolescence, and
that these changes result in significant declines in antisocial decision-making . . . [which]
are appreciable enough to warrant drawing a legal distinction.”). The last twenty years of
research have supported Arnett’s view that the brains of teens continue to evolve until
the mid-twenties. See, e.g., Alexandra O. Cohen et al., When Is an Adolescent an Adult?:
Assessing Cognitive Control in Emotional and Nonemotional Contexts, 27 Psychol. Sci. 549,
559–60 (2016) (suggesting young adults have lower cognitive capacity in emotional
situations when compared to adults); Josh Gupta-Kagan, The Intersection Between Young
Adult Sentencing and Mass Incarceration, 2018 Wis. L. Rev. 669 (2018) (canvassing both
the scientific literature about young adult development and examining it in light of
sentencing and mass incarceration); Elizabeth S. Scott et al., Young Adulthood as a
Transitional Legal Category: Science, Social Change, and Justice Policy, 85 Fordham L.
Rev. 641 (2016) (examining the neuroscientific, psychological, and sociological research
on young adulthood as applied in a criminal justice context); Kelsey B. Shust, Comment,
Extending Sentencing Mitigation for Deserving Young Adults, 104 J. Crim. L. & Criminology
667, 684–89 (2014) (exploring broadly the legal relationship between youthfulness and
culpability).
43
the age of majority. Recently, researchers have found that
eighteen- to twenty-one-year-old adults are more like younger
adolescents than older adults in their impulsivity under
conditions of emotional arousal.
Elizabeth S. Scott et al., Young Adult as a Transitional Legal Category:
Science, Social Change, and Justice Policy, 85 Fordham L. Rev. 641, 642
(2016) [hereinafter Scott et al., Transitional Legal Category].
3. Contrary to caselaw. The caselaw does not support the just-
short-of-eighteen analysis of the State’s expert that was erroneously
adopted by the district court. In Roper, the Supreme Court made no
mention of the just-short-of-eighteen argument even though Roper was
just a few months shy of his eighteenth birthday when he committed a
brutal murder. See Roper, 543 U.S. at 619, 125 S. Ct. at 1223. Nothing
in United States Supreme Court caselaw suggests that a just-short-of-
eighteen analysis is appropriate in considering the culpability of youth in
the application of cruel and unusual punishment concepts.
Our Iowa caselaw is clear on this point. In Null, for instance, we
cited Steinberg and others for the proposition that “identity development,
which is often accompanied by experimentation with risky, illegal, or
dangerous activities, occurs in late adolescence and early adulthood.” 836
N.W.2d at 55 (citing Scott & Steinberg, Rethinking Juvenile Justice at 50–
52). We further noted that “[t]he research clarifies that substantial
psychological maturation takes place in middle and late adolescence and
even into early adulthood.” Id. (quoting Scott & Steinberg, Rethinking
Juvenile Justice at 60).
Then in Lyle, the district court sentenced a seventeen-year-old to an
adult mandatory minimum for the crime of second-degree robbery. 854
N.W.2d at 380. We vacated the sentence and remanded the case for an
individualized hearing on whether the adult mandatory sentence could be
44
imposed on Lyle. Id. at 404. In Lyle, we cited Graham for the proposition
that persons under eighteen had “categorically diminished culpability.” Id.
at 398 (citing Graham, 560 U.S. at 71–75, 130 S. Ct. at 2028–30).
We again returned to the subject in Seats, where we considered a
sentencing proceeding involving a seventeen-year-old offender convicted of
first-degree murder and first-degree burglary. 865 N.W.2d at 549. In
sentencing Seats to life in prison without parole, the district court
emphasized that Seats was a seventeen-year-old, thereby raising the
“almost eighteen” argument. Id. at 556–57.
In response, we stated that we recognized that “in Roper, the line
between being a juvenile and an adult was drawn for cruel and unusual
punishment purposes at eighteen years of age.” Id. at 556–57 (citing
Roper, 543 U.S. at 574, 125 S. Ct. at 1197–98). Yet, we cited Null for the
proposition that current science demonstrated that the brain continued to
develop into the early twenties. Id. at 557 (citing Null, 836 N.W.2d at 55).
We repeated the findings of Scott and Steinberg that “adolescents, even at
the age sixteen and seventeen, are immature in their psychosocial and
emotional development, and this likely affects their decisions about
involvement in crime that distinguishes them from adults.” Id. at 557
(quoting Scott & Steinberg, Rethinking Juvenile Justice at 131). Then we
declared, “In light of the science, the fact that a defendant is nearing the age
of eighteen does not undermine the teachings of Miller and Null.” Id.
(emphasis added).
Finally, in Roby, the defendant was sixteen and seventeen years old
when he committed the crimes of sexual abuse in the second and third
degrees. We again cited the work of developmental psychologists for the
proposition that “developmental changes . . . continue into the mid-
twenties.” Roby, 897 N.W.2d at 145 (quoting Scott et al., Transitional Legal
45
Category, 85 Fordham L. Rev. at 647). We declared that “age is not a
sliding scale that necessarily weighs against mitigation the closer the
offender is to turning eighteen years old at the time of the crime.” Id. But
that, of course, is exactly what the State’s expert did, and the approach
the district court uncritically adopted.
In a footnote, the majority cites Steinberg for the proposition that
cognitive development of sixteen-year-olds is often fully developed. See
Laurence Steinberg et al., Are Adolescents Less Mature than Adults?
Minors’ Access to Abortion, the Juvenile Death Penalty, and the Alleged APA
“Flip-Flop,” 64 Am. Psychologist 583, 586–87 (2009) (“Studies that have
examined logical reasoning abilities in structured situations and basic
information processing skills, for instance, find no appreciable differences
between adolescents age 16 and older and adults[.]”). But the majority is
apparently unaware that Steinberg, consistent with the consensus social
science, emphasizes that psychosocial and emotional development
continues into the mid-twenties and that this delay in development
impacts criminal culpability. See Scott & Steinberg, Rethinking Juvenile
Justice at 60; see also Scott et al., Transitional Legal Category, 85 Fordham
L. Rev. at 647 (“[B]ecause development of brain systems that regulate
impulse control is more protracted, continuing into the early twenties, a
period of vulnerability to risky behavior results . . . [and may be likened to
an] ‘accelerator’ [being] pressed to the floor, [while] a good ‘braking system’
is not yet in place.” (Footnote omitted.)). Further, the majority fails to
recognize that our caselaw, and that of the United State Supreme Court,
embraces the work of Steinberg and his colleagues for precisely the
opposite proposition advanced by the majority and supported by the
footnote. See Roper, 543 U.S. at 570, 125 S. Ct. at 1196; Seats, 865
N.W.2d at 557. Finally, the majority fails to tell the reader that Roby,
46
Seats, Lyle, and Null stand for the proposition that even those approaching
eighteen years of age as a general rule have diminished culpability.
In the end, the district court was misled by an unqualified expert.
“Forensic professionals conducting assessments for a sentencing hearing
must be sure to keep up with relevant post-Miller legislation and case law
in the jurisdiction where the hearing is taking place.” Kimberly Larson et
al., Miller v. Alabama: Implications for the Forensic Mental Health
Assessment at the Intersection for Social Science and the Law, 39 New Eng.
J. on Crim. & Civ. Confinement 319, 330 n.60 (2013) [hereinafter Larson
et al., Mental Health Assessments]. As a nonlawyer medical professional
with very limited professional interaction with juveniles who was
designated at the last minute to testify as an expert for the first time in a
sentencing hearing involving a juvenile offender, the State’s expert,
perhaps, can be forgiven for her lack of knowledge about child and young
adult developmental psychology and the applicable caselaw. She simply
was clueless when the prosecutor asked her leading questions that led the
expert to testify in a manner contrary to applicable Iowa Supreme Court
precedent and in total disregard of the findings of child developmental
psychology.
The district court expressly embraced the “almost eighteen”
reasoning of the State’s expert in considering age, which it characterized
as “the most important factor” under our decisions. Through the use of
the “almost eighteen” framework, the district court, like the State’s expert,
eviscerated the importance of age by essentially treating Majors as an
adult. When a district court unlawfully considers a factor in making a
decision, an abuse of discretion is present. State v. Zarate, 908 N.W.2d
831, 856 (Iowa 2018) (“ ‘[I]f a sentencing court fails to consider a relevant
factor that should have received significant weight, gives significant weight
47
to an improper or irrelevant factor, or considers only appropriate factors
but nevertheless commits a clear error of judgment’ a discretionary
sentencing ruling may be an abuse of discretion.” (quoting Roby, 897
N.W.2d at 138)); State v. Knight, 701 N.W.2d 83, 85 (Iowa 2005) (“[T]he use
of an impermissible sentencing factor is an abuse of discretion and
requires resentencing.”).
D. Failure to Conduct Meaningful Evaluation. In order to
overcome the presumption of diminished culpability for youth, the State
must ordinarily present a meaningful professional evaluation of the
defendant. Consistent with principles of child developmental psychology,
we have taken a broad approach to environmental factors, including such
things as parental neglect, drug or alcohol use, prior exposure to violence,
and age-related susceptibility to psychological or emotional damage.
Seats, 865 N.W.2d at 556. In conducting a forensic evaluation of a juvenile
offender, Scott and her colleagues declare that the child development
expert evaluating the culpability of juvenile defendants must engage in
“skilled interviewing of the youth, and of family members, teachers, and
peers who have observed the youth’s functioning.” Scott et al., Juvenile
Sentencing Reform, 88 Temp. L. Rev. at 697. This should be done in light
of “a comprehensive review of records of the youth’s past behavior in
various social situations (e.g. school, rehabilitation settings).” Id.
Instead, the State’s expert selectively gathered documents available
at the department of corrections and in the court file. She assiduously
gathered documents regarding each and every discipline violation. But
contrary to the child developmental psychology authorities, she did not
thoroughly interview the parents. Contrary to the child development
authorities, she did not thoroughly interview teachers. Contrary to the
child development authorities, she did not thoroughly interview Majors’
48
peers. She appears to have thoroughly gathered information that might
reflect adversely on Majors but did not engage in the kind of thorough
exploration that is required for meaningful evaluation according to Scott
and her colleagues.
I suppose one might argue that the thorough investigation
demanded by Scott and her colleagues would be inefficient and yield very
little. The State has limited resources, so the argument goes, and cannot
be expected to reach out beyond the department of corrections and the
court system in the gathering of materials for the evaluation of a juvenile
offender facing an adult mandatory minimum sentence. But that just is
not the way things are done, right? Can’t we simply follow our gut
instincts, with a limited factual review?
No! Put simply, the law requires more. The State has the burden of
showing that a juvenile offender is an exceptional person that falls outside
ordinary norms that mitigate culpability. This burden is very difficult to
meet without a thorough investigation of the family and social background
of a juvenile offender, as demanded by Scott and her colleagues.
Since circumstances vary from individual to individual, it is difficult
to draw a line in the sand to say that a particular review is sufficient or
not. At some point the investigation supporting an evaluation must come
to an end, and at some juncture there are diminishing returns. There is,
for instance, no requirement that an expert interview all family members,
every teacher, and every peer. But what is required is that a reasonable
review be conducted. That did not occur in this case.
The record shows that Majors was abused by his father up until
sixth grade. Certainly this is a fact that any child developmental
psychologist would want to explore and develop. See, e.g., Samantha
Buckingham, Reducing Incarceration for Youthful Offenders with a
49
Developmental Approach to Sentencing, 46 Loy. L.A. L. Rev. 801, 850 (2013)
(noting the limitations of developmental science and generalizations
because of varying experiences in individuals due to their sociological
backgrounds, including exposure to abuse, trauma, or neglect); David
Dante Troutt, Trapped in Tragedies: Childhood Trauma, Spatial Inequality,
and Law, 101 Marq. L. Rev. 601, 626 (2018) (“As children’s brains react to
traumatic stressors, processes are trigged that affect different systems in
the body . . . rang[ing] from behavioral self-regulation problems and mental
illness . . . [to] risk of alcohol or substance abuse . . . .” (Footnotes
omitted.)). See generally Jennifer E. Lansford et al., Early Physical Abuse
and Later Violent Delinquency: A Prospective Longitudinal Study, 12 Child
Maltreatment 233 (2007) (citing the link between early physical abuse and
later aggression and delinquency and other social and psychological
problems, including depression and anxiety). The State’s expert in Majors’
case made no such effort.
The record also shows that Majors transferred out of the Bedford
Public Schools and enrolled in an alternative school at age fifteen.
Something substantial is going on here. Any child developmental mental
health professional would thoroughly review the attendant circumstances
to figure out what was going on. See, e.g., Substance Abuse & Mental
Health Servs. Admin., U.S. Dep’t of Health & Hum. Servs., Screening and
Assessment of Adolescents in Juvenile Justice Setting, in Screening and
Assessing Adolescents for Substance Use Disorders, Treatment
Improvement Protocol (TIP) Series 45 (2012) (noting that screening and
assessing adolescents in a juvenile justice setting is a complex task and
the evaluator must be alert to the comorbidities a juvenile experiencing
substance abuse may encounter, such as poor school performance). Yet,
50
the State’s expert made no serious effort to understand what was going on
here.
And this isn’t the only issue of concern that the expert did not
properly consider. Majors suffered from scoliosis, or curvature of the
spine. It was apparently serious enough to require surgical intervention
and the placement of rods in his back at the age of twelve. Later, he had
to wear a brace of some kind. Although Majors was inclined to athletics,
he could no longer engage in contact sports in small town Iowa middle and
high schools. What was the impact of this development? Did it contribute
to feelings of anger and loneliness? See Ryszard Tomaszewski &
Magdalena Janowska, Psychological Aspects of Scoliosis Treatment in
Children, in Recent Advances in Scoliosis 301, 301–03 (Theodoros Grivas
ed., 2012) (noting the effects of scoliosis compound on existing challenges
of adolescence, creating altered perceptions of body image, anger,
embarrassment, and impairment of social functioning); Despina
Sapountzi-Krepia et al., The Experience of Brace Treatment in
Children/Adolescents with Scoliosis, 1 Scoliosis art. 8 (2006) (noting that
scoliosis can be a risk factor for psychological impairment in children and
adolescents, particularly in those undergoing brace treatment). How did
this affect Majors? The expert gives us no insight.
The record further indicates that as a child, Majors was mocked by
his peers because his family raised chickens in the country. According to
his discharge summary from Oakdale in 2003, Majors “seem[ed] to be an
angry individual who tend[ed] to ruminate on being ridiculed by other
children in the past and tend[ed] to lose his temper when things [did] not
go his way.” A nurse additionally noted that Majors “appear[ed] to have
many years of anger bottled up from teasing and abuse from peers.” He
was “tearful” when describing past experience of abuse and teasing, and
51
his file notes Majors was “very immature (emotionally) and doesn’t cope
well with stress or problems.” The file suggests that Majors “might benefit
from therapy targeting interpersonal relationships, difficulties, and anger.”
These are the kinds of things that would interest a child developmental
psychologist or psychiatrist. See Anat Brunstein-Klomek et al., Bullying,
Depression, and Suicidality in Adolescents, 46 J. Am. Acad. Child &
Adolescent Psychiatry 40, 40–41 (2007) (noting that studies examining the
relationship between bullying, and depression and suicidality, found
victims were more likely to manifest more depressive symptoms,
psychological distress, and both suicidal ideations and suicide attempts
than nonvictims); Nicholas Carlisle & Eric Rofes, School Bullying: Do Adult
Survivors Perceive Long-Term Effects?, 13 Traumatology 16, 17–18, 23
(2007) (noting studies that determined the common emotional and
behavioral responses to bullying are vengefulness, anger, self-pity,
anxiety, low self-regard, and school absenteeism and discussing how some
symptoms remain even after bullying as stopped, and how anger and
vengeful ideation are a long-term effect of survivors of bullying); Calli
Tzani-Pepelasi, Childhood Bullying Can Cause Lifelong Psychological
Damage—Here’s How to Spot the Signs and Move On, The Conversation,
(last updated August 8, 2018), http://theconversation.com/childhood-
bullying-can-cause-lifelong-psychological-damage-heres-how-to-spot-the-
signs-and-move-on-100288 [https://perma.cc/JY5C-9976] (discussing
studies that outline effects of bullying including self-esteem issues and
anger due to repeated victimization). The State’s expert drives by these
very important developmental clues and finds nothing, individually or
cumulatively, in Majors’ background to support lessened culpability?
In addition, the State’s expert failed to recognize obvious features of
the record that show immaturity, such as compromised capacity to
52
consider future consequences. When Majors was at Oakdale receiving
psychiatric treatment, he was preoccupied, if not obsessed, with the notion
that he threw his life away. Obviously, Majors came to the view that his
risk-taking calculus was unbalanced. One of the trademark features of
youth is undervaluing the long-term costs of their behavior to themselves
and others. See Laurence Steinberg & Elizabeth Scott, Less Guilty by
Reason of Adolescence: Developmental Immaturity, Diminished
Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009,
1012 (2003). Majors stewing over his predicament suggests he came to
recognize his “transient rashness, proclivity for risk, and inability to assess
consequences” that Miller finds lessen culpability in juveniles. 567 U.S. at
472, 132 S. Ct. at 2465.
One of the elements of youthful immaturity is the influence of mass
media. See generally Jeffery Jensen Arnett, Adolescents’ Use of Media for
Self-Socialization, 24 J. Youth & Adolescents 519, 520 (1995) (finding
media to be a significant part of adolescents’ lives, and the potential of
media in socialization of youth “especially strong”); Jonathan Seiden,
Comment, Scream-ing for a Solution: Regulating Hollywood Violence; An
Analysis of Legal and Legislative Remedies, 3 J. Const. L. 1010, 1010
(2001) (analyzing violence in film and the effects of viewing violent films on
juveniles). As noted by prestigious authority, the “visible and volatile”
influence of media is an important part of the socio-ecology of children and
youth. Nat’l Res. Council & Inst. of Med., Studying Media Effects on
Children and Youth 1 (2006).
Majors is a poster child of the influence of the media. He got the
idea of putting a plastic bottle on the end of his rifle to muffle the sound
from a Steven Segal movie. Sounds like a pretty immature reaction to me.
Copycat behaviors among juveniles who commit violent crime is not
53
unusual. See Ray Surette, Self-Reported Copycat Crime Among a
Population of Serious and Violent Juvenile Offenders, 48 Crime &
Delinquency 46, 62 (2002).
And then there is the issue of adolescent drug use. Generally,
adolescent drug usage has been found to be a mitigating factor to be
considered in sentencing juvenile offenders. See, e.g., Seats, 865 N.W.2d
at 556 (“One of the circumstances the sentencing judge needs to consider
is whether substance abuse played a role in the juvenile’s commission of
the crime.”). It certainly should have been considered here.
At the time of resentencing, the State’s expert diagnosed Majors as
having alcohol-use disorder, cannabis-use disorder, and stimulant
disorder, specifically methamphetamine, all moderate and in sustained
remission. These disorders must have predated his imprisonment and
been developed as a juvenile. The record supports such a conclusion of
adolescent polysubstance abuse by Majors. Any reasonable exploration of
juvenile substance abuse would have yielded important information
relevant to Majors’ sentence.
The starting point is the accepted definition of substance-use
disorder. 11 According to the DSM-5, substance-use disorder is
characterized by a “cluster of cognitive, behavioral, and physiological
symptoms indicating that the individual continues using the substance
despite significant substance related problems.” Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 483 (5th ed. 2013)
[hereinafter DSM-5].
Adolescent substance use is associated with negative health and
behavioral outcomes, including alterations in neurodevelopment. See
11Under the DSM-IV framework, which Majors was diagnosed under, the various
alcohol- and substance-abuse disorders have been consolidated under the umbrella of
substance-use disorder in the DSM-5.
54
generally Reagan Wetherill & Susan F. Tapert, Adolescent Brain
Development, Substance Use, and Psychotherapeutic Change, 27 Psych.
Addictive Behav. 393, 393 (2013) (“Adolescent substance use is associated
with negative health, social, and behavioral outcomes, including
alterations in neurodevelopment.”). Since the brain changes through
adolescence, exposure to neurotoxins, such as alcohol and illicit drugs,
may interrupt neurodevelopment and associated cognitive and behavioral
functioning. Id. at 394–96 (explaining the complex neurological pathways
that are impacted through behaviors such as drinking and illicit drug use).
An important characteristic of substance-use disorder is the “underlying
change in brain circuits that may persist beyond detoxification,” especially
in individuals with severe disorders. DSM-5 at 483.
Adolescent substance use has been linked to issues in interpersonal
relationships. Studies report that temperamental and personality traits
reflecting “behavioral undercontrol and poor self-regulation are associated
with adolescent substance use problems.” Laurie Chassin et al.,
Adolescent Substance Use, in Handbook of Adolescent Psychology 676
(Richard M. Lerner & Laurence Steinberg eds., 2d ed. 2004). The
personality characteristics most consistently associated with adolescent
substance use include “unconventionality, low ego control, sensation
seeking, aggression, impulsivity, and an inability to delay gratification.”
Id.
Additionally, adolescents with substance use problems are
characterized by
lower levels of executive functioning—that is, higher order
cognitive processes that allows for future goal-oriented
behavior. These processes include planning, organizational
skills, selective attention, hypothesis generations, cognitive
flexibility, maintenance of cognitive-set decision making,
judgment, inhibitory control, and self regulation.
55
Id. at 677. Compared to adults, the health and social consequences of
substance abuse for adolescents are more serious due to a variety of
biological reasons. Garrett O’Connor, The Psychology of Adolescent
Addiction, 31 Val. U. L. Rev. 701, 701 (1997).
While experimentation with substances occurs for many
adolescents, some progress to regular use where the adolescent uses in an
attempt to achieve a high or intoxication or they use as a coping
mechanism. Id. at 707. This may lead to a change in behavior from
decreased school or job performance, social isolation, and deceitful
patterns of behavior with family and friends to prevent them from learning
about the drug use. Id. Other behaviors include lying, stealing, and
blaming others. Id. at 707–08. In the event the adolescent continues using
and their use becomes more frequent, more serious problems develop,
including progression in severity of delinquent behaviors, an increase in
depression, and reduced impulse control. Id.
Where other substances, such as alcohol, may require repeated uses
and exposure to cause damage to the brain, methamphetamine can induce
significant brain death within hours of a single high dose. Mary Holley,
How Reversible Is Methamphetamine-Related Brain Damage?, 82 N.D. L.
Rev. 1135, 1138 (2006). When someone is early in their addiction, the
crash from methamphetamine may appear like a “mild depression.” Id.
Continued and habitual use equates to a worse crash that lasts longer,
between seven to fourteen days. Id. at 1139. Following habitual use, the
person may sleep for days, present as irritable, and have physical
symptoms, such as headaches, to accompany the psychological. Id.
Additionally, “[n]early ninety percent of meth addicts experience at least
occasional hallucinations while intoxicated.” Id. at 1141.
 56
Following continued use, someone who is addicted to
methamphetamine may “fly into a rage and act aggressively or violently”
and may demonstrate “increase[ed] irritability, impatience, and
impulsiveness,” thereby impairing the user’s relationships with those
around them. Id. at 1140. It may also produce “profound insomnia” in
the user, though they are “not distressed by it, [as] he does not feel a need
for sleep. He feels highly productive, important, and intelligent. He
commonly does not realize he’s impatient. Instead, he places the blame
on others . . . .” Id. at 1139–40.
Not surprisingly, “[methamphetamine] use during adolescence is
associated with . . . behavioral problems such as increased anti-social
behaviors.” Jordan M. Buck & Jessica A. Siegel, The Effects of Adolescent
Methamphetamine Exposure, 9 Frontiers in Neuroscience 1, 2 (2015).
Additionally, in adolescent users, methamphetamine-induced
psychological and behavioral alterations appear to remain even after
secession of the drug. Id.
The State’s expert sailed by these substance-abuse issues.
Although polysubstance abuse was noted, it was simply not explored. In
light of the history of parental abuse, the school transfer issue, the
scoliosis, the mockery from childhood peers, the influence of the mass
media, the polysubstance abuse, and the pent-up anger in Majors, there
was a lot of material for a well-qualified child developmental psychologist
or psychiatrist to consider. But the State’s expert left these boulders
unturned. In light of the gaps, the district court must determine whether
the State successfully rebutted the notion that, “first and foremost,” a
juvenile offender has less culpability than an adult. The professional
opinion was not a meaningful evaluation utilizing child developmental
psychology. There is no indication that the district court evaluated the
57
very weak nature of the expert testimony against the “first and foremost”
and “children are different” framework. Where it is uncertain whether the
correct legal standard has been applied, we may reverse and remand for
application of the correct legal standard. Showens, 845 N.W.2d at 449.
E. Flawed Analysis of Ability to Navigate Legal System. The
expert’s review of Majors’ medical records from 2003, finding that Majors
was competent to stand trial and that he was not insane, led the expert to
conclude that the Miller factor related to the ability of youth to interact
with the legal system was not in play. But that reasoning is demonstrably
incorrect. If Majors was incompetent or insane, there would be no trial,
no conviction, and no sentence. See State v. Edwards, 507 N.W.2d 393,
395 (Iowa 1993) (“Constitutionally, defendants may not be tried or
convicted while they are incompetent to stand trial or to assist in their
defense.”); State v. McMullin, 421 N.W.2d 517, 518 (Iowa 1988) (“Insanity
is an affirmative defense which, if proved, will preclude conviction of a
crime.”). In other words, if he was insane or incompetent, there would be
no need to consider Miller factors at all. If you use incompetence to stand
trial and insanity as screening tools, you totally eliminate the criterion of
difficulties juveniles face in navigating the court system as spelled out by
the Supreme Court in Graham, and in our caselaw. The analysis offered
by the expert is certainly, unquestionably, incorrect as a matter of law.
Indeed, the State’s expert did not address the concerns of Graham.
In Graham, the Court noted that youth have a limited understanding of
the criminal legal system, “are less likely than adults to work effectively
with their lawyers to aid in their defense” due to a lack of trust and more
“limited understandings of the criminal justice system and the roles of the
institutional actors within it.” 560 U.S. at 78, 130 S. Ct. at 2032. When
the question is appropriately framed, there is ample reason to believe that
58
Majors did, in fact, have trouble navigating the legal system, precisely as
Graham forewarned.
The State’s expert clearly did not review the record in this case. If
she had, she would have learned that there was ample reason to believe
that Majors had trouble dealing appropriately with the legal system. Over
the course of the proceedings stemming from these charges, from 2002 to
the present, Majors had at least eleven attorneys of record, many of which
fairly quickly withdrew. Focusing on the relevant period of 2002–2003,
Majors was represented by at least four attorneys. On May 31, 2002, a
lawyer was appointed as counsel for Majors. That lawyer withdrew,
however, on June 4, at which point a second lawyer appeared. On
February 25, 2003, a third lawyer perfected the defendant’s appeal, which
was handled by the state appellate defender’s office. On remand, a fourth
lawyer undertook his representation, but withdrew on April 15. The
musical chairs with all the lawyers, at the very least, suggests Majors had
difficulty getting along with his legal representatives.
Ultimately, Majors agreed to plead guilty to one count of attempted
murder with the proviso that no appeal would be taken. 12 He then turned
around and filed a notice of appeal, pulling down his plea bargain. He
claimed that he did so because his parents and his attorney pressured him
to accept the original plea bargain and that his attorney later urged him
to appeal. After the appeal was filed, the original plea bargain failed and
Majors was back to square one. Eventually, he plead guilty not only to
12The condition of the plea bargain that no appeal be taken was very important to
the State. There was little in the trial information to suggest that Majors attempted to
murder anyone. No shots were fired. He hid in a closet, with duct tape, suggesting
perhaps a planned kidnapping or sexual assault but something other than attempted
murder. Although his rifle was loaded and he had clear shots at the victims, he did not
discharge the weapon. In the plea colloquy, Majors generally admitted the facts in the
trial information, but examination of the minutes do not clearly establish the basis for
attempted murder.
59
attempted murder, which was the sole crime for which he was convicted
in the first plea bargain, but the additional crime of burglary. Because of
his on-off-on approach to the plea bargain, Majors ended up with an
additional ten years added onto his prison sentence. Inability to navigate
the legal system abounds in this example.
The State’s expert noted that Majors tried to manipulate the system
by feigning psychiatric illness pending disposition of criminal charges. To
the extent this is true, such a manipulative maneuver is part of the normal
adolescent effort to avoid responsibility but also shows a fundamental
misunderstanding of how our legal system works.
Further, as correctly narrated by the State’s expert, Majors came up
with numerous oddball and inconsistent stories attempting to explain his
behavior. No doubt he attempted to manipulate the legal system to lessen
his culpability, and those attempts failed. It seems likely that his
immaturity led him to make these inconsistent stories and failed efforts to
manipulate the legal system. As every parent knows, nonacceptance of
blame and inconsistent reporting is a trademark feature of youth called to
account for their actions.
Finally, as with the age criterion, the expert shifted the burden of
proof on the question of the ability of juvenile defendants to navigate the
court system. When asked whether Majors was able to understand the
legal proceedings, the expert noted that they “don’t have any evidence to
the contrary.” But evidence to the contrary is exactly what is required to
eliminate difficulties in navigating the court system as a mitigating factor
when considering imposition of an adult mandatory sentence on a juvenile
offender.
The district court did not focus on the potential difficulties Majors
had in navigating the legal system. The district court did emphasize that
60
Majors backed out of a plea agreement, ultimately resulting in an
additional ten-year sentence. If this case were to be remanded, the district
court would have an opportunity to give the question more careful
consideration.
F. Flawed Approach to Impulsivity. The State’s expert suggested
that because Majors engaged in planning for his crime, Majors lacked the
impulsivity associated with youth. There is no exact and unique definition
of impulsivity, and there is no agreement over its major components.
Nour-Mohammad Bakhshani, Impulsivity: A Predisposition Toward Risky
Behaviors, 3 Int’l J. High Risk Behavs. & Addiction 1, 3 (2014). Impulsivity
has sometimes been defined as swift action without forethought or
conscious judgment, but also as “behavior without adequate thought” and
“the tendency to act with less forethought than do most individuals of
equal ability and knowledge.” F. Gerard Moeller et al., Psychiatric Aspects
of Impulsivity, 158 Am. J. of Psychiatry 1783, 1783 (2001).
But under the caselaw, it is clear that the latter two definitions of
impulsivity apply when considering the mitigating features of youth. For
example, in Johnson v. Texas, 509 U.S. 350, 113 S. Ct. 2658 (1993), the
Supreme Court considered a case where the nineteen-year-old defendant
surveyed the layout of the store prior to a robbery, determined the number
of workers present, determined to kill any witnesses to the crime, retrieved
a handgun, engaged in robbery, and killed an employee. Id. at 353, 113
S. Ct. at 2661. The Court noted that the jury was entitled to consider the
mitigating qualities of youth which “often result in impetuous and ill-
considered actions and decisions.” Id. at 367, 113 S. Ct. at 2669.
Similarly, in Roper, a seventeen-year-old defendant planned to commit a
burglary and murder by breaking and entering, tying up a victim, and
throwing her from a bridge into the water. 543 U.S. at 556–57, 125 S. Ct.
61
at 1187–88. Counsel challenging his sentence called clinical psychologists
and other witnesses indicating that the defendant was “very immature,”
and “very impulsive.” Id. at 559, 125 S. Ct. at 1189. In granting relief, the
Roper Court cited Johnson for the proposition that juveniles engage in
“impetuous and ill-considered actions.” Id. at 569, 125 S. Ct. at 1195
(quoting Johnson, 509 U.S. at 367, 113 S Ct. at 2669). Likewise, in
Graham, the juvenile defendant engaged in a crime spree which showed
planning, yet the Court again in granting relief cited Johnson, noting that
the qualities of youth included a tendency to make “impetuous and ill-
considered actions and decisions.” 560 U.S. at 72, 130 S. Ct. at 2028
(quoting Johnson, 509 U.S. at 367, 113 S. Ct. at 2669).
Clearly, under Johnson, Roper, and Graham, the fact that the
underlying crime involved planning does not negate the notion that the
signature qualities of youth, including the tendency to make “impetuous
and ill-considered decisions,” may be considered as a mitigating factor in
the sentencing of a juvenile offender. And, as noted by Roby, “[t]he
aggravating circumstances of a crime that suggest that an adult offender
is depraved may only reveal a juvenile offender to be wildly immature and
impetuous.” 897 N.W.2d at 146. The fact that juveniles have the ability
to plan a crime does not negate the proposition that “children are different”
or the application of Roper-Graham-Miller principles. To the extent the
district court relied on “planning of the crime” as preventing application of
the mitigating features of youth, it applied the wrong legal standard.
G. Treatment of Rehabilitation. Developmental psychology tells
us two things about the prospects for the rehabilitation of juveniles and
our ability to predict which offenders will commit violence in the future.
First, rehabilitation is the norm for juvenile offenders, even when they
commit heinous crimes. The origins of the juvenile justice system are
62
rooted in the idea of more rehabilitation for youthful offenders than their
adult counterparts. See Lyle, 854 N.W.2d at 390–92 (summarizing the
social science and caselaw underlying the rehabilitative purposes inherent
in juvenile justice); Comm. on Assessing Juvenile Justice Reform, Nat’l
Acad. of Scis., Reforming Juvenile Justice 1–4, 31–49 (2013) [hereinafter
Nat’l Acad. of Scis., Reforming Juvenile Justice] (outlining the penological
differences in dealing with juvenile and adult offenders); Martin Gardner,
Youthful Offenders and the Eighth Amendment Right to Rehabilitation:
Limitations on the Punishment of Juveniles, 83 Tenn. L. Rev. 455, 471–74
(2016) (expounding on the rehabilitative origins of the juvenile justice
framework); Kathryn Monahan et al., Juvenile Justice Policy and Practice:
A Developmental Perspective, 44 Crime & Just. 577, 577 (2015)
[hereinafter Monahan et al., A Developmental Perspective] (“The early
juvenile court viewed and treated juveniles as distinct from adults, with a
greater focus on rehabilitation as opposed to punishment for youthful
criminal behavior.”).
In fact, a developmental approach recognizes that the illegal
behavior occurred during a period of development when youth are more
likely to exercise poor judgment and engage in risky behavior in pursuit of
thrills and excitement. Nat’l Acad. of Scis., Reforming Juvenile Justice at
20 (“A developmental approach to juvenile justice recognizes that illegal
acts committed by adolescents occur in the context of a distinct period of
human development, a time of life when individuals are more likely to
exercise poor judgment, take risks, and pursue thrills and excitement.”).
Research reinforces that juveniles are different from adults in their
cognitive processing and development, making them categorically
different. Id. at 32 (“[A] growing body of research [over the last decade] on
adolescent development, particularly brain development . . . reinforces the
63
conventional wisdom that adolescents are different from adults in ways
that affect their criminal conduct, and it has probably contributed to the
reemergence of less punitive attitudes toward juvenile offenders.”). While
the pendulum has swung between orientations of punishment versus
rehabilitation, it has shifted back through the use of developmental
sciences. Monahan et al., A Developmental Perspective, 44 Crime & Just.
at 578 (noting that declining crime rates, increasing support for
rehabilitative penological approaches, and advancing scientific
understanding of developmental science contribute to this shift). This was
best captured in Roper, where the Court recognized the “diminished
culpability of juveniles” and their greater capacity for rehabilitation due to
their “transient immaturity.” 543 U.S. at 571, 573, 125 S. Ct. at 1196–
97. This principle was applied in subsequent cases regarding juvenile
culpability in both the United States Supreme Court and this court. See
Miller, 567 U.S. at 471, 132 S. Ct. at 2464; Graham, 560 U.S. at 68, 130
S. Ct. at 2026; Lyle, 854 N.W.2d at 392.
Second, while some offenders may well reoffend in the future, it is
extremely difficult, if not impossible, to make predictions of future
dangerousness. See, e.g., Erica Beecher-Monas, The Epistemology of
Prediction: Future Dangerousness Testimony and Intellectual Due Process,
60 Wash. & Lee L. Rev. 353, 362–63 (2003) (suggesting that clinical
predictions about future dangerousness are too unreliable for use in
court); Adam Lamparello, Using Cognitive Neuroscience to Predict Future
Dangerousness, 42 Colum. Hum. Rts. L. Rev. 481, 488 (2011) (“[T]he
courts––and commentators––have consistently recognized that predictive
adjudications, whether it be for future dangerousness or lack of control,
are often unreliable or . . . simply inaccurate.”). In fact, the likelihood of a
juvenile offender become a chronic adult criminal is small. Alex R.
64
Piquero, Youth Matters: The Meaning of Miller for Theory, Research, and
Policy Regarding Developmental/Life-Course Criminology, 39 New Eng. J.
on Crim. & Civ. Confinement 347, 353 (2013) [hereinafter Piquero, Youth
Matters] (“Only a very small number of persons continue to offend into and
throughout adulthood . . . .”).
Rates of all kinds of crimes committed by juveniles decrease
precipitously with age, a phenomenon referred to as the “age-crime curve.”
Laurence Steinberg, The Influence of Neuroscience on US Supreme Court
Decisions About Adolescents’ Criminal Culpability, 14 Nature Reviews
Neuroscience 513, 515 & fig. 1 (2013) (illustrating “a consistent
relationship between age and crime” across offenses and despite changes
in the overall crime rate); see also Alex R. Piquero et al., Violence in
Criminal Careers: A Review of the Literature from a Developmental Life-
Course Perspective, 17 Aggression & Violent Behav. 171, 172 (2012)
(examining theoretical frameworks for longitudinal offending patterns).
Further, across many studies, it appears that even for violent offenders,
“the likelihood of repeating [violence] is very rare.” Piquero, Youth Matters,
39 New Eng. J. on Crim. & Civ. Confinement at 356. These difficulties are
even more present when juvenile offenders are involved. See Roper, 543
U.S. at 573, 125 S. Ct. at 1197 (“It is difficult even for expert psychologists
to differentiate between the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile offender whose
crime reflects irreparable corruption.”); Larson et al., Mental Health
Assessments, 39 New Eng. J. on Crim. & Civ. Confinement at 335–36
(“[T]here is currently no basis in current behavioral science nor well-
informed professional knowledge that can support any reliable forensic
expert opinion on the relative likelihood of a specific adolescent’s prospects
for rehabilitation at a date that may be years to decades in the future.”);
65
Piquero, Youth Matters, 39 New Eng. J. on Crim. & Civ. Confinement at
355 (“[I]t is very difficult to predict early in the life-course which individual
juvenile offender will go on to become a recidivistic adult offender.”); Scott
et al., Juvenile Sentencing Reform, 88 Temp. L. Rev. at 684 (“[P]rediction of
future violence from adolescent criminal behavior, even serious criminal
behavior, is unreliable and prone to error.”).
In Roby, we stated that rehabilitation was a factor that supports
mitigation for most juvenile offenders because “delinquency is normally
transient.” 897 N.W.2d at 147. We emphasized that “judges cannot
necessarily use the seriousness of a criminal act, such as murder, to
conclude the juvenile falls within the minority of juveniles who will be
future offenders or are not amenable to reform.” Id. After all, “the
signature qualities of youth are transient.” Lyle, 854 N.W.2d at 394
(quoting Roper, 543 U.S. at 570, 125 S. Ct. at 1196). We have further
concluded, however, that in the resentencing of juveniles, current evidence
regarding rehabilitation is admissible. State v. Ragland, 836 N.W.2d 107,
121–22 (Iowa 2013) (finding that individualized sentencing considerations,
including demonstrated maturity and rehabilitation, must necessarily be
meaningfully considered in juvenile sentencing).
While rehabilitation is thus the norm, it is extremely difficult to
predict future dangerousness of adults and even harder with respect to
juveniles. The inability to identify irreparably corrupt juveniles led the
United States Supreme Court to categorical rules in Graham and Roper.
Here, Majors has been incarcerated for most of his prison stay in a
maximum security prison. Because of the shortage of available
programing and the length of his sentence, he has been waitlisted for
victim-impact programming. Juveniles serving lengthy sentences are
often disadvantaged in prison by lack of services to meet their
66
developmental needs. Some prisons can be “complicit in the lack of
development” because “it is the policy in some prisons to withhold
counseling, education, and rehabilitation programs for those who are
ineligible for parole consideration.” Graham, 560 U.S. at 79, 130 S. Ct. at
2032–33. Majors is no exception.
Majors had a lengthy disciplinary record while in prison related to
drug offenses and other nonviolent offenses. In 2014, six of Majors’ eight
offenses were drug or alcohol related; in 2013 all four of his offenses were
drug or alcohol related. In 2012, four out of ten were drug or alcohol
related; in 2010 he had one offense for not wearing his identification; and
a few years he had some verbal or possession related offenses. Research
suggests that there are many causes of prison disciplinary problems. See
generally David DeMatteo et al., The Use of Measures of Psychopathy in
Violence Risk Assessment, in Handbook of Violence Risk Assessment 19–
40 (Randy S. Otto & Kevin S. Douglas eds., 2010). Additionally, studies
show age, education, and social supports can contribute to misconduct.
Alan J. Drury & Matt DeLisi, The Past Is Prologue: Prior Adjustment to
Prison and Institutional Misconduct, 90 Prison J. 331, 333 (2010) (noting
studies that indicate “inmates who are younger, male, less educated, lack
a social support network . . . and/or have a history of violent behavior
engage in significantly higher levels of misconduct in prison than inmates
not possessing these characteristics”).
A lengthy prison sentence gives little hope and little incentive to
reform; but once it became possible that he might be able to challenge the
mandatory minimum sentence, Majors’ behavior, consistent with renewed
hope, turned around. Majors now has not had any discipline in the four
years prior to the hearing in this case. Even the expert stated that the last
four years evinced Majors had “the capacity for change.”
67
In 2013, Judge Ann Power-Forde, sitting as a member of the Grand
Chamber of the European Courts of Human Rights, summed up the
importance of the prospect of release for someone incarcerated, stating
that
hope is an important and constitutive aspect of the human
person. Those who commit the most abhorrent and egregious
of acts and who inflict untold suffering upon others,
nevertheless retain their fundamental humanity and carry
within themselves the capacity to change. Long and deserved
though their prison sentences may be, they retain the right to
hope that, someday, they may have atoned for the wrongs
which they have committed. They ought not to be deprived
entirely of such hope. To deny them the experience of hope
would be to deny a fundamental aspect of their humanity and,
to do that, would be degrading.
Vinter & Others v. United Kingdom, [2013] Eur. Ct. H.R. 645 (July 9, 2013),
http://www.bailii.org/eu/cases/ECHR/2013/645.html. In Graham, the
emphasis on rehabilitation was renewed. See Chad Flanders, The
Supreme Court and the Rehabilitative Ideal, 49 Ga. L. Rev. 383, 413 (2015)
[hereinafter Flanders, Rehabilitative Ideal] (“Indeed, the fact that life in
prison without parole foreclosed ‘the rehabilitative ideal’ (as the Court put
it) is central to its holding. . . . [and] is perhaps the theme of the opinion
. . . .” (Footnote omitted.)). With rehabilitation comes hope. Justice
Kennedy stated the proposition succinctly when he wrote that “[l]ife in
prison without the possibility of parole gives no chance for fulfillment
outside prison walls, no chance for reconciliation with society, [and] no
hope.” Graham, 560 U.S. at 79, 130 S. Ct. at 2032.
Tailoring rehabilitation to the individual can be “both backward-
looking and retributive or forward-looking and rehabilitative.” Flanders,
Rehabilitative Ideal, 49 Ga. L. Rev. at 394. The difference, simply defined,
is that
68
[i]f the judge is looking at details about the offender . . . to find
out what he deserves as his punishment, then the judge’s
individualizing is backward-looking: he is trying to fit the
offender to the right amount of deserved retributive
punishment. . . .
But if the judge is using those same details to determine
how much rehabilitation the offender needs––as well as his
fitness for rehabilitation––the judge’s individualizing is
forward-looking.
Id.
Further, there appears to be a life cycle of prison disciplinary events
for juvenile offenders. During early years of incarceration, juvenile
offenders often engage in a higher base rate of misconduct with a reduction
as they mature. Larson et al., Mental Health Assessments, 39 New Eng.
J. on Crim. & Civ. Confinement at 341 (“We know that even chronic and
violent juvenile offenders are more likely to desist from such behaviors
than continue them into adulthood.”). And, it is hardly surprising that
Majors, who has a history of untreated polysubstance abuse, has several
disciplinary violations related to drug and alcohol abuse in light of the
inability of the department of corrections to provide him with substance-
abuse programming.
Among other things, the literature establishes that youthful
offenders are more likely to be victims of both physical nonsexual and
sexual crime and property crime. Id. at 337 nn.75–76 (providing statistics
on crimes against incarcerated juveniles). Majors was a victim of sexual
assault while incarcerated. Such victimization increases the likelihood of
disciplinary history.
In any event, on the question of future rehabilitation, predictions are
often quite difficult. We should be extremely cautious of unstructured
clinical evaluations by a psychologist unfamiliar with the principles of
child developmental psychology.
69
Further, there is the issue of consistency. Judges necessarily make
an ad hoc judgment, case by case, but the parole board is in a better
position to ensure consistency. While the district court’s characterization
of the rehabilitation as minimally favorable is, if anything, an
understatement, it is unclear whether the district court regarded
rehabilitation as the norm under a “first and foremost” and “children are
different” framework. As a result, reversal and remand is appropriate.
Showens, 845 N.W.2d at 449–50.
H. Lack of Remorse as a Juvenile Trait. One of the signature
features of youth is thoughtlessness toward others. “Adolescents, often
thoughtless and impulsive, will perpetrate a crime . . . without considering
its impact on others.” David E. Arredondo, Child Development, Children’s
Mental Health and the Juvenile Justice System: Principles for Effective
Decision-Making, 14 Stan. L. & Pol’y Rev. 13, 21 (2003). Compared to
adults, the characteristics underlying remorselessness, such as
egocentrism and lack of empathy, do not have the same predictive
importance for future behaviors because the traits are so common in
adolescent development. Adam Saper, Juvenile Remorselessness: An
Unconstitutional Sentencing Consideration, 38 N.Y.U. Rev. L. & Soc.
Change 99, 137 (2014) [hereinafter Saper, Juvenile Remorselessness]
(“Sociological pressures limit a youth’s expression of remorse . . . [and]
these expressions are hindered by developmental limitations ranging from
an inability to fully appreciate the sensation of remorse, to inadvertent
pain avoidance techniques that result in the suppression of otherwise
existing emotions.”).
And, as noted in Graham, “[t]he juvenile should not be deprived of
the opportunity to achieve maturity of judgment and self-recognition of
human worth and potential. . . . Maturity can lead to that considered
70
reflection which is the foundation for remorse, renewal, and
rehabilitation.” 560 U.S. at 79, 130 S. Ct. at 2032 (emphasis added). And
in the words of Roper, youth have an “underdeveloped sense of
responsibility.” 543 U.S. at 569, 125 S. Ct. at 1195. In other words, seen
through the lens of child development as applied in Graham and Roper, a
juvenile’s lack of remorse is not the equivalent of a lack of remorse in fully
developed adults. It is part of youthful immaturity, and therefore a
mitigating factor, not an aggravating factor, in sentencing.
Further, even to the extent relevant, remorselessness cannot be
assessed in a clinical interview. Indeed, as a youth, the record reveals that
Majors had trouble communicating in group, tended to keep to himself,
and not volunteer. According to the DSM-5, psychologists should only
conclude that an individual lacks remorse by looking at
multiple information sources. . . . In addition to the
individual’s self-report, it is necessary to consider reports by
others who have known the individual for extended periods of
time [and across relationships and settings] (e.g., parents,
teachers, co-workers, extended family members, peers).
DSM-5 at 470. No evidence in this case was offered to comply with the
DSM-5 requirement.
At the most recent hearing, Majors, now in his mid-thirties,
apologized to the victims. He asked the court for permission to address
them, but that was denied. Majors proceeded to take full responsibility for
his actions and apologized, saying “I would just like to apologize. I couldn’t
imagine anybody running into my house and pointing a gun at my mom,
couldn’t imagine what the Peckhams went through. I’m sorry for it.”
In short, lack of remorse is a transient juvenile trait that is often
ameliorated as the juvenile matures. Those in charge of sentencing must
not apply adult standards of remorse to juveniles; if they do, they fail to
71
recognize that children are different from adults in terms of their emotional
and social development. See Stephanos Bibas & Richard A. Bierschbach,
Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. 85,
94 (2004) (“Seemingly remorseless acts by children or adolescents can
affect whether they are tried as juveniles or as adults.”); Kristin Henning,
Criminalizing Normal Adolescent Behavior in Communities of Color: The Role
of Prosecutors in Juvenile Justice Reform, 98 Cornell L. Rev. 383, 440–41
(2013) (noting that factors such as language skills, limited life experiences,
diminished capacity, peer pressure, teenage bravado, and implementation
of coping mechanisms—humor, denial, or indifference—make remorse “a
particularly unreliable measure of a youth’s amenability to treatment and
need for punishment”); Lauren M. Kelly, Admit the Crime or Do the Time:
Pennsylvania’s Juvenile Transfer Conundrum, 73 U. Pitt. L. Rev. 563, 579
(2012) (noting that paradoxically “[b]y requiring the juvenile to take
responsibility for his action and show remorse,” that “the juvenile is
implicitly required to admit guilt”). See generally Martha Grace Duncan,
“So Young and So Untender”: Remorseless Children and the Expectations of
the Law, 102 Colum. L. Rev. 1469 (2002) (exploring the inability of courts
to correctly adjudge remorse in juveniles, and questioning the validity of
remorsefulness in predicting recidivism and rehabilitation); Saper,
Juvenile Remorselessness, 38 N.Y.U. Rev. L. & Soc. Change at 99 (framing
consideration of remorselessness in the sentencing of juveniles as
unconstitutional due to key developmental differences in youth and adults
regarding remorse, and the propensity of courts to mistake hallmarks of
juvenile developmental immaturity as dispositive of remorselessness). The
district court does not appear to have utilized a “first and foremost” and
“children are different” framework in evaluating the lack of remorse.
Again, “[p]erceptions applicable to adult behavior cannot normally be used
72
to draw conclusions from juvenile behavior.” Roby, 897 N.W.2d at 147.
On the remorse issue, Majors erroneously was treated like an adult by the
district court.
I. A Note on Discretion. We have indicated that the review of a
district court sentence applying Miller factors is for abuse of discretion.13
But this does not mean the discretion is freestanding and without bounds.
Indeed, while an element of discretion may be involved, that discretion
may only be exercised when the state makes a compelling case that the
Miller factors defeat the ordinary presumption against imposition of the
mandatory minimums for juvenile offenders. The discretion must be
exercised in a fashion that recognizes that the ability of judges to predict
which offenders will return to crime is quite limited 14 and that subjective
decisions are not very useful and can lead to serious fairness concerns.
Unbridled district court discretion would have several unacceptable
consequences. First, it would allow for a variable enforcement of
constitutional rights. Second, it would further open the door to implicit
bias that is already rampant in our criminal justice system. See Jeffrey
Fagan, The Contradictions of Juvenile Crime & Punishment, Daedalus,
Summer 2010, at 43, 51–52 (noting that “[r]acial disparities in juvenile
detention and incarceration closely resemble racial disparities in the
imprisonment and jailing of adults,” as well as providing statistics and
analysis to that effect); Sandra Graham & Brian S. Lowery, Priming
13Although I joined the Roby decision in its entirety, upon reflection, I doubt that
the abuse of discretion standard is the correct standard when constitutional claims are
at stake. Constitutional claims must apply equally across all cases and should not be
subject to variabilities in the exercise of judicial discretion.
14For instance, in an amicus brief filed in Miller, juvenile court judges explained
that “the criminal justice system cannot predict what kind of person a fifteen-year-old
juvenile offender will be when he is 35 or 55 or 75.” Brief of Former Juvenile Ct. Judges
as Amici Curiae in Support of Petitioners at 1, Miller v. Alabama, 567 U.S. 460, 132 S. Ct.
2455 (Nos. 10–9646, 10–9647) 2012 WL 135044, at *1.
73
Unconscious Racial Stereotypes About Adolescent Offenders, 28 Law &
Hum. Behav. 483, 499 (2004) (analyzing the results of two studies on
racial disparities in the juvenile justice system, finding generalized racial
bias, and noting that “[e]ven decision makers with good intentions are
susceptible”).
J. Summary. Writing a few years ago, Scott et al., declared that
“adhering to the Court’s developmental framework and limiting the impact
of punitive impulses toward juvenile offenders generally poses an ongoing
challenge.” Scott et al., Juvenile Sentencing Reform, 88 Temp. L. Rev. at
714. They are certainly correct.
Unfortunately, this case represents unprincipled backsliding.
Stripped of the window dressing, the hearing in this case was the kind
utilized, day in and day out, in the sentencing of adults. For the reasons
stated above, the sentence in the case must be vacated and the case
remanded for a new sentencing hearing.
II. Ineffective Assistance of Counsel.
A. Introduction. On appeal, Majors claims that his counsel was
ineffective at his resentencing hearing. For reasons that completely escape
me, criminal defense lawyers all too often regard sentencing hearings as
requiring them only to review a presentence investigative (PSI) report for
errors or mistakes and to present a smattering of argument to the judge
prior to sentencing. See State v. Hill, 878 N.W.2d 269, 275–76 (Iowa 2016)
(Appel, J., concurring specially) (noting the critical nature of sentencing
within criminal proceedings and exploring the professional responsibilities
of attorneys related to sentencing). In our current system, where plea
bargaining is the norm, the sentencing proceeding is the most important
part of a criminal proceeding.
74
There has been recognition in the literature that sentencing is given
short shrift by the participants. As noted by one authority, “[s]entencing
is too often considered an afterthought rather than seen as a critical stage
in a criminal case.” Cait Clarke & James Neuhard, “From Day One”: Who’s
in Control as Problem Solving and Client Centered Sentencing Takes Center
Stage?, 29 N.Y.U. L. Rev. & Soc. Change 11, 12 (2004). As discussed
below, the problem becomes more acute when dealing with a juvenile
offender.
B. Applicable Standards for Ineffective Assistance of Counsel.
The American Bar Association’s Center for Criminal Justice states that
counsel in a criminal case “has a duty independently to investigate the
client’s circumstances, including such factors as previous history, family
relations, economic condition, and any other information relevant to
disposition.” Juvenile Justice Standards: Standards Relating to Counsel
for Private Parties, standard 9.2(b)(ii), at 175 (Inst. Judicial Admin. & Am.
Bar Ass’n 1980). Further, a defense lawyer “should present all arguments
or evidence which will assist the court or its agents in reaching a
sentencing disposition favorable to the accused” and should verify,
supplement, or challenge information in any presentence report made
available to the defense “rather than relying on the court’s presentence
report.” Standards for Criminal Justice, standard 4-8.3(c), (e) (Am. Bar
Ass’n 4th ed. 2015).
A go-along-to-get-along philosophy does not comport with effective
assistance for a criminal defendant. As stated in the ABA Standards for
Criminal Justice: Prosecution Function and Defense Function 4-1.2(e), at
120–21 (3d ed.1993),
Advocacy is not for the timid, the meek, or the retiring. Our
system of justice is inherently contentious, albeit bounded by
the rules of professional ethics and decorum, and it demands
75
that the lawyer be inclined toward vigorous advocacy. Nor can
a lawyer be half-hearted in the application of his or her
energies to a case. Once a case has been undertaken, a lawyer
is obliged not to omit any essential lawful and ethical step in
the defense, without regard to compensation or the nature of
the appointment. . . .
Because the law is a learned profession, lawyers must take
pains to guarantee that their training is adequate and their
knowledge up-to-date in order to fulfill their duty as
advocates.
Id. cmt., at 122–23 (footnote omitted); see also State v. Clay, 824 N.W.2d
488, 495–96 (Iowa 2012).
It is not enough for counsel at sentencing to simply look over the PSI
report, make a few corrections, and plead for mercy. Counsel must engage
in thorough preparation, develop a sensible plan, and mount a vigorous
mitigation defense. See generally Miriam S. Gohara, Grace Notes: A Case
for Making Mitigation the Heart of Noncapital Sentencing, 41 Am. J. Crim.
L. 41 (2013) (noting the success of well-prepared investigation and
presentation of mitigating life history in legal proceedings). The need for
zealous counsel is critical in cases involving juvenile sentencing. There
can be a temptation, contrary to the teachings of Roper, Miller, Null, and
Roby, to sentence juveniles harsher than adults on the ground that early
onset of violent criminal activity shows a particularly depraved person.
But a sentencing judge must be given the proper understanding of child
developmental psychology before sentencing a juvenile offender to an adult
sentence.
Not surprisingly, Juvenile Justice Standards provide that “[t]he
lawyer should seek to secure the assistance of psychiatric, psychological,
medical or other expert personnel needed for purposes of evaluation,
consultation or testimony with respect to formation of a disposition plan.”
Juvenile Justice Standards: Standards Relating to Counsel for Private
Parties, standard 9.2(c), at 177; see Barbara Fedders, Losing Hold of the
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Guiding Hand: Ineffective Assistance of Counsel in Juvenile Delinquency
Representations, 14 Lewis & Clark L. Rev. 771, 796 (2010) (noting the
systematic failure of juvenile delinquency attorneys to gather necessary
records or hire experts). See generally Beth Caldwell, Appealing to
Empathy: Counsel’s Obligation to Present Mitigating Evidence for Juveniles
in Adult Court, 64 Me. L. Rev. 391 (2012) [hereinafter Caldwell, Appealing
to Empathy] (discussing broadly the professional obligations of attorneys
to present mitigating evidence and the impact such mitigation may have
on case outcomes).
Attorneys have a range of responsibilities unique to juvenile
representation. By way of example,
the National Juvenile Defender Center interprets the duties of
competence and diligence to require that juvenile defense
attorneys are “well-versed in the areas of child and adolescent
development” and have a “working knowledge,” and contact
with experts, in “collateral consequences” of conviction,
special education, abuse and neglect, cultural competence,
and mental health. In addition, these standards indicate that
competent juvenile defense counsel should consult “with
mitigation specialists, social workers, and mental health,
special education, and other experts to develop a plan
consistent with the client’s expressed interests” at the
disposition hearing. Counsel should also “prepare[] and
present[] the court with a creative, comprehensive, strengths-
based, individualized disposition alternative consistent with
the client’s expressed interests.” Although these standards
relate to the representation of juveniles in delinquency court,
they are germane to representing juvenile offenders in adult
court.
Caldwell, Appealing to Empathy, 64 Me. L. Rev. at 410–11 (quoting Robin
Walker Sterling, Nat’l Juvenile Defs. Ctr., Role of Juvenile Defense Counsel
in Delinquency Court 14, 18 (2009)).
These standards are designed to apply in juvenile adjudications, but
it is inconceivable to me that a lesser standard would apply in a criminal
77
sentencing proceeding involving a juvenile or in a resentencing hearing of
a juvenile offender.
C. Application of Standards. In light of these standards, a strong
case can be made that Majors’ counsel was ineffective. In considering a
resentencing of a juvenile offender, the fact finder must be introduced to
the science of adolescent brain development in some fashion. Such
evidence may be received through an expert who testifies about what is
known of adolescent brain development and its corresponding thought
processes. Jenny E. Carroll, The Problem with Inference and Juvenile
Defendants, 45 Fla. St. U. L. Rev. 1, 49 (2017) (noting that “[s]uch
testimony could occur in two forms: an expert could evaluate a particular
defendant and testify as to her cognitive processes, or an expert could
speak more broadly to what is generally known of adolescent brain
development and its corresponding thought processes” (footnote omitted)).
But Majors’ counsel took no steps to present the court with this kind
of critical information. He did not challenge the qualifications of the
State’s expert and allowed the prosecutor to ask a long series of leading
questions to his expert. His involvement with the generalized state expert
was limited to cursory cross-examination of the State’s witnesses.
For example, counsel for Majors did not meaningfully challenge the
just-short-of-eighteen theory. He did not confront the expert with the
many authorities in child psychology to the contrary. And, counsel did
not present the caselaw to the contrary to the district court. Indeed,
counsel did not provide a brief on sentencing. None of the applicable
caselaw was presented to the district court. Similarly, counsel did not
explore the “first and foremost” dictates of Roby, either through cross-
examination of the expert or in his nonexistent briefing before the court.
78
Counsel offered no evidence at the hearing other than a brief
statement from the client. There is certainly nothing in the record to
suggest that counsel did any independent investigation of the long list of
potentially mitigating leads which would have been revealed from a
cursory review of the trial record.
On appeal, the State asserts correctly that the record shows that
Majors did not wish to have an independent medical examination and that
he explicitly directed his lawyer not to pursue it. There are three problems
here. First, an independent medical examination is not what he really
needed. No one claimed he had a current medical condition that required
diagnosis. Indeed, the State explicitly declined to claim, for instance, that
Majors had any diagnosable disorder such as an antipersonality conduct
disorder. What Majors’ counsel desperately needed, as is abundantly clear
in this case, was a child development expert to explain to counsel the
fundamentals of child developmental psychology, assist in the
development of the case, and offer testimony to support Majors’ position.
Without such assistance, the counterintuitive principles of child
development psychology were wholly unpresented and unexplored in this
case.
Second, the decision whether to call an expert witness is not
generally a client decision but rests with effective counsel. See State v.
Sammons, 749 P.2d 1372, 1377 (Ariz. 1988) (en banc) (finding the decision
to call an expert witness “a matter of trial strategy” for counsel); Davis v.
State, 723 S.E.2d 431, 434 (Ga. 2012) (stating that the decision to call
experts is “within the broad range of professional conduct afforded trial
attorneys”). Further, Majors’ expressed preference made no sense. First,
there was plenty of time prior to the hearing for his counsel to hire a
qualified child development psychologist. Second, if the record was later
79
supplemented, there was no significant possibility that this decision would
have delayed his release. He had not yet taken substance abuse and
victim impact programming. There was little possibility that any delay
caused by the hiring of a qualified expert witness would have significantly
delayed his release from prison. Acquiescing in the client’s desire not to
hire an expert was the easiest course, but it did not reflect zealous
advocacy.
It is also suggested that counsel made a strategic decision not to call
an expert because he elicited the testimony he needed from the State’s
expert. But in light of the completely inadequate testimony obtained from
the State’s expert, this conclusion simply cannot be sustained. Counsel
for Majors seems to have been unaware of the child developmental science
and the applicable Iowa caselaw. It is difficult to understand the strategic
reasoning behind not hiring a qualified expert to prevent the risk of a
runaway train based upon unqualified expert opinion.
In addition to the question of duty, there is the question of prejudice.
In order to find prejudice, our confidence in the outcome must be
undermined. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct.
2052, 2068 (1984) (“The defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different . . . [which is] sufficient to undermine
confidence in the outcome.”); Ledezma v. State, 626 N.W.2d 134, 143 (Iowa
2001) (applying the Strickland ineffective-assistance standard in Iowa
caselaw). Based on the above, my confidence in the sentencing outcome
is definitely undermined. The district court simply did not have the benefit
of an appropriate presentation that explained the principles of child
psychology and applied them to the current case.
80
And there was a lot to work with in this case. With a juvenile
offender facing an adult mandatory minimum sentence, there almost
always is. Indeed, after examining the aspects of the record explored
above––including abuse by his father, polysubstance abuse, teasing about
his family’s raising of chickens, the nonobvious social and psychological
effects of scoliosis, transfer from public school to an alternative school,
tearful reminiscence regarding the childhood abuse and teasing inflicted
on him, the influence of media as evidence of immaturity, the issues
surrounding the psychology of juvenile remorse, the unchallenged use of
the just-short-of-eighteen theory by the State, etc.––can anyone doubt that
Majors would have benefitted had local counsel hired a consulting or
testifying expert in child developmental psychology? And had that
happened, isn’t there, at the very least, a fair chance a different result
would have occurred?
I do not need to decide the ineffective-assistance-of-counsel issue,
because I would reverse the sentence in this case as a result of the
manifest errors in the analysis and remand the case for a new hearing
consistent with the substance of this opinion. But I wish to make it very
clear that we judges should expect, and our system of justice should
demand, zealous and tenacious advocacy from counsel at a resentencing
hearing. Zealous advocacy demands that a lawyer representing a juvenile
defendant (1) be familiar with the underlying case; (2) have a good working
knowledge of the relevant law and child development concepts applicable
to imposition of mandatory adult sentences on juvenile offenders;
(3) conduct a thorough, independent investigation of background facts
that might support mitigation; and (4) present expert testimony in child
developmental psychology to put the mitigation evidence in its proper
context. What is plainly not acceptable is a brief review of the file and any
81
PSI report, a passive approach to extensive leading questions of an
unqualified expert, a seat-of-the-pants cross-examination, a failure to call
an expert in child psychological development, and the failure to even file a
brief with the district court.
The majority rules, as a matter of law, that counsel was not
ineffective. I disagree. But at a minimum, it is hard to understand why
the matter should not be preserved for postconviction relief to see what
counsel did and did not do and what explanations, if any, might be
available for the very limited defense offered in the resentencing hearing.
The majority instead closes the door, preferring to leave the very
substantial questions regarding the use of the State’s expert and the lack
of appropriate expert response unexplored.
III. Conclusion.
I do not suggest, of course, that Majors should not be held
responsible for his crime. The question is whether the crime “is not as
morally reprehensible as that of an adult,” because “children are different.”
Graham, 560 U.S. at 68, 130 S. Ct. at 2026 (quoting Thompson v.
Oklahoma, 487 U.S. 815, 835, 108 S. Ct. 2687, 2699 (1988) (plurality
opinion)); Miller, 567 U.S. at 480, 132 S. Ct. at 2469. And, of course, the
impact of our decision is not whether Majors will be released, but whether
he is eligible to be considered for release by the parole board.
For the reasons explained above, I would reverse the sentence in this
case and remand the case for a real sentencing hearing in which the
propositions that “[f]irst and foremost, the time when a seventeen-year-old
could seriously be considered to have adult-like culpability has passed”
and the “children are different” framework can be applied as required by
our caselaw.
Wiggins, J., joins this dissent.