Sixth Circuit Grants a Stay of Execution for Hartman

A panel of the Sixth Circuit today granted a stay of execution for Brett Hartman to permit them time to review his motion to file a successive habeas petition. Hartman was scheduled for execution on April 7, 2009. He alleged that previously undiscoverable evidence showed that a fellow inmate who testified that Hartman had admitted to the crime had perjured himself. Especially compelling for the panel was Hartman's claim that he should have access to crime scene evidence for DNA testing. The panel reasoned that the imminent decision of SCOTUS in District Attorney's Office for the Third Judicial District v. Osborne could create a new constitutional right entitling Hartman to access to the evidence. The court granted Hartman's stay, and will rule on his motion to file a second petition following the Osborne decision.

Awkal Gets a New Trial

The majority of the Sixth Circuit panel (Moore, Cole, Gilman dissenting) in Awkal v. Mitchell, 01-4278, reversed the district court's denial of habeas relief and granted a new trial on the basis of ineffective assistance of counsel at the guilt phase. Awkal presented claims for relief on IAC during the guilt phase, IAC during sentencing, and prosecutorial misconduct. The panel did not decide the other two claims, but focused only on the question of whether counsel was ineffective for calling an expert witness who testified unequivocally that Awkal was sane at the time of the murder, when Awkal's entire defense was that he was not guilty by reason of insanity.

Counsel presented testimony of three experts: one whose testimony was stricken because he was not licensed in Ohio (and he had received his degree by mail); another who was a pediatrician who had practiced psychiatry for less than one year and was not yet certified; and the third, Dr. Rizk, who had conducted Awkal's pretrial sanity and competency evaluations for the court. The majority noted that counsel was in possession of Dr' Rizk's report well before he testified and should have known that it would be damaging. The majority analogized the case to Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000), in which the court found ineffective assistance of counsel where counsel presented expert testimony that eviscerated the petitioner's intoxication defense. It found that Rizk's testimony so devastated Awkal's defense that it was objectively unreasonable for his counsel to call him as a witness. Regarding the prejudice prong, the majority held that the damage done by this witness was so obvious and extensive that had counsel not called him, there was a reasonable probability that the jury's verdict would have been different. In its AEDPA analysis, it further found that the Ohio Supreme Court's application of Strickland was objectively unreasonable in that the court failed to take into account the obvious harm caused by counsel's decision.

Judge Gilman, in dissent found that while counsel's decision was questionable, it was not outside the wide range of professionally competent assistance. It was clear that counsel had made a conscious decision to present this damaging testimony and so it must have been part of the "strategy." As to the prejudice prong, Judge Gilman found that the evidence against Awkal being psychotic at the time of the murders was so overwhelming, that he had no chance at an insanity defense even without Dr. Rizk's testimony

Cornwell v. Bradshaw

Today, in Cornwell v. Bradshaw, a majority of the Sixth Circuit panel (Gibbons, Rogers, Moore dissenting) affirmed the district court's denial of habeas relief. Cornwell alleged that counsel was ineffective for failing to discover and turn over to the mitigation expert hospital records that would have shown that he had a double mastectomy at age thirteen and possibly manifested symptoms of Klinefelter's (XXY chromosome) Syndrome. The anecdotal evidence that the psychologist had at trial made it sound like Cornwell had had "liposuction" or some other form of cosmetic surgery. Klinefelter's Syndrome is a genetic disease, the symptoms of which include enlarged breasts, sparse body hair, an inability to produce sperm, and difficulty with language skills. Boys who have this disease have less muscular development and are not good at sports, tend to be teased by their peers and present low self esteem. Had the evidence pointed the expert in the direction of Klinefelter's Syndrome, Cornwell argued, the mitigation would have been much more compelling, rather than portraying him as a fat, lazy teen who had undergone cosmetic breast reduction surgery.

The majority reasoned that while the ABA standards would seem to require an attorney to locate this type of record, it still seemed like trial counsel had done a pretty good job with the rest of the investigation. However, in order to get to the real meat the court decided to assume deficient performance and look at the Strickland prejudice prong. The majority held that while the jury would have had a little more information about Cornwell's medical condition and perhaps would have learned that he was overweight because of the Klinefelter's, it was still not objectively unreasonable for the state court to have found tha Cornwell was not prejudiced. The state courts could reasonably reject the idea that a jury would blame a teen for his own obesity and tend to consider someone who was fat, lazy and had cosmetic surgery more deserving of the death penalty.

In addition, the majority rejected Cornwell's remaining claims of racial bias; the trial court's denial of his motion to suppress on eyewitness identification; and ineffective assistance of appellate counsel for failure to raise that issue.

Judge Moore dissented regarding the IAC mitigation claim. Her reasoning was, essentially, that since the prosecutor consistently presented Cornwell as a fat lazy youth who, instead of running, dieting, and lifting weights had liposuction, it would have been helpful for the defense to counter that assessment with a diagnosis.

Van Hook - That's Not Really What We Meant

Today, the Circuit panel issued a modification of its opinion in Van Hook v. Anderson, 03-4207. Originally, the court found that Van Hook's counsel was ineffective for three reasons: 1) failure to fully investigate and present mitigating evidence; 2) failure to obtain a mental health expert to testify that Van Hooks actions were the result of mental illness; and 3) introducing and then failing to object to a PSI containing victim impact statements asking that he be sentenced to death. The panel (Merritt, Martin, Moore) amended its opinion "at the request of the majority of the en banc court and in order to avoid the need for an en banc hearing." The sole basis for the IAC finding in the new opinion was counsel's failure to investigate and present relevant evidence at mitigation.