Sixth Circuit Loss on Brady and Ineffective Assistance of Counsel at Sentencing Phase

In Owens v. Guida, Case No. 05-6105, the panel majority (Boggs, Siler) denied habeas relief on the petitioner’s Sixth Amendment ineffective assistance of counsel claim, as well as Brady and Lockett claims. Owens was convicted of aggravated murder and sentenced to death for hiring a hit man to kill her husband. She had what her counsel originally believed to be a meritorious spousal abuse defense as her husband was sexually and emotionally cruel and demeaning towards her and had repeated extramarital affairs. However, this information was never brought out at trial.

In habeas, the substance of her Brady claim was that the state had failed to turn over love letters between her husband and his lover. These letters had been in the possession of a police officer, who was told by a city attorney that they were not relevant to the case and they were returned to the dead man’s lover. This information was specifically requested in discovery. While the majority found that the prosecutor did indeed fail to disclose the favorable evidence, there was no Brady violation because Owens suffered no prejudice. The majority held that she knew about the affair, so she could have found a different avenue to present the evidence, at minimum by subpoenaing the lover to testify. The majority stated that Brady does not apply where information is available from another source.

Owens raised two principal arguments that were certified for appeal regarding her ineffective assistance of counsel claim. She claimed that counsel was ineffective for failing to investigate her background. The majority held that Owens had sabotaged her own defense by refusing to testify; by refusing to cooperate in an independent mental health evaluation; and by refusing to let her attorneys talk to her family (although counsel did remember that she might have wanted him to speak with her grandfather or mother or father). The court determined that counsel did not conclude that no mitigation existed, but rather realized that there would be no way to present the evidence due to Owens’ conduct and instructions.

Owens also claimed that counsel was ineffective for failing to overcome the state’s hearsay objection to a psychiatrist who had seen her once a few years before. The state objected when counsel asked the doctor to discuss Owens family, counsel withdrew the question and never really elicited any meaningful testimony because of the hearsay issue. Come to find out, Tennessee has a statute that permits such testimony at sentencing in a capital case regardless of admissibility. The majority reasoned that although this may look deficient, it may have been strategic as counsel might not have wanted to run the risk of eliciting bad testimony from the doctor, both on direct and cross-examination. According to the majority, the doctor’s vague answer that Owens had a "severe problem," without any explanation, thus allowed the jury to make a favorable inference.

Finally, the majority rejected Owens claim that her Eighth and Fourteenth Amendment rights were violated when she was precluded from presenting testimony that she had been willing to accept the state’s offer of a life sentence in exchange for a guilty plea. The deal did not come to pass because it was a package that required the hit man to accept the same offer and he was not willing to do so. The majority held that this was not relevant "to any aspect of the defendant’s character or record or any circumstances of the offense" under Lockett, and the court therefore had discretion to refuse to admit it. Owens asserted that this was evidence of "acceptance of responsibility," but the majority noted that every court to be presented with that argument had rejected it.

The dissent (Merritt), on the other hand, offered to "straighten out the case for the reader by introducing the actual facts and the correct legal principles to be applied." Merritt stated that this was "not a close case." Regarding the Brady issue, the dissent stated that prior to trial, the Petitioner had specifically asked for all information regarding her husband’s numerous girlfriends and his odd sexual proclivities because that behavior had contributed to her state of mind and mental condition. Merritt found the prosecutor’s failure to turn over the material, as well as his artful description of the scope of the material provided to be typical of the Memphis district attorney’s office at that point in time. Merritt compared the majority’s reasoning that the petitioner was not prejudiced by the failure to disclose comparable to telling Brady that because he knew he had not killed the victim, he was not entitled to the exculpatory material because he could have taken the stand and so testified. In light of the fact that the state’s theory of the case was that Owens had killed her husband to get insurance money, the jury never had the chance to hear this evidence which made her less culpable.

In analyzing the ineffective assistance of counsel claim, the dissent quoted extensively from the ABA’s Guidelines on investigation, and noted counsel’s duty to investigate regardless of the expressed desire of the client. Counsel had originally told the court that Owens had a meritorious spousal abuse defense, but they completely abandoned it in the course of the litigation, leaving the jury to think she had only done it for the insurance money. Further, the dissent found that the majority’s singular reliance on Schirro v. Landirgan, 127 S.Ct. 1933 (2007) was misplaced because in that case, the petitioner specifically told counsel that he did not want them to present mitigation, where as here, as in both Wiggins and Rompilla, the petitioner had merely refused to assist counsel. The compelling body of mitigating evidence that could have been presented coupled with counsel’s scant time sheets, the fact that each thought the other was responsible for mitigation, and counsel’s failure to realize that under Tennessee law a psychologist is permitted to present hearsay evidence in capital mitigation led the dissent to find that if counsel’s actions did not demonstrate ineffective assistance of counsel in a capital case, "there is no such thing as ineffective assistance of counsel."

Regarding the Lockett issue, Merritt found that the state had argued that Owens deserved the death penalty because she did not acknowledge responsibility for her actions, and she was therefore entitled to present evidence that this was untrue.