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