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

IAC Loss in 2-1 decision

On Thursday, the Sixth Circuit issued its opinion in West v. Bell, 05-5132/6219, denying reflief on grounds of ineffective assistance of counsel at the sentencing phase, exclusion of evidence, and prosecutorial misconduct. The most compelling argument was on West's IAC claim, which was based on counsel's failure to investigate mitigation. West, along with a 17 year old co-defendant, was charged with rape and double murder based on the stabbing of a fifteen year old girl and her mother. Both women were stabbed multiple times. West's defense was that he did not participate in the killings, and at sentencing he presented evidence that he was a good husband and father and had no background of being in trouble. Both defenses were unsuccessful.

The majority (Boggs, Norris)rejected West's argument that he had received ineffective assistance of counsel from his trial attorneys becase they had failed to investigate or present evidence of abuse. West's sister had testified that West was beaten and abused as a child, although he denied thr abuse, and a professional standards expert testified that the fact that West had been born in a mental institution and could not remember the first ten years of his life should have been "red flags" for the attorneys to further investigate his background. The majority found that, although the state court used the incorrect standard for proving prejudice under Strickland (prepoderance of the evidence rather than reasonable probability), counsel's alleged errors were contested, and even if counsel had presented significant evidence of abuse the strategy might have back fired, the jury could have found West to be loathsome and would have "sentenced him to death with greater zeal."

In a well reasoned dissent, Judge Moore found that under the Strickland standard as interpreted in Wiggins and Rompilla, West had met the burden of proof for his IAC claim. Judge Moore noted that under Rompilla, the court had an obligation not only to consider the quantum of evidence already discovered by counsel, but also whether the known evidence would lead counsel to further investigation. The evidence produced in post conviction met this standard. The dissent agreed that it was extremely likely that at least one juror would have determined that the history of abuse and psychological issues would have provided a context for his explanation of his actions on that day. His insistance that he was not abused did not aleviate counsel's burden to investigate in light of the significant evidence to the contrary. As far as the prejudice prong, the dissent argued that the majority's finding that the jury might have gone either way with the new evidence was the wrong legal standard. Rather, Rompilla specifically held that the question was whether the affect of the new evidence undermined the confidence in the jury's verdict.