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Defense Fails to Present Diminished Capacity, Ninth Circuit Vacates Murder Convictions

by Christopher Zoukis

The United States Court of Appeals for the Ninth Circuit granted a California state prisoner’s petition for a writ of habeas corpus and vacated the prisoner’s convictions for first degree murder. The Court, in a 2-1 panel decision, found that the trial attorney failed to provide effective assistance of counsel because he did not present a readily available and legally sufficient defense of diminished mental capacity.

The December 29, 2017 opinion analyzed the case against Francis G. Hernandez. Hernandez was convicted in April 1983 of the brutal murder of two young women. Both Edna Bristol and Kathy Ryan were raped, sodomized, and strangled to death. Both victims suffered pre-mortem bruising and tearing in the anal and vaginal areas, suggesting that something the size of a baseball bat had been inserted. Both women also had bite marks on their breasts and singed pubic hair.

 Hernandez was arrested for the crimes and confessed after a five-hour interrogation. He gave a detailed description of the rape and murder of the two women. In addition, a variety of physical evidence linked Hernandez to the crimes. The evidence against him was strong, and his defense lawyer presented a very weak defense of diminished capacity based upon voluntary intoxication.

The jury convicted Hernandez, and he was sentenced to death for each murder. He began post-conviction proceedings in 1989 and lost at every level. He also filed a federal petition for a writ of habeas corpus, which was litigated for decades. Over six years, proceedings included a district court hearing based on written materials relating to claims of jury misconduct and ineffective assistance of counsel. The U.S. District Court ultimately granted Hernandez’s petition as to the death sentence but denied the petition as to his convictions for first degree murder.

On appeal to the Ninth Circuit, Hernandez argued that his defense attorney provided ineffective assistance of counsel by failing to investigate and present evidence of a diminished capacity based on mental impairment. Had Hernandez’s attorney done so, he would have discovered a compelling and legally viable story of a horrendous childhood and severe mental impairment.

Hernandez was born to a 14-year-old mother who abused drugs and was physically abused during her pregnancy. He inherited a strong disposition to develop severe mental illness that went back several generations in his biological family. Both of his biological parents suffered from mental illness of “psychotic proportions.”

Hernandez was adopted as a baby by Naomi and Frank Hernandez, and experts described his childhood as “a daily hell.” Naomi would sit on Hernandez, beat him, tie him to a chair, chase him around the house with a baseball bat, and forcibly administer enemas to Hernandez twice a week. Frank beat Hernandez with belts and left scars on his buttocks consistent with cigarette burns. Both parents eventually left, and drug dealers set up shop in the home. They terrorized Hernandez and got him hooked on drugs and alcohol by the time he was in sixth grade.

Hernandez ended up a ward of the state and was in custody of the California Youth Authority until he turned 18. He committed the murders soon after his release, when experts testified that he “was an eighteen-year-old, unemployed parolee who was homeless, isolated from his family, drug addicted, and living in a van.”

The Court reviewed trial counsel’s failure to investigate or present a defense of diminished capacity based on mental impairment under the standard established by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient performance and prejudice in order to establish ineffective assistance of counsel.

Deficient performance was easily established because trial counsel himself admitted in his testimony that he would have investigated and advanced the diminished capacity theory had he realized that he could. Counsel explained that this was not a strategic decision, and he acknowledged that it was a failure to do what he should have done. The State argued that counsel’s subjective state of mind was irrelevant in the deficient performance analysis. It contended that a reasonable attorney could have presented the defense that Hernandez’s attorney in fact did, and thus his performance was not legally deficient. 

The Court rejected the State’s position as contrary to law as established by the U.S. Supreme Court. It explained that the Supreme Court has consistently declared that courts may not “indulge ‘post hoc rationalization’ for counsel’s decisionmaking that contradicts the available evidence of counsel’s actions.” Wiggins v. Smith, 539 U.S. 510 (2003). In the present case, the available evidence is clear as to the defense attorney’s decision making, i.e., he expressly admitted he was ignorant of the law and that his failure to present a diminished mental capacity defense was not a strategic decision.  

The Court stated only “where counsel’s conduct is not explained in the record … do we ‘entertain the range of possible reasons [] counsel may have had for proceeding as he did.’” It instructed that “[w]ere the record ambiguous or silent as to why Hernandez’s counsel did not present the diminished capacity defense, we might consider the state’s hypothetical strategic reasons.” “But it is not, and we don’t.”

Under Strickland, a lawyer’s “ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance….” Hinton v. Alabama, 134 S. Ct. 1081 (2014). Hernandez’s trial lawyer’s failure to investigate and present a diminished capacity defense based upon mental impairment amounted to deficient performance, concluded the Court.

A determination of deficient performance by Hernandez’s trial counsel alone does not warrant relief. He must also show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” He must establish that the deficient performance was prejudicial. When examining guilt-phase claims, courts contrast “the evidence that actually was presented to the jury with that which could have been presented had counsel acted properly.” Daniels v. Woodford, 428 F.3d 1181 (2005). Courts then must ask whether the omitted evidence might have created reasonable doubt in the mind of at least one juror.

Under the law at the time of Hernandez’s trial, evidence of “diminished capacity could negate the existence of” the specific mental state necessary for first degree murder. That is, a successful diminished capacity defense would have precluded a first degree murder conviction because of the lack of capacity to form the requisite mental state.   

Considering the evidence that was presented at trial versus the evidence that could have been presented, there was a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

The evidence presented was that Hernandez was voluntarily intoxicated at the time of the crimes, and thus could not form the specific intent to rape or murder. This is a notoriously weak defense, and it was undermined by Hernandez’s own trial expert, who testified that it was possible for an alcoholic like Hernandez to form the specific intent to kill, rape, or sodomize while drinking. The Court found the evidence that was presented at trial as a defense was “weak” and “meritless.”

What could have been presented, however, was compelling. This was what the district court recognized as “the best possible defense at guilt: that due to mental deficiency, neurological deficits and inadequate parenting, [Hernandez] lacked the capacity to form the specific intent to rape and kill his victims.”

All but one expert concluded that Hernandez lacked the capacity to form the specific intent to support a first degree murder conviction. The Court concluded that there was a reasonable probability that upon hearing Hernandez’s “best defense,” “at least one juror, and probably more, would have harbored substantial doubt about Hernandez’s capacity to form the specific intent to rape or kill.”

“The jury did not have the benefit of testimony regarding Hernandez’s numerous head injuries or his genetic predisposition to mental illness, his traumatic childhood raised in a violent and psychotic adoptive family, his organic brain damage, and his history of dissociation and impaired reality testing,” wrote the Court. “Instead, the jury was simply asked to find, based on weak or uncorroborated evidence, that because Hernandez might have been intoxicated, he could not form the specific intent to rape or kill the two victims. It is ‘especially egregious’ to forgo investigation when ‘the entire defense strategy rest[s] on contesting the intent element of the crime, a defense which could have benefited enormously from readily available psychiatric evidence.’”

In light of the foregoing, the Court announced that “our confidence in the verdict is, without question, undermined.”  Accordingly, the Court reversed the district court’s denial of Hernandez’s writ of habeas corpus regarding the guilt phase claims relating to first degree murder, vacated his convictions on those counts, and remanded with instructions to grant the petition for a writ of habeas corpus unless the State conducts a new trial on those charges within a reasonable period of time. See: Hernandez v. Chappell, 878 F.3d 843 (9th Cir. 2017). 

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Related legal case

Hernandez v. Chappell



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