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9th Circuit Finds IAC for Failure to Investigate Mitigating Factors During Penalty Phase of Capital Case

by Anthony Accurso

The U.S. Court of Appeals for the Ninth Circuit vacated and remanded the defendant’s death sentence for first-degree murder because defense counsel failed to investigate mitigating evidence of cognitive defects that would have resulted in a “reasonable probability that the outcome of sentencing would have been different” had such evidence been presented.

In 1986, Theodore Washington was involved in a brutal home invasion that resulted in the death of Sterleen Hill. He was found guilty, along with two co-defendants, on six counts relating to the robbery and murder.

Washington began appealing his conviction and sentence in 1990, and his case was reviewed by the Ninth Circuit in 2019. While he presented several issues on appeal, all other issues besides counsel’s deficient and prejudicial performance at sentencing were denied.

In preparation for Washington’s sentencing hearing, trial counsel Robert Clarke interviewed Washington and his friends and family. During these interviews, Washington admitted to having a “cocaine problem,” but this alone was insufficient to indicate that Washington was addicted to cocaine or was under the influence at the time of the crime. Also absent from these interviews were any indications that Washington had “diffuse brain damage,” which contributed to his poor impulse control and below-average intelligence. However, these conditions would have been readily apparent had Clarke obtained Washington’s school or prison records. Evidence that Washington was drinking alcohol recreationally by age eight and was a functional alcoholic by age 14, as well as his experiences in his “significantly dysfunctional family,” was easily discernable from such records.

Because this case originated prior to the passage of the AEDPA, the Court reviewed trial counsel’s performance under Strickland v. Washington, 466 U.S. 668 (1984). Under that standard, Washington needed to prove that his counsel’s performance was deficient and that the deficient performance resulted in prejudice. The Court relied on Robinson v. Schriro, 595 F.3d 1086 (9th Cir. 2010), which recognizes, “at the very least, counsel should obtain readily available documentary evidence such as school, employment, and medical records” when investigating mitigating factors for the sentencing phase of a capital crime. Failing to obtain such records established the deficient performance prong for Washington.

Washington’s sentencing judge eventually heard this mitigating evidence during the post-conviction review but dismissed it as lacking a nexus to the crime.

The Ninth Circuit, however, admonished that such a “nexus test” is an erroneous standard that has been rejected by the U.S. Supreme Court in Smith v. Texas, 543 U.S. 37 (2004), which rejected the nexus requirement for mitigating evidence in a capital case. The Ninth Circuit found this nexus test was the sole reason the mitigating evidence was not weighed properly and that this was enough to establish prejudice under Strickland’s second prong.

Accordingly, the Court reversed the district court’s denial of habeas relief with respect to the penalty phase and remanded “with instructions to grant the writ of habeas corpus unless the state court undertakes resentencing proceedings within a reasonable time to be determined by the district court.” See: Washington v. Ryan, 922 F.3d 419 (9th Cir. 2019). 

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