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Ninth Circuit Affirms Habeas Relief Where Counsel Failed to Present Mitigating Evidence at Penalty Phase

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s judgment granting habeas relief to Jesse James Andrews because his attorneys failed to present extensive and compelling mitigating evidence at the penalty phase after a jury found him guilty of capital crimes.

A jury found Andrews guilty of three counts of first-degree murder, rape, sodomy by a foreign object, and robbery. The jury also found that Andrews’ prior murder and the current multiple murders, robbery-murder, and rape-murder made him eligible for the death penalty. During the penalty phase, the prosecution presented photographs of two of the victims that were excluded from the guilt phase because they were unduly inflammatory.

The prosecution also presented a stipulation that Andrews was 29 years old at the time of the murders and that he had pleaded guilty in Alabama to charges of murder, armed robbery, escape, and robbery. Defense evidence, admitted by stipulation, consisted of two sworn statements regarding the Alabama murder conviction that showed Andrews and his accomplice “entered a grocery store and announced a robbery. When the store clerk placed his hand down the front of his apron, [Andrews’] companion fired three shots, killing” the clerk. Counsel called no witnesses and argued to the jury that Andrews’ age alone was enough to spare his life. The jury returned death verdicts on all three murders. His convictions and sentences were affirmed by the California Supreme Court.

Andrews then filed a post-conviction petition in the California Supreme Court, alleging his attorneys, Gerald Lenoir and Hal Miller, were ineffective when they failed to investigate avenues of mitigation and to present mitigation evidence during the penalty phase. The California Supreme Court appointed a state superior court judge to act as referee and conduct a reference hearing to take evidence and make findings of fact. Witnesses testifying at the hearing included a federal district judge, a former juvenile probation officer, mental health experts, former prison physicians, former and current prisoners, and Andrews’ mother. Evidence at the hearing revealed Andrews was born to alcoholic parents, but he was reared by his grandfather in a poor, segregated section of Mobile, Alabama.

After his grandfather died, Andrews began having minor scrapes with the law. He was involved in a car theft at age 14 and confined to Mt. Meigs, a purported “industrial school for negro children.” A federal district court judge testified that “the institution was a penal colony for children.” The former juvenile probation officer testified that Mt. Meigs was a “slave camp for children” where they worked every day in the fields and were “beaten all the time with ... broomsticks, mop handles, and fan belts.” Former prisoners of Mt. Meigs testified to beatings with lead-filled sticks, bullwhips, and fan belts. If a child failed to pick his daily quota of cotton, an overseer would “poke a hole in the ground and order him to lie down, pull down his pants, and stick his penis into the hole. The overseer would then beat the boy’s thighs with a stick, often until the skin burst open. One witness remembered seeing [Andrews] beaten in this manner.”

Because of Andrews’ small build and young age, he suffered beatings and sexual assaults from older, tougher boys left unsupervised at Mt. Meigs. In 1971, a federal district court determined that the conditions and frequent use of corporal punishment by school administrators at Mt. Meigs constituted cruel and unusual punishment.

It was after Andrews’ release from Mt. Meigs that he robbed the grocery store with Freddie Square, and it was Square who killed the clerk. While incarcerated for his role in that offense, Andrews was again subjected to sexual assaults, rat-infested cells, and excessively violent conditions. During his incarceration, the conditions of Alabama’s prisons were so abysmal they were found to violate the Eighth Amendment.

Mental health professionals testified, describing Andrews as suffering from a range of mental disorders, including post-traumatic stress disorder and organic brain damage. They testified that Andrews’ experiences in Alabama’s correctional institutions “made his behavior understandable and his reincarceration predictable.”

The referee found that uncovering this evidence wouldn’t have “called for any extraordinary efforts beyond simple persistence.” The evidence would have been discovered by contacting Andrews’ mother; by reviewing court files of prior convictions and prison records; through standard legal research of public records; and by routine appointment of mental health experts.

The California Supreme Court ruled that Miller and Lenoir’s failure to investigate was excused because Andrews had told them he didn’t want his family involved and because Andrews had failed to tell the attorneys about his abuse. And it may have been trial strategy because presenting the mitigating evidence would have required calling a series of prisoners as witnesses.

The California Supreme Court then concluded that, “[f]or the same reasons,” Andrews was not prejudiced by his attorneys’ performance. The petition was denied, and Andrews filed a habeas petition in federal court raising 32 claims.

The district court granted relief on Andrews’ penalty-phase ineffective assistance of counsel claim, denied the remaining claims, but granted a certificate of appealability on Andrews’ claim challenging California’s lethal injection protocol. Andrews appealed the denial of the lethal injection claim, and the State cross-appealed the grant of habeas relief. A divided panel reversed the grant of habeas relief, but then the Ninth Circuit ordered the case be heard en banc.

The Ninth Circuit observed that under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Court “must defer to [the] state court’s decision with respect to any claim adjudicated on the merits, ... unless the adjudication of the claim involved an ‘unreasonable application’ of clearly established federal law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A state court’s decision is an unreasonable application of federal law when that court identifies the correct governing rule but unreasonably applies it to the facts of the case. Williams v. Taylor, 529 U.S. 362 (2000).

A capital defendant has a constitutional right to effective assistance of counsel at both the guilt phase and penalty phase of the trial. Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective assistance, a prisoner must show that (1) counsel’s performance was deficient, and (2) counsel’s performance prejudiced the defense. Id. Counsel has a duty to undertake “reasonable investigations” in preparation for the penalty phase. Id.

In the instant case, the Court concluded that the performance of Andrews’ attorneys was deficient because they failed to undertake an investigation that required nothing more than simple persistence, standard legal research, standard investigative techniques, and routine appointment of mental health experts.

The California Supreme Court unreasonably applied Strickland when it ruled that the attorneys’ failure to investigate was excused based on Andrews’ request that his family not be involved and because Andrews had failed to disclose the abuse to the attorneys. First, most of the mitigating evidence did not come from family members. Second, the abuse would have been discovered without Andrews volunteering it. And, as for the State court’s conclusion that it was counsel’s strategy to not present the mitigation evidence because it would entail parading prisoner witnesses, this was an unreasonable application of federal law because a strategic decision requires the weighing of competing approaches. Darren v. Wainwright, 477 U.S. 168 (1986). Andrews’ attorneys were unaware of his background, so they did not make an intelligent decision to choose one strategy over another. Because the attorneys were deficient in their investigation, their “later penalty-phase decisions [were] a product of ‘inattention, not reasoned strategic judgment.’” Wiggins v. Smith, 539 U.S. 510 (2003). Furthermore, the evidence could have been presented through a federal judge, a former probation officer, mental health experts, and former prison doctors.

Regarding the attorneys’ error prejudicing the defense, “[u]nder clearly established federal law, a consideration of the defendant’s life history is a ‘constitutionally indispensable part of the process of inflicting the penalty of death.’” Weddings v. Oklahoma, 455 U.S. 104 (1982). Evidence of abuse inflicted as a child is especially mitigating, and its omission is thus particularly prejudicial. Id. And to prevail on his claim, Andrews only had to show that, had the omitted mitigating evidence been presented to the jury, there was a reasonable probability that at least one juror would have been persuaded to show mercy and spare Andrews’ life. Wiggins.

The Court determined that “the California Supreme Court was objectively unreasonable in concluding there was no reasonable probability that at least one juror ... would have been persuaded that the violent and degrading abuse Andrews suffered as a child at the hands of his state custodians — in segregated institutions in Alabama, in the mid-1960s — compelled some measure of mercy and a sentence of life without the possibility of parole, rather than death.”

Accordingly, the Court affirmed the district court’s grant of sentencing relief and dismissed the lethal injection claim as unripe. See: Andrews v. Davis, 944 F.3d 1092 (9th Cir. 2019). 

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