Sunday, May 25, 2008

Ineffective Counsel: Ninth Circuit Reverses 23 Year Old Case/Ineffective Counsel: Corell v. Ryan, 539 F.3d 938 (9th Cir. 2008)

Correll v. Ryan [Warden] 539 F.3d 938 (9th Cir. 2008) Ineffective Assistance of Counsel Congress, understandably frustrated with U.S. circuit courts of appeal in general, and the Ninth Circuit in particular, enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996 to restrict federal habeas corpus review of state court convictions. No case more dramatically illustrates the overwhelming need for this statute than the Ninth Circuit decision in Correll v. Ryan (Warden), decided May 15, 2008. Because this case is twenty three years old, the Ninth Circuit escaped the restrictions of AEDPA and performed a de novo review under the old more liberal law. The facts are horrendous but the reader would never know about the vicious murder of four victims by reading the author of the majority opinion, writing perfunctorily and without any description of the facts, that Correll was convicted of three counts of first degree murder, attempted first degree murder, four counts of kidnapping, armed robbery and first degree burglary. The dissent does explain: Correl and a co suspect entered one of the victims house demanding money. Correll secured the victim and his girl friend with duct tape, and, when two other friends of the victim arrived, he taped them also. Correll and his companion raided the house for money and valuables. They forced three of the victims at gunpoint into a car and drove to a deserted area. Compelling them all to lie on the ground, Correl shot one in the head, who miraculously survived, and helped his companion execute the other two victims. Police found the other victim in the house dead by strangulation. The sole defense at the trial was misidentification of Correll. The jury convicted Correl, and, during the penalty phase, the prosecution presented five aggravating factors which, under Arizona law, are conditions for imposing the death penalty. Counsel for Correll presented substantial mitigating evidence, attempting to paint his client as less culpable than the other killer. Counsel argued for mitigation on grounds Correll was under the influence of drugs and had a troubled family history but the judge sentenced Correl to death. The Arizona Supreme Court affirmed the conviction on appeal. Correll filed post conviction proceedings in the state court alleging his counsel had been ineffective in representing him in the penalty phase by failing to present psychological evidence. After the court held an evidentiary hearing, the judge denied the petition, commenting . . .the Court specifically recalls the trial work of defense counsel was precise, careful and competent, and manifested strategic and tactical judgment of the same high quality. Turning to the federal court, Correll filed a petition for habeas corpus. The district court denied the petition but on appeal the Ninth Circuit ordered an evidentiary hearing on grounds Correll had not received a full evidentiary hearing in state court. On remand, the district court held a nine day evidentiary hearing and concluded counsel had been deficient in some areas but insufficient to prejudice the petitioner. The court made specific findings of fact in a 109 page opinion. On appeal from this decision, the Ninth Circuit majority (having rejected the Arizona Supreme Court decision, the post conviction hearing in state court and the federal district court judge), found counsel for Correll ineffective. Their decision drew six angry dissents. According to the majority, counsel did not present mitigating evidence of brain damage incurred when Correll was seven years old. The psychiatrist testified Correll suffered no brain injury and was a fully functioning adult. The majority criticized counsels failure to present psychological evidence although this strategy would have opened the door for the prosecution to offer damaging evidence of Corrells violent history. Correll had a previous conviction of armed robbery, had been confined in a mental hospital for almost his entire adult life where he had repeatedly escaped, raped an attendant and engaged in disorderly conduct. He had never worked, assaulted his sister, and spent his time injecting narcotics. This evidence did not suggest mitigation as a sensible strategy. The alternative to escaping the death penalty is evidence of lesser culpability or other factors to cast doubt on the verdict. This strategy requires counsel to impute more responsibility on a co suspect, offer evidence of intoxication at the time of the crime, or present other witnesses who would offer character evidence. Casting doubt on the conviction, as distinct from attempts to dissuade the trier of fact imposing the death penalty for reasons of mental instability, age, lack of premeditation, is regarded as an effective alternative according to studies on this subject. But Correll had argued he was not responsible for the crimes, i.e., he was innocent. Forced by the jury verdict to disregard this strategy, counsel confronted a mountain of rebuttal evidence in the file of the prosecution if he introduced mitigating evidence. Confronted with devastating rebuttal evidence if he offered evidence of mitigation, and possessed of no psychiatric evidence from testimony by doctors, counsel lacked the resources to avoid the death penalty. More disturbing is the majority opinion disregarding the facts. According to the majority, counsel failed to explain mitigation evidence of drug use, brain damage, family history or medical record. In fact, there is no evidence Correll was under the influence of drugs at the time of the murders, no evidence of brain damage and the court knew of attempts by his family to assist him in his conduct. The pre sentence report also provided additional information to the trial judge. The majority also contend counsel did not seek testimony from a chaplain at prison. As the dissent points out, the chaplain refused to testify. Nor does the court mention that counsel interviewed thirty to forty witnesses, none of whom would testify favorably. There is no expert testimony of mental imbalance. This distortion of the facts identified by the dissents is inexcusable, but not the first time the Ninth Circuit has reweighed or ignored the evidence. Unless reversed by the Supreme Court, the Ninth Circuit regularly stifles imposition of the death penalty and Corell is a prime example of an appellate court reweighing the evidence and dismissing state and district court findings. Appellate courts were mandated to defer to factual finding supported by the evidence prior to enactment of AEDPA. In 109 pages the district court outlined its findings, essentially ignored by the Ninth Circuit. The Ninth Circuit has embraced the Supreme Court decision in Strickland v. Washington, 466 U.S. 668 (1984) enabling an appellate court to conclude counsel was ineffective during trial or sentencing in capital cases. The majority in Correll, finding reasons not to impose the death penalty on grounds counsel was ineffective, creates a insurmountable dilemma. If defense counsel offers mitigation evidence, the prosecution introduces Corrells previous conviction for armed robbery, confinement and escape in a mental facility, and molestation of his sister. If counsel does not submit mitigation evidence, the Ninth Circuit criticizes him for not doing so. The Strickland test requires reversal on appeal only if counsel is ineffective to a point the defendant was prejudiced. This test is quintessentially fact specific and a court can always cite Strickland as precedent. But the court of appeal did not hear the evidence, was not at the trial or sentencing, did not participate in the two evidentiary hearings and misstates the evidence. From a cold record the majority undermines the death penalty. The Supreme Court has cautioned Courts of Appeal from second guessing trial counsel and their sentencing strategy. The Ninth Circuit majority in Correll has done just that in case now twenty three years old. The majority opinion duplicates what the dissenting judges said in Gentry v. Roe, 320 F.3d 891 (9th Cir. 2002) in 2002: This case is part of a developing body of circuit law substituting our judgment on defense tactics and presentation for the judgment of defense counsel and state courts. More often this occurs in death penalty cases, but the trend is seeping beyond them to more routine cases . . . The last thing criminal defendants and the public need is a Ninth Circuit form book of approved argument and strategies, yet that what were giving them. Were telling them in great detail how to investigate their cases and forcing them down rabbit tracks that divert their time from better applications, that they have to produce psychiatric evidence though often it's a bad idea, . . . Now they apparently have to make, and refrain from making arguments . . . regardless of what they think will most likely persuade the jury to consider seriously whether there is a reasonable doubt. The Supreme Court reversed the Ninth Circuit (and the majority opinion in Roe v. Gentry) in Yarborough v. Gentry, 320 U.S. 1 (2003).

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