Eurus Kelly Waters v. Albert G. Thomas, Warden Georgia Diagnostic and Classification Center

WATERS, Kelly Petitioner- Eurus

Appellant, THOMAS, Georgia Warden

Albert G. Center,

Diagnostic and Classification

Respondent-Appellee.

No. 88-8935. Appeals, Court

United States Circuit.

Eleventh 27, 1995.

Feb.

Rehearing April Denied

thirty-fivе, fishing Jekyll who had been Island, Georgia. gunpoint, At he forced the woods, to march into women where he together. orally handcuffed them Waters so Culpepper. domized Ms. Then he shot her. woman, shooting After the older shot young point, her friend. At some he tore the off, teenager’s leaving clothes her nude from leaving the waist down. As he was scene, stopped by Culpepper’s Ms. poeketbook, automobile to steal her which contained seven dollars. Anita Paseur died Kathryn Culpepper at the scene. died five days later. Other details of the crime and overwhelming guilt evidence of Waters’ the. in opinion Georgia are set out of the State, Court, 355, Supreme v. Waters 248 Ga. (1981), denied, 283 S.E.2d 238 cert. 463 U.S. 1213, 3551, (1983), 103 77 L.Ed.2d S.Ct. 1398 which affirmed convictions and death sentences for both murders. 283 S.E.2d at 249, 252. petition corpus

Waters filed a for habeas court, relief state which was denied after evidentiary hearing. Following an the Geor- Counsel, Doyle, Deputy James M. Chief gia Supreme appli- Court’s denial of Waters’ Div., The of Massachu- Public Counsel Com. probable cation for certificate cause to Services, setts, for Public Counsel Committee denied, appeal, certiorari was Waters v. Boston, MA, II, Herring, Wade W. Savan- 1039, 1249, Kemp, 475 U.S. 106 S.Ct. 89 nah, GA, appellant. (1986). L.Ed.2d 357 then filed a Waters petition, corpus federal habeas 28 U.S.C. Smith, Gen., Atlanta, GA, Atty. Paula Asst. 2254, § which the district court denied in an appellee. extensive order. panel

A of this affirmed the denial of Court corpus insofar as the convic- habeas relief concerned, Zant, v. 979 tions were Waters TJOFLAT, Judge, Before Chief (11th 1473, Cir.1992), 1490-92 but re- F.2d KRAVITCH, HATCHETT, ANDERSON, as to the death versed the denial of relief EDMONDSON, COX, BIRCH, DUBINA, sentences, holding that Waters had received CARNES, Judges,* and BLACK and Circuit sen- ineffective assistance of counsel CLARK**, Judge. Senior Circuit stage proceedings, id. at 1492- tence affirming panel unanimous CARNES, ANDERSON and Circuit relief, guilt stage but Chief the denial Judges:1 Tjoflat panel ma- Judge dissented from the Kelly Mdnapped jority’s holding Anita due sen- Eurus Pas- that Waters was ear, sixteen, Kathryn Culpepper, age stage on ineffective assistance age tence relief * jointly by Judges Judge opinion 1. This was written Barkett became a member the Court 18, 1994, Kemp, Peek v. 784 February Anderson Carnes. this case was after when Cf. (11th Cir.) (en banc) (authored by F.2d 1479 argued She has and taken under submission. denied, Anderson, JJ.), cert. 479 U.S. Vance participate elected not in this decision. 939, 421, L.Ed.2d 371 107 S.Ct. 93 ** Judge I, II, opinion Senior U.S. Circuit Thomas A. Clark elect- were authored Parts and III of this decision, Carnes; participate pursuant by Judge by Judge to 28 ed to in this Part IV was authored 46(c). § Anderson. U.S.C. C.J., (Tjoflat, of whom were associated with the coun- con both

grounds, at 1498-1504 id. dissenting part). We curring ty public office. The district court defender’s suggestion for Georgia’s granted the State of experienced attorneys. that both were found banc, vacating panel opin rehearing en eight years experience had more than Dаvis (11th Zant, Cir. 11 F.3d 139 ion. v. practice; he also had served as private 1993). Attorney, as District Attor- Assistant District years Superior ney, and for six as a Court RELIEF STAGE 1. DENIAL OF GUILT prosecuted and judge. Id. He had both stage guilt affirm the denial We cases, criminal but before Waters’ defended panel the reasons set out relief for capital case in trial Davis had not handled 1490-92, n. F.2d at opinion, 979 post-Furman Georgia, 408 U.S. agree with subject qualification. We to one (1972), 33 L.Ed.2d 346 era. Man- S.Ct. stage guilt panel’s holding that Waters’ years ning had. Less than two before Wa- claims are assistance of counsel ineffective trial, Manning had co-counsel in ters’ been denied because the evidence due to be overwhelming can guilt that Waters was so capital in which the Georgia another ease any of claimed prejudice from not show obtaining defense succeeded a sentence of guilt counsel at shortcomings of his imprisonment instead of death. life However, just stage. at 1490. two sen Id. proceeding court and stating, express decline to The state collateral tences before “we performance of opinion an on whether the rejected the district court Waters’ claim that guilt-innocence Manning Davis and as ineffective assistance of he had received objective phase actually an did fall below stage. panel counsel at the sentence 1491, reasonableness,” id. at standard of majority It con- reversed the district court. opinion that panel expressed nonetheless an cluded, argues, there are guilt stage assistance claims ineffective constitutionally significant shortcomings five merit,” A court “are not without id. at 1490. performance of Waters’ trial counsel at may performance prong decline reach the stage. 979 F.2d at 1492-97.2 the sentence if of the ineffective assistance test convinced explain In our conclusion that order to Wa- satisfied, prejudice prong cannot be has failed to establish that he received ters 668, 697, Washington, Strickland v. 466 U.S. 2052, 2069, (1984), assistance of counsel at sentenc- 104 S.Ct. 80 L.Ed.2d 674 ineffective apparently panel and that is what the intend ing, alleged will discuss those five short- we ed to do. Its to the claims as “not reference comings in turn. may without merit” have been inadvertent. event, adopt holding that relief we A. THE THAT COUN- CONTENTION stage properly guilt denied as to the SHOULD HAVE ELICITED AD- SEL be ineffective assistance of counsel claims DITIONAL MITIGATING CIRCUM- prejudice cause Waters failed to establish the component, question reach the EVIDENCE FROM THE but we do not STANCES of whether those claims otherwise would MEDICAL EXPERTS have had merit. alleged shortcoming The first performance in identifies counsel’s is their II. DENIAL RELIEF THE OF ON SEN- TENCE STAGE INEFFECTIVE AS- experts failure to elicit from the medical who SISTANCE OF COUNSEL CLAIM mitigating cir testified all of the conceivable begin by differing cumstance evidence. We represented Waters was at trial two Jr., contention, attorneys, Manning, premise John and Don with the of this that: Davis Having prevailed stage jointly position, even where there is some on the sentence ineffec- panel, tive assistance of counsel issues before the between the two. difference in elaboration arguments Waters' to the en banc Court on these panel opinion All citations to the are to the essentially holdings panel issues majority opinion. mirror the majority except explicit opinion, reference where simplicity, For the sake of Tjoflat’s opinion Judge is made to Chief concur- part opinion, we will to Waters' our refer ring dissenting part. panel majority's holdings contentions and the

1511 (1990); repeatedly recognized court has that L.Ed.2d Daugherty “[T]his 804 Dugger, v. (11th 1426, Cir.), counsel’s failure to introduce evidence of 839 F.2d 1431-32 cert. de nied, sentencing stage illness at the ren 871, 187, mental 488 U.S. 109 S.Ct. 102 performance constitutionally (1988); ders his or her L.Ed.2d 156 Dugger, Clark v. 834 1561, (11th deficient.” 979 F.2d at 1494. While this Cir.1987), F.2d 1566-68 cert. de has held that the nied, Court failure introduce 982, 1282, 485 U.S. 108 S.Ct. 99 mitigating mental illness circumstance evi (1988); L.Ed.2d 493 Dugger, Foster v. 823 can, circumstances, dence in some amount to (11th Cir.1987), denied, F.2d 402 cert. counsel, e.g., ineffective assistance of Blanco 1241, 2915, U.S. 108 S.Ct. 101 L.Ed.2d 946 Cir.1991), (11th 1477, Singletary, v. 943 F.2d (1988). Our decisions are inconsistent with — denied, U.S.-, rt. 112 S.Ct. any notion that present ce counsel must all — 2282, denied, 119 L.Ed.2d and cert. mitigating evidence, available circumstance -, U.S. S.Ct. 119 L.Ed.2d 213 or all impairment available mental illness or (1992); Armstrong Dugger, v. 833 F.2d evidence, in order to render effective assis (11th Cir.1987), 1432-34 we have never held See, tance of stage. counsel at the sentence present must that counsel all available miti Zant, e.g., (“[T]ri Stevens 968 F.2d at 1082 gating general, circumstance present al counsel’s mitigating failure to evi mitigating all mental illness circumstance evi per dence is not se ineffective assistance of particular, dence order to render effec counsel.”). contrary, tive assistance of counsel. To the The lesson to be drawn from our Supreme Court and this in a num Court performance decisions is not that counsel’s performance ber eases have held counsel’s always, usually, or even deficient if counsel constitutionally to be no miti sufficient when present fails to mitigating available circum gating circumstance evidence at all was intro stance evidence. isNor the lesson that the duced, evidence, though including even such presentation of some circumstance relating some to the defendant’s mental ill always per evidence will insulate counsel’s impairment, E.g., ness or was available. being formance from condemned as ineffec 168, 184-87, Wainwright, v. Darden 477 U.S. Instead, tive. our decisions teach that 2464, 2473-74, 106 S.Ct. 91 144 L.Ed.2d performance whether counsel’s is constitu Zant, (1986); 1076, v. Stevens 968 F.2d tionally depends upon totality deficient — (11th Cir.1992), denied, 1082-83 cert. U.S. through the circumstances viewed a lens -, 1306, 122 (1993); 113 S.Ct. L.Ed.2d 695 shaped by presumptions the rules and set 696, Dugger, Francis v. 908 F.2d 702-04 Washington, down in v. Strickland 466 U.S. (11th Cir.1990), denied, 910, cert. 500 U.S. 668, 2052, (1984), 104 S.Ct. 80 L.Ed.2d 674 1696, (1991); 111 S.Ct. 114 L.Ed.2d 90 Stew progeny. and its (11th 851, Dugger, v. art 877 F.2d 855-56 denied, Cir.1989), 962, cert. presumptions, 495 U.S. 110 Under those rules and “the 2575, petitioners S.Ct. 109 L.Ed.2d 757 In an proper cases which habeas can larger upheld ly prevail ground even number of cases we have on the of ineffective assis sufficiency performance counsel’s tance of counsel few are and far between.” circumstances, these, (11th Zant, 384, Rogers such as where counsel v. 13 F.3d 386 Cir. 1994). presented mitigation evidence in but not all That result is no accident but instead evidence, policy available and where some of the flows from deliberate decisions the Supreme omitted evidence concerned the mandating defendant’s Court has made impairment. E.g., “[jjudicial scrutiny mental illness or performance Jones v. of counsel’s (11th 1020, 1028 Cir.), deferential,” Dugger, highly 928 F.2d cert. prohibiting must be denied, “[ijntensivé 875, 216, scrutiny rigid 502 U.S. 112 S.Ct. 116 of counsel and re (1991); Dugger, quirements acceptable L.Ed.2d 174 Card v. 911 assistance.” (11th 1494, 1508, 1511-14 Cir.1990), Strickland, 689-90, F.2d cert. at at 466 U.S. 104 S.Ct. — denied, -, 121, Supreme U.S. 114 126 S.Ct. 2065-66. The Court has instructed (1993); Dugger, begin any inquiry L.Ed.2d 86 Bertolotti v. 883 us to ineffective assistance (11th 1503, Cir.1989), strong presumption F.2d 1515-19 cert. de with “a that counsel’s nied, 1031, 3296, range 497 U.S. 110 S.Ct. 111 conduct wide of reason- falls within the

1512 Strickland, they made a rates counsel’s assistance.” professional able accord, 2066; to introduce addition- decision not at deliberate at 104 S.Ct. 466 U.S. at that F.2d circumstance evidence Singletary, al v. e.g., Atkins Cir.1992) (“We always (11th pre- beginning of the sentence stage. also should At the performance strongly that counsel’s stated to trial counsel proceedings, the court sume -”). Be- adequate right place “You have the before was reasonable that: perfor- acceptable constitutionally Court, jury, any mitigating cir- cause before the defined, instead narrowly mance is not wish to.” Davis re- cumstances that petitioner range,” a encompasses a “wide sponded as follows: strong presumption of seeking to rebut Court, the defense May please As we burden. a difficult effectiveness bears pro- right it has the understands that explained: have evidence, however, we do not further duce nothing with what the to do The test has present at this further evidence to have done. Nor is lawyers would have best intend, rather, rely on the time. We good lawyers would most test even what already in the that’s been offered evidence some whether We ask have done. in the admitted into evidence case and trial could have lawyer at the reasonable hearing jury. And we presence and circumstances, acted, as defense right jury only the to address the reserve are not at trial.... We counsel acted subject sentencing phase on the lawyers’ perfor- grading interested in this case. mances; in whether the are interested we fact, trial, in worked process adversarial present any additional did not The State adequately. stage, Dur- either. evidence at the sentence stage closing argument, F.2d 1220-21 Singletary, ing his sentence White Cir.1992). (11th the facts of turn now to that the would We Davis reminded court did, reaching whether some a sentence charge, this case in order to determine as it attorney have acted consider all of the reasonable could verdict the should guilt stage, attorneys did in the circumstances at the includ- these evidence submitted ing mitigating this trial. circumstance evidence. ar- sentence, guing a life Davis relied exten- Men- Introduce the Decision to sively stage concerning guilt on the tal Evidence at Guilt Illness mental illness. Waters’ Stage certainly lawyer could have an insani A reasonable presenting In the course of attorneys trial, made the tactical choice these two ty presented a sub defense at counsel lawyers for trial mitigating did. There is much wisdom illness stantial amount of mental enough adage leaving well alone. They present about did not circumstance evidence. of stage Having presented substantial evidence any sentence additional evidence at the problems, counsel evidentiary serious mental they explained at the Waters’ for reasons subject required not to defense wit hearing testified that were in state court. Davis stage to another round of cross-examina they presented guilt all of nesses had at the required present to helpful to tion. Nor were counsel they felt would be the witnesses witnesses, words, if they evidence. Which sentencing. In his redundant Waters them, call, any, to call is the penalty phase, and when nothing at the offered new decision, strategic and it is one put epitome in our of a thought “because I that we had seldom, ever, guess. if second phase.” that we will guilt/innocence whole load in the Kemp, 735 F.2d 404 See Solomon v. Manning explained that Cir.1984) (“While (11th attorneys may dis presented at the sentence would have been many particular or what already guilt agree as to how stage presented had been at the call, out of such is the stuff strategic not witnesses stage, so made a decision denied, made.”), cert. 469 testify again to which trials are to call the same witnesses 952 83 L.Ed.2d transcript U.S. S.Ct. opinions. the same facts and The stage proceedings corrobo- of the sentence reactions.” his own actions and Mitigating fear about Illness Cir- Mental Leeumberri, to Cureton Dr. whom Introduced Lorenzo Evidence cumstance Stage diagnosed “schizophrenia, Waters referred

the Guilt schizophrenia type” and defined paranoid that counsel should Waters contends per- [a that “affects as a mental disease mitigating circum presented additional have Dr. Le- thought and his behavior.” son’s] begin consideration evidence. stance We Mellaril, an prescribed even cumberri cir mitigating by discussing issue Miguel powerful anti-psychotic. Dr. more uncover and counsel did cumstance evidence Bosch, psychiatrist who exam- the forensic said, “[t]he court As the district present. agreed with after his arrest ined Waters the record establishes found and state court schizophrenia. diagnosis paranoid investigated petition extensively that counsel impor- testimony emphasized the Bosch’s condition, as to evidence both mental er’s medication, anti-psychotic tance of Waters’ time state at the mental petitioner’s stopped taking agreed if history that Waters psychiatric and as to his crime might have become F.2d at 1498-99 his medication See also treatment.” Bowman, Jerry “acutely C.J., concurring part psychotic.” and dissent (Tjoflat, Waters, investiga examined testi- extensive who ing part). psychologist Counsel’s stage, guilt stopped taking counsel his bore fruit. At tion fied experts who testified the murders. called six mental health at the time of medication physician problems: Torre, ques- mental who about Waters’ Dr. De La Even Hosea Waters; psycholo treating agreed schizophrenia diagnosis, who had been tioned the nurse; psychia short, and three psychiatric gist; mentally ill. that Waters rec also introduced medical Counsel long-term trists. mental evidence of there was history of documenting mental illness, ords enough prompt two sui- serious necessary to detail the illness. It of the medi- attempts and the failure cide state of mental extensive evidence There was designed to control it. cation through presented counsel circumstances testimony the fact expert disputed no Instead, we documents. these witnesses and mentally There was ill. that Waters summary from Waters’ quote following testimony that said Waters was expert no Court, which belies to this own brief “insane.” pre were ineffective in that counsel claim (record 37-38 En Bane Brief at Petitioner’s mitigating circumstance senting mental state omitted; original); alterations references evidence: C.J., (Tjoflat, F.2d at 1498-1500 see also 979 de- jurors’ decision that the Despite the dissenting part) concurring sub- not “insane” there was fendant was the six men- (summarizing trial seriously that Waters stantial evidence defense). expert witnesses for tal illness Indeed, all of the medical mentally ill. six any case referred us Waters has agreed that experts who testified counsel who concluded that we have which illness, of mental from some form suffered much mental state presented this for active treatment and Waters was under was ineffective circumstance evidence years pre- four schizophrenia for at least failing present more. Lewis, Wiley the Dr. ceding the murders. first Wa- general practitioner who treated Illness Miti- Mental The Additional 3. “a schizophrenia distinct ters considered gating Wa- Evidence Circumstance powerful prescribed the possibility” аnd Been In- Have ters Contends Should medication, Thorazine. Sar- anti-psychotic troduced Cureton, who psychiatric nurse adell at- practice petitioners It is common re- beginning in 1978 monitored Waters affi- submit tacking death sentences to their depressed him fearful membered say they could who davits from witnesses potential for vio- his about himself and mitigating circum- supplied additional have was testified Waters lence. Cureton called, or, if evidence, they had been dis- stance messages that were “getting from God called, asked had been they great turbing him deal [and he] 1514 could exception. examples As of how counsel This case is no

right questions. better, affidavits, artfully points out that have done Waters of such But the existence witness, Jerry be, psychologist may usually proves since the trial the though they drafted Stewart, has an affidavit excep Bowman submitted significance. This case is no little of saying opinion in her Waters’ mental That other wit respect, in that either. tion have affected his conduct on the or other testi illness would could have been called nesses day opinion in usually of the murder and her would mony proves at most elicited for him to have been that with the luxu have been consistent wholly unremarkable fact day. hallucinating that See 979 F.2d at opportunity to focus re ry of time and the witness, record, only opinion of that who had parts a made The specific sources inevitably degree psychology in and a mas identi bachelor’s post-conviction counsel will counseling, contradicted performance prior degree ter’s fy shortcomings in the Bosch, before, psychiatrist, opinion ret of Dr. “[i]n As have noted counsel. we no connection may always identify who testified that he found rospect, one shortcom 1287, Francis, killings con 1302 between the and Waters’ mental ings,” Cape v. 741 F.2d (11th denied, 911, that, Cir.1984), opinion, 474 dition and his cert. U.S. (1985), 281, psychotic” acting and was “not under L.Ed.2d 245 “not 106 88 S.Ct. compulsion” on the influence of a delusional perfection is not the standard of effective murders; instead, day of the Dr. Bosch assistance. testified, of his behavior.” “aware widespread tactic of attack The use of the carefully crafted statement in Stewart’s “might ing by showing what trial counsel affidavit, that would be consistent with “[i]t proves nothing clearer have been” is for him to what I know of his condition have hindsight except perhaps the rule that than — hallucinating,” open possibili leaves been judge performance trial counsel’s we will ty that it also would be consistent with what See, hindsight. e.g., v. through Strickland she knew of his condition for Waters not to 668, 689, Washington, 104 466 U.S. S.Ct. hallucinating have been when he murdered (1984) (“A 2052, 2065, 80 L.Ed.2d 674 fair Bosch, the two women. Dr. who examined attorney performance requires assessment of year Waters the same he committed the every effort be made to eliminate the crime, testified аt trial that Waters had not distorting hindsight.”); Atkins v. effects years. hallucinated two or three (11th Cir.1992) Singletary, 965 F.2d (“Most Moreover, important, is there no factual we must avoid second- predicate in guessing performance. counsel’s As is often Stewart’s affidavit or the trial said, ‘Nothing easy conelusory for her is so as to be wise after record statement about ” (Citation omitted.)); possibility v. of hallucinations at time of the event.’ White (11th murders, Singletary, entire course of ‍‌‌​​​​‌‌​​‌​‌​​​​​‌​‌​​​​‌​‌‌‌​‌‌‌​‌‌‌‌​​‌​‌‌‌​​‍con- 972 F.2d Cir. (“Courts 1992) day, pre also at the start duct on that which he described should testimony, always sume avoid confession as well as in his trial effectiveness should having guessing second with benefit of hind inconsistent with his been hallucinat- sight.”); ing committing Thompson Wainwright, 784 F.2d while he was the crime. Wa- (11th Cir.1986) (“Hindsight, how ters described in detail his activities in the ever, appropriate perspective preceding is not for a hours the murders of Ms. Paseur effectiveness.”). Culpepper. observing court to examine and Ms. He recounted counsel’s people fishing. We reiterate: “The mere fact that other a sailboat the river and two might driving witnesses or that He his car onto a narrow have been available described lane, ladies,” testimony might seeing other elicited dirt the “two Ms. Cul- have been Paseur, pepper climbing from the incline those who testified is not a sufficient and Ms. car, ground prove Culpepper’s of counsel.” from the beach to Ms. red ineffectiveness (11th Dugger, parked Foster v. 823 406 which was on the dirt lane. Waters F.2d Cir.1987), denied, pulling alongside Culpep- car cert. 108 recalled his Ms. U.S. 2915, 101 (1988), quoted per’s. pulled gun that he a S.Ct. L.Ed.2d 946 He testified Then, pockets. Singletary, pair F.2d a of handcuffs from his Atkins v. at 960. testified, just “I they control, told them that anger, depression, great and his —I going go with me. And I marched need for drug continuous therapy in strong some, them across something like a hundred doses.”). all view of the evidence trial yards, to a wooded area where its real presented counsel about Waters’ mental ill- brushy. guess my And sex; I intentions was ness, will we not hold counsel ineffective I don’t know.” Waters recalled: ordering because he get did not Dr. Bosch to utter the Culpepper Ms. to handcuff herself to Ms. magic words “serious mental disorder.” Paseur; ordering Culpepper Ms. to undress down;

from the waist orally sodomizing As for the contention that trial According Waters, her. after he allowed counsel was failing ineffective for to ask Dr. Culpepper dress, Ms. “her and Miss Pas- express Bosch to opinion that Waters’ eur both at the same time lunge, made a and mental state should be considered a “strong know, just don’t gun had the on them —I factor,” mitigating neither psychiatrist a nor pulled and I trigger. And I believe any other expert mental health competent is I struck Culpepper, Mrs. and then as she fell express opinion an about partic a whether back, I shot Miss Paseur.” Waters’ testimo- ular set of facts constitutes a mitigating cir ny equivocal belies the suggestion in Stew- and, so, cumstance if whether it a strong post-trial art’s affidavit that Waters might one. We will not hold counsel ineffective for suffering have been from hallucinations when failing to ask a express witness to opinion an he committed the murders. If Stewart had that would province invade the judge at testified trial that Waters killed because jury. (Tjoflat, C.J., Id. concurring in hallucinations, he was suffering her credibili- part (“I and dissenting part) cannot be ty probably would have been undermined to that, lieve even if so, Davis had tried to do such an extent that it have would rendered prosecutor and the judge trial would testimony worthless the give she did for the have allowed Davis to elicit from Dr. Bosch defense. The failure to adduce additional other witness what would amount to a testimony from her was not ineffective assis- mitigation.”). instruction on Finally, as tance. for the contention that counsel was ineffec Trial counsel is also faulted for not failing tive for to ask express Dr. Bosch to an eliciting Bosch, from Dr. one of the opinion three as to whether Waters had a “criminal psychiatrists defense, who testified for the type personality,” no suggested one that Wa testimony: “that Waters a has ‘serious ters, men who had jailor worked as a at tal disorder’ that should be considered a Waycross city jail and whom there was no ‘strong mitigating factor’ opinion and his history, criminal was a “crimi appear Waters does not to have a ‘criminal type nal personality.” It undisputed type personality.’” 979 F.2d at 1494. We that Waters is law-abiding except, citizen discuss the parts of charge three against course, for the fact that he kidnapped, separately. trial counsel As for the first abused, and two murdered women. part, the contention that trial counsel should gotten have Dr. Bosch to use the term “seri Experts’ 4. The Medical Awareness of disorder,” ous mental present even Waters’ They Testifying What Be Would counsel concedes that trial pres counsel did About ent “substantial evidence that Waters was seriously mentally ill.” that, Another Petitioner’s En contention is Banc “the evi presented Brief at 37. dence quoted pp. 1513-14, We have at pro Waters’ state habeas above, summary ceeding established experts Waters’ own brief of that the medical that extensive evidence. had no idea Some evi Davis intended that testify dence mitigating Dr. Bosch. as to during See circumstances (Tjoflat, C.J., 979 F.2d at guilt-innocence 1500 n. 3 phase.” concur 979 F.2d at ring (“Dr. dissenting part) 1494. Trial counsel called at guilt stage Bosch, example, testified length six experts about medical gave who testi extensive Waters’ paranoid-schizophrenic mony condition: in nature. Waters’ feelings persecution, his of anxiety, present loss of counsel submitted affidavits from 1517-18, infra, pp. and p. supra, three, expert see those medical three, of and upon reliance specific to and reference the Davis’ them stated None of

witnesses. closing and the testi- mitigation argument, in to intent of counsel’s was .unaware witness Manning at the state mony of both Davis and cir- testify mitigating about him or her have strategy, we hearing their Instead, evidentiary about guilt stage. during the cumstances disagree. affidavits, that coun- Bosch stated Dr. possibility me the with discussed sel “never the contention disagree with We also phase”; Dr. penalty testifying at the my of that, the existence had no idea about “Davis asked to he “was not stated Lecumberri Lockett, Furman, progeny; he and their of phase”; and Stewart penalty testify at the necessity introducing of idea of the had no me, with “never discussed that counsel stated arguing the balanc mitigating evidence and testimony during recall, my any of use as mitigating circum ing aggravating and of Each of those state- phase.” penalty F.2d sentencing hearing.” 979 at the stances coun- entirely with consistent trial ments joined throughout Davis 1494. mental putting all of the strategy of sel’s Manning, an assistant representation Don guilt stage. At the in at illness evidence defender, just years before public who two that he hearing, Davis testified habeas state as co-counsel another trial had served this with mitigating circumstances had discussed ease. That trial had capital murder Georgia Dr. Bosch and asked trial Dr. Bosch before conviction, Manning in a murder resulted subject. Manning to that himself address in obtain had succeeded and his co-counsel and direct- trial he Davis that before testified imprisonment instead of ing of life a sentence expert each medical the attention of ed credulity It strains for the defendant. death Thus, the evi- mitigating circumstances. having recently and success suggest miti- counsel discussed indicates that dence post-Furman capital fully participated in a medi- with each gating circumstances Manning not have Georgia, would case may not though counsel experts, cal even Furman, Lockett, and related known about possi- of them the with three have discussed law, his that he would have hidden knowl penalty phase. testifying at the bility of their Furthermore, case. edge from Davis this coun- mitigating circumstance mitigating circumstance evi quantity intro- fact sel intended introduce introducing, that Davis succeeded dence event, even guilt stage. duced at the specifically re closing argument his which experts that trial if knew none of the medical mitigating circum to and discussed ferred testify as to intended that he or she counsel stances, Manning testimony of and the during guilt mitigating circumstances proceeding, estab at the state habeas Davis ineffec- phase, that fact not constitute would trial were aware that both counsel lishes testify tive assistance counsel. Witnesses punishment law and the post-Furman capital a sine by answering questiоns, and it is not mitigating function of circumstances. an attor- qua non of assistance that effective ney strategy with reject grounds discuss trial witnesses. factual on Wa We argument that trial specific more coun ters’ of Post-Fwr-

5. Counsel’s Awareness difference be not understand the sel did Importance man Law and of ill insanity and mental as defense tween Mitigating Evidence Circumstance mitigating as a circumstance. Davis’ ness evidentiary court “ap- at the state hear trial It is also counsel contended However, ambiguous point.3 ing on establish- pears focused at all have us with no at trial leave doubt 979 F.2d at actions ing mitigating circumstances.” illness evidence mitigat- that he knew mental quantity of 1494. In view the insanity of’establishing short that falls presented, counsel ing circumstance evidence Moreover, Dr. he had talked with Davis testified Although answered in affirmative Davis Bosch, psychiatrist, cir- thought "about leading question stating that he had wrong,” right given more than insanity would be cumstances same instructions Georgia trial, recognized "that the test flatly he that he testified insanity denied both halves of the right wrong test.” applied. is the thought legal the same standard

1517 course, mitigating circum- of hold counsel ineffective for not is nonetheless defense being sentencing confused about the law. evidence relevant stance virtually thing, one all or all of decision. For THE B. CONTENTION THAT of illness evi- COUN-

the substantial amount mental SEL SHOULD HAVE ELICITED AD- presented dence counsel was evidence DITIONAL mitigating cir- MITIGATING CIRCUM- established mental illness as a cumstance, STANCE insanity. Every one FROM WA- but not of EVIDENCE TERS’ experts by the SISTERS the six mental health called mentally defense testified Waters was constitutionally signifi The second ill, that he but none of them testified did shortcoming alleges cant that Waters right and know the difference between performance trial of counsel is their failure wrong, Georgia insanity a test for “to mitigating elicit wealth of available 1513-14, pp. supra. defense. See As Davis evidence from Waters’ sisters.” 979 F.2d at evidentiary hearing, testified at the when the eight non-expert 1494. Trial counsel did call “trying began trial he felt he was the case to testify behalf, witnesses to on Waters’ includ get save this man’s life rather than a not minister, ing employer, his former his his closing argument guilty verdict.” Davis’ sisters, brother-in-law, three his and his wife. stage sentence establishes that he knew nice, They quiet, testified that Waters was insanity as a the difference between defense man, religious, trustworthy who cried mitigating as a circum- and mental illness uncontrollably with remorse for what he had jury by determined its stance. After had done, cooperated and who with authorities. guilt stage verdict that was not in- Waters present As even counsel concedes: Waters’ sane, argued stage Davis at the sentence guilt/innocence phase At the of Waters’ appropriate a life sentence was nonetheless body trial a substantial of evidence was illness, because of Waters’ mental which the “constitutionally introduced which was rel jury already insanity. had found fell short jury. capital sentencing evant” to a Evi predomi dence of Waters’ mental illness As for contention that Davis had no nated, testimony but there also con necessity arguing balancing idea nature, quiet cerning religious his his devo aggravating mitigating circumstances tion, remorse, cooperation his his with au sentencing hearing, agree that at the we history and his of suicide at thorities Georgia’s post- did not. Neither do we. tempts and failed medicine. capital punishment Furman statute does not (citation provide balancing aggravating and Petitioner’s En Banc Brief at 24 omitted). See, mitigating e.g., Barclay argues that tri- circumstances. references Florida, 939, 954, 3418, gotten testimony more v. 468 U.S. 103 S.Ct. al counsel could have (“Unlike (1983) 3427, sisters about his troubled child- 77 L.Ed.2d 1134 Waters’ illness, statute, however, hood, history Georgia re of mental and his Florida law statutory ag Through quires the sentencer to balance lack of violent behavior. against mitigat experts, put counsel did

gravating circumstances all of one of the medical circumstances....”); ing Stephens, v. evidence before the about Waters’ alco- Zant 862, 873-74, 2733, 2741, “rough and his childhood.” As 462 U.S. 103 S.Ct. 77 holic father State, (1983); history lack of a of violent behav- L.Ed.2d 235 Ford v. 257 Ga. (1987) (“In 258, ior, 461, suggested that no one ever 360 S.E.2d state, juries ag kidnapped before he the two required are not to balance been violent them, women, they against mitigating handcuffed and while gravating circumstances denied, circumstances.”), both. helpless, sodomized one and shot cert. 485 U.S. Wainwright, F.2d 108 S.Ct. 99 L.Ed.2d 285 Geor Cf. Griffin (11th Cir.1985) (“Surely, is not provides single ag counsel gia’s statute that once shown, testify to facts gravating aggrava required all to call a witness circumstance is nature when the ting circumstances are rele such as lack of violent rejected approach and has found jury, are has such an vant and considered murder.”), not, guilty of vacated weighed against the defendant is each other. We will 1518 diagnosis appropriate on the to [and] 106 illness grounds, 476 U.S. S.Ct.

on other symp- (1986), given behavior and reaffirmed, 874 be attached L.Ed.2d 650 90 Oklahoma, 68, 81, Cir.1989). (11th v. 470 U.S. toms.” Ake F.2d 1397 1087, 1095, 84 L.Ed.2d 53 105 S.Ct. not ineffectiveness is The test for result, counsel will As a sometimes defense more; per have done counsel could whether way paint picture of more than one a have required. E.g., Atkins v. Sin is not fection diagnosed mental illness. Dr. DeLatorre (11th Cir.1992) 952, 960 gletary, 965 F.2d “anxiety as neurosis” Waters’ mental illness (“Trial lawyer enough. A can counsel did schizophrenia,” “paranoid which instead of every something more in always do almost diagnosis Dr. Lecumberri and Dr. was the requires good But the Constitution case. However, gave. trial counsel elicited Bosch performance.”). than maximum deal less testimony that from Dr. DeLatorre criminal test the best Nor is the whether “there’s not too much difference” between аttorneys might done more. defense have illness, types two of mental and that Instead, some reasonable the test is whether anxiety people suffer from neurosis who acted, attorney in the circum could have “react different than normal mental illness stances, what these two did—whether as actions, people, exaggerate become [their] range of rea did was within the “wide neurosis, Anxiety violent at times.” the wit- assistance,” Strickland professional sonable explained, symptoms of ness involves “mixed 668, 689, 104 Washington, 466 U.S. S.Ct. illnesses, types different of mental but the (1984); 2052, 2065, White v. 80 L.Ed.2d 674 always good person is contact with reali- (11th 1218, 1220 Cir. Singletary, 972 F.2d ty.” Being good reality contact with 1992). question in the affir answer that We periods apparently of time is not inconsistent mative. paranoid schizophrenia. with Dr. Lecumber- ri, paranoid who testified that Waters was THAT COUN- C. THE CONTENTION schizophrenic, “in also testified he was HARMFUL EVI- SEL PRESENTED good psychotic” “not contact” and when DENCE last saw him before the murders. It is tell- constitutionally significant short- The third ing present that even Waters’ counsel lists coming performance alleged in counsel’s testimony part of Dr. DeLatorre’s testimony was presentation be the “that “substantial evidence that Waters was seri- only very devastating to harmful but was ously mentally ill.” En Banc Petitioner’s plea his client’s for life.” 979 F.2d at 1494. Brief at 37. particulars specified, and will Three are we address each turn. testimony of Dr. DeLatorre was not harmful to counsel’s effort to obtain a sen- Calling 1. as a Dr. DeLatorre Witness tence less than death for Waters. It was First, presented from that Dr. DeLa the evidence counsel is asserted torre, experts perspec- mental health with different psychiatrist, should never have been diagnoses, agreed called “entire testi tives and all of whom to the stand because his ill- mony was harmful to 979 F.2d at Waters suffered from a serious mental Waters.” harmful, said, Particularly Being reality with it is ness. contact does illness, out a mental nor does it Dr. DeLatorre’s that Waters was rule serious mitigat- good reality preclude finding of mental state contact with suffered attorney anxiety paranoid ing circumstances. A reasonable neurosis instead having schizophrenia. medical could have decided that Dr. DeLa- Id. None of the six torre, experts good not in the Medical Director of the Forensic testified that Waters was Hospital, testify reality contact with at the time of the mur Division at the Central State mentally important ill disagreement on ders. There was little or no enough outweigh testimony that disagreement his Wa- that issue. There was about was, illness, from, good despite his mental mental suffered ters which illness Waters course, strategic widely reality. Such are the “psychiatrists disagree but of contact with upon that trial counsel are called frequently on what constitutes mental decisions Testimony cannot, not, guess 3. Some of Dr. Bosch’s and will second make. We Zant, See, e.g., Hance v. decisions. such Trial counsel is also faulted for Cir.) (11th (rejecting claima F.2d bringing opinion out from Dr. Bosch the presenting counsel was ineffective his fulfill Waters “attacked victims to testimony psychologist which “contained of a desire and that there was no relation sexual elements”), ship and unfavorable between Waters’ mental illness and the both favorable — U.S.-, 317, 126 killings.” F.2d at Dr. Bosch denied, 1495. testi 114 S.Ct. cert. paranoid schizophren fied that Waters was a L.Ed.2d 263 ic had from mental who suffered that illness twenty years. for more than He testified Calling as a 2. Waters Witness if without his medication— that Waters went as other evidence indicated he had —Waters’ allegedly specification of The second worsen, leading could condition adverse by counsel was presented evidence harmful symptoms ranging from increased nervous testimony. decision to own Waters’ acute, psychotic Dr. ness to “a real brain.” the stand cannot be consid have Waters take Bosch also testified about Waters’ two sui reasonable, contended, because ered attempts him cide the first one he shot —in jury any testimony give not did “Waters’ stomach, in the one self second he already that not in the rec information poison. swallowed Underlying that 979 F.2d at 1495. ord.” during It is true that re-direct examina- assumption is an that conclusion tion, Dr. Bosch testified that he could not testify is to a defendant should ever reason find connection between mental Waters’ convey factual information that cannot other However, and the crime. Dr. Bosch illness counsel presented. Skilled defense wise be already during had testified cross-examina- realize, however, putting the defendant that, by prosecutor expert tion in his help “humanize” on the stand sometimes can opinion, at the time of the crime Waters eyes jury. may It be more him in the right wrong, psychotic, knew from was not jury for a to condemn to death a difficult acting was not under the influence a delu- feet from man who has sat on the stand few compulsion, he sional and was aware of what them, eyes, looked them the and talked Thereafter, doing. while trial counsel guilt Trial counsel testified that at the them. attempting favorable evidence to extract life, stage trying to save he was Waters’ examination, during Dr. re-direct from Bosch important jury to see Wa he felt it for the he had referred back to what witness person, as a and that he wanted Waters ters during and reiterated said cross-examination Notwithstanding testify for that reason. no connection that he could find between stand, dangers putting Waters on the crime. But mental illness and the Waters’ on the that he trial counsel “decided balance already testimony to heard his if than to come out better he testified stood during that effect cross-examination. my had he not testified. That was he would testimony during re-direct ex- Dr. Bosch’s judgment in It was a calculated the matter.” opinion that in his Waters’ attack amination strategic Supreme decision. As the Court by women was motivated the desire on the noted, criminal defense has the best “[e]ven also resulted from trial have sex with them attorneys particular would not defend attempt to extract favorable testi- counsel’s way.” in the same Strickland client mony pre- Dr. Bosch had the witness. Washington, 466 U.S. at 104 S.Ct. at- viously Waters’ suicide testified about Attorneys disagree will about whether tempts feelings depression, inade- and the testify particular in a to have the defendant quacy, which motivated them. and confusion right no one answer to that case. There is attempted get Dr. Bosch to Trial counsel most difficult question, which is one testify against actions the two Waters’ capital in a case. cannot counsel faces We by those same mental women were motivated say attorney posi problems. in this He asked Dr. that no reasonable and emotional feeling or the emo- Bosch to “reconstruct the put Waters on the stand. tion would have agree analysis reasoning set with the Kelly felt at the time We tion Bosch, instead, Judge Tjoflat’s dissenting opin- Dr. out Chief crime was committed.” ion, 1501-04, explains why 979 F.2d at which that the crime was motivated said closing argument, stage That sentence the women. counsel’s to have sex with desire defense, strategy, but we as his overall did constitute help well did Moreover, IV that it was harmful. The ineffective assistance. not convinced are overwhelmingly opinion, we hold that the sentence established women, stage jury were not constitution- looking for instructions went them, closing them, ally Because counsel’s ar- restrained oral- deficient. two of abducted one, stripped gument and the court’s instructions are ly and also the other sodomized constitutionally sufficient when considered down. It cannot nude from the waist one constitutionally judge jury separately, they that are also suf- to the have been news together. considered motivated sexual de- ficient when a crime was such event, every misstep any In not or sires. assistance.

miscue amounts to ineffective THE THAT E. CONTENTION COUN- may attorneys who have tried There be some SEL’S HIM FOR SCIENCE” “SPARE mistake, making ever a difficult cases without INEF- ARGUMENT CONSTITUTED it. On the whole—and that is but we doubt FECTIVE ASSISTANCE OF COUN- required judge it—trial coun- how we are to SEL range performance sel’s was within the wide professional constitutionally of reasonable assistance. significant The fifth

deficiency performance in trial counsel’s THAT stage D.THE CONTENTION COUN- said to be that of his sentence THAT closing urged jury FAILED TO ENSURE in argument SEL which he the ADEQUATELY THE IN- spare JURY WAS that could to Waters’ life so be ON MITIGATING CIR- STRUCTED for the ultimate of mankind. studied benefit argument CUMSTANCES The exact words of this and their Judge Tjoflat’s context are set out Chief Waters, According to the fourth con dissenting opinion, F.2d at 979 1501-04. We stitutionally shortcoming in significant coun agree with his conclusion the issue and performance allegedly sel’s is that counsel reasoning. his with jury guid to that “failed ensure the received concerning ance how Waters’ mental illness a to We add few observations what the mitigating could a 979 constitute factor.” with, Judge begin Chief said. To this coun- upon F.2d at 1496. That conclusion is based “spare sel did not invent the him for science” closing ar perceived deficiencies counsel’s argument. It has been used other eases. gument jury instructions. We opinion Wainwright, v. Our Goode 704 deficiencies, reject find no such and we (11th 593, Cir.), F.2d 604 rev’d on other sufficiently jury contention that the 78, 378, grounds, 464 U.S. 104 S.Ct. 78 mitigating informed about circumstances. (1983), L.Ed.2d 187 indicates that a similar jury argument opinion Trial did about miti- was used there. The counsel tell the gating opening part sentencing circumstances. In the of that case also indicates that the jurors ultimately closing argument, judge, persuaded by ag- his told while counsel they gravating copy would receive a of the court’s circumstances to sentence Goode them, death, charge portion give oral a of to and he read did least consideration sparing charge jury closing prospect the oral to the in his of his life for scientific argument. study society. judge portion Included in the he read to benefit The asked in jury sentencing his remarks: “Could not some- instruction thing should consider all evidence submitted at the be learned from Arthur?” Id. at 604. case, any Although opinion including trial of the evidence of our Goode does not address circumstances, argument and that the whether use was ineffective counsel, certainly provide any assistance of it contains no could life sentence for satisfactory reason to them for no reason. hint that it was.

1521 mercy Petitioner has victims. considered courts have three other At least argument that would suggested specific no “spare him for science” use of whether likely assistance the time more ineffective have seemed at argument constitutes 1, 82 Gacy, penalty 103 Ill.2d People v. the death dissuade the counsel. (1984), 391, 1171 cert. petitioner N.E.2d argument 468 Ill.Dec. than counsel’s 1410, 1037, denied, 84 S.Ct. 470 U.S. 105 purpose study. spared be for the should (1985), of coun the main theme L.Ed.2d unavailing, but that argument proved that it would be closing argument was sel’s not demonstrate that bad does than to have study the defendant better avail- argument or that a better one was argument Holding him executed. concluding able. There is no basis and did not judged in context be should the mini- performance counsel’s fell below assistance, the Illinois to ineffective amount mum standard. Constitutional reason counsel Supreme found that Court Welborn, Gacy rel. No. 89 States ex United argu an such ably could have decided that (N.D.Ill. Aug. 1992 WL C under the best one available ment was decision) (record 1992) refer (unpublished case, which involved circumstances (7th Cir.), omitted), F.2d 305 aff'd, 994 ences 82 Ill.Dec. at 432- murders. of brutal series — 269, 126 U.S.-, denied, 114 S.Ct. cert. As the court at 1212-13. 468 N.E.2d L.Ed.2d change facts of said, could counsel crime, with the he was confronted argument “spare him for science” was The argument. Id. making a difficult of task Bieg In State v. used in another case. also in this case. is true The same (1991), enwald, 1, A.2d 172 126 N.J. 594 petition, Gacy habeas filed federal After repeatedly argued that the counsel “defense for the District Court the United States spare ‍‌‌​​​​‌‌​​‌​‌​​​​​‌​‌​​​​‌​‌‌‌​‌‌‌​‌‌‌‌​​‌​‌‌‌​​‍life so jury should vote to defendant’s reached District of Illinois Northern performed on could be that medical research supreme court. conclusion as state same develop a cure for in an effort to defendant argument did not holding that use of the paranoid with personality disorder anti-social assistance, the federal ineffective constitute (Handler, J., traits,” concur 594 A.2d at 202 explained: court district deeply one of ring). argument offended That hearing for five been had court, and judges on that seven-member and emotional about the mental weeks inef found use constituted would have its he Gacy. was needed problems of John What counsel; sharply crit fective assistance him to death. not to a reason condemn “brushed the court because icized and emo- mental Counsel adverted at 202-04. The 594 A.2d the issue. aside” main thrust of the problems, but tional argument, noted the specifically itself court Gacy be sen- should argument was 178, apparently concluded at but 594 A.2d so that he imprisonment to life tenced ineffective use had not constituted its why he had to find out be studied could counsel; was on the reversal assistance had been murders. There committed grounds. entirely unrelated before, and, society unless murders serial “spare Thus, that use of the the contention occur approach, will a different takes inef- argument constitutes for science” him thing.” “Somebody stop this has to again. support finds no assistance counsel fective be studied Gacy should argument This That con- courts. the decisions of other in thing kind of prevent this an effort to in second- hypercritical, also reflects tention simply again, and that happening lawyer of the who strategy of the guessing to death will putting a mass murderer and who had case the trenches murders, may well mass prevent other Writing of a bad situation. make the best that could argument best been the have ago, Judge a decade more than for this Court asked for Counsel also been made. have strategy regard to observed revenge, but Vance argued against mercy and reaching decisions, “position in trial counsel’s unlikely mercy simple appeals to strikingly more advanta- conclusions these prosecution’s re- persuasive against the be court of a habeas than that federal geous no Gacy had himself shown sponse 1522 judges post hoe about his conclusions.” moral sensibilities of do not confine

speculating (11th 955, Zant, range professionally competent the “wide 697 F.2d 970 Stanley v. denied, question Cir.1983), 1219, assistance.” The is not whether the 104 cert. 467 U.S. implications arguments broader of counsel’s L.Ed.2d 372 He ex S.Ct. us, are offensive to in view of but whether all knowledge of local atti plained that counsel’s highly the circumstances and under deferen- tudes, jury, particular and “evaluation review, strategic tial counsel’s decision ‘chemistry’ of the courtroom his sense of the range within the wide of reasonableness— elusive, just intangible fac are a few of the hand, task at reasonableness rea- apparent reviewing to a tors that are not sonableness as a matter of moral values or court, by are considered most effective philosophy. making variety pre of trial counsel Judge trial decisions.” Id. Vance’s reason argument It is said that counsel’s essen Court, ing Supreme when the was vindicated tially gave keep the choice of either later, year that “counsel is ing one instructed us: alive so that he could be studied strongly presumed death, to have rendered ade putting “[cjertainly, him to and that signifi juror quate assistance and to have made all a reasonable could have concluded that cant exercise of reasonable decisions the latter alternative was the more merciful.” professional Actually, judgment,” Strickland v. Wash 979 F.2d at 1497. what counsel 2066; argued ington, keeping at 104 S.Ct. at was that alive U.S. studying society him for the benefit of would acts or omissions “outside wide be, merciful, biblical, socially acceptable, range professionally competent “the assistance” event, thing Christian to do here.” In pur are deficient for ineffective assistance jurors id.; we do not believe that scrutiny per are motivated poses, that our of counsel’s solely by mercy. deferential,” considerations of Jurors “highly formance should be id. might well be motivated more 2065; and, what is best at that counsel’s S.Ct. society than what is best for a man strategic “virtually unchallengea choices are brutally murdering convicted of two women. ble,” 690, All id. at 104 S.Ct. at 2066. It was unreasonable for counsel to have holding those a that use of directions warrant thought juror might at least one in this ease “spare argument the him for science” in this that, persuaded given have been all the harm performance. case did not constitute deficient get Waters had done was time to some judges, lawyers, Some and some other him, good way out and that the to do that argument would not have made the same keep him study. was to alive for One does case, that counsel in this made is not not have to endorse that kind of rationale Supreme recognized the test. The Court has feelings and those in order to believe that representation that because is an art and not strategy might сounsel’s have worked. 979 science, a the best criminal defense “[e]ven J., (Tjoflat, F.2d concurring at 1504 C. attorneys particular would not defend a (‘Whereas dissenting in part) majori the 689, 104 way.” client the at same Id. S.Ct. ty to approach seems be shocked at the at 2065. attorneys Three different defense took, I which Davis am astonished that that might have defended Waters three different approach persuading did not succeed ways, might and all of them have defended juror’ least hoping that ‘one Davis differently him way from the the members of reach.”). strategy The Waters’ counsel have, this Court would but it does not follow work, chose did not but that does not estab any approach an counsel who takes we See, e.g., lish it was an unreasonable one. guilty rendering would not have chosen is (11th 1435, Fleming Kemp, v. 748 F.2d 1452 ineffective assistance. Cir.1984) (“A attorney defense is not ineffec The notion that convicted murderer solely tive because his client is sentenced to possible should be death.”), denied, treated as of utilitarian 1058, cert. 475 U.S. 106 society being 1286, value to (1986); rather than viewed as 89 S.Ct. L.Ed.2d 593 Alvord v. being worthy (11th a human understanding, 1282, for- Wainwright, 725 F.2d 1289 n. 12 Cir.) (“[Trial giveness, mercy, is offensive some counsel] cannot be faulted sim judges. ply succeed.”), See 979 F.2d at But modified, the because he did not

1523 denied, says 956, 105 he killed those die. Your verdict 1486, 469 U.S. cert. 731 F.2d (1984); people. request his that he wants to Romero v. It’s 355, 291 L.Ed.2d S.Ct. Cir.1989) (5th die, 871, you. according to the evidence before F.2d Lynaugh, 884 mercy him (“Had you I to show to the same life sentence ask returned a them, to Ann and Anita. He have been seen as he showed to strategy might well Why mercy. should he be it did not does showed them no move. That brilliant State, range mercy. behalf of the we of reason shown On that it was outside the mean denied, assistance.”), you, cert. state to we no reservations professional have able 1311, asking pun- the maximum 108 L.Ed.2d hesitation 110 S.Ct. 494 U.S. (1990). provided by laws of the ishment as Georgia, all of the evidence

State of under THE OF RELIEF ON III. DENIAL and the law of this case. CLAIM

CALDWELL Ballenger Judge The late Jack W. once said, slept I I that life was “When dreamed stage sentence Because it held that beauty, I I found that but when awoke life granted on ineffective due to be relief was duty.” slept I When dreamed panel did not reach grounds, the assistance beauty, found life was but when awoke district court contention you duty. Let me state to life prosecu denying his claim that erred law, Jury responsi- Georgia is not under stage closing argument at sentence tor’s consequences for the of their verdict. ble Mississippi, 472 U.S. Caldwell violated Jury responsible for the truthful- 86 L.Ed.2d 231 105 S.Ct. Kelly us. of their verdict. That’s ness that claim.4 do reach We himself, under the has Waters sentenced upon focuses two claim Waters’ Caldwell of this case. law and under paragraph in the next last sentences thing you simply do one So we ask put argument. order prosecutor’s evidence, and thing only. one Under context from back into the those sentences law, writing your time in take under them, quote we has taken which punishment these verdicts. Have out paragraphs prosecu- last three entire delivered, and let to meet that which argument. tor’s speak long, loud and clear to your verdict your you I call on to follow again, So more, Kelly say no Wa- Kelly to return took as a Juror oath Glynn County, Georgia. ters. Not truth under the speaks that the verdict will that the Court All the instructions you heard and under the law evidence that at you punishment fix his give you, when lives, Kelly took two Waters of this case. death, why, please state the reasons say beings. innocent fellow human two You every one of them. each and state the you may Kelly conclude Waters was Anita feel will can be assured that Ann He his own misfortune. architect of you. justice prevailed. We thank that has it; it; and he killed he planned schemed prosecutor had argument, the in his Earlier essence, un- thing. He did his them. jury: the told had sen- case he the evidence der your verdict say you to that I want to out his himself. He written tenced has important, you is most he, form that write out in his own And even verdict. own Jury to write requires the because the law words, spoke he to in his own when words out, under all punishment fix and set the sister, Judy, according to his he said and de- you have heard that wife, people, I the evidence if I killed those want own (1994),. 783, 788-89, 47 127 L.Ed.2d Teague S.Ct. probably v. 114 on claim is foreclosed This Teague 1060, Lane, 288, to decide the discretion whether we have 103 L.Ed.2d 489 U.S. 109 S.Ct. merit, clearly so lacks (1989), Sawyer Because the claim non-retroactivity grounds by issue. 334 2822, 241-45, denial of Smith, to affirm the our we exercise discretion 110 S.Ct. 497 U.S. v. grounds. However, Teague 2831-33, relief on the merits instead L.Ed.2d 111 193 however, imply, that it would argue We do not mean to plead or the State did because Court, to decide an abuse of discretion have been in this in the district court or defense , issue, —- U.S.-,-, Teague instead. Farley Schiro v. under termine, case, DENIAL RELIEF under the evidence of this IV. OF ON CLAIMS your RELATING TO IN- you affix verdict. ask that SENTENCING for We STRUCTIONS you punishment fix and set his at death. Waters raises two related but distinct is that two sentences of contention regarding jury claims instructions prosecutor’s argument undermined the First, stage sentence of his trial. he main- responsibility:

jury’s “Under Geor- sense stage tains that the sentence instructions gia jury responsible a is not for the law erroneously incorporated guilt stage in- verdict”; and, “Kelly consequences of its has instruction, sanity effectively precluding the under sentenced himself under the laws and jury considering mental health evidence the evidence of this case.” Those two state- mitigation unless such evidence was found ments, maintains, unconstitutionally less- legal insanity. to meet the definition of Sec- jury’s responsibility. ened sense ond, argues Waters the instructions those two statements viewed out of Whether adequately jury faded to communicаte to the might jury’s context have undermined the meaning mitigating and function of cir- responsibility sense of is an issue we need reject cumstances. We discuss and each challenged not decide. The statements were out, claim in turn. For the reasons set we not uttered or heard in isolation. We will conclude that is not entitled to relief consider them in the context on either claim. prosecutor made. It is clear to us that the jury arguing to the A. INCORPORATION OF GUILT STAGE facing a death sentence because of what Wa- INSTRUCTIONS done; ters had he was the one who had sentencing jury A must be al gotten predicament himself into the he was mitigating lowed to consider relevant evi in; jury sorry and the should not feel dence, including evidence of mental illness him, but for his victims. Instead of under- constituting legal falls short of excuse. mining jury’s responsibility sense of Oklahoma, Eddings See v. 455 U.S. 113 verdict, argu- prosecutor’s its sentence -16, 869, 876-77, 102 S.Ct. L.Ed.2d ment, whole, importance as a stressed the (1982). Jury permitting instructions full con jury’s urged jurors verdict and sideration of circumstances estab follow their oath and “return verdict that lished the evidence are essential if the speaks the truth under the evidence that give is to response reasoned moral heard and under the law of this case.” character, background, the defendant’s “ Moreover, ‘[t]o establish a Caldwell viola- Penry crime. Lynaugh, 492 U.S. tion, a necessarily defendant must show 327-28, 109 2934, 2951, 106 S.Ct. L.Ed.2d 256 jury improperly the remarks to the described (1989). An instruction is if erroneous there ” assigned jury by the role local law.’ is a reasonable likelihood that the has — Oklahoma, U.S.-,-, Romano v. applied way prevents it in a the consid 2004, (1994) 2010, 114 S.Ct. 1 129 L.Ed.2d constitutionally eration of relevant evidence (quoting Wainwright, Darden v. 477 U.S. mitigation. Boyde California, in v. 494 U.S. 168, 15, 2464, 15, 184 n. 106 370, 380, 1190, 1198, S.Ct. 2473 n. 91 110 S.Ct. 108 L.Ed.2d (1986)). (1990). L.Ed.2d 144 These remarks did not. Jury 316 instructions are not consid Thus, prosecutor’s argument isolation; rather, the did not con- ered in we view them in the travene the sentencing Caldwell rule.5 context of the entire proceeding. prosecutor’s argument 5. Because generally, Mulligan the did not contravened Caldwell. See v. Caldwell, 746, (11th contravene we do not reach Cir.) Waters' Kemp, (rejecting 818 F.2d 748 any argu contention that Caldwell error in the jury Caldwell attack on instructions similar to the cured, aggravated, ment was not but instead was denied, case), 1043, ones in this cert. 481 U.S. by jury the instructions. The claim Caldwell 2171, 107 S.Ct. 95 L.Ed.2d 828 At oral Waters' raised in the district court was the claim we have discussed argument, present when Waters’ counsel was involving prosecutor’s the ar strategic asked if he had made a deliberate deci raise, gument. Waters did not the district court jury sion not to raise a Caldwell instruction claim decide, we, separate did not and neither do the issue, separate as a "I’m said: afraid I did.” jury issue of whether the instructions themselves

1525 below, the As discussed 378, 380-81, at reason at all. 110 S.Ct. Boyde, U.S. at 494 jury to consider charge to the F.2d 988 1196, 1198; High Kemp, v. and that could return (11th Cir.1987); Kemp, F.2d 1479 circumstances Peek denied, no reason Cir.1986) (en banc), reason or for (11th 479 life sentence cert. purported inconsistent with Waters’ L.Ed.2d 371 at all is 107 S.Ct. U.S. Moreover, we believe (1986).6 claiming interpretation. that the chal petitioner A sentencing of the entire the consider the broader context prevented lenged instruction in- further undermines Waters’ constitutionally proceeding evidence relevant ation of stage By the time the sentence terpretation. is a reason that there mitigation must show jury already received sub- jury applied began, the in the had the likelihood that able from Boyde v. evidence that Waters suffered manner. Cali stantial in such a struction prosecution and at 1198. mental illness. The 110 S.Ct. serious fornia, 494 U.S. defense, introducing than new evi- rather beginning of his sentence At the stage, instead relied dence at the sentence jury, judge included charge the the stage to closing previously adduced evidence. the the following language, which forms basis the stage, prose- the arguments at the sentence challenge: for Waters’ deserved the cution maintained that Waters in this given you earlier instructions argued that penalty, the defense death while you in of law outlined to and the rules case spared due to his illness. should be Waters apply also the instructions portion jury arguments, the received the After the penalty, as to your deliberations to instructions, including challenged portion the you in the to of law outlined the rules quoted above. earlier, apply gave you also Charge that closing prosecutor’s that the claims arriving at the your deliberations stage rein- during the sentence argument punishment in this case. penalty or interpret- possibility that the forced general language claims that the now incorporate sentencing instructions ed the immediately the effect of above had quoted disagree. right-wrong standard. We guilt stage definition of incorporating the argument sug- Nothing prosecutor’s standard) (the right-wrong into the insanity insanity jury that the standard gested to the instructions, stage with the result sentence fixing punishment. The was relevant impression that leaving jury with the jury, in re- prosecutor first noted health could of Waters’ mental verdict, that Wa- guilty had found turning a mitigation unless his mental considered in be wrong that he was right from ters knew that he could not was so serious disease plainly was This responsible for his actions. wrong. Because the distinguish right from prosecu- guilt phase. The summary of the sane, already found Waters jury particular jury that “in this then told the tor preclude argues, the effect was defense going give ... phase, [is] this Court constitutionally considering you to Charge ... copy of his written mitiga- health evidence relevant mental fixing determining and your consider tion. juxtaposition carries This punishment....” above, However, our evaluation as noted charge the new implication that the clear challenged instruc- upon must focus charge prosecutor is the referred isolation, upon sentenc- the entire tion phase. An govern penalty is to sentencing pro- entire ing instruction and the stages distinction between unmistakable parts of the sen- ceeding. Other relevant any prosecutor, without by the was made jury to consid- tencing charge instructed the insanity re- the standard implication that of the in the trial er all evidence submitted stage. during sentence applicable the mained ease, mitigating including any not. Rather, that it did implication is the circumstances, jury that it the and instructed during argument the sentence any The defense life sentence for provide for a could sentencing the court’s phase also discussed jury for satisfactory to the or no reason 6. See note 5 infra. argument,

instructions. his Waters’ coun- ters’ mental illness were to considered be as quoted portion sel of those mitigating instructions: evidence.7 prosecutor] He you [the you stated to that charge The begin court’s did with the chal- copy would receive a Charge of the of the lenged language above, quoted which consti- Court given you. which will be And general tutes a reference to the continued you indeed will. also copy, have a as applicability of previously the instructions prosecutor], does Charge. [the of that given. However, several persuade reasons say And any before further in connection us that is no there reasonable likelihood that case, with the facts in this I want to read jury interpreted the the stage sentence in- you a portion Charge, of that and I ask structions incorporating as the right-wrong you that keep firmly it you in mind as go standard guilt stage. First, from the Wa- your about in this deliberations case. interpretation ters’ is inconsistent with at Jury, you Members of the should consider key least provisions two in the sentence all evidence submitted in the trial of this stage instructions Waters’ in- themselves. arriving your verdict, case in at as to the terpretation is inconsistent with the instruc- imposed. sentences to be This will include tion that jury the “should consider all evi- any evidence mitigating circumstances dence submitted in the trial of this case” by you received in this case. Members of including “any mitigating evidence of circum- Jury, the you beyond even if find a reason- by you stances received in this case.” The able doubt proved that the State has the court did jury, tell the as Waters would aggravating existence of ... circumstances believe, want us to that it could not consider in this case which justify would imposi- the any very considerable evidence of sentence, tion of a you death are not re- mental illness because it had already been quired to recommend that the accused be determined that none of it rose level of put to death. Remember that. You would legal insanity. To contrary, the the court be authorized under these circumstances jury told the to consider all of the evidence to recommend the death penalty, you they had Moreover, heard. the court ex- required are not to do so. The sentence to pressly included mitigating circumstances. imposed be in this case is a matter entirely course, And of jury just the heard de- your within you may discretion. pro- And fense expressly identify counsel Waters’ vide for a life sentence for the Defendant mental principle illness the mitigating evi- any satisfactory you reason that is dence the case. prosecutor Neither the any reason, without if care to do so. nor the court said anything to jury Defense proceeded counsel immediately to suggest that defense wrong counsel was argue to jury that the “unusual circum- regard. this (i.ethe stance” circumstance) mitigating interpretation Waters’ which warranted the life inconsistent with sentence this case provision another was Waters’ of the sentencing mental posed illness. He instruc- tion; i.e., jury key question: the one principle informing “The problem you have to could contend with in return a life any sentence for ease is ... what went on in reason or for Kelly the mind of no reason Aall. look- Waters.” ing charge, focus of at this using defense counsel’s en- common its own argument tire experience Waters’ sense, mental illness. If and common could not be- it was not clear argument, before this lieve both it was could base a life sentence on unmistakable afterward charge a new reason or no reason yet at all and think given would be govern to the jury to simultaneously that it could not consider Wa- sentence stage, mitigating (albeit circumstances ters’ serious mental illness it fell short important, and that details of legal insanity). Wa- apparent text, 7. As is from the discussion impel juiy factor that should and as we opinion, hold in Part II.D. impose of this we a sentence of life rather than death. To reject argument attorney contrary, failed precisely that is message explain jury to the to the role attorney of mental conveyed. health as the clearly only to stage instructions that related interpretation is reason Waters’ A second obviously inapplicable, e.g., were conviction immediately before the is that unpersuasive the of the verdict for description the of form instruction, prosecutor’s both the sentencing of finding guilt of murder the elements clearly de- and even more closing argument Similarly, we believe the crime of murder. spoke of closing argument the counsel’s fense insanity clearly legal for that the test would in terms that sentencing instructions guilt.8 only to the determination of related interpretation. inconsistent with Waters’ be Rather, challenged portion of the the sen- above, unpersuasive we find Wa- noted As tencing clearly meant that the instructions closing argument prosecutor’s that the ters’ incorporating court was those instructions possibility that the the argument reinforced stage applicable that to from the earlier sentencing interpreted the jury could have sentencing, as the distinction between such right-wrong incorporate the instructions evidence, direct and circumstantial the rules above, Rather, the as discussed standard. -witnesses, testing believability the the just closing argument implied prosecutor’s witnesses, expert the admonition function of i.e., insanity legal the issue opposite, that the arguments of counsel do not constitute that already wrong had knowing right from evidence, the statement that the foreman guilt phase, and that the decided in the been deliberations, and preside would over the jury going give the a new court was trial (a standard definition of reasonable doubt govern jury’s determi- charge to the written applied stage to the at the sentence punishment. As also fixing nation circumstances). finding aggravating above, closing argu- defense counsel’s noted including light of all the circumstances — clearer, quoting from the was even ment interpretation fact is incon- that Waters’ shortly sentencing charge given includ- be itself, sentencing with the instruction sistent mitigating jury consider ing that the should closing implication prosecution’s jury that the could return circumstances and right-wrong argument that the standard for no reason or a life sentence guilt stage was to be applied significantly, all. Most defense reason at instruction, replaced by a new the similar absolutely jury it clear to counsel made argu- in the defense clearer statement even consid- mental illness was to be that Waters’ ment, argument that the defense and the fact Thus, by the mitigating evidence. ered as mental illness made clear Waters’ sentencing in- read the time the trial court mitigating as evidence9— to be considered jury already had jury, the structions to the no like- conclude that there is reasonable we actually quoted, had language heard the jury applied the sentence lihood that men- explanation clear that Waters’ heard a way prevented stage instructions illness was to be considered tal constitutionally relevant the consideration evidence. mitigation. The instructions evidence in is consider mental persuading clearly us that there left the free to A third reason mitigation punishment that the inter- health evidence reasonable likelihood no right-wrong standard applying the in- without stage instructions as preted the sentence stage. guilt from right-wrong standard corporating'the many guilt stage guilt stage is that AND THE MEANING B. DEFINING obviously inapplicable in the are instructions OF MITIGATION FUNCTION already stage. Because Waters sentence claims that the instruc stage of the two also guilt at the been convicted women, adequately failed to communicatе guilt tions murdering the two crimes of found not guilt that Waters could be makes it clear argues other references in the 8. Waters insanity was met. guilty only standard if the interpretation. stage reinforce his instructions points example, to the sentence: “Mental For abnormality weakness of mind no no or mere that defense counsel made 9. We also note imbecility idiocy, suggests objection. to us contemporaneous That excuse unless it amounts perceive ability participants the trial did not deprives offender of the which wrong.” challenged in the manner right Howev- instruction distinguish between er, proffers. appears language now which that the context in 1528 jury meaning the and function of mitigating given. instructions Boyde v. Califor nia, circumstances of principles violation 370, the 380-81, 494 U.S. 1190, 110 S.Ct. Kemp, established in Peek v. 1198, 784 F.2d (1990). 1479 108 L.Ed.2d 316 The chal (11th Cir.1986) (en banc), denied, cert. lenged portion 479 of the instruction did not ex 939, 421, U.S. 107 S.Ct. 93 plicitly L.Ed.2d 371 “mitigation,” define nor did it allocate (1986), and progeny. its argues Petitioner mitigating the function to the defendant. the jury guidance lacked the that would See Kemp, Peek v. 784 F.2d at An 1490.

provide of knowing means what elements of examination of the entire sentencing pro the evidence presented during guilt stage the ceeding is appropriate therefore to determine jury’s were relevant to the task at sentenc whether additional information at the sen ing, and did know how this stage evidence tence cast illuminating light. Boyde, could be properly employed during sentenc 380-81, 494 at U.S. 110 S.Ct. at 1198. ing deliberations. Respondent that, answers In his stage argument, sentence trial coun- viewing sentencing the proceeding its en sel for quoted portion the tirety, there was no reasonable likelihood instruction that mentioned circum- the jury failed to understand the in stances, stressing that jury the con- should structions and the proper role mitigation. of sider all in reaching a sentencing Jury instructions at the sentence decision and emphasizing that a of sentence stage capital of a trial need not include any life could be returned for any reason satisfac- particular phrases words or to define tory jury the or for no reason at By all. concept mitigation of or the function of this, miti doing clearly defense counsel indicated gating circumstances. Peek v. Kemp, 784 that “mitigating evidence” was that which F.2d at 1494. determine, We must however, could aid the by leading jury defendant a whether there is a reasonable impose likelihood10 life, of sentence even if it found the jury the failed to the chal understand existence of one or more aggravating circum- lenged instructions and the mitigation, role of stances. This argument gave facet the the taking into account the context in which the jury enlightenment further regarding na- the Boyde 10. California, v. Supreme the single Court instruction judged should not be in artifi addressed issue appropriate legal the isolation). the Moreover, stan- cial recognized Court the reviewing dard for jury instructions claimed "[jlurors solitary do not sit in isolation impermissibly restrict jury's consideration parsing booths meaning instructions for subtle shades of constitutionally relevant evidence. 494 U.S. at way lawyers same might. 378-81, 110 S.Ct. at recog- 1197-98. The Court among Differences interpretation them in of in nized that appropriate the standard was not may structions be thrashed out in the delibera clearly cussed, previous established in its cases. It dis- process, tive with common sense understanding alia, inter the standard used in Francis v. light instructions of all that has taken Franklin, 307, 1965, 471 U.S. 105 S.Ct. 85 place prevail trial likely at over technical hair (1985), i.e., L.Ed.2d 344 what a juror reasonable splitting." 380-81, 494 at U.S. 110 S.Ct. at could have charge understood the meaning. as Zant, See High v. 1507, 1198. 916 F.2d 1509 n. 2 This was the applied standard in our Peek deci- (11th Cir.1990) (“Boyde adopts ... substantially Although sion. recognizing may that there analysis adopted same by this court great be amongst difference phras- Peek_ several The Boyde difference analy ings, Boyde upon single decision settled adoption sis is its of the reasonable likelihood formulation: "We proper think inquiry standard, opposed by the standard used our such a case is whether there is a reasonable i.e., panel, juror whether a reasonable could have likelihood that lenged applied has the chal- failed to understand the instruction and the way instruction in a prevents proper denied, mitigation.”), role of cert. 499 U.S. consideration of constitutionally relevant evi- 954, 1432, 111 S.Ct. (1991). 113 L.Ed.2d 483 Boyde, 380, dence." 494 at U.S. 110 S.Ct. at Boyde analysis standard and has been fol by subsequent cases, lowed Supreme Court John However, Boyde Texas, - practice -, -, confirmed the son v. 2658, in this U.S. 113 S.Ct. circuit, 2669, see Kemp, 1489-95, Peekv. 784 F.2d (1993), 125 L.Ed.2d 290 Estelle v. considering McGuire, sentencing charge 62, 475, in context to 502 U.S. 112 S.Ct. 116 determine whether there (1991), is a reasonable likeli L.Ed.2d 385 subsequent Eleventh hood that charge. misunderstood the Chandler, Circuit cases. United States v. decision, Like our Peek Supreme 1073, (11th Cir.1993), Court in denied, F.2d cert. Boyde upon relied Cupp Naughten, -, 414 U.S. U.S. 114 S.Ct. 129 L.Ed.2d 848 94 S.Ct. (1973) (a L.Ed.2d 368

1529 Therefore, challenge must Waters’ 1284-85. The mitigating evidence. role of and ture of fail. link the function served to argument also jury the that instruction to the

mitigation any reason for a life sentence impose CONCLUSION

could V. Kemp, 846 v. Williams at all. See none of district court’s denial affirm the We denied, Cir.1988), (11th cert. 1276, 1284 F.2d petition. habeas Waters’ 1836, L.Ed.2d 1090, 108 110 S.Ct. 494 U.S. the (1990). the of fact that focus 965 dissenting CLARK, Judge, Senior Circuit i.e., mental was on Waters’ argument health — in concurring in which part part, and in jury the obviously arguing to counsel was HATCHETT, Circuit and KRAVITCH impose a life they should the reason that join: Judges, mental of Waters’ was because sentence majority II of the part I dissent jury that the the it clear to health —made analysis, majority’s de the opinion. Under impose life could charge jury the judge’s that strategy, no trial need have fense counsеl jury could that the meant for reason testify will out how witnesses need not find mitigating evi of the because impose life stand, need on the and Indeed, putting them before as illness. mental of Waters’ dence mitigating evi value of the quoted the not know about above, counsel defense the noted require the facts in a ease where dealing even dence sentencing instructions part of the jury client’s of a acknowledgment ar then mitigating circumstances with counsel unnec that to be Nor matter guilt. does circumstance” the “unusual gued that has his on the stand and essarily puts mental a client this case was Waters’ in dealt with the details of gruesome the client describe illness.11 Fur promise of victims. The of the murder (as case the note that Additionally, we 2726, 238, 92 Georgia, 408 S.Ct. U.S. man advised Waters’ Kemp) the court in Peek v. (1972), penalties death that 346 33 L.Ed.2d jury, that he the counsel, presence of in the imposed is indiscriminately not be should jury, ... the place before “the right adequate Without in this Circuit. now lost wish circumstances any mitigating counsel, opportuni the death without defense clarify that the This further served to.” of a matter ty a sentence becomes life mitigating present party the defendant is pure chance. at Kemp, 784 F.2d Peek v. evidence. See 1491. majority opinion. part ‍‌‌​​​​‌‌​​‌​‌​​​​​‌​‌​​​​‌​‌‌‌​‌‌‌​‌‌‌‌​​‌​‌‌‌​​‍I of the I concur in on the grant relief Because would instruc- sentencing of the An examination claim, I of counsel assistance ineffective sentencing entire in the context the tions parts in the addressed issues not reach no would is us that there persuades proceeding Thus, majority opinion. of the III and IV jury failed likelihood that reasonable by the only the addressed issue in this discuss below mitigation role understand whether opinion: part II of its majority in Kemp, F.2d at 846 Williams v. case.12 See hand, scheme, grants more much the other health evi argues the mental 11. Petitioner sentence, as impose jury a life to be type we have found discretion to was not dence self-evidently Kemp, reason” “any 784 or no mitigating Peek v. reason evidenced question Peek stage The evidence instructions. language F.2d at the sentence 1493. record, sentencing of a criminal youth absence the entire context in the Viewed primary whereas the counsel Waters' trial proceeding, it is clear that con illness. Waters involved mental instant case sup of mental illness presenting evidence inherently "two- mental illness tends that sentence, there is no reasonable port life "may [defen diminish edged because it sword” that. to understand failed likelihood that as it crime even for his dant’s] blameworthiness he will probability is a there indicates that con- no counsel made that defense We note Ly Penry v. See dangerous in the future." be par- suggesting objection, temporaneous 2949, S.Ct. 109 naugh, U.S. 492 difficulty on the perceived no ticipants trial However, Supreme L.Ed.2d undеrstanding function of the in the context this observation Court made Waters’ role of and the mitigating circumstances scheme, employs sentencing which capital Texas mitigating evidence. as mental illness inquires specifically system special issue sentencing Georgia's dangerousness. to future counsel constitutionally rendered ef- pass guilt both the sentencing phases fective during assistance the sentencing of the trial. phase of Waters’ trial. capital case, In a ... attorneys some strategy devise a guilt stage with-

I. THE APPLICABLE STANDARD out considering penalty phase. the Others take position the will merely “put agree majority with the as to the stan- government the to its proof’ burden of at apply dard in we must reviewing ineffective penalty “ the stage. approaches Both are assistance of counsel claims: We ask inadequate. penalty Because the trial will lawyer some whether reasonable at the trial be if critical the defendant is convicted of acted, could have circumstances, the offense, the capital attorney defense must defense counsel acted at trial.... We are devise a strategy coherent for pro- not grading interested in lawyers’ perfor- Moreover, ceeding. simply putting the mances; we are interested in whether the government to its burden of proving its process trial, fact, adversarial at worked ” case against the defendant is not a viable adequately.’ Majority Opinion at 1512 option because ... dynamics of capi- a (quoting Singletary, White v. 972 F.2d tal trial are such that the defendant must (11th Cir.1992)). 1220-21 put on an “affirmative case for life.” Fur- I disagree with majority’s application thermore, because guilt penalty and of the standard this case. Waters’ counsel trials related, are integrally devising one failed develop to a strategy for the sentenc- strategy guilt phase for the separate and a ing phase trial, of the strategy and his one for the phase penalty is also insuffi- guilt phase, one, if he had defeated the cient. In effective, order to be capital a objective of obtaining a life sentence for Wa- attorney defense develop must a consistent ters. repeated Counsel made flagrant and theory to be used guilt at the penalty fundamental trial errors which assured that phases. the jury could not view Waters in a sympa- (footnotes Id. omitted). at light. thetic merciful 356-57 or It painfully obvi- ous process that the adversarial at this trial case, Waters’ objective of the de- did not work. fense was to obtain a sentence of life rather than death. No objective other possible.

II. A REASONABLE TRIAL The defense could possibly not convince the STRATEGY jury that Waters had not committed the crimes; confessed, he had and the evidence Approach A. The Competent Counsel of against him was ovеrwhelming. As to the competent “No attorney defense go would insanity defense, the defense did not have a to trial without formulating first an single overall witness who testify would that Waters strategy.” White, Welsh S. Assis met the insanity test for Georgia under Effective law.1 tance Capital Counsel Cases: The Davis admitted at the state hearing habeas Evolving Care, Standard 1993 U.Ill.L.Rev. that he expect did not to succeed on the Effective lawyers trial typi insanity defense: cally prepare for the defense aof criminal Q: say Is fair to that you didn’t by asking (1) case questions such as: What is expect to succeed on an insanity defense? objective (2) of the defense? What is the trial strategy to objective? reach that expected A: lawyer, a as a realis- —as (3) does implement How one strategy? tic lawyer, I hoped that the matter of his In the defense of penalty a death case in competence would result in a verdict of a particular, strategy counsel’s must eneom- life sentence and a death sentence. law, Georgia Under person ‘‘[a] guish shall not be right between wrong in relation to if, guilty found act, of a crime at the time act, omission, such negligence.” or Ga.Code omission, negligence crime, constituting the (Michie § 1992). Ann. 16-3-2 person did not capacity have mental to distin- Nevertheless, completely failed Thus, Davis death. 3B at 50-51. Exh. Respondent’s strategy frame- trial implement a develop or objective was overall recognized objective. this to achieve which work his client. sentence life a obtain trial competent develop an effec- objective, failure complete this Davis’ achieve To at aimed strategy explained develop strategy may be attorney trial would tive excused) experi- a men- his lack jury that Waters convincing (although unique circum- admit- Davis cases. being penalty whose death tally ill with human ence deserving that, prior him hearing made habeas background state ted stances and mer- compassion, involvement with case, sympathy, his last jury’s Waters’ compe- strategy, prior sometime case was implement penalty cy. To death evi- years twenty before prepare attorney would more than tent from for exam- jury, practiced law the Davis show designed to case commenced. dence court from schizo- a state and as suffered served the defendant that 1939 until ple, not background, was until 1961. judge a from troubled had trial phrenia, family ties. Con- violent, close States had to the United and elected Davis was typically He years. mission attorney’s central for 14 he served capital gress, defense where “A for life’ and became County ‘case in Glynn defendant’s present the to to retired is evi- less mitigating of December in through introduction Defender the the Public White, at stage.” sentencing involved he became before the six months at than dence ex- capital case pre-1961 His case. 360-61. Waters’ time, but only remote was not perience ju- the educate attorney will An effective im- the given largely irrelevant was also the procedure and capital case the as to rors its Georgia and Furman impact of mense in their play should mitigating evidence role jurisprudence. penalty death upon progeny deliberations; that specifically, a just as case Indeed, tried Davis Waters’ “[sjuch not as consti- do are circumstances to prior have lawyer would defense criminal offense the for or excuse justification a tute consisted Furman, trials penalty death when mercy, which, in fairness question, Supreme Court the phase and only one of extenuating or reduc- as may be considered of role important the yet to declare had thereby culpability,” moral degree of the ing jury’s the decision- mitigating evidence sentence appropriate reducing the the educate did not Davis making process. Dictionary 1002 Law life. Black’s to death mitigating evidence role of to the as 1990). of the This education (6th ed. sufficiently informed not was he because of the beginning at the place take should significance. its to attorney expects Particularly an when trial. the explain upon he should as- guilty, majority of relies verdict the Astonishingly, a case, explain capital Manning’s expe- of the nature Don bifurcated defender public sistant life of a verdict expects defense that defense the its conclusion support rience to mitigat- explain death, use then effective made than of and rather was aware counsel during unfold will law. punishment how it capital ing evidence post-Furman the of Thus, be- of this verdict. number support a to for trial ludicrous the is This reliance stand, any the effec- provide takes First, Manning witness did not the first fore reasons. framework jury a during Wa- given the has to Davis counsel meaningful tive assistance any recognize and consider even not name does Manning’s which within trial. ters’ phase during guilt except the to note transcript mitigating evidence trial appear life. single for plea support question the a might did He presence. his the single statement a make witness Counsel Waters’ Approach B. The been Manning Second, of jury. judge or time. very short a for law practicing act Waters, did not Davis In his defense only a for bar member a been testimony at He had Davis’ counsel. competent aas public with the been and had half year a he hearing indicates habeas state months six than less for office defender’s defense objective of the that the understood case. in Waters’ involved became when than rather of life a sentence to obtain was Finally, Manning any meaning- did have Q: In terms of the approached dеfense ful experience. Manning trial, admitted at the [sic] is it fair say hearing state habeas that he had not tried strategy a was essentially strategy single felony prior case to the Waters’ prepared case. sentencing with in mind? Although appointed he was co-counsel No, A: I don’t think say. that’s fair to penalty death February 1979, tried in case Certainly, that was a consideration but I four months after he was admitted to the don’t believe that that would characterize bar, his indicates that he did not strategy had. we actually try this case himself. It prepos- Thus, Id. at 80. to the extent Davis focused majority terous for suggest that Man- case, on Waters’ emphasis entirely ning’s presence compensates somehow for upon defense, the insanity a defense that he incompetence. Davis’ knew would fail. pursuit To Davis’ the extent Davis did blind strategy insanity have defense case, present exclusion strategy other defense of ob- insanity objective scured guilt phase. obtaining developed Davis a life sen- strategy very no tence from sentencing phase beginning of the trial. opening trial. Davis’ Neither develop did he statement phase an at the guilt effective of strategy the trial encompass overall to covers guilt than pages the less both three sentencing phases. Rather, and the trial transcript. He jury: he told the decided ‘We present do not insanity any the contend for during defense other defense avail- the guilt trial, law, phase of able one, the under the except is, did nothing and that more. that Manning As [Waters] was not right testified at in his the state mind the hearing: time [of habeas the crimes].... You have a delicate and difficult perform task to ease; in this Q: If we could move now the sen- just one, and by that your is verdict tencing phase trial, of the if you could the determine mental condition of the Defen- describe to any the Court effort to prepare dant at the time that these offenses oc- sentencing phase. the Respondent’s curred.” Exh. IE at 628-30. Well, A: really we any didn’t have spe- This is the substance of opening the state- cial preparation for phase. We— ment. Other than noting that Waters had knowing the facts of the appeared ease attempted suicide, mention, Davis did not probably Mr. Waters would be found much summarize, any less mitigating evi- guilty upon based testimony and other dence; indeed, he not did even recite the evidence. So we considered totality the of evidence that support would the insanity de- the well, trial. We didn’t think let’s talk fense! Far from educating jury the as to guilt/innocence about the phase versus let’s capital procedure case and the mitigat- role talk penalty about the phase. We viewed ing evidence should play in their delibera- it as a approached whole and the trial from tions, Davis did not even mention that the that standpоint. And we that any felt jury was embarking on the phase first of a witnesses put that we up during the two-phase Indeed, trial. Davis, no one—not guilt/innocence phase, their testimony not judge, the prosecutor not the the —told would be essentially the same in that jury of the bifurcated proceed- nature of the phase as it be in penalty would the phase. ings until after the trial had into moved the got So if we the testimony in attempted sentencing phase. Thus, provided Davis the or tried to in guilt/innocence, the we felt it absolutely with no framework within just be same, to call redundant very those which to consider the helpful limited mitigat- same, witnesses penalty case. So ing evidence he manage did to introduce we any did not call penal- witnesses in the during guilt phase the of the trial. ty phase. By pursuing insanity defense, the Davis Respondent’s Exh. 3B at Manning 74-75. sought exoneration for his During client. the even admitted that the strategy defense guilt initial phase trial, the prepared not with sentencing mind: learned that sought of verdict Well, that the instruction you felt Q: he admitted notwithstanding that guilty, used in would the trial be half of the first Thus, the murders. heinous committing two trial, you? the didn’t half of the second respon- escape sought who jury saw a man instructions? man who A: The crimes, than rather sibility for his sought Court from the crimes sorry Q: for his instructions truly insanity? concerning This frustrated mercy his life. for Wa- securing insanity. life sentence Yes. Yes, concerning objective of A: so, ters. the Court instructed Q: when And legal the the Jurors about of definition failing problem this compounded Davis be used in insanity, you would felt between jury on the difference the to educate phase penalty phase and guilt both the sentenc- deliberations phase guilt trial, right? to ex- failed Davis ing deliberations. phase suppose so. A: applicable standard jury that the to the plain (emphasis at 62-63 3B Exh. Respondent’s very different insanity defense to the added). what Davis was It is know hard sentenc- applicable the standard under the operated have thinking. may He Indeed, jury was never ing decision. rejection jury’s that the impression mistaken justi- could mitigating evidence informed legal imposed insanity some defense evi- if same life even fy a sentence sentencing deliberations. upon its constraint insanity. A review establish failed to dence keep sure, nothing to did be Davis To during state habeas Davis’ a misinter- under such operating jury from -under- Davis did hearing indicates pretation. guilt phase between the distinction stand insanity defense and phase deliberations: sentencing pursuit Davis’ phase him sentencing caused neglect of the during period, During this time Q: thereby fail to and to elicit and ignore, to trial, you still were of the

insanity phase mitigating evi- jury, available the present decide who would Juror hoping for one the may convinced have that dence inappropriate, was penalty the that death introduced Affidavits life. spare Waters’ right? is that indicate рroceeding during state habeas the Jurors. hope for twelve A: I would who expert witnesses of the several that the time? hoping at you have of- Q: What would behalf on Waters’ testified of Wa- mitigation evidence additional fered hoping for hoping, as was As far A: this evidence. crimes, elicited had Davis ters’ was insane that he to decide twelve Jurors Stewart, a Jerry Bowman example, Ms. For of- of the commission of the the time at that Wa- testified have would psychologist, fense. major a schizophrenia, from “suffered ters penalty the you Q: And decided disorder”; illness would that this psychiatric less be more trial the would phase of day of on the conduct affected have right? thing, is the same been would have murders; that it and the a decision Well, so much it wasn’t A: halluci- been to have for Waters consistent same, Yes, pretty was the my part. at on 3B Exh. Respondent’s day. nating the same. much testi- have Bosch would Miguel Dr. 115-16. suffering a seri- from “Waters fied evidence the same you felt Q: And schizo- is called mental disorder ous part of in the second used to be have would disorder”; not have did that Waters phrenic the first? than trial the that he type personality”; “criminal a A: Yes. facing mur- surprised ap- legal standard the same Q: And affidavits These 111-12. Id. at charges. der trial as of the part second plied wit- expert the prepared Davis indicate that first. the insanity did defense only for the nesses mitigating testify as them prepare not legal standard No, not same A: in her said Ms. Stewart As circumstances. same. virtually the testimony be would me, Third, “[Davis] affidavit: never discussed with majority justifies Davis’ failure recall, any my testimony use of during to elicit opinion Dr. Bosch’s that Waters did penalty phase of Mr. Waters’ trial.” Id. have a type “criminal personality” by proof 116. This is further that Davis noting: did suggested “[N]o one that Waters ... not understand the bifurcated nature of a was a type ‘criminal personality.’ It was penalty death case. undisputed that Waters is law-abiding citi- except, course, zen for the fact that he majority attempts makes several kidnapped, abused, and murdered two wom- justify Davis’ failure to elicit available miti- Majority Opinion en.” jus- at 1515-16. This gating expert witnesses. has ring tification joke. a tasteless It First, majority opines that the favorable also defies logic both capital and sound trial testimony that Ms. Stewart could have of- strategy. In presenting evidence, fered by “was contradicted opinion of Dr. a capital attorney objec- defense has several Bosch, psychiatrist, testified that who tives, one of which is “to convince the sen- found no connection killings between the tencer that the defendant will not be a future Waters’ mental condition....” Majority danger if his spared.” White, life is at 361. Opinion majority at 1514. The point fails to Certainly, presenting evidence that the de- out that prejudicial Dr. Bosch’s highly opin- fendant is “criminal type personality” ion about by Waters was elicited Davis on objective. furthers this There is no excuse redirect examination. As is discussed more for Davis’ failure to present elicit and fully below, III.B. Davis made funda- type of evidence. mental egregious errors his redirect Finally, majority reaches the astonish- by examination of repeatedly Dr. Bosch elic- ing conclusion that “the evidence indicates iting testimony that was harmful to his client. that counsel discussed mitigating Thus, circum- majority justifies Davis’ failure to stances with each of the experts.” medical elicit favorable from Ms. Stewart Majority opinion at majority 1516. The relying highly prejudicial on the testimo- mistaken. At the hearing, state habeas Man- ny that foolishly Davis elicited from Dr. ning testified: Bosch, evidence that an effective defense at- torney presented. would have never This Q: During preparation trial, justification by majority is ludicrous. did specifically ever direct medical people’s legal attention to the idea of miti- Second, majority the excuses Davis’ failure gating circumstances? elicit to Ms. opinion Stewart’s that Waters Yes, A: think everyone with we may have hallucinating by been noting that talked to. testimony would have been inconsistent with testimony: Waters’ ‘Waters’ testimony Respondent’s Exh. 3B at Manning did equivocal belies the suggestion in Mrs. testify, however, Stew- that either defense at- post-trial art’s affidavit might that Waters torney talked with all of the experts medical have been suffering from hallucinations when who Indeed, testified at trial. neither Man- he Majority committed the Opin- murders.” ning nor Davis indicated talked ion at 1515. As is part discussed with III.B. Dr. prior Hosea DeLatorre to trial. As below, Davis made a fundamental mistake in is part discussed below, III.B. it is obvious putting stand; Waters the Waters’ testi- from Dr. DeLatorre’s trial testimony that mony, at Davis, least as elicited was dev- Davis had no idea what Dr. DeLatorre would astating plea Thus, to his again, life. say on the the Similarly, stand. Dr. Bosch’s trial majority explain seeks to one ineffective testimony act indicates that Davis did not know on the of Davis with consequence of what Dr. say.2 Bosch would If Davis did another ineffective act. mitigating discuss any circumstances with of 2. Davis hearing trial; testified at the state habeas Respondent’s stances.” Exh. at 3B 63. Dr. he prior talked with Dr. Bosch to in re- Bosch, however, unequivocally attested sponse leading question, to a he even testified directly Davis "did my testimony discuss that he asked Dr. specifically Bosch "to address with me before testified.” Id. at 111. question himself to mitigating of circum- Dr. Hosea DeLatorre testified not do so effee- experts, he did the medical reality,” good “in contact with and Wa- mitigating an abundance of tively, as he left conveyed jury in own ters to the his words unrevealed. evidence grisly graphic details of his crimes. mitigat- available failed to elicit Davis also is consistent with the None of this evidence family members. ing frоm Waters’ objective mentally portraying of Waters as a trial, phase Davis During guilt of the mercy. deserving sympathy ill man sisters, the the stand Waters’ three called to in an Davis elicited this evidence Whether his be- that testified on only blood relatives insanity attempt support to the doomed de- only her sister about half. Davis asked one utterly prepare fense or because he failed to certain medical to have certified endeavors trial, incompetently. acted sisters He asked the other two documents. “a surprisingly, Not research shows that leading up to Waters’ about the events attempt to raise an defendant’s unsuccessful from of the Davis never elicited arrest. positively insanity defense correlates with testimony touching upon Waters’ sisters Perlin, penalty death verdict.” Michael L. childhood, history character, his troubled his Penalty Lives in Death The Sanist Jurors illness, histoiy attempted or his of mental Puzzling “Mitigating” Cases: The Role of is evident from the evidence suicides. As Evidence, Disability 8 Notre Dame Mental proceeding, state habeas offered Waters’ Pub.Pol’y & I do not J.L.Ethics ready willing to offer the sisters pursuing insanity suggest an defense subjects. testimony on each these during guilt phase capital trial is of a wife as a witness Davis also called Waters’ unreasonable; always the manner in which phase trial. Like during guilt case, pursued Davis the defense in this how- sisters, only to the she testified ever, lay person A would was senseless. arrest; up she leading to Waters’ events Davis made a decision have known better. insight into his character or his offered no defense, insanity present which he history illness. of mental succeed, could not and there his strate- knew Davis’ failure In its effort excuse that, gic planning, if it can be called came mitigating evidence from Wa- elicit favorable develop any strat- tragic halt. He failed to members, majority contends family ters’ egy encompassed sentencing phase testimony non- did elicit trial; that Davis consequence, presenta- as a nice, expert evidence, that Waters “was a purpose witnesses its tion of trustworthy religious, role, may man.” Ma- quiet, woefully inadequate. He have majority understand, certainly fails to jority Opinion at 1517. The failed to and he even jury, the difference explain of this favorable mention that none failed insanity defense and the sen- or his wife. between the from either Waters’ sisters came Thus, formu- tencing Davis neither family decision. By putting members on trial implemented a reasonable lated nor testimony, failing to elicit such stand and incompetency compounded strategy. This undoubtedly jury into misled the be- Davis to fundamental rules his failure to adhere family nothing favorable lieving that the advocacy, trial discussed below. say about Waters.3 by case only harmed his client’s Davis not THE FUNDAMENTAL RULES III. evidence; failing favorable to elicit By Rulеs Followed A. The eliciting by case he also harmed the Competent Counsel plea for life. devastating to Waters’ that was very attorney Dr. follows persistent questioning, An defense Davis’ effective Under during the course of a criminal a drunken sex basic rules portrayed Bosch Waters as following: Among these rules are satisfy impulse, trial. maniac who killed to a sexual concerning many his could have testified Kemp, 653-54 others Stephens 846 F.2d 3. See behavior; do so (11th Cir.) ("The that others did not only testimony at the fact heard impact undoubtedly on the histoiy diminished the sentencing concerning appellant’s mental omitted.]”), condition, [Footnotes described. including the facts she he oc and bizarre behavior denied, exhibited, 109 S.Ct. present 488 U.S. cert. casionally was that which was clear, testimony L.Ed.2d 158 her makes ed his mother. As put a compulsions, 1. Never witness the stand with- sional but when we do this discussing work, his or her out first testimo- kind of people when we see these ny. and talk to them and see the crime committed, question that we ask question 2. Never ask a witness a without ourselves, is this connected with this knowing the answer. illness, is this a result of this illness. possible, 3. To the extent insure that evi- Well, Q: your what’s answer to that? gruesome dence that is or inflammato- ry is excluded. my A: I And couldn’t find —And put 4. Never the defendant on connection. the stand That’s the reason that I stat- Attorney

unless is an essential ed to my there element of the District that it is offense, proof opinion that can be established at the time of the through alleged the defendant. the time of the murder that he knew doing. what he was say anything during 5. Never or do disparage Well, trial to or diminish the Q: de- you let me ask this: How do jury. fendant front of the feeling reconstruct the of the emotion Kelly Waters felt at the time the Identify help with defendant and crime was you, committed? How do jury identify with the defendant. mind, your reconstruct that? These good rules are fundamental to advoca- cy lightly disregarded. and are not to be A: I question, would like to answer the Disregard B. Davis’ the Rules jury present. but not with the trial, During the course of Waters’ Davis n Q: Well, we—You will have to ... de- every

violated each and one the six rules fer to our "wishesin the matter. I asked above, repeatedly. listed some of them I you to answer it. egregious offer here a few of the most exam- ples. example first A: ... To question, is Davis’ redirect answer the I exami- would the, Throughout get as,

nation of Dr. have Bosch. into I this exami- what consider I nation, know, don’t questions Davis asked the it’s witness confidential between me client, your about obviously information the two and the had not Defendant. And I that, discussed would say something and to which Davis could have to not have what he answers, thereby known the said to violating me and don’t if I say rules know should result, and 2 that in gentlemen above. As a front of the Davis elicited ladies and testimony inflammatory not. highly have some doubt about it. (rather prejudicial to Waters insuring thаn excluded, testimony that such in accor- Well, Honor, A: You do I have to an- above). dance Specifically, with rule 3 Davis question? swer the Do I right have the opinion elicited Dr. Bosch’s that there was no refuse to answer questions? ... Your connection between Waters’ mental illness Honor, my point: this is I do can have —I opinion the crime and his “key” that the question. answer his I do have the an-

to the crime was Waters’ sex I repro- drive. question swer. There’s no about it. I can duce here the bulk of Dr. Bosch’s question answer his hope that he’d be on redirect examination: satisfied, my but based on confidential re- [byA Dr. ... Bosch]: As far as the lationship Waters, between me and Mr. I question of his condition at the time of the prefer question. not to answer that But I offense, alleged I dealt many with that do you have the answer. If give ask me to trying times in figure to out what was him, it to I will do it. wrong, put and I together, could not the Well, THE COURT: crime know, and the mental illness. You you’re talking insanity. about Honor, You’re talk- MR. DAVIS: Your we ask that ing right wrong about from and from give delu- he it. to his ing processes led the emotional right. All He right. All THE COURT: attempted suicide. Dr. Bosch. privilege, waived his has A: Yeah. Davis, is the answer Well, this Mr. A: Now, trying you give to Q: it down. I’m to ask I wrote your question, and to processes your opinion of the emotional us Q: right. All just you read about. that led to the event saying something that I’m A: It’s not Well, likely, kind he was a A: most Now, related to the today. is you to condition, more or stage, or emotional me that he He to alleged offense. related Liberty County less, like I saw him in the Brunswick, that he Waycross from went bit tense or a Maybe he was little Jail. a over fishing that area two women saw had a few drinks depressed. little He bit get- women were That he saw the there. was, maybe he like that date. And that on leave, gun he had ting ready to him, to, I going when talked he was car, gun those pulled the on that he talk, relate, that he able to able he was that the has me And he stated women. my questions and ... understood want- because he he did it was reason that 25th. Q: talking April about on I’m them, but he could sex with ed to have Yeah, I And I’m that’s what said. A: that he he said with them. And have sex state, he that his whatever sure emotional the women. with one of had oral sex about, being maybe a little bit worries saying oral? Q: You’re nervous, a little a little bit apprehensive, Oral, yes. A: date, because of depressed on that and bit Q: right. All had, maybe background that he all of this handcuffs put the A: He said that he lady got lady, first the oldest after the them, the left and believe on I on both one, shot, the second and between one one, and then right side of the other got apprehensive maybe he a little more said that he after he said that that —He going on what was little more fears about the ladies because on put the handcuffs more, say, tight, emotional you might him. And power trying to over state, shooting between between lady, then he he the older thеn shot ladies, plus, I’m sure that after two one, And other one. shot the second incident, that, incident the whole whole Waycross. left, He went back to then he tight, a little got a more maybe he little by deputy or a stopped that he was said if that And I don’t know upset. more road, checked on who patrol state question. your takes care of they let drinking, and if he was him to see driving No, I’m What Q: it doesn’t. got on he back go. him And then later the whole is, you think that what —Do to me about said That’s what he home. something for his do trying to episode was alleged offense. other- reason? ego or some own Well, object your I Q: don’t Yes. wrote, and I I My feeling is like A: init quite happy to have reading that. I’m before, that, he seemed like I said believe quite record, didn’t my question but he answered when honest with me to be My question is: How point. address that believe of the —I my questions. And one processes emotional you do reconstruct thing is that whole key to the you’ve just read to that act that that lead know, you when You to have sex. wanted about? said, Alcohol, a sedative. like I drink — got mean, I an you A: believe know, sexual But, relieves the alcohol —I to, you’re trying what you’re idea what performance. desire, away the take but to, asking trying me looking for. You’re people people are drunk —When When opinion about give an sex, able to how was alcohol drink, they to have want them, ... that he was away performance takes one, awas in this was the case way and that my No, trying to work Q: I’m not released, impulse was of sexual little bit just saying,— I’m anything. back this is related And perform. couldn’t but example, you were deserib- ago, for Awhile reason, alcohol. But I believe the main preposterous. ion at 1520. This conclusion is women, majority when he saw those two that he had The contends that had of sexual already during some kind stimulus he want- heard cross-examination Dr. me, ed to have sex with. And to that’s Bosch’s conclusion that there was no connec- key thing. what the of the whole And tion between Waters’ mental illness and the again, episode when one of the cross-examination, women During crime. Dr. Bosch trying overpower him was and—That’s testify did right that Waters knew again, said. I what he And believe what wrong, psychotic, that he was not and that it he said. “quite possible” was that he knew what he doing crimes; when he committed the questions.

Mr. Davis: have no further however, implied, Dr. Bosch never even Respondent’s Exh. IF at (emphasis 1002-11 there was no connection between Waters’ added). indicates, testimony As this Dr. Thus, mental illness during and the crimes. attempted protect Bosch with- Bosch, Davis’ redirect examination of Dr. holding damning opinions. his most At heard for the first and time that insistence, Davis’ Dr. Bosch was forced to there was no connection between Waters’ opinions jury. Thus, reveal these crimes, mental illness and his and that the succeeded, pros- Davis in a manner akin to a crimes were the result of Waters’ drunken ecutor, portraying his client not as a men- impulse to fulfill a sexual desire. It is non- tally deserving ill sympathy, man but aas suggest sense to that this redirect examina- maniac satisfy drunken sex who killed to tion was not plea harmful to Waters’ impulse. sexual mercy. questioning Davis’ conduct Dr. Bosch in inexplicable. this manner is being The issue A example second flagrant Davis’ viola- tried was whether Waters was insane or not. tion of the fundamental rules trial advoca- (1) Either Davis had talked with Dr. Bosch cy is Davis’ direct examination of Dr. Hosea testimony, about his knew what he would DeLatorre. Davis called Dr. DeLatorre as a say, intentionally sabotaged Waters’ ease knowing witness without testimony what his by eliciting testimony, Dr. Bosch’s harmful Thus, again would be. Davis violated rules 1 (2) Davis had failed to talk with Dr. Bosch result, and listed in III.A. above. As a regarding testimony, his woefully ill- nothing he elicited but evidence that was prepared examination, for the blindly prejudicial I reproduce Waters. here devastating ques- stumbled into the line of Davis’ entire direct examination of Dr. DeLa- tioning majority opts on redirect. The torre, exception with the professional of his scenario, the latter speculating that Dr. background: devastating testimony Bosch’s “resulted from Q: right. All you you I’ll ask if attempt trial counsel’s to extract favorable occasion to examine the Defendant this testimony Majority from the Opin- witness.” case, Waters, Kelly past? ion at If thought 1520. Davis questioning A: That’s correct. testimony would elicit favorable from Dr. Bosch, it is absolutely because he had no Q: you you Can state what date exam- idea say. what Dr. Bosch would With even ined him? preparation, minimal Davis could have A: I saw him the first time the date egregious avoided his blunder. That that he was admitted to the Forensic Ser- blunder was due to preparation, lack of rath- 21st, August vices Division in er than to sabotage, intentional does not Q: And then did reasonable, render see him more than Davis’ conduct as the ma- that one jority time? concludes. majority opines also rounds, that the testimo- A: I saw him mostly once a

ny of Dr. Bosch week, also, on redirect examination was him saw when he was at not harmful to Waters: “That competent, did Stafford for to decide he was defense, help competent we are not con- to stand trial when re- vinced Majority that was harmful.” Opin- building. leased from the Binion type of evaluation to see if we are time did another period what Q: And over diagnoses agreed with the offered him once a week? you see sending people psychiatrist before a month. A: For about the court. approximately him four Q: you saw So Q: you disagreed? And times? agreed diagnosis A: I was with round, got I in one and A: Four times in anxiety neurosis done the Binion Build- with him. interviews two or three ing. During course of those inter- Q: Q: anxiety agreeing You are with neu- views, form a medical you able to rosis? to his mental condition? opinion as A: That’s correct. A: ...Uh you Q: explain to the how Would ... you it if were able Q: Just answer anxiety neurosis differs from a schizo- an opinion. got A: I an phrenic condition? his records to find Q: Did consult neurosis, anxiety people in A: The diagnosed paranoid as a that he had been anxious, anxiety, person feels when the type schizophrenic? there’s not too much difference with the information that he was got A: some schizophrenia. schizophrenic. diagnosed paranoid aas Q: There’s not much difference. diagnosis? Q: you concur in that Did A: Not much' difference because the No, A: sir. people that feel anxious react different actions, people, exaggerate his than normal Q: You did not? become violent at times. At times he feels No, A: sir. symptoms depressed. It’s mixed of differ- your diagnosis? Q: What was illnesses, per- but the types ent of mental anxiety My diagnosis neurosis. A: was reality. always good contact with son Q: kind of neurosis? What Q: right. All by the A: It’s a neurosis characterized questions. I have no further Mr. Davis: feelings anxiety and ... Respondent’s Exh. 1G at 1013-1016. Q: understanding I’m that word. not essence, Dr. DeLatorre testified Feelings anxiety. A: paranoid not suffer from schizo- Waters did Q: you ... Would neurosis, anxiety phrenia, but time, nervous, A: ... all the tense. reality. good contact with that he was anxiety? Q: your One of words was Thus, Dr. DeLatorre’s entire surprisingly, case. Not to Waters’ Anxiety. A: harmful prosecutor’s of Dr. De- cross-examination Q: part of that? And what’s the first short; extremely prosecutor Latorre was Anxious, neurosis, anxiety A: neurosis. good merely that Waters “was clarified Q: Anxiety neurosis? reality” knew the difference contact with A: Neurosis. right wrong. Id. at 1016. between diagnosis? Q: your And that majority that a reasonable attor- concludes No, tes- ney Dr. DeLatorre’s my diagnosis. it was would have offered A: That was mercy timony support plea of a agree my diagnosis. I was with support insanity defense. As with by a diagnosis, diagnosis was done Bosch, testimony Dr. Davis’ con- Building, redirect Binion that he psychiatrist ways: of two may explained in one duct be assigned psychiatrist to a mental intentionally sabotaged his client’s diagnosis. And either He made the evaluation. stand, I, by calling Dr. DeLatorre Forensic case medical director of the as the had no idea what Division, check, prepared all the or he was I need to review (As say on the stand. Dr. DeLatorre would Division diagnoses in the Forensic Service above, Davis nor II.B. neither noted if are correct. So we make to see myself in stomach with a .22 caliber one of Dr. DeLatorre as Manning identified n occasion, I second taken rifle. On the with whom talked expert witnesses trial.) poisonous medicine which consisted some way, Davis acted Either prior to rubbing alcohol and white of a bottle incompetently. linament. that Dr. DeLa- majority contends The ago occa- Q: lоng How was the second harmful to coun- testimony “was torre’s sion? than a sentence less to obtain sel’s efforts Something A: like 1966. it “was because death for Waters” presented from mental counsel evidence ago occa- Q: long was the first How perspectives different experts with health sion? Majority Opinion at diagnoses....” happened I ’64. A: believe majority suggests that counsel 1519. The Now, Q: your marriage present to the offering testimony faulted for cannot be Waters, Waters, your Helen is second Mrs. picture of more accurate paints a fuller and marriage, is it not? defendant, if the is ulti- even Yes, A: sir. the defendant’s case. This mately harmful to Q: your marriage, And first did end totally the ad- approach inconsistent with in divorce? integrity which the process, the versarial Yes, A: it did. of counsel standard is assistance ineffective designed protect. Q: a child ... Was there Yes, example of Davis’ violation of the A: sir.

A third advocacy rules of trial is Davis’ fundamental Q: your marriage? ... first put Waters on the unbelievable decision Yes, A: sir. put client on the stand even stand. Davis Q: age And what is that child now? testimony could add abso- though Waters’ A: Sixteen. nothing case for the defense. lutely Q: Where does she live? gruesome elicited from Waters Davis then inflammatory regarding the de- City, A: Florida. Lake reproduce crimes. I here Davis’ tails of the Waters, Q: you formerly, Mr. were examination of Waters: entire direct not, you Waycross? were a cab driver Kelly Q: Eurus Your name is Waters? Yes, A: sir. A: Yes sir. you Q: you I’ll ask if can tell us some- Waters, Q: your until the time of Mr. thing about the events on and around the arrest, your Way- you lived with wife in 25th, 1980, April involving date of visits cross? by you Jekyll example, Island? For Yes, 25th, 1980,

A: sir. now, April Friday. on a you Wednesday recall the before that Can Q: that at 708 Homer Street Was Friday going Jekyll Island? Waycross? Yes, sir, Jekyll I A: I believe went to A: That’s correct. fishing day. Island jail Q: you’ve since And now been May early Q: particular day, you of 1980? can On that re- anything happened? member Yes, A: sir. Only got A: real bad sunburned. Waters, Q: during if you, I’ll ask Mr. your you the course of lifetime have ever it, you you Q: get And did how attempted yourself? kill beach, fishing lying just ... on the or sir, A: occasions. Yes on two A: Both.

Q: ... how? A: Both. Q: right, that. All sir. Tell us about Q: you hap- what attempted A: time I to take And can remember The first day? pened you Jekyll my gunshot was a wound. The —I shot after left life Yes, remember, A: sir. thing A: considered —I know, be that, that would you Q: following can tell And then house and drank by my sister’s stopped happened next? us what tea. some only thing thing next A: The that —The Davis, mind, right. my is that I Q: All to Mr. that comes drinking drinking, that I some talking about I’m the sister A: Which alcohol, whiskey. regard in to And some Rainey. Georgia is question only thing I day, the that the rest of the then, Now, about Q: right. All just in the statement is what is remember Thurs- been a day, would have which next Curley. I to Mr. that made about that anything unusual day, was there now, Well, go to Q: going we’re to have that you remember day that caused you a through But first I’ll ask that. day? you drinking question or two. What were happened, no. Nothing unusual A: on that occasion? remember, you Friday, Q: Then on Calvert’s, I A: believe. course, day, Friday? that you gotten it? Q: And where had Vaguely. A: say I don’t A: I can’t for sure because to the Court Q: you state Yes. Would know. begin- out at the happened? Start what Well, Q: right. You don’t what —All happened day and what ning of the state Well, was it in? know. what size bottle Friday. on that half-pint particular A: That one was Davis, my recollec- A: Mr. best bottle. I thing that remember that the first tion is pocket Q: you your when Did wear it my Friday taking happening on toas it, that bottle? you drinking out of weren’t wife to work. sir, I that it was A: No believe you took her Q: right. And All when car. work, you do? what did you Q: your car. Can remember In have idea. A: I don’t you encountered before the occasion where being Jekyll you on Q: Do remember killed, before who were the two women day? you buy a you remember —Did that? Can Yes, A: sir. anything along go or to a store or chaser day time of Q: you tell us Can what at all? that line day? Jekyll you got to was when Yes, sir, bought I I believe that A: sure, Well, I but would A: can’t be coffee, Gatorade, and also and some some morning. say in the late sometime Market, or Zippy cigarettes, at the little is, Jekyll Is- of it Now, course, through the name whatever Q: you’ve, of sat land. trial, to do under the you’re as entitled this lady take the stand You heard

law. Now, Zippy Market Q: where from Darien. Googe of Mrs. name located? Yes, you go sir. into plaza A: shopping A: go Jekyll, onto island. seeing her that Q: you Do remember people Q: you know area day? Do Marina over there? call the New Yes, talk to her on I did A: believe Yes, I do. A: day. the beach in it? Q: you ever fished Have say she had to Q: You heard what that was be- the conversation Many A: times. about ... you her. Was tween you’d been Q: you go Did after later Market, Mart, you did Yes, Zippy Zippy A: sir. Marina? area of the New go over to the you way Q: with the ... accordance Yes, sir. A: it? remember Q: you got you it there while were Q: And when that —What Was driv- ing? driving? you Yes, A: it was. My A: ’74 white Chevrolet. Q: there, you Did have handcuffs?

Q: you got over what did When see, anything? if Yes, sir, A: I think so. Nothing particularly. A: stands out Q: they? Where were Now, there was a sailboat there Probably ‍‌‌​​​​‌‌​​‌​‌​​​​​‌​‌​​​​‌​‌‌‌​‌‌‌​‌‌‌‌​​‌​‌‌‌​​‍my pocket. A: large marina consists of a river. This Q: place Would that be the normal lagoon from the river. that makes off them be? there and there were There was a sailboat No, sir, generally they A: were on the people some believe was one black —I signal light they reflector knob is where fishing. man and one black woman generally were. Q: At the new marina? Q: Hanging, dangling? Yes, A: sir. Yes, A: sir. Q: you right. All Then after observed Q: right. say Now, you’ve All You — that, happened? what next already you pulled your gun said that thing The next that stands out to A: Now, the ladies. ... recall, me that I have been able to been Yes, A: sir. recollect, able to was I went around to the time, Q: you your ... at that were Marina, far side of the Nеw which it con- car or out of the car? dirt, narrow, road, sists of a dirt and Now, car, my there I saw this red car. as to the A: I was out their out of car ear, I have no idea. make and at the rear of their car. Q: Q: right. your gun All Where was at that time? my A: hand. coming A: But there were two ladies up steep go- the —There is incline there Q: And where were the handcuffs at ing down to the water. And I observed that time? coming up two ladies that incline. time, guess A: At that I the cuffs were Now, Q: you say coming up, when my pocket. would have been the water to Q: what, right. All anything, And if car, you’re their is that what ... you got was said when there and that A: That’s correct. happened? what, happened, After that if anything, was said?

Q: telling ... us? just A: I they told them that were Yes, sir, trying A: I’m that’s what —I going go to with me. And I marched them say. some, something across like a hundred Q: right. All And what occurred? yards, to a wooded area where it’s real pulled my up A: I car beside of their’s. brushy. guess my And I intentions was Q: you driving you So were still when sex; I anyway, don’t know. But Mrs. coming up? saw them was, Culpepper, put I believe her name Yes, sir, A: I was. cuffs on her wrist and Miss Paseur’s wrist. Q: right. All Q: you Did tell her to do that? car, car, got my A: IAnd out of the Yes, A: I I believe did. pulled my gun on them. Q: they tight Were fastened or loose? Now, Q: you say you pulled your gun. No, sir, A: they very loosely. were Yes,

A: sir. Q: Then what occurred? Q: your gun Where had been? I Culpepper A: had —I made un- Mrs. My gun my my down, A: hip pocket, was in dress from I attempt- the waist right hip pocket. ed to have oral sex with her. „ time, particular they Q: only thing At that A: The that stands out is standing, sitting lying or down? Culpepper she accused Mrs. enjoying doing what I was to her. Lying

A: down. Q: Is that a fact? Q: they lying on their stomach or Were Yes, A: sir.

their back? Q: Anyway, what next occurred? A: On their back. with, they A: Then after it was over Q: by or in Were side side some got up dress, attempted both Mrs. position? other did, on, Culpepper as she had I believe it side, yes, A: sir. Side pair sure, was a of shorts. I can’t be but I Q: during At time that time when think that’s what it was. And as she you, you you attempted stated to have pulled up buckled, got her shorts them sex, you unzip your oral did ever trousers? got zipped, them or however she fas- them, No, sir, this, A: I tened did not. after she did her and Miss Paseur both at the same time made a Q: your Did ever take trousers know, lunge, just and don’t had the —I down? gun pulled trigger. on them and I No, A: sir. And I Culpep- believe that I struck Mrs. Q: You did not undress at all? per, back, and then as I she fell shot Miss No, A: sir. Paseur. Well, Q: Now, length

Q: you say you what of time was there attempted when sex, between to, the first shot and the second necessary to have oral it’s for this shot? exactly you to understand what mean. Now, that, you say you, you when do are very together. A: It was close telling your it that was mouth? Q: you only? Did fire two shots

A: That’s correct. Yes, A: sir. Q: you saying pri- Are that it was her Q: Not three?

vate, ... female No, A: sir. A: That’s correct. Q: you At the time that fired the first shot, Q: ... Culpepper gotten that was involved? had Mrs. her clothes back on or not? A: That’s correct. Yes, A: sir. Q: nothing And else? Q: you And then what did do? A: That’s all. the, A: I then lеft them both on the Now, Q: long attempt how did this ground my back to ear. went oral sex last? Q: You did what? A: Not over three four minutes. A: I left them there and went back to time, Q: during And what my car. Paseur, younger

Miss of the two ladies Q: you way anything, Did do one or the doing? other, respect clothing with of Miss Well, laying A: she was side of Mrs. Paseur? Culpepper, very hysterical but she was Yes, did, ripped A: I I them. screaming Culpepper. she was at Mrs. Q: anything you Did do else? Q: Screaming? A: No sir. Yes, A: sir. Q: you go your car? Did then back to Q: during All that time? Yes, sir, my I A: I returned to car and Yes, A: sir. car, ear, passed by their or her whichever to, Q: you belonged pocket- one it I take her Do remember the words she said? book off the front seat of the car. about, things happened all you did do? of these

Q: then what And following that? immediately left the island. IA: No, sir, I A: the best that can remem- you Q: did head? And where ber, go I them. would accordance with A: Home. Q: You what? Q: Waycross? To go A: I in accordance with them. would Yes, A: sir. Q: I didn’t understand. way Q: happened on the And what They A: would be in accordance. Waycross? Q: right. All In accordance. pocketbook A: I threw the out some- may Mr. Davis: You examine the wit- Bridge. around the Satilla River where ness. Now, you went at that. Q: describe how Respondent’s Exh. 1G at 1147-61. passenger’s you throw it out over the Did were, seat, side out of majority portray or on the same seeks to Davis’ deci- your side? put the window the stand as a reason- sion Waters on strategic help able decision calculated to “hu- wrong pulled A: over to the side eyes jury. manize” of the This the road from which should have been portrayal is erroneous two reasons. traveling and tossed out the window. First, anything Waters’ did but of, Q: you tossed it out The window eyes jury. “humanize” him in the of the it the driver’s side window? description killings chilling. correct, yes, A: That’s sir. prompting, At Davis’ described not Q: goit over the And did bannister grisly crimes, details of his also bridge there? testimony, the victims’ reactions. Waters’ as Yes, sir, A: I think so. Davis, by paints picture orchestrated of a man who killed without emotion. Q: you And then what did do? Nahunta, proceeded A: I on towards Second, evidence offered at the state habe- seconds, just just a few a min- few which hearing pre- indicates that Davis did not this, by I stopped utes after a Brant- testify. pare Manning Waters to testified ley County Deputy Sheriff. put that the decision to Waters on the stand possibly was made “in the courtroom itself or Q: testify. You him heard Was that holding adjacent with Mr. in cell stopped you? the same man who Respondent’s to the courtroom.” Exh. 3B at Yes, sir, it A: was. 86. Davis testified: Q: Mr. Rowell? Q: testimony The Defendant’s was in- Yes, A: sir. accomplish you tended to what? Do re- Q: Meanwhile, you looked member? pocketbook to see whether there was mon- Jury A: It was intended to allow the ey in it or not? Kelly form a clear idea of what Waters was Davis, A: I Mr. don’t know whether I person. like aas did or not. Q: youDo remember a moment in Mr. Q: You do not know? testimony disсussing and he’s IA: do not know. facts of the crime and he recounts the by younger statement made Q: Now, of the two you’ve testimony heard the victims? that, happened following about what testimony that has been accordance with Yes, A: I remember that. your memory things happened that Q: you Do remember state- after that? enjoy- ment had to do with the older victim Yes,

A: it has. ing the sex act that Mr. Waters was com- mitting at the time Q: your memory you And doesn’t tell Yes, from different what has been testified A: I remember that. . Q: you any good Do recall the effect of that testi- ... Can come out of this case? I’ll mony say say good it can. I’ll on the courtroom? that can come out of it would be this. know We Well, course, that would a A: involve happens what Kelly to a case similar to speculation little but it stands to reason taking Waters when he refrains highly adverse that it was effect. drugs. sorrow, We’ve found out to our fact, Q: you As matter do recall a County, the utter shame of the to that courtroom, couple leaving sobbing? brought event which so much sadness to No, I A: don’t recall that. wife, to the families of the victims Q: piece testimony that a Was case, to that brought occasion which so you you felt wanted the to have? much family sadness to the of the Defen- No, dant in this case. We found out what A: it was not. happen. say would if he is allowed to Q: piece Was dis- life, imprison- serve a sentence of life Mr. cussed with the trial? before ment, living subject he is a that can be A: It was not. studied, upon whom the effects of drugs can be determine with more certain- ty prime than it can be now. He is case Q: you Did tell [Waters] the tri- before happen if what can he doesn’t take him, you going al that to ask drugs steps may and what be needed example, question that drew the re- society to that a ensure man his boots sponse that we discussed earlier? drugs put needs to take and needs to be No, A: I don’t —as a matter of fact I you under such circumstances as either asking question don’t recall him a drugs know he’s on or else he’s in a condi- particular response. drew that The testi- where, nothing, tion where no harm can mony given by him but do not recall come from him if taking he refrains from having response specific its been to a going responsible them. You to make him question by me. Well, taking them? he’s a nut to start Respondent’s (emphasis Exh. 3B at 60-61 happens every day with. It in our lives. added). recollection, Contrary to Davis’ Wa- depend You cannot on that. inBut damning testimony response ters’ case, case, can. his he’s an ideal very pointed specific by questions Davis. subject say, profession for the medical Again, intentionally sabotaged Davis either man, right, all is a here called to God one case, his client’s or he had no idea what his day, pistol called to a and handcuffs the say client would on the stand. day. got split per- next He’s that kind of example sonality. A fourth and final of Davis’ viola- He doesn’t know whether practice tion of the fundamental rules of trial serve the Lord or serve the Devil. He closing argument is his at the conclusion of doesn’t even know whether he wants to be sentencing phase. closing person With this ar- or not. We’ll take him. We’ll gument, experiment Davis violated the last two rules with him. We’ll find out more can, disparaged activity listed IIIA.. above: he about what the limits of in his and, jury, good him diminished Waters before the ease. We’ll use for the of soci- identifying ety, rather than with Waters and so that an offense of this will nature him, helping jury identify repeated. thing with he dis- not be That’s the human begin- socially tanced himself from Waters. At the to do in this case. It’s a advisable ning closing argument, thing agree thing of the Davis said: “It to do. I this sort of Kelly suppose strikes me that is a I Waters miserable excites the basest emotions breast; being....” Respondent’s wreck of a human can be excited in the human re- venge, mercy, Exh. 1H at 1344. Davis then concluded the lack all those kinds of of of closing argument by referring to Waters as emotions are excited in the mind of subject living person “a nut” and “a that can be normal that heard this evidence. studied,” course, socially and he asked the to make “a Of it is. But what is the merciful, biblical, study” killing acceptable, of Waters rather than him: Christian civilization, say tury kill of advanced we have wit- don’t him. thing here? to do (with Adolph of an Hitler put him out of nessed the horrors him out. Don’t rub Don’t followers) Study peaceful him. and the Keep him. Learn his millions of existence. any- yoke by him can’t do of British a non- Keep so he overthrow about him. Maybe any harm. from the body else violent Ghandi. life, the results ... of his continued result attorneys Effective defense know the am- of him and a continued examination of jurors’ feelings can be bivalence with which possible study him make it that the will words, behavior, by and nuances influenced people innocent will not be of more lives ap- courtroom. had as his Waters you that. I ask to consider sacrificed. lawyer pointed defender a who either did not reaching your verdict to And I ask understand this drama or who himself man continue to live the interest let this thought being was not a human your duty enlight- serving, doing as an deserved to die. I do not attribute to Davis facing up to the tremendous ened citizen age, I think this latter callousness. Davis’ upon you in responsibility that the law vest years Congress, far and retirement so this case. courtroom, fray removed him from the added). Thus, (emphasis Id. at 1353-33 incapable rising consid- that he was to the the case for his client —not Davis concluded challenge presented by assignment erable plea mercy being, for a human with a Constitutionally, to defend Waters. Davis’ dehumanizing request speci- with a to allow defense of nor neither effective men to be studied. purposeful, despite anything majority majority spends surprisingly, Not says contrary. holy. Life is dear and justify attempt much time in its Davis’ Humanness is a sacred state. believe a doing, majority closing argument. In so defendant whose life is in the balance de- cynical utterly depressing endorses a legal effective, representation serves that is mankind, jurors particular.

view of and of purposeful, point and to which we can with closing majority that Davis’ concludes penalty. confidence when we affirm a death argument notwithstanding was reasonable That scenario does not exist here. runs counter to basic moral sensibili- ties; majority says: strate- as the “counsel’s Davis’ ineffectiveness as Waters’ defense gic range decision within the wide attorney every page cries out from to the task reasonableness —reasonableness transcript as well as from the hand, not reasonableness as a matter of Manning hearing. Davis and at the habeas philosophy.” Majority Opin- moral values or admission, By his own Davis was aware that majority suggests ion at 1522. The issue for the was whether jurors likely are more to be motivated an Waters lived or died. Yet he had no strate- appeal to base human emotions —such as a gy trial; sentencing phase for the of the being desire to turn a human into a laborato- presentation of evidence was directed toward ry specimen by appeal mercy. an —than whether Waters was insane at the time of the degrading I cannot concur in view of such killings, when he did not have a of shred my fellow man. evidence that would show Waters did not right know the difference between

IV. CONCLUSION wrong; his elicitation of evidence from wit- Where a has confessed to mur- defendant nesses he called Waters’ behalf sealed fate; penalty, completely exploit der and the State seeks the death Waters’ he failed Ohio, 586, purpose promise defense counsel’s is to seek a of Lockett v. 438 U.S. Obviously, (1978), light life sentence. is no 98 S.Ct. 57 L.Ed.2d 973 assignment. guilty may Success turns on whether coun- defendants found of murder nev- portray being. escape penalty sel can his client as a human ertheless the harsh of death jurors prac- by If establishing mitigating conclude that the defendant is evidence that ex- animal, tically plains leading a violent of vote the death the behavior the defendant penalty unexpected. is not In this 20th Cen- to the murder. entirely devoid trial record The of mitigat- presentation discussion

Davis’ remedy by established ing evidence trial court of the The instructions

Lockett. advising jury one sentence

contained “Members of the mitigating evidence:

about should, all consider

Jury, you should trial of this case

evidence submitted

arriving your as to the sentences verdict would include

imposed. This by you mitigating circumstances received Respondent’s Exh. 1H at 1362 case.” in this added).

(emphasis ample available evidence Wa-

There was and halluci- schizophrenia, its delusional

ters’ of the disease

natory components, the effect ability control his or her person’s

behavior, specifically how it affected Wa- evidence, such the exclusion

ters. Whether placed in inflammatory evidence evi- client, against his own

dence Davis Lockett would education of the about verdict, for life resulted a sentence

have The case was a diffi- shall never know.

we But that was no reason for Davis

cult one. trial commenced and tell

to surrender before nut.” closing that ‍‌‌​​​​‌‌​​‌​‌​​​​​‌​‌​​​​‌​‌‌‌​‌‌‌​‌‌‌‌​​‌​‌‌‌​​‍his client “was a promise and the

The Amendment Sixth Wainwright, 83 S.Ct. v. 872 U.S.

Gideon (1963), was not fulfilled 9 L.Ed.2d 799 trial. Davis was ineffective. petition for court’s denial of Waters’

district be reversed. was error and should

the writ INC., Appellant, PRODUCTS,

LABARGE Secretary WEST, Jr.,

Togo D. Army, Appellee. 93-1266.

No. Appeals, Court

United States

Federal Circuit.

Jan.

Case Details

Case Name: Eurus Kelly Waters v. Albert G. Thomas, Warden Georgia Diagnostic and Classification Center

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 4, 1995

Citation: 46 F.3d 1506

Docket Number: 88-8935

Court Abbreviation: 11th Cir.