John Glenn v. Arthur Tate, Jr., Warden
71 F.3d 1204
6th Cir.
1996
Check Treatment

*1 light decision, of the Supreme (2) Court’s

to reconsider Fort Gratiot’s motion amend complaint

its awith section 1983 claim for

money damages. GLENN, Petitioner-Appellant, TATE, Jr., Warden,

Arthur

Respondent-Appellee.

No. 93-3568.

United States Court of Appeals,

Sixth Circuit.

Argued April 1995.

Decided Dec. 1995.

Rehearing Suggestion for Rehearing

En Banc Denied Feb. 1996. *2 lawyers had petitioner’s if the

available to do so—and They failed it. sought of mis- a series error compounded things, led to the which, among other takes uncontradieted ex- being presented with jury not the the offense was that evidence pert organic retardation product of mental (argued Perry Lazarow, P. Jane S. William disease. Office, Ohio briefed), Defender’s Public mistakes, in lawyers’ the serious were So Columbus, OH, Commission, Defender Public lawyers not function- view, the that our Petitioner-Appellant. for the was accused “counsel” which ing the as And Attorney Gen. Amendment. under the Sixth Keyser, Asst. entitled G. Donald Attorney representa- adequate briefed), the lack of Office of the because (argued and OH, Columbus, Respon- in the tion, reached Ohio, for result the General While simply not reliable. proceeding was dent-Appellee. insofar habeas relief affirming the denial SILER, NELSON, GUY, conviction con- petitioner’s murder as the Before: the habe- cerned, writ Judges. direct that we shall Circuit petitioner is unless corpus granted be as opinion NELSON, J., delivered resentenced. SILER, GUY, J., joined. J. court, in which opinion separate 1212-14), a delivered (pp. I part. in dissenting in concurring Glenn, has John petitioner, Although the innocence, NELSON, Judge. Circuit his consistently A. maintained DAVID it strong that evidence presented prosecution writ of a the denial from appeal is an This depu- part-time a killed who shot was he prisoner by an Ohio sought corpus of habeas Jr., of 1981. Litch, sheriff, October ty death, imposed on a sentence of under who is attempt to during an shooting occurred The aggravated jury, of a the recommendation of John Glenn, an brother older Robert free contends, among petitioner The murder. custody. Glenn, deputy’s from the effec- failed receive things, he other Mahoning Glenn, at the counsel, an inmate prejudice, Robert tive assistance Ohio, period- was Youngstown, jail in County trial. of his sentencing phase treatment hospital for local ically taken to in a murder law, the defendant Under devised apparently leg. He a broken be sen- cannot jury ato is tried ease that route staged en escape be plan finds, beyond unless the to death tenced help got he hospital, and cir- aggravating doubt, a reasonable (Robert was later plan out. carry was that the victim fact cumstance —here escape and charges of convicted tried and any mitigating outweighs peace officer— evidence manslaughter, and the involuntary significant Perhaps the most circumstances. characterized trial was at his circumstances potentially Rob- it was showing that as prosecution that, according to fact was this ease sig- “his escape; planned who ert Glenn been im- after sentence elicited evidence pros- plan,” the escape over this is all nature who had young man petitioner posed, the —a case.) in Robert Glenn’s argued ecution mentally retard- as school classified assignment drew the Litch Deputy Sheriff acting at the insti- ed, apparently who day on the hospital driving Robert brother, of an older gation completed, trip was Before the question. people he suggestion by susceptible to highly and black showed, turquoise evidence damage global brain admired —suffered rear from the deputy’s vehicle car testi- struck Expert was bom. he before sustained got deputy When busy intersection. aat brain function mony petitioner’s driver approached cruiser readily out of impaired organically ear, of the other the latter shot him point- found guilty John Glenn blank range with a shotgun. sawed-off charged. A days later, few after a relatively victim immediately. died almost evidentiary brief hearing sentence, on the jury recommended imposition of the death Robert and the other man fled penalty. trial court accepted the recom- *3 scene in the car. John Glenn was a arrested mendation. few later hours at the girlfriend, home of his After exhausting his state remedies on di- Alseen Lanier. Ms. Lanier testified at trial appeal rect post-conviction and in proceed- that John told her he had killed a police ings, Glenn petitioned the United States Dis- officer and that she keep should this a secret. trict Court a for writ of corpus pursu- habeas At approximately the same time as the ant to 28 § U.S.C. 2254. The district court Simmons, shooting, Otis acquaintance petition, denied the appeal and this followed. Glenn, John was stopped by police a officer for reasons unrelated to the homicide. While II Simmons was cruiser, the officer’s a call appellant’s strongest argument came over the radio about shooting the is that he failed to receive effective assis Deputy Liteh. Simmons then told the officer tance of during penalty the phase of that earlier in day the John Glenn had told trial. his To obtain relief on ground, such him he was going to “escape” his brother he must both show that his perfor counsel’s Robert. mance “fell objective below an standard of The crime occurred days three after the reasonableness” and that prejudiced he was date of legislation effective the 1981 as a result. v. Washington, Strickland cured constitutional defects in 668, Ohio’s death 687-88, 692, U.S. 2052, 2064- penalty law. See Ohio §§ 2067, Rev.Code 65, 2929.02 (1984). 80 L.Ed.2d 674 et seq. A Mahoning grand County jury in- The state court of appeals to which Glenn Glenn, dicted years John who was 19 old appealed from the trial court’s post- denial of time, aggravated murder. The indict- conviction relief concluded that perfor- ment specified that the victim of the offense mance of Glenn’s counsel was not objectively was a peace engaged officer in his duties. reasonable. The denial of relief was none- The charge was one for which the death upheld theless theory that Glenn could penalty could imposed be under Ohio Rev. not prejudice. demonstrate appeal An Code 2929.04(A)(6). §§ 2929.03 and this decision was dismissed opinion without Supreme Court of Ohio. Publicity about the case sowas extensive Youngstown area that the Mahoning Like the state court of appeals, the County Common Pleas Court was unable to federal district court rested its disposition of seat a twenty-three after days of voir the ineffective question assistance solely on dire. appointed Mr. Glenn’s trial counsel “prejudice” branch of the Strickland in for a change venue, moved and the case quiry; pretermitted district court was sent nearby Portage County for trial. issue of whether lawyer’s performance pass could constitutional muster. We must

Both Ms. Lanier and Mr. Simmons testi- review the question novo, entire de fied see at the trial. In addition to highly Strickland, 698, 104 466 U.S. at S.Ct. incriminating testimony, prosecution in- and Sims v. Livesay, 970 F.2d troduced chemical test which revealed that (6th Cir.1992), respect for our state and significant amounts of bari- federal colleagues who already exam um hands, on this consistent with the recent ined question prompts us pay particu use of weapon. There was evidence that larly close prejudice attention to the aspect. Robert Glenn’s mother had turquoise black car that had been driven Under Ohio’s penalty statute, death morning on the of the murder. Plas- trial required weigh against ter scrapings found in the car matched the aggravating circumstances of the crime “the plaster of Robert Glenn’s leg cast. history, character, background of the mitiga assembling time-consuming task Rev. things. Ohio offender,” among other jury’s verdict until after re- 2929.04(B). witnesses jury was also tion § Code that witnesses whether, of a almost insures guilt phase “because consider quired to Singletary, defect,” Blanco the offender available.” be or will mental disease (11th Cir.1991), cert. appreciate 1501-02 capacity to F.2d “lacked substantial his denied, to conform criminality of conduct law.” requirements L.Ed.2d 207 conduct 2929.04(B)(3). And Ohio Rev.Code lawyers prepa- did Only of Glenn’s one “[a]ny other required to consider jury was verdict, and following the ratory at all work the issue relevant are factors that ar-He misdirected. largely efforts put be should offender whether videotape of a preparation ranged 2929.04(B)(7). Rev.Code *4 death.” jury had which, of the if members the mat- of these none consider jury could The them it, shown would have to see permitted not facts course, were ters, if relevant the of neighborhood of the appearance physical the it. before placed en- up and have grew where Glenn infor- virtually no jury given Here the commentary by a narra- to hear them abled character, history, John Glenn’s mation on mother, by a and truck- tor, by Glenn’s John damage organic brain and background —at The worked. had once er for whom to a calculated sort no information least obvious- videotape was admissibility a of such to whether doubt raise reasonable ad- sought no counsel but ly questionable, It was death. put be to ought young man to the video- issue. ruling on the When vance found, not be could information that such not jury, the to the sought to be shown tape was to decision a reasoned made or that counsel view, see our properly, trial court held— stra- tactical or for the information withhold 12, 586, 98 Ohio, 604 n. 438 U.S. v. Lockett pre- was not information tegic reasons. 12, 973 2954, n. 57 L.Ed.2d 2965 S.Ct. never counsel jury because sented hearsay. (1978) inadmissible it was —that develop it.1 time to took the video- see the jury did not the Although court-appointed Although both of nor Glenn’s mother tape, neither experienced criminal defense lawyers were live present called employer was former eight they had some although attorneys, and producer-narra- testimony. Aside from sentencing proceed ready for get months to prepara- briefly as to the tor, testified who could that a verdict ings necessitated only mitigation videotape, the of the tion them, surprise as a hardly come have minister and a jury heard witnesses at trial court presented to state evidence when known a teacher the law hearing that showed post-sentence a for nothing of him seen but had he was small virtually attempt prepare no yers made know him did a minister who years; until phase the trial success, much attempted all but guilty. —without its verdict jury after returned being ruled testimony proposed most of been, that obvious, or should It was objec- theological present inadmissible —to stage likely be “the sentencing phase was lawyer who a and penalty; death tions to the do his can where proceedings counsel of the although John that opinion expressed Thier Kubat v. good,” client most or her adjudication delinquency denied, Glenn (7th Cir.), 351, cert. et, F.2d 867 369 misde- arrests some included that record 206, L.Ed.2d 493 U.S. “signif- convictions, did not he meanor make failed to (1989) yet— (This per- testimony criminal record. icant” the sentenc preparations any significant fac- mitigation statutory to one tained phase until after conclusion ing significant a tors, lack offender’s “[t]he objectively inaction was This guilt phase. de- convictions history prior criminal difficult save the “To unreasonable. attorney has failed (11th when Zant, be reasonable can 941 F.2d 1. See Horton a reasonable options denied, and make investigate his Cir.1991), cert. court where them.” between choice 117 L.Ed.2d ‘strategic’ decision "rejectfed] the notion linqueney adjudications.” Ohio Rev.Code psychological evaluation conducted a month 2929.04(B)(5).) before his birthday reported 14th a full scale I.Q. score of placing him “within the John Glenn himself a brief made unsworn Mental range;” Defective psy- another jury. statement, statement in its chological evaluation conducted in this time entirety, was as follows: frame described him as “an ineffectual and “I guilty. am —I am not I should not be dependent young man” who very “is anxious given the —I should not given be the death insecure;” that he left school virtually sentence for a crime I did not commit. illiterate; that his mother beat him and his you.” Thank siblings regularly; and that he was hyperac- None of testified, Glenn’s relatives although a child, tive as a constantly butting his head number of them would willing have been against things rocking body back and do so if asked. forth when he went to sleep. Expert testi- mony prosecutor adduced at post-sentence told argu- hearing final indicated that “you ment the hyperactivity received way little caused by a neurological mitigation impairment. supposed mitigation hear- ing.” true; This certainly did Tanley, James a neuropsychologist very receive way little mitigation evi- who examined John Glenn in connection with *5 dence at supposed what was to be mitiga- post-sentence proceedings, found that tion hearing. Glenn (Dr. was of intelligence borderline Tanley reported 73), a full I.Q. scale with The paucity reason for the of mitigation evidence of damage. brain “There is no evidence, said, as we have prepa- was lack of my in doubt mind but that something there is ration on lawyers. of Glenn’s neurologically wrong brain,” with his Dr. lawyers systematic made no effort to ac- Tanley testified, “and that going to have an quaint themselves with their client’s social on effect his behavior.” history. They spoke never any of his numerous brothers and They sisters. The brain damage never global nature, examined his school They according to Tanley, records. Dr. never might well have examined his medical surgical records resulted from (including an operation performed emergency prepared room record Glenn’s mother under general after he anesthesia collapsed early (Another court one her day) pregnancy. or expert records counseling health witness they who pertinent knew examined the hospital he had They received. never records also probation endorsed hypothesis.) talked officer probation examined the officer’s Tanley expressed the view that John records. although And they arranged for Glenn did not have the capacity substantial tests, some months before the start to conform his conduct to requirements trial, to determine whether competent he was of the law. The opined doctor also that it trial, they stand waited until after had he was “extremely unlikely” that John Glenn guilty found taking before their first himself would have capable of thinking step misstep, as explain we shall pres- —or up plan to break Robert Glenn from free ently arranging expert for wit- —toward custody; scheme, John’s role in the accord- might nesses who have ing to Dr. Tanley, would have been that of a evidence on John impaired Glenn’s follower, not a leader. function. A wealth of evidence was available to show If lawyers done what should Glenn had always follower, been a done, they would have been in a posi- opposed as to a leader. probation His offi- tion to show that John cer, Glenn’s fami- example, for supervised who him for a ly always “slow;” him considered period as of 10 months when Glenn was early as grade the first assigned he was to a testified post-sentence at the hearing that program for “educable mentally-retarded Glenn was not keep up able to peers with his children;” that his school I.Q. repeated- tests street, on the “definitely follower,” ly produced 60s; scores that a clinical enough “didn’t have going to be a leader.” expense2) Unable government say vices” inability no about Concerned expert whose services identify any particular officer probation peers,” “negative to his obtain, lawyer then he wished jump off the if he would asked him once appointment of someone asked (a a river high span over Bridge Mahoning compe in the earlier had not been involved water) if his than rocks with more bed suggested prosecutor tency evaluation. he would— said to. Glenn asked friends court to asking the defense probation offi- with the consistent answer psychiatrist psychologist or its own appoint needed boy sought and that the view cer’s procedure, one entirely different under an of the atten- peers. Most from attention Code Rev. authorized receive, proba- did that John tion 2929.03(D)(1) Defense coun and 2947.06. §§ testified, from his brother came officer tion in this acquiescing the mistake sel made Robert. the trial fact that —as despite the suggestion, Glenn, unfortunately for John jurors, jurors time —the out pointed court They not hear that of this. did none heard copies court- necessarily receive mentally in school been classified he the stat reports. Under expert’s appointed his need They did not hear retarded. originally, had cited defense ute that to the influ- attention, susceptibility or his disposition contrast, preparation they did And Robert. his brother ence within have been any reports would impair- neurological had a that he hear of the defense. control gen- probably stemmed which ment Ramani, and Dr. psychiatrist, Dr. D.V. to his mother administered anesthesia eral ap- Siddall, psychologist, W. James he was born. before months trial court evaluate pointed however, jurors indicated, As we 2947.06, under Ohio Rev.Code of a guidance sort. expert *6 without not were doc- The by prosecution. cited the statute arrange- the to understand important is It not but by prosecution, the tors briefed were ob- guidance was this which under ments had no Defense counsel by defense. the at all. tained. the doctors with communication hearing at the the days spoke with John Glenn Nine before Dr. Siddall start, counsel tests. psychological jail gave some scheduled was report that ex- prepared a medical examina for then court the trial Siddall asked believing that provi the Glenn “pursuant to reasons for plained his the defendant of tion that of trial —an issue competent Code stand of the Revised was of 2929.024 sions on went resolved —and (Section provides long since 2929.024 Ohio.” mitigating circum- necessary analyze question the reasonably experts are where crime on the basis how largely the the defendant stances proper representation the furnished in documents portrayed the or at sentenc murder trial aggravated an con- report then The trial, prosecution.3 and the following such hearing ing questiona- that seems a sentence with is indi cluded that the defendant determines court what we given particulars, in several the defen ble shall authorize “the court gent, ques- seemed now, not have but would necessary know ser to obtain the dant’s case, portrayed in of this provided circumstances services that the It is clear 2. suggest that Mr. investigation, do indigent capital documents available § are 2929.024 was a law State of the offense purposes_" the victim his own knew "for defendant 8, 9, duties at engaged N.E.2d St.3d Esparza, 39 Ohio officer enforcement expert is retained under also When Circumstances time of the offense. 2929.04, decide for himself defendant can kill specific purpose to suggest that it was findings expert’s put he wants whether officer, that the very doubtful but it seems this jury. before Sim- the offense. induced or facilitated victim suggestion Mr. ilarly, is no there passage as follows: pertinent reads The 3. duress, coercion, strong unusual under was question circum- "Regarding the fact, sug- do the circumstances provocation, in stances, great possible determine a it not is carefully planned and gest that the crime self-report as he vehe- Glenn's deal mently Mr. out." carried However, the being involved. denies light jury tionable in of what the then: counsel, knew assume that defense having done “Psychological evaluation indicates that homework, were not prepared to inter- product offense not the psychosis, rogate Drs. Ramani and Siddall about the retardation, organic disease, basis for very damaging conclusions illness, education, other mental lack of un- stated. usual pressure, emotional or inadequate cop- any Did reliability this affect the ing skills on the Mr. Glenn.” jury’s decision? We think it did. Viewing Dr. Ramani also saw jail John Glenn at the picture, the total considering both the prepared report. Dr. Ramani’s exami- nature of the presented material jury to the appears nation superficial have been a that should not have been and the nature of one,4 report’s but concluding sentence material not jury to the was, from standpoint, the defense simply been, should have we cannot have much con- devastating: summary, “In within reasonable jury’s fidence weighing of the factors certainty, medical I do not imtigating see relevant to the issue of whether John Glenn particualr [sic] circumstances in- [sic] should be sentenced to death. dividual.” Defense counsel asked trial court to Under test, peti Strickland redact this sentence sending before the re- tioner must show probability” “reasonable port to jury, but the court refused to do that, but for his unprofessional counsel’s er so. probably This error on the rors, the result would have been different. part, court’s in our view. problem would Strickland, 694, 104 466 U.S. at S.Ct. at 2068. arisen, however, never have if defense coun- petitioner does not have to show that his sel had not settled for court-appointed ex- counsel’s deficient conduct likely “more than perts reports going whose given to be not altered the outcome in the case.” Id. at willy-nilly, than exercising rather 693, 104 S.Ct. at 2068. The “reasonable right experts to obtain defense under probability” of which speaks, Strickland 2929.024, Ohio Rev.Code the statute initial- rather, is “a probability sufficient to under ly cited counsel.5 mine confidence in the Id. outcome.” only Not reports did the S.Ct. at Drs. 2068. question, Ramani in other go words, and Siddall into room in unre- whether counsel’s errors were seri *7 form, dacted they went ous enough to the deprive to petitioner without of a any suggestion at all that proceeding some of the conclu- “reliable,” result which was reports sions in the open question. 687, 104 were to id. at S.Ct. 2064—“whether coun John Glenn a statutory right had to examine sel’s conduct so undermined the proper func the authors of reports oath, under tioning see system adversarial 2947.06, § Rev.Code but the doctors trial [a term that capital includes were never called to the only stand. We can proceedings] cannot be relied on as having 4. description The entire of the examination reads "Assuming that the court had authorized the as follows: appointment of Drs. Ramani and Siddall under 2929.024, and defense counsel did not like "On Examination: Patient was well dressed experts, conclusions of the two reliable, what groomed, were and pleasant, cooperative [counsel] to do?” open. contact, and good He was in with no The answer competent seems obvious: no de- psychosis. evidence acute or overt He was lawyer fense would have offered in well evidence cognitive X3. re- oriented His functions in- ports as damaging to the cluding as defense these memory remote recent were. in- we prepared But are not to judgment tact. assume that His had adequate been Drs. to his Ramani and style, experts life Siddall would have to the extent body he worked in a retained shop developing defense under was boxing his 2929.024 if skills. He counsel had done is (Repoted somewhat retarded homework ahead IQ [sic] in 75 time percentile), asked for appear but this authorization doesn’t to hire to be severe someone Tanley, enough example. like Dr. impair to judgement his And capacity or his defense coun- sel manage obviously should day very closely well." worked with anyone retained expert as a defense to insure 5. poses following dissent ques- expert fully rhetorical that the was aware all facts that tion: might helpful be defendant. step the other badly out of with 686,104 would be S.Ct. We Id. at just result.” produced was that there to conclude circuits were we at 2064. in the ease bar. prejudice no can sentencing proceeding having produced as hardly upon relied be merely “grave doubt” as if we Even given to jurors were just result when Supreme prejudice, existence of report of understand, unchallenged in the cAn holding in v. M O’Neal recent Court’s product of Siddall, not crime was that the — inch, -, U.S. disease.6 organic brain mental retardation require to re us L.Ed.2d long has retardation that mental is clear “It But it relief here. of habeas verse the denial may diminish a factor regarded as doubt, such judges to be in “unusual” for is act.” a criminal culpability an individual’s at-, that is 115 S.Ct. at id. Lynaugh, Penry v. ourselves; un in we find the situation which 2934, 2956, 106 L.Ed.2d standard, think we the Strickland der Easterbrook, concurring the affir- in Judge quite is clear. a retard- in case prejudice habeas relief to grant mance apparently suffered who had petitioner ed the head of blows to damage as a result Ill empirical evidence youth, has cited in his juries to distrust tend suggesting that while sentence, challenging his In addition likely to insanity, are more claims proceedings that both the contends their attention sympathetically when

react guilty and those jury found which such as problems organic brain drawn the con- appellate courts affirmed which Aiken, 935 Brewer v. retardation. by error of constitutional tainted viction were Cir.1991) (Easterbrook, (7th 850, 861-62 F.2d African argues that He dimension. J., concurring). The failure to trial right he denied American to the jury’s attention to draw when venue fairly representative here, possi- problem organic brain County, which has a Mahoning changed from into John Glenn helped it turn bility that Portage minority population, to substantial older of his admired in the hands putty not; there were County, does which brother, objectively unreasonable both trial, effect the cumulative multiple errors at prejudicial. fundamentally make the trial of which was difficulty in had no sister circuits Our as- unfair; effective he was denied and that sentencing proceedings finding prejudice appeals as of his direct of counsel sistance evi pertinent present counsel failed where reject all of We courts. in the Ohio right capacity. history and mental of mental dence ably contentions, for reasons see, these Aiken, e.g., v. In addition to Brewer court. the district stated 652-55 F.2d Kemp, Stephens *8 denied, 872, (11th 109 Cir.), 488 cert. U.S. AF- court is district judgment of the (“the (1988) re 189, 158 102 L.Ed.2d 5.Ct. habeas of as the denial insofar FIRMED Single clear”); v. Blanco sulting prejudice is upon conclusion predicated relief require (prejudice 1505 943 F.2d at tary, affirmance on and its conviction Glenn’s failure to “clearly counsel’s met” ment judg- unconstitutional. were not appeal epileptic of seizures present evidence the sentence insofar as is REVERSED ment Whitley, 977 damage); Loyd v. organic brain concerned, ease is RE- and the is death of (5th Cir.1992), de 149, cert. 159-60 F.2d the writ instructions to issue with — MANDED -, 124 nied, 113 S.Ct. U.S. im- subject to state’s corpus, habeas of (1993) (failure miti present L.Ed.2d a reasonable a new within posing sentence defects of substantial gating evidence outcome”). time. of period in our confidence “undermines when gree vitiated of mental retardation acknowledge Glenn was did 6. Dr. Ramani jury ex- province of the retarded,” invaded Ramani Ramani neither Dr. but "somewhat opinion there were pressing the "medical” psychological jury full seen nor mitigating. circumstances. acknowledgment de- no of some record—and SILER, Judge, concurring Circuit in presented were in videotape were sub dissenting part. in stantially included in testimony the trial of Glenn, other defense witnesses.” State v. I III concur with Part of majority Ohio St.3d 504 N.E.2d opinion portion which affirmed the trial denied, cert. 482 U.S. conviction, but respectfully I dissent (1987). Therefore, L.Ed.2d 705 the failure to majority’s II, from the conclusion in Part call Glenn’s employer mother and the as that Glenn was denied the effective assis- import witnesses was of little to the Ohio tance of sentencing phase Court, Supreme as testimony Therefore, his conviction. I would affirm the have been cumulative. district court’s denial of the writ of habeas corpus. What was for Glenn in the sen- majority describes, As the both tencing the Ohio phase trial? had the Appeals Court of and the United reports States Dis- from Siddall, Ramani Drs. prejudice trict Court found no per- presentence report, testimony from a formance defense counsel at minister, the sentenc- lawyer. and a They teacher also ing hearing, under the test from Strickland had the unsworn statement Glenn. Washington, 668, 686-87, Supreme As the Ohio found, many Court 2052, 2063-64, 80 L.Ed.2d 674 aggravating factors in However, majority paucity finds that the 2929.04(B) Ohio Rev.Code perti- were not of evidence introduced for Glenn in his sen- nent to this Of case. those factors which tencing trial failed to show certain factors pertinent, knew the circum- 2929.04(B): (1) outlined Ohio Rev.Code stances of the offense and history, char- history, background “the character and acter and background of Glenn. Even (2) offender”; offender, whether “the be- though the pertained information to his earli- defect, cause of a mental disease lacked life, er there was suggest no any evidence to capacity appreciate substantial the crimi- significant changes all, in his later life. After nality of his conduct or to conform his con- only he was years nineteen old at the time requirement law”; (3) duct to the the offense. The Supreme Court found “[a]ny other factors that are relevant to the that: issue whether put [Glenn] should be Appellant also introduced evidence as to respectfully death.” I disagree with that poor environment and background. Certainly, hindsight, conclusion. one can Appellant was raised an environment of experts find and other witnesses might poverty. He received little attention from helped Glenn. Whether could his natural father. He had been truant helped better than the ones and had educational and prob- disciplinary that were pure speculation. available is lems boy. as a Appellant had extensive Defense counsel had the videotape pre- contact with his youn- church when he was pared for phase the sentencing of the trial. ger. He required special also education That foresight showed part. on his The ma- classes. jority suggests that counsel should have ob- Glenn, 504 N.E.2d at 711. tained an advance ruling on its admissibility, but whether the trial court would have made Although majority is concerned with a preliminary ruling again speculation, the fact that defense counsel spoken had not *9 judges some are prospec- reluctant to rule any to sisters, Glenn’s brothers and nor tively evidentiary on matters. There was at examined his medical records or mental least argument some in favor of the video- records, health counseling nor talked to his tape’s admissibility, for the probation Ohio Court officer, probation nor examined the Appeals appeal on direct discussed it and records, officer’s appears it that most of the then found the failure to admit it into evi- they information garnered would have from dence was harmless error at best. The Ohio those only sources would have corroborated Supreme because, agreed, Court par- “those information to the in the ticular applicable matters mitigation reports which of Drs. Ramani and Siddall and providing expert a statute is jury had infor- 2929.024 report. presentence applies indigents general and poor environ- services from a came that Glenn mation post-trial edu- services. special pre-trial, trial and ment, and was retarded 2929.03(D)(1) However, Moreover, “applies capi § called to all had counsel classes. cation siblings, defendants, indigent and or not.” mother whether defendant’s tal 8, may have detrimental N.E.2d testimony Esparza, been 39 Ohio St.3d v. State instance, denied, claims Glenn For case. cert. Glenn’s siblings (1989). him and mother beat that his 104 L.Ed.2d have would not probably regularly, undergo but she the defendant chooses Once testimony. Perhaps her examinations, jury’s that in her admitted he risks mental about the beat- have testified experts would children of the knowledge of the conclusions by the decision post-conviction but the ings, Id. “There § 2947.06in a case. death under indicates that Appeals Ohio Court infirmity providing constitutional is no con- signed affidavits family members option.” State with such an defendant Glenn. about taining negative information Buell, 489 N.E.2d 22 Ohio St.3d had autho Assuming that the court ex- neuropsychiatrist who Tanley, the Dr. and of Drs. Ramani appointment rized proceed- post-sentence in the amined 2929.024, coun and defense under Siddall Ra- finding from I.Q. corroborated ings, the two the conclusions of did not like sel reported also Dr. report. Ramani mani’s they they to do? Would experts, what were against the to hit his head that Glenn used two others?1 Or court to authorize ask theory ex- was “nervous.” and wall put into they to have have been forced would expert, Tanley another by Dr. pounded Had experts had said? what the evidence that majority opinion, in the referred experts opin against using the they decided damage might have resulted brain Glenn’s all, the defendant would ions performed on surgical procedure a death, be in the we would sentenced general she was under mother when here, appeal on position with Glenn same also to be pregnancy seems in her anesthesia of counsel be asserting ineffective assistance yet physician is no speculative. There trial failed to appointed counsel at cause med- it reasonable was within stated that has expert reports of into evidence introduce surgical procedure certainty such a that ical Ramani and Siddall. Drs. prob- any permanent mother caused to Glenn. lems pretrial two evalu- record are found In the the evidence not understand how I do Kayne, clinical Harvey from Dr. ations mitigating than the damage is more Nalluri, psychia- Ami psychologist, Dr. Siddall that Glenn was retarded. fact insanity trist, concerning possible defense prod- not the the offense was that concluded trial. Nei- competency to stand brain disease of retardation or uct presented to the reports of these ther Tanley Certainly, Dr. illness. other sentencing during mitigation jury in requirements contrary view. The could they probably the trial. Yet phase attorney do not mandate Strickland counsel, and by defense introduced psychia- potential favorable out all search reports of have corroborated would to find the in order psychologists, trists they been Had Ramani and Siddall. Drs. client. testify for his one who would best phase, jury in read have assert- counsel no doubt significant present think that it I do not counsel, as the assistance for a ineffective the court ed first asked defense counsel competent reports indicate under defendant examination medical from a mental did not suffer 2929.024, trial and experts but the stand Ohio Rev.Code intellec- illness, “borderline although he had Rev.Code appointed later under functioning.” 2929.03(D)(1) Section tual 2947.06. §§ *10 psychologist prepared by a second likely examination denied the trial court 1. The choosing at state also psychiatrist of his own ("Ap- or expense.”). Esparza, N.E.2d at 195 request. See a ‘rebuttal’ ... mental entitled to pellant was not prejudice find no It I here. does not

appear me there were material introduced, factors that were not

except through experts who had been found

after the trial who would have testified favor

ably grave for the defense. I do not have concerning prejudice doubt under O’Neal v. —

McAninch, U.S. -,

L.Ed.2d 947 so I would affirm. America,

UNITED STATES

Plaintiff-Appellee, FORMAN,

Theodore S. Defendant-

Appellant.

No. 94-1731.

United Appeals, States Court of

Sixth Circuit.

Argued 1995. June

Decided Dec. 1995.