Lead Opinion
Opinion by Judge SILVERMAN; Partial Dissent by Judge REINHARDT.
OPINION
Defendant Lezmond Mitchell, then 20 years old, plottéd with three others to carjack a vehicle for use in an armed robbery of a trading post located on the Navajo reservation in Arizona. On October 28, 2001, Mitchell and his 16-year-old accomplice, Johnny Orsinger, abducted 63-year-old Alyce Slim and her nine-year old granddaughter. Slim and the child were traveling to New Mexico in Slim’s GMC pickup truck. Somewhere near Sawmill, Arizona, Mitchell and Orsinger killed Slim by stabbing her 33 times. Her dead body was pulled into the rear of the truck, where the child was made to sit beside it. Mitchell then drove the truck into the nearby mountains.
Thirty or forty miles later, Slim’s body' was dragged out of the truck. • Mitchell told the little girl to get out and “lay down and die.” Mitchell then cut her throat twice. When she did not die, Mitchell and Orsinger each dropped large rocks on her head. Twenty-pound rocks bearing the child’s blood were later found at the scene.
Mitchell and Orsinger left the murder scene, but later returned to hide evidence. While Mitchell dug a hole in the ground, Orsinger severed the heads and hands of both victims in an effort to prevent their identification. The dismembered parts were buried in the hole; the torsos were pulled into the woods. Mitchell and Or-singer later burned the victims’ clothing and other personal effects. Mitchell washed the knives with alcohol to remove any blood.
Three days later, on October 31, 2001, Mitchell and two accomplices (Jason Kinli-cheenie and Jakegory Nakai) drove to the Red Rock Trading Post in the GMC pickup truck stolen from Slim. The three men wore masks when they entered the store. Mitchell carried a 12-gauge shotgun. Na-kai had a .22 caliber rifle. One of the gunmen struck the store manager in the head with his gun. When another employee said that she did not know the combination to the safe, one of the robbers said, “If you lie to me or you don’t cooperate with us, we are going to kill you.” Ultimately, the robbers made off with $5,530 from the safe and cash registers, and the store manager’s purse.
The robbers drove the stolen GMC pickup truck back to Kinlicheenie’s car. Kinli-cheenie followed Mitchell in the truck to an area near Wheatfield, Arizona, where Mitchell set the truck on fire with kerosene stolen from the trading post. They then went to Jakegory and, Gregory Na-kai’s house and split up the money.
Mitchell was convicted in federal court of eleven counts in all, including two counts of first-degree murder, carjacking resulting in death, and multiple counts of robbery. The two murders were not punishable by death because they were committed on the Navajo reservation. Federal jurisdiction over those counts is based on the Major Crimes Act, 18 U.S.C. § 1153, and the Navajo Nation did not “opt in” to the death penalty under the Federal Death Penalty Act of 1994, 18 U.S.C. § 3591. However, federal jurisdiction over carjacking resulting in death does not derive from the Major Crimes Act; the federal nexus is interstate commerce. It does not matter that the crime occurred in Indian country, and therefore, the opt-in provision of the Federal Death Penalty Act does not apply. In other words, carjacking resulting in death car
Mitchell was sentenced to life imprisonment for the two murder counts, long consecutive prison sentences for the robbery and related counts, and death for carjacking resulting in death. His convictions and sentences were upheld on direct appeal. United States v. Mitchell,
Which brings us to the subject of this appeal. After exhausting his direct appeal, Mitchell brought a motion under 28 U.S.C. § 2255 alleging that his team of defense lawyers rendered ineffective assistance of counsel. The team was made up of two veteran deputy federal public defenders and a private lawyer highly experienced in capital cases appointed as “learned counsel.” The § 2255 motion raised various issues, but it boiled down to these claims: (1) Counsel was ineffective in failing to assert an intoxication defense at the guilt phase of the trial; and (2) Counsel was ineffective at the penalty phase for inadequately investigating, and for choosing not to present evidence of, Mitchell’s mental health, history of substance abuse, and troubled upbringing. The trial court denied the motion in a lengthy and thorough written order.
We agree with the district court that counsel did not fall below professional standards in either their investigation of a possible intoxication defense or their decision to pursue a different defense strategy. They did indeed investigate whether Mitchell was intoxicated at the time of the offenses. Mitchell adamantly denied to them that he was. Even so, they looked for evidence to contradict their client, such as liquor bottles left at the crime scene, but they couldn’t find any. The only other living witness to the murders of Slim and her granddaughter was Johnny Orsinger, and he wasn’t talking; he was under indictment himself and invoked his privilege against self-incrimination. Even assuming for the sake of argument that there was some evidence of alcohol involvement, the planning and premeditation of the vehicle theft as preparation for the pre-planned trading post robbery are inconsistent with a claim that Mitchell was too drunk to know what he was doing. And after Mitchell was apprehended, he led authorities to the desolate crime scene, further evidence that he was not so intoxicated that he could not accurately recall events or appreciate where he was and what he was doing.
We agree with the district court that counsel conducted an adequate investigation and then made a reasonable strategic decision that it would be self-defeating to try to sell a jury on an intoxication defense on these facts, and that, instead, they would be better off trying to portray Or-singer as the main malefactor. Strategic decisions such as these are entitled to deference and do not support a claim of ineffective assistance.
With respect to the penalty phase of the case, we also agree with the district court that Mitchell’s legal team made a more-than-adequate investigation of possible mitigation, including his mental health and social history. Early in the case, defense counsel had Mitchell examined by a psychologist, Susan Parrish, Ph.D. Dr. Parrish diagnosed Mitchell with antisocial personality disorder and cautioned counsel against calling her as a witness. Mitchell’s lawyers also had him examined by a team of doctors led by psychiatrist Barry Mor-enz, M.D., at the University of Arizona medical school Mitchell also was examined
Mitchell’s lawyers also hired an experienced “mitigation specialist,” Vera Ocken-fels, who produced a 42-page, single-spaced “social history” of Mitchell’s life. The report is thorough in the 'extreme,containing sections with titles like “Conception, Pregnancy and Birth,” and recounts not only Mitchell’s life story and social history, but that of his parents and grandparents as well.
Only after reviewing all of this data, making numerous trips to the reservation,conducting many interviews themselves, and visiting with Mitchell himself, did defense counsel choose their mitigation strategy: Forego presenting evidence of Mitchell’s drug use, mental health, and physical abuse and instead make the case that Mitchell had redeeming qualities that made his life worth saving, notwithstanding a rough start in life. Counsel presented evidence that Mitchell was unloved and rejected by his mother, struggled with his mixed Navajo and Anglo heritage, and felt caught between two .different cultures. Despite these obstacles, Mitchell showed highly positive qualities. He was a good student, a speaker at his high school graduation, and a good athlete, liked by his teachers, and loved by others. In all, the defense presented nine witnesses in the penalty phase of the trial.
The defense also presented evidence that Mitchell had never before been convicted of a crime, that this offense was an aberrant act for him, and that Orsinger was the instigator and actual killer. Defense counsel also showed that the death penalty for Mitchell would create a terrible sentencing disparity. Besides this crime, Orsinger and Gregory Nakai had killed two other individuals during an earlier carjacking. Orsinger had pistol whipped the victims and shot one victim in the head. Nakai had shot the other victim five times. Yet, neither Nakai nor Orsinger, who was a juvenile, would face the death penalty.
In addition, counsel presented evidence that the death penalty offends Navajo values, and the Navajo Nation did not want the United States Attorney to seek the. death penalty in this case.
Mitchell’s lawyers had to walk a very careful line to avoid opening the door to highly damaging evidence contained in the medical report, such as Mitchell’s diagnosis as a sociopath, his history of swinging dogs and cats by their tails and then throwing them off of bridges just for fun, and his having told Dr. Morenz that he and his accomplice had to kill the little girl to avoid being caught.
We agree with the district court that Mitchell’s defense team conducted a professional-caliber investigation and then, facing unenviable choices, made a reasonable strategic decision to defend the penalty phase of the trial the way it did. Strategic decisions such as this do not support a claim of ineffective assistance of counsel. Strickland v. Washington,
We affirm.
The facts of the crimes are summarized above and set forth in greater detail in the opinion in the direct appeal, United States v. Mitchell, supra.
The facts bearing on Mitchell’s present claims of ineffective assistance of counsel were submitted to the district court in numerous declarations, other documents, and in the lengthy depositions of Mitchell’s three trial lawyers taken by Mitchell’s habeas counsel. The material facts — that is, what Mitchell’s lawyers did, what they didn’t do, and why — are not disputed. What is disputed is whether counsels’ investigation and strategic decisions were reasonable as a matter of law. In the analysis that follows, we examine whether counsels’ investigation and strategy fell below an objective standard of reasonableness. Strickland,
II. Defense counsel adequately investigated the possibility of an intoxication defense and reasonably decided against asserting it.
Mitchell argues that his three lawyers — Deputy Federal Public Defenders Jeffrey Williams and Gregory Bartolomei, and private lawyer John Sears — failed to adequately investigate the possibility of an intoxication defense for use in the guilt-phase of the trial. The facts show otherwise.
Sears, who had practiced for 28 years and was experienced in criminal defense, was appointed as learned counsel
Defense counsel were well aware of Mitchell’s history of substance abuse. They knew about it from various sources, including the report of Vera Ockenfels, the lawyer whom they hired who specializes in developing mitigating evidence. They confronted Mitchell with his statements to FBI agents about his substance abuse, but Mitchell “adamantly” denied that he was under the influence of any substance at the time of the crimes. Unwilling to take Mitchell’s word for it, his lawyers dutifully pored over photographs of the crime scene and visited the scene of the crimes themselves looking for any evidence of drinking or drugs. Liquor bottles left behind? Drug paraphernalia? They found nothing.
Mitchell’s lawyers also knew that Johnny Orsinger, the only other living person present when the crimes were committed, used drugs and alcohol. Mitchell’s lawyers sought to interview him, but Orsinger’s lawyer wouldn’t allow it. When Mitchell’s lawyers subsequently subpoenaed Orsinger, he repeatedly asserted his Fifth
In short, counsel investigated the possibility of asserting an intoxication defense, but could find no admissible evidence that Mitchell was intoxicated at the time of the carjacking and murders.
Mitchell’s lawyers did not ignore the possibility of an intoxication defense. Just the opposite. They investigated it, they discussed it with Mitchell, they attempted to interview Orsinger, they looked for extrinsic evidence, they debated it among themselves, and only then, given the lack of evidence of intoxication and the strong circumstantial evidence to the contrary, did they decide that they would be unlikely to convince a jury to accept voluntary intoxication as a defense to these premeditated crimes. Lawyers who make professional decisions of this type, after a reasonable investigation such as occurred in this case, are “strongly presumed” to have rendered adequate assistance. Cullen v. Pinholster,
III. Counsel conducted a thorough investigation of mitigating evidence — social, medical, and psychiatric — only after which did they make a reasonable strategic decision about what evidence to present and what to fore-go.
Given the strong evidence of Mitchell’s guilt, including his well-corroborated confession, and the lack of any realistic defense, Mitchell’s lawyers knew that the rubber-would-meet-the-road in the penalty phase of the trial, so they began to prepare for that part of the case immediately.
The defense team consistently met throughout the case to discuss the possi: ble theories of mitigation. Deputy Federal Public Defender Greg Bartolomei was principally in charge of this aspect of the case. Early on, Bartolomei spoke to Mitchell in detail about the case, his childhood, interests, parents, grandparents, medical history, drug history, and schooling. The defense also' hired Vera Ocken-fels, a well-known and experienced “mitigation specialist,” to marshal mitigating evidence. Ockenfels gathered all available records and interviewed Mitchell’s mother, grandparents, uncle, other extended family members, friends, acquaintances, football coach, teachers, and other school
Six months before the penalty trial, Ock-enfels turned in her 42-page, single-spaced “social history report,” consisting of a complete, thoroughly documented biography of Mitchell, his mother, and his maternal grandparents. The report noted Mitchell’s struggle with his mixed race, large size, and lack of fluency in the Navajo language and culture; verbal and physical abuse of Mitchell during his childhood; and Mitchell’s extensive history of alcohol and drug use. The report also documented Mitchell’s own violent history: he joined a gang in third grade, formed his own gang by eighth grade, was suspended and expelled from school for fighting, and abused dogs and cats for entertainment. Ockenfels also obtained psychological records from Mitchell’s school, and interviewed Dr. Edward Fields, a psychologist for the Chinle School District, who was Mitchell’s therapist while he was in high school. The defense team personally met with Ocken-fels and reviewed her report.
Defense counsel also hired several mental health professionals. Counsel initially hired Susan Parrish, Ph.D., a psychologist, who diagnosed Mitchell as a sociopath and warned counsel against calling her to .testify. Following up on Ockenfels’s hunch that Mitchell may have blacked out or had a psychotic episode at the time of the crimes, defense counsel hired Barry Mor-enz, M.D., and his team of experts at the University of Arizona medical school to look for medical or psychiatric evidence that might be helpful. Defense counsel provided extensive background information to Dr. Morenz, including all of the prosecution’s evidence in the case. In addition, Dr. Morenz conducted and documented in-depth background interviews of his own with Mitchell, defense investigator Karl Brandenberger, and mitigation specialist Ockenfels.
With Dr. Morenz at the helm, Mitchell was examined and evaluated by a psychiatrist, a neuropsychologist, and a neurologist at the University of Arizona and underwent numerous tests and studies. The neurological exams, EEG, MRI, and laboratory results were normal. Testing established that Mitchell had average intelligence. When all the data was in, Dr. Morenz diagnosed Mitchell with: (1) depressive disorder not otherwise specified based on Mitchell’s statements that he felt despondent and hopeless; (2) polysub-stance abuse based on abuse of alcohol, marijuana, cocaine, ecstasy, and other drugs on a regular basis for a number of years; (3) a cognitive disorder not otherwise specified based on executive functioning deficits that were mild and of uncertain etiology and clinical significance; and (4) an antisocial personality disorder based on Mitchell’s history of childhood aggression, deceitfulness, frequent rule violation, cruelty to animals that would have warranted a conduct disorder diagnosis as an adolescent, a continued disregard for the rights of others, and a failure to show remorse for his behavior.
Defense counsel reviewed Dr. Morenz’s comprehensive report, discussed it with him, and ultimately decided not to present mental health evidence for fear that it would open the door to even more damaging evidence and do more harm than good. Defense counsel knew that they would have to turn the report over to the prosecution if Dr. Morenz testified. They concluded that the report would open the door to “ugly” damaging facts that would have a “negative and adverse” effect on the jury. Specifically, the report documented Mitchell’s diagnosis of antisocial personality disorder, history of violence, cruelty to animals, gang involvement, that his gang sold drugs to children, and that Mitchell had been involved in the shooting of an innocent girl during a dispute with a rival gang-over marijuana. Worse, Mitchell told Dr. Morenz detailed facts regarding the crime that he had not already admitted to the police or FBI, including the fact that he decided to kill the child to prevent her from identifying him. Mitchell also told Dr. Morenz of his desire to kill the person who had ratted out their group to the police.
Defense counsel concluded that introducing evidence of Mitchell’s mental health was fraught with danger, given the door that would be opened to extremely damaging evidence, and could negate the positive things that they had to say about him. Counsel also decided that it would be wise to stay away from Mitchell’s history of alcohol and drug abuse. In their professional opinion, jurors would be turned off by such evidence and view it as a poor excuse for extremely horrendous crimes. And, again, such evidence would contradict the more positive' picture they wanted to paint.
In the § 2255 proceedings, Mitchell’s new lawyers produced a new declaration from Dr. Morenz, dated in 2009. In this declaration, Dr. Morenz states that he could have testified that Mitchell “might” have been under the influence of drugs or alcohol at the time of the crime and that his perception of reality “might” have been altered. This new declaration changes nothing. Besides being equivocal, the problem remained that if Dr. Morenz had testified to such a possibility, the door would have been opened to a whole panoply of contrary evidence of which Dr. Mor-enz was aware, such as Mitchell telling Dr. Morenz why he and Orsinger killed the little girl. In his report, Dr. Morenz quoted Mitchell as telling him, “I’m running this equation in my head that 9 times out of 10 if we let the little girl go the cops will be after us.”
In his deposition, defense lawyer John Sears testified that the defense team had used juror questionnaires to determine prospective jurors’ attitudes towards potential issues, including their reactions to Native American crimes, vulnerable victims, and whether the jurors were open to “excuses,” such as mental problems or substance abuse. The defense used a series of hypothetical questions to assess potential jurors’ reactions and then factored those reactions into Mitchell’s defense. The questionnaire responses by prospective jurors confirmed counsels’ belief that the jury would view both mental health
Defense counsel made a reasonable professional judgment, after a careful investigation, that the introduction of mental health and drug abuse evidence would be more damaging than helpful. We do not second-guess strategic decisions such as this. Mickey,
So, if no mental health or substance abuse mitigation, then what?
Bartolomei, Williams, and Sears decided that the best way to save Mitchell from the death penalty was a mitigation strategy consisting of three main themes: First, Mitchell’s life should be spared because he is not a worthless human being — that is, he is a person with significant redeeming qualities, who has overcome difficult challenges in his life, facts that weigh against simply discarding him like so much trash. Defense counsel presented the testimony of Dr. Robert Roessel, the executive director of Mitchell’s high school, who testified that Mitchell had been an excellent student, respectful, an outstanding athlete, a member of the student council, and a speaker at graduation. Dr. Roessel testified that Mitchell was kind, and did well in school despite a difficult upbringing, a disinterested mother who never loved him, a school system that failed to nurture him, and confusion over his mixed Navajo and Anglo heritage. Because Mitchell’s grandparents were also educators at the school, Dr. Roessel knew Mitchell’s family. Dr. Roessel testified that Mitchell had his problems, but had positive qualities, too, and had the potential to teach others in prison. Dr. Roessel asked the jury to spare Mitchell’s life.
The defense also presented the testimony of Ruth Roessel, Dr. Roessel’s wife and a school teacher. Mrs. Roessel testified that she met Mitchell when he moved in with his grandfather in Round Rock and knew Mitchell at school. Mrs. Roessel also knew Mitchell’s family. She testified that Mitchell was raised in a “cold home,” but that he was always respectful to her and called her “shima,” which means “my mother.”
Mitchell’s uncle, Ausca
Marty William Conrad, the athletic director, social studies teacher and head football coach at Mitchell’s high school, testified that Mitchell was a good football player, a leader on the team, interacted well with the players, and was well-behaved. Mr. Conrad testified that Mitchell was good enough to play college football, and he thought Mitchell was going to community college to play football. The defense introduced into evidence a picture of Mitchell with the football team.
John F. Fontes, Jr., the assistant principal at Mitchell’s high school, testified that he saw Mitchell daily at school. Mitchell was an excellent student, a good football player, and involved with student government during his senior year. Mitchell was never physically violent. The only disci
Mitchell’s friend, Lorenzo Reed, Jr., testified that he had known Mitchell since third grade,- and that they had attended high school together. Mitchell’s mother had abandoned him, and it was painful for Mitchell. Mitchell moved in with Mr. Reed’s family after he turned 18. Mitchell became part of the family, was respectful, and helped with the chores. Mitchell also was respectful while living with Mr. Reed’s uncle in Phoenix. Mitchell briefly moved to California, but came back for. Mr. Reed’s high school graduation. Mr. Reed also asked the jury to spare Mitchell’s life.
Sonja Hasley, Mitchell’s high school English teacher, testified that Mitchell was an excellent student who helped her and other students in class. Mitchell was gentle, quiet, and respectful. When confronted with a violent situation, Mitchell wouldn’t participate either verbally or physically. Mitchell’s mother, Sherry, refused to come to the school, and his grandparents never came to the school to discuss Mitchell’s progress, either. Ms. Hasley testified that Mitchell’s family acted contrary to the Navajo culture, in which mothers and grandmothers are very important. Ms. Hasley stated that Mitchell had the potential to be a good teacher in prison.
Tammy Sebahe, a member of Mr. Reed’s family, testified that Mitchell lived with them, became part of their family, and still remained a part of their family. She had been visiting Mitchell for the previous year at jail, where they spoke over a phone with a glass wall separating them.
The defense also played the videotaped testimony of Mitchell’s grandmother, Bobbi. Bobbi mostly talked about herself, a point that the defense would mention in closing argument as illustrative of the dysfunction in the family.
In closing argument, Sears argued that these facts showed that Mitchell had redeeming qualities despite his lack of family support, responded well to structure, and if sentenced to life without parole, he would adapt to prison and could have a positive impact on other inmates.
The second theme of the penalty phase strategy was that Johnny Orsinger was the mastermind behind these crimes, and that Mitchell was a follower. The defense introduced evidence that Orsinger and Gregory Nakai were not only the brains behind these crimes, but had committed a similar carjacking and multiple murder two months earlier. In fact, Orsinger had bragged that he had murdered the victims in this case — and yet, Orsinger and Nakai would be spared the death penalty. Or-singer was immune because he was 16, but the FBI agent could not explain why Na-kai, who was the same age as Mitchell and had also committed murder during a carjacking, had not been sentenced to death. Mitchell’s lawyers hammered home the point that it would create an intolerable and irrational disparity for the two main culprits to get life sentences, while Mitchell, the follower, was sentenced to death.
The third theme was that the Navajo Nation opposes the death penalty, and did not want Mitchell sentenced to death. Mitchell’s defense team even put before
The strategy chosen by Bartolomei, Williams, and Sears did not come to them in a dream, nor was it the result of a coin flip. They settled on their strategy only after commissioning an exhaustive social history of Mitchell and his family, having Mitchell studied stem-to-stern by a'team of doctors in a variety of specialties at the University of Arizona medical school, conducting personal interviews with potential witnesses, making numerous trips to the Navajo reservation, and spending countless hours with Mitchell himself. Counsel, who had years of experience defending violent crimes committed on Indian reservations, also contacted other lawyers who specialized in death penalty defense and sought their advice. Counsel affirmatively considered the pros and cons of other approaches, and then reasonably chose the strategy that they thought had the best chance of success. Such a decision does not support a claim of ineffective assistance of counsel. Elmore v. Sinclair,
Apparently recognizing that- trial counsel’s strategic and tactical decisions are entitled to great deference, Mitchell argues that his lawyers’ investigation was deficient, thereby tainting their strategy and tactics. For example, Mitchell contends that when Mitchell’s lawyers learned that Dr. Morenz had diagnosed Mitchell with antisocial personality disorder (just as psychologist Dr. Parrish had) counsel should have had Mitchell examined again by yet another doctor in search of a less damning diagnosis. We agree with the district court that defense counsel did not act below professional standards in relying on the thorough and authoritative report of the highly qualified experts they hired, particularly when Drs. Parrish and Mor-enz independently agreed on the same primary diagnosis after extensive testing. Crittenden v. Ayers,
Although Mitchell claims that the investigation was inadequate, he has come -forward with almost no new evidence not known to defense counsel and fully considered as possible mitigation. Mitchell’s drug abuse and physical abuse were documented in detail in the Ockenfels and Dr. Morenz reports well before the guilt and penalty trials. Contrary to Mitchell’s claim, defense counsel knew in 2003 that Mitchell and his friends had been partying and doing drugs in the months before the crimes. In fact, Dr. Morenz diagnosed polysubstance abuse based on Mitchell’s extensive drug use history. The evidence of drug use and physical abuse was known to the defense team and considered by the team when it decided not to present intoxication or abuse mitigation evidence.
Mitchell points out that neither defense counsel’s investigation, nor that of their mitigation specialist, Vera Ockenfels, uncovered the fact that Mitchell’s grandfather (with whom Mitchell had lived for a time) had molested two girls in Kansas sometime in the 1950s or '60s, about 20 years before Mitchell was born. Mitchell himself was never molested by the grandfather and Mitchell never met the girls. This bit of ancient family history was never disclosed to defense counsel, their investigator Karl Brandenberger, or Ockenfels, despite their numerous interviews with family members. The grandfather’s behavior in the '50s or '60s toward people other than Mitchell, whom Mitchell does not even know, before he was even born, is of dubious relevance when it comes to mitigation. In any event, Mitchell was entitled to a reasonable investigation, not a perfect one. See Yarborough v. Gentry,
In 2009, habeas counsel managed to find a doctor, Pablo Stewart. M.D., who would give them a declaration stating that in 2001 Mitchell suffered from post traumatic stress disorder and substance-induced psychotic disorder. Dr. Stewart’s declaration says that he could testify that Mitchell’s intoxication and mental illness “synergized with each other resulting in the alteration of Mr. Mitchell’s cognitive and behavioral function, which severely impaired his ability to premeditate or intend to commit murder.” (Never mind that Mitchell stated that he and Orsinger killed and dismembered the grandmother and little girl to get rid of the witnesses to the theft of the vehicle they stole for use in the trading post robbery they planned to commit.) At most, Dr. Stewart’s new diagnosis of Mitchell’s mental state, eight years after-the-fact, is a “difference in medical opinion, not a failure to investigate.” Crittenden,
Finally, Mitchell faults defense counsel for not calling his mother, Sherry, to testify. But, Bartolomei testified that Sherry refused to cooperate and only wanted to talk about how Mitchell’s crimes impacted her. She walked out on her interview with Williams, and had told the FBI that Mitchell belonged in prison. Counsel reasonably concluded that Sherry was a “loose cannon” who was better kept away from the witness stand.
We agree with the district court that Mitchell’s lawyers made an adequate investigation and then, with full knowledge of all of the relevant facts, made reasonable strategic decisions to present what they did and to stay away from things that they thought would do more harm than good. Elmore,
IV. Conclusion
The judgment of the district court is AFFIRMED.
Notes
. 18 U.S.C. § 3005 requires the appointment of at least two defense counsel in capital cases, including one who is "learned' in the law applicable to capital cases.”
. Santa Clara Law's Death Penalty College trains defense attorneys, along with their mitigation specialists, to represent defendants in death penalty cases. See http://law.scu.edu/ dpc.
. Defense counsel tried, but failed, to get into evidence Mitchell’s statement to the FBI that he had been drinking the day of the murders. Counsel then requested an intoxication instruction to preserve the record, even though they knew the request would be denied for lack of evidence. There is no reason to fault counsel for this.
. Mitchell never knew his father, and his father died before the defense team was able to locate and interview him.
. In the record, the name is also spelled Aus-ka.
. At least one juror found every factor presented by the defense to be mitigating for both murders. Twelve jurors found that: (1) Mitchell did not have a significant prior criminal record; (2) another person who was equally culpable in the crime would not be punished with death; and (3) Mitchell would be sentenced to life in prison without the possibility of release if not sentenced to death. Two jurors found that Mitchell responded well to structure and would adapt to life in prison. One juror found that Mitchell’s capacity to appreciate the wrongfulness of his conduct was so impaired as to constitute a defense to the charge. .Six jurors found that Mitchell’s childhood, background record, character or other circumstances of the offense mitigated against the death sentence. Finally, seven jurors found that the letter from the Navajo Nation opposing the death penalty was mitigating.
. We decline to grant a certificate of appeala-bility for the uncertified issues raised in Mitchell’s brief.
Dissenting Opinion
dissenting in part:
I would grant Mitchell’s petition for ha-beas relief with respect to the penalty, phase of his trial because he was deprived of his Sixth Amendment right to effective counsel. Counsel’s “good guy” defense was unreasonable in light of the facts and circumstances of the crimes Mitchell committed, and also because the minimal investigation underlying counsel’s choice of strategy was constitutionally deficient. Before delving into the myriad ways in which counsel performed deficiently, however, I would note that this is a highly unusual death-penalty case in several respects, all of which exacerbate the impropriety of sending Mitchell to his death in violation of his constitutional rights to a fair trial, but none of which is more disturbing than the failure to give the jurors the opportunity to understand what made him the person he became before they voted to have him executed.
I.
Federal executions are quite rare and are normally reserved for the most heinous of crimes that are of national significance. There have been only three executions since the federal death penalty was reintroduced in 1988 — one being in the Oklahoma City bombing case in which 168 people died and more than 600 were injured, and another being a drug kingpin found responsible for at least eight murders. Most recently, the death penalty was authorized for a perpetrator of the Boston Marathon bombing. However gruesome the crime in this case, Mitchell, who was twenty years old at the time and had no prior criminal record, does not fit the usual profile of those deemed deserving of execution by the federal government — a penalty typically enforced only in the case of mass murderers and drug overlords who order numerous killings. Nor is this a case of national interest or significance. The penalty is possible only by virtue of the fact that Mitchell and a fellow Navajo, aged sixteen, stole a car in connection with the murders they committed. The murders by themselves did not subject Mitchell to the death penalty because, as explained below, the Navajo Nation has decided that the death penalty should not apply to intra-Indian crimes committed on its reservation. As a result, in the absence of the carjacking, Mitchell would not have been eligible for the death penalty.
Equally important, none of the people closely connected to the case wanted Mitchell to be subjected to the death penalty: not the victims’ family, not the Navajo Nation — of which the victims and perpetrators were all members and on whose land the crime occurred — and not the United States Attorney whose job it was to prosecute Mitchell. So how did Mitchell nonetheless become one of a relatively small number of inmates on federal death row over the protestations of everyone with a personal stake in the case? A bit of background is necessary to answer that question.
The Navajo Nation is opposed to the death penalty, both as a general matter
It is incumbent upon the federal government to allow Indian tribes the choice of whether the death penalty should be extended to our territory.... [T]he death penalty is counter to the cultural beliefs and traditions of the Navajo people who value life and place- great emphasis on the restoration of harmony through restitution and individual attention. The vast majority of major crimes committed on the Navajo Nation and within other Indian reservations are precipitated by the abuse of alcohol. The death penalty will not address the root of the problem; rather rehabilitation efforts will be more effective.3
As Kevin K. Washburn, the current Assistant Secretary for Indian Affairs for the U.S. Department of the Interior, a former law professor and United States Attorney, wrote, adoption of the tribal - option reflected a “modest step[]” in favor of a policy that “criminal justice in Indian country must be decolonized.”
Having been empowered by the tribal option to determine whether the death penalty should apply, to most federal crimes committed against Navajo people on Navajo land, the Navajo Nation decided that it should not.
Faced with the possibility that federal prosecutors would seek the death penalty, the daughter and mother of the victims strongly urged that the death penalty not be imposed and made a request to the federal prosecutor that he seek only life without parole. The Attorney General of the Navajo Nation Department of Justice, Levon B. Henry, also wrote a letter to the United States Attorney for the District of Arizona, Paul Charlton, “expressing] the current positions of the Navajo Nation with respect to the possibility of the United States seeking capital punishment” in Mitchell’s case. Henry explained that although “the details of the case[] were shocking,” the Navajo Nation “would not support a death penalty,” because “[o]ur culture and religion teaches us to value life and instruct against the taking of human life for vengeance.” Moreover, Mitchell’s execution would be directly contrary to the Navajo Nation’s belief that rehabilitation, not the death penalty, is needed to address crimes associated with drug and alcohol addiction, in which category, the Navajo Nation told Congress, the vast majority of major crimes committed on reservations fall. See swpra p. 895 & note 3. As explained below, Mitchell had a long history of drug and alcohol abuse that contributed to the person he became and the crimes he committed.
In light of the position of the Navajo Nation and the family of the victims, United States Attorney Charlton, a local Arizonan appointed by President George W. Bush, who was intimately familiar with the relations between the Navajo tribe and the citizens of the State of Arizona, declined to seek the death penalty. However, in the words of the victims’ family, the request that the federal government not seek the death penalty was ultimately “ignored and dishonored.” Attorney General John Ashcroft overruled Charlton and forced a capital prosecution básed on the carjacking aspect of the crime, thereby avoiding the application of the tribal option. The overruling by Ashcroft marked the beginning of an aggressive expansion of the federal death penalty, particularly into jurisdictions that did' not permit the use of that penalty. Mitchell was the first object of the new policy.
II.
I now turn to the legal question at issue on this appeal: whether Mitchell was deprived of effective assistance of counsel in violation of the Sixth Amendment.
A.
' “[C]ertain defense strategies may be so ill-chosen that they may render counsel’s overall representation constitutionally defective.” Silva v. Woodford,
The majority identifies three “themes” of the penalty-phase defense: (1) that Mitchell had redeeming qualities making him a “life worth saving” (also known as a “good guy” defense); (2) “that Johnny Or-singer was the mastermind behind these crimes”; and (3) that the Navajo Nation did not want Mitchell sentenced to death. Maj. Opinion at 891-92. In reality, the defense that counsel presented centered almost exclusively on the first theme — that Mitchell had been a “good guy.” That argument had no chance of convincing a jury to return a sentence other than death. Life without parole could hardly have been justified by the snippets of normal conduct which counsel chose to offer to the jury. The latter two themes were barely included in the defense as presented, but if properly developed, would have been wholly consistent with the defense that counsel should have offered: a far more plausible defense that sought to explain how the crimes ultimately were attributable in large measure to Mitchell’s drug and alcohol addiction, wretched upbringing, and
In light of the shocking facts of the double murder of which the jury had just convicted Mitchell, the “limited strategy that [counsel] developed was unreasonably constricted.” Correll v. Ryan,
The “most likely” evidence to sway the jury “was the type that would portray [Mitchell] as a person whose moral sense was warped by abuse, drugs [and alcohol] [or] mental incapacity.” Correll,
“Witness preparation is a critical function of counsel,” Doe v. Ayers,
As a result, much of the good character testimony elicited was quite damaging. Although identifying Mitchell as a “very excellent student” and “an outstanding athlete,” Dr. Roessel, executive director of Mitchell’s high school, testified that Mitchell “broke into [his] office” to steal a computer and a shotgun, which he used in a robbery, and that he had been suspended for having a marijuana joint. His wife, Ruth Roessel, testified to the singular importance of grandmothers in Navajo families, which allowed the prosecutor to stress how devastating Slim’s death must have been to her family. Mitchell’s uncle testified that Mitchell once “disrespected [him], [his] wife, [and][his] kids,” by smoking pot in his house because “in the Native American church ... marijuana is evil.”
Meanwhile, the prosecution used the defense’s “good guy” evidence to its own advantage, arguing that because Mitchell was smart and a leader, he would not have gotten involved iii the crime purely by accident or because of Orsinger’s influence; that he had squandered a chance to go to college; that his home life was better than average; and that his experiences and environment did not contribute to his crimes — concluding that their cruelty was “so inexplicable” that the only reasonable response was to punish the perpetrator with death. Defense counsel’s failure to submit any evidence explaining what went wrong in Mitchell’s life ensured that “the prosecutor’s main argument to the jury during sentencing was the dearth of evidence in mitigation of the crimes.” Silva,
The other two themes identified by the majority — that Orsinger was the mastermind and that the Navajo Nation opposed the death penalty — could not and did not redeem counsel’s worthless and implausible “good guy” defense for two reasons. Most important, these two themes were irrelevant to counsel’s choice between a doomed “good guy” defense and a far more plausible defense that sought to explain how and why Mitchell became a criminal, as the two subsidiary arguments were fully consistent with either choice. Counsel’s decision to use them along with the doomed “good guy” theme did not in any way make the deficient performance in choosing that theme as the primary defense any less deficient.
Moreover, these two subsidiary themes were inadequately developed and halfheartedly presented to the jury. Virtually no evidence of the “Orsinger was the mastermind” theme was introduced in the penalty phase, and neither was a serious argument to that effect made to the jury. The sum total of penalty-phase evidence pertaining to this theme was Mitchell’s uncle’s speculative statement that Mitchell “was a good kid until he met Orsinger,”
The third theme — the Navajo.Nation’s opposition to the death penalty — could have been quite compelling, particularly if combined with evidence of Mitchell’s drug and alcohol addiction. Unfortunately, the only evidence that the jury heard regarding the Navajo Nation’s opposition to the death penalty consisted of counsel reading from Henry’s letter. The jury was unaware that the victims’ family had asked the prosecutor not to seek the death penalty. No’ defense witness testified about why the death penalty contravenes Navajo conceptions of justice, or about the tribe’s belief that rehabilitation, not the death sentence, is needed to address major crimes committed on the reservation, most of which are associated with alcohol addiction. Indeed, counsel seems not to have. even realized this was a potential theme; the Navajo Nation’s opposition to Mitchell’s execution was never formally presented to the jury as a mitigating factor.
“Defense counsel’s use of mitigation evidence to complete, deepen, or contextualize the picture of the defendant presented by the prosecution can be crucial to persuading jurors that the life of a capital defendant is worth saving.” Allen,
B.
Even assuming that counsel’s “good guy” defense strategy might in some limited circumstances have been reasonable— and it’s hard to make that assumption given the nature of the acts that Mitchell committed — the question remains “whether the investigation supporting their decision not to introduce mitigating evidence of [Mitchell’s] background [and to rely on the ‘good gu/ defense] was itself reasonable.” Wiggins v. Smith,
In Mitchell’s case, counsel unduly circumscribed the scope of the mitigation investigation and prematurely settled on a “good guy” strategy before obtaining all the facts necessary to the making of an informed decision. Although “[n]o particular set of detailed rules” establishes the contours of competent representation, the Supreme Court and this court recognize
Counsel was on notice that Mitchell struggled with drug and alcohol abuse but unreasonably decided not to investigate further. Vera Ockenfels, an experienced capital lawyer and mitigation specialist hired by the defense, provided a preliminary report that identified Mitchell as a “heavy” user of crystal methamphetamine, particularly in the months preceding the crimes, as well as a user of marijuana, cocaine, and alcohol.
Declining to pursue substance abuse evidence in favor of a “good guy” defense at this stage was unreasonable for several reasons: First, Ockenfels had explained that it was common for young Native American clients to deny addiction to their attorneys. Second, “[a] defendant’s lack of cooperation does not eliminate counsel’s duty to investigate.” Hamilton,
Third and most important, whether Mitchell was intoxicated during the commission of the crime was not the relevant penalty-phase question. Even if evidence of substance abuse was “[in]sufficient to demonstrate that [the defendant] lacked the requisite mental state for the crime,” it remained an “important mitigating factor” for the jury to consider in that it would have played a major part in explaining Mitchell’s life story to the jury. Frierson,
The majority dismisses counsel’s decision not to investigate or present evidence of Mitchell’s history of alcohol and drug abuse as a strategic decision based on “their professional opinion [that] jurors would be turned off by such evidence.... ” Maj. Op. at 889. This explanation, however, is not only inconsistent with the many well-established judicial conclusions to the contrary, but it is directly contradicted by counsel’s actions in this case, and thus can only constitute a “post hoc rationalization of counsel’s conduct.” Wiggins,
Most important, the weak evidence of drug and alcohol use that counsel haphazardly introduced was deployed for the wrong purpose. The point was not that Mitchell was intoxicated during the crimes to the point that he lost control — an unsubstantiated claim that likely did “turn off’ the jury. Rather, evidence of Mitchell’s long history of addiction commencing at an early age — which was easily corroborated, as post-conviction counsel found— could have been used effectively to give the jury a complete picture of why Mitchell became the person he was. Trial counsel, however, failed to conduct the investigation necessary to make a reasonably informed decision regarding whether to present evidence that Mitchell’s struggle with addiction and his otherwise damaging life history mitigated his culpability. The resulting unexplored and undeveloped presentation that he was simply drunk at the time was wholly unbelievable and served only to undermine the “good guy” defense. Clearly no reasonable strategic decision to withhold evidence of Mitchell’s
Counsel did not, it is clear, adequately investigate Mitchell’s family history or make a reasonable decision not to investigate further. Counsel was on notice from Ockenfels’ draft report that Mitchell’s home life was marked by abandonment, instability, isolation, and abuse. For example, Ockenfels found that Mitchell’s mother, with whom he lived until seventh grade, was physically abusive, as was his grandmother, with whom he lived periodically. An uncle had observed that Mitchell “ ‘never had a chance’ with his family,” while Dr. Roessel told Ockenfels that Mitchell “was ‘on his own from the time he was born.’ ” Ockenfels concluded that by high school “the neglect [Mitchell] had endured had taken its toll and had hardened him.”
Counsel did not follow up on any of these leads. The defense team’s view was that “nothing [stood] out.... [The family was] educated. They were, at least ... by reservation standards, ... middle-class.” In short, the attorneys ignored red flags regarding physical and emotional abuse, instead taking away from Ockenfels’ report and their own interviews with Mitchell’s family only that “he came from basically a family of educators.” They accordingly ceased investigating Mitchell’s family background, unreasonably constricting the mitigation investigation and presentation to good character evidence. This premature narrowing of the scope of the mitigation investigation was not within the range of reasonable professional conduct. “It is imperative that all relevant mitigating information be unearthed for consideration at the capital sentencing phase.” Caro v. Calderon,
One particularly egregious deficiency of the mitigation investigation into family history bears mention. Even though the defense team knew that Mitchell’s grandfather George was “ ‘the only one who raised [him],’ ” they uncovered only very elementary background information about him— that he had ten siblings; that he had held “several teaching and administrative positions in several Reservation schools”; that he married Mitchell’s grandmother when she was thirteen and was twenty years her senior; and that he was a “dour, sour man.” Critically, counsel failed to investigate Ockenfels’ finding that both of Mitchell’s grandparents and his uncle had told him that he was the product of rape and/or that his grandfather was also his father.
Had counsel further investigated George — consistent with the ABA Guidelines’ requirement of an “extensive and generally unparalleled investigation into personal and family history” that includes “[t]he collection of corroborating information from multiple sources,” ABA Guidelines, cmt. to Guideline 10.7 — they would have learned that there were “persistent rumors regarding George molesting children.” Residents of the reservation told post-conviction investigators that George was fired from a school principal position because he molested children. His wife’s sisters also alleged that he raped them when they were nine and twelve years old, respectively, and his wife told a relative that he molested the three-year-old child of a neighbor. Mitchell’s mother, Sherry, told post-conviction investigators that her mother (George’s wife) repeatedly accused her of having a sexual relationship with George and that some people thought Mitchell was the product of incest.
The majority dismisses the evidence that Mitchell’s primary caregiver was a pedophile and rapist as of “dubious relevance” because the alleged conduct took place “sometime in the 1950s and 1960s, about 20 years before Mitchell was born,” Mitchell never met the alleged victims, and there was no allegation that George ever molested Mitchell himself. Maj. Op. at 892-93. The conduct was not, however, limited to the 1950s and 1960s. For example, the complaints of sexual abuse lodged against George when he was a principal pertained to incidents in 1985 or 1986.
Moreover, the majority’s belief that it is of little relevance that Mitchell was primarily raised by a man who was probably a child molester is puzzling for several reasons. First, this court routinely upholds lifetime requirements that sex offenders avoid any contact with minors, reasoning that “ ‘the perpetrators of child sexual abuse crimes’ often have ‘deep-seated aberrant sexual disorders that are not likely to disappear within a few years....’” United States v. Williams,
Finally, the investigation into Mitchell’s mental health was also inadequate. “The presence of certain elements in a capital defendant’s background, such as a family history of alcoholism, abuse, and emotional problems, triggers a duty to conduct further inquiry before choosing to cease investigating,” Doe,
Second, the majority overstates its case when it asserts that Dr. Morenz, who oversaw the team evaluating Mitchell, “did not recommend further testing.” Maj. Op. at 889.
The majority asserts that counsel made a reasonable decision not to further investigate or to present mental health evidence for fear that doing so would open the door to damaging aspects of Dr. Morenz’s report. Maj. Op. at 889. However, the question is not, as the majority appears to believe, whether it was reasonable not to call Dr. Morenz to the stand. There may be good reasons not to call a particular witness, but counsel cannot forego an entire line of inquiry on that basis unless there is no way, other than the problematic witness, to get that evidence before the jury. See Karis v. Calderon,
Moreover, at the penalty phase, “counsel has an affirmative duty to provide mental health experts with information needed to develop an accurate profile of the defendant’s mental health.” Caro v. Woodford,
“[A]U potentially mitigating evidence is relevant at the sentencing phase of a death case” and thus counsel had a duty to investigate further once put on notice that Mitchell struggled with addiction, that he had a troubled childhood, and that he had mental and emotional problems. Wallace,
C.
In order to establish a violation of the defendant’s Sixth Amendment right to effective counsel, it is not enough that counsel performed deficiently. The defendant must also have been prejudiced. In this case, when one- evaluates “the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding” and reweighs it against the aggravating evidence, “there is a reasonable probability that at least one juror would have struck a different balance between life and death” but for counsel’s deficient performance. Hamilton,
A number of factors tell us that a death sentence was far from a foregone conclusion in this case: (1) Notwithstanding the attorneys’ deficient performance, the jurors found a number, of mitigating factors, including, for example, a unanimous finding that Mitchell’s lack of a prior record was mitigating and a finding by seven jurors that the Navajo Nation’s opposition to the death penalty was mitigating. (2) Neither the Arizona United States Attorney, the Navajo Nation, nor the victims’ family wanted to see Mitchell executed. (3) Neither Or singer, who was a minor at the time of the crime, nor his adult accomplice in another strikingly similar double murder were sentenced to death.
Most important, “there was a substantial amount of classic mitigating evidence that
“[B]oth this court and the Supreme Court have consistently held that counsel’s failure to present readily available evidence of childhood abuse, mental illness, and drug addiction is sufficient to undermine confidence in the result of a sentencing proceeding, and thereby to render counsel’s performance prejudicial.” Lambright v. Schriro,
True, “[t]he aggravating evidence in [Mitchell’s] case was strong, but it was not so overwhelming as to preclude the possibility of a life sentence. Heinous crimes do not make mitigating evidence irrelevant.” Hovey v. Ayers,
In this respect, I would add a final thought. This is a purely federal habeas case — a federal court’s review of a federal conviction. Any concern that we might have regarding the doctrine of comity when we review a state conviction does not apply. That is, this case involves prosecution and judicial review by one sovereign— the federal government — and not a federal court’s review of the criminal adjudication of a second sovereign government — -a state. In this ease, we owe no deference to what another sovereign’s court has done and we are perfectly free to review the important questions in this case de novo. The majority, however, fails to recognize this key distinction from the usual habeas cases heard by our court seeking relief from a state conviction, inappropriately relying on cases in which the Antiterrorism and Effective Death Penalty Act applies. In this case, the only other sovereign government to which comity might apply is the Navajo Nation, which vigorously op
Conclusion
The majority tragically errs in sending Mitchell on to his death notwithstanding the fact that he was deprived of effective representation and a fair trial. I sincerely hope that the executive branch will not compound the error by carrying out Mitchell’s execution in violation of the Constitution, as well as in contravention of the wishes of the Navajo Nation and the family of the victims. It is time for those with the ultimate power to decide the fate of federal prisoners to arrive at a more sensible policy regarding the execution of our citizens by the federal government and to apply it to Mitchell’s case. At the very least, arbitrariness must not be a factor.
I dissent.
. See 18 U.S.C. § 1302(a)(7).
. See 18 U.S.C. § 3598.
. Crime Prevention and Criminal Justice Reform Act of 1994: Hearings on H.R. 3315 before the Subcommittee on Crime and Criminal Justice of House Judiciary Committee, 103 Cong., 2d Sess., Feb. 22, 1994 (statement of Helen Elaine Avalos, Assistant Att’y Gen., Navajo Dep’t of Justice, on behalf of Peterson Zah, President of the Navajo Nation) (emphasis added).
. Kevin K. Washburn, Federal Criminal Law and Tribal Self-Determination, 84 N.C. L.Rev. 779, 830, 854 (2006).
. Indeed, only one Native American tribe has exercised the tribal option to permit the death penalty. See Washburn, supra note 4, at 831.
. United States v. Mitchell (“Mitchell I ”),
. The Ninth Circuit has long held that intra-Indian offenses committed in Indian country may be prosecuted under federal criminal
. The third person against whom the federal death penalty has been enforced since it was reinstated in 1988 was Louis Jones, Jr., who was neither a mass murderer nor a drug overlord who ordered numerous killings. Jones, an African-American war veteran, kidnapped and murdered an airwoman at an air force base. Jones was a highly decorated soldier, whose 22-year military career included service as an Army Ranger. Jones returned home from the first Gulf War with post-traumatic stress disorder and brain damage likely linked to his exposure to nerve gas during the war — known as Gulf War Syndrome — and displayed symptoms of that syndrome during his commission of the crime. He was executed over vigorous protests by United States Senators and others during the tenure of Attorney General Ashcroft.
.I was a member of the divided panel that affirmed Mitchell’s death sentence on direct appeal. I stand by my dissent explaining the constitutional infirmities in Mitchell's conviction and sentence that were considered there and that I still believe warrant relief. Rather than explain my reasons again here, a summary of the most significant constitutional violations follows: First, federal prosecutors colluded with tribal authorities to detain Mitchell and elicit confessions from him in violation of his federal rights to timely arraignment and to counsel. Mitchell I,
. See Amnesty Int’l, USA Capital Deficit: A Submission on the Death Penalty to the UN Human Rights Comm., at 8 (Sept. 2013), available at http://www.amnestyusa.org/sites/ default/files/amr510622013en.pdf ("[Tjhere is nothing to stop any administration, consistent with the [International Convention on Civil and Political Rights], supporting reversal of the death sentence....").
. With respect to the guilt-phase claim at issue on this appeal, I would hold that Mitchell was not prejudiced by any deficient performance on counsel's part. As noted supra note 9, I would have granted guilt- and penalty-phase relief based on claims raised on direct appeal. Most of the uncertified claims relate to those claims. I thus find it unneces
. "Defense counsel compounded the errors he committed during the investigative stage of the penalty phase by presenting almost none of the little mitigating evidence he had discovered.” Hamilton v. Ayers,
. Counsel's penalty-phase presentation’ “left the false impression that [Mitchell’s] childhood, while unhappy, was not unusual.” Hamilton,
. The uncle admitted on cross-examination that he had no first-hand knowledge of Or-singer.
. The seven members of the jury who found the Navajo Nation's opposition to the death penalty mitigating included it as write-in non-statutory mitigator on the verdict form. By contrast, the verdict form included typed questions regarding the prosecution's non-statutoiy aggravating factors.
. Contrary to the majority’s contention that Ockenfels’ report was complete, Maj. Op. at 888, it was clearly a draft — the conclusion section of the report read "[TO BE DRAFTED FOLLOWING EDITS FROM ATTORNEYS]” and during post-convictions proceedings Ock-enfels explained that it was a "draft document that [she] expected would be further developed and revised before it was finalized....”
. See also Correll,
. Moreover, the "two sentencing strategies” of (1) good character evidence and (2) explanatory mitigating evidence of drug and alcohol abuse, mental illness, or a difficult background "are not mutually exclusive.” Bemore, No. 12-99005 (quotation marks omitted). Thus, counsel could not have made a reasonable strategic decision to cut off the investigation into the latter type of evidence to focus solely on the former.
. Although Sherry did not believe that her father had sex with her, she reported memories of a man with "whiskers” kissing her while she was asleep and of a vision that her "father had performed a binding ceremony with [her] when [she] was little” and that the "ceremony meant that ... [she] would become his wife, which included having sex with him.”
. Trial counsel "did not get much of a history of [Mitchell]’s life from his mother” Sherry because she stopped cooperating when Ock-enfels, against her express instructions, told Mitchell certain things she had said. However, even without Sherry’s cooperation, an adequate investigation would likely have uncovered the sexual abuse allegations made by other family members and residents of the Navajo Reservation.
. The majority erroneously relies on the purported evaluation of psychologist Susan Parrish in ruling that counsel reasonably decided not to further investigate Mitchell’s mental problems. See Maj. Op. at 888. It is unclear whether Dr. Parrish actually performed a complete psychiatric evaluation of Mitchell. Although one attorney stated in a post-conviction deposition that Dr. Parrish diagnosed Mitchell as a sociopath and indicated that she would not serve as a witness, Bartolomei, the attorney in charge of the penalty phase, testified that her role was "more to assist in coordinating or reviewing materials or giving ideas” and stated, "I don't believe she ... ever [made] a DSM-IV assessment.”
. President Obama ordered the Justice Department to consider a formal moratorium on federal executions, but that effort stalled when Attorney General Holder announced his plans to resign. See Matt Apuzzo, U.S. Backed Off on Push to End Death Penalty, N.Y. Times, April 30, 2015, at Al.
. Damla Ergun, New Low in Preference for the Death Penalty, ABC News (June 5, 2014), http://abcnews.go.com/blogs/politics/2014/06/ new-low-in-preference-for-the-death-penalty/.