*1 Conclusion IY. disruption, minimize the do not
We of his that extension risk
hardship to endure. Santiago causing
enlistment is his claim fact that accept
alsoWe order has stop-loss subject
to be For good faith. complete brought
been however, forth, we have set
the reasons we stop- application
conclude that enlistment not breach order did
loss process of him of due deprive
contract it was author- conclude
law. We also 12305(a). judg- § by 10
ized U.S.C. accordingly court is the district
ment of
AFFIRMED.11 SIMS, Petitioner-
Mitchell Carlton
Appellant, Warden,* Respondent- BROWN,
Jill
Appellee.
No. 03-99007. Appeals,
United States Court
Ninth Circuit. June 2005.
Argued and Submitted Sept.
Filed 2005. * predecessor, her injunction substituted for Santiago an Jill Brown is also moved for 11. Woodford, R.App. deployment pursuant P. pending to Fed. appeal forestall his Jeanne shortly Afghanistan, 43(c)(2). after scheduled occur We argument appeal. of this denied that oral shortly after by separate order oral motion argument April *2 Sims, 5 Cal.4th People affirmed. Court P.2d Cal.Rptr.2d denied, California, (1993), Sims v. cert. 129 L.Ed.2d *3 (1994). court de supreme After 893 of habeas for a writ petition nied Sims’s peti § 2254 a filed 28 U.S.C. corpus, Sims Court for States District tion in the United April of California on District the Central evidentiary hear 22, Following an all of Sims’s district court denied ing, the 2, May 2003. claims and Effective Antiterrorism (AEDPA) does Penalty Act of 1996 Death appeal of Sims’s merits apply was filed be petition his federal because date, Lindh v. fore effective AEDPA’s 2059, 320, 327, 117 S.Ct. 521 U.S. Murphy, (1997), apply it does but 138 L.Ed.2d review. Ac seeking procedures Certificate cordingly, Sims obtained (1) (COA) issues: on seven Appealability Blume, and John H. Trevor Morrison W. v. Ari Miranda rights his under whether Ithaca, NY, School, for the Cornell Law zona, 436, 86 S.Ct. petitioner-appellant. (1966), violated L.Ed.2d 694 were Glassman, Attorney Deputy David F. in a cus of confessions obtained admission CA, General, respon- Angeles, for the Los rights his setting after he invoked todial dent-appellee. (2) silence; prose whether the counsel His challenges to two peremptory cutor’s Batson v. jurors violated panic prospective Kentucky, 476 U.S. 106 S.Ct. (3) (1986); right his L.Ed.2d whether violated when impartial an a member of of his member met FLETCHER, RYMER, and B. Before: writing a Padgett’s jury and discussed FISHER, Judges. Circuit (4) experiences; their whether book about RYMER, Judge: Circuit Amendment Eighth and Fourteenth his violated rights was con- Carlton Sims Mitchell penalty phase argument closing murder of John degree victed of the first (k), mitiga the last factor about factor employee Pizza who Harrigan, Domino’s “any that covers law girl- tion under California pizza to Sims and delivered which extenuates friend, room other circumstance Ruby Padgett, at their motel (5) crime”; trial Glendale, gravity of the whether attempted and the murders ineffective assistance Kory Spi- rendered employees, counsel two other Domino’s by failing to in penalty phase during He sen- Sicam. roff Edward present mitigating vestigate, develop, and to death. The California tenced condition; evidence about Sims’s mental pizza caller asked for the to be delivered to (6) ineffective in fail whether counsel was Room 205 of Regalodge Motel. The object to ar ing to comments motel was a three-minute drive from the gues California, violated 380 parlor. Harrigan, twenty-one who was Griffin old, years L.Ed.2d 106 left the parlor p.m. at 11:26 (7) (1965); and whether reversal is re Toyota truck to delivery. make the quired on account of cumulative error. p.m., Around 11:45 Padgett Sims and affirm.
We went into the Spiroff Domino’s. recog-
nized the couple day from the before. time, This pointed gun at Sicam *4 Spiroff and ordered and Sicam into a back A office. Spiroff When warned Sims that a delivery driver due back was at mo- managed Sims had a Domino’s Pizza ment, Sims took off his sweater to a reveal Columbia, parlor in West South Carolina Domino’s Harrigan’s shirt tag with name before resigning got angry when he at his chuckled, “No, and I don’t think so.” withholding part boss for of a bonus.1 sought revenge, Sims and told his then- Sims found a deposit bag bank which he girlfriend that he wanted to explosives use gave Padgett, to emptied who then kill to the boss. He a bought gun. On parlor’s cash drawers. Sims told her to November was Sims hired ás a watch for fingerprints, began and she wip- delivery Domino’s, driver another in ing the tables and cash at drawers his Hanahan, South Carolina. direction. Sims ordered Spiroff and Sicam stand the corner of the office and On December Padgett Sims and gun directly aimed his at them. Glendale, up ended They California.
went to a Kory Domino’s and asked Spi- point, At this Wagner, Richard an off- roff, the assistant manager, for directions duty employee, Domino’s arrived at the to, drugstore. On the afternoon of the parlor with his wife. Spiroff Sims told day, next a man and- woman went to a counter, go to the front threatening to store in bought pack- Sears Glendale and shoot Spiroff cooperated. Sicam unless socks, underwear, clothesline, age and Instead of acknowledging Wagner as a a knife. The sales clerk overheard the friend, Spiroff him asked for his order. woman tell the man to they relax because Meanwhile, Sims took an order over the leaving would be shortly. the store phone, identifying himself as “Mitch” to the customer. Spiroff prepared While evening On the Spiroff December Sims, pizzas, Wagners told the to wait in duty was on with delivery drivers Edward pizza the car .for their brought be and Harrigan.- Sicam John Each had aon them. gave Wagners Sims their After uniform, Domino’s consisting of short- pizza, they and, off suspecting drove sleeved shirts with a badge Domino’s burglary, police. called the tag. Scarlett, name At 11:03 p.m., Brian an off-duty Domino’s employee who was Sicam, Sims decided to Spiroff take visiting .Spiroff, time, took a telephone order one at a into the walk-in cooler. The from a feet, man with a southern accent. The cooler was 8 feet with a 3-tier primarily 1. Our recitation of the facts is based presumed 853 P.2d which is to be Galaza, on the summary, Bragg California Court’s correct. Sims, 418-27, (9th Cir.2001). Cal.Rptr.2d 5 Cal.4th at water, Harrigan’s full tempera- was bathtub the left wall. against rack submerged under the water body Sims was degrees. to 40 at 32 kept was ture parallel his back right behind his back side with tightly hands his s Spiroff tied running the other water was looped the tub. Cold rope, side of one end of with rack, s arms Spiroff Harrigan’s lifted the back of full blast onto end over the rope. immediately down high by pulling was under painfully His head neck. tiptoes his to stand on Spiroff forced This one inch below water spout, allevi- rope in the broken, tension ease the but the plug drain line. The complained, Spiroff pain. When toup ate water the over- was filled with tub you live.” At least up. replied, “Shut Sims were bound Harrigan’s valve. wrists flow rope the end of Next, wrapped bound; back; his ankles were behind his tightly tied it so neck and Spiroff s around “hogtied” hands were feet and his Spiroff of the neck a knot in back back. His head behind his together standing on stopped if he strangle would case, was se- pillow with a covered when the Spiroff asked tiptoes. around the ligature a rope cured with day. following opened the would be cooler inside placed A had been neck. washcloth that, replied at 11 a.m. Sims Spiroff said mouth, place by a sock tied held in *5 in San then, Padgett and would be around his head. Spiroff asked Sims Francisco. When the state’s forensic Joseph Cogan, Dr. Harrigan said that Harrigan, Sims about performed autopsy the pathologist, who motel and would up at had been tied the that the Harrigan’s body, determined was found. Spiroff after be found strangulation ligature of death cause was brought into the cooler then Sicam around depth on the of the furrow based him in the same manner bound neck, indicating the ex- decedent’s the choking, he was Sicam said Spiroff. When the ligature around pressure treme “You are alive.” Sims responded, neck, eye- inner hemorrhages on the at 12:15 a.m. with cooler and left closed the lids, indicating Harrigan was alive Padgett. be- ligature applied the neck was when foot, of one standing on toes While the to the blood flow head cause obstructed they knock over cartons so Spiroff tried to Cogan opined Harrigan and brain. on them and relieve some stand could than ten minutes lived for no more after neck, rope around but the pressure applied and that the ligature the neck was Eventually he tightened as he moved. kill enough in itself to Harri- ligature was knocking a box over. Never- succeeded However, rule out gan. Cogan could not theless, point Spiroff at blacked out. some drowning possibility contributed death, upon based Harri- Harrigan’s to call, to Glendale
Responding Wagner’s fully submerged gan’s having been found They a.m. police officers arrived 12:30 gag with a in his in a bathtub of water the cooler. Spiroff Sicam found mouth, presence frothy pulmo- their of them told officers One trachea and bronchi. nary edema in his Harrigan’s shirt and wearing was assailant Harrigan not returned from deliv- had wallet, money, keys or car belonging No ering pizza Regalodge. found in the room. The Harrigan to were Although the phone lines had cut. been Regalodge, got went The officers wiped clean with a wet room had been to room key registration card towel, in- were found Sims, fingerprints registered to and found which was telephone roll and in a body paper in the The side toilet Harrigan’s dead bathtub. page listing “pizza.” The After Perkins readvised Sims of his Mi- book randa up ligatures rights, knots used to tie on Harri- Sims said that he had gan’s neck were identical to those used to worked for Domino’s Pizza in South Car- olina and that he up-Spiroff rope Padgett tie and Sicam. The used had traveled by bus from that Harrigan, Spiroff, and Sicam was state Glendale bind where they rented room 205 at young to the clothes line the Regalodge. similar sold He told they gone Perkins had couple day at the to Domino’s Glendale Sears be- drugstore, directions to a fore and to Sears Harrigan’s murder. buy a knife. He said that day the next Padgett Sims and apprehended they returned to pizza. Domino’s for a At Vegas a Las motel on December 25 that point Sims ended the interview. Vegas police acting anonymous Las on an Sims’s December 25 statements and an A tip. fully pistol loaded '.25 caliber edited version of tape of the December police found under the mattress. also 26 interview were admitted in the guilt recovered a Los Angeles Times article en- phase. titled, “Delivery Making Man Slain While
Run,” yellow page and a torn from a Las testify. Sims did not pa- His forensic Vegas telephone listing book Domino’s Piz- thologist, Bucklin, Dr. Robert testified Harrigan’s za establishments. pickup white, frothy material in Harri- truck, with a Domino’s shirt Har- bearing gan’s larynx and trachea indicated that he inside, rigan’s tag name also found drowned, and that the furrow and he- Vegas Las twenty miles from the morrhages could have resulted from the motel. posture of Harrigan’s head than rather as- *6 phyxia. Bucklin also testified that stran- jail. Sims was taken to the County Clark gulation might have contributed to Harri- Gary Officers Jonathan Perkins Mon- and Schliebe, gan’s death. Stephen private a teeuollo of Department the Glendale Police criminalist, piece rope testified a met him in an with interview room. In- ligature tied was to neck Harrigan’s Miranda, rights formed of his pursuant to would not cause loss of consciousness. acknowledged Sims his understanding and theory of defense was that Harri- signed a indicating written form that he gan was alive when him in put Sims did not rights. gath- waive his As Perkins Padgett, and with bathtub left and that he leave, papers up ered his and stood to Harrigan, lacked the intent to kill Spiroff, going happen Sims asked what was or Sicam. on, point him from that and indicated that The go guilty he would like to found Sims of one count South Carolina murder, of first degree special rather than with two During California. the con- (that followed, Perkins, findings circumstances commit- versation Sims told Sims lying “I ted the murder while in wait boy” had to kill that and and “He would during robbery), of a have identified me.” At commission two the end' of the murder, interview, counts of attempted and three Perkins told Sims that Sims robbery. would have to counts of also found initiate further conver- during used a firearm com- sation about the Sims investigation, which Sims mission of each day. did the next offense. tape Perkins recorded interview, this which included Sims’s state- B just drunk, got ment “I and didn’t know ... what the fuck was I knew I was At penalty phase prosecution it, doing but I shouldn’t have done it.” introduced evidence that Sims robbed and had statement, that he recounted Sims employ- Pizza Domino’s two shot to death parlor Pizza South a Domino’s Hanahan, less robbed South Carolina than ees going crimes. before California. Glendale Carolina week before one 4, approxi- December 2 a.m. on Just after mitigating evi- presented as The defense hired as Sims was after mately two weeks who testified a of witnesses dence number Hanahan Domi- delivery driver at a background of family brutal about Sims’s Melkie, manager, no’s, Gary the assistant sexual, emotional abuse. His physical, De- lobby of the Police in the appeared Mildred, only mother, that Sims testified away, dressed blocks partment about three (from whom she was saw natural father cord dan- telephone in his uniform with divorced) during occasions on two or three bleeding of his wrists gling from one childhood, married Arnold and that she wounds to his head gunshot from profusely children had three Cranford 1961. She paramedic responded A and neck. two with Cran- first husband and with her En an ambulance. placed Melkie was drinking problem ford. Cranford the ambulance de- hospital, route to the sexually abusive became violent and shoot- where another parlor toured testified Cran- when intoxicated. She There, police reported. ing had been years seven Sims when he was raped ford driver, Zerr, delivery had found Chris old, in oral sex engage forced Sims blood, his floor with lying on the covered years. him over the When Sims was a tele- tied behind his back with hands sixteen, him have made sexual Cranford shortly He died thereafter phone cord. both They with his mother. intercourse $1,164 head. wound to the gunshot from a during On another oc- cried the incident. drawers. taken from the cash had been casion, to have inter- Cranford forced Sims asked hospital, paramedic At the older sister Merlon. Cran- course with his him re- had shot and Melkie Melkie who told that Sims was repeatedly ford Sims Melkie said Mitch Sims.” sponded, “Sims. person. began good” “no and bad up and then shot had tied him fourteen, attempt- drinking heavily at thing repeated the same to a Zerr. Melkie by drowning suicide when he was an ed officer, including description police adolescent. *7 Sims, worked for Domi- and said that Sims incidents of repeated Merlon testified to surgery.2 Melkie died after no’s. that and the physical and sexual abuse she gunshot had suffered four Melkie hands other children suffered at the neck, a
wounds to the and bullet head every was a night Cranford. She said tongue, his and a casing was removed from going ain’t nightmare, and that never “[i]t bullet, fifth which had exited from his me alone.” Cranford would drag to leave head, a wall at the was from recovered bed, and strip, her out of her to then force parlor. her, bed, her, fondle beat tie her to a and occasionally intercourse tape of the record- have sexual
An unedited version
brought men home
ing of
26 statement
to her. Cranford
and
Sims’s December
and forced her to
sex with them. She
Perkins was admitted into evidence
have
attempted
In that
also
suicide several
times.
played
jury.
portion
for the
case,
Following
this
Sims was
of death were affirmed
Court
the trial in
Sims,
State v.
304 S.C.
South Carolina of the
of South Carolina.
tried and convicted in
denied,
(1991),
during
3. Justice Mosk Chapman dissented from the have held that Sims conversation initiated on analysis; Justice wrote in Kennard her con- days right both his to waived counsel. opinion curring dissenting that she would
568 product me” was the have identified would 2783, L.Ed.2d 894
1253, 114 S.Ct. officer that Perkins of remarks petition habeas a state (1994). filed Sims likely reasonably were have known summarily should was February response; and incriminating an to elicit 2, 1994. on March denied 26 state- December that Sims’s concluded fil- proceedings federal initiated Sims drunk, I didn’t just got “I that ment stay of execution for request ing ... I knew what fuck was what the know 8, 1995. August on counsel appointment it” have done I shouldn’t doing, but I was on relief was filed for habeas petition His questioning express to response was a found court The district 22, 1996. April by Perkins itself the crime and granted unexhausted claims some admitted, but not have been should to delete petition to amend his Sims leave proper- post-Miranda statements were his petition a second filed claims. Sims those Brecht applying ly Regardless, admitted. 10, 1997, which on October court state court analysis,4 the district error harmless on denied Court Supreme the California Court’s Supreme the California embraced fed- amended his After he April Chapman the stricter finding (applying evidentiary an asked petition, Sims eral standard) if of Sims’s portion that even hearing on one of given hearing and erroneously, admitted were statements appeal— on pursued the claims reject- The court any error was harmless. regarding counsel ineffective assistance of challenge prosecutor’s to the ed Sims’s this claim On health evidence. mental be- mitigating argument about to Sims failed found that* district court never cause, opinion, in its attorney’s performance establish history of disregard to Sims’s told the counsel consulted was deficient because it lacked argued but instead abuse suggest not who did experts qualified and, argument if were even weight experts additional information need for by the trial was cured error improper, infor- relevant being informed of after respect With instructions. court’s rela- background and mation about Sims’s claim, court held Sims’s Batson the district ap- on raised other claims tionships. On purposeful dis- failed to show order in an exhaustive court held peal, the explana- prosecutor’s given crimination juror misconduct was claim of that Sims’s challenges were based tion that that there by any indication supported not responsi- jurors’ experience lack of life between improper communications were no ineffec- Finally, court saw bility. juror. With Padgett juror and the the Sims object failure tiveness counsel’s admissions, the district respect failure comment prosecutor’s (rather trial court agreed court with the comments testify as the Court) than with California improper. not boy” “I to kill that that the statement denial timely appealed has interrogation; response made boy petition.5 “The his habeas it held that Sims’s statement Abrahamson, 90 L.Ed. U.S. 4. Brecht (1946))). (1993) (hold- 123 L.Ed.2d may only grant habeas ing court that a federal *9 denial a district court’s 5. review de novo We judgment if constitu- a state relief court from petition 28 U.S.C. filed under of a habeas injurious "had tional substantial error 1062, Murphy, § F.3d 2254. Clark v. 331 jury's determining effect influence Cir.2003). (9th factual A district court’s 1067 States, v. United (quoting verdict" Kotteakos Alcala clear findings are error. reviewed
569
II
staying.
interjected,
woman were
Sims
“I
had to kill that boy.” Perkins responded,
argues
incriminating
that
Sims
you say?”
“What did
repeated,
and Sims
“I
police
he
to
statements
made
officers
had
kill
boy.”
that
Perkins then de-
26
December 25 and while he was
their
scribed how Harrigan’s body
found,
was
custody
right
and after he had invoked his
and commented that Harrigan “did not
obtained,
introduced,
to counsel were
have to die in this manner and could have
in violation of his Fifth and Fourteenth
been left there tied and
gagged
rights
Amendment
under Miranda and its
manner in which he was found.” Sims
progeny.6
boy
stated “The
would have identified me.”
After Sims had declined to
waive
leaving,
As he was
Perkins told
that
Sims
25th,
rights on the
and Perkins had start-
he would
have
initiate further conversa-
leave,
going
ed to
Sims asked what was
tion about the investigation.
day
The next
on,
happen
point
to him from that
and said Sims asked to see the Glendale officers.
go
that he
rather
would
South Carolina
tape
Perkins took a
him
recorder with
replied
than California. Perkins
that he
complained
26th. Sims
being
planned to obtain Sims’s extradition to in
jail
the “hole” because
authorities
California, that
there were warrants for
thought
going
he was
to kill himself. Per
Sims’s arrest
connection with the mur- kins asked whether he was going to and
employees
der of two Domino’s
in South
“Why
said,
Sims said
should I?” Perkins
Carolina as
for the
well as
murder
in “O.K.,
I
that’s all want to hear ... You
Glendale, that
investigating
he was
don’t seem
guy.”
like
kind of
murder,
body
Glendale
and that the
of a
not,
“I’m
responded:
I’m not a murderer
”
delivery
Domino’s
driver
in'
was discovered
but,....
either
Perkins said: “What does
Regalodge
room 205
where he had that mean?” And Sims answered: “That
young
just
drunk,
reason to believe that
and a
got
means that
didn’t
862,
(9th Cir.2003).
ion)
Woodford,
v.
334 F.3d
868
(holding that once an accused asserts the
this,
pre-AEDPA
counsel,
cases such as
we review
fight to
re-initiation occurs
when
legal questions
questions
and mixed
of law
willingness
"evince[s]
and a
desire for
Mayfield Woodford,
and fact de novo.
v.
generalized
investiga-
discussion about
915,
(9th
(en
Cir.2001)
banc).
F.3d
State
tion”);
Estelle,
see also
v.
Shedelbower
findings
presumed
court
of fact are
correct to
(9th Cir.1989) (holding
F.2d
that an
they
"fairly supported by
the extent
are
officer’s
suspect
false statement that the
2254(d) (1994); May
§
record.” 28 U.S.C.
rape
been identified
victim was not the
field,
know what that he did stop; had to interrogation Per- of done it.” it, I shouldn’t doing but about the Glen- discussing discussion trouble not re-initiate had he kins told Sims by asking about extra- his murder either had not dale Sims waived the case because 25th, question that interest because expressed dition on Sims rights. Miranda of the cus- routine incidents Carolina where concerned the South returning to criminal in the same remaining relationship instead was, todial family contacting the Glen- explained Perkins or Padgett. investigation, state in Califor- state coun- tried first the 26th. The likely be officers on would dale Sims Carolina, to district nia, South court and the released the trial then be ters that they know won’t ini- “You correctly said: when Sims court determined lawyer, they have me see “I to kill incriminating let statement had even tial ..., Nevada, huh me in charges against in re- spontaneous and not boy” fugitive, said: “You’re a lawyer.” Perkins trial and that the interrogation, to sponse tomorrow, you go court.” to yeah. Well the remain- findings respect with court’s they charge me “Why don’t asked: Sims This is ing comments were correct. something? pot possession however, with engage, need not debate that we bag.” (Laughs.) had agree with both the California because we the district court Supreme Court and of his Later, readvised Sims Perkins incriminating remarks admitting Sims’s them and Sims waived rights, Miranda harmless.7 lack of involvement Padgett’s discuss said that crimes. Sims Carolina South at trial to de “review the evidence We Pizza at a Domino’s had worked likely had whether the confession termine mov- thirteen months before Columbia injurious impact on the substantial robbing a He admitted ing to Charleston. not, verdict; was harm if its admission suburb, but told in a Charleston Domino’s Maddox, v. 366 F.3d Taylor less.” Padgett was unaware the officers (9th Cir.2004) (citing Brecht v. Abra 1016 robbery happened. after until hamson, 637-39, 113 S.Ct. Jacksonville, morning they left for next (1993)). “If a L.Ed.2d 353 habe- Florida, Ange- there went to Los and from ‘grave doubt’ about as court is left Padgett he and rented les. Sims said a constitutional error substantial whether Regalodge at the room 205 Glendale verdict, then the error ly influenced the they told Perkins December 8. He Runnels, v. was not harmless.” Parle drug- for directions to gone Domino’s Cir.2004) (9th (citing F.3d store, buy a He and to knife. Sears McAninch, v. O’Neal day they said that the next returned (1995)). 130 L.Ed.2d pizza. point for a At that Sims Domino’s suggests that both courts conduct- ended the interview. analysis harmless Cali- ed their error —the A Chapman, Supreme Court under fornia Brecht —im- district court under and the California contends strength of the correctly properly assessing he un held that Supreme Court erroneous- apart state’s evidence from the right to counsel ambiguously invoked harmless). See, finding it Spicer Gregoire, error and e.g., (9th Cir.1999) (assuming constitutional *11 injurious ly statements. We do not think substantial and effect on admitted the ver so, courts do review all the state’s because dict. determine whether error had a evidence to Domino’s, it in Sims had wanted injurious effect on the substantial and revenge, expressed and had the desire to See, Brecht,
jury’s
e.g.,
verdict.
up
pizza
blow a Domino’s
parlor with em-
(finding
at
harmless
S.Ct.
ployees inside it. As a former Domino’s
“the
part
error
because
State’s evidence manager Sims
operat-
knew how Domino’s
was,
certainly
if
guilt
overwhelming,
not
ed. He had scouted out
the Glendale
(con
Parle,
weighty”);
He denied the Wheeler
First,
the defendant must make out a
“[tjhere
is no evidence other than the
by showing
facie case
prima
jurors
fact that all four Black
have been
gives rise to
totality of the relevant facts
support
finding
a
peremptorily excused
discriminatory purpose.
an inference of
systematic
at this time
the court of
Second, once the defendant has made
Hispanics.”
exclusion of Blacks or
case,
prima
out a
facie
the burden shifts
explain adequately
to the State to
Supreme
found
The California
Court
by offering permissible
racial exclusion
justifications
prosecutor’s
that “the
stated
justifications
race-neutral
for
race-neutral,
facially
upon a
based
Third,
expla-
if a race-neutral
strikes.
perception
‘specific’
of a
bias
individual
tendered,
nation is
the trial court must
bias,
juror
group
of each
rather than a
...
opponent
then decide
whether the
constitutionally permissi-
thus afforded a
purposeful racial
proved
the strike has
perempto-
ble basis for the exercise of the
discrimination.
Sims,
ry
5
challenges
question.”
— U.S.-,-,
Cal.Rptr.2d
California,
20
Johnson v.
Cal.4th
Nor
ethnicity
prosecution
of victims
acknowledges that the
step.
second
witnesses could be taken as evidence
not need to
'explanation does
prosecutor’s
sincerity).
only
ap-
that it
argues
persuasive,
be
Finally,
prosecutor explained
stereotypical
from
as-
proceeded
parently
Mandujano
struck
because he
Cerda
jurors
particular
about how
sumptions
capacity
doubted their
to exercise the re
in a case like this. How-
might
races
react
jurors in
sponsibility
capital
case.
ever,
proffered reasons
prosecutor’s"
recently
Court
made clear
Cerda,
Mandujano and
striking
*15
reason
prosecutor’s proffered
that
responsibility,
“[i]f
their lack of
centered on
applies just as
striking
panelist
for
a black
were race neutral.
well to an
nonblack who
otherwise-similar
step,
third
Sims first
respect to the
With
serve,
to
that
is evidence
permitted
is
Supreme
that
the California
contends
to be con
tending
prove
to
discrimination
trial court’s incor-
did not cure the
Court
third
Miller-El
step.”
at Batson’s
sidered
legal
of the
standard.
rect articulation
—
Dretke,
-,
-,
v.
U.S.
S.Ct.
review, however,
125
de novo
we
under
Even
(2005). In
196
162 L.Ed.2d
that the record demonstrates
conclude
Miller-El,
analysis
comparative
under
was no Batson error.
there
bases for
proffered race-neutral
mined the
pretextual
nature
argues
Sims
non-
two black veniremen because
striking
explanations is manifest
prosecutor’s
of the
jury
have
served on the
should
blacks who
racially disparate pattern of
in the
reasons.
for
the same
excluded
been
race-
challenges,
explicit
peremptory
here,
However,
explana
prosecutor’s
analysis
strategy,
comparative
based
Mandujano was
striking
tion for
Cerda
jurors.
empaneled
jurors
with
struck
whites,
leaving
young
two
consistent with
in-
may be
discriminatory intent
Although
jury. The
Blakely, on the
Karlberg and
prosecutor
fact that
ferred from the
Cerda,
Karlberg
unlike
is clear that
record
perempto-
his first twelve
exercised four of
ques
response
to
Blakely, waffled
Hispan-
jurors
to strike
with
ry challenges
the death
imposition
Hernandez,
tions about
surnames,
at
500 U.S.
ic
see
Although Mandujano looked
363,
1859,
penalty.10
Híspame-
111
at least one
S.Ct.
ability
on” a death case.
her
to "take
suggestion
the California Su
doubt
Sims's
10.
Miller-El,
(explaining
at 2332
court crafted an
preme Court and the district
Cf.
of a reason for
equivocal
"substitution
ground
court’s
that Cerda had
additional
nothing
juror]
eliminating
does
prospective
penalty misplaced,
[a
feelings
death
about the
stating a
satisfy
prosecutors’
burden
responses
questions
to
equivocal
as Cerda's
own ac
racially
explanation for their
neutral
penalty
lack of matu
about the death
showed
tions”).
rity
reasonably
led the
States,
juror,
very strong
younger
he was
Mattox v. United
like a
(1892),
S.Ct.
the defendant had killed. The Court held
communications,
that “[pjrivate
possibly
IV
jurors
prejudicial,
per-
between
and third
claimed in his state habeas
sons, witnesses,
charge,
or
or the officer in
petition
Court
California
forbidden,
absolutely
are
and invalidate
petition
right
and in his federal
that his
verdict,
at least until their harmless-
impartial
an
was violated when a
Mattox,
appear.”
ness is made to
Mauro,
jury,
member of his
Marlene
met
Remmer,
an un-
S.Ct.
Padgett’s
with a
friend who had served
person
juror
named
communicated with a
her,
jury, agreed to
write
book
profit by
and remarked that he could
jurors.
told this to other
bringing in a
peti-
verdict favorable
He submitted the declaration of Sarah
Mattox,
Elaborating upon
tioner.
Nordell,
juror, in support.
a Sims
Nordell
case,
Court declared that
a criminal
“[i]n
avers
Mauro related to some of the
communication, contact,
any private
or
jurors that she learned
about her
tampering directly
indirectly,
with a
Padgett jury
friend’s service on the
when juror during a trial about the
pend-
matter
they
beauty shop
met at a
and discovered
ing
jury is,
reasons,
before the
for obvious
occupied
that both
the same seat in the
presumptively
deemed
prejudicial!.]”
box,
that she and her friend were Remmer,
lish improper communication. Dyer pro- involved the situation where a contends the unauthorized spective juror perjured during herself voir communication dire, between Mauro her alleged impropriety whereas the here presumptively prejudicial friend is juror under arose after empaneled. was event, suggests 11. The state that the Nordell declara- we decline to avoid the issue on this multiple layers hearsay tion has of 1180, and so Blodgett, basis. See v. 5 F.3d Jeffries present Sims did not the California (9th Cir.1993) (considering juror 1189-91 two competent allega- Court with evidence of this years petitioner affidavits filed two after tion, making noncognizable thus on federal sentenced that recounted the remarks of a habeas review. It is unclear to us that this juror). third court, point was raised in district but in
577 verdict. See United States v. ing the' Sims Dyer’s comments or not Whether (9th 1328, 654 F.2d 1333 Cir. apply Armstrong, writing a memoir” “hope however, 1981) academic, juror’s no from (finding prejudice is circumstances our contact— because, condoning the an un receiving phone without obscene calls from unfortunate— agrees juror’s person regarding the state treat known “A from it. resulting prejudice see no juror, we another as the calls did not ment of not prejudicial, possibly is case, communication were not refer to the merits of minimis, risk of influenc if it raises a de not with threatening, and were identified Warden, v. the verdict.” See Caliendo ing party). either Cir.2004) (so (9th holding that he should at Sims contends agent the case talked in a case where discovery or an least have been accorded in the jurors twenty minutes several allega evidentiary hearing on the basis courtroom, and identi hallway outside no petition, tions in his but we see abuse may inform the decision fying factors that Stewart, 111 v. discretion. See Villafuerte a risk raised whether the communication (9th Cir.1997) curiam) (per F.3d influenced). Here, verdict was of discretion is the stan (noting that abuse true, Mau as taking Nordell’s declaration review). Discovery is indicated dard of communication did ro’s unauthorized give the court specific allegations where Padgett the verdict. The influencing risk petitioner may that a be reason to believe any way juror was not involved able to demonstrate that is entitled witness, trial; party, not a she was Bracy Gramley, v. relief. fortui The contact was or a court official. 908-09, 138 L.Ed.2d was of a rela and the communication tous (1997). evidentiary hearing required An in that it centered tively innocuous nature “(1) if petition law pre-AEDPA under ending up of two friends serendipity would, if proved, entitle allegations er’s sitting jurors in related trials (2) relief; the state court trier him to planned if Mauro same seat. Even not, a full and fair hear fact has after 3,” Number there a book about “Seat write facts.” ing, reliably found the relevant financial that she had a suggestion is no (9th Woodford, 279 F.3d v. Silva outcome. This is any particular interest Cir.2002) Wood, 114 F.3d (quoting Jones suggestion by a third- quite unlike the Cir.1997)). (9th Only three juror could in Remmer party *17 that alleged petition in Sims’s things are deal, juror by bribery or the of a make a in the Nordell dec encompassed not Dutkel, in States v. co-defendant United Mauro Mauro’s friend told laration: that (9th Cir.1999). As 894-95 testimony Padgett’s from information declaration, Mauro from Nordell’s appears Sims, had Padgett shifting blame to trial to wait until after Sims’s intended to that, in friend’s convicted been no And there is experiences. her discuss young, beautiful Padgett was opinion, had communication indication that Mauro’s by getting had wasted her life girl who anyone else. impact on her or any actual truth of Assuming the involved with Sims. allegations between the The connection statements, not have had they could these in Nordell declaration contained injurious effect a substantial part interest on Mauro’s any pecuniary trial, attempt to did not At verdict. a serious con to raise simply too tenuous in blaming Padgett; by himself exculpate undermining impartiality. cern about deed, that Sims di showed the evidence circumstances, the unauthorized these conduct rected, most of the and committed influenc no risk of raised communication crimes, in himself. The related to the furtherance offense which he is on trial.”12 Padgett could have had opinion friend’s at all. effect on the verdict And the no prosecutor’s Sims contends that the jurors fact that a number of knew about arguments negated this instruction two conviction was aired before the Padgett’s first, respects: jury telling court, any which concluded district childhood, during abuse suffered knowledge insignificant such was rendered depression and the traceable to it that he overwhelming Sims’s adult, qualify suffered as an did not as guilt. pursued decision is not This mitigating evidence in context when he way light can see no of it appeal, and we “if, fact, mitigating stated that it were a allegation that Mauro knew childhood, person factor that a bad conviction, if Padgett’s proved, apply virtually every that would violent him to relief.
would entitle
incarcerated”;
second,
currently
felon
by stating that
background
was not
V
mitigating
factor because there was
rights
Sims maintains
“nothing to bridge
background
of what
process
nonarbitrary
due
sentence
happened
family to the murders
[Sims’s]
were violated when the
told the
that we have dealt with
ar
here.” Sims
jury during closing argument in
penal
gued the
points
same
to the California
ty phase that evidence about Sims’s abu
Court,
which concluded that
qualify mitigating
sive childhood did not
remarks,
prosecutor’s
in general,
“[t]he
fall
evidence and was therefore irrelevant
to within the bounds of proper argument.”
jury’s
deliberations. The state re Sims,
5 Cal.4th at
Cal.Rptr.2d
sponds
happened.
this is not what
explained
579 were made and appropriate comments suggest tended to have might evidence that be a reasonable likelihood not consider there is jury the could incorrectly that (k) jury that factor in mitigation, applied in but of them the cause evidence such beyond a harmless was consideration of rele suggestion way prevented that such counsel’s given evidence, defense doubt then Brecht mitigating reasonable vant background that argument Sims’s vigorous analysis applies. error See Cal harmless and instructions relevance mitigating Coleman, 141, 146, v. 525 U.S. 119 deron jury to consider told the (1998). specifically that 142 L.Ed.2d521 S.Ct. relating to the evidence mitigating as told argument prosecutor In his the the circum- In these Id. childhood. Sims’s by the court’s instruc- guided to be stances, there court concluded the tions, mitigation, in and which list factors possibility no reasonable upon based to make its determinations not consider it could to believe misled instructions. He stated various The dis- mitigation. background Sims’s aggravation mitigation are factors prosecu- read the agreed. As it court trict explained mitigating law. He jury to summation, told the he never tor’s aspect an of the crime or facts would be in- but of abuse history disregard the crime or individual that make miti- lacked that the evidence argued stead vicious, cruel, painful, less individual unexplained, it was weight because gating deserving punishment. of the ultimate He as if it could be viewed that even but indicates that emphasized that the statute was cured any error improper, somehow various factors in “you shall consider” the admonished by the instructions that applicable. if mitigation aggravation remarks that the jurors of through each prosecutor The went court would and that the merely argument factors, argu- mitigating aggravating agree We law. instruct them applied. he When he ing which believed courts. both (k), explained got to factor “whether controlling standard The Now, get into respect, in this we areas likelihood is a reasonable there Any sympathetic or other sympathy. challenged instruction applied the jury has character defendant’s or aspects the consideration way prevents you can consider Boyde background. relevant evidence.” this constitutionally ... family, anything 110 else S.Ct. California, background, v. (1990); you Brown v. want L.Ed.2d 316 you can consider whatever - defendant, -,-, for the Payton, sympathy pity U.S. or find 1440-41, L.Ed.2d 334 not relate to the though it even does (2005). and Fourteenth Eighth The mitigation aggrava- or factors other sentencer, require that Amendments tion. case, capital the rarest kind “in all but testimony Vicary’s Dr. Discussing considering, as a from precluded be again depression, any aspect of a defen- factor,
mitigating
sympa-
you can feel
is the law
“[i]t
stated
...
character
record
dant’s
you
if
deem it
a defendant
thy
pity
for a sen-
basis
proffers
defendant
sym-
moral or
if
you attach
appropriate,
Ohio,
Lockett
less than death.”
tence
to that.”
pathetic value
(em-
prosecutor described
(1978)
opinion)
(plurality
L.Ed.2d
*19
omitted).
“shocking.” He
background as
(footnotes
If Sims’s
original)
phasis
to contra-
is,
he had no evidence
error,
if in-
stated that
that
is constitutional
there
it,
it should be taken at face but rather that it
diet
that
should not find that his
value,
paints
very ugly pic-
that it
was,
background, shocking though it
miti
posed
ques-
then
the rhetorical
ture. He
gated the vicious murders he committed
prosecu-
tion:
does it mean? The
What
attempted.
Payton, 125
Cf.
nothing
tor’s answer
“There is
was:
(describing
prosecutor’s
1436-37
the
argu
bridge
background
happened
of what
erroneously telling
ment there as
jury
family
in that
to the murders that we have
that it could
post-crime
not consider
re
here, nothing
dealt with
to connect it.”
religious
form and
mitigat
conversion as
Vicary’s testimony that
Relying on
most
(k)).
ing
emphasized
under
factor
He
people
prison for violent offenses were
jurors
that
must follow the instruc
they
themselves the victims of abuse when
tions,
evidence,
must consider mitigating
younger,
prosecutor stated that
were
background
any
must
take Sims’s
“if,
fact,
mitigating
factor
were
account,
thing else into
must take Sims’s
childhood,
person
bad
would
value,
abuse at face
and must
apply
virtually every
felon cur-
violent
sympathy
feel
if
pity
jury
deems
were,
rently
If that
incarcerated.
there-
it appropriate.
entirely
Given these
cor
fore,
factor,
a mitigating
you
then
would
statements,
rect
we cannot conclude that
emptying prisons
be
because it would ap-
prosecutor’s
missing
remarks about a
ply
virtually everybody.”13
prose-
The
bridge or emptying prisons
created
rea
pointed
Vicary
cutor
out that
never said
sonable likelihood that
misapplied
that mental disease or defect or emotional
(k)
the factor
instruction so as to preclude
disturbance
produced by
were
the acts
consideration of
background.
Sims’s
See
perpetrated
family.
prose-
Sims’s
Boyde,
384-86,
Overall, prosecutor’s case, context of statements do re not suggest that the cannot consider marks could substantially not have influ Sims’s background as a mitigating factor enced the verdict. The court admonished Vicary during testified sentencing younger. He also testified that "in the vast phase majority” people that "the vast who majority people of cases” that who commit offenses, prison are in rape, for violent sexual murder, premeditated acts of were themselves were, themselves, molesting, and child abused as children. they victims of some sort of abuse when *20 (k), if factor even attorneys court’s instructions the that statements jury all of the defen transformed jury ambiguous, and that the argument, simply testimony into a “virtual was the evidence dant’s favorable what determine would charade”). law. that thus conclude instruct We the court would and jury that harmless. Boyde reminded error was prosecutor law define the would court’s instructions followed. must be VI that the instructions
and
that
clearly stated
The instructions
counsel, Morton
Although trial
or
“any sympathetic
jury “shall” consider
Borenstein,
pen
at the
presented evidence
defendant’s character
of the
aspect
other
childhood,
abusive
alty phase about Sims’s
offers as
defendant
that the
or record
present
he
that
failed
Sims contends
death,
than
less
for a sentence
basis
(1)
establishing:
testimony
expert
for
to the offense
not related
whether
Stress
from
suffers
Post-Traumatic
Sims
presented
Sims
is on trial.”
(PTSD)
abuse
a result of the
Disorder
and
of horrific abuse
significant
(2)
child;
that- the abuse
as a
he suffered
on'him. The
abuse had
impact that
what
a direct role
his
played
Sims suffered
true
accepted the evidence as
prosecutor
Padgett
and
involvement
“shocking.” De
it
acknowledged was
and
(3)
issue;
organic
has
Sims
crimes at
jury
[he
that “what
counsel told
fense
(4)
Sims demon
damage; and
brain
however,
on,
disagree
prosecutor]
and the
to confinement.
adaptability
good
strated
mitigating factor
significance
testimony estab
argues
expert
Sims
ac
weight should be
and what
or factors
readily avail
points
lishing all of these
that factor
emphasized
them.” He
corded
if
had known about
and
able
(k)
of Mitchell’s
“sum and substance
is the
evidence,
high
it is
range mitigating
full
.at
1985.”
life
December
before
been
would not have
ly likely that Sims
“bridge”
torney countered
court
The district
to death.
sentenced
wrong,
it
that was
by explaining
argument
evidentiary hearing on this
an
conducted
as the
had choices
that while
perform
that Borenstein’s
found
issue and
builds
the “scar tissue
argued,
prejudicial.
neither deficient nor
ance was
it
it inside and then
you keep
up and
findings
action factual
habeas
a federal
people.”
in some
explodes
comes out and
accepted unless
court are
by the district
weigh
why the
should
explained
He
Hendricks
clearly erroneous.
are
they
back
childhood
of Sims’s
the evidence
Cir.1995)
(9th
1032, 1036
Calderon, 70 F.3d
heavily as
depression
and adult
ground
amended).
(as
Finally
most
mitigation.
factors
public
deputy
had been
Borenstein
jury to have believed
for the
importantly,
and was
years
for sixteen
defender
mitigating evi
it could not consider
(the
at
highest grade) defender
Grade IV
dence,
had to believe
it would have
case.
assigned to Sims’s
the time he was
an extensive exami
Vicary
Dr.
conducted
number,
circum-
of special
He had tried
mother,
Sims,
his
that Sims’s
nation of
case
Although
stances cases.
sister,
came
wife
stepbrother,
through
he had tried
the first
testify,
naught.
for
out
California
pre-
had been
Borenstein
penalty phase,
the Court
unlikely, as
think this is
We
long
time.
capital
do
cases
paring to
Boyde.
situation
thought of the similar
meetings about
seminars
He attended
383-84,
Boyde,
See
penalty
watched death
penalty;
the death
unlikely that
it is
(observing
attorneys
trials,
with other
spoke
believe that
jurors would
reasonable
*21
to capital
Borenstein,
about issues attendant
cases.
extensive conversations with
long
gave
who
him
consistently
significant
Borenstein worked
hours
details about
months;
background.
Sims’s
Vicary
for
Sims’s case
eleven
he was
interviewed
times,
Sims six
and interviewed Sims’s
paralegal
investiga-
assisted
and two
mother, wife, siblings,
jail
deputies.
experienced
tors as well as
an
South
police
school,
He
reports,
reviewed
familiar
attorney
pen-
Carolina
with death
army,
records,
and work
his South Car-
issues,
alty
Swerling.14
Jack
Borenstein’s
records,
therapy
psychiatric records,
olina
reassigned
other cases were
before Sims’s
and court
regarding
records
Cranford’s
trial began
exclusively
and he then worked
prosecution
sexually
for
abusing Margaret.
on it.
Vicary also
Maloney
conferred with
The district court found that Borenstein
results of Sims’s psychological testing. Vi-
Swerling
sent
extensive materials and was
cary never told Borenstein that he needed
in regular communication
him
with
while
any additional material to evaluate Sims’s
prepared
Swerling
Sims’s defense.
case, or that
testing
additional
or experts
his law clerk interviewed witnesses and
were needed.
obtained Sims’s school and work records.
Maloney had a Ph.D. in Psychology from
Borenstein traveled to South
per-
Carolina
the University of Colorado
completed
sonally
speak
family
with
members and
post-doctoral
fellowship at the Univer-
witnesses and to view the crime scene.
sity of Southern California Medical Center.
spoke
Borenstein
with
“a lot”
He was a
Diplómate
Psycholo-
Forensic
he or his paralegal
jail
visited Sims in
gy
practice
licensed to
in California since
6, 1986,
least 24 times between March
1970. Maloney was retained to
“conduct
case,
when Borenstein
assigned
psychological evaluation of Sims to deter-
and March
when
began.
the trial
mine the
any possible
existence of
mental
Borenstein retained the services of two
guilt
defenses for the
phase, and to identi-
experts:
Vicary,
Dr. William
a forensic
fy any factors that could be considered as
psychiatrist, and Dr.
Maloney,
Michael
a mitigating
the event the case
psychologist,
forensic
so that he could have
proceeded to a penalty phase.” Boren-
opinions
the benefit of
experts
from
in stein
Maloney
selected
because he had ex-
both disciplines. Vicary was a board-certi-
experience
tensive
in capital cases as well
fied
psychiatrist
forensic
who received his
as
involving
issues
allegations
physical,
of
medical degree from
University
emotional and sexual
Maloney
abuse.
Southern California in 1973 and a law de-
potential
familiar with
impact
of physi-
gree from Harvard in 1969. Most of his
cal and sexual abuse on an individual’s
practice was devoted to conducting evalua- development. Borenstein also chose Malo-
tions of
charged
individuals
felonies
ney because he
give
would
him an honest
the Los Angeles Superior Court. Boren-
opinion and would
him
point
right
gave
stein
Vicary a nine-page single-
direction if
things
other
were needed.
spaced letter outlining the crimes and
Maloney
Borenstein sent
the same nine-
Sims’s background,
Vicary
page
also had
letter he
Vicary,
sent
as well as re-
arranged
Swerling's
Borenstein
ap-
advocacy
criminal trial
University
at the
pointment
Swerling
so that
investigate
could
School,
South Carolina Law
and had served
background
Sims's
and the South Carolina
chair
the criminal law sections of the
Swerling
crimes.
had defended some 100
South Carolina Bar Association and the South
homicides, four of which involved the death
Lawyers
Carolina Trial
Association.
penalty.
adjunct professor
He was an
Borenstein decided
testing, and
conducted with
of interviews
ports
testify because of this.
Maloney
have
friends,
principal,
school
high
family,
*22
He and Ma-
military records.
and Sims’s
light
of his
Vicary
testify, relating
did
times and discussed
loney
met several
also
that
investigation
Sims had
interviews and
Maloney interviewed
length.
at
the case
(along
of
lengthy pattern
abuse
suffered'a
sev-
times and administered
several
family),
Sims
of his
with other members
fifteen,
Adult
tests, including: the Wechsler
of
and
age
eral
since the
been suicidal
Revised, the Minnesota
as
drug and alcohol abuse
Intelligence
history
Scale
had a
of
Inventory, and the
Personality
feelings
inadequa-
of
long-standing
well as
Multiphasic
shame,
self-esteem,
and
Maloney
despair,
conclud- cy,
test.
low
inkblot
Rorschach
explained that
feel-
“clearly
average humiliation. He
these
of
above
that
was
ed
Sims
more and
ings cause the victims
become
were no men-
and that there
intelligence”
succeed,
that,
they
peo-
frightened
a more
showed
to the crimes. Sims
tal defenses
they really are and
find
who
ple will
out
and Perform-
his Verbal
disparity between
they
actually
responsi-
handle
that
can
that
scores, Maloney believed
IQ
but
ance
in their
in turn can result
bilities. This
factors
could be attributed
disparity
a
unintentionally creating
intentionally or
deficits.
neuropsychological
other than
anticipated negative
so that the
situation
signs of
also showed
opinion, Sims
Vicary
opined that
also
feedback occurs.
Maloney
disorder.
personality
antisocial
depression.
chronic
suffered
Sims
that he lacked
Borenstein
never told
evalu-
evidentiary
to conduct the
background materials
an
court held
The district
ation,
that
suggest
testimony
he
additional
was
nor did
at
received
hearing
ex-
that
eight experts.15
needed or
additional
and
testing
from Borenstein
was
Maloney indi-
con-
found that Borenstein
be retained.
court
perts should
district
regard-
investigation
that he did not believe ducted an extensive
cated to Borenstein
crimes, re-
and the
ing
background
be-
witness for Sims
good
be
he would
experienced
experts
well-qualified
tained
had discovered
of what he
cause
occurred; and
why
explain
the offenses
him
that he
Whyte, psychiatrist, testified
Dr.
PTSD,
testimony that
prepared
alcohol
to offer
he
Sims suffered from
that
believed
change
personality
due
Dr.
dependence,
adapt
and a
well to confinement.
Sims would
disagreed
damage;
with Ma-
organic
he
reports,
brain
and Dr.
expert
Halleck reviewed
that
who determined
loney and Dr. Ornish
Hamrick,
Car
South
testified in Sims's
who
personality dis
from antisocial
Sims suffered
trial,
opined that
the difference
olina
Lebowitz, psychologist licensed
Dr.
order.
IQ
generally
would
indicate
scores
Massachusetts,
provider in
aas
healthcare
dysfunction.
Delis
Dr.
brain
least some mild
tormented,
impaired and
Sims as
assessed
evi
neuropsychologist who found no
was a
Padgett was concerned.
desperate so far as
damage
affected Sims's
that
of brain
dence
Venn,
diagnosed Sims
psychologist,
Dr.
cognitive
ability,
lobe
cognitive
or of frontal
history
explained that Sims's
with PTSD
psychia
is a forensic
dysfunction. Dr. Ornish
profound
abuse affected him
severe sexual
Vicary’s
as
trial
trist who determined
depression,
anxiety,
ly;
suffers
that Sims
competent;
sessment of Sims
self-esteem;
Sims meets
and that
low
disorder,
personality
alcohol
had antisocial
dependence, al
for alcohol
DSM-IV criteria
abuse;
history
substance
dependence and a
originally
though
he
interviewed
when
diagnose brain
inappropriate to
it was
diagnosed him
in 1992 and
solely
on differences between
damage
based
did
Vicary
that he
stated
anti-social disorder.
IQ,
there
performance
verbal
Maloney had administered
not realize that
damage; and
brain
evidence of
Sims;
was no other
of some tests
version
shortened
sociopath
sub
PTSD;
a textbook
that Sims was
diagnosis
tha
consider a
he did not
t
helped
stance abuser.
Padgett’s life would have
details
reported
to whom he
capital cases
effect on Sims was a reasonable strategic
investigation,
results of his
and was not
decision. Finally,
the court found that
expert
told
either
that additional infor- Borenstein also made a reasonable tactical
expertise
mation or
was needed. With
decision not to pursue
dangerous-
future
makes,
respect to the claims that Sims now
ness
open
because would
door
the court
that Borenstein
found
identified
prosecution
present
evidence of a
damage
possibility,
was a
brain
con-
crime that
Army,
Sims committed in the
thorough investigation,
ducted a
pro-
another
setting.
structured
investigation
vided the results of his
*23
say,
Suffice it to
the district court’s find-
experts. Experts
convincingly
testified
at
ings
fully
are
supported. At the end of
hearing
disparity
the
the
in Sims’s
day,
argument
turns on a latter-
IQ
verbal
performance
was not indica-
day
however,
experts;
battle of
the ques-
damage,
tive of brain
and that Sims’s own
tion is whether counsel did all that he was
during
calculated actions
the crimes belie
constitutionally required to do at the time.
any claim that he suffered an impairment
As carefully explained by the district
in frontal
functioning.
respect
lobe
With
court, it is clear that Borenstein did.
In-
PTSD,
to
the court determined that
deed, Sims submitted no evidence during
Vicary, Borenstein hired an expert who
evidentiary
hearing from experts in
exceptionally
qualified to
render
di-
legal
community that
per-
Borenstein’s
agnosis
history
based on Sims’s
of child-
formance fell short of prevailing legal
abuse,
hood
Vicary
sexual
admitted
norms.
that he had knowledge
Finally,
of PTSD.
The legal framework is well-settled.
In
the court found that Sims minimized Pad-
prevail
order to
on a claim for ineffective
gett’s
involvement
the crimes during
assistance of counsel a defendant must
conversations with Borenstein and that
(1)
show
that his
representation
counsel’s
signs
Borenstein saw
that Sims was the
objective
“fell below an
standard of reason
domineering partner
though
even
he
awas
ableness”;
(2)
that counsel’s deficient
Padgett.
“fool” for
Borenstein discussed
performance
“prejudiced” the defense.
Padgett’s influence on
Maloney,
Sims with
Strickland v. Washington,
668,
466 U.S.
trial,
watched Padgett
testify at her
2052,
585
of him and he
690-91,
but was
Strickland,
scared
protested
at
466 U.S.
tion.”
leave. Sims submits that
coun
let her
determining whether
wouldn’t
S.Ct.
make a
range
could not
reasonable
within the broad
Borenstein
falls
conduct
sel’s
conduct,
forego assessing
Pad-
this
acceptable
strategic decision
professionally
actions
because he could
impact
counsel’s
on Sims
not view
gett’s
“will
court
hindsight.
if it
informed
distorting
only
lens of
this call
make
through
contemporary
Rather,
Padgett’s
the rule
into
back
investigation
under
an
must be
assessment,
attorney’s
investigation support
actions
an
ground. While
was known
miti
according to what
not to introduce
counsel’s decision
ing
examined
attorney
reasonable,
at the time
itself be
and reasonable
evidence must
gating
Hendricks,
Smith,
see,
choices.”
v.
e.g., Wiggins
made
(internal
and citations
quotations
522-23,
123 L.Ed.2d
omitted).
obligation to
has “an
(2003);
Counsel
Taylor,
v.
Williams
will allow a
investigation
an
conduct
Second,
unreasonably
others
did
Borenstein
qualified;
dis-
Maloney was not
testimony explaining that
expert
fail to elicit
well-regard-
found that he
court-
relationship with trict
of Sims’s
dynamics
bar, prosecutors and
by the defense
Pad-
ed
Vieary about
he informed
Padgett;
circumstances, as
In
alike.
these
a num-
judges
Vieary interviewed Sims
gett, and
Hendricks, attorneys are
in
explained
was his
knowing
Padgett
we
times
ber of
opinions of mental
rely on the
entitled to
Vieary had
accomplice.
girlfriend
on
duty
impose
experts, and
dynamics, health
say
about
nothing positive
of a re-
independently
investigate
them
said that he
because Sims
perhaps
.expert
from an
quest
information
and she
plans
Padgett what
told
test,
average
average
in
to above
hension
extremely intelligent,
and scored
is
16. Sims
many
functioning but in
cognitive
higher level
test
percentile
the most sensitive
on
the 99th
popula-
percent of the
top
ranges
in the
ten
top
dysfunction,
two
of frontal-lobe
compre-
country
tion.
people in the
on
percent of
sum,
aim
having
would “defeat
the whole
contrast with other
cases
experts participate
investigation.”
or
Court
we have
F.3d
1039.
performance,17
found deficient
Sims’s coun-
thoroughly
sel
prepared for the penalty
Fourth,
unreasonably
did not
Borenstein
phase, retained and
well-qualified
informed
testimony
Vieary
fail to elicit
from
experts upon whom he
reasonably
could
adaptability
to confinement. Vi-
rely,
presented
heart-wrenching evi-
cary’s optimistic assessment would have
in mitigation.
dence
performance
His
severely
been
undercut
Sims’s bad con-
passes constitutional muster.
discharge
Army
duct
from the
for a crime
involved the use of
force
violence
VII
and which would have been admissible as
aggravating
during
penalty
argues
during
pros
190.3(b).
phase.
§
Cal.Penal Code
With-
ecutor’s
penalty
summation at the
phase,
out doubt Borenstein’s decision
keep
he made
impermissible
numerous
com
this door closed was reasonable.
ments
about Sims’s
silence regarding
See,
e.g., Wiggins,
attorney presented
U.S. at
only “disorganized and
(counsel performed
Duncan,
S.Ct. 2527
deficiently
cursory” penalty phase); Turner v.
they
put
(9th
(counsel’s
where
failed to
on
Cir.1998)
evidence of
petitioner's
history;
life
up
failed to follow
arrange
psychiatric
failure "to
examination
preliminary
suggesting
peti
information
psychiatric
or utilize available
information
tioner had a horrific and traumatic
acceptable performance
child
also falls below
stan-
hood;
comply
dards”);
Merkle,
and failed to
(9th
the stan
*25
Seidel v.
AFFIRMED. Miranda, prosecu- and the in violation of FLETCHER, Judge, Circuit B. compelling evi- tor’s insistence in dissenting part. concurring part abuse could not childhood dence of Sims’s mitigation. considéred be majority’s disposition I concur doubt” as claims, “grave there is but must re- Because guilt-phase errors, of habe- the district court’s from the denial spectfully dissent effect of these death sen- respect respect as relief Sims’ the writ with denial of III-B, Parts tence, from particular be reversed. sentence should death VI, majority opinion. IX of the through a different lens case
I view this I. Miranda Error majority. conclude does the than fact that the majority ignores the trial in infected Sims’s constitutional error *28 held Supreme Court California I then that will elaborate. respects two of Officer portions crucial of admission Abrahamson, 507 U.S. v. turn to Brecht of violated interrogation Perkins’s 1710, L.Ed.2d 353 619, 123 113 S.Ct. Arizona, 436, 86 v. 384 U.S. Miranda the constitu- (1993), whether to determine (1966). v. 1602, People L.Ed.2d 694 16 injurious had “substantial tional errors 537, Sims, 405, Cal.Rptr.2d 20 5 Cal.4th determining or influence effect 590 992, (Cal.1993).1
858 P.2d
1015
I agree
previously
waived his
rights.
invoked
Ed-
wards,
Supreme
9,
with the California
Court
U.S.
486 n.
sion, ply continued to Perkins II. The Miranda Error’s murder, remarking even details Injurious Effect in that man- not need to die Harrigan did that whatever majority The concludes Supreme Court Califor- ner. Both the occurred was Fifth Amendment error court concluded nia and the district phases respect harmless with both likely to elicit statements were Perkins’s say I cannot that the Though trial. re- incriminating response, and Sims’s an confessions to Officer admission of Sims’s have identified me” that “he would sponse injurious had a “substantial Perkins con- This suppressed. have been should determining influence effect or stated correct for the reasons clusion is 623, 113 Brecht, verdict,” at jury’s opinions. those (citation quotation and internal requested to see following day, Sims omitted), guilt phase marks once more. When the Glendale officers trial, have such an effect on it did thought he was cra- people mentioned that penalty phase deliberations. himself, Perkins asked might kill zy trial, phases of Throughout both would, didn’t that he him if he stated and extensive jury heard numerous re- guy.” that kind of “seem like in- 25 and 26 December suicidal, references that he was marked statements, during the both criminating Perkins’s “not a murderer either.” he was understanding, Despite this ly that Sims extradition.” court's determination 3. The district there, subjects "why speak far Perkins was inquired about Perkins continued being unsupported authority there” is district court’s extradition. The afield from Indeed, pages cited by the record. clearly finding regard is errone- in this factual under- that Perkins court demonstrate district ous. "pure- questions to be related to stood Sims’s *30 presentation pros- explanation of the evidence and the to remember Sims’s that Har- argument. During guilt ecution’s the rigan could have him identified was not phase, Officer Montecuollo testified that significant because “[Montecuollo and Per- that “I Sims had confessed had to Mil key important kins] both remember the boy” during the December 25 inter- part: I had boy. to kill that That’s the jury view. The heard the same statement (em- important part of that conversation” during Montecuollo’s cross ex- twice more added). phasis prosecutor The then con- amination, and twice more re-direct. tinued: Officer PerMns corroborated that testimo- only It things is natural —that ny, in- stating that when he described the people’s fade, begin accept memories scene, the
vestigation and crime for the really important things, [sic] said, boy,” “I Mil that twice had to then important the I thing was: had to kill identify that “he going was me.” The boy. boy” “I Mil statement had to repeated during then once more direct But here is a man that is into coming testimony, four more times on cross ex- telling you court and the honest truth. amination, and two more times on re-di- That’s what he recalls. impor- And rect.4 Officer PerMns went on testify- tant because of what he recalls. He interview, as to the December 26 recount- recalls important part the of that con- that, ing Sims’s admission “That means versation, I which is: had to kill that just that I got drunk. I didn’t know what boy. I the fuck was-I knew what I doing added). (emphasis prosecutor then but shouldn’t have done it.” This same spent comparable amount of time ex- again by statement was jury heard the pounding importance of Sims’s oth-
when prosecution played the the cassette it, er admission: “I I doing knew was Ibut tape of the December 26 conversation be- shouldn’t done it.” Repeating [have] the copy tween Perkins and Sims. A times, statement several prosecutor the ar- transcript of that taped conversation was gued that it conclusively confirmed Sims’s admitted into evidence over defense coun- intent to Mil. objection, sel’s in part jury read during prosecution’s closing, the and al- During penalty phase, prosecu- lowed into jury during room delibera- again tion played tape of Sims’s admis- tions. just drunk, sion that “I got I didn’t
The use of these incriminating was, admis- know what I the fuck I knew was sions was central to it, doing clos- but I shouldn’t done it.” [have] ing argument guilt Then, phase. penalty After phase closing argu- using ment, “I boy” statement had to Mil that prosecutor again reiterated once four during more times the closing to show for damning two most kill, prosecutor intent used the statements: “I had to Mil boy” and “I phrase as a refrain in his rebuttal. doing knew I was it but shouldn’t [have] bolstering Officer credibility, Montecuollo’s Specifically, done it.” prosecutor used stressed three “I boy” times how had to Mil that in conjunction with important prose- the statement was. The a hypothesis about might how the murder explained cutor that Montecuollo’s place: failure have taken explanation 4. Sims's going that "he was during more cross examination and once identify me” was heard during twice more re-direct. *31 may have had impact this evidence Harrigan tential John assume that canWe theory. head Uns support Raises his in of a residual doubt to live. would want out Mitchell it would take argument the defense’s urprisingly, of the water under the head back push his entirely Sims to abandoned lacked intent was Sims say?. “I Sims did Mitchell water. What and defense during penalty phase, the he And that’s how boy.” kill that had to doubt press did not residual counsel Harrigan. killed John any specificity vigor. argument- with was able to ar prosecutor the sum, admitted state- improperly the Meanwhile g effectively penalty pro- gue .very throughout repeated ments were durin prose- proved for the that the case had been be becoming phase a refrain ceedings, Had cru yond possible cution. all doubt. Sims’s had cial to Officer Perkins —“I statements these state use of prosecution’s The “I I boy” doing kill that knew to .was sentencing capital Sims’s prejudiced ments (as they should have it”—been excluded First, the use of ways.. in two proceeding been), on this prosecutor’s argument to reflecting his intent statements Sims’s challenge open have been score would foreclosed re Harrigan completely kill question doubt would residual might have argument Sims sidual doubt very play, much as several of have been respect to intent kill. with mounted an inconsistent with recently appear that reliance Sims actions have reiterated We acceptable penalty admitting kill. The of doubt is an intent to effect on residual s statements, then, an strategy. See William Wood was to eliminate en phase Cir.2004). (9th 567, 617-17 ford, argument and effective legitimate tire Here, strong of intent was the evidence life. sparing favor of Sims’s that, after considerable review enough Second, used Sims’s prosecutor record, say I cannot Sims’s study of the of his as the foundation exten- statements Perkins had a “substantial statements to lacked remorse. argument sive that Sims injurious effect or influence” on argued: prosecutor The intent be jury’s determination Sims’s Now, doubt, many things I and therefore ... remorse. [N]o a reasonable yond majority judging appro- that Sims was not what the go into a case agree with However, we guilt-phase. at the should be and prejudiced priate punishment lingering questions there were to Mr. Perkins on have a statement that, the intro to kill absent intent .... Sims’s ... the 26th [and] 25th “I kill had to of Sims’s admission duction waiting pieces for those And I was boy,” prevented could have hear that evidence to Mitchell in finding from Sims’s penalty phase that Mitch- waiting to hear sorry. was (the doubt stan beyond possible all tent years felt bad about ell Sims doubt). During the lingering for dard , waiting for Mitchell Sims stolen. was argued counsel phase, defense guilt remorse, apologize express cord, phone cut such as the had done and somebody for what he misstatement to Sicam deliberate he had taken. what Padgett that he and Spiroff preoccupation I heard was What Francisco, the slackness headed to San seeing girl cigarettes, getting neck, and Harrigan’s around ligature . hear I did not Ruby Padgett friend un the bathtub drain was the fact that Anything that any of that remorse.- as to intent raised a doubt plugged, be Mitchell Sims will tell me that any po- would blunted to kill. Sims’s admissions his stom- it.” living the rest of his life with done told the that, preoccu- That he will be as he listened to the ach a knot. Perkins inter- views, evil he has done. There is pied waiting pieces with the he “was those nothing like that. evidence to hear that Mitchell *32 sorry”; waiting he “was to hear we hear on the 25th?
What did years Mitchell Sims felt bad about the looking out for number Mitchell Sims stolen”; waiting he “was for Mitchell going happen to me in one. “What remorse, express apologize Sims to Ruby. I want to see terms of extradition. somebody for place Ruby goes.” I the same what he had done and what go want to prosecutor
he had taken.” What
the
preoccupation
heard instead “was a
with
said, “I
... And then he
had to kill
getting cigarettes, seeing
girlfriend
indicated,
boy.”
And Mr. Perkins
Ruby Padgett”;
prosecutor
the
“did not
through
went
the Glendale
of
facts
question
hear
of that remorse.” The
“Well,you know this kid was tied
case.
“where is the
appears
remorse?”
three
up
gagged.”
and bound and
Jon Per-
”
prosecutor’s argument, along
times
says,
kins
“Mitch he didn’t have to die.
with two other
similar
formulations:
‘Well,
says,
At that
Mitchell
point,
Sims
”
“Where is the knot
his stomach?” and
I
identify
didn’t want him to
me.
asking
forgiveness
“Where is
for
there?”
day
Next Mitchell Sims calls back Jon
questions,
prosecutor
With these
drew
picks up again
Perkins and conversation
type
out the contrast between the
of re-
cigarettes.
He
peo-
has killed 3
expected
morse he would have
to hear
more,
ple, tried to kill
and the first
conscience,”
person
from a
who
“ha[s]
thing
cigarettes;
his mind is
the sec-
passionless
and the Sims’s
confessions—
Ruby.
ond one is
‘Well,
particularly,
I
doing
knew I was
it
Well,
says,
And he
I knew I was
”
maybe
it,”
...
I shouldn’t have done
it,
doing
and then kicks in as an after-
statement
characterized as
thought, “maybe I shouldn’t have done
only thing,
“the
thing
the closest
we have
only thing,
it.”
That’s
the closest
remotely showing
even
remorse for
thing
remotely
we have to even
showing
prosecutor’s
what he did.” The
extensive
remorse
what he did.
subject
remorse,
remarks
point
of
added).
(emphasis
of
emphasis
argument
that Sims
Sims’s lack of remorse was thus the
death,
put
should be
directly
thus arose
subject of
pros-
extended discussion
prosecutor’s
from the
discussion of Sims’s
ecutor, and Sims’s December 25 and 26
constitutionally inadmissible statements to
statements to Officer Perkins were at the
Officer Perkins. Sims’s confessions were
heart
prosecutor’s portrayal
of Sims
the force behind the
argument.
no-remorse
selfish,
unfeeling,
utterly
without
conscience. The record reflects that the
“As the
Court has observed:
prosecutor repeatedly used the
‘A
conversa-
confession is like no other evidence.
Indeed,
tions between Sims and Officer Perkins to
the defendant’s own confession is
portray
prose-
Sims as remorseless. The
probably
probative
the most
damaging
began by
cutor
drawing
jury’s
atten-
evidence that
against
can be admitted
”
Brown,
tion to the most damning
of Sims’s state-
him.’ Hayes v.
(9th Cir.2005) (en banc)
ments taken in violation of Miranda:
“I
(quoting Arizona
boy”
“Well,
Fulminante,
had to kill
knew
doing
maybe
1246, 113
(1991)) (further
...
I shouldn’t have
L.Ed.2d 302
cita-
omitted).
entitled to relief from his sentence of
marks
quotation
tion and internal
on this error alone.
death
empha-
By presenting
it was here.
So
own admission
sizing to the
Mitigating
III.
Evidence: The
intent,
any re-
foreclosed
prosecution,
Prosecutor Misleads the
might have
argument Sims
sidual doubt
Jury
made,
December 25 and
and Sims’s
strongly disagree
majori-
I also
centerpiece
statements became
(in
rejection
ty’s
opinion)
Part VI
through-
argument
prominently
—featured
Eighth Amendment claim that the
closing
out
—that
prosecutor repeatedly misstated the law as
for his crime.
lacked remorse
jury’s
mitigating
use of
evidence.
*33
the
ghastly
In
of the
nature of
spite
to
prosecutor
The
misstated the law the
crime,
foregone
not a
a death sentence was
first, by
jury
respects:
telling
in two
the
decade of
conclusion
this case. Sims’s
jury that evidence of a childhood charac-
stepfather
of his
tragic abuse at the hands
simply
mitigating
not a
by
terized
abuse is
characterization,
was,
prosecutor’s
in the
even
apply
factor at all because it would
to
Additionally, had the
cking.”5
criminals;
second, by
“sho
practically all
to invoke Sims’s
prosecutor not been able
advising
jury
the
that evidence of Sims’s
Miranda,
taken
violation
statements
background
qualify mitigating
does not
as
lingering
jury might have retained
the
no connection or
evidence because there is
intent and would
doubt as
“bridge”
background
between that
prosecutor’s
presented
have been
with the
use of
crime. The
lacked
argument
extensive
pervasive during
these misstatements was
of the
light
remorse for his crime.
I cannot
closing.
explain,
his
.As
shall
mitigation
presented
evidence Sims
majority’s
with the
conclusion that
agree
prosecution
the
advantages
the
twin
merely argu-
these misstatements were
by its use of Sims’s December
gained
jury should not attach
ments that' the
that,
statements, I must conclude
and 26
the
weight
mitigating
to Sims’s
evidence:'
phase, the Mi
respect
penalty
of the law cre-
prosecutor’s misstatements
that the
overwhelming impression
randa violations had
“substantial
the
ated
injurious
determining
evidence of Sims’s
jury
effect or influence
could not consider
Brecht,
childhood,
which was the heart of
jury’s verdict.”
507 U.S.
dreadful
(citation
to convince the
and internal
the evidence he offered
In his
it a miti-
[sic]
Were
argued:
gating
cutor
person
that a
had a bad
favor
childhood,
you
then
would have no
Now, let’s talk about Mitchell Sims
penalty
death
at all.
statute
put
because there
on about
background.
certainly
Evidence—
added).
(emphasis
After defense counsel
shocking about the evidence....
It cer-
objected
argument
to this line of
and was
tainly paints
very
picture....
ugly
overruled,
continued:
question
is: what does it mean?
So,
question
is: what
does
psychiatrist
We have had a
come in
put
mean? Let’s
it in context. Because
testify
to tell us what it
meant....
dealing
we are
with a common back-
bridge.
have a notation: no
*34
There is
ground
population....
to a criminal
nothing
bridge
background
Now, I kept waiting
bridge.
for a
happened
family
what
in that
to the
Something to connect this to the of-
murders that we have
with here.
dealt
why
fenses here. Some kind of reason
Nothing to connect it.
mitigating
it should be a
factor....
kept waiting
And I
for something to
up.
up.
connect it
Connect it What does
So, again,
searching
we are
a
for
person
it mean that
has
an
abused
bridge,
searching
we are
some kind
for
childhood? What does it
in terms
mean
I
bridge.
suppose
if
offense
right
of this case
here? There is noth-
against
stepfather,
certainly
it
ing
up
to connect it
because when Dr.
relevant,
then,
would be
wouldn’t it?
testified,
Vicary
you
he said that if
go up
question
No
about that.
prison
you
to state
and
talk to violent
criminals, murderers,
here were sexual
in
rapists,
If
offenses
nature,
murders,
whatever, you
example,
rape
a
find
violent childhood.
for
murders,
If
child
you go up
prison
and find and talk
molestation
then there
nexus,
robbers,
be
rapists
you
murderers and
would
would have that
you
there,
going
are not
you?
to find a lot of Har-
connection
wouldn’t
But
mean,
vard
going
M.B.A.’s. You are
to find
there
bridge.
aren’t.
there is no
people who in turn were abused as chil-
bridge
bridges
There is no
this bad
dren. What does that mean in terms of
background
anything
we have in the
mitigation? If,
fact,
it
awere miti-
case
us. We have murders of
before
gating
person
that a
had a
people
strangers.
bad
who were
People who
factor
merely inviting
refusing
Payton’s mitigating
resolution of the issue
from
to consider
jury. Such a result
thereby reaching
does not cure the consti-
evidence and
an unconstitu
result.”),
Payton Woodford,
tutional violation. See
v.
grounds,
tional
vac’d on other
538
(9th Cir.2002) (en banc)
825-26
U.S.
123 S.Ct.
terms
arguments
McKoy).
an
Discounting
aspect of a de-
*36
it)
mitigating
would have
that Sims’s
evi-
background
fendant’s
because he shares it
persuasive
rather,
power;
dence lacked
in common with other defendants is the
prosecutor
argued
the
im-
repeatedly
both
antithesis of the individualized consider-
plicitly
explicitly
that Sims’s back-
Supreme
ation the
has
Court
found indis-
ground
legally cognizable mitigat-
was not
pensable
capital sentencing process
to a
ing
By
evidence at
hypothesizing
all.
comports
Eighth
with the
Amend-
happen
fact,
what would
awere
See,
“[i]f
ment.
e.g., Eddings, 455 U.S. at
mitigating factor that a
person
a bad
Thus,
102
Supreme
S.Ct. 869.
the
Court
added),
(emphasis
childhood”
prosecu-
rejected
proposition
has
that mitigat-
is,
clearly implied
tor
that a bad
ing
can
childhood
be restricted to facts
fact,
not a
mitigating
agree
factor.
“uniquely
the defendant
that are
Tennard,
Supreme
with the California
Court’s con-
severe.”
S.Ct.
2569-70.
clusion in
direct
prosecutor’s “bridge” theory
equally
appeal
The
is
Sims’s
that “the
faulty:
requirement
prosecutor’s
mitigating
ev-
comment that
the troubled
background
idence bear some connection to
of a defendant
not
the defen-
does
consti-
dant’s crime is one that
tute a mitigating
might
factor
have tended
Court “never
suggest erroneously
jury
countenanced and now
[has]
could
“[tjhere
mitigation.”
factor,”
not consider such evidence in
mitigating
is no rea-
Sims,
Cal.Rptr.2d
853 P.2d at
“[tjhere
1029.
factors,”
son for mitigating
is
anything,
If
this is an understatement.
mitigating
no
factor there.” Although de-
prosecutor
explicit
The
was even more
in termining the effect of
prosecutor’s
his assertion that the absence of a connec-
closing on
jury
is not a mere matter of
background
tion between Sims’s
and his
counting
phrases,
words or
in this case the
disqualified
crime
background
as miti- numbers are a reasonable barometer of
gating evidence: “There
no bridge
the extent to which
prosecutor’s
mis-
bridges
background
this bad
to anything
statements of the law
a point
we have in the case before us....
It
emphasis with
jury.
doesn’t mean a thing. There is no miti-
”
Squarely
point
on
is our en banc deci-
added).7
gating
there (emphasis
factor
in Payton Woodford,
sion
v.
shocking as
as even the
single
“Even if no
sufficiently
error were
prolonged
admitted. The
and continuous
prejudicial, where there are several sub-
emotional,
physical,
and sexual abuse he
errors,
stantial
their cumulative
may
effect
stepfather may
endured at the hands of his
prejudicial
nevertheless be so
to require
well have been sufficient
generate
reversal.”
enough sympathy to
jury
spare
move a
jury
Sims’s life—had the
understood that
Woodford,
Alcala v.
334 F.3d
Instead,
duty
(9th
it was its
it.
Cir.2003)
consider
(citations,
quotation
internal
there is at least a “reasonable likelihood marks,
omitted).
and source’s brackets
that,” as a
prosecutor’s
result
re- Even
Eighth
were the Miranda
peated distortions of the law as to the role Amendment violations insufficient on their
evidence,
mitigating
jury
ap-
“the
has
own to warrant habeas relief from the
plied the challenged
way
instruction in a
verdict,
penalty-phase
the combined effect
prevented]
the consideration of con- of
certainly prejudiced
these errors
stitutionally
Boyde,
relevant evidence.”
setting
and warrants
aside the death sen-
weigh against prosecution’s evidence of individually. errors taken prosecu- I, aggravating circumstances.” Payton emphasis tor’s “I Sims’s statements 299 F.3d at imagine 829. It is difficult to boy” to kill that “I doing knew was jury’s calculus would not have it, it,” but shouldn’t done [have] and the changed significantly powerful had the evi- prosecutor’s repeated insistence to the background dence of Sims’s brought been background that Sims’s was not miti- to bear. evidence, gating comprised two of the ma- The defendant “for jor whom life or death prosecutor’s penalty- themes of the hangs Alcala, in the phase balance deserves the benefit closing argument. Cf. Mayfield Woodford, (finding cumulative error in doubt.”. *39 of these errors presence collective impact of the “The cumulative because “the
part in the confidence devastating to one’s is prosecu- of the the heart goes to eri-ors v. case”). this Killian reliability verdict[.]” of I have theory of the As tion’s Cir.2002). (9th Poole, 1204, 1211 closing argument noted, prosecutor’s penalty-phase with two substantial remorse Faced lack of Sims’s both emphasized serious correspondingly their 25 and errors (as in the December demonstrated Sims’s Perkins) Mitchell on the evidence and effects with Officer 26 conversations of imposing in its sentence considered mitigat- jury present failure to supposed Sims’s death, should follow of we Additionally, tape ing evidence. to “risk that example and refuse in- Court’s 26 statements —which December spite in imposed will be penalty the death doing “I I knew was the admission
cluded for a less severe may call of it”—was re- factors it, done I shouldn’t[have] but life is between choice prosecu- penalty. When during the jury for the played death, unacceptable that risk phase case. penalty tion’s of the commands incompatible with the of the the extent significant as Just Amendments.” Eighth Fourteenth comments constitutionally impermissible Penny, prosecutor’s reit- was their force. (citations quotation internal marks “I kill that had to of the statements eration omitted). it, doing but “I I was boy” and knew majori- from the respectfully it”—both obtained dissent done [have] shouldn’t jury’s death ty’s uphold Miranda —focused the sen- of violation decision probably the most attention what tence. They guilt. of Sims’s
powerful evidence to ar- any attempt foreclosed
completely They as to intent. lingering
gue doubt prosecutor’s the backbone
formed lacked remorse.
argument that Sims’s mis-
Equally damaging, mitigation of the law of representations America, UNITED STATES disregard invited the evidence Plaintiff-Appellee, childhood, which was substan- Sims’s awful only Sims offered tially mitigation. KORTGAARD, Laron Kevin then separately, errors —if not These Defendant-Appellant. the fair- certainly together —undermined No. 03-10421. process by which Mitchell Sims ness of the morning, death: one was sentenced to Appeals, States United Court just pitch in one concentrated Ninth Circuit. deliberate, the retired to they hours before Nov. 2004. Argued and Submitted but constitu- powerful stressed support tionally inadmissible evidence Withdrawn Jan. 2005. Submission practically undercut and improperly death Aug. 2005. Resubmitted favor of evidence in all of Mitchell Sims’s Sept. Filed errors, jurors of these life. As result their quite likely commenced deliberations wrong mind-set.