Robert Leroy Bryan v. Mike Mullin, Warden, Oklahoma State Penitentiary

interrogation nate the and walk out of the

police anytime. Leroy BRYAN, station at Robert Petitioner- Appellant,

Moreover, several of the Sanchez factors also undermine the contention that interrogation was consensual. Detective MULLIN, Warden, Mike Oklahoma language Thies used some harsh and at Penitentiary, Respondent- State told Mr point Hatheway up.” one to “shut Appellee. Aplts’ App. at 87-88. As the district court noted, impounded the detectives Mr. No. 00-6090. Hatheway’s car possession and retained United States Court Appeals, keys during interrogation. Tenth Circuit. Hatheway thus did not have convenient leaving Finally,

means of the substation. July 2003. questioning the substation was “in a nonpublic interrogation room and [Mr.

Hatheway] go was not even allowed to

the bathroom without an escorting officer

him.” Op.and Dist. Ct. Mem. Order at 26. importantly, argu-

Most the detectives’ ignores

ment the fact that Hatheway

repeatedly asked to go home and Detective expressly

McGuire declined to honor that

request. light Hatheway’s of Mr. re-

quests, no reasonable officer would have Hatheway

concluded consented to

remaining the substation.

III. CONCLUSION therefore

We AFFIRM the district qualified

court’s denial of immunity to De-

tectives Thies and McGuire on Mr. Hathe-

way’s Fourth Amendment claim arising being

out of his transported police to the interrogated

station and there. We fur-

ther appellants’ note that arguments

have little in law or fact. Appellants basis

and their counsel are reminded an attor- 46.5(2)

ney’s obligations under 10th Cir. R. (3).3 (3) 46.5(B)(2) provide Cir. argument extending, modify- 10th R. nonfrivolous attorney’s presenting ing, reversing existing establishing brief to the court law or pre- constitutes a certification that "the issues new law” and that “the factual contentions or by existing are supported sented warranted law or denials are in the record.”

ice murder and sentenced death. See I), (Bryan v. State 935 P.2d 338 (Okla.Crim.App.1997). After Okla Appeals homa of Criminal denied Court relief, petition post-conviction his state II), (Bryan 948 P.2d see v. State (Okla.Crim.App.1997),Bryan filed the § petition 28 U.S.C. 2254 habeas instant court, alleging, inter alia: federal district (1) failed adduce sufficient the state support evidence to his conviction for first (2) murder; counsel labored degree malice (3) interest; a conflict of under penal and guilt was ineffective both trial counsel failed ty phases of his because (4) evidence; present mental health and stand trial. incompetent he was The panel court denied relief. A of this district unanimously Bryan court concluded that not entitled to relief on his evidence- interest, sufficiency, compe conflict of and Neal, Abney, Riggs, Robert A. Nance of tency Bryan claims. See v. Gibson (F. Turpén, Fug- Orbison & Lewis Andrew III), 1163, 1166-68, (Bryan 276 F.3d itt, briefs), City, him the with Oklahoma (10th Cir.2001); 1172-75, 1168-72 id. at OK, Petitioner-Appellant. for J., (Henry, concurring part in and Brockman, Attorney David M. Assistant dissenting part). panel, although in (W.A. Edmondson, Attorney Drew General divided, further held that trial counsel had Oklahoma, him on General of during not rendered ineffective assistance OK, briefs), City, Respon- Oklahoma guilt penalty phase either the or of the dent-Appellee. by failing present trial mental health TACHA, Judge, Before Chief Compare (panel evidence. id. at 1172-79 EBEL, KELLY, SEYMOUR, HENRY, J., (Henry, majority), with id. at 1182-85 BRISCOE, LUCERO, MURPHY, in concurring part dissenting part).1 in and HARTZ, O’BRIEN, Judges.* Circuit majority A judges the active of this ordered court the case reheard en banc MURPHY, Judge. Circuit requested parties brief I. INTRODUCTION trial whether counsel rendered constitu- tionally ineffective when he assistance Leroy was convicted Robert degree mal- Oklahoma state court of first failed

* Judges Timothy guilt phase, W. Michael McConnell and M. was ineffective in the but I will Tymkovich joined argu- the court after oral Bryan's argument: concentrate on Mr. best partici- ment in the case and instant did not unreasonably he received ineffective as- pate in this decision. all-important or sistance in the 'second' 'sen- " HI, Bryan's argument tencing phase.' Bryan As his counsel J., (Henry, concurring part dissenting rendered ineffective assistance trial, guilt phase Judge Henry simply part). "I believe that counsel indicated follows: either the “during mental illness same location. This solicitation scheme penalty phases Upon of the trial.”2 con- plans included to force the sign banker to parties’ sideration of the briefs and sub- a number of promissory fraudulent II. BACKGROUND payable in varying to himself amounts. A. Background Factual just Police found Inabel’s checkbook out- presented linking home, The evidence at trial Bryan side the in can burned a of aunt, Bryan to the murder of his Inabel ashes. Bryan, entirely was almost circumstantial. Before Inabel’s disappearance, Bryan Inabel disappeared from her home in Sep- rented a car from a local dealership. of 1993. A neighbor tember found tire making When the arrangements, he re- matching marks at Inabel’s home the quested a car a large with trunk. When Bryan tracks of a car at that rented he returned days the car two after Inabel’s time. A potted plant was also found at disappearance, he could not the rental pay home; Bryan Inabel’s purchased that did, however, fee. He show the owner of plant day the Inabel disappeared. Police dealership the one of forged the checks. body, found receipt Inabel’s and a for the Police a hair in found the trunk similar to purchase plant, days of the several after the hair They of the victim. also found disappearance her on a parcel property of grass vegetation, like on prop- the by Bryan’s parents. owned Inabel died erty discovered, body where was Inabel’s gunshot forehead; from a wound to the throughout the undercarriage. car’s Fi-

pillowcase duct-taped was over head. her lining bers the trunk were similar to those There a single was set of vehicle tracks on and tape Inabel’s clothes found on or scene; present at the the tracks matched body. near her pattern right tread of the rear tire on Bryan’s rental car. Police located additional in evidence Bryan’s tying Bryan bedroom to the mur-

Authorities searched property where They der. tape discovered a roll of duct of because, body Inabel’s was found several earlier, type pieces the same found near Ina- years Bryan had an un- solicited body pillowcase bel’s and on the police kidnap dercover officer to kill over her local banker and dump body expert edges head. An testified that the supplemental during In his brief en penalty before the banc mental health evidence court, Bryan exclusively ques- phase focuses on the of the trial. He does not address at all tion whether his trial counsel was ineffective constitutionally whether counsel was ineffec- failing present potentially mitigating during guilt phase in tive of the trial. Bryan’s Bryan charged taken from bedroom After was in 1993 tape murder, pieces of one of the of edges Bryan’s

matched the family Inabel’s hired body. Police found tape near Inabel’s also Raymond represent Bryan. Munkres to Bryan’s in bedroom consistent ammunition arraignment, At expressed Munkres ammunition used to kill type with the to Bryan’s competency serious doubt as with a bullet in the Inabel and consistent and made an oral motion for a competency metallurgy study rental car. A indicated determination. A on ques trial one that that all the bullets —the killed Bryan’s competency eventually tion of was Inabel, car, the one the rental and the held December 1993. Because it Bryan ones home—were manufac- beyond was the financial resources of tured at the same time and could have family, Bryan’s Munkres' did not come from the same box. testimony hearing. medical at the In stead, testimony Munkres adduced Background B. Additional Jackson, Mike an individual who volun The issues before this court turn on teered his services to Munkres as inves evidence of mental health at the tigator. The essence of presen Munkres’ time of the murder and the non-use of that competency hearing tation at the penalty both Bryan incompetent because the ver trial. As a phases consequence, surrounding sion of events he described background some additional is in or- brief in reality, the murder had no basis but der. sincerely nonetheless believed history organic has brain veracity his version of events. disease, possibly related to his severe case Bryan The concluded that had failed mellitus, dating of diabetes back to his to demonstrate that he was incompetent to 1989, mid-twenties. In Bryan when was undergo proceedings.3 further criminal forty-nine-years-old, he charged was 3, 1994, January just days On four after relating solicitation of murder to the competency trial was completed, Bryan kidnap scheme to and kill the banker de- filed a letter indicating with the trial court initially scribed above. He was in- found as “I wish to follows: advise the court that competent to stand trial and was sent to as this date I am dismissing my [of] attor- Hospital Eastern in March State of 1989 ney of record because of philosophical dif- Bryan diagnosed for treatment. as in proceed ferences how this case should in suffering organic from an delusional disor- my aggressive best most defense to severely der and was psychotic considered the charges against leveled me.” trial at the time of his hospital. admission court allowed Munkres to from withdraw Bryan’s Doctors also discovered that brain appointed the case and the Oklahoma Indi- significant signs exhibited Doc- atrophy. (“OIDS”) gent System Defense to repre- Bryan’s tors treated diabetes and medicat- Bryan. sent Navane, ed him with antipsychotic drug, Bryan Wesley compe- replaced until was determined Gibson of the OIDS tent in 1990. Bryan’s attorney. Munkres Like I, competency hearing comply Bryan This failed to Accordingly, 935 P.2d at 347. with the dictates of the United States Su- retrospective competency hearing was con- preme Cooper Court’s decision in v. Okla- utilizing proper prepon- ducted in 1996 homa, 517 U.S. 116 S.Ct. standard; Bryan derance-of-the-evidence (1996), Bryan L.Ed.2d 498 because was re- competent during proceeding. also found this quired prove incompetence his to stand id.; III, Bryan 276 F.3d at 1168-72. by convincing trial clear and evidence. See Munkres, witnesses, verify could not Bryan’s Gibson including particularly Drs. surrounding of the events the mur- version and Murphy, support Smith of such a Smith, der. Gibson hired Dr. J.R. a defense. Bryan When Hess informed psychiatrist, board-certified evaluate parents his that he intended to utilize an Bryan. opinion It was Dr. Smith’s defense, insanity both and his par- Bryan’s system “delusional and circum- expressed ents their disapproval. Shortly (as stantiality thought well as the fluctu- thereafter, Bryan and- his parents in- levels) ating sugar blood affect ability formed Hess that he would replaced by be attorney to assist his own defense. privately retained counsel. doing, so produces He of information volumes they indicated that being Hess was re- (but are irrelevant and often erroneous placed because he had filed the notice by patient).” believed on Based rely insanity on an defense. Smith, information provided Dr. Gibson replaced by Hess was Jack Freeman. requested competency hearing. second Freeman contacted Hess and indicated hearing At a on application, the trial that he be replacement. would Hess’ He court testimony considered the of Gibson up also set a meeting with Hess and the and the in charge jail sheriff where housed, medical experts. Bryan was as well as the Hess turned affidavit over Dr. Bryan’s Freeman, Smith. The trial court denied the file to including all of application competency for a new hearing, the records and expert reports concluding that there was no doubt that mental health. Freeman did not ultimate- Bryan was then competent. ly present any mental health evidence dur- guilt either the or penalty phase of

Gibson continued represent un- trial, although til he May arranged he for Dr. slight when Hess, stroke. He was replaced by Murphy to be Steven available case his testimo- also of the OIDS. Hess continued to con- ny helpful would be phase experts sult medical Philip and hired Dr. of the trial.

Murphy, a clinical psychologist, to evaluate

Bryan. Based on an evaluation which in- III. ANALYSIS cluded psychological numerous tests a and A. Standard Review records, review of relevant medical Dr. appeal On direct to the Oklahoma Court Murphy concluded Bryan as follows: “Mr. (“OCCA”), Appeals Bryan of Criminal as- suffers from a serious mental disorder serted that Freeman was ineffective dur- places which into question serious his com- ing both penalty phases the trial, petence to stand legal as well as his the trial because he failed to evi- culpability in the crimes for which he is Bryan’s dence of charged.” mental illness.4 Contem- poraneously the filing opening of his opinions expressed by Based on the Drs. Bryan brief on direct appeal, appli- filed an Murphy, Smith and and the two unsuc- cation for an evidentiary hearing, sup- cessful to attempts challenge Bryan’s com- affidavits, ported by seeking a on hearing petency, Hess it thought Bryan’s was in trial issue of counsel’s ineffectiveness best to insanity interest utilize an defense for “failure to utilize available evidence of rather litigate than to continue to the com- [Bryan’s] any point mental illness at in the petency Accordingly, issue. Hess filed notice of intent trial.” The did rely insanity specifically to on the OCCA re- de- fense and a setting expert ject Bryan’s witness list out request evidentiary for an OCCA, appeal Bryan 4. On direct to the represented was William Luker of OIDS. however, hearing. respondent nevertheless implicitly, it hearing; did so Bryan’s to the merits of proceeded when it to brief the issue on the merits proceeds claims without an ev- ineffective assistance evidentiary an again asserts that hear- denied him relief. hearing and identiary unnecessary [was] because “there I, 935 P.2d at Bryan [existing in state plenty of information pe- § record” to decide the merits of corpus court] 2254 habeas In the instant tition, the same claims Bryan asserted of ineffective assistance. claims he asserted state ineffective assistance We conclude that the district court’s deci- court granted federal district court. The an grant Bryan evidentiary hearing sion to evidentiary hearing, made find- an Bryan on his claims of ineffective assistance did law, conclusions of ings of fact and 2254(e)(2). § not contravene 28 U.S.C. Although respondent denied relief. Accordingly, unnecessary it is to deter- court that an contended before the district steps respondent mine what must under- hearing unnecessary be- evidentiary objection, predicated an preserve take plenty is of information cause “there 2254(e)(2), §on to a district court decision this to make that de- record before Court evidentiary an grant petitioner habeas termination,” propri- he did not raise the hearing. ety hearing before this court. Ac- of that 2254(e)(2) declined to address cordingly, panel provides Section question whether the district court applicant develop has failed to “[i]f evidentiary an granted should have factual basis of a claim State court his claims of ineffective assis- hearing on the court shall not hold an proceedings, III, 276 F.3d at n. tance. See evidentiary hearing on the claim unless the Gibson, 239 F.3d (citing Romano v. applicant” excep satisfies one of the two (10th Cir.2001) (declining 1174 n. 9 to con- 2254(e)(2)(A) (B). If, § tions set out in or grant court’s propriety sider district however, petitioner did not “fail[ ] hearing such evidentiary hearing when factual claim in develop [his] basis of already respondent taken place 2254(e)(2) court,” id., § appli State is not challenged appeal had not on district cable and a federal habeas court should grant hearing)). court’s decision proceed analyze hearing whether a banc, granting rehearing In the order en appropriate required under pre-AEDPA parties this court instructed the to address Champion, standards. Miller v. following questions: (10th Cir.1998). 1249, 1253 Under those Did take the district court’s decision to standards, Bryan is entitled to an eviden claim evidence Mr. tiary hearing long allegations, “so as his if in failing pres- ineffective by existing true and not contravened health trial ent mental evidence at com- record, him factual would entitle to habeas 2254(e)(2)? § By port with 28 U.S.C. generally relief.” Id. See Medina v. failing argue appeal, the issue on did Barnes, (10th 71 F.3d 369-71 Cir. objection government waive its 1995) (discussing length pre-AEDPA of an evidentia- grant district court’s obtaining evidentiary standard for an hear ry. hearing? ing). brief, respondent In his supplemental supplemental In his brief before the en cites Romano and that the issue is asserts court, not respondent banc does dis- “properly not this court for before review diligently to devel- pute Bryan sought appeal at this time” because he did not underlying factual his claims grant evidentiary op district court’s of an basis Bryan in state court.5 tion sought of ineffective assistance develop state court Instead, evidentiary argues he requested when he an evidentiary hearing hearing inappropriate Bryan’s because before the Bryan OCCA. Because diligent- allegations “are contravened the exist- ly sought to “develop the factual basis of Respondent’s record.” Brief at 19. [his] claim State court proceedings,” however, Notably, respondent does not 2254(e)(2) § does not evidentiary bar an identify portions those of the state court hearing. allegedly record which contravene the alle- Accordingly, appropriate ques

gations of ineffective assistance set out in tion is whether was entitled to a Instead, § Bryan’s petition. 2254 habeas hearing pre-AEDPA under law. See Mil broadly he asserts that the trial record ler, 161 F.3d at (holding that pre contained sufficient information to allow Bryan’s the OCCA to decide the merits of AEDPA govern question standards pro of evidentiary claims without an hearing of priety granting evidentiary an hearing that, record, in light of that of decision petitioner when a diligently sought to de rejecting Bryan’s the OCCA of claims inef- velop the factual basis his claim-in state contrary fective assistance is neither Medina, court citing 71 F.3d at 368- an interpretation gov- nor unreasonable setting as out the controlling pre-AED erning precedent.6 Supreme Court standard). PA ques The answer to that clearly “yes.” Medina, tion is respondent’s argu We find the (examining 369-70 Supreme ment, controlling which is not supported by single Court cases and holding those cases record, citation to the state court uncon require evidentiary “an hearing when the vincing. This court has reviewed en record, facts were not including adequately developed tire state court the tran in the court, script retrospective competency state so long as that failure is not hearing. Although that record contains petitioner”). attributable to the question much information relevant to the Having determined that the dis whether Freeman’s failure to utilize men correctly trict court afforded tal health both the evidentiary hearing on his claims inef penalty phases trial was assistance, fective the appropriate stan ineffective, constitutionally it missing is dard review is set out in Miller. key testimony from regarding Freeman pres [Ineffective assistance claim[s] what he knew understood about question a mixed of law and and, ] fact. history mental health most ente analysis pri Because our of this claim importantly, why he decided not to utilize exactly that evidence. It marily this informa- legal involves consideration of 420, 432, Taylor, petition, 5. See Williams v. prevented 529 U.S. but a state court has (2000) (“Un- so, 2254(e)(2) 120 S.Ct. 146 L.Ed.2d 435 doing § ap- him from not does 2254(e)(2), opening § der the clause of a fail- ply”). develop ure to the factual basis of a claim is unless established there is lack of dili- ("[B]ecause Respondent's 6. See Brief at 20 fault, gence, greater or some attributable to develop did Petitioner ineffective assis- counsel.”); prisoner prisoner's or the Mil- present- tance of [claim] trial counsel for not 1249, (10th Champion, ler v. 161 F.3d 1253 ing the mental health evidence there was suf- 1998) (noting petitioner Cir. that ficient in the to information record determine sought evidentiary and been denied an hear- to, contrary if the state court decision was ing concluding in state court and that where of, application clearly an unreasonable estab- petitioner diligently sought “a habeas has to law.”). lished develop underlying the factual basis his habe- 1216

principles, proceedings they we review this claim de novo. lateral as do on direct trial.”). Further, in appeal we note that because the state or motions for a new To relief, entitled petitioner be a must any evidentiary court did not hold hear- prove both that performance his counsel’s ing, position we are in same to evalu- was deficient and that perfor- the deficient ate the factual record as it was. Accord- mance prejudiced his defense. See id. at ingly, to extent the state court’s (“Unless 687, 104 S.Ct. 2052 a defendant [petitioner’s ineffective dismissal as- showings, makes both it cannot be said was based on its own claim] sistance that the conviction or death sentence re- we need findings, factual not afford sulted from a breakdown in adversary findings any those deference. that process renders the result unrelia- (citations Miller, at 1254 161 F.3d omit- ble.”). carry To his burden of demonstrat- ted).7 Cockrell, v. But see Valdez 274 F.3d ing performance counsel’s was defi- (5th Cir.2001) 941, (specifically reject- 953 cient, petitioner must show “that counsel approach holding Miller and ing instead made errors so serious that counsel was that even petitioner where a was denied a functioning not as the guaranteed ‘counsel’ full hearing, and fair federal court is obli- by defendant the Sixth Amendment.” gated apply the deferential review stan- carry Id. To demonstrating burden of 2254(d) (e)).8 § out in dards set and In prejudice, petitioner must show “that circumstances, these this court accepts the counsel’s errors were so serious as to de- findings they district court’s factual unless prive trial, the defendant of a fair a trial clearly are erroneous reviews de novo whose result is rehable.” Id. performance legally whether counsel’s Supreme Court has made clear deficient and whether the prej- deficiencies that “there is no reason court decid udiced the defendant. See United States ing an ineffective ap assistance claim to Cook, (10th 388, Cir.1995). v. 45 F.3d proach the in inquiry [any particular or B. Discussion or even to components der] address both “A convicted defendant’s pe- [or habeas inquiry if the defendant makes an claim that titioner’s] counsel’s assistance 697, insufficient showing on one.” Id. at require was so defective as to reversal of a 104 2052. fully S.Ct. As set out more conviction or death sentence has two com- below, court Bryan’s this resolves claim of ponents.” Washington, Strickland v. 466 ineffective assistance on the basis 668, 687, U.S. 104 S.Ct. 80 L.Ed.2d performance prong. Strickland’s For (1984); reason, see also id. at 104 S.Ct. it important because to re (“The principles governing ineffec- emphasize “[j]udicial scrutiny of coun apply tiveness claims should federal performance col- sel’s must highly be deferen- Miller, light panel apply- 7. published erred in In a dissent from the denial of banc, rehearing judges en four of the Fifth the deferential review standards out set registered agreement Circuit their with Miller 2254(d) (e) § reviewing Bryan’s claims adopted by noted that the rule the Fifth that his trial counsel was ineffective. See perverse Circuit mandated the result of defer- III, (concluding 276 F.3d at 1177 ring legal and factual determinations made OCCA'sresolution of claim of ineffec- courts, though petition- state even a habeas during guilt phase tive assistance was er had never been afforded a full and fair contrary application to or an unreasonable opportunity develop the factual basis of his Supreme precedent pursuant Court Cockrell, claim in state court. See Valdez 2254(d)(1)); (same § regards id. OCCA's (5th Cir.2002) (Dennis, 703-05 resolution of J., claim of ineffective as- dissenting from the denial of the Petition during Banc). penalty phase). sistance Rehearing for En

1217 696, 104 (“In tial,” at Supreme judgment.”); we set out Court’s id. 2052 S.Ct. length. every at case the court should teachings on the matter some be concerned whether, 689, 104 despite strong presump Id. at S.Ct. 2052. reliability, tion of particu result of the attorney of proper perfor- The measure proceeding lar is unreliable because of a reasonably mance is that of effective assis- breakdown in the process adversarial norms, prevailing professional tance under system our produce just counts on to re surrounding circum- considering all of the sults.”). 687-88, 2052. stances. Id. S.Ct. Thus, crystal The Court has been clear that this analyze court must “judicial whether scrutiny perfor- of counsel’s has adduced sufficient evi It is all dence to highly strong presumption mance must be deferential. overcome the trial provided constitutionally counsel tempting too defendant second- adequate during after assistance both the guess counsel’s assistance conviction sentence, penalty phases Bryan’s easy capital and it all too trial. adverse doing, In court, recognize so we the “need to examining for a defense counsel’s apply scrutiny even closer unsuccessful, reviewing when proved after it has to con- attorney performance during the sentenc particular that a act or omission of clude ing phase capital of a case.” 689,104 counsel was unreasonable.” Id. at Battenfield Gibson, (10th Cir. reason, reviewing S.Ct. 2052. For that 2001) omitted). (quotations court must “reconstruct the circumstances challenged of counsel’s conduct eval- [and] 1. Failure to mental ev- health uate from perspec- conduct counsel’s [that] during idence guilt phase Id.; tive at the time.” see also id. In panel,9 Bryan his brief before the (“[A] deciding 104 S.Ct. 2052 court an ac- contended pre- that Freeman should have judge tual ineffectiveness claim must sented evidence of his illness dur- challenged reasonableness of counsel’s con- ing the in guilt stage support trial’s case, the particular duct the facts of insanity either an support defense or in viewed as of the time of counsel’s con- second-degree murder instruction. duct.”). Because of the difficulties that on a particular, report pre- relies a process, inhere such “a court must pared by Murphy Dr. for the defense in indulge a strong presumption that coun- May of 1994 which indicates that “Mr. conduct range sel’s falls within the wide Bryan suffers from a serious mental disor- professional reasonable assistance.” Id. at places question der which into ... serious added). 689,104 (emphasis S.Ct. 2052 legal culpability in the crimes for which importance presumption of this cannot be charged.” Bryan he is asserts that this overstated. This is made clear evidence, when with the coupled interview repeated Court’s invocation of the “strong Smith, performed by Dr. evidence derived presumption” provided that counsel consti- from CAT and SPECT scans of tutionally adequate assistance. id. at See brain, Hospital and the Eastern State rec- (“[T]he 690, 104 court S.Ct. should ords, ability casts doubt on his to form an recognize strongly pre- that counsel is intent to kill. sumed to have adequate rendered assis- significant tance and made all decisions Bryan’s arguments regarding professional viability insanity the exercise of reasonable a guilt-phase de above, Bryan’s ignored performance 9. noted As effectiveness of trial counsel's request this court's he address guilt phase. supra n. supplemental question en banc brief the 1218 with the completely opinions formulating

fense are odds testi- doctors’ his trial strategy.10 testimony in Freeman’s this mony evidentiary hearing adduced at the regard fully was by corroborated testimo- by conducted the district court. To assert ny provided by at the Hess federal eviden- defense, ... insanity an re- “Oklahoma tiary hearing. Hess specifically testified quires] the defendant to show that at the no there was medical evidence indicating time of the crime he suffered from a men- Bryan did not understand conse- tal him rendering disease or defect unable quences of his actions and no medical evi- right and wrong, differentiate between provide dence that would during defense or unable to understand the nature and guilt phase of the trial. Instead of James v. consequences of his actions.” presenting viable defense on medi- based Gibson, (10th Cir.2000) cal guilt phase evidence omitted). (quotation Despite the state- trial, strategy Hess’ guilt was to utilize the ments in Murphy’s May report Dr. phase lay the foundation for a mitigation upon heavily Bryan, relied Freeman by so penalty phase.11 case at the Accordingly, testified unequivocally that both Drs. Mur- Freeman lacked the medical evidence nec- phy Bryan Smith told him was essary an insanity defense at not legally stage insane and that he relied on the trial.12 10.Freeman you rely opinion testified follows: Counsel: did And on the experts? these you County Counsel: Do recall Line Yes, Freeman: sir. meeting opinion what Dr. Smith’s was as to petitioner’s sanity? 11. Hess testified as follows: you Counsel: After had talked with some Yes, sir, do, Freeman: I because was experts Bryan various and talked with Mr. things one of the that I wanted to learn was your investigation, you conducted did insanity where we stood on the matter of arrive at a for how to defend the was, question. response And Dr. Smith’s case? being question asked a as to whether or not Yes, Hess: I did. insane, Biyan legally Mr. that he was not. Counsel: strategy, And what was that was, I my believe what he said if I refresh please? recollection, might crazy that he be but he We rely Hess: filed notice of intent to legally was not insane. defense, insanity being the reason provided version of the case that was with Freeman, discussing Counsel: Mr. we were Bryan very varied little over the two your meeting with certain members of the spent talking I months that to him. It was County defense team at the Line Restaurant. story every the same time we talked. Now, you: you let me ask Do recall that Dr. provided by That factual basis provided you opinion Smith an as to whether did not meet what the factual basis was as the petitioner could or could not form the showed, evidence in this case our belief intent to kill? case, put Bryan tiy put was to Mr. — No, sir, Freeman: I do not remember. I do Stage on the stand in let him tell the giving opinion.

not recollect him me such story, up and then follow that recall, you Counsel: You do recall or do Murphy, lay- either Dr. Smith or Dr. to start though, gave you opinion that he an as to groundwork my for where all legal sanity? going invariably go, Stage which was a Freeman: Yes. mitigation mental health defense in to—in Murphy you give Counsel: And did Dr. an attempt Biyan to save Mr. from the death opinion, likewise? sentence. Yes, Freeman: he did. Counsel: And was it same as Dr. 12. Nor would the medical evidence Freeman Smith’s, essentially? possessed supported have an instruction for Yes, degree Freeman: sir. second murder. Under Oklahoma

1219 Ward, 1235, Bryan did not see Wallace v. 191 Significantly, also F.3d (10th Cir.1999) attorney present sug (concluding to evidence 1247-48 coun- want his ill13; acquiesce sel’s decision to to mentally petitioner’s he was also gesting he was attorney present any wishes that not plea miti- unwilling accept guilty to a apparently gating during penalty phase This possible avoid a death sentence.14 to performance). Additionally, deficient Bryan was com presume court must case, prosecution’s although strong, rationally assist defense counsel petent to entirely was almost circumstantial. See trial, adjudicated competent at as he was Gibson, 454, Smith v. 197 F.3d 461-62 retrospective competency hearing. at the (10th Cir.1999) (holding defense counsel’s III, 276 F.3d at 1169-72. “The Bryan innocence-based defense was reasonable may of counsel’s actions be reasonableness light circumstantial nature of substantially by determined or influenced case). prosecution’s There was evidence the defendant’s own statements or actions. indicating admitted at trial based, usually quite Counsel’s actions are physical condition had so deteriorated at strategic choices properly, informed murder, the time of the due to his diabe- made the defendant and on information tes, physically that he was incapable of Strickland, supplied by the defendant.” carrying out this crime. 2052; at 466 U.S. 104 S.Ct. see also Romano, cases (collecting Accordingly, based on the record before “Although court, this trial proposition). appears this it that Freeman had independent duty counsel has an to investi options during guilt phase two [defense], gate and make a case in trial. He could put prosecution to its responsive also to the proof, has be wishes burden of as he was specifically Romano, 1181; Or, by Bryan. his client.” 239 F.3d at instructed to do alterna- law, degree clearly second murder "occurs '[w]hen Counsel: Was that communicated to perpetrated by imminently dangerous act Mr. Freeman? person evincing depraved Bryan: to another a It was. mind, life, regardless although of human regard possibility plea 14. With to the aof any premeditated design without to effect the ” Gibson, agreement, Bryan’s first OIDS attor- any particular death of individual.’ Gilson ney, during Bryan’s testified as follows retro- State, (Okla.Crim.App. 8 P.3d spective competency hearing: 2000) (quoting Okla. Stat. Ann. tit. 701.8(1)). § The facts in this case do not plea Gibson: There were considerable ne- suggest premeditated the lack of a intent gotiations plea in the case. There were offers Rather, kill the victim. Inabel was abducted plea again, my and advice to discussions — shot, pillow- having from her home was on numerous occasions that Further, taped her case over head. as the accept he those offers. testimony of Hess and Freeman set out above demonstrate, simply there was no evidence Well, Gibson, been Counsel: since its specifically indicating Bryan available trial opened only up, what was the offer ever made capable forming requisite was not in- you regard to for a recommendation in this degree tent for first malice murder. man? misspeak, I want to [Coun- Gibson: don't Btyan evidentiary testified at the federal sel], were discussions and I’m not There hearing as follows: absolutely sure whether a firm offer was Bryan, say Counsel: Mr. is it fair to made or what some DA's would consider an offer, understanding you your parents my neither nor wanted Mr. but I—it was any lawyer, was that Freeman or ter, earlier for that mat- what I communicated Mr. your alleged accept plea, plea would even a use evidence of men- the State parole tal evidence court? nolo contendere to a life without sen- Bryan: That’s correct. tence. insani- his claim that Freeman did not understand tively, he could non-viable defense, ty mitigation as foundation for a the relevance of mental health evi- phase, very presented dence is out of context and is penalty case Bryan’s clearly strong termination of insufficient to strategy that led to overcome presumption and Hess. Freeman’s decision that Freeman “rendered ade- Munkres15 meeting quate significant to follow the former course—after assistance and made all experts, reviewing pro- with the medical all of decisions in the exercise of reasonable evidence, Strickland, consulting judgment.” the additional medical fessional 466 U.S. occasions, Second, Bryan with on numerous and at 104 S.Ct. 2052. Hess noting the circumstantial nature of the clearly testified that he discussed with and prosecution’s case the evidence Bryan preferred strategy utilizing Bryan’s objec- deteriorated health —is not mental health evidence during both Strickland, tively unreasonable. trial, 466 guilt penalty phases Bryan’s and (“[S]trategic at U.S. S.Ct. 2052 penalty phase with a focus on the and choices after thorough investigation made death, preventing a sentence of and that of law and facts relevant plausible op- Bryan rejected vigorously the use of virtually tions are unchallengeable.”). mental health evidence and terminated Accordingly, Bryan certainly him. ap- present 2. Failure to mental health ev- prised of the using benefits of mental during idence the penalty phase in mitigation penal- health evidence at the In supplemental ty phase rejected brief the en strategy. before court, Bryan argues banc Freeman well history, Freeman aware of this provided objectively repre- having unreasonable spent an extensive amount of time during penalty phase Bryan16 sentation having met with Hess to through ignorance trial of the law and discuss the case and the available mental failure to act a knowledgeable guide and health evidence. Finally, only testimo- particular, Bryan advisor. asserts ny evidentiary adduced at the federal Freeman did not impor- hearing understand the on the question demonstrates that tance of thoroughly investigating pre- the use mental during health evidence senting mitigating evidence as demonstrat- penalty phase would not have been by ed his view that evidence of mental following guilt phase effective á defense of insanity illness short of was not relevant actual innocence. See n. 22. Accord- infra during penalty phase. ingly, He further as- employ Freeman’s decision not to failure, evidence, in light serts that of this Freeman per- medical viewed from “his trial, “failed adequately Bryan to advise Mr. spective the time” of the is not regarding Strickland, the mitigating objectively evidence which unreasonable. 689,104 its potential was available and benefits.” U.S. S.Ct. 2052. Bryan’s arguments

This court un- Relying portions finds on limited of Free- First, convincing on several levels. Free- testimony evidentiary hearing man’s at the testimony court, man’s at the evidentiary federal held the district argues hearing upon by Bryan relied in support of that Freeman did po- not understand the above, Bryan replaced As noted retrospective Munkres 16. Freeman testified at days competency four after first trial hearing competency spent that he between "philosophical because of differences in how working Bryan's 1200 and 1500 hours proceed my this case should in best and most case and that "the bulk of that would have aggressive charges defense to the leveled Bryan.” been with Mr. II.B., against supra me.” See Section at 7. testimony, except prove experts’ mental health evi- usefulness of tential insanity incompetence, right?” either penalty phase, instead dence context, however, it is clear When read evidence was irrelevant thinking that such referring only to the guilt that Freeman insanity or lack of it demonstrated unless Furthermore, stage of the trial.18 A of Freeman’s state- competence. review simply transcript asserting misreads the context, however, confirms the ments thought Freeman testified that he the tes- “[t]rial court’s conclusion district timony experts of the medical “would not not to counsel’s decision Instead, have been relevant at all.” when organic syndrome brain of Petitioner’s context, indicating read in Freeman was penalty phase] the was [at mental illness opinion Bryan’s parents that it was the of clearly strategic one.”17 was irrelevant to his determination that instance, at the eviden- right? insane, Bryan or evidence that Mr. was he my feeling. Freeman: That was on, already been competent determined I right. question Counsel: All There was no believe, occasions, either two or three ... that mind, your though, in Leroy's parents that if I raised put that as a defense and on that thought mentally he was not ill? process evidence ... I started a and I couldn’t The Court: He’s made that clear. get go where I ethically to wanted to and honestly they going say because were not to 20. regard: Freeman testified as follows in this that he was insane. Now, arrangements Counsel: you what did that, If I tried to do compromised then I Murphy make regarding with Dr. his testimo- Bryan's position in the trial of the case ny stage in the second of the trial? and prove try— elected to make the State arranged Freeman: I with him to come to beyond try a reasonable doubt and create a City evening Elk to anticipated the we before calling sufficient that going him if we doubt the were to call would believe him.... evening, though, And having then that that he had after not committed the offense with presented by evaluated the evidence that was charged. which he was the stage, State in the second then, said, and as I recol- stage, In the second as I Dr. evidence, put lect we had on some our I Smith was out. He hadn’t been considered putting determined that in him on with the for some time because of what he said. I had going conclusion State, he give that was to the visited on either two or three occasions with although that say he would that there me, know, Murphy, Dr. you and he had told were Biyan’s brain abnormalities abnormalities, that he found brain but that brain, line, that his bottom his conclusions the bottom line was that he could form the intent, were ability that he had the to form intent, that right he knew the difference in that doing he knew he what was and he knew wrong, and that he knew the conse- consequences the of his acts. quences of his acts. that, IAnd was fearful that if I did that say, stage, And as I the second I felt that I just nearly would posi- more accentuate the compromise myself would get if I tried to into State, tion prone that he was to be and compromise that Bryan myself danger could be a society prob- and would testimony and I was fearful that his would ably my hurt help case more it than would it. simply support theory and the evidence of So I elected not to call him and I called him the State. evening that go and told him that he could back home. 21. admitted proposition Hess the truth of this under evidentiary cross-examination at the words, your Counsel: In please own ex- hearing: plain your second-stage strategy trial in this evidence, case. Regarding mitigation Counsel: Freeman: We position particularly had taken psychological evidence of a trial, throughout defendant, problem reason of the fact you that with the agree would Bryan competent to make during an about-face concerned III, compromise Bryan might determination. See phase penalty jurors.22 Bryan simply has Furthermore, of the eyes 1169-72. the record reveals in the record any evidence pointed specifically that Hess discussed “strong pre- overcome the sufficient proposed strategy utilizing not to Freeman’s decision sumption” that during the first mental health during health evidence mental present as a foundation for a stage of the trial a strategic of the trial was penalty phase strong mitigation during penalty case Strickland, 466 U.S. at decision. trial, asserting that this was phase 2052.23 S.Ct. only viable to save response, Bryan life.24 In terminated that Free Having determined Freeman, well present decision not Hess and hired Freeman. man’s during penalty phase having health evidence history of this after met with aware on to the strategic, this court moves case, Hess to discuss the and well aware strategic whether that decision question expert support no medical would Free when viewed from was reasonable defense, insanity complied with guilt-phase the trial. at the time of perspective man’s strategic put informed choice and Perhaps id. at 104 S.Ct. proof its at trial. government Bryan did not want importantly, most again emphasizing It is worth evi psychiatric Freeman to actions what was stated above: “Counsel’s dence, pursuing was adamant about based, in quite properly, on usually are guilt phase innocence defense choices made the de strategic formed trial, to apparently and refused of his supplied by the fendant and on information exchange in for guilty plea consider a even Strickland, 691, at 466 U.S. defendant.” Romano, See, e.g., 239 a life sentence. this Although 104 S.Ct. 2052. 1181; Massey, v. 235 F.3d at Smith F.3d during penalty (10th Wallace, Bryan’s options limited Cir.2000); 1259, 191 1278 objectively it unreasonable presume phase, court must F.3d at 1247-48. This things incon- double-edged duce like that are can be a remorse that that sometimes theo- simply don't work. And the sistent and capital in a case? sword together. ry stages must dovetail is that both Very much so. Hess: your much of try to front-load as accept You should jury might Counsel: that often And possible your save mitigation as in an effort to prob- psychological or emotional client’s life. aggravation? evidence of lems as Yes, happen I've had that in Hess: sir. Carver, 1036, v. 23. See also Bullock several cases. 1047, (10th Cir.2002) (noting that al- 1051 question always though is wheth- the ultimate Wilson, witness, 22.Bryan’s legal expert Tim objec- performance fell below an er counsel’s hearing.that during evidentiary testified reasonableness, it is "where tive standard of important consideration: this was an was, fact, challenged action that a shown mentioned that sometimes Counsel: You choice, strategic we adequately informed up being stage investigation ends the second objective heighten presumption of reason- our hap- stage. Why does that in the first used attorney’s deci- presume that the ableness and pen? unchallengeable”). nearly is sion Well, in death the kiss of death Wilson: above, Bryan's legal expert, Wil- litigation incon- 24. As noted penalty would be to have an son, that to assessment expression concurred with Hess' pardon the sistent defense to— evidence, death,” mental mitigation typically be effective but “kiss of to run denial— incorporated into had to be stage health evidence in first and then a denial defense supra 22. guilt phase n. trial. stage suddenly turn around and intro- second 1224 to Freeman utilize an innocence de- IV. CONCLUSION during guilt phase fense for those rea- This court say, cannot under the facts Furthermore, sons set out above. light above, set out strategic Freeman’s Hess, Wilson, of the testimony of choice present not to health evi- regarding Freeman the need for consisten- dence during Bryan’s objectively trial was cy guilt penalty phase between pre- unreasonable. “There ways are countless sentations, possibility and the that Dr. provide to effective in any given assistance Murphy’s testimony during the second Strickland, case.” 689, 466 U.S. at 104 stage supported could have the prosecu- 2052; Whiteside, see also Nix v. S.Ct. argument

tion’s constituted a 157, 165, U.S. 106 S.Ct. 89 L.Ed.2d threat continuing society, it was not (1986). We are mindful that it is “all unreasonable for Freeman to utilize a mer- court, easy too for a examining counsel’s cy approach during penalty phase.25 defense after it proved unsuccessful, has simply has not overcome the strong conclude particular that a act or omission presumption set out in Strickland Strickland, counsel was unreasonable.” provided Freeman objectively reasonable Thus, U.S. 104 S.Ct. “in during assistance the penalty phase of the considering claims of ineffective assistance trial.26 counsel, we address not what prudent 25. The Supreme dissent relies on above, Court’s As length set out at there is no —Smith, Wiggins recent decision in U.S. question fully that Freeman was aware of -, (2003), 123 S.Ct. 156 L.Ed.2d 471 Bryan's history of mental Well illness. aware support its perfor- assertion that Freeman’s history, of that provide and its failure to during mance penalty phase was ineffec- trial, guilt stage defense Freeman tive present because Freeman did not evi- complied competent with his client's wishes Biyan's dence of Wiggins, mental illness. put government proof its burden of however, petitioner's the basis of the claim guilt stage at the of the trial. Aware of the was that his counsel's po- failure to problems serious associated presenting mitigation tential evidence flowed from the inconsistent pen- theories failure to adequate conduct an investigation. alty phases, Murphy’s concerned that Dr. tes- (“In case, Strickland, See id. at 2535 this as in timony might good do more harm than dur- petitioner’s claim stems from counsel’s deci- penalty phase, and of conscious his scope sion to limit the investigation of their consistently expressed client's rely refusal to potential mitigation evidence.”). into evidence, on mental health Freeman made a Court began analysis its petitioner’s of claim strategic mercy choice to seek during pen- by noting as "[Strategic follows: choices alty phase. strategic This "virtually choice is thorough made investigation after of law and unchallengeable.” Id. at Wiggins 2535. sim- plausible facts to relevant options virtually are ply speak does not at all to the circumstances unchallengeable; strategic and choices made of this case. after complete less than investigation are rea- precisely sonable to the that extent reasonable that, Bryan 26. to indepen- seems assert even professional judgments support the limita- question dent of the of the of use medical investigation.” tions on (quota- at Id. 2535 during evidence penalty phase, omitted). Freeman's tion petitioner’s Because counsel presentation not, was deficient. He does plainly inadequate conducted a investiga- however, tion, present analysis a Strickland any- copious and because powerful and miti- thing gating other than the failure would to the med- evidence utilize have been discovered if an ical adequate investigation Accordingly, evidence. would have this court does been conducted, the court consider the that matter concluded counsel's further. See Adler v. Stores, present Inc., failure mitigation Wal-Mart 679 (10th penalty phase Cir.1998) was not (holding insulated from re- "[ajrguments that in- strategic was, fact, view as a adequately and in decision opening in the briefed brief are waived”). unreasonable. Id. at 2541-42.

1225 testimony in the compelling only what is use this but appropriate, or [even] Burger majority also notes compelled.” sentencing phase. The constitutionally 794, 107 97 S.Ct. U.S. Kemp, adopting approach counsel feared omitted). (1987) (quotation L.Ed.2d sentencing phase might appear in the case, to establish Bryan has failed In this guilt phase strategy. inconsistent with circumstances, of all the light “in And, that counsel majority concludes omissions acts or identified [counsel’s] health tes- was concerned that the mental range profession the wide outside were future timony might support be viewed to Strickland, ally competent assistance.” dangerousness. 690,104 at S.Ct. U.S. untenable. Mr. reasoning This ineffec- Bryan’s provided the most HENRY, J., concurring part and seen, amounting I have ever tive defense SEYMOUR, Judges dissenting part; relating none to a concession of LUCERO, EBEL, join. compelling mitigating evi- of the reams delusional, is a se- Leroy Bryan Robert First, that Mr. dence. the record shows organic brain victim verely diabetic un- clearly did not even Bryan’s counsel solici- charged had been damage. He health evidence derstand that the mental years previous tation of murder several in an might attempt have been used crime, incompetent and this but was found Bryan’s culpability Mr. sentenc- reduce subsequently institutionalized. Unfortu- Next, treatment, case law and common sense ing. intensive nately many, after Amazingly, he was not di- released. make clear that counsel’s reliance on he was illness manifested monitored. client deeply disturbed rections from tragic ac- again itself his deluded him as Mr. cannot insulate such hand. Mr. to the case at tions that led duty mitigating evi- from his por- significant the most repeated Third, counsel did not inform his dence. crime, using attempted tions of his earlier purpose client about body location to conceal the same the mental health and what role stage police in the solici- he had revealed thus, further history might played, have seeking tactic of tation crime and same any reliance on negating re- forged checks to unsigned to use Finally, performance counsel’s wishes. “repeated” losses.” He pay his “business insulat- Bryan’s sentencing cannot be crime, time, he killed previous but this post ex strate- conferring upon it an ed (and Inabel, Aunt whom he believed Similarly, we cannot that did not exist. gy contested) owed him this is not several pres- tactic not to an unreasonable insulate him out of cheating from million dollars by labeling it a evidence mitigating ent fictional inven- fictional monies owed for lawyer was Bryan’s sword. Mr. two-edged tions. a matter of law. clearly ineffective as Despite compelling Bryan’s history of regarding record Mr. I. BACKGROUND illness, fact that the despite attorneys defense Mr. had three Bryan evidence, sentencing jury never heard (two his court-appointed) before of them Bryan Mr. did majority concludes that him, fired his seeking help parents, of counsel not receive ineffective assistance home their mortgaged defender and public majority concludes sentencing. at Freeman, Freeman. Mr. to hire Mr. fully aware Mr. Freeman was case, capital charged his third what was testimony health at potential use of mental $50,000 for the sum of elderly Bryans forbade the that his client sentencing, but Bryans disorder, his services. Had the not tried to sional by a evidenced brain help, paradoxically, I Leroy believe that scan.1 SPECT Bryan facing today. would not be execution Only “expert” one examined Bryan Mr. Bryan

Mr. sincerely relayed the same for the State. The expert’s cursory one- intricate plots stories to all of his four evaluation, hour preceded which the trial attorneys, explaining the circumstances re- by more year, than one produced no evi- garding the murder in elaborate and un- dence of a mental illness at the time of the detail, wavering which had no apparently exam. The expert testified that he did not factual basis at all. All four attorneys the complete review discharge summary however, agreed, Bryan that Mr. adamant- Bryan’s from Mr. earlier commitment to ly and genuinely story believed this to be Eastern Hospital, State which revealed addition, true. attorney each explained Bryan that Mr. organic suffered from de- the difficulties he had in attempting to lusional expert, disorder. This who was communicate Bryan, with Mr. and ex- conducting his third perhaps his fourth plained that no Bryan’s facet of Mr. outra- time, such evaluation at the acknowledged geous stories could be confirmed. At Bryan’s Mr. delusional might disorder delusional, times he appeared would ram- integrated be so well that he would not ble, appeared agitated, and would exhibit have been able discern it during his apparent paranoia through bizarre disc- evaluation. expert This spoke never with ourses concerning bankers, attorneys, jail- Bryan Mr. relating topic to his ers, and judge, whom, even a all of delusions, which only were apparent when believe, Bryan get were out to him. See the conversation topic turned to a related e.g. II, Retro. Comp. Hr’g, vol. paranoia, his or his fictional schemes. (Mr. Bryan exhibited “what to me was was, expert This incredibly, unfamiliar paranoid talk, delusional and then that Navane, with agent anti-psychotic coupled with the fact that the information “most important drug” Bryan that Mr. was all unverifiable or incorrect.” “He prescribed while at Eastern State. See simply was not able separate reality (tes- Comp. Hr’g, I., Retro. vol. at 138 fiction.”) (testim. from Gibson, of Wesley tim. of Dr. Philip Thus, Murphy). J. he counsel); I, (“[A]s former id. vol. at 229 was familiar with neither Mr. rec- for a rational communication effectively as- ord of treatment nor treatment. his me, sisting it.”) (testim. I didn’t see Hess, counsel). Steven B. previous Although the State initially offered to him sentence life parole, without as the All the three previous counsel indi- also majority points out, stands to- cated that they did not believe Mr. day execution, on the brink of because his was able to assist Two defense. lawyer’s final “strategy” was to hide from medical experts, well-versed in Mr. the jury any suggestion of the above Bryan’s medical evi- history and also familiar dence either or the delusions and history of mental illness, phases. perhaps by also Influenced testified that Mr. Free- Bryan was defense, unable to assist man’s in his parents- underwriters-Mr. because he suffered from an by and also pathol- Bryan’s irreversible Mr. brain upon insistence ogy, paranoid chronic schizophrenia. his clarity, Freeman, Mr. who ad- There was evidence also of organic delu- mits that he did little preparation for the scan, 1. The SPECT like all the prov- jury. ed the ing organic damage, present- brain was never tionally competency “disfavored” new sentencing phase, supposedly- crucial ordered, jury where the hearing was was strategy, after “residual doubt” a adopted crime, of the nature of his fully informed haven was offered terminological that thereby, affected his convic- persons the during postconviction by him the State tion, sentence-essentially suggest- and his doubt” strate- His “residual proceedings. if found might that he be released closing argu- admitting his gy entailed aunt, jury- Not the competent. surprisingly, and had “killed” his Bryan ment Bryan, pro- Mr. clad the throughout found “vile.” that this act was orange jump- ceedings prison in his issue familiarity purported Despite counsel’s suit, competent.2 history, and his admission the above recently reminded sincerity by Supreme in all Court relayed the stories “crazy,” us that unrealistic and Bryan Mr. were remaining reams docu- despite the capital and deterrence of “retribution organic Bryan’s Mr. supporting

mentation by offenders prospective [are] crimes disorder, apparently Mr. Freeman brain purposes by served the death the social pretend Mr. tack was thought better of the penalty. imposition Unless the defendant Bryan perfectly a normal mentally was retarded penalty death Thus, Free- spot. a bad “measurably who to one person contributes none of the information presented man nothing more goals, or of these it is both jury. to the discussed above impo- and needless purposeless than the and hence pain suffering, sition of So, no coherent given guilty found ” punishment.” an unconstitutional phase, Mr. in the defense 304, 319, 122 Virginia, Atkins v. 536 U.S. competen- die. His Bryan is sentenced to (2002) (quot- 153 L.Ed.2d 335 a constitu- S.Ct. question again, into cy called Bryan, I am even more inclined to disfavor infrequently deemed it Curiously, we have retrospective hearings when such ques- reliance on propriety of such necessary to assess the jurors of the conviction are informed reveals that hearings. The record tionable facing execution be- his status on death row prospective jurors were told about the pondered competency, they fore and while crime, Bryan's conviction and and about Mr. orange staring at convict’s and while Bryan's simply revisiting they were holding hope jumpsuit. that in I would crime. competency at the time of the judge, competency hearing, retrospective pro- pool of twelve regret that out of the I OCCA, possibility would “foresee the and the Bryan per- jurors, knew Mr. spective several angered becoming or jury so incensed of a by. sonally, having close One attended lived a crime that the circumstances of about the Bryan, and knew him with Mr. church unduly in- regarding [competence] is decision a for- through events. Another was church hearing seek to ... would fluenced. The ... Bryan's science class. from Mr. mer student the court. possibility and assist" forestall crime, had about the At least two had read (Okla. State, 569 n. 24 Murphy 54 P.3d newspapers, and had followed trial in (outlining aspirations "an Crim.App.2002) guilt. Re- opinions about Mr. formed hearing hearing”). Similarly, Atkins I, ("Yeah. Hr'g, I Comp. vol. at 20 tro. rubber-stamping of to be a mere should "not it.”). determinations, The final six chosen believe he done but an inde- jury’s factual student, former serve included [competen- the evidence of pendent review of juror that she believed and the who testified [jury], uninflu- cy] by objective, neutral am Mr the crime. Bryan Mr had committed circumstances of by nature and enced crime, easily thereby, wit- also identifiable persons affected alike, Clearly, Mr. jurors because he wore the Id. at n. 25. nesses and influence.” outside from no such insulation orange jumpsuit of a convicted inmate. benefitted competency hear- retrospective Although makeup jury has not at his ing. by Mr. and is not contested been contested Florida, 782, 798, Majority’s Holdings Enmund v. 458 U.S. A. Regard- (1982)). 73 L.Ed.2d 1140 S.Ct. ing Counsel’s Performance at below, imposi- As discussed in detail Sentencing tion by the of Oklahoma of the death State The majority summarizes Mr. Bryan’s penalty against Bryan Mr. contributes ineffective assistance claim at sentencing nothing to of these two legitimate either first, as twofold: that Mr. Freeman did not goals, and also is not constitutional. understand that he did not have to estab- incompetence present lish

II. OVERVIEW mental health mitigation; second, evidence in disagreements Before to the I turning Mr. Freeman failed to advise inform majority’s approach, have with the I must Bryan Mr. potential the use and benefit compliment the majority’s studiously fair of the mental health evidence. As to Mr. And, recitation case’s background. ignorance, Freeman’s majority re- majority’s I concur with the conclusion in sponds Part III.A that that the evidentiary hearing was entitled to testi- evidentiary hearing before the district mony establishes that Mr. Freeman was court, Miller, pursuant and that we well-versed the use of mental health de perfor- review novo whether counsel’s history at the sentencing phase. The ma- legally mance was deficient and whether jority also relies on Mr. Freeman’s hesi- prejudiced deficiencies the defendant. tance to use the information because it As majority’s might provide support to the conclusion that Mr. for the continuing Freeman provide did not ineffective And, assis- threat society aggravator. re- tance of guilt phase, sponse challenge to the to Mr. Freeman’s panel dissent, stated in my original I be- explain failure to import and signifi- performance lieve Mr. Freeman’s was inef- cance of sentencing phase client, to his failing fective for to introduce evidence of majority Bryan’s relies on Mr. per- Bryan’s However, mental illness. Ias ceived present instructions not to an insan- previously, did I will focus on Mr. ity defense and defends Mr. Freeman’s is, strongest argument, that whether Mr. sentencing. performance Freeman’s at the sentencing stage similarly ineffective. Summary Why Majority B. dissent,

As my original stated in panel Opinion Fails even under rigid AEDPA’s and deferential Upon very close examination of these review, standard of I believe that facts, unique faulty premises of these OCCA unreasonably applied federal law arguments First, emerge. Mr. Freeman when it concluded that Mr. per Freeman’s did not fully appreciate the nature of the formance was effective. v. Gib testimony offered experts medical son, 1163, 1171-85 (10th Cir.2001) regarding his client’s condition. The testi- J., (Henry, However, dissenting). given mony presented at the evidentiary hearing our de novo review of Mr. per Freeman’s clearly establishes that Mr. Freeman felt formance, this conclusion is that much eas compelled present mental health testi- ier to reach. Mr performance Freeman’s mony “useful,” if only is, it would be during the sentencing phase fell outside incompetence. establish He did not rec- range of professionally competent as ognize that testimony of organic sistance brain and constituted ineffective assis delusions, damage, tance of counsel for and that his failure to client was testi mony regarding history “crazy” would be mitigation valuable evi- mental illness. dence.

1229 III. DISCUSSION Second, wishes or direction a client’s not unas- sentencing approach at is to the Deficiency Perfor- A. of Counsel’s binding, even by is no means and sailable mance or no indica- there is little in case where a reviewing perfor- Mr. Freeman’s Here, society’s mental distress. tion of “ mance, duty in mind that ‘[o]ur we bear securing just in result interest is real for error to search constitutional of culpability accurately assesses exacting care is never more painstaking ” Additionally, there is prosecutes. those it v. capital than it in a case.’ Mitchell is influ- Bryan’s parents Mr. evidence (10th Gibson, 1036, 1063 Cir. 262 F.3d any of present not to enced the decision 2001) Kyles Whitley, v. 514 (quoting U.S. evidence. compelling this 1555, 419, 422, 131 L.Ed.2d 490 115 S.Ct. omitted)). (1995) (internal marks quotation Third, adequately Freeman did held that it is Supreme The Court has of the the purpose his client about inform reliability a capital sen- critical of the evi- or the nature sentencing phase jury tencing proceeding that render The ma- might presented. be dence v. Gregg decision. See individualized Freeman’s by relying on Mr. jority errs 153, 206, Georgia, U.S. 96 S.Ct. 428 may his client conversations reliance on (1976) (in upholding L.Ed.2d 859 49 as to the previous counsel have had with sentencing scheme is- Georgia capital at behind, of, strategy the sen- and purpose sue, Georgia new emphasizing “[t]he tencing phase. jury’s ... focus the sentencing procedures particularized nature attention on Fourth, majority mischaracterizes charac- particularized the crime “strategic decision” Freeman’s ”) the individual teristics defendant because strategy doubt” adopt a “residual added). jury “The this case (emphasis consistency” between “need key off from miti- effectively walled Unquestion- sentencing phases. particu- that went to the gating evidence phases is consistency between ably, of the individual de- larized characteristics ideal, purported Freeman’s strate- but Mr. No 96 S.Ct. 2909. fendant.” Id. such consisten- nothing preserve gy did weighed ever judge or has strategy squarely con- sentencing cy-his characteristics” Bryan’s “particularized The guilt phase approach. tradicted would penalty the death deciding whether recog- admits as much majority implicitly appropriate punish- constitutionally abe doubt that Mr. Freeman’s residual nizing ment. weak, charac- approach was best stage the most criti “The “mercy” approach. terizing it as Any penalty case. phase a death cal con- Mr. Freeman’s majority also credits importance counsel knows the competent evidence the mental health cerns about investigating presenting of thoroughly continuing threat serving support Gibson, Romano v. mitigating evidence.” consideration- aggravator, without Cir.2001). (10th 1156, 1180 be- particular mitigating refuse to consid may not sentencer “[T]he whole, sen- Mr. Freeman’s fore us. As considering ‘any from precluded er be ” performance completely tencing stage v. Skipper mitigating evidence.’ relevant 1, 4, doubt resulting Carolina, in a 106 residual 476 U.S. S.Ct. South deficient — (1986) (quoting Ed that admitted the crime—and 90 L.Ed.2d 104, 114, Oklahoma, U.S. dings prejudice to his client. resulted hence 1230 (1982)). 869, Cir.1998)); 71 L.Ed.2d 1 Mullin,

S.Ct. Accord- see also v. Duckett 306 ingly, imposed (10th “the sentence at the penalty 982, Cir.2002) (same) F.3d 997 (quot- stage should reflect a reasoned moral re- ing Battenfield).

sponse to background, the defendant’s Ignorance a. character, Counsel’s of the Use of and crime.” v. California Brown, 538, 545, 837, Testimony Mental 479 107 Health U.S. S.Ct. 93 at Sen- (1987) (emphasis original) tencing L.Ed.2d 934 in (O’Connor, J., concurring); Mayes see also majority asserts that Mr. Freeman Gibson, (10th 1284, v. 210 F.3d 1288 Cir. appreciated the nature of reports and 2000) (noting mitigation evidence “af- by conclusions offered psychiatrists, two fords an opportunity to humanize and ex- Drs. John R. Philip Smith and J. Murphy. plain- individualize defendant outside Dr. Smith made the following conclusions the constraints of the normal rules of evi- regarding Mr. Bryan’s mental state: dence”). “Consideration of such evidence is Bryan [Mr. suffers from an] extensive a ‘constitutionally indispensable part of the paranoid delusional system, fragmenta- ” process inflicting the penalty of death.’ tion of thought, circumstantial thinking, Brown, 541, 479 U.S. at 107 S.Ct. 837 ... diabetes. Carolina, (quoting Woodson v. North 428 system [The] delusional and circumstan- 280, 304, 2978, U.S. 96 S.Ct. 49 L.Ed.2d tiality thought ... ability affect his (1976) 944 (plurality)). assist attorney his own defense.

Thus, a criminal defendant who is charged with a capital offense has the While he an understanding has

right to present virtually any evidence in him, charges against many as schizo- mitigation at penalty phase. phrenic do, people way this is no modi- 393, 399, Hitchcock v. Dugger, 481 U.S. fies their real belief in 1821, (1987). 107 their delusional S.Ct. 95 L.Ed.2d 347 system and compelled interpreted “We are cannot be therefore to insure that accu- sentencing jury rately by the court makes an to mean that individual- he is ized decision equipped capable, while ‘full- in person as without a serious est information possible concerning the disorder, de- participating in their characteristics,’ fendant’s life and own defense. must carefully scrutinize decision Hr’g Evid. Ex. 1. deprives which a capital defendant Murphy Dr. reported “Mr. of all mitigation Mayes, evidence.” 210 suffers from a serious mental disorder Ohio, F.3d 1288 (quoting Lockett v. 438 places which into question serious his com- 586, 603, U.S. 98 S.Ct. 57 L.Ed.2d trial, petence to stand as legal well as his (1978)). 973 examining When in- counsel’s culpability the crimes for which he is

vestigation presentation mitigation charged.” Evid. Hr’g Tr. at 95. Finally, evidence, right “the mitigating in language that Mr. Freeman should have evidence to the constitutionally pro- understood, clearly both Drs. Smith and tected,” 1288, and, Mayes, 210 F.3d as Murphy referred to Mr. “crazy.” out, the majority points there is a 83; Hr’g Evid. Tr. at Comp. Hr’g, Retro. corresponding “need to apply even closer I, vol. at scrutiny when reviewing attorney perfor- addition, Allen, mance Dr. E. during the William sentencing phase of a testi- capital Gibson, case.” fied about the results of 236 Battenfield (10th Cir.2001) F.3d (quoting SPECT scan. The SPECT scan results Ward, (10th Cooks v. independently verified preliminary that, compromised I then If to do I tried Murphy by Drs. performed tests trial of the Bryan’s position one scan enables The SPECT Smith. make the State and elected to damaged case severely dead areas of detect a reasonable try-beyond prove Mr. and that concluded Dr. Allen tissue. brain a sufficient to create try of and doubt multiple areas from Bryan suffered that would believe the concerns. that serious doubt raised damage that brain the committed offense deterioration he had not brain that the also noted He charged. the SPECT he what which was As to was irreversible. had shown said, have then, and would Dr. I stage, indicated

scan In the second testi- Murphy Dr. later consid- presented, it been hadn’t been out. He was Smith “organic from Bryan suffered Mr. he fied that time what for some because ered in Mur- disorder,” meaning, Dr. or delusional on either two I visited had said. “crazy” and Bryan is words, Mr. that phy’s and he Murphy, with Dr. three occasions and “grandiose,” “paranoid,” from know, suffers me, that he found you told had Comp. Retro. thinking. “persecutory” abnormalities, that the bottom but brain I, Hr’g intent, vol. could form the was that he line in and right the difference that he knew Free- reports, Mr. to such response In conse- knew the and that he wrong, Drs. both understood that he man stated acts. of his quences that Mr. have said Murphy to and Smith I felt stage, say, not I in the second he was And as that crazy, but Bryan was I myself if compromise that I would that Mr. Freeman feared legally insane. Mr compromise or form into that ability get to tried to Bryan had Mr. because that I was fearful myself his and regarding Bryan and intent, testimony any that simply testimony support Mr. would indicate that his would mental distress theory-of State. society. to danger Bryan was Besides underes- at 86-87. Hr’g Evid. Tr. “please request response In I report written Murphy’s timating Dr. trial second-stage your explain earlier, did Mr. Freeman nowhere quoted case,” responded: Freeman Mr. this recognize pre- or consider apparently throughout position had taken We sentencing-to create purpose eminent I that trial, by fact reason history of Mr. individualized testi- medical demonstrate could not its sentenc- base jury might that the hopes was Mr. that or evidence mony fullest information on the decision ing insane, been determined already he rec- Mr. Freeman did available. Nowhere believe, two or on, I either competent organic delusional Bryan’s Mr. ognize that occasions, juries Beckham two three to humanize serve might disorder doctor, plus County one other and if determined Freeman client. had determined Granite doctor in Bryan was say Mr. not experts could I if raised competent, he stage, at the trial incompetent insane or evidence, on that put aas defense delusional, he was testimony that their and I couldn’t process I No. started brain dead had substantial “crazy,” and ethically go I wanted get where it because excluded was therefore tissue go- not they were honestly because no ex- Similarly, because was irrelevant.3 he was insane. ing say experts. medical those rather than opinion, I majority 19 of the 3. As to note event, reading any of the evidentia- any under completely clear whether think it is utter testimony, Freeman's gears ry hearing and was comment- shifted Freeman had parents’ statements of the relevance pert would say that Mr. Bryan was insane judge should have had an opportunity or incompetent, their testimony, he incred- to consider.” Id. I agree cannot that Mr. believed, ibly was rendered useless for approach Freeman’s to the sentencing portion of the trial.4 phase, which amounted to a denial of any of Mr.

Additionally, serious and perhaps evident even more disorders, telling, Mr. justifiable Freeman never asked Dr. Al- reasonable. len about the importance of findings. b. Mr. Regarding Wishes Evid. Hr’g Tr. at 98. Mr. Freeman Mental Health Evidence never appreciated the visual uses of the SPECT scan. At the Mr. evidentiary Freeman hearing, attempts to defend his both former blueprint counsel Mr. Hess for the and defense sentencing phase by rely- expert and public assistant ing heavily defender Tim upon client’s wishes that he Wilson underscored importance present the not of the evidence of mental health his- SPECT scan. e.g. See Hr’g tory. Despite Evid. Tr. at 33 the unrefuted evidence of (“The major issue for mitigation would Mr. delusions, longstanding scan.”) (testim. have been the SPECT of majority’s holding adopts Mr. Freeman’s Hess, B. previous Steven counsel); argument, id. at which contradicts case law from (“[The 58 SPECT great scan] makes a this and other circuits. exhibit.”) (testim. Wilson). of Tim And (i) Mr. desires are not sacrosanct Freeman,

Mr. whose understanding of the limited, SPECT scan was never intended “Most importantly,” majori- asserts the to have Dr. testify, Allen which ty, would have “[Mr.] Bryan did not want [Mr.] Free- clearly and independently verified clin- present man to any psychiatric evidence.” ical results found the psychiatrists. Maj. Op. at 1223. The majority sup- thus plies a shield for Mr. Freeman: his “com- had no appreciation psy- petent” client told him not present evi- chiatric mitigating evidence only can dence of mental light health. of Mr. in mitigation, act it also could significantly Bryan’s long history illness, of mental it is blunt the force the aggravating factors. difficult to characterize his decision as an “[T]here is a great difference between fail- strategic informed choice. ing to present evidence sufficient to estab- lish incompetency at trial and failing to “In every trial there is more at stake pursue mental health mitigating just evidence than the interests of the accused.” at all.” Hardwick v. Crosby, 320 F.3d Mayberry v. Pennsylvania, 455, 400 U.S. (11th 1127, Cir.2003) 1164 (quoting Blanco 91 (1971) S.Ct. 27 L.Ed.2d 532 v. Singletary, (11th F.2d (Burger, J.,C. concurring). “Mitigating Cir.1991)). The majority ignores pos- plays evidence an overwhelmingly impor- sibility that “[o]ne can competent be to tant ‘just role imposition of the stand trial yet suffer from mental death penalty.... As practical matter, problems health that the jury sentencing probably defendant has little or no disregard of the nature of experts’ the medical It Freeman: to me that occurs if that testimony is resoundingly clear. were opinion upon current based his cur- rent your condition then might answer be this, Despite Mr. Freeman testified to the 4. true. following: Q: But if that were true at the time of Q: Up point, trial, to this it has not jury occurred might given not have him it, you, has that if Leroy were organically penalty, death right? damaged brain and mentally might ill he They might Freeman: not have. not be executed? Hr'g Evid. atTr. that, of cir- narrow sets may demand un- sentence the death avoiding chance cumstances, her inde- exercises counsel gives counsel the defense less Evid. professional judgment. pendent the horror both to counter something trial (“My obligation, as at 25 Hr’g Tr. information the limited the crime and best de- counsel, present ... is to de- about the introduced has prosecution ” 2, I can fense, Stage 1 and Stage both (in- Romano, at 1180 fendant.’ saving my no eye toward with an client omitted). marks quotation ternal are. ... desires my matter what client’s mit- not to desires A defendant’s insanity presentation I consider counsel’s do not terminate igating my co- issues that one of defense those during the responsibilities times I which at decided trial: “The rea- penalty a death phase desires.”) client’s would our conflict ‘blindly follow’ such may not lawyers son Hess, (testim. coun- B. former of Steven although the decision is commands (“I added); sel) at 77 feel id. (emphasis for the such evidence to use whether insisting inno- that’s if have a client I po- evaluate client, lawyer first must to, him that, put chose I would if he cence the client of advise and tential avenues But testify.... let him the stand and Blanco, merit.” offering potential those to no choice about whether client has (internal marks quotation at 1502 I’ll defense.... a mental health present (“We omitted). note that id. at n. 19 See innocent, I’ll but testify have him he’s the use of concerning decision defendant’s evidence.”) (tes- my mental health present of aspect is more evidence mitigating Wilson). Hightower, also Tim tim. of as to which than a decision overall court (reversing lower at 483 518 A.2d legal sup- best provide the witnesses would defen- legally competent conclusion defense.”); v. also State see port for prevail). should dant’s wishes 43, 518 A.2d N.J.Super. 214 Hightower, (1986) despite compe- (noting 483 (ii) regarding precedent Tenth Circuit simply ap- preference tent defendant’s evidence mitigation of waiver forego and determination peal Gibson, 236 Recently, Battenfield hearing, counsel defense at Battenfield, defendant, Mr. 1215, the F.3d any evidence presenting upon should insist had no and competent deemed who was factors, “[i]f because mitigating distress of mental history documented in miti- allegedly the evidence did not hear instruct- dependence, chemical apart from difficulty discharging it have gation, could any evidence present not to his ed moral, duty” to and indeed statutory, its The of the trial. sentencing phase at the factors). mitigating weigh aggravating evidence, as summa- mitigating available deemed Thus, court, was although included: rized constitutionally disfa- competent father (a) that Battenfield’s vored, highly suspect, in this case involved were grandfather hearing, see competency (b) retrospective involve- Battenfield’s moonshining, Gibson, 962 age F.3d 248 McGregor v. accident in a serious ear ment Cir.2001) competen- a serious (10th (“Retrospective he sustained during which disfavored.”) heavily he which generally are and after injury cy hearings head (c) omitted), (internal drugs, marks alcohol and used quotation Battenfield’s possi- present history alcoholism family not whether or about opinion (d) addiction, health mental drug history ble health evidence of Bat- evidence, evidence that including assuredly not sac- sentencing phase addic- substance society attorney’s duty to rosanct. from tenfield suffered (e) tion, underlying circumstances parents beg field’s for Battenfield’s life. previous conviction In an affidavit submitted connection of Battenfield’s for battery, assault and which allegedly oc- with application post-conviction for curred while he was under the relief, Battenfield indicated that [his influence drugs and alcohol and anwas act counsel] never explained to him “the (f) self-defense, evidence from family importance mitigation or ... what members and friends indicating that mitigation actually [wa]s.” Battenfield Battenfield known for ¶ his compas- Aff. 2. sion, gentleness, violence, and lack of added). Id. at (emphasis This bol- even when provoked, and (g) testimony that, stered our conclusion on coun- based personnel of prison describing the secu- sel’s apprise failure to his client of “what where rity Battenfield would be incar- particular mitigating evidence was avail- if given cerated a life sentence. case,” able in his Mr. Battenfield’s waiver added).

Id. at (emphasis knowing and voluntary. Id. at Judges After Mr. Briscoe Battenfield was and Lucero found thus held guilty, he the court that instructed his counsel not “counsel’s present per- deficient any mitigating formance culminated in evidence in the Battenfield waiv- second stage. the right present His counsel advised proceed mitigating him to evi- dence.” Id. mitigating evidence, at 1230. and the court made specific inquiries to Mr. Battenfield Here, above, as indicated is a there seri- why as to he was opting not question ous as to Mr. Freeman’s level of testimony for mitigation. The OCCA de- appreciation for the vast of amount avail- termined Mr. Battenfield voluntarily able for mitigation. evidence Unlike in waived right his present to any mitigating Battenfield, Mr. Freeman’s investigation evidence. We noted terms remarkably largely completed by predecessors his descriptive of this case that counsel: and Mr. Freeman only needed to connect

never explained general the meaning of But dots. unfortunately for Mr. mitigation evidence to Bryan, Battenfield or Mr. Freeman arrived at the same specific what mitigation spot evidence as did Battenfield’s counsel: He was available. [Battenfield’s ac- “was counsel] at unaware the time of of trial vari- knowledged he never advised Batten- ous mitigation strategies and accompany- that mitigation might ing pieces evidence of evidence could field have been include evidence about presented during mitigation phase by Battenfield’s substance problems. abuse best, At [mitigation Further, witnesses]. [counsel] the evidence indicates that at was wholly unprepared some to rebut aggra- point during the trial proceedings, vating argued factors by the prosecution.” [Battenfield’s counsel] And, discussed Id. at 1229. like counsel in Batten- Battenfield his plan present field, Batten- Mr. Freeman’s deficient performance parents field’s as second-stage wit- “rendered alleged his penal- unreasonable nesses and his strategy to have ty-phase Batten- strategy.” addition, Id.5 In as 5. As Battenfield, we noted in 236 F.3d at lines as serve benchmark for the trial court's trial, within months of Mr. Bryan's procedures, counsel, ideally, by and trial wisely OCCA guidelines established for courts when the record replete with evidence anof to follow "when a defendant refuses organic to allow brain guidelines, Those disorder. in- presentation mitigating of evidence in the tended to ensure that a "has defendant State, stage.” Wallace v. understanding P.2d rights his her ... in the 504, 512 (Okla.Crim.App.1995). guide- The sentencing process, require a court trial to: (1) v. Gibson Romano to ad- below, Freeman’s failure noted nature, importance, Romano, challenged as to defendant client In vise his pres- for failure effectiveness counsel’s mitiga- presentation purpose and of abandonment mitigating ent evidence, any possibility foreclosed tion he a toddler. when was possible and abuse position. See his reconsider might he addition, he should contended that he 1230. id. examination. health received a mental have the defen- indicated that report previous A (iii) Misreading any psychiatric from Majority’s “did not suffer dant time test at that and his results disorders and Romano Gibson at 1182. Be- 239 F.3d appeared normal.” v. Ward Wallace the defendant sentencing stage, fore the parents his holding in Batten- not to have directed counsel our recent Despite testify. and friends on two majority relies instead field, wishes, trial Notwithstanding conclu- his client’s support of its circuit’s cases our instruc- disregarded client’s choice but Mr. Freeman no sion tions, mitigating substantial presented of his client. Undoubt- wishes heed the testimony from his including testimony, based strategy will be edly, counsel’s The defen- friends. mother and various on choices part by defendant’s childhood, and detailed his dant testified the defendant. supplied information service, activities, military schooling, Free- Thus, majority, Mr. concludes He described his love children. doubt stage residual second man’s Id. at 1181. “outstanding.” childhood responsive that was not like was one that he “did told He also family testifying having his friends Maj. Op. at wishes. Wallace Battenfield, (quoting at 1233 right '(1) defendant of inform the evidence, added). 512-13) mitigating (emphasis and what miti- P.2d is; (2) inquire of the both gating evidence than com- guidelines are "little more These se) (if pro attorney his defendant and followed should have been mon sense and rights; these he she understands whether or Battenfield, 236 F.3d at the trial court.” (3) attorney or she has inquire if he that, independent of They demonstrate defendant from the attempted to determine wishes, responsi- counsel has his client’s exists; (4) any mitigating evidence whether in- mitigating bility evidence to evaluate (if mitigating inquire what that evidence Supreme Similarly, court. the trial form cooperate, the to has refused defendant ABA recently that the reiterated Court has court); (5) attorney relate that to the must help- provide Criminal Justice Standards for a determi- and make inquire a defendant “determining is rea- what for ful benchmarks record whether nation on the defendant - -, Smith, mitigating ev- importance U.S. Wiggins understands the v. sonable.” scheme, un- capital 2536-37, idence in a 2527, 471 L.Ed.2d 156 123 S.Ct. to could be used such evidence derstands Washington, 466 (2003) (citing Strickland proven aggravating circumstances 688-89, offset by 80 L.Ed.2d S.Ct. 104 U.S. death support prosecution in require (1984)). The ABA Standards 674 failing present to penalty, and the effect of mitigating evi- to the court of counsel inform evidence; (6) being assured after dence. See American Stan- Bar Association concepts, in- these defendant understands 4-4.1, commentary, Justice dards Criminal he or she quire of the defendant whether (1993) ("The lawyer has substan- also at 183 present such right to desires to waive raising perform in important role to tial and evidence; (7) findings mitigating and make prosecutor ini- both to the mitigating factors under- regarding the defendant's of fact sentencing.”). tially court rights.’ standing and waiver 1236

his behalf and that his defense attorney ing. here, Unlike the record indicated presented had what mitigating testimony that Mr. Wallace “knew what mitigating against he had [the defendant’s] wishes.” was, attorney discussed it Id. at 1181-82. with him. He likewise knew he had the right to present mitigating evidence.” 191 Rather than chide counsel for disregard- F.3d at State, directive, (quoting his client’s Wallace v. we concluded P.2d performance counsel’s logical (Okla.Crim.App.1997)). was a strate- gy portray Wallace only was the defendant’s childhood as defense witness at normal and happy, and the sentencing phase, we found no defi- and he testified that ciency performance. in his he defendant with conferred counsel and knew was allowed to testify and to articulate his that counsel could have vigorously present- discomfort with the testimony presented defense, ed a and that he had instructed by his counsel. Finally, through counsel’s counsel not to cross-examine various wit- pretrial preparation, counsel discovered object nesses to the death penalty, nothing that would suggest an abusive and that he had no desire miti- childhood. gating evidence. Id. at 1249. “Defense

Here, counsel’s closing Mr. Freeman’s statement can confirmed “strategy” hardly similarly represented he be [Mr. characterized: professed he se- Wallace’s] verely curtailed Mr. Bryan’s interests.” testimony Id. recognized We that Wal- the sentencing stage, allowing him op- no lace facts, embodied “unique” and deter- portunity to humanize himself before the mined that performance counsel’s was not jury. Unlike Romano, counsel deficient and prejudice that no was shown. exposed Freeman was to virtual volumes Id. at 1248. of evidence of psychiatric disorders, includ- An attorney must weigh his strategic ing the scientific “picture” of the SPECT calculus his Romano, client’s wishes. See scan. Counsel in clearly Romano dis- 239 F.3d at 1181. An attorney may disre- cussed the sentencing phase with his client gard instructions, those however, when the and explained his strategy, and opted to presents record evidence that is contrary allow client to testify as to his discom- to the defendant’s wishes. Trial counsel fort having his mother and friends explain can by having inconsistencies testify. In stark contrast her testify client as to her decision. We Romano, Mr. Freeman made no such ef- cannot know with certainty why Mr. fort to inform his client about the purposes Bryan’s parents feared exposing the men- of the sentencing phases, and did not dis- tal son, illness of their nor can explain we cuss any mitigation strategy with him. Bryan’s Mr. unwillingness to concede that See Hr’g Evid. Tr. at 36-37. And finally, he was ever mentally ill. There are clues given Bryan’s Mr. uninformed likely and though. Mr. sister that, indicated perspective, delusional Mr. Freeman still to her parents, admission of mental illness opted to heed Mr. Bryan’s wishes. equated with “someone ... who had no

(2) at sense all.” Hr’g Evid. Tr. at 43. Wallace Ward The majority’s that, I concede reliance on Wallace v. absent a determination Ward, 191 F.3d of is similarly incompetence, unavail- the autonomy of the ing. Wallace, after the client generally prevails defendant at the guilt phase. pleaded guilty, he instructed his But at sentencing, stigma might that not to present any evidence at the punish- be associated by some with insanity an ment trial and at the subsequent verdict, sentenc- which may be worse than the stig- of the “apprised he part because conviction, longer potential no ma of evidence using mental health and Slobogin Christopher benefits See outcome. Maj. Op. Mashburn, phase.” penalty at the mitigation The Criminal Amy Defense with Duty Clients reasons that be- Fiduciary majority to The Lawyer’s at L.Rev. counsel, Fordham Disability, 68 whose Bryan’s previous Mental Mr. cause (2000) a conviction (noting that 1581, 1638 health evi- to mental strategy was insanity verdict to an preferable be may penalty guilt during both dence an associated stigma “the because insanity upon an in his reliance phases (which a find- incorporates insanity verdict to his defense, strategy that explained committed) bemay that a crime ing in- client, somehow Mr. would that conviction,” and stigma than the worse mental health presenting import tuit confine- institutional to may itself lead to Mr. Freeman’s applied testimony ment). (actual inno- approach radically different held that has cence) sentencing Court Supreme guilt at both mentally retard- by the Freeman, borne However, deficiencies whose Mr. phases. from exemption an not warrant “do ed from that clearly diverged sanctions, per- their but diminish criminal to assert planned he because predecessors Atkins, U.S. culpability.” sonal phase, during innocence actual logic applies 2242. The Court’s 122 S.Ct. implications strategic not discuss did who in Mr. shoes less those no health mental presenting deficiencies. from severe suffer Romano, 239 sentencing phase. Cf. (“One Hardwick, can at 1181. F.3d yet trial suffer to stand competent be for the preparation As to the sen- problems mental health from following: Bryan testified to Mr. phase, an have had judge should tencing jury and what tell Q: you Court Could consider.”) (internal quota- opportunity penalty was made preparation omitted). tion marks phase. in reliable interests both “Society has answer, “That’s hard Bryan: interests process, dignified outcomes any.” just wasn’t because there defendant. waiveable are not you would be you told that Q: Were interest, society has specifically, More a witness? defendant’s, in ensur- independent system accu- I would be justice told that Bryan: that the criminal I was it of those the culpability chair. rately assesses witness called are not procedures its prosecutes and told that? you Q: were And when Slobogin and Mash- or abused.” ignored that? you Freeman tell did When Mr. at 1633. burn, Fordham L.Rev. swpra, 68 before a few minutes Just Bryan: no recognize failure to Mr. Freeman’s I was called. culpability accurately assess the jury could prepare have time Q: Did he of his presentation without of Mr. going to he was questions for the you defi- history grossly health ask? cient. No, Bryan: sir. Mr. Preparation for c. Counsel’s Mr. with ever discuss Q: you Did Mitigation Phase the men- using possibility Freeman the stage in the second health evidence tal Mr. that concludes majority The also of the trial? decision an informed gave counsel 1238 Bryan: It was never mentioned. obtain acquittal or the death penalty did not justify lawyers’

Evid. failure Hr’g Tr. at to inves 36-37. Based on this tigate intoxication testimony, defense” and which neither Mr. that Freeman nor such controverts, jailhouse “[u]ncounseled bravado, the State we presume cannot more, without should not deprive Bryan had been defen counseled and dant of his right advised on the counsel’s guilt phase new better-in strategy advice”); formed its Gaines implications Hopper, for 575 phase the second (5th 1147, 1150 Cir.1978) F.2d strategy, (“Meaning when the testimony from the ful discussion with one’s hearing client” indicates otherwise.6 is one of the “cornerstones of effective assistance In Battenfield, we determined counsel’s counsel.”). performance to be deficient where counsel explained “never general meaning of d. “Strategy” Counsel’s at mitigation evidence to [his client] or what the Sentencing Phase specific mitigation evidence was available.” 236 F.3d at 1229. Additionally, counsel in majority defends Mr. Freeman’s “never advised Battenfield that stage second performance by Battenfield declaring mitigation evidence might include evidence present that to any mental health testimo- about Battenfield’s substance prob- abuse ny would be inconsistent with his first lems.” Id. Mr. Freeman cannot now hide stage defense “and would do more harm behind uncounseled and un- good.” than Maj. Op. at 1221. The ma- informed wishes as to the sentencing jority points also to expert testimony that phase. See Thompson also v. Wainwright, indicates to have inconsistent first and (11th Cir.1986) (“The 1451 stage second strategies unworkable, or, lawyers reason may not blindly follow [a more specifically, the of death,” “kiss par- client’s] commands is that although the ticularly when there’s a “denial defense in decision whether to use such evidence in stage” the first by followed “remorse court is for the client ... lawyer things first like that” the second stage. See must potential evaluate avenues and Maj. advise Op. at 1223 n. 22 (quoting testimony the client of those offering possible mer- Wilson, of Tim Evid. Hr’g 60); Tr. at see it.”) (internal quotation marks and citation ABA also Guidelines for the Appointment omitted); see also Martin v. Maggio, 711 and Performance of Defense Counsel in (5th Cir.1983) F.2d comment, 1280 (noting that Death Penalty § Cases 10.11 defendant’s “instruction (2003) lawyers (“[W]hether or not guidelines The ABA's capital for defense pose of the concerning information penalty work are “standards to Supreme [the which they intend to to the sentencing " long Court has] 'guides referred to as ..., reviewing body means which the " " determining what is Wiggins, reasonable.' mitigation presentation might strength- be Strickland, 123 S.Ct. at (quoting ened, and the meeting pros- for 2052). U.S. 104 S.Ct. example, For aggravation. ecution’s case in "[pjrior to sentencing phase ... counsel 10.11(D). Furthermore, § Id. "[c]ounsel should discuss with the client specific consider, client, should discuss sentencing phase procedures ... and advise possible consequences having the client steps being client of preparation taken in testify or make a statement sentencing." ABA Guidelines Ap- for body." 10.11(E). ... § Id. Despite pointment these and Performance of Defense Coun- norms,” "well-defined Penalty 10.11(C) Wiggins, sel in (2003). § Death 123 S.Ct. at Cases 2536-37, however, Similarly, it appears that counsel disregarded every responsibilities. [c]ounsel stage such of the case should discuss with the client pur- the content and ”). of ‘residual doubt.’ upon strategy the that the defendant will be defense phase Mr. Freeman sentencing stage, crime, During be the counsel must the commit not did testimony Bryan, from Mr. the brief presented to make the outset from prepared First, sister, Mr. and his mother. phase.”). penalty the to transition explanation to offer an Bryan testified Wilson, the ex- Mr. nor other Neither while he alleged place assault that took a mitigation that suggesting perts were Next, Bryan’s Mr. was incarcerated. compelling this mental employing Mr. and sister testified that mother Mr. have been used. not evidence should God, standards, high moral believed the out that better merely pointed Wilson non-violent, caring family a and was to utilize the have been would defense testified that Mr. member. sister guilt in the phase. health evidence mental Bryan might Mr. reach she believed event, testimony highlighted the any In salvaged” and that that “he could be point indicates that he dis- majority merely the jury not to execute ask the she “would the innocence in arguing actual couraged VII, at 1714. Trial tr. vol. brother.” [her] by remorse in followed stage, first mother, ask asked if she would when His not correct to simply It stage. second Bryan, responded kill Mr. jury not to that that, given guilt strategy suggest Id. at 1728. “Why sure.” would used, Mr. that Wilson Freeman Mr. organic “excellent have utilized this Next, his clos- presented Mr. Freeman sentencing in the damage” evidence

brain presenting rather than ing argument, and Indeed, Hr’g at 62. former life, Evid. phase. of Mr. he first portrait a vivid Hess, who expert defense Mr. continuing no Bryan posed Mr. noted that “done th[e] he have asked how would he had served society, because threat to answered stage differently,” second Despite past his time for his conviction. mental health put [the] “would have he pres- could not comment that he his later Hr’g Tr. at 23. on.” Evid. experts evidence be- history health ent the mental with his earli- “ineompatibfility],” cause of addition, majority concludes innocence, Mr. Bryan’s er assertions choice not Freeman’s 89, he next noted that Hr’g Tr. at Evid. history at the health remember have “[w]e reasonable, his fear of the given stage was determined Leroy is not an issue. You’ve two-edged sword. acting evidence that, in this that, everybody know we constraints, major- by these Hampered courtroom, in the world. The everybody “mer- opted Freeman that Mr. ity believes appropriate be the is what should issue continues while State cy” approach, VII, at 1750- Trial tr. vol. punishment.” one of “rea- “strategy” as characterize jury that Freeman reminded 51. Mr. sonable doubt.” despite his salvaged “be' Bryan could (i) at the Testimony elicited despite 1752. And Id. at act.” vi[le]

sentencing stage killed,” have “Leroy should not fact that impose he asked the id. Free- to evaluate Mr. way fairest pa- life without life or of either sentence sentencing is to review strategy at man’s the evidence the extent of role. This is pres- Freeman did evidence the scant pres- could he Mr. Freeman believed support of a phase, mitigation at the ent mitigating factors support ent strategy. See doubt” “residual purported government’s counter Find- Proposed Respondent’s doc. Rec. 1695-1734, ¶ id. at aggravators. of Law Fact and Conclusions ings 1999) (“Freeman 1748-59. (filed relied Nov.

(ii) Presentation of capacity diminished Id. at 1366. Mr. Antwine’s counsel “gave guilty

after a verdict reason, no though, for a requesting second examination in preparation for the Although Mr.' Wilson testified the evi- penalty phase of the capital murder trial.” dentiary that his hearing approach to the Id. sentencing stage trial and would have been markedly Freeman’s, from Mr. different At the phase, counsel relied that he strategies would have utilized only plea on a mercy and presented “dovetail[ed],” suggest he does'not a strat- only testimony the of the defendant’s egy that would have in any “dovetailed” brother. Counsel later testified “that he

way with Mr. Freeman’s guilt phase ap- had considered putting on elaborate evi- proach. Hr’g See Evid. Tr. at 59-64. Mr. of mitigation, dence but rejected had Wilson was suggesting ap- best idea in favor of an beg-for-mer- emotional proach would been have to introduce the cy approach. He was concerned that the testimony mental health in the stage. first guilty verdict indicated that jury But he should not be read to answer a give decided to [his penal- client] death question asked, that he was not as the ty, and felt that the best course would be majority Maj. does. See Op. at appeal their compassion.” Id. at n. 22. 1367. Mr. Antwine’s counsel also claimed Delo, (8th Antwine v. 54 F.8d 1357 “that he would have lost credibility if he Cir.1995), Eighth granted Circuit ha- had presented of a impair- mental beas relief where counsel failed to investi ment at the penalty phase, because such gate fully mitigating evidence evidence would be inconsistent with the the defendant’s mental condition. claim presented self-defense in the guilt Shortly offense, after the psychia state phase.” Id. trist conducted twenty minute interview Mr. Antwine’s performance counsel’s of Mr. Antwine and “concluded that [he] managed to meet the Strickland standard did not suffer from mental disease or at the phase, because Antwine defect, and that his actions at the time of could not prejudice: establish “If [Ant- the offense were consistent with POP in wine’s] counsel had ... presented evidence toxication.” Id. at 1365. years Several that [his client] was in the throes of a later, Mr. diagnosed Antwine was with bi episode during offense, manic jury polar disorder. The Missouri state court might have found that he did not have the concluded that the evidence of mental de specific intent-cool deliberation-required fect was insufficient establish that the for capital murder.” Id. at 1368. But the defendant suffered from bipolar disorder court could not say it “that was unreason- at the addition, time of the offense. In able not to make a diminished court found the diagnosis was not capacity argument in guilt phase.” Id. credible. As to the sentencing however, phase,

Counsel for Mr. Antwine defended his court held that “there [wa]s decision not to reasonable conduct followup mental chance that Antwine would not examination because it have might been only show sentenced to death diminished if capacity in a counsel had bid for a lesser effective- offense, ly presented like second degree evidence of Antwine’s murder. Mr. Antwine impairment instructed his counsel to the penalty phase.” seek “ac- Id. quittal rather sentence, than a reduced “Since found only two aggravating [and] counsel decided not to investigate circumstances, the balance of aggravating pursue a capacity diminished defense.” and mitigating circumstances in penal-

1241 (iii) Strategy Residual Doubt would have been trial ty phase create reasonable enough to altered striking is the Perhaps even more sen- jury not that would probability of defense of reasonableness State’s Id. to death.” tence Antwine residual doubt Freeman’s purported Mr. sentencing. ques- There is no strategy at with issues Antwine court dealt The ... phase may pro- guilt “[t]he tion that First, Ant- Mr. before us. parallel those of to sow the seeds opportunity vide the goal that his client’s counsel stated wine’s concerning doubt defendant’s ‘residual’ opted not and thus counsel acquittal, of a life sen- enhancing the chances guilt, impairment of evidence mental present to Doyle, Lawyer’s M. tence.” James sentencing phase. guilt or at either Cases, Capital in 8 Representation Act: lawyer want his Here, Bryan did not Mr. (1996). Human. 428 n. 25 J.L. & Yale Ad- mental illness. evidence of up to stir may attempt further Counsel rejected the idea of Mr. ditionally, concerning guilt lingering doubt any guilty. pleading during sentencing defendant to cause the to decide hoping phase, Second, Antwine’s counsel believed Mr. penal- the death against imposition if he had credibility lost he have would Residual, “fingering,” doubt has ty. or impairment evidence mental presented “(1) actual, defined as reasonable been inconsis- be such evidence would because (2) crime; actual, any about doubt Here, claim. tent self-defense with was guilty defendant doubt that reasonable “[a]ny other testified that Mr. Freeman offense, opposed as to other capital aof one he took from the position” apart (8) offenses; degree of doubt about a small his incompatible” have been “would (1) (2), juror to cause the not or sufficient Bryan did not strategy that Mr. stage first execution) (by want foreclose at 89. Hr’g Evid. Tr. the crime. commit appear might new possibility Pignatelli, Re- the future.” Christina S. fact, Here, finding for a the rationale Saver, Capital 13 It’s a Doubt: sidual Life to constitute performance Freeman’s (inter- (2001) 307, 307-08 Journal Defense under of counsel assistance ineffective omitted). marks quotation nal Antwine: stronger much than is Strickland Thus, of the “residual Antwine, the utilization ineffec- counsel was deemed an effective form of strategy can be mental doubt” ordering subsequent tive for Garvey, Ag- P. Stephen mitigation. See determined might have evaluations Capital Mitigation gravation episode suffered from the defendant Think?, 98 Colum. Do Jurors What Cases: We, how- of the offense. the time (1998) (“ ‘[T]he best L.Rev. ever, as to what speculate need to do not can do to im- thing capital defendant have Bryan might of Mr. the evaluations a life receiving sen- his chances prove Bryan has suffered know Mr. said—we ... doubt about is raise tence several from serious defects ”). However, is no evidence there guilt.’ to suffer from that he continues years, and made use of such Freeman Thus, Free- I that Mr. would hold them. doubt about strategy or tried raise no phase “strategy” man’s guilt. client’s failure to at all—and that his “a careful Bryan’s mental “strategy” of Mr. A defined present evidence method,” stratagem.” or “a clever history plan under Strick- was deficient health Dictionary Collegiate Webster’s Merriam land. (10th ed.1997). Mr. Freeman might never have upon cast doubt used the “lingering” terms or “residual guilt. Instead, Mr. Freeman went to the doubt” during the sentencing hearing. .opposite extreme. Mr. Freeman admitted Mr. Freeman did not even use the term that Mr. Bryan “should not have killed” “doubt” at the hearing. Mr. Freeman ad- that he should not have committed this mitted he not was familiar the term “vile act.” Mr. Freeman thus erased “residual until doubt” the trial. after See doubt that might have weighed on the Hr’g Evid. Tr. at 106. Mr. Freeman never jury’s jurors conscience. If the had re- planned nor asserted a residual doubt de- tained any doubts, residual Mr. Freeman fense. not He was consciously aware of extinguished them. relying on a residual doubt at the The OCCA determined that it would not trial, sentencing and never asserted the guess second Mr. Freeman’s sentencing use of a residual doubt strategy until he phase strategy where,'“[ajccording to the deposed. instruction evidence, on mitigating [Mr.] There no testimony or reminder Bryan still appeared to claiming be actual given to jury during innocence,” Bryan State, 935 P.2d phase regarding Bryan’s Mr. potential in- 363 (Okla.Crim.App.1996), and effectively nocence. The concept of a residual doubt shielded Mr. performance Freeman’s from strategy makes sense when there is a scrutiny. Similarly, the district court de- identification, chance mistaken or when fended Mr. Freeman’s sentencing phase the guilt implicated, of others is such as in strategy and declared “Mr. Freeman’s de- the case where there is a codefendant. cision was correct or at least professionally (Testim. See Evid. Hr’g Tr. at 65 of Tim reasonable.” Dist. Ct. Order at 65. I Wilson); generally see Margery Malkin don’t understand how the OCCA and the Koosed, The Proposed Innocence Protec- district court could be so charitable when tion Act Won’tr-Unless it Also Curbs Mis- Mr. Freeman admitted that Mr. Bryan Eyewitness taken Identifications, 63 Ohio “killed” and committed a “vile act.” (2002) St. L.J. 313 n. 44 (suggesting It certainly increased use of is possible lingering that a lawyer doubt can theory when suggestive present the procedure identification elements of a defense without issue). knowing that there is a specific name for her strategy. can, Creative indeed, minds A pursue decision a lingering doubt devise strategies that others have reached strategy at the penalty phase, to the exclu- via different paths. believe, I however, sion of strategies, other should be granted that Mr. credit Freeman with deference, having wide especially if mitigating evi- upon relied a strategy doubt, of residual presented dence is that complements that where the evidence strategy. However, strongly suggests Freeman pre- he was sented no unaware such such a strategy even ex- suggesting any- thing that isted-and might where lessen his Bryan’s actions completely re- un- sponsibility for the dermined that offense or to defense is raise untenable. Mr. doubt about guilt.7 Mr. Free- Freeman’s performance cannot be con- man upon relied little, and reiterated strued so it if is “considered sound trial any, evidence from the guilt phase strategy.” Strickland, 466 U.S. at 7. When beautiful, asked about sentencing phase son, good accomplished preparation, Mr. Freeman testified great that when society by deal becoming a teacher.” he asked Mr. family Bryan, about Mr. Hr’g Evid. atTr. 88. Mr. Freeman elicited no they stated “that Bryan] [Mr. had been a testimony such sentencing phase. (internal is true here. Had the marks The same quotation 104 S.Ct. omitted). given more information about Mr. counsels been Strickland and citation legal strategies, mental health and plausible Bryan’s background, deference Wiggins, history,8 disarmament. See and the facts surround- treatment unilateral (in holding conviction, at 2537-38 would previous 123 S.Ct. which assis- ineffective demonstrated petitioner in- jury’s sensitivity to the heighten counsel, put that counsel noting disease, tance of organic of his grained nature case,” and con- mitigation a “half-hearted probability there is a reasonable that ‘strategic decision’ cluding that “the not have sentenced Mr. jury would all invoke to respondents state courts death, jury had the option because mitigat- of pursuit limited justify counsel’s to life of without post-hoc a more ing evidence resembles parole. that an counsel’s conduct

rationalization of mental put The not to forth decision their deliberations description of accurate be charac may evidence sometimes health sentencing”). prior to strategic. as See Cannon v. Gib terized (10th Cir.2001) son, 1253, 1277-78 (iv) the mental health Characterizing of sword” (noting “two-edged presence a two-edged sword evidence mit “substantial” presented where counsel defended Mr. Freeman’s The OCCA also and where mental health igating evidence evi- mental health not to decision “displaced have evidence would rather other evidence “[gjiven the dence because mitigating evi supplemented” than behavior, jury have could of violent dence, could not estab petitioner that such psychological problem of thought type this Atkins, 536 see also U.S. prejudice); lish for future violence.” propensity a indicated 320-21, 2242 that (recognizing 122 S.Ct. pro- Again, 935 P.2d Battenfield en may mental retardation evidence of There, analogy. the OCCA vides a useful finding of future dan hance likelihood of that, history of Mr. as to determined aggravator, noting gerousness use, drug psycholo- “[t]he Battenfield’s be “[mjentally may retarded defendants that Battenfield was gist’s conclusion meaningful give less able to assistance un- nothing does chemically dependent wit typically poor and are their counsel jury’s deter- our confidence dermine nesses, an may demeanor create and their continuing a that he constitutes mination of lack of remorse impression unwarranted (quot- society.” 236 F.3d at 1227 threat to crimes”). However, surely the their State, 1123, 953 P.2d v. Battenfield any time suggest that majority noted, does (Okla.Crim.App.1998)). 1127 We of miti presentation foregoes however, that evidence of Mr. Battenfield’s may be viewed gating evidence reliance, potential alcohol drug and of as evidence aggravator, such reliance, support might blunt for such treatment abuse, illness, of alcohol continuing aggrava- threat force upbringing, an abusive or evidence of at 1235. tor. id. See nothing strong for a court determine reasons that the 8. We note heard also involuntary drugs regarding voluntary or treat- can how administration whether forced drugs might anti-psychotic blunt ment with justified grounds [such these alternative be continuing aggravator. threat the force dangerousness to the individual's as related us, we are unable on the record before Based interests].” own Sell or to the individual’s necessity adminis- of the forced to discern the 2174, -, States, 123 S.Ct. -U.S. United drugs anti-psychotic as Na- such tration (2003). 197 L.Ed.2d "[tjhere vane, are often except to note that he is blanket protection Tomes, assured from re- Do, Jonathan P. Damned You if Maj. view of his effectiveness. Op. at Damned You Don’t: The Mitiga- Use if 1223. To do so would be to arm counsel tion Experts in Penalty Litigation, Death two-edged with a sword. (1997). 24 Am. J.Crim. L. I find it difficult to ascribe to Mr. Supreme Court’s most Freeman the fundamental presentation regarding direction act of seeking mercy in the same sentence mitigating evidence at sentencing demands that he “vile denounced act.” “precisely punishment because the provide Freeman failed to any individ- directly be related to the personal should ual portrayal Bryan’s life, of Mr. por- defendant,” culpability of the the jury trayal that might have testimony included must be allowed to consider all relevant being about his college graduate, a high mitigating Penry evidence. v. Lynaugh, teacher, school man who was married 302, 318, 327-28, 492 U.S. 109 S.Ct. began headaches, and who to suffer which (1989). 106 L.Ed.2d 256 In a case such as signaled the onset of his or- debilitating this, mitigating where the evidence that ganic brain damage. actually presented best, was scant at where counsel knew his Asking client would for mercy requires make attempt some poor witness his delusional because state to compassion, invoke sympathetic re- him precluded being from beg able to sponse jurors of the explain to those acts. remorse, mercy express or to and where See, e.g., Alfieri, Anthony V. Mitigation, the health evidence is well-docu- Mercy, and Delay: The Moral Politics of and long-standing, mented Mr. Freeman’s Abolitionists, Penalty Death 31 Harv. left performance jury the no reason even 325, (1996) C.R.-C.L. L.Rev. (“During possibility to consider as a penalty the or sentencing phase capital might not culpable be morally enough, as trials, lawyers present mitigating evidence the result of his involuntarily adduced or- of client psycho-social deprivation to the disorder, ganic brain for the death penalty. jury in an to explain specific attempt vio- lent acts of and, thus, lawbreaking criminal (iv) Post “mercy” hoc approach mercy.”); invite Stephen P. Garvey, supra, The majority characterizes Mr. Free- (“On 98 Colum. L.Rev. at 1539 the side of sentencing man’s strategy as a “mercy ap- mitigation, jurors tend to focus most proach.” Maj. Op. 1224. Again, I do factors that diminish the indi- defendant’s not think it is appropriate for the court to vidual responsibility for his actions. They supply “post hoc rationalization” for Mr. attach significant mitigating potential Freeman. Wiggins, 123 S.Ct. at 2537-38 facts and circumstances that show dimin- (rejecting state courts’ characterization of ished mental capacity, such as mental dis- defense counsel’s “halfhearted mitigation (em- turbance at the time of the offense” decision”). approach case” “strategic as a added)); (“[Jurors] phasis id. show little Even if beleaguered presentation at mercy to defendants who show no re- can sentencing be deemed as seeking mer- morse.”). The majority’s holding essential- cy, though, presentation the was unreason- ly insulates sentencing phase counsel’s ably matter, flawed. “As a practical performance by supplying yet counsel with probably defendant has little or no chance justification another for a avoiding nonexistent death sentence unless strategy, not post unlike the gives attempt defense counsel hoc jury something explain away counter both the guilt-af- horror of the Freeman’s crime limited prosecu- firming information the performance by calling tion has introduced about the defendant.” it a “residual strategy. doubt” testimony from his We have attempt his disorder. Freeman made no Because “particularized attorneys regarding his illness. previous provide particularized crime and have Mr. own delusions and of the We nature individual defen- characteristics and his refusal to admit fantastic stories dant,” 96 S.Ct. Gregg, 428 U.S. mentally. afflicted And he has ever been applied that he agree I cannot that his condition we have the observation sentencing phase. at all at one grave expert so apparently “place[d] question it into serious stated Prejudice B. trial, well competency stand as his dissent, that Mr. panel in the As stated he in the crimes for which legal culpability resulted deficient performance Freeman’s Tr. at 95. charged.” Hr’g Evid. prejudice is obvious. in fundamental evidence compelling extensive J., dissenting). (Henry, at 1185 276 F.3d history of mental illness of Mr. is different both penalty death “[T]he that the probability creates a reasonable Neill v. finality.” its Gib severity its miti- jury would concluded have Cir.1998). (10th son, continuing gating outweighed the society, view of point “From the also be aggravator might threat the life of sovereign taking action of mitigating fight past in a as to viewed dramatically ... citizens differs one of its Battenfield, 236 violent behavior. See legitimate state action.” any other from (concluding mitigat- that had F.3d at 1235 a defen difference exists when “[A] Id. evidence, defendant’s which included cases, ‘In life is at stake. death dant’s drugs and alcohol and mental reliance on effect regard prejudicial to the doubts evidence, presented jury, to health been favor of error should be resolved in of trial probability that the there was reasonable ” 153 Reynolds, v. Moore accused.’ given not have jury would defendant have Cir.1998) (10th J., 1086, 1118 (Brorby, F.3d Antwine, 54 F.3d at penalty); the death Andres United dissenting) (quoting v. presentation that of defen- (“holding 1368 740, 752, 880, States, 68 92 333 U.S. S.Ct. alter the impairment would dant’s (1948)). possible “It is neither L.Ed. 1055 mitigating cir- of aggravating balance person for a to nor whom desirable penalty phase cumstances in judg important [such] state entrusts enough ... to create a reasonable trial v. Barclay in a vacuum.” ment to decide jury would sen- probability that 3418, Florida, 939, 950, 103 463 U.S. S.Ct. death”). to [Mr.] tence Antwine (1983). 1134 77 L.Ed.2d al- materially have This evidence could “has the mitigating evidence Psychiatric aggravating miti- tered the balance evidentiary totally change to potential underlying jury’s sen- gating factors F.2d Dugger, Middleton v. 849 picture.” present tencing The failure decision. (11th Cir.1988); 491, Stephens see also 495 jury of a “vehi- deprived the the evidence Cir.1988) (11th F.2d 653 Kemp, 846 moral its ‘reasoned re- expressing ” cle for where (stating “prejudice that clear” substantial evidence Mr. to the sponse’ that attorney failed to it rendered mental illnesses when Bryan’s hospital). time in mental spent defendant Penry, 492 at sentencing decision. U.S. its Here, testimony psychi- from we have two Accordingly, there is 109 S.Ct. and his as to Mr. delusions atrists jury, or that probability disorder, a substantial and a scan organic brain SPECT determined juror, would have at least one verify these clinical observations. We out- mitigating circumstances documenting that records hospitalization have weighed the aggravating sistency circumstances. guilt between the and sentencing Wiggins, 123 S.Ct. 2543 (holding phases, jury Mr. Freeman assured the prejudice had been established where client’s and added his own con- presented only significant one mit- demnation Mr. act. factor, that, noting igating “[h]ad In its recent and historic decision that been able to place petitioner’s excruciating declared mentally the execution of retard- history life on the mitigating side of the unconstitutional, ed defendants the Su- scale, there is a probability reasonable preme Court observed that juror at least one would have struck a Mentally persons retarded frequently balance”). different per- Freeman’s “ know the difference right between formance ‘so undermined the proper wrong and are competent to stand trial. functioning process adversarial however, of their impairments, Because [penalty phase of] of the trial cannot by they definition have diminished ca- be relied on having produced just ” pacities to understand and process infor- Battenfield, result.’ 236 F.3d at 1235 mation, communicate, to abstract Strickland, (quoting U.S. from 2052). mistakes and learn experi- from S.Ct. ence, engage logical reasoning, to III. CONCLUSION control impulses, and to understand the The majority’s revolves conclusion reactions of others. There is no evi- around Supreme Court’s statement they dence that are more likely en- “ ‘[t]he reasonableness of counsel’s gage others, criminal conduct than may actions be determined or substantially but there is abundant evidence that they influenced the defendant’s own state often on impulse act rather than pursu- ment or actions. Counsel’s action are usu premeditated ant to plan, and that in based, ally quite properly, on informed group settings they are followers rather strategic by choices made the defendant than leaders. Their deficiencies do and on supplied by information the defen warrant an exemption from criminal Maj. Op. dant.’” at (quoting 1219-20 sanctions, they but do diminish their Strickland, 691, 104 2052) 466 U.S. at S.Ct. personal culpability. added). (emphasis I agree cannot simply Atkins, 536 U.S. at 122 S.Ct. 2242 that Mr. made an informed strate (footnotes omitted). The OCCA has ac- gic choice when his counsel decided to knowledged the direction of the Supreme forego presentation mental defect capital Court’s punishment jurisprudence stage. Mr. and concluded that mentally “while retard- Freeman did not ever what know use he ed are capable individuals of committing have could made of the mental health testi Oklahoma, Atkins, crimes in in light of mony. He claims to have felt constrained those flt within holding who its are no by wishes of his family client’s and by longer eligible for the death penalty.” his client to submerge any indication of Murphy, P.3d at 567. The OCCA has mental distress in Bryan family, and further acknowledged Supreme rather than purpose discuss the “ holding Court’s sentencing phases ‘[c]onstruing and of mitigating evi applying Eighth client, Amendment generally dence with his in the he limited light of evolving his discussion our merely decency, standards of informing his client that he we therefore would be conclude that such testifying punish- minutes later. finally, And in an de ment is inconceivable excessive and that the Constitution cision that completely destroyed any places con- a substantive restriction on the mentally to take the life of power State’s ” WESTON; David Rex Montis W. Silver (quoting Id. at n. 15 offender.’ retarded 2242). Company, Atkins, Cross-Counterclaimants- S.Ct. 536 U.S. Cross-Defendants-Appellants, “compe- that others too can be I believe yet from to stand trial and suffer tent health sentenc- problems HARMATZ; Moses; Samuel H.E. Ber have had an judge should Hodowski; Waugh; nard Chris A.C. Blanco, 943 to consider.” opportunity Donahey; Nejedly; Estate of R.E. Or, as even Mr. Freeman F.2d at 1503. Duncan; Weinberg, Grace V. Elliott understood, whether Mr. have should Defendants-Appellees. not, clearly, he was Bryan was “insane” or Murphy colorfully as both Drs. Smith No. 01-4232. concluded, I “crazy.” hope that the State Appeals, United States Court of will reflect on these matters of Oklahoma Tenth Circuit. settling by this case either and consider sentencing phase where agreeing to a new July jury can evaluate this fairly composed its compelling renewing evidence or possibili- with no imprisonment

offer of life victory on

ty parole. prosecution’s obligation not eliminate its

appeal does conscientiously basis to review ongoing prosecutorial discre-

whether to exercise

tion.9 Bryan’s guilt; quarrel

I do not brain dam-

his crime and his irreversible lifelong

age justify incarceration But our does not

treatment. Constitution man death

permit us to sentence this consid- allowing jury

without at least mental state.

er evidence of diseased judgment

I would therefore reverse in- court and remand with

of the district grant that the district court

structions sentence,

writ as to Mr. death court conduct-

subject to the state district trial. a new Weinstein, 2003) (discussing See, e.g., Henry Appeal United States Ramirez- California Cir.2003) (9th Lost, dissenting opinion 1160-76 Lopez, Yet Freedom Won: A J., prosecutors dropped (Kozinski, persuasive was so dissenting), opinion withdrawn immigrant smug- (2003)). case a man dismissed, that convicted F.3d 829 appeal Times, (Apr. L.A. Metro Section gling, notes missions, portion we vacate that of the personal Similarly, checks. in this Bryan’s claim panel opinion addressing case, Bryan possessed several handwritten counsel, assistance of trial see ineffective promissory agreements notes and in which 1175-79, id. at and affirm the denial purportedly agreed Inabel she owed him for the habeas relief reasons set out be- millions of dollars as result of an invest- low. do not reconsider as an en banc We ment in his failed businesses. A handwrit- panel’s court the denial of habeas relief ing expert testified wrote the Bryan’s evidence-sufficiency, compe- as to agreements and forged Inabel’s signature. tency, or conflict of interest claims. See Police also in Bryan’s found possession 1166-68, 1168-72, id. at 1172-75. Accord- several of personal Inabel’s checks. Ac- all ingly, remaining portions panel cording to the expert, Bryan had forged opinion remain undisturbed. signature Inabel’s on one of the checks and had signed made four others by Inabel

Notes

For notes insanity during not to mount an defense affirma- tiary hearing, responded Freeman trial, opin- not the phase the following cross-examination tively experts.19 to the ions the medical Nor can it of thought asserted that Freeman that he you saw no use for the be question: “So Singletary, they say Leroy insane 148 F.3d where could was or he Provenzano Cf. 1998) right? (11th incompetent, (“Inquiries into Cir. part Freeman: That was a of it. The other challenged strategic or tactical decisions part my options want to cut was that I didn’t involve both ineffective assistance of counsel attorney district and I didn’t want the legal component. ques- a factual and defense, might I that know that not raise attorney’s actions were tion of whether because I wanted them to be concerned about strategic actually product the of a tactical or things be other that I could create for them to contrast, By an issue of fact.... decision is concerned with. strategic question the or tacti- the of whether you experts’ So saw no use for the Counsel: enough cal decision is reasonable to fall with- testimony, except prove mental either in- range competence professional the wide incompetence, right? sanity or fact....”). is an issue of law not one of right. Freeman: That’s during testified cross-examina- 18. Freeman testified on cross-examination as 19.Freeman as follows: tion follows: Now, Leroy ... could have Counsel: Now, you on direct [indicated] Counsel: (cid:127)put organic public on the brain defenders preparation the ... that it was in the final damage health evi- evidence and the mental you they Leroy’s parents told trial that first Leroy family, the dence at no cost to or to he was didn’t think insane? right? during at some time Freeman: It was right. Freeman: That’s preparation, trial time than closer to closer to hired.... the time I was try your And was to Counsel: saying that Counsel: Would I be correct by basically create a reasonable doubt attack- adamantly parents vociferously Leroy’s testimony credibility Leroy? anything wrong with denied there was State’s witnesses? Yes, they did. You’d be correct Freeman: Yes, sir. Freeman: saying that. by you guided were that Counsel: And you And resolved to create that Counsel: judgment judgment than the rather using any reasonable doubt without doctors, you? weren’t experts? health what, mental they No. No. No matter Freeman: Yes, Freeman: sir. Biyan doctors had said that stated—the incompetent trial or was to stand was neither Okay. you Counsel: And allowed the mental at the time and could form the not insane stay list they health witnesses to on the witness said would not intent and so forth. What with, right? you finally that went to trial at all. have been relevant Yes, any Okay. sir. if mental health Freeman: Counsel: And legal- going say he was you hopes expert was not Counsel: And did that in legally incompetent, he something ly he was maybe they up insane or would come ethically prohibited presenting from propriety hension as of adducing mental health insanity evidence short of an penalty health evidence diagnosis during penalty Instead, phase of the phase of the trial. taken in con- Instead, trial. the testimony set out above text, testimony Freeman’s reflects the fact demonstrates a concern with two consider?- that he support- had no medical evidence First, ations. Freeman was concerned ing guilt-phase insanity defense and that testimony by either Dr. or Dr. Smith any testimony he was fearful that by Dr. Murphy might play into the prosecution’s Murphy during stage the second would do case that was a continuing threat to good.20 more harm than Gibson, society. See Cannon v. whole, Accordingly, when viewed aas (10th Cir.2001) (noting 1277-78 testimony evidentiary hearing mental health evidence like that at issue simply support Bryan’s does not assertion here has the possibility being a “two- sword”).21 that Freeman Second, suffered under a misappre- edged Freeman was going you, wasn’t to be of benefit to I could not testimony demonstrate medical

Case Details

Case Name: Robert Leroy Bryan v. Mike Mullin, Warden, Oklahoma State Penitentiary

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jul 21, 2003

Citation: 335 F.3d 1207

Docket Number: 00-6090

Court Abbreviation: 10th Cir.