Sutton v. Bell

SUTTON, Petitioner- T. Nicholas

Appellant, BELL, Respondent-Appellee.

Ricky

No. 03-5058. Appeals, Court

United States

Sixth Circuit. March 2009.

Argued: 8, 2011. Filed: June

Decided En Banc Rehearing

Rehearing and Aug. 2011.*

Dеnied * grant rehearing reasons stated in his dissent. Judge Martin would Inc., Knoxville, Tennessee, Ten-

Eastern Whalen, nessee, F. Appellant. Joseph General, Attorney the Tennessee Office of Nashville, Tennessee, Appellee. for MARTIN, BOGGS, and Before: DAUGHTREY, Judges. Circuit BOGGS, J., of the opinion delivered the 765-67), DAUGHTREY, (pp. J. court. concurring separate opinion delivered reasoning and the result of the MARTIN, 767-71), majority. (pp. J. dissenting opinion. separate delivered a OPINION BOGGS, Judge. Circuit pris- T. a Tennessee Nicholas Sutton is murdering a oner sentenced to death for prisoner. petitions He for a writ fellow trial corpus grounds on the that his habeas constitutionally counsel was ineffective. court’s denial of affirm the district We relief. habeas Background I. 15, 1985, January Estep, Carl On County Re- Morgan inmate at Tennessee’s Facility, was murdered gional Correctional thirty-eight cell. He was stabbed his in the chest and neck with two times knives, “shanks,” which homemade were body. wounds found near his Defensive arms, his and as well as blood on on hands bunk, walls, body, the and the indicated struggle! that there had been Street, Sutton, Thomas and Charles Ferrell, charged Estep’s were mur- A. Federal Freeman Stephen ARGUED: trial, Tennessee, At primary der. Defender Serviсes of Eastern Inc., Knoxville, Tennessee, testimony of three against Sutton was the Appellant. for Meadows, inmates, Estel Whalen, Harold Joseph F. of the Tennessee other Office Nashville, Tennessee, Green, tes- General, Cary Scoggins. and Meadows Attorney body shortly A. tified before Appellee. Stephen ON BRIEF: discovered, enter Ferrell, he saw Sutton and Street Federal Defender Services stance; Estep cell and heard scream. He that his counsel Estep’s failed to before, days adequately investigate present that two also claimed miti- discussion, Estep “physical” gating had a evidence of the amount of violence prisons held a knife to Es- Tennessee during which Sutton his troubled that he also tep’s background. throat. Green testified go and another inmate into saw Sutton II. Standard of Review Estep and that he heard

Estep’s cell Scog- inside. screaming while Sutton was ineffective-assistance Estep gins explained governed claims are by the familiar stan deal, feuding and that drug been over dard of Washington, Strickland v. 466 kill Estep had threatened to Sutton. 668, 2052, U.S. 104 S.Ct. 80 L.Ed.2d 674 Sutton, Scoggins also testified that he saw (1984). He “must that rep show counsel’s Street, cell, Estеp’s and Freeman enter objective resentation fell below an stan through the cell-door and he watched dard of and “that reasonableness” there is repeatedly window as Sutton stabbed Es- a probability reasonable for but coun tep. errors, unprofessional sel’s the result of proceeding would have been different.” convicted Sutton Street 688, 694, Id. at 104 S.Ct. 2052. Given the acquitted Freeman. Sutton was sen but prejudice requirement, “counsel cannot be statutory to death based on three tenced ineffective for a failure to raise an issue (1) aggravating circumstances: he had Mitchell, that lacks merit.” Greer v. 264 previously been convicted of a violent felo (6th Cir.2001). 663, F.3d 676 (2) murder; ny, first-degree he was incar murder; Estep’s cerated at the time of All adjudi of Sutton’s claims were (3) “heinous, Estep’s murder was atro cated on the merits the Tennessee state cious, or cruel.” See Tenn.Code Ann. postconviction courts on review. There (8) (1986). 39-2-203(i)(2), (5), § The Ten fore, may grant we not the writ unless the Supreme nessee Court affirmed con to, state court contrary decision “was appeal, viction and sentence on direct State application оf, involved an unreasonable Sutton, (Tenn.1988), 761 S.W.2d 763 law, clearly established Federal as deter Appeals the Tennessee Court of Criminal Court,” Supreme mined or “was rejected petition postconvic for based on unreasonable determination of State, relief, tion Sutton v. 1999 WL light the facts in presented the evidence 1999). 25, (Tenn.Crim.App. 423005 June proceeding.” the State court 28 U.S.C. 2254(d). appeals adjudication § from the district An contrary court’s if, denial of his for a petition clearly writ habeas established example, law for corpus. He has received a certificate of “state court applies rule that contradicts appealability on four governing ineffective-assistance- law in [Supreme set forth (1) of-counsel claims: that his counsel Taylor, Court] cases.” Williams v. 529 object 362, 405-06, aspects 1495, failed to to two of courtroom U.S. 120 S.Ct. (2) (2000). security during guilt phase; that L.Ed.2d 389 A state court decision object if, his counsel failed to in- example, three is unreasonable “the state prosecutorial during stances of misconduct court identifies the governing legal correct (3) guilt penalty phases; rule ... unreasonably applies it to the objeсt penalty- counsel failed to to the particular prisoner’s facts “heinous, 407, phase jury instructions on the case.” Id. at 1495. The S.Ct. atrocious, application “objectively or cruel” circum- must be unreason- 409-10, four “spectacle from the Id. at dice resulted

able,” merely incorrect. quietly sit officers armed] [uniformed 1495. S.Ct. defendants); v. Hur

ting” behind the Bell (6th Cir.2004) Security Trial Fed.Appx. III. 16-17 ley, 97 visibly shackling the defen (noting claim is that his first which, presence unlike dant — constitutionally ineffective for counsel was “inherently guards, prejudicial” under objections under Hol failing to raise two justified he was ac Flynn because —was “prac trial prohibits Flynn, which brook guard during prison attacking cused of the defendant with “prejudice” tices” Missouri, riot); see also Deck v. cause.” 475 U.S. out “sufficient 622, 632, 2007, 161 L.Ed.2d 953 125 S.Ct. (1986). 1340, L.Ed.2d 525 give “the need to trial (recognizing that his counsel should argues He first making latitude in individualized se courts or at objected conspicuous, to “the determinations”); ‍‌‌‌‌‌​‌‌​‌​​​‌​​​​​‌​‌‌​‌‌‌‌‌​​​‌​​​​​‌​​‌​​​​‌​‍curity United States v. noticeable, of’ ten uni deployment least (6th Cir.1991) F.2d Barger, 931 courtroom,1 in the seven guards formed (“[T]he security relating to a degree of armed, they suggest because were whom judge’s dis [trial] defendant is within that or alarm” he was ed “official concern cretion.”). culpable,” id. at “particularly dangerous 569, 106 S.Ct. 1340. also contends that his coun Flynn objection to sel should have raised reasonably re- appellate court The state incident.” Be what he calls “shanks underlying jected this claim because introducing weapons the murder into fore guards’ presence The Flynn claim failed. evidence, placed them on prosecutor as the trial likely prejudice: caused little table, the defense within reach of the de pro- judge during postconviction testified fendants, inspection by for counsel. Sut ceedings, they overly conspicu- were “not jerked away counsel from him in fear ton’s they spaced were out ous” because guards weapons; and the reached for their very full courtroom—four were behind conflicting testimony over whether there is table, jury, was next to the defense one any actually Although the were drawn. balcony, in the and one was two were were moved to the state’s table for shanks at each of the courtroom’s three posted incident, inspection without further judge trial agree doors. And we with the guards’ that his counsel’s and the claims security in- lеgitimate that concerns very suggested reactions that he was dan violently trying volved in three inmates “prejudicial therefore so gerous and were inmate, a fourth where the de- murdering unacceptable an threat pose [his] as to wearing upper-body were not re- fendants trial,” Flynn, a fair right to U.S. testify- other inmates were straints and six 572, 106 1340. S.Ct. witnesses, “sufficient cause” for was 571, rejected any Flynn, again 475 U.S. at The state court prejudice. See claim the un- (holding that “the ineffective-assistance because 106 S.Ct. 1340 State’s decision custody derlying Flynn maintain over defendants claim failed. This need to contrary to or an unreasonable flight bail” as risks was not who had been denied clearly Supreme established preju- application “sufficient cause” for whatever was (ex- plainclothes Flynn, U.S. at 106 S.Ct. 1340 1. We not consider need guards spectator seating in the area or the security plaining "the of identifiable use heavily-armed guards outside the courtroom defendants). prejudice officers” can jury. they to the See because were not visible See, holdings e.g., stitutional error. United States [the “[n]o law because Court (6th Serio, required court] 440 F.2d 830-31 Supreme] [statе Court Cir. 1971) Flynn cases, of ... to” counsel’s apply the test on (collecting appeal, direct reactions, Carey v. Musla- guards’ requests for mistrial based on about 75-77, din, S.Ct. attacks); 549 U.S. courtroom outbursts or Braswell (2006). Musladin, In Su- (5th L.Ed.2d 482 States, 600-02 United Flynn’s application preme Court held Cir.1952) (holding appeal on direct conduct” “private-actor[s’] courtroom judge improperly grant trial refused to law, question under its case open mistrial after two of the defendants vio application court’s and therefore a state lently attacked a United States Marshal nei- Flynn spectators’ conduct could be forcefully and were subdued front of the contrary ap- nor an unreasonable ther jury).2 mandate, lack of plus a textual Flynn. Ibid. Sutton’s counsel plication of predating Flynn the existence of doctrine actor, at least for these private was a stringently more evaluates events say cannot purposes, and therefore we incident, such as the shanks leads us to court’s decision that his reaction did least, Flynn’s applica conclude at the improper. Flynn not cause error was See bility guards’ open to the reaction is an ibid. Therefore, question. say cannot we Flynn’s guards’ to the reac applicability improperly applied Flynn the state court Musladin similarly Musladin, tion is uncertain. As guards’ to the reactions. See noted, and its related case law focus Flynn 77, 127 S.Ct. 649. exclusively sponsored practices,” on “state 75-77, add (emphasis

id. at IV. Prosecutorial Misconduct ed); security’s re they do not address next claim that his coun to, outbursts or at sponse e.g., courtroom object sel failed to to three in statements 567-71, Flynn, tacks. 475 U.S. at See First, prosecutor’s closing arguments. (discussing “practices” and S.Ct. 1340 argues that his counsel should have presence as the “procedures” such objected prosecutor’s guilt-phase to Williams, guards); Estelle v. 425 U.S. suggesting comment that Sutton was 503-04, 48 L.Ed.2d 126 S.Ct. he for the guilty because was arrested (1976) (addressing “practice” “pro and murder: requiring cedure” of defendants to wear Now, your for a use common sense here Allen, clothes); prison Illinois up moment. Who was locked immedi- 337, 340, 25 L.Ed.2d 353 S.Ct. body ately after this was found and the binding gagging (addressing the defendants). very They first information received? Furthermore, courts have right you over there. Do sitting are long recognized that forceful reactions said, prison think [the аuthorities] “Oh may outbursts or attacks re courtroom see, here, man got let’s we a dead lock trial even where there was quire new Street, up Sutton and Freeman.” Do response cause” for the “sufficient —and imply any you a con- believe that? Flynn thus where would not resulting prosecutor's prejudiced defen- any prejudice from actions 2. We note that dant), initially properly analyzed since the incident stemmed incident was shanks prosecutor's claim prosecutorial from the actions.. This through Sutton’s misconduct claim, Beverly, rejected by on direct was the state courts see United States below, (6th Cir.2004) (noting appeal and the district court that one fac- flagrance analysis not raised before us. tor is whether jurors, accept want to you, noted Do as rightly court appellate The state person expert; kind of as an as someone improper, was this comment you way things, prejudiced going was not who is to tell that Sutton concluded are, object.3 This normally failure to not but should be counsel’s from this Any prejudice system? key; Because that is the prison was reasonable. are, factual only necessarily things affected how but how comment However, of his factual the evidence guilt. things you willing should be.... Are inmate- strong: although the guilt prison system was ... accept the kind testimony contradictory you ought witnesses’ think that he seems to matters, it some was consis- and weak on apparently ... he does not have? And persuasive on Sutton’s involve- tent and put any significance value or to the rules Estep’s motive for murder. ment society all have and the laws we Therefore, think we do not there is rea- to live under.... What was last objection that an probability sonable asked, “Well, who is thing he said when would have led to Sutton’s this comment supposed prisons?” to run the He knew acquittal. you that the try better than to and tell should, so what did he come prisoners Second, challenges his coun up “By the rules.” with? Warden’s object prosecutor’s failure to to the sel’s you all And know what rules War- discussion of inmate Carl Craf guilt-phase you den has. The same rules that and I testimony. Crafton testified as a de ton’s have; I you the same laws that life, prison describing on expert fense have. then endemic in the Tennessee violence prison system overcrowding because of com The state court concluded this order, guards’ inability keep as well improper prejudi ment but not was also the culture and incentives this created cial. This was because Sutton’s reasonable particular, explained In he prisoners. theory preemptive-strike self-defense that once an inmate’s life had been threat failed as matter state law. See State ened, “his is to make the defense!] (Tenn. 870, v. Leaphart, 673 S.W.2d move.” relied on tes offensive Sutton this that Crim.App.1983) (holding the lack of that, timony argue Estep, if he kill did preemptive precludes imminent threat Estep he did so self defense because self-defense). killing qualifying from as threatened to kill him. Third, Sutton contends that his prosecutor claims that the “delib- objected prose counsel have to the erately jury by claiming that should misled prisons penalty-phase future-dangerous advocated violent where cutor’s Crafton argument: inmates lived their own rules”: ness lower than a one. We “[did] [the 3. The slate court find that come is reasonable give the of the doubt” affected the verdict.” This conclu- state court "benefit comment] interpreted ways: applied sion can be two that and conclude that the correct stan- Visciotti, See Woodford change did not that dard. 537 U.S. comment the outcome or all, i.e., (2002) it had no effect at that there is no 123 S.Ct. 154 L.Ed.2d 279 curiam) changed (per (noting chance that the out- that federal courts comment meaning improper: "presum[e] that know and come. The former is should state courts law”). prejudice Regardless, Strickland requires a "reason- follow the we would re- probability” changing ject de able the outcome. Sutton’s claim even under novo review However, interpretation proper the latter is a for the same reasons that make the state one, probability changing decision reasonable. as no the out- court's called, person already group, we do? If a as a and that ‘Capital What do already serving penitentiary, in the time get point Punishment.’ When we to the [rjobbery or a for life sentence [a]rmed everything that we have done possible to [mjurder, step? what is the next protect ourselves and there is nothing days chaining people to a wall in The else we can reasonably do that would dungeon gone are because that protect ourselves people frоm like Nich- rights; violate their it would be would olas Todd Sutton ... then we have the punishment. inhuman cruel and You right of self-defense and that is where ship cannot them off to some island so capital punishment in. comes they they are all themselves. If improper These statements were not as going penitentiary are to be in that they a matter of federal law: were not they going are to be in contact with inflammatory, and future-dangerousness yourselves ask people, other then arguments permissible are under federal you they to tell what ask the Defense Texas, law, 262, 275, Jurek 428 U.S. you people do with in that would (1976). S.Ct. 49 L.Ed.2d 929 [One situation.... talked about witness] court they concluded that were im- them; you students and how deal with proper they under state law because sug- you give them a chance and another gested jury deterrence, consider Well, I chance.... submit line was which is not Defendants, any statutory ag- relevant to you drawn on these before Nonetheless, them, gravating factor. the court they ever heard of when were prejudiced,4 to the decided that Sutton was not penitentiary sent to serve their jurors, you, given time. And what are now which was reasonable the over- do, going penitentia- send them to whelming circumstances. ry? you going Furthermore, What are to do to Nich- any impropriety under state Sutton, give him a olas life sentence? law was harmless because we conclude prevent being Will that there another the prior-violent-felony prison- Estep? Carl statutory murder aggravators allowed the prosecutor’s argument to consider the that only prevent death will from suggest you that persons [W]e who killing again, and that death is proper degree are armed robbers and first mur- punishment for someone who killed while already derers are conditioned to kill in prison for murder. Brown v. Sand- people. say you this ... that all We Cf. ers, 212, 220, you told all of us in the beginning, and L.Ed.2d it, (explaining cap- you obviously were sincere about cases, ital the consideration sentencing in of you right person believed the of a improper factors that are only under state law absolutely self-defense when neces- error, holding is constitutional but sary, you know what the law is state, such error is if legislature about that. The of this harmless the federal court other, legislature every of determines that proper as well as the almost factors allow state, given other has all of us consideration of right “the same facts and cir- cumstances”).5 self-defense; just personally, of not again reject 4. The court not find that the correct We "d[id] standard. would also this claim de novo. jury's explained decision was affected.” As in 3, grant footnote we the state court the benefit is, reasoning admittedly, 5. in This tension presume applied of the doubt and that it sug- with the state court's decision because it since he was family who known Sutton Jury Instructions Penalty Phase V. him regular- and who visited high in school claim third ineffectiveness testimony This was intended ly prison. in argued that his counsel should is that that he humanize Sutton and to show on the jury instructions penalty-phase having relationships normal capable atrocious, “heinous, aggravating and cruel” law-abiding citizens. with unconstitutionally were circumstance that, preju argues claim for lack first addi- vague. This fails testimony Court re about the vio- Supreme The tion to Crafton’s dice. Tennessee jury’s finding prisons, conditions coun- and affirmed the lent Tennessee viewed presented testimony of Because should have aggravator appeal. on direct sel TDOC corrections officer and particular is no “affirmative indication there Bradley, from documents Grubbs v. fed- contrary, presume applied must that it” we 1980 to evalu- well-established, nar eral lawsuit from permissible, its the violent in Tennessee ated conditions rowing aggravator, construction of the ‍‌‌‌‌‌​‌‌​‌​​​‌​​​​​‌​‌‌​‌‌‌‌‌​​​‌​​​​​‌​​‌​​​​‌​‍see, e.g., F.Supp. prisons, jury in the thereby “cur[ing] any error (M.D.Tenn.1982). court reason- Cone, The state Bell v. U.S. instruction.” ably rejected preju- this claim for lack of 453-56, L.Ed.2d 881 curiam) The additional evidence would have dice. an identical (per (rejecting cumulative and added little or no been “heinous, atro challenge to Tennessee’s value, particularly extra since cious, and cruel” for this rea aggravator unlikely it is that the did we think Bell, son); Payne also 418 F.3d see prison was violent believe Crafton Cir.2005) (6th (same). 653-60 given his status as a court-sanctioned ex- crime at pert and nature of the issue. Mitigating VI. Evidence Mitchell, (6th Hill v. See final counsel claim is that his Cir.2005) (“[I]n preju- order to establish adequately investigate pres- failed dice, peti- the new evidence that a habeas sentencing mitigation At the ent evidence. presents tioner must differ in a substantial testi- hearing, presented counsel additional strength subject matter— way —in mony support from Crafton to statuto- actually presented from the evidence ry mitigating that Sutton circumstance sentencing.”). actions acting was under belief that his morally justified. pre- also also that his argues were Counsel trial Burchetts, a testimony pre- sented the of the counsel should have discovered and 2254(e)(1): prosecutor's argu § gests argument prosecutor's that the was rel- U.S.C. proper evant factors. incapacitation theory pun ment reflects argument ishment, elements, state court's conclusion that some retributive any proper not relevant to factors—and argument nothing suggests death improper thus was based on its anyone —was will deter Sutton or else. Since the argument assertion that the was deterrence- prior-violent-felony aggra prison-murder and based, argu- analysis rather than an of the suggest prosecutor’s line vators course, We, accept the ment’s substance. concern, argument is a relevant we think court's that deterrence determination understood, properly prosecutor's arguments improper are under state law. argument improper was not at all. See State However, we think that the state court’s clas- Irick, 121, (Tenn.1988) 762 S.W.2d argument fundamentally a sification of the (explaining sentencing arguments are determination, factual and we note proper they under law if are rele Tennessee transcript convincing is clear and factor). statutory aggravating to a vant wrong, this see 28 classification was age essentially by troubled back- of 2. He was raised of his sented evidence presented at This evidence was ground. paternal grandmother, his who was a by Dr. proceedings Gillian postconviction school teacher.

Blah’, psychologist clinical who a licensed has an drug extensive histo- [Sutton] appellate The state evaluated Sutton. adolescent, ry. By the time he was an testimony: court summarized her using variety he a wide drugs. was ... testified was [Blair] [Sutton] drugs admitted the he had dealt [He] unstable, in an often violent and raised well, extensively provide as a means threatening supervi- home life where the obtaining drugs pro- his own and to inadequate. were He sion and structure money. vide himself some lack His a exposed was child intermittent internal controls was exacerbated his father, explosivе violence from his who drug use. seriously mentally hospi- ill and was was extensively psychiatric hospi-

talized at Eventually, juvenile prob- [Sutton’s] 1973, In tal between 1969to 1976. there drug being lems and abuse led to him restraining against order the fa- was a sent to Knoxville live his aunt ther after he held his mother and [Sut- high and attend school. While he failed and had a standoff with gun point ton] classes, grade. some he did not fail a contrast, In when police. [Sutton’s] eventually dropped high He out of violent, being father was not he would during grade. school the eleventh In overindulgent encourage inap- be received his [Sutton] GED at a In propriate behavior. [Sutton’s] community college. At age [he] hypothermia expo- father died of joined Navy from November to De- The death certificate indicated sure. cember of 1978. He received honor- contributing that alcohol abuse was a however, discharge, able the records in- factor his death. adjust that he was dicate unable From the time of his incarceration at military life. was [Sutton] described as age threatening environment being training overwhelmed endured as a [Sutton] child was adjust pres- unable to to the emotional prison offered present TDOC. records, According sure. to the [his] or predictability. little structure [He] authority respectful. attitude toward was hyper-vigilant, had to be and this was Thereafter, [Sutton] incarcerated at by the fact that a exacerbated number age of 18 and has been [for murder] weapons inmates had access to and that continually incarcerated since that time. pris- there were a number of assaults in medical records were limit- [Sutton’s] on. eye age ed. He was shot in the at the child, multiple As suffered [Sutton] injuries 9. He had several head which Specifically, abandonments losses. lead to a [sic] loss of consciousness. mother abandoned him before the motorcycle One such incident involved one, age essentially he lost his father accident when was 12. [Sutton] [He] illness, ultimately to mental he suf- sporting age also suffered accidents at Moreover, fered the death of his father. addition, In 13 and 15. was shot in [he] the circumstances of his father’s death age the knee at the of 16. There is no explained to him. [He] were never also having any psychiatric record of grandfather [Sutton] suffered the loss of his history entering or treatment bеfore age separation of 7 or and the grandparents from his maternal at the TDOC. alienated, self- Blair, suspicious, als tend to be the TDOC records

According to narcissistic, imma- indulgent, a safe and struc- with kept if indicated environment, ag- ture, is well-ad- somewhat manipulative, [Sutton] tured management prob- no justed, presents agreed Blair gressive behaviors. Blair lems, violent. admitted and is not personal- diagnosis of antisocial previous trial, profes- of the her that at the time ity disorder. predict it was difficult to felt that sion of a different sentence probability key and that the dangerousness future a func- presented been had this evidence history violence. past indicator was strength aggravating of the tion this factor further admitted She mitigating the net value circumstances and in favor of weighed [Sut- not have

would background. See troubled of Sutton’s ton], Smith, 510, 516-18, v. 539 U.S. Wiggins cumulative concluded that Blair 534, 536-38, 156 L.Ed.2d interview, data, history, and test social (2003) (“In prejudice, we assessing personality traits that supported results aggravation reweigh the evidence vulnerable [Sutton] would have rendered totality mitigating of available against during conditions TDOC prevailing 396-98, evidence.”); Williams, conditions in- еarly 1980s. Those (considering prejudice de 120 S.Ct. 1495 violent, unstable, and threat- cluded an evi- balancing proposed novo and environment, supervision where ening value, potential its dence’s inadequate to the and structure were circumstances); harm, and the of inmates. She did not find number Mitchell, v. 443 F.3d 530-33 Carter or- any cognitive impairment or sign (6th Cir.2006) (holding that the state any Nor did Blair find ganic process. court’s was reasonable because decision any or suggestion thought disorder proposed troubled-background evi- type psychosis. more harm likely dence have done “would primary diagnosis was that Blair’s court good”). appellate than The state personality has an Axis II dis- [Sutton] weighed these factors and concluded with an un- order. Tension consistent troubled-background derlying anxiety disorder was also evi- prob- created a reasonable would not have Blair, According to individuals dent. say cannot ability of a life sentence. We blunt, tend to self- profiles with these be unreasonably that the state court consid- critical, inadequate and have defense to, ered, any gave weight unreasonable pro- mechanisms. The observed clinical factor, balancing or that its ultimate of the pattern file was consistent with maladjustment. individu- variables was unreasonable.6 chronic These added)); analysis” (emphasis appel of the Strickland 6. Because we conclude that state Ficco, reasonably late court held that Sutton did not also 556 F.3d see Yeboah-Sefah prejudice, Cir.2009) establish we need not evaluate (1st (noting that “it is not 79-80 was deficient in fail whether Sutton’s counsel adjudication on the merits clear whether an ing to discover some of this information or in court, explicitly by a trial which is neither choosing present not to it. We also need not explicitly rejected the merits nor affirmed on holding whether the trial court’s address court, trigger appellate is sufficient to that Sutton’s counsel was not deficient re review,” deciding ques AEDPA but not 2254(d) Wiggins, § ceives deference. Cf. (internal omitted)); quotation De marks tion (explaining that U.S. at 123 S.Ct. 2527 Portuondo, (2d Berry Cir. prejudice reviewed de novo when “neither 2005) (same). prong of the state courts below reached [that]

763 were, personality reflecting circumstances as had disorder unex- aggravating maladjustment. suggested, overwhelming: ceptional See Wicklinе v. the state court (6th murder, Mitchell, 813, Cir.2003) first-degree 319 F.3d prison while killing (noting and carried out the that the defendant “did not suffer planned any from suggesting mutilation of another inmate because mental condition” and and drug prior-violent-felony depression mitigating deal. The that his was a “weak of a (internal statutory factor” aggravators quotation marks omit- prison-murder ted)). undisputable weigh strongly are Sutton, jury’s against finding and the of a mitigating This limited value must be statutory aggravator, that the mur-

third weighed against harm in- potential its “heinous, atrocious, cruel,” or re- der was might troduction have done to Sutton’s brutality of the murder flects the and mitigation case. It is well established that jury suggests that believed that facts such as Sutton’s extensive involve- aggravating circumstances were extraordi- ment with drugs discharge and his from nary. Navy juries are often viewed harmful, circumstances, against these and this must be counted Given overwhelming proposed with an mitigating evidence net evidence’s value. See, Williams, produce e.g., value could a reason- mitigating U.S. at probability (balancing able of a life sentence. The S.Ct. 1495 the unfavorableness reasonably points juvenile state court noted two of the defendаnt’s convictions other, evidence); mitigating against while the suggesting Burger value favorable 776, 793, background Kemp, of Sutton’s troubled evidence v. substantial, might (noting be it was not over- 97 L.Ed.2d 638 that evi- First, whelming. the court observed that dence of the defendant’s “involve[ment] positive redeeming drugs” offered “little “could have affected true, Carter, (not- mitigating adversely”); as the evidence.” This F.3d of, alia, background pri- ing comes that evidence a “history value of Sutton’s inter nature, marily drug troubled what use and alcohol from its abuse” would be edge[d]”). positive primarily little was that he once “double — guard during prison fight saved a —was reasonably The state court also consid overwhelming. Thus that avenue of possibility presentation ered the mitigation would have been little or no troubled-background benefit to Sutton. “potentially opened would have the door” Second, devastating pri- the court noted that Sutton’s rebuttal evidence of his acts, in past particular troubled did not reflect the ‍‌‌‌‌‌​‌‌​‌​​​‌​​​​​‌​‌‌​‌‌‌‌‌​​​‌​​​​​‌​​‌​​​​‌​‍sort of or violent the fact that brutally grandmother he deprivation extreme or mental and emo- beat his death problems might thought tional be after she found out that he had murdered Mitchell, dеgree. people. to a critical other culpability reduce his two See Mason * (6th Cir.2008) State, (weigh 18. 543 F.3d 780-83 Sutton v. WL background undeniably possibility damaging chaotic rebuttal introduced); unfortunate, but he did have one con- evidence would be Scott v. (6th Mitchell, grand- influence: his 880-81 Cir. positive stant and 2000) mother, him adequately (explaining proposed who raised back And, provided ground for him. as Dr. Blair con- evidence’s value would ceded, “largely, overwhelmingly, have been even Sutton had no mental disease or disturbances; merely negated” emotional he because would have allowed severe 764 in these situa- sibility of rebuttal evidence “evidence that his to elicit prosecutor Scott, tions); (deferring at of rob- 209 F.3d 880-81 includes commission

background determination). assault, and other court kidnaping, [sic] to such a state bery, citizens”). innocent upon acts violent say can we that the state court’s Nor relatively proba- a low by Even discounted these variables was unreason- balancing of admission, value of expected bility of mitigating able. The value quite is devastating rebuttal evidence such and it background overwhelming, not the net significantly reduces lаrge, and by double-edged nature of countered is background. value of Sutton’s mitigating portions background of his significant 1150, Bell, 1157- 131 F.3d v. Rickman Cf. small, devastating, though potentially (6th Cir.1997) (excoriating counsel 60 result, danger of rebuttal evidence. As of his client’s violent introducing evidence mitigating net value was the evidence’s that background “creat[ed] and troubled aggravating cir- by dwarfed the extreme ... that would make a image loathsome in- prejudice cumstances. And while the to rid the world of juror compelled feel fact- quiry unavoidably case-specific him”). intensive, that our we are satisfied decision compe- correct that Perhaps Sutton is mainstream of failure-to-intro- likely presented tent counsel could duce-mitigating-evidence case law decided background troubled with- evidence of his See, e.g., AEDPA’s under strictures. making out such rebuttal evidence rele- Wickline, that (holding 319 F.3d at 821-22 vant, and thus admissible. See Carter reasonably that the state court concluded (6th Cir.2000) Bell, 581, F.3d 597-600 mitigating value of evidence about law, under (concluding Tennessee health, behavior, good mental defendant’s likely could have intro- competent counsel background was insufficient аnd troubled troubled-background evidence with- duced Cain, prejudice); to establish Williams allowing the introduction of rebuttal out (5th Cir.1997) 279-80 prior (citing violent acts evidence reasonably (holding that the state court State, 767-68 Cozzolino v. S.W.2d prej- concluded that the defendant was not (Tenn.1979))). However, the state court evi- present udiced counsel’s failure to troubled-background evaluated Sutton’s “ ‘chaotic, child- dence of violence-filled law and concluded evidence under state ” “likely would hood’ because the evidence that chance there was least colorable mitigating against have had little effect judge that have ruled that the trial would aggravating concerning the bru- allow introduc- presentation its would ..., tal, premeditated prior murder [his] evidence, perhaps tion of such rebuttal be- that history, criminal and the fact hid [he] on background cause the evidence touched Kincheloe, [evidence]”); Campbell v. juvenile crimes behav- and violent (9th Cir.1987) (concluding F.2d presume ior. the state court We prejudiced that the defendant was not law, Cone, properly applied its own see present counsel’s failure to evidence that 453-56, and we defer U.S. alcoholic; was the [he] his “father was to its estimation that there was some rec- abuse; victim of child he suffered from ognizable “potential[ the rebuttal ]” child; problems young various medical as a evidence would be admitted since it is bet- abuse; history drug he had a and alcohol law than we are. predict ter suited to state Carter, reportedly attempted suicide he had (noting [and] See 218 F.3d at 599-600 on one occasion” because “g[ives] this court deference” outweigh possible court determinations of the admis- value of this evidence did DAUGHTREY, sought MARTHA CRAIG circumstances he beat, a woman out, strangled, and killed Judge, concurring. Circuit him, and then cut against who had testified reasoning I concur in the and the result and another daughter of her the throats Judge Boggs’s opinion sepa- in but write witness). rately admissibility to address the of Sut- every in case on which note that We also prior criminal offenses. This ton’s issue relies, weighed federal court the key, my judgment, in as it relates to the circum- aggravating mitigating the analysis prejudice prong of the Strickland novo, than de rather evaluated stances by claim of ineffec- necessitated weigh- court’s of the state reasonableness of counsel. The dissenting tive assistance inappropriate compari- ing; they thus are opinion Judge Boggs’s opinion reads 516-18, Wiggins, 539 U.S. at sons. See “conceding]” that the elicitation of “testi- 534, 536-38, (weighing S.Ct. 2527 de 123 ... mony past no court addressed about Sutton’s crimes is an novo because Williams, at prejudice); unlikely possibility.” interpretation This (weighing de novo because S.Ct. 1495 in wrong respects, two different levels apply legal not the correct state court did significance. mitigat- not consider all of the

rule and did level, First, superficial on a the term evidence, Magana Hofbauer, v. see Judge Boggs’s “concedes” overstates rath- (6th Cir.2001)); Harries v. F.3d er tentative1 observation that Sutton’s Cir.2005) (6th Bell, 631, 634, 640 417 F.3d should, could, perhaps criminal record peti- the habeas (weighing de novo because by relatively a proba- be “discounted low was filed before AEDPA’s effective tion Mitchell, Second, date); bility 268 F.3d of admission.” and of much Coleman (6th Cir.2001) (same); Carter, in greater importance, is the fact that (same). 591, 593, 600 F.3d at the trial in peculiar circumstances of this case, admissibility prior of Sutton’s say can we that it was unreasonable Nor certainly have history would almost been totality prof- conclude that the of the Burchetts’ proposed fered evidence—the admissible to rebut much of the testimony, all of the evidence about the evi- mitigation evidence introduced prisons, in Tennessee’s and the violence dentiary in court. hearing district evidence of Sutton’s troubled back- True, a line of in the there is cases ground prob- not create reasonable —did sentencing Tennessee law has mitigat- ability of a life sentence. The net limiting scope somewhat effect on low, ing value of all of this evidence is too in negative penalty evidence admissible and the circumstances are too phase capital of a case. It traces back to strong. Supreme opinion

the Tennessee Court’s in VII. Conclusion (Tenn. State, 584 S.W.2d 765 Cozzolino 1979), death-penalty one of the first cases AFFIRM the district court’s denial We appeal reviewed on after the reinstatement of habeas relief. following prosecution- -resulting in our 1. The citation the statement is: determination — Bell, 1150, 1157-60 that Rickman had received the ineffective as- Rickman v. "Cf. Moreover, (6th Cir.1997).” Judge Boggs But as nоted sistance of counsel. Rickman is and, thus, federal not the last word on parenthetically, evidence of Rickman's "vio- case background” admissibility of evidence under Tennessee lent and troubled was intro- lawyer by statutory and case law. duced his own —and proposition rebut a that has not been ad- in 1977. The Tennes penalty of the death “might Noting the trial vanced.” Id. that this error held Supreme see Court hearing have been made harmless the later sentencing judge during erred to introduce introduction of evidence to which the prosecutor permitting in subsequent proof that Coz State’s crimes was during its case-in-chief rebuttal,” relevant in the court offered this several armed rob zolino had committed to the murder for which observation: subsequent beries The state had succeeded he was on trial. proof The defendant’s was limited to an evi convincing judge the trial attempt origin, to show the a troubled was relevant under question dence childhood, of the defendant’s criminal (then) 39-13-204(c): §Ann. Tenn.Code proof not controverted acts. This sentencing proceeding capi-

In by pres- [in the demonstration of his the State’s case], may presented evidence tal be criminal proclivities. ent any matter that the court deems rele- Id. include, punishment may vant to case, post-conviction In this the state to, not be limited the nature and appeal courts at both the trial and levels crime; circumstances of the the defen- applied state law as summarized above and character, background history, dant’s concluded that Sutton did not establish condition; physical any evidence by prejudiced that he was his counsel’s tending aggra- to establish or rebut the present failure to delve into and evidence ...; any evi- vated circumstances They of Sutton’s troubled childhood. did tending any dence establish rebut in a principled thorough so fashion. mitigating circumstances. See Nicholas Todd Sutton v. State Ten- rejected The court the state’s Cozzolino nessee, 03C01-9702-CR-00067, No. 1999 statute, reading broad of the instead hold- (Tenn.Crim.App. WL 423005 June narrowly more that: 1999). Yet, the dissent characterizes When the statute is considered as a application state courts’ of Strickland to whole, it only is clear that issues the facts of this case as unreasonable with- jury may in properly consider taking analysis out into account their a decision reaching on the sentence despite the issue. This the United States imposed be are whether the has State Supreme in Court’s admonition Bell v. one or more of aggrava- established Cone, 447, 455, 543 U.S. 125 S.Ct. 160 beyond ting circumstances a reasonable (2005), L.Ed.2d 881 that a federal court so, and, any doubt if whether mitigating ... “presume lightly should not that a factors have been out- shown would apply state court failed to its own law a[in weigh aggravating those factors. despite reasonable This the fact fashion].” 2254(d) Cozzolino, Hence, § “highly 584 S.W.2d at 768. that 28 U.S.C. dictates a concluded, court evaluating “evidence is relevant deferential standard for state- admissible, punishment, rulings” and thus court and “demands state- if it is relevant to an circum- given court decisions be the benefit (internal stance, mitigating or to a factor quota- raised doubt.” Id. citations and omitted). result, And, the defendant.” court tion despite Id. As marks this held, permit cautionary Taylor, it was error to introduc- advice Williams v. 362, 411, tion of the evidence to rebut U.S. S.Ct. (2000), “a yet circumstances that had not been of- L.Ed.2d 389 federal court defendant, may simply fered for cannot not issue the writ because the “[o]ne weighed against But independent judg- troubled childhood. its court concludes for information that conviction opinion state court the relevant ment that was, fact, Estep the fourth mur- murder law er- clearly federal applied established guilty, found der which ‍‌‌‌‌‌​‌‌​‌​​​‌​​​​​‌​‌‌​‌‌‌‌‌​​​‌​​​​​‌​​‌​​​​‌​‍he had been it incorrectly.” roneously or seems to think that preposterous almost case, too, In it behooves us to recall this jury would even one member of the have in- that we “must mandate Strickland’s against penalty. held out the death dulge ‘strong presumption’ that counsel’s mitigation same true of the range the wide of rea- conduct falls within offered in court to the district demonstrate assistance because professional sonable to violence for Sutton’s need to resort self- easy particular all conclude that a too protection, prison based on the conditions act of counsel was unreason- or omission Estep’s that existed at the time of death. light hindsight.” harsh able in the rebuttal, surely In would Washington, Strickland argued prison conditions could not (1984). 2052, L.Ed.2d similarly excuse the commission of Sut- more fully If counsel had investi- defense murders, ton’s three none of prior which gated background presented occurred he was incarcerated. All in while says the that now should defense Sutton all, whatever one thinks of the level of the jury, the difficult put have before it is been attorney’s professional competence, trial prevented have the how he could see able, for remarkable that he was the introducing devastating state from rebuttal part, having most the underlying to avoid for that appears, example, It evidence. details of his client’s criminal record put managed attorney keep trial Sutton’s the jury. before It is this absence of underlying jury from the details of the prejudice that convinces me Sutton conviction for a crime of prior Sutton’s cannot on his claim of succeed ineffective violence, the three cir- one of assistance of counsel. sentencing at the cumstances established sought But if counsel had hearing. JR., MARTIN, BOYCE P. Circuit testimony about Sutton’s “trou- introduce Judge, dissenting. childhood,” undoubtedly bled the state Nicholas childhood was horrific. in at- drawing would have been successful undisputed at his facts elicited habeas this aggravating to the fact that tention hearing in court from li- the district Sutton’s murder of circumstance involved psychologist censed clinical who evalu- grandmother his the same grandmother, Sutton, Blair, showed ated Dr. Gillian “an who him almost from birth and had raised unstable, threatening violent and often only was the apparently figure mother supervision home life and struc- where might Sutton ever had. The state also brutal, inadequate.” ture were His men- in presenting testi- been successful tally-ill and his father held Sutton mother establishing the motive for that mur- mony point with gun during at a stand-off der, response his which was Sutton’s later police. When Sutton’s father died of grandmother’s negative reaction to learn- hypothermia exposure while killing that he had admitted two other child, explained never was the death was people in North Carolina. by to him. Sutton was also abandoned his Boggs’s by critical of Judge age The dissent is mother of one and his before jury’s age result of analysis probable grandparents of the of the maternal two. when jury paternal able to His died grandfather deliberations had been and he was eight was raised consider additional evidence of Sutton’s seven grandmother except alone. He state- paternal his defendant’s one-sentence nine, ment). age of еye shot at the was injuries during head his several suffered Thus, I turn to the second Strickland the knee at teenage years and was shot in prong, per- whether counsel’s deficient By the an adoles- sixteen. time he was prejudiced formance Sutton. dif- Stated cent, variety drugs” he used a “wide counsel ferently, had introduced evidence drugs money. to earn He was sent to sold ar- upbringing Sutton’s troubled with his aunt and Knoxville live uncle gued mitigation imposi- the evidence juvenile his high school because of penalty, reasonably tion of death is it abuse, drug his lack of problems possible imposed would have addressed, was not and he education injection? life in instead of I prison lethal during dropped high out of school the elev- Supreme As the believe so. ob- Court grade. Though joined Navy he enth Taylor, served in Williams v. seventeen, age of he was unable to 146 L.Ed.2d 389 military adjust to life he was over- because (2000): “Mitigating evidence unrelated to training whelmed and could not dangerousness may jury’s alter the selec- cope pressure. Shortly the emotional penalty, tion even if it does not under- enlisting, after Sutton received an honor- prosecution’s death-eligibility mine ... discharge. diagnosed able Dr. Blair Sut- Williams, case.” In recognized the Court II personality ton with Axis disorder. reality “the [the defendant] trial not present counsel did mentally might ‘borderline well retarded[ ]’ any phase this evidence at the penalty jury’s have influenced the appraisal of trial —not Sutton’s because he made a culpability.” moral Id. strategy tactical trial that decision the evi- jurors The same is true here. Had the would, unhelpful dence would be or as the been confronted with mitigating the evi- mused, potentially open state courts the dence of Sutton’s extremely troubled door to introduction damaging of other childhood, the probability that at least one evidence, but simply because trial counsel juror not ag- would have decided that the deign not to thorough did ask his A client. gravating circumstances of the out- case into a inquiry client’s and back- childhood weighed mitigating the circumstances be- ground high attorney’s on an list of yond a reasonable doubt probability “is a case, to do

things capital when defending a to sufficient undermine confidence the suit,” along up,” “show “wear and Strickland, outcome.” 466 U.S. at awake.” “stay Sutton’s counsel’s failure to 2052; 104 S.Ct. see also Wiggins, 539 U.S. inquiry make this basic constitutes ineffec- (“Had at S.Ct. 2527 jury been assistance of per tive counsel See Wig se. place petitioner’s able to excruciating life Smith, 510, 123 v. gins S.Ct. scale, history mitigating on the (2003) (due side of L.Ed.2d 471 to minimal there probability is a reasonable at investigation, that presented counsel no evi juror of least one would have family dence defendant’s struck a differ- history, which balance.”); Frazier, abuse); ent severe included childhood Ham 343 F.3d at 798- 99; 39-13-204(i) Mitchell, (6th § blin Tenn.Code Ann. F.3d 482 Cir. cf. (counsel 2003) (providing mitigating penalty “[n]o failed to death sen- seek imprisonment and thus pos- evidence did not learn of defen tence of for life without childhood); unpleasant sibility parole dant’s Frazier shall imposed of be Cir.2003) (6th Huffman, 343 upon F.3d 780 a unanimous finding that (counsel presented beyond no proven has a reasonable doubt the performance. To counsel’s deficient of or more of the statu- his one existence circumstances”).1 And, feat, majority employs this accomplish tory aggravating sterile, reasonably pos- impressively faux-mathematical I that it is believe because follow, I can unani- as best in- would dissection jurors sible an etherеal miti- penal- subtracting volves “net mously agreed impose the death they gating all of the value” of this evidence from heard ty upon Sutton and evidence, dividing I of circumstances find the violation would After square maybe. perform- of root of right to effective assistance arithmetic,2 majority trial phase at of his this devil’s penalty counsel not prejudiced. court’s concludes was prejudicial, and the state contrary is an unreason- conclusion to Now, fully judges I believe that are ordi- clearly established Su- application able at narily good looking back determine would, I there- precedent. preme Court prejudi- when an error in a trial court was fore, resentencing for so this case remand outcome, with greater cial to the at least may up- evidence of present layman. than a accuracy likelihood And or at bringing jury, to a least receive appellate fully I concede that for our of counsel as to whether competent advice work, systems collateral review our bet- Wig Cf., e.g., the evidence. present ter-than-average accuracy rate is sufficient 2527; gins, U.S. remains, for most cases. The fact howev- 494; Frazier, Hamblin, er, appointment that an the federal at 798. F.3d robe, judges affords a black not a bench course, cases, It majority, disagrees. crystal Capital especially ball. sentencing sentencing cases, phase capital are attempts to reconstruct deliberations, assuming average not “most cases” and better than phase just accomplish child- will not do to Strickland’s appalling introduction of Sutton’s speculatively overarching goal ensuring ad- background confidence hood crimes, penalty getting the outcome when the prior missible evidence wrong price.3 was not is the ultimate prejudiced to show that Sutton Yolen, substantially Devil’s This case different from that oners. Jane The Arithmetic 1. (1988). Mitchell, (6th Cir. of Carter v. F.3d 517 2006), this Court the which found Additionally, majority note that the 3. I should troubled-background proposed evidence that of addresses several other issues constitution- gathered had would the defendant’s counsel counsel, ally ineffective assistance of includ- pre outcome it not have altered the because objections ing those of failure to raise to the picture "relatively a a back sented of stable conspicuous security to and statements trial background presents a ground.” prosecutor's closing arguments in the and chaos, boy picture young by of a a surrounded penalty-phase jury were instructions stability safety a lack of lack of and instead Though majori- unconstitutionally vague. the family, a we would friends and home that ty these concedes that counsel’s assistance on any want for child. ineffective, constitutionally it finds issues was prejudice. I do no However not address Arithmetic, about a 2. In The Devil’s a novel of ineffective assis- these additional instances girl New young transported present-day from depth even tance in in this dissent —because camp Jersey camp, to a concentration instance of ineffective assistance of coun- one system to determine officers use a Kafkaian prejudice combined a likelihood of sel "process- prisoners be phase requires which will selected for penalty evidence day ing” survive to go jury except and which will for another to the to that a back note — capital from actions trial with no than four distance themselves their marred less pris- pos- making assistance cannot life and death for the instances ineffective decisions point argument line majority’s analysis on this re- Would this have jurors? inadequate changed our the minds of all twelve I just veals how look-back certain, say cannot in this penalty sentencing in death case abilities are juror Sutton needed If one what one: attempt cases. to recreate would Its story been past, affected of Sutton’s during penalty phase happened have would have been sentenced to happened would dur- and then what have death.4 certainly ing jury plausi- deliberations is

ble, utterly convincing. One but not could Furthermore, background because this unfolding easily things much dif- imagine appeals information to the emotions of the ferently up- had the evidence jurors paint least a picture and at tries to introduced: Defense bringing been counsel of a human it being, Sutton as strikes me up- of Sutton’s terrible introduces evidence as a more persuasive prediction jury constantly changing bringing home than majority’s —his deliberations effort to life, violent, father, mentally unstable analogize capital sentencing delibera- shot at having been least twice before the tions impassive algebraic gymnastics. to age injuries, several eighteen, head ex- attempt persuade As an to the reader that teens, during any use drug tensive his prejudice, majori- suffered no diligent investigation other un- evidence ty’s not recognize macabre mathematics do brings psychiatrist in a to covers—and tes- how emotional the decision between life tify experiences as to how these childhood juror, and death is for a and for that to contributed Sutton’s violent tendencies reason fails. The decision whether to sen- opened as an adult. Even if this the door highly tence someone to death is emotion- prosecutor elicit testimony allow the sense, al. This is a matter of common (which past about Sutton’s crimes the ma- See, is well supported the literature. unlikely jority concedes is an possibility), e.g., Sundby, E. Scott A and Death Life including beating grandmother his Jury Decision: A Weighs the Death Pen- death (2005) (“However after she found out that Sutton had alty 177 feels one about killed people, two other defense counsel penalty, jurors’ death stories lead plausibly arguеd could that Sutton’s bottom, one At indisputable conclusion: entirely violent nature derives from jury’s his effort decide life between words, horrific In distinctly childhood. other both death is a human endeavor in- prior violence and the instant fused judgment. murder with emotion and moral stem Despite from the same rotted roots. legislatures More- the efforts of over, suggests, counsel courts to penalty make death decision argued, could legal that Sutton has tried judgment to that is reached follow- join rules, better himself. He tried Navy, to series of end the deter- adjust pres- could not to the emotional mination of whether the defendant lives or training, sure of the no doubt due to unavoidably his dies results from the intersec- early years, successfully jurors’ obtained tion of twelve individual beliefs and prison. views.”);5 GED while in Terry Maroney, Emotional sibly leave one profile confident in outcome For a addressing overstated. recent Toobin, appearance justice. Jeffrey Mitigator, these see The issues Yorker, 9, 2011, May The New 32. 4. The effectiveness of evidence in book, jurors persuading impose Sundby synthesizes not 5. to death In his Professor and, situations, penalty prosecutors jurors. capital some interviews with numerous pursue penalty jurors provide the death cannot be a first-hand account of the Law, Sense Common Van. Common HIMES; Himes, Mary Josh (noting

L.Rev. Plaintiffs-Appellants, its openly can defend Supreme “Court about as normative judgments emotion general there is consensus ... where ones America, UNITED STATES of the emo- prevalence on the nature Defendant-Appellee. disagreement on phenomenon but

tional No. 10-5114. accorded in the weight it should be Appeals, United States Court of calculus”). It stands jurisprudential Sixth Circuit. juror would have reason that least one making harder the emo- a much time Argued: June 2011. condemn a man to die had he leap tional Filed: 2011. July Decided and who was and how he or she known Rehearing 2011. Sept. Denied just man that he or she had became the of murder. convicted said, though I it to I believe be

As

case, my say I cannot for certain that ‍‌‌‌‌‌​‌‌​‌​​​‌​​​​​‌​‌‌​‌‌‌‌‌​​​‌​​​​​‌​​‌​​​​‌​‍ac- to reconstruct events is more

attempt Nor majority’s. than the can

curate honestly say that its reconstruc-

majority than accurate mine. likely

tion is more

However, certain —counsel’s thing one present to obtain and

failure early awful regarding clearly Sutton of his estab-

life robbed himself as human right

lished show jury’s eyes in the and made easier

being difficult decision a

what should be most precisely po- make.

jury can This is to undermine confidence the out-

tential to protect Strickland stands

come against. I and the courts

defendants and remand for

would therefore reverse

resentencing competent defense coun-

sel. deliberations, judicial attempts capital sentenc- workings to recreate both on

inner permits conclusion but deliberations no group level and on the individual level. jurors judicial pure fiction. efforts are Comparing the of these these accounts

Case Details

Case Name: Sutton v. Bell

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 8, 2011

Citation: 645 F.3d 752

Docket Number: 03-5058

Court Abbreviation: 6th Cir.