Lead Opinion
BOGGS, J., dеlivered the opinion of the court. DAUGHTREY, J. (pp. 765-67), delivered a separate opinion concurring in the reasoning and the result of the majority. MARTIN, J. (pp. 767-71), delivered a separate dissenting opinion.
OPINION
Nicholas T. Sutton is a Tennessee prisoner sentenced to death for murdering a fellow prisoner. He petitions for a writ of habeas corpus on the grounds that his trial counsel was constitutionally ineffective. We affirm the district court’s denial of habeas relief.
I. Background
On January 15, 1985, Carl Estep, an inmate at Tennessee’s Morgan County Regional Correctional Facility, was murdered in his cell. He was stabbed thirty-eight times in the chest and neck with two homemade knives, or “shanks,” which were found near his body. Defensive wounds on his hands and arms, as well as blood on his body, the walls, and the bunk, indicated that there had been a struggle!
Sutton, Thomas Street, and Charles Freeman were charged with Estep’s murder. At trial, the primary evidence against Sutton was the testimony of three other inmates, Harold Meadows, Estel Green, and Cary Scoggins. Meadows testified that, shortly before the body was discovered, he saw Sutton and Street enter
The jury convicted Sutton and Street but acquitted Freeman. Sutton was sentenced to death based on three statutory aggravating circumstances: (1) he had previously been convicted of a violent felony, first-degree murder; (2) he was incarcerated at the time of Estep’s murder; and (3) Estep’s murder was “heinous, atrocious, or cruel.” See Tenn.Code Ann. § 39-2-203(i)(2), (5), (8) (1986). The Tennessee Supreme Court affirmed the conviction and sentence on direct appeal, State v. Sutton,
Sutton appeals from the district court’s denial of his petition for a writ of habеas corpus. He has received a certificate of appealability on four ineffective-assistance-of-counsel claims: (1) that his counsel failed to object to two aspects of courtroom security during the guilt phase; (2) that his counsel failed to object to three instances of prosecutorial misconduct during the guilt and penalty phases; (3) that his counsel failed to object to the penalty-phase jury instructions on the “heinous, atrocious, or cruel” aggravating circumstance; and (4) that his counsel failed to adequately investigate and present mitigating evidence of the amount of violence in Tennessee prisons and of his troubled background.
II. Standard of Review
Sutton’s ineffective-assistance claims are governed by the familiar standard of Strickland v. Washington,
All оf Sutton’s claims were adjudicated on the merits by the Tennessee state courts on postconviction review. Therefore, we may not grant the writ unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). An adjudication is contrary to clearly established law if, for example, the “state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Williams v. Taylor,
III. Trial Security
Sutton’s first claim is that his counsel was constitutionally ineffective for failing to raise two objections under Holbrook v. Flynn, which prohibits trial “practices” that “prejudice” the defendant without “sufficient cause.”
The state appellate court reasonably rejected this claim because the underlying Flynn claim failed. The guards’ presence likely caused little prejudice: as the trial judge testified during postconviction proceedings, they were “not overly conspicuous” because they were spaced out in the very full courtroom — four were behind the defense table, one was next to the jury, two were in the balcony, and one was posted at each of the courtroom’s three doors. And we agree with the trial judge that the legitimate security concerns involved in trying three inmates for violently murdering a fourth inmate, where the defendants were not wearing upper-body restraints and six other inmates were testifying as witnesses, was “sufficient cause” for any prejudice. See Flynn,
Sutton also contends that his counsel should have raised a Flynn objection to what he calls the “shanks incident.” Before introducing the murder weapons into evidence, the prosecutor placed them on the defense table, within reach of the defendants, for inspection by counsel. Sutton’s counsel jerked away from him in fear and the guards reached for their weapons; there is conflicting testimony over whether any were actually drawn. Although the shanks were moved to the state’s table for inspection without further incident, Sutton claims that his counsel’s and the guards’ reactions suggested that he was very dangerous and were therefore so “prejudicial as to pose an unacceptable threat to [his] right to a fair trial,” Flynn,
The state court again rejected Sutton’s ineffective-аssistance claim because the underlying Flynn claim failed. This decision was not contrary to or an unreasonable application of clearly established Supreme
Flynn’s applicability to the guards’ reaction is similarly uncertain. As Musladin noted, Flynn and its related case law focus exclusively on “state sponsored practices,” id. at 75-77,
IV. Prosecutorial Misconduct
Sutton’s next claim is that his counsel failed to object to three statements in the prosecutor’s closing arguments. First, Sutton argues that his counsel should have objected to the prosecutor’s guilt-phase comment suggesting that Sutton was guilty because he was arrested for the murder:
Now, use your common sense here for a moment. Who was locked up immediately after this body was found and the very first information received? They are sitting right over there. Do you think [the prison authorities] said, “Oh let’s see, we got a dead man here, lock up Street, Sutton and Freeman.” Do any of you believe that?
Second, Sutton challenges his counsel’s failure to object to the prosecutor’s guilt-phase discussion of inmate Carl Crafton’s testimony. Crafton testified as a defense expert on prison life, dеscribing the violence then endemic in the Tennessee prison system because of overcrowding and guards’ inability to keep order, as well as the culture and incentives this created for prisoners. In particular, he explained that once an inmate’s life had been threatened, “his only defense!] is to make the offensive move.” Sutton relied on this testimony to argue that, if he did kill Estep, he did so in self defense because Estep had threatened to kill him.
Sutton claims that the prosecutor “deliberately misled the jury by claiming that Crafton advocated violent prisons where inmates lived by their own rules”:
Do you, as jurors, want to accept that kind of person as an expert; as someone who is going to tell you the way things, not normally are, but should be in the prison system? Because that is the key; not necessarily how things are, but how things should be.... Are you willing ... to accept the kind of prison system that he seems to think you ought to have? ... And apparently he does not put any value or significance to the rules of society and the laws that we all have to live under.... What was the last thing he said when asked, “Well, who is supposed to run the prisons?” He knew better than to try and tell you that the prisoners should, so what did he come up with? “By the Warden’s rules.” And you all know what rules the Warden has. The same rules that you and I have; the same laws that you and I have.
The state court concluded that this comment was also improper but not prejudicial. This was reasonable because Sutton’s preemptive-strike self-defense theory failed as a matter of state law. See State v. Leaphart,
Third, Sutton contends that his counsel should have objected to the prosecutor’s penalty-phase future-dangerousness argument:
*759 What do we do? If a person is already in the penitentiary, already serving time for [a]rmed [rjobbery or a life sentence for [mjurder, what is the next step? The days of chaining people to a wall in the dungeon are gone because that would violate their rights; it would be cruel and inhuman punishment. You cannot ship them off to some island so that they are all by themselves. If they are going to be in that penitentiary and they are going to be in contact with other people, then ask yourselves and ask the Defense to tell you what they would have you do with people in that situation.... [One witness] talked about students and how you deal with them; that you give them a chance and another chance.... Well, I submit the line was drawn on these Defendants, before you ever heard of them, when they were sent to the penitentiary to serve their time. And what are you, as jurors, now going to do, send them to the penitentiary? What are you going to do to Nicholas Sutton, give him a life sentence? Will that prevent there being another Carl Estep?
[W]e suggest to you that persons who are armed robbers and first degree murderers are already conditioned to kill people. We say to you this ... that all of you told all of us in the beginning, and obviously you were sincere about it, that you believed in the right of a person to self-defense only when absolutely necessary, and you know what the law is about that. The legislature of this state, as well as the legislature of almost every other state, has given all of us the right of self-defense; not just personally, but as a group, and that is called, ‘Capital Punishment.’ When we get to the point that we have done everything possible to protect ourselves and there is nothing else we can reasonably do that would protect ourselves from people like Nicholas Todd Sutton ... then we have the right of self-defense and that is where capital punishment comes in.
These statements were not improper as a matter of federal law: they were not inflammatory, and future-dangerousness arguments are permissible under federal law, Jurek v. Texas,
Sutton’s third ineffectiveness claim is that his counsel should have argued that the penalty-phase jury instructions on the “heinous, atrocious, and cruel” aggravating circumstance were unconstitutionally vague. This claim fails for lack of prejudice. The Tennessee Supreme Court reviewed and affirmed the jury’s finding of the aggravator on direct appeal. Because there is no “affirmative indication to the contrary, we must presume that it” applied its well-established, and permissible, narrowing construction of the aggravator, thereby “cur[ing] any error in the jury instruction.” Bell v. Cone,
VI. Mitigating Evidence
Sutton’s final claim is that his counsel failed to adequately investigate and present mitigation evidence. At the sentencing hearing, counsel presented additional testimony from Crafton to support the statutory mitigating circumstance that Sutton was acting under the belief that his actions were morally justified. Counsel also presented the testimony of the Burchetts, a family who had known Sutton since he was in high school and who visited him regularly in prison. This testimony was intended to humanize Sutton and to show that he is capable of having normal relationships with law-abiding citizens.
Sutton first argues that, in addition to Crafton’s testimony about the violent conditions in Tennessee prisons, counsel should have presented the testimony of a particular TDOC corrections officer and documents from Grubbs v. Bradley, a federal lawsuit that, from 1980 to 1993, evaluated the violent conditions in Tennessee prisons, see, e.g.,
Sutton also argues that his trial counsel should have discovered and pre
[Blair] testified ... that [Sutton] was raised in an unstable, often violent and threatening home life where the supervision and structure were inadequate. He was exposed as a child to intermittent explosive violence from his father, who was seriously mentally ill and was hospitalized extensively at a psychiatric hospital between 1969 to 1976. In 1973, there was a restraining order against the father after he held his mother and [Sutton] at gun point and had a standoff with the police. In contrast, when [Sutton’s] father was not being violent, he would be overindulgent and encourage inappropriate behavior. In 1977, [Sutton’s] father died of hypothermia and exposure. The death certificate indicated that alcohol abuse was a contributing factor in his death.
From the time of his incarceration at age 18, the threatening environment that [Sutton] had endured as a child was present in TDOC. The prison offered little structure or predictability. [He] had to be hyper-vigilant, and this was exacerbated by the fact that a number of inmates had access to weapons and that there were a number of assaults in prison.
As a child, [Sutton] suffered multiple abandonments and losses. Specifically, his mother abandoned him before the age of one, he essentially lost his father to mental illness, and ultimately he suffered the death of his father. Moreover, the circumstances of his father’s death were never explained to him. [He] also suffered the loss of his grandfather at the age of 7 or 8, and the separation from his maternal grandparents at the age of 2. He was essentially raised by his paternal grandmother, who was a school teacher.
[Sutton] has an extensive drug history. By the time he was an adolescent, he was using a wide variety of drugs. [He] admitted the he had dealt drugs extensively as well, to provide a means of obtaining his own drugs and to provide himself some money. His lack of internal controls was exacerbated by his drug use.
Eventually, [Sutton’s] juvenile problems and drug abuse led to him being sent to Knoxville to live with his aunt and attend high school. While he failed some classes, he did not fail a grade. He eventually dropped out of high school during the eleventh grade. In 1978, [Sutton] received his GED at a community college. At age 17, [he] joined the Navy from November to December of 1978. He received an honorable discharge, however, the records indicate that he was unable to adjust to military life. [Sutton] was described as being overwhelmed by the training and unable to adjust to the emotional pressure. According to the records, [his] attitude toward authority was respectful. Thereafter, [Sutton] was incarcerated at the age of 18 [for murder] and has been incarcerated continually since that time.
[Sutton’s] medical records were limited. He was shot in the eye at the age of 9. He had several head injuries which lead [sic] to a loss of consciousness. One such incident involved a motorcycle accident when [Sutton] was 12. [He] also suffered sporting accidents at age 13 and 15. In addition, [he] was shot in the knee at the age of 16. There is no record of [Sutton] having any psychiatric history or treatment before entering TDOC.
*762 According to Blair, the TDOC records indicated that if kept in a safe and structured environment, [Sutton] is well-adjusted, presents no management problems, and is not violent. Blair admitted that at the time of the trial, her profession felt that it was difficult to predict future dangerousness and that the key indicator was a past history of violence. She further admitted that this factor would not have weighed in favor of [Sutton],
Blair concluded that the cumulative data, social history, interview, and test results supported personality traits that would have rendered [Sutton] vulnerable to prevailing conditions in TDOC during the early 1980s. Those conditions included an unstable, violent, and threatening environment, where supervision and structure were inadequate to the number of inmates. She did not find any sign of cognitive impairment or organic process. Nor did Blair find any suggestion of thought disorder or any type of psychosis.
Blair’s primary diagnosis was that [Sutton] has an Axis II personality disorder. Tension consistent with an underlying anxiety disorder was also evident. According to Blair, individuals with these profiles tend to be blunt, self-critical, and have inadequate defense mechanisms. The observed clinical profile was consistent with a pattern of chronic maladjustment. These individuals tend to be suspicious, alienated, self-indulgent, and narcissistic, with immature, manipulative, and somewhat aggressive bеhaviors. Blair agreed with a previous diagnosis of antisocial personality disorder.
The probability of a different sentence had this evidence been presented is a function of the strength of the aggravating circumstances and the net mitigating value of Sutton’s troubled background. See Wiggins v. Smith,
Given these aggravating circumstances, only evidence with an overwhelming net mitigating value could produce a reasonable probability of a life sentence. The state court reasonably noted two points suggesting that, while the mitigating value of Sutton’s troubled background evidence might be substantial, it was not overwhelming. First, the court observed that Sutton offered “little positive or redeeming evidence.” This is true, as the mitigating value of Sutton’s background comes primarily from its troubled nature, and what little was positive — primarily that he once saved a guard during a prison fight — was not overwhelming. Thus that avenue of mitigation would have been of little or no benefit to Sutton.
Sеcond, the court noted that Sutton’s troubled past did not reflect the sort of extreme deprivation or mental and emotional problems that might be thought to reduce his culpability to a critical degree. Sutton v. State,
This limited mitigating value must be weighed against the potential harm its introduction might have done to Sutton’s mitigation case. It is well established that facts such as Sutton’s extensive involvement with drugs and his discharge from the Navy are often viewed by juries as harmful, and this must be counted against the proposed evidence’s mitigating value. See, e.g., Williams,
The state court also reasonably considered the possibility that presentation of Sutton’s troubled-background evidence would have “potentially opened the door” to devastating rebuttal evidence of his pri- or violent acts, in particular the fact that he brutally beat his grandmother to death after she found out that he had murdered two other people. See Mason v. Mitchell,
Perhaps Sutton is correct that competent counsel likely could have presented evidence of his troubled background without making such rebuttal evidence relevant, and thus admissible. See Carter v. Bell,
Nor can we say that the state court’s balancing of these variables was unreasonable. The mitigating value of Sutton’s background was not overwhelming, and it is countered by the double-edged nature of significant portions of his background and the small, though potentially devastating, danger of rebuttal evidence. As a result, the evidence’s net mitigating value was dwarfed by the extreme aggravating circumstances. And while the prejudice inquiry is unavoidably case-specific and fact-intensive, we are satisfied that our decision is in the mainstream of failure-to-introduce-mitigating-evidence case law decided under AEDPA’s strictures. See, e.g., Wickline,
We also note that in every case on which Sutton relies, the federal court weighed the mitigating and aggravating circumstances de novo, rather than evaluated the reasonableness of the state court’s weighing; thus they are inappropriate comparisons. See Wiggins,
Nor can we say that it was unreasonable to conclude that the totality of the proffered mitigating evidence — the Burchetts’ testimony, all of the evidence about the violence in Tennessee’s prisons, and the evidence of Sutton’s troubled background — did not create a reasonable probability of a life sentence. The net mitigating value of all of this evidence is too low, and the aggravating circumstances are too strong.
VII. Conclusion
We AFFIRM the district court’s denial of habeas relief.
Notes
. We need not consider the plainclothes guards in the spectator seating area or the heavily-armed guards outside the courtroom because they were not visible to the jury. See Flynn,
. We note that any prejudice resulting from the shanks incident was properly analyzed through Sutton’s prosecutorial misconduct claim, see United States v. Beverly,
. The slate court “[did] not find that [the comment] affected the verdict.” This conclusion can be interpreted two ways: that the comment did not change the outcome or that it had no effect at all, i.e., that there is no chance that the comment changed the outcome. The former meaning is improper: Strickland prejudice requires only a "reasonable probability” of changing the outcome. However, the latter interpretation is a proper one, as no probability of changing the outcome is lower than a reasonable one. We give the state court the "benefit of the doubt” and conclude that it applied the correct standard. See Woodford v. Visciotti,
. The state court again "d[id] not find that the jury's decision was affected.” As explained in footnote 3, we grant the state court the benefit of the doubt and presume that it applied the correct standard. We would also reject this claim de novo.
. This reasoning is, admittedly, in tension with the state court's decision because it sug
. Because we conclude that the state appellate court reasonably held that Sutton did not establish prejudice, we need not evaluate whether Sutton’s counsel was deficient in failing to discover some of this information or in choosing not to present it. We also need not address whether the state trial court’s holding that Sutton’s counsel was not deficient receives § 2254(d) deference. Cf. Wiggins,
Concurrence Opinion
concurring.
I concur in the reasoning and the result in Judge Boggs’s opinion but write separately to address the admissibility of Sutton’s prior criminal offenses. This issue is key, in my judgment, as it relates to the prejudice prong of the Strickland analysis necessitated by Sutton’s claim of ineffective assistance of counsel. The dissenting opinion reads Judge Boggs’s opinion as “conceding]” that the elicitation of “testimony about Sutton’s past crimes ... is an unlikely possibility.” This interpretation is wrong in two respects, at different levels of significance.
First, on a superficial level, the term “concedes” overstates Judge Boggs’s rather tentative
True, there is a line of cases in the Tennessee law of sentencing that has a somewhat limiting effect on the scope of negative evidence admissible in the penalty phase of a capital case. It traces back to the Tennessee Supreme Court’s opinion in Cozzolino v. State,
In the sentencing proceeding [in a capital case], evidence may be presented as to any matter that the court deems relevant to the punishment and may include, but not be limited to, the nature and circumstances of the crime; the defendant’s character, background history, and physical condition; any evidence tending to establish or rebut the aggravated circumstances ...; and any evidence tending to establish or rebut any mitigating circumstances.
The Cozzolino court rejеcted the state’s broad reading of the statute, instead holding more narrowly that:
When the statute is considered as a whole, it is clear that the only issues that the jury may properly consider in reaching a decision on the sentence to be imposed are whether the State has established one or more of the aggravating circumstances beyond a reasonable doubt and, if so, whether any mitigating factors have been shown that would outweigh those aggravating factors.
Cozzolino,
The defendant’s proof was limited to an attempt to show the origin, in a troubled childhood, of the defendant’s criminal acts. This proof was not controverted by the State’s demonstration of his present criminal proclivities.
Id.
In this case, the state post-conviction courts at both the trial and appeal levels applied state law as summarized above and concluded that Sutton did not establish that he was prejudiced by his counsel’s failure to delve into and present evidence of Sutton’s troubled childhood. They did so in a principled and thorough fashion. See Nicholas Todd Sutton v. State of Tennessee, No. 03C01-9702-CR-00067,
In this case, too, it behooves us to recall Strickland’s mandate that we “must indulge a ‘strong presumption’ that counsel’s conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.” Strickland v. Washington,
The dissent is critical of Judge Boggs’s analysis of the probable result of the jury’s deliberations had the jury been able to consider additional evidence of Sutton’s troubled childhood. But weighed against information that Sutton’s conviction for the Estep murder was, in fact, the fourth murder for which he had been found guilty, it seems almost preposterous to think that even one member of the jury would have held out against the death penalty. The same is true of the mitigation evidence offered in the district court to demonstrate Sutton’s need to resort to violence for self-protection, based on the prison conditions that existed at the time of Estep’s death. In rebuttal, the state would surely have argued that prison conditions could not similarly excuse the commission of Sutton’s three prior murders, none of which occurred while he was incarcerated. All in all, whatever one thinks of the level of the trial attorney’s professional competence, it is remarkable that he was able, for the most part, to avoid having the underlying details of his client’s criminal record put before the jury. It is this absence of prejudice that convinces me that Sutton cannot succeed on his claim of ineffective assistance of counsel.
. The only citation following the statement is: "Cf. Rickman v. Bell,
Dissenting Opinion
dissenting.
Nicholas Sutton’s childhood was horrific. The undisputed facts elicited at his habeas hearing in the district court from a licensed clinical psychologist who had evaluated Sutton, Dr. Gillian Blair, showed “an unstable, often violent and threatening home life where the supervision and structure were inadequate.” His brutal, mentally-ill father held Sutton and his mother at gun point during a stand-off with the police. When Sutton’s father later died of hypothermia and exposure while Sutton was a child, the death was never explained to him. Sutton was also abandoned by his mother before the age of one and by his maternal grandparents at the age of two. His paternal grandfather died when Sutton was only seven or eight and he was raised
Sutton’s trial counsel did not present any of this evidence at the penalty phase of Sutton’s trial — not because he made a tactical trial strategy decision that the evidence would be unhelpful or would, as the state courts mused, potentially open the door to introduction of other damaging evidence, but because trial counsel simply did not deign to ask his client. A thorough inquiry into a client’s childhood and background is high on an attorney’s list of things to do when defending a capital case, along with “show up,” “wear a suit,” and “stay awake.” Sutton’s counsel’s failure to make this basic inquiry constitutes ineffective assistance of counsel per se. See Wiggins v. Smith,
Thus, I turn to the second Strickland prong, whether counsel’s deficient performance prejudiced Sutton. Stated differently, had counsel introduced evidence of Sutton’s troubled upbringing and argued the evidence in mitigation of imposition of the death penalty, is it reasonably possible that the jury would have imposed life in prison instead of lethal injection? I believe so. As the Supreme Court observed in Williams v. Taylor,
The same is true here. Had the jurors been confronted with the mitigating evidence of Sutton’s extremely troubled childhood, the probability that at least one juror would not have decided that the aggravating circumstances of the case outweighed the mitigating circumstances beyond a reasonable doubt “is a probability sufficient to undermine confidence in the outcome.” Strickland,
The majority, of course, disagrees. It attempts to reconstruct the sentencing phase and jury deliberations, assuming the introduction of Sutton’s appalling childhood аnd background and speculatively admissible evidence of Sutton’s prior crimes, to show that Sutton was not prejudiced by his counsel’s deficient performance. To accomplish this feat, the majority employs an impressively sterile, faux-mathematical dissection that, as best I can follow, involves subtracting an ethereal “net mitigating value” of this evidence from the aggravating circumstances and dividing by the square root of maybe. After performing this devil’s arithmetic,
Now, I fully believe that judges are ordinarily good at looking back to determine when an error in a trial court was prejudicial to the outcome, at least with a greater likelihood of accuracy than a layman. And I fully concede that for our appellate and collateral review systems to work, our better-than-average accuracy rate is sufficient for most cases. The fact remains, however, that an appointment to the federal bench affords judges a black robe, not a crystal ball. Capital cases, and especially the sentencing phase of capital cases, are not “most cases” and better than average just will not do to accomplish Strickland’s overarching goal of ensuring confidence in the outcome when the penalty for getting it wrong is the ultimate price.
Would this line of argument have changed the minds of all twelve jurors? I cannot say for certain, but in this case Sutton only needed one: If one juror had been affected by the story of Sutton’s past, Sutton would not have been sentenced to death.
Furthermore, because this background information appeals to the emotions of the jurors and at least tries to paint a picture of Sutton as a human being, it strikes me as a more persuasive prediction of jury deliberations than the majority’s effort to analogize capital sentencing jury deliberations to impassive algebraic gymnastics. As an attempt to persuade the reader that Sutton suffered no prejudice, the majority’s macabre mathematics do not recognize how emotional the decision between life and death is for a juror, and for that reason fails. The decision whether to sentence someone to death is highly emotional. This is a matter of common sense, and it is well supported by the literature. See, e.g., Scott E. Sundby, A Life and Death Decision: A Jury Weighs the Death Penalty 177 (2005) (“However one feels about the death penalty, the jurors’ stories lead to one indisputable conclusion: At bottom, a jury’s effort to decide between life and death is a distinctly human endeavor infused with emotion and moral judgment. Despite the efforts of legislatures and courts to make the death penalty decision a legal judgment that is reached by following a series of rules, in the end the determination of whether the defendant lives or dies results unavoidably from the intersection of twelve jurors’ individual beliefs and views.”);
As I said, though I believe it to be the case, I cannot say for certain that my attempt to reconstruct events is more accurate than the majority’s. Nor can the majority honestly say that its reconstruction is more likely accurate than mine. However, one thing is certain — counsel’s failure to obtain and present to the jury evidence regarding Sutton’s awful early life robbed Sutton of his clearly established right to show himself as a human being in the jury’s eyes and made easier what should be the most difficult decision a jury can make. This is precisely the potential to undermine confidence in the outcome that Strickland stands to protect defendants and the courts against. I would therefore reverse and remand for resentencing with competent defense counsel.
. This case is substantially different from that of Carter v. Mitchell,
. In The Devil’s Arithmetic, a novel about a young girl transported from present-day New Jersey to a concentration camp, the camp officers use a Kafkaian system to determine which prisoners will be selected for "processing” and which will survive for another day to distance themselves from their actions in making life and death decisions for the prisoners. Jane Yolen, The Devil’s Arithmetic (1988).
. Additionally, I should note that the majority addresses several other issues of constitutionally ineffective assistance of counsel, including those of failure to raise objections to the conspicuous trial security and to statements in the prosecutor's closing arguments and that the penalty-phase jury instructions were unconstitutionally vague. Though the majority concedes that counsel’s assistance on these issues was constitutionally ineffective, it finds no prejudice. However I do not address these additional instances of ineffective assistance in depth in this dissent — because even one instance of ineffective assistance of counsel combined with a likelihood of prejudice at the penalty phase requires that the evidence go back to the jury — except to note that a capital trial marred with no less than four instances of ineffective assistance cannot pos
. The effectiveness of mitigating evidence in persuading jurors not to impose the death penalty and, in some situations, prosecutors not to pursue the death penalty cannot be overstated. For a recent profile addressing these issues see Jeffrey Toobin, The Mitigator, The New Yorker, May 9, 2011, at 32.
. In his book, Professor Sundby synthesizes interviews with numerous capital jurors. The jurors provide a first-hand account of the