Lead Opinion
William Anthony Lipham was convicted of malice murder, rape, armed robbery, and burglary in 1987, and sentenced to death for the murder. This Court affirmed Lipham’s convictions and death sentence in 1988, Lipham v. State,
Claims That Are Barred
1. Claims that were previously litigated and decided on direct appeal are barred because “[ajfter an appellate review the same issues will not be reviewed on habeas corpus.” Elrod v. Ault,
2. A habeas petitioner who fails to raise an issue that he could have raised on direct appeal defaults the issue on habeas corpus, unless he can meet the cause and prejudice test.
[A] failure to make timely objection to any alleged error or deficiency or to pursue the same on appeal ordinarily will preclude review by writ of habeas corpus. However, an otherwise valid procedural bar will not preclude a habeas corpus court from considering alleged constitutional errors or deficiencies if there shall be a showing of adequate cause for failure to object or to pursue on appeal and a showing of actual prejudice to the accused.
Black v. Hardin,
Lipham raised the following claims for the first time on habeas corpus: the constitutionality of the Unified Appeal Procedure; the constitutionality of OCGA § 17-10-30; double jeopardy arising from his malice murder and armed robbery convictions; the trial court allowing the jury to see a copy of the indictment that included a list of the grand jurors; improper voir dire; erroneous jury instructions; prosecutorial misconduct during the trial; the trial court sentencing Lipham for his crimes other than murder without the benefit of a presentence report; arbitrary discretion by the prosecutor in his decision to seek the death penalty; the mental problems of the defendant precluding his execution on Eighth Amendment grounds; the failure of the prosecution to reveal mitigating information to the defendant; the introduction of an invalid prior felony conviction for impeachment purposes; and the voluntariness of Lipham’s inculpatory statement. These claims could have been raised on direct appeal, and
Ineffective Assistance of Counsel
3. Lipham’s claim of ineffective assistance of counsel is neither barred nor defaulted. An ineffective assistance of counsel claim does not need to be raised until trial counsel no longer represents the defendant. White v. Kelso,
In order to prevail, Lipham must show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington,
In its December 1997 final order, the habeas court ruled that Lipham’s trial counsel had been ineffective in the sentencing phase due to “a total failure ... to read, review, interpret, or otherwise utilize the voluminous social and psychological records concerning their client.” Lipham spent nine years, from age nine to eighteen, in various institutions including a children’s home and mental hospitals. Trial counsel had approximately 2,500 pages of medical, psychological and social records from the Department of Family and Children Services (“DFACS”) and the Anneewakee Treatment Center for use at trial. They used two records custodians to introduce the records into evidence, but presented virtually no testimony to explain or distill the records. They presented only one other mitigation witness, the defendant’s wife, who briefly pleaded for mercy. Trial counsel then made a few references to the records in closing argument, stated that Lipham’s life had come down to “this stack of papers,” and exhorted the jury to read the pile of documents during their
A claim of ineffective assistance of counsel is a mixed question of law and fact. Strickland,
A. The guilt/innocence phase.
Pretermitting the question of defective representation, we find that the habeas court did not err by ruling that Lipham did not show actual prejudice with regard to his convictions. See Strickland,
B. The penalty phase.
Steve Fanning and Ike Hudson were appointed to represent Lipham and they represented him through his trial and direct appeal. For a few months, a lawyer from New York, Michael Dowd, assisted Fanning and Hudson, but the trial court would not appoint Dowd as lead counsel and Dowd then refused to participate further in the case.
Fanning and Hudson are experienced criminal defense attorneys, and Fanning was appointed lead counsel. He is a charter member of the Georgia Association of Criminal Defense Lawyers and, at the time of Lipham’s trial, had tried approximately 150 felony cases, including six murder cases. Fanning had never tried a death penalty case, but he had tried felony cases when there was jury sentencing and thus was familiar with presenting a mitigation case. Fanning & Hudson divided up the trial responsibilities: Fanning was primarily responsible for the guilt/innocence phase and Hudson was primarily responsible for the sentencing phase.
1) The mitigation investigation.
Trial counsel
The social and psychological records from Anneewakee and DFACS chronicle Lipham’s difficult childhood. Lipham is one of fourteen children born to Hugh and Aline Lipham. Neither of Lipham’s parents had more than a sixth grade education; Aline married Hugh when she was only eleven years old. DFACS social records show that Lipham’s parents were violent alcoholics who physically abused the children and each other. The family was extremely poor and the Lipham children were severely neglected. A DFACS caseworker reported that the children were malnourished and dirty, and that housekeeping standards were at “the lowest level.” DFACS records further show that Lipham’s mother did not bathe or clothe the children, and that, once the children were older than infants, she neither disciplined them nor spent much time with them. There was a suggestion that Aline Lipham worked as a prostitute when her husband, a truck driver, was out of town. According to the records, Lipham was not encouraged to do well in school. None of Lipham’s older siblings graduated from high school and most had been in youth detention. At an early age, Lipham was following the same path and was reported to have a problem with fighting and acting out. State authorities became involved in the situation but Lipham’s parents did not cooperate with DFACS and refused to take responsibility for their actions.
In 1972, when Lipham was nine years old, the state intervened and removed all eight minor children from the Lipham household. The younger children were placed for adoption and the older children, including Lipham, were placed in various foster homes and institutions until they became adults. Lipham never saw some of his siblings again and rarely saw any of them. Lipham’s parents effectively abandoned him to the state and made no serious attempt at a reunion. Lipham and his brother Gene were sent to the Anne Elizabeth Shepard Home in Columbus.
By this time, Lipham had severe behavioral problems. He was reported by DFACS to be violent towards the staff and other children, bullying the younger children and antagonizing the older children until they fought with him. In fact, the older children became so exasperated by Lipham’s disruptive behavior that they convened a “kangaroo court” and beat him with belts as punishment. An attempt to place Lipham with a foster family failed when he beat the foster couple’s son. Lipham was sexually aggressive to other children and even to animals. A report indicates that he once prostituted himself to an adult male. During this time at the Shepard Home, Lipham was struck in the head by a baseball bat (apparently by his brother Gene) and injured. Notes made by social workers and psychologists at the time indicate their concern over Lipham’s future. One report warns that, if Lipham is not cured of this behavior, he is headed
In March 1975, Lipham was admitted to Central State Hospital and in June of that year he was admitted to West Georgia Regional Hospital. Both are mental hospitals. Lipham continued to have problems with fighting and misbehaving. In his discharge summary from West Georgia, it was reported that the institution had failed to teach Lipham respect for others, that he continued to be aggressive and impulsive, and that he lacked a conscience. His prognosis was determined to be poor.
In 1976, when Lipham was 13 years old, he was admitted to the Anneewakee Treatment Center, an institution that treated children for behavioral problems. The admitting psychologist noted the long history of institutionalization and diagnosed Lipham as having an anxiety neurosis and an overanxious reaction to adolescence. The psychologist noted that Lipham’s overall IQ was in the high 80s, but that there was a wide disparity between his performance IQ and his verbal IQ. Lipham’s performance IQ was over 100, but his verbal IQ was about 25 points lower. Lipham continued to have problems with aggression and lack of impulse control at Anneewakee; he was so disruptive that he was usually not allowed to participate in group therapy or formal educational settings. Other diagnoses during his stay at Anneewakee included conduct disorder and attention deficit disorder; another report suggests a learning disability. There is also a record of another head injury occurring in 1978.
Lipham remained at Anneewakee until he was 18, with his behavior gradually improving. Although Lipham still had problems with impulse control and sometimes argued with the staff, his sexual misconduct ceased and his aggression diminished. Dottie Henson, Lipham’s DFACS caseworker, noted in 1981, the year of Lipham’s discharge, that she had been afraid to be alone with Lipham when he was a young child but felt comfortable and safe when alone with him as an adult. Lipham left Anneewakee when he was 18 because his state funding support ended. A psychologist noted upon his discharge that his admitting symptoms were in remission, but that future success was greatly dependent upon a structured environment.
2) The mitigation strategy and presentation of the case.
Based on Leslie Van Toole’s examination of the DFACS and Anneewakee records, trial counsel were concerned that these records were “a loaded gun.” According to lead trial counsel, Van Toole had told them that the jury could view the defendant from these records as either a “poor, institutionalized soul from a neglected background or ... an outright sociopath who only did things for his immediate gratification.” Trial counsel considered using Dottie Henson to detail Lipham’s early life, but decided to use her as little more than a
Ike Hudson conducted the penalty phase of the trial. He told the jury in his opening statement that he expected to present evidence obtained from Anneewakee, where Lipham was confined from age thirteen to eighteen, that Lipham had been “locked up” as a ward of the state from age nine to eighteen, and that Lipham had come from a “terrible home.” The first mitigation witness was Dottie Henson. She established the business records foundation for admitting almost 2,000 pages of DFACS records. She also briefly testified that Lipham and seven of his brothers and sisters had been taken from their parents when he was nine years old due to neglect, that the children had lacked supervision and that they had been allowed to do whatever they wanted. She also related that Lipham had been placed in the Ann Elizabeth Shepard Home, Central State Hospital, West Georgia Regional Hospital, and Anneewakee, until he was released at agel8 because state funding was no longer available for his care. She did not go into specifics or provide any information beyond that which is summarized in the previous two sentences. Trial counsel then asked her if the DFACS records portrayed Lipham’s life from age nine to eighteen, including his diagnosis. She responded affirmatively, and gave the opinion that the defendant did well at Anneewakee but not in open society. This completed her testimony. The next witness was the Anneewakee records custodian. She only established the business records foundation for the 767 pages of Anneewakee records. The last mitigation witness was Janie Lipham, the defendant’s wife. She testified that Lipham had a young son, and pleaded for mercy, saying that their son needs his father.
In his closing argument, Hudson mentioned that the state had assumed custody of Lipham when he was nine years old, and that the story of Lipham’s life was contained in the DFACS and Anneewakee records, which he characterized as “large records” and a “lot of paper work.” He stated that Lipham had been neglected as a child, that his parents were alcoholics, and that his brothers beat him. He said that Lipham became institutionalized and learned that he only received attention when he behaved inappropriately. Hudson also said that the state bore some responsibility for releasing Lipham before he was ready to live in society. The jury was repeatedly implored to read the records because “it’s terrible to think [Lipham’s] life comes down to a stack of paper work.” He asked the jury:
Take these records, ladies and gentlemen. Please read through them, understand them, if you can. They are the reports of psychologists and psychiatrists. Sometimes they appear to be gobbly-gook, but I think they show that*216 throughout the course of his life there was one brief glimmer and they recognized that.
Hudson ended his argument with a plea of mercy for his client.
3) Deficient investigation.
While trial counsel is afforded tremendous deference over matters of trial strategy, the strategy that is selected must be supported by adequate investigation. See Turpin v. Christenson,
Trial counsel testified that they did not hire a psychologist for use in the sentencing phase because Leslie Van Toole had reviewed the DFACS and Anneewakee records and determined that the records could be both aggravating and mitigating. No other person with mental health training examined these records. However, Van Toole is not a psychologist or a psychiatrist; he has no medical degree or other doctorate degree; he is a family counselor who is not licensed by the state. Hudson testified that he was aware that Van Toole was unlicensed and neither a psychologist nor a psychiatrist; Fanning testified that he thought Van Toole was a psychologist. Hudson testified, when asked by petitioner’s counsel why he had not called Van Toole to testify in the sentencing phase: “number one, he wasn’t a psychiatrist, he wasn’t an expert.” In addition, Van Toole testified that he merely reviewed the records in his spare time as a favor to Hudson, that he was not paid or told that he might testify at trial, that he does not believe he saw all the records, and that his review of the records was “by no means in-depth.” Most importantly, contrary to trial counsel’s testimony, Van Toole testified that trial counsel only told him to look at the records for competence and sanity, not for mitigation evidence. Although the habeas court did not explicitly resolve this conflict in the testimony, it found that trial counsel totally failed to read, review or interpret the institutional records. The habeas record supports these findings, and we must accept the habeas court’s factual findings unless clearly erroneous. See Linares,
Trial counsel’s failure to have a mental health expert examine the records for mitigation evidence was not reasonable under the circumstances. Trial counsel knew they had a client who had been insti
4) Deficient presentation of the mitigation case.
The appropriate test for determining whether trial counsel's performance in the penalty phase was deficient is whether “ ‘some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.’ ” Jefferson,
It is usually true that evidence of a defendant’s troubled childhood will present him in a more sympathetic light to a jury. Devier,
Trial counsel testified at the habeas hearing that they were concerned that some information in the records could be considered aggravating; for this reason they decided not to have any witnesses interpret these records for the jury. However, this valid concern was not addressed by the trial strategy. The jury, left unguided to comb through voluminous records, was just as likely to encounter aggravating information as mitigating information, i.e., a notation from a nurse about Lipham assaulting another patient versus a memorandum from a DFACS caseworker detailing the terrible neglect that Lipham experienced from his parents.
Further, our examination of the institutional records reveals that it was unreasonable to expect the jurors to digest and understand these records by themselves. The 2,500 pages of records were obviously voluminous; trial counsel characterized the amount of documents as a stack of paper “two feet tall.” If the jury was to read at the fast pace of 200 pages an hour, it would still take them over 12 hours to review all the documents. The records included medical records, psychological tests, diagnoses, raw test data, therapy notes, progress notes, incident reports, accident reports, social records, school records, social security records, funding requests, and correspondence. In addition to the sheer volume, the records are difficult to understand. The information recorded by the institutional staffs is filled with wording and abbreviations that were apparently common
Trial counsel’s mitigation defense was simple: they gave the jury virtually their entire mitigation file, about 2,500 pages, and implored them to dig through it and find the mitigation evidence buried inside. They provided no guidance as to where to find this mitigation evidence inside the file, and little guidance as to what it might look like. They specifically told the jury to read the psychiatric and psychological reports but made no attempt to educate the jury about what these reports might mean. Trial counsel’s presentation of the mitigation case was not reasonable under the circumstances and constituted deficient performance. See Christenson,
5) Actual prejudice.
The habeas court determined that Lipham was actually prejudiced by trial counsel’s deficient performance, that but for trial counsel’s errors there was a reasonable probability that Lipham would have received a sentence less than death. See Smith,
4. Lipham raised five claims in his last amended petition that were never ruled on by the habeas court. The claims are: improper contact between the sheriff and the jurors; suppression of exculpatory information regarding a potential suspect; denial of a fair trial due to the lack of an adequate mental health examination; ineffective assistance of counsel on appeal; and cumulative error. The State asserts that the last amended petition was not timely and should have been dismissed. The State also argues that these claims lack merit or are procedurally defaulted. Because the habeas court never ruled on the timeliness of the last amended petition or on the merits of these claims, we remand these issues to the habeas court for a ruling. Until there is a decision in the habeas court, they are not ripe for appeal. Zant v. Moon,
Judgment affirmed in part and remanded in part.
Notes
Dowd did not become co-counsel in the case because he insisted that he be named lead counsel and refused to accept any limitations on his representation of Lipham. Because the trial court was concerned about having a lawyer act as lead counsel in a capital case who was not a member of the Georgia bar and because Dowd had failed to comply with Uniform Superior Court Rule 4.4, the trial court denied Dowd’s request to be lead counsel. Dowd then ceased his participation in the defense. See Lipham,
Panning and Hudson will be referred to collectively as “trial counsel.”
Dr. Schiffman (the psychiatrist that Dowd brought into the case) apparently had no input into the defense beyond an examination of Lipham for competency and sanity. When Dowd ended his involvement with Lipham’s defense, Dr. Schiffman’s involvement also ceased.
We know that it is common practice for post-conviction counsel to file affidavits by witnesses who say they would have supplied additional mitigating evidence, had they been called by trial counsel. See Waters v. Thomas,
Dissenting Opinion
dissenting.
William Anthony Lipham raped and then shot the 79-year-old
Lipham has no constitutional guarantee of counsel who would insure that a life sentence would be returned. Under the constitution, he has only the right to counsel who was reasonably likely to, and who did, render him reasonably effective assistance. McGill v. State,
The habeas court concluded that trial counsel was ineffective because of his “total failure to read, review, interpret, or otherwise utilize the voluminous social and psychological records concerning” Lipham. I agree with the majority that there is no evidence that trial counsel himself read, reviewed and interpreted the entirety of the voluminous records. However, neither the habeas court nor the majority cite any authority for the proposition that a trial counsel must personally read and review each and every record which documents the life of his client to the date of trial. The proper test is “reasonableness under prevailing professional norms.” Strickland, supra at 688 (III) (A). Under the record before us, there is absolutely nothing to support the conclusion that, in accordance with those professional norms, no reasonable defense lawyer would have failed to read and review Lipham’s voluminous records for himself. The appropriate test for determining whether the constitutional right to reasonably effective assistance of counsel
“has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at trial could have acted, in the circumstances, as defense*222 counsel acted at trial ... we are not interested in grading lawyers’ performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.” [CitJ
Jefferson v. Zant,
The habeas court also incorrectly found that the trial attorneys did not undertake any review and interpretation of Lipham’s records, since it is undisputed that counsel did have those records reviewed and interpreted by a family counselor. The majority justifies the habeas court’s erroneous finding of the lawyers’ “total failure” in this regard on the basis that the family counselor was not an expert. Again, however, there is no authority cited for the proposition that review of a defendant’s records by anyone other than an expert is so contrary to prevailing professional norms as to be unreasonable as a matter of law. Moreover, the family counselor reported to Lipham’s counsel that the records could show that Lipham was a “poor, institutionalized soul from a neglected background or . . .an outright sociopath who only did things for his immediate gratification.” There is no contention that this summary of the records is in any way inaccurate or that an expert would disagree with that assessment. While an expert’s review might result in a more detailed report, the lack of detail in the family counselor’s assessment does not in any way demonstrate that it was unreasonable. Accordingly, there should be no question that the counselor’s accurate, though non-expert, opinion was a reasonable basis upon which the defense attorneys could determine that a further inquiry into the records by an expert was unnecessary.
[CJounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all circumstances, applying a heavy measure of deference to counsel’s judgments.
Strickland, supra at 691 (III) (A).
The habeas court also erred in its finding that there was a total failure on the part of trial counsel to utilize the records. To the contrary, Lipham’s lawyer made the tactical decision to introduce the records into evidence and he urged the jury to consider those records in its deliberations. Moreover, counsel presented witnesses who succinctly testified to certain material elements of mitigation contained in the records, such as Lipham’s family life and his history of hospitalizations in various institutions. Presumably, the habeas court would have used the records differently than did the attorneys repre
We must accept a habeas court’s factual findings unless clearly erroneous. Linares v. State,
[I]t is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Cit.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.
Strickland, supra at 689 (III) (A). Unfortunately, rather than acting to ameliorate the problem, this Court increasingly has become an instrument for perpetuating it. See Turpin v. Christenson,
The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel’s unsuccessful defense. . . . Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.
(Emphasis supplied.) It is apparent that, with this Court’s blessing, the predicted dire consequence of failing to maintain a strict adherence to the principles of Strickland has now come to pass in Georgia. The availability of unbridled post-trial inquiry, as sanctioned by the Court today, has transformed Georgia’s state habeas proceedings into nothing more than a second trial wherein the habeas petitioner’s trial attorney becomes, in effect, the defendant and, if he did not obtain a life sentence for his client, he is presumed to be constitutionally ineffective. Because I cannot subscribe to this consequence, I dissent.
I am authorized to state that Justice Hunstein joins in this dissent.
Concurrence Opinion
concurring.
I concur fully with the detailed and well-reasoned majority opinion. I write separately to address the following statement made in the dissent:
The availability of unbridled post-trial inquiry, as sanctioned by the Court today, has transformed Georgia’s state habeas proceedings into nothing more than a second trial wherein the habeas petitioner’s trial attorney becomes, in effect, the defendant and, if he did not obtain a life sentence for his client, he is presumed to be constitutionally ineffective.5
This Court’s own records show that since 1995, twenty-eight habeas petitions have been filed in this Court by petitioners who have been sentenced to death for their crimes. Most, if not all, of these habeas petitioners claim that either their trial counsel or their appellate counsel, or both, were ineffective. Of the twenty-eight death penalty habeas petitions filed since 1995, this Court has reversed and remanded one habeas appeal on grounds relative to a petitioner’s claim of ineffective counsel.
Disent at 221
Turpin v. Todd,