*1 ex- an actual conflict hearing whether of inter- such a conflict and whether isted voluntary knowing and affected
est plea. guilty of Mrs. Osborne’s
nature
III. CONCLUSION above, we explained
For the reasons judgment Remand
VaCate 44(c) a Rule hear- court to conduct district Osborne whether Mrs.
ing to determine of the effective assistance deprived interest of a conflict of because
counsel joint representation by the
caused of Mr. and Mrs. Osborne.
Thornton
Wayne BATES, Lee Petitioner-
Appellant, Warden,
Ricky BELL, Respondent-
Appellee.
No. 02-6436. Appeals, Court of
United States Circuit.
Sixth Sept. 2004.
Argued: Filed: March
Decided and *2 Stephen Kissinger,
ARGUED: M. Fed- Services, Knoxville, eral Defender Tennes- Lustre, Bates was a vote for a a life sentence for B. Office see, Alice Appellant. for Nashville, continuing was a General, death sentence for others Ten- Attorney argument. final throughout refrain BRIEF: Ste- nessee, ON Appellee. frequently followed these Federal Defender Ser- Kissinger, M. phen Tennessee, negative them Knoxville, expressions vices, Appellant. *3 expert witness and Lustre, Smith, about Bates’s opinions Office B. Gordon W. Alice Nashville, against General, Ten- attacks Bates’s law- with Attorney of the yers. appeal, the Tennessee nessee, On Appellee. for not prosecutors criticized the Court BATCHELDER, MERRITT, Before: rules.” It referred following “disciplinary MOORE, Judges. and Circuit “clearly “in- improper,” to their conduct as appropriate,” “certainly uncalled for.” OPINION atmosphere poisoned The misconduct and amounted to MERRITT, sentencing hearing of the Judge. Circuit process rights a denial of Bate’s due Bates was sentenced Wayne Lee from arising His death sentence law. jury in the Court by a Criminal death fundamentally hearing unfair cannot be Tennessee, pleading after County, Coffee' stand. permitted to murder. After state degree to first guilty ended, he proceedings post-conviction Background I. relief, in which was denied sought habeas A. chal- appeal, Bates the District Court. On plea guilty of his lenges the voluntariness 20, 1986, escaped the July Bates On senténcing constitutionality of his County, in authorities Allen custody of support As the record does hearing. charged he had been Kentucky, where plea was en- contention that his first-degree burglary, possession involuntarily, his unknowingly tered and two misdemeanors. property, stolen do, however, must stand. We conviction later, into a residence days Two he broke claim of merit in Bates’s find County, Kentucky, and stole Simpson in death conclude that Bates misconduct and sin- including .410-gauge several items therefore be vacated. We sentence must off the sawing After gle-barrel shotgun. part. in part in and REVERSE AFFIRM gun, he hid the of the stock and barrel from the resi- stolen case, weapon in a suitcase pre- In present 23, 1986, at an Bates was July dence. On proper consideration giving from vented Manchester, 24 in Ten- Interstate have exit off may mitigating circumstances an nessee, to steal planning he was where reject penalty. death jury to led the Guida, 28-year-old automobile. Julie engaged prejudi- prosecutors The state from who was engineer Utah Due mechanical violation cial Inn, Holiday at the Manchester staying at closing argument Clause. Process area of the interstate trial, in the jogging state was sentencing phase shotgun and the stolen pulled Bates jury that exit. repeatedly told the struggle, After a brief confronted Guida. they would Bates to live by “permitting” jog- off the into the woods he walked her to the murder accomplice” an “become and the shoelaces crimes, Using trail. her ging to future because accomplice radio, portable her cord from headphone will dog” to whom is a “rabid To her prevent a tree. her to for Bates tied of execution issuing a “warrant out, attempted gag crying from a vote for Suggesting that else.” someone of her own him in Guida with one socks. Bates seen the stolen vehicle showed going Guida, told Guida that he was to leave her him a picture of Bates told the there while he took her car. Then without agents, “I believe I a lawyer.” need warning, he shot her once the back of agents interrogation ended the and re- head, killing instantly. her jail. turned Bates to No effort was made him attorney to afford access to an over body hiding After her under some days. the next thirteen See State brush, Bates returned to Guida’s hotel at 804 S.W.2d room, showered, shaved, where he and ate departed some fruit. Bates then in Gui- 2, 1986, September On representatives car, da’s rental taking money her and trav- from the Investiga- Tennessee Bureau of eler’s checks. He drove east across Ten- (“TBI”) tion and the County Coffee Dis- nessee, heading Maryland. for his home in *4 Attorney’s trict office interrogated Bates Bristol, At a Tennessee stop, truck he They for over five hours. despite did so hitchhikers, picked up two who assisted having by been informed the FBI that using him in Guida’s traveler’s checks to requested attorney. Bates had an During pay July for food and other items. On questioning, shooting he confessed to 1986, Bates arrested on was an unrelated captured Guida. This confession was on Baltimore, Maryland. offense in Tracing later, tape. days audio Nine Septem- Guida, the traveler’s checks stolen from 11, 1986, agent ber an FBI collecting the Tennessee eventually authorities iden- hair samples pursuant from Bates to a suspect. tified Bates as a While he was court order. had who still not been being Maryland, ques- held Bates was provided attorney, agent told the multiple tioned times. He made two state- he why they did understand were col- murder, ments confession to the both of lecting samples hair already as he had which are contested Bates as inadmissi- to shooting. confessed The FBI agent ble. presented Bates rights with an advice of B. form and waiver which signed. Bates then confessed second time. 20, 1986, August following July On Bates also confessed the murder to Paul arrest, Federal Bureau of Investigation Carter while both (“FBI”) men were confined in agents regard- interviewed Bates County jail. the Coffee The Tennessee ing transportation the interstate of a sto- Supreme Court later ruled that the first possible len vehicle and the kidnapping of confession should properly Guida. He was have been excluded from advised of his record, right against but found its admission harm- self-incrimination and his counsel, right to but sign subsequent he refused to less error as these confessions acknowledgment form. agents substantially After the were valid and tracked the informed him that several witnesses had tainted confession.1 first, 1. Bates improperly contends that this that the first confession contained more de- tail, prejudiced admitted confession his compromising included more informa- hearing tion, where the issue was jury literally not whether he and allowed the to hear murder, guilty or innocent of the question. but Bates describe the events in Unlike confessions, first, whether he should be subsequent sentenced to death or to inadmis- prison parole. life in without He claims that taped. Through sible confession was voice, while the two later tape, confessions contained heard Bates in his own elements, (laden some of the same chilling factual exple- dif- discuss in detail markedly slur) fered from the including first confession in tives and at least one racial Specif- circumstances. mitigating tence of C. pointed to the three ically, the defense the confession. suppress Bates moved statutory following mitigating factors: motion to denied his the trial court After 1. The murder was committed while to murder pled guilty suppress, under the influence of the defendant was larceny, pre- grand and to degree the first extreme mental or emotional distur- appeal the admission serving right bance; County pros- The Coffee the confessions. For a penalty. capacity ap- the death 2. The of the defendant to sought ecutors Tennessee, the wrongfulness of his conduct preciate to be executed defendant special require- sen- jury must determine after or to conform his conduct penalty substantially im- hearing whether the death ments of the law was tencing so, jury must doing as a of mental disease or appropriate. paired result has or not the state or intoxication which was insuffi- whether defect determine statuto- particular a defense to the crime proven the existence cient establish circumstances, and, so, if substantially affected his ry aggravating but which against aggravating judgment; factors weigh those During the sen- mitigating evidence. any acted extreme 3. The defendant under trial, attempted to tencing the substantial domina- duress or under *5 statutory ag- of three prove the existence person. tion of another gravating circumstances: support mitigation, In of their case of con- previously The defendant mother, a Helen and defendant’s felonies, other or more victed of one Griffin, testified on psychiatrist, Dr. John charge, which involve present than the regard- behalf. Helen Bates testified his per- to the or threat of violence the use Wayne the troubled childhood of Lee ing son; lung indicated that and bowel Bates. She for the 2. The murder was committed im- appeared development complications with, interfering or avoiding, purpose mediately his birth and that he had after prosecu- a lawful arrest or preventing problems. She discussed recurrent health another; and the defendant or tion of and rocking of violent early his behaviors committed while
3. The murder was Bates sibling. his Ms. aggression toward in engaged commit- the defendant was in which culture of violence testified to the in com- accomplice ting, or was an her, Bates’s father abused he was raised. commit, of, attempting or was mission children, and presence often in the committing or at- fleeing or was after testi- her arm. She on one occasion broke commit, any burglary, rob- tempting to younger took his sister that his father fied bery, larceny kidnapping. played and “Russian into another room during At point with her. one argued that Roulette” Additionally, childhood, Bates shot Ms. danger to the defendant’s continue to be Bates would father was Although Bates’s her husband. response, In defense counsel society. wounded, from an over- fatally he died the exis- not to demonstrate attempted Bates took, effect on taped had a substantial com- confession and the other crimes he actions he mitted, death. days jury’s and after his cold- sentence him to in the before decision to the con- murder of Julie Guida. vacating blooded we are the death sentence As opposed sentencing phase as text of the grounds, we need prosecutorial misconduct content, guilt phase, Bates maintains decide this issue. form, improperly-admitted, and tone of returning pain diagnosed dose of medication after Bates had been with an Bates hospital. personality from the Ms. testified antisocial or mixed disorder. Marshall, attempted she had to commit suicide as The State called Dr. Willis died, in psychiatrist well. After Bates’s father she be- rebuttal. While the two psychiatrists’ man. testimony diverged, came involved with another abusive Marshall motorcycle in a agree The two of them were did that Bates mini- demonstrated gang, weapons, regularly dysfunction carried mal brain and properly drugs. kicking alcohol After diagnosed abused with an anti-social personality home, this man out of her she married a paranoid disorder some tendencies. man, third mental health who had deliberations, After jury sentenced problems. substance abuse This man sex- jury Bates to death. The found that each ually daughter assaulted her and was proffered aggravating three circum- eventually police shot the cou- proven beyond stances was a reasonable ple’s yard. front doubt. It is impossible from the ver- mother, According to Bates’s dict forms used Tennessee to determine rarely attended school as a child due to jury’s finding as to the existence of illness, frequently and was trouble for mitigating circumstances. His death sen- fighting when he did attend. She testified appeal. tence was affirmed on On habeas as a hyperac- review, child he was antisocial and brings multiple challenges tive, hurting robbing often others. the fairness of proceedings and conse- progressed past Bates never the third quent appropriateness of penal- the death grade. repeating When he was third ty. record, After reviewing the we find grade, burglarizing he was removed significant constitutional error in the Cof- During youth, the school. he was in County fee sentencing hearing that re- juvenile and out age institutions. At quires Bates receive a penalty phase new *6 years Bates in pris- was sentenced to ten trial. release, Upon
on. he returned to live II. Prosecutorial Misconduct with his mother. She testified that his violent behavior continued. Bates claims that his hearing was fundamentally unfair im- due Griffin,
Dr. psychiatrist, testified that proper and egregious conduct of the prose- health, behavioral, Bates had serious and Specifically, cution. that contends problems substance abuse as a child. He (Buck) Kenneth Shelton and Charles Ram- highlighted that Bates exhibited unusu- (1) sey, the County prosecutors, Coffee degree al of violence and antisocial behav- improperly passions preju- incited the and ior as a using child and that he had started (2) jury, injected dices of the person- their drugs early age and alcohol as as six or record, al opinions beliefs and into the and seven. Dr. Griffin testified that childhood (3) inappropriately criticized coun- testing damage revealed evidence of brain objecting sel for improper their argu- hyperactivity. IQ in His the low ments. range. normal psychiatrist stated
that Bates depression suffered from A. hyperkinetic, dysfunction. minimal brain Additionally, review, Dr. that Griffin noted On habeas relevant “[t]he adopted violence as dealing question his method for is prosecutor’s whether the com with life witnessing due to excessive vio- ments ‘so infected the trial with unfairness lence as a child. Dr. Griffin also noted as to make the conviction a denial of due
641
”
(6th
Makowski,
447,
291 F.3d
453-54
Cir.
Wainwright, 477
v.
Darden
process.’
2002)
2464,
only
that habeas relief is
168, 181,
(noting
91 L.Ed.2d
106 S.Ct.
U.S.
(1986)
if there “was an unreasonable
Donnelly
appropriate
v. DeChristo
(quoting
144
1868,
687, 643,
clearly
40
established federal
416,
application
94
S.Ct.
foro,
U.S.
Adams,
law”);
(1974)).
v.
376
prose
if the
see also Millender
“Even
L.Ed.2d 431
(6th Cir.2004) (“Claims
520,
or
uni
improper
even
528
conduct was
cutor’s
condemned,
are reviewed def
provide
can
relief
misconduct
versally
we
review.”).
In
flagrant
erentially
so
as
on habeas
deter
if
only
the statements
fundamentally mining
prosecutorial misconduct
entire trial
whether
to render the
Parker,
487,
relief,
apply
we
Bowling v.
344 F.3d
mandates habeas
unfair.”
Cir.2003).
(6th
v.
is re
error
standard.
Pritchett
Yet reversal
harmless
512
(6th Cir.1997).
Pitcher,
959,
is “so
117 F.3d
prosecutor’s
if
quired
it
per
An
to be harmless unless
persistent
error is found
pronounced
injurious
or
of the trial
“had
effect
atmosphere
substantial
meates the entire
jury’s ver
determining
prejudice
influence
gross
probably
or so
as
Abrahamson,
Pitcher,
v.
507 U.S.
v.
117 F.3d
dict.” Brecht
Pritchett
defendant.”
(6th
619, 638,
1710,
Cir.1997);
Parker, n. Cir. 344 F.3d however, question sentencing hearing, 2003) complex is more than of error or effect trials. Rather than determin traditional relief, Bates order to obtain a constitutional error would ing whether prosecution’s must demonstrate jury guilty” from a “not pushed have flagrant and so improper conduct was both verdict, we must at “guilty” verdict to a Mason v. Mitch to warrant reversal. as tempt to whether the constitution discover (6th Cir.2003). ell, If 320 F.3d jury’s decision be al error influenced conduct, four finds this Court death. tween life and determining factors are considered flagrant: challenged conduct whether B. (1) likelihood that the remarks the behavior of question, Without tended to mislead prosecutor (2) during Mr. Bates’s sen defendant; prosecution whether the prejudice the *7 (3) improper. Ad extensive; tencing hearing highly were isolated or remarks obligation an to treat deliberately vocates have whether the remarks (4) and made; respectfully court and each other the total accidentally and arguments on only proper forth based put the defen against of the evidence strength Adams, prosecu in The evidence the record. 376 F.3d Millender v. dant. See (6th Parker, pro to meet their Cir.2004); in this case failed 520, Bowling v. tors 528 (1) (6th They improperly Cir.2003); obligations. 487, Angel fessional 344 F.3d 512-13 (6th prejudices and 605, passions incited the 608 Cir. Overberg, v. (2) and personal beliefs 1982) (en banc) jury, injected their v. (citing United States (3) Cir.1976)). record, (6th inappro into the and Leon, opinions 534 F.2d ob counsel for criticized Bates’s AEDPA, give priately required we are Under arguments. jecting to their to the Tennessee deference this mis attorneys challenged have Bates’s prosecu- determination of Court’s in objections, their in their trial conduct claims. See Macias torial misconduct in appeal, proceed- right.” direct and this habeas Where is fundamental fairness ing. that, and, in to let this man live in essence, to sentence someone else to die? Inciting Preju- 1. the Passions and goes he penitentiary state un- Jury. closing argument dices If prosecution wildly was riddled with der a sentence and he permitted life inappropriate inflammatory remarks among to be the general population in in violation of this what Court has de- facility where going he is to be prose- cardinal rule that a scribed as “the housed, by your voting actions of for life cutor cannot make statements ‘calculated him, you voting are death for for for prejudices passions to incite the someone else. Where is the fairness? ” Gall, jurors.’ at (quoting 231 F.3d justice in permitting Where is the him to Solivan, United States v. 937 F.2d go down and execute some individual (6th Cir.1991)); see also Stumbo v. who is in penitentiary grand Seabold, Cir.1983) 704 F.2d larceny? larceny Grand never has been (denouncing statements which “tend[] to and never will a capital crime in this prejudice jury.”). inflame Sure, state. the men in penitentiary summation, Throughout the Coffee criminals, are and some of them have County prosecutors continually told the committed the act of grand larceny or jury would an “become accom- Sure, felony some other offense. he has plice” to by “permitting his crime this man obligation to serve a sentence. He live,” argued would be punished, must be but he doesn’t de- responsible for the future deaths of others serve penalty. the death Don’t let Bates if they opted to sentence Bates to life be his executioner. imprisonment rather than death: By live, permitting this man to inwe v v sfc # # essence become an accomplice. We have assisted him in his criminal under- know; escape, you Prisoners do and this taking. you, based on the law and prisoner If here-this defendant-must have case, choose not to exe- facts of a rather ability advanced and knowledge cute defendant, you have passively of escape.... Where is the in fairness issued a warrant execution some- voting and, to give this man life es- one else. don’t We know who it is. We -sence, inflicting the death penalty on don’t know when it place; will take but perhaps one or more other individuals gentlemen, ladies and I you think can society? This man killed because he proof see from the in this case that the escape July course of only thing that will be left out of that you think, you Do as look over warrant of execution that someone else case, the facts in this there is anything, receive, lives, is to if this man is the gentlemen, ladies and that will ever inhi- name of the victim and the date that it himbit from killing again if he escapes? *8 place. takes going This man is to kill not, I think I you and believe that share again first, if he is not stopped and I that feeling also. peo- There are other think that is you. obvious to each of ple in penitentiary system that de- Even his psychiatrist, own by hired serve protection: our the administrative us, them paid and even Dr. John there, staff guards that Griffin oversee you, tells going “This man is to again kill as he it these individuals. necessary deems in his Please don’t vote for own framework of what he thinks is him and death them. life for added). him take it to the and let gun The back 1497-98,1498 (emphasis Apx. again. he can kill penitentiary so referred repeatedly if that would occur murders near-certain 1506-07,1507,1510-11. Apx. live: to permitted
Bates would Beyond suggesting if they to future murders accomplice an by the defen- be was committed The crime death, pros- Bates to failed to sentence custody. in lawful was while he dant dog: him to a rabid compared ecutors guards, kill also you prison That’s when I jail personnel, kill and you is an old gentlemen, that’s when there Ladies maybe that we something country that there is saying think that is out the defendant dog. Wayne to from a rabid Lee can look forward no cure for case, dogs allowed to live- are dog. if he is is a rabid There in his next Bates your might rabid that that become * * * * * * you love them to pet, and might favorite Wayne Lee back put Bates Please don’t rabid, death; they but once do become prison of general population in the someone, if that bite it’s a fact him allow to the State of Tennessee to die. person going animal or is other some- out and execute escape and come Guida; Bates Julie Wayne Lee killed Julie- like executed one else he said, kill Dr. “He’ll own Griffin his Wayne Lee put Please don’t again.” 1500-01, Repeatedly 1515-16. Apx. at general population into the Bates back they suggested through arguments, out escape him to and come and allow a life sentence giving that like he execut- and execute someone else to gun his hands placing equivalent ed Julie Guida- kill again: continued, Ramsey “[h]e Apx. 1515-16. imprison- find life going are you If just he is He’s because mean. abnormal Bates because he is Wayne Lee ment for Apx. 1516. As dog.” like rabid him, give him back then take depressed, com- suggested, Court Tennessee Mayes, from Curtis stole gun his he in a dog to a rabid paring defendant penitentiary it to the let him take hearing was penalty death the over- might him.... It solve with at 804 S.W.2d improper.” “patently you put if prison crowding problem of self-aware shocking display aIn there his Lee down with Wayne ethics, General defiance right thing it is gun, but sure argument addressed closing in his Ramsey .... do attorneys as follows: of Bates’s one [******] Mr. Peters, you can call it appeal If that is prisonment, tiary Mayes and let use. shotgun [******] that he stole justification for him. He then him take give Mr. Bates will from Mr. Curtis it to the peniten- put voting life it to good im- the fears thing that there tentiary and people emotion, children. and out you want in the in the world have of an The are other you can call out in the world people individual, penitentiary to; but it’s people in the children. you can a fact of life penitentiary in the system are any who call it peni- darn have children adults, they are the but taking Julie Guida’s justifies If there They might be down somebody. he hyperactive when because he life *9 stealing a marijuana or even selling his for let him have baby, little then was a they have a to joyride, long ago car to but chance sessment. As Justice Sutherland out of noted: something make themselves when
they get
They
right
out.
have a
to live
attorney]
[prosecuting
repre-
is the
Wayne
free of fear of the
Lee Bates’ of
ordinary
sentative not of an"
party to a
They
right
the world.
have a
to live
controversy,
sovereignty
but of a
whose
being
type
free of fear of
shot or some
obligation
govern impartially
to
is as
of violent act. There are correctional
compelling
obligation
govern
as its
to
at
guards
all;
who have children and families
interest, therefore,
whose
right
who have a
to be
of fear
free
criminal prosecution is not that it shall
just
case,
that.
I
think
peo-
justice
don’t
that those
win a
but
shall be
such,
ple
subjected
Wayne
prosecutor]
should
to
Lee
done. As
is in a
[the
peculiar
very
Bates.
definite sense the
law,
servant of the
the twofold aim of
summation,
Apx.
Throughout
which
that guilt
escape
is
shall not
or
prosecutors
appeal
did
to the fears of
may
innocence
prosecute
suffer. He
jurors
They
individual
and to emotion.
vigor
indeed,
with earnestness and
he
—
repeatedly argued
jurors
would be
But,
should do
may
so.
while he
strike
responsible for the murders that Bates
blows,
liberty
hard
he is not at
to strike
inevitably
would
commit unless sentenced
duty
ones.
It is as much his
foul
prosecutors
to death. The
suggested that
refrain
improper
from
methods calculat-
failing to
support
penalty
death
ed to produce wrongful
conviction as it
Bates would make them “accomplices” to
every
is to
legitimate
use
means to bring
his crime and to future crimes. Their
just
about a
say
one.
It is fair to
clearly
conduct was
improper.
average jury,
greater
or less
degree, has confidence that
these obli-
2. Assertions
Opin
Personal
gations,
plainly
which so
rest upon the
ion or Personal Knowledge.
It is well-
prosecuting attorney,
faithfully
will be
established law that “a prosecutor cannot
observed. Consequently, improper sug-
express
personal
his
opinions before the
insinuations, and,
gestions,
especially,
jury.”
Galloway,
United States v.
“
personal
asseHions
knowledge are
(6th Cir.2003).
624,
632-33
‘[I]t
apt
carry
much weight against
a prosecuting attorney
in a
accused when
properly
should
car-
criminal case to state
personal opinion
ry none.
concerning
credibility
of witnesses or
”
States,
78,
Berger
88,
v. United
295 U.S.
guilt
of a defendant.’ Byrd v. Col
(1935)
S.Ct.
iels, (6th Cir.1976)). 528 F.2d County the Coffee prosecutors expressing context, capital sentencing personal opinion their as to either the prohibited are expressing from per their credibility of the witnesses or the ultimate opinion sonal as to the aggra existence of hearing. Notably, issue person- vating mitigating circumstances and the al opinions personal or assertions of knowl- appropriateness of the death penalty. Ju edge all addressed the mitigating evidence rors are mindful that prosecutor repre of the defense. had put only forth sents the apt State are to afford mother, undue two witnesses: his Helen respect prosecutor’s psychiatrist, as- and a Dr. John Griffin. After *10 that, I jury: the “You don’t believe and de- of Helen examination the direct it; I don’t even believe given don’t believe that she be requested fense counsel Mr. Peters believe Mr. Bean that.” herself’ before compose minutes “a few which, out by pointing 1507. He continues Apx. To General examination.” “cross proffered the performance agreement his with State’s “After responded, Shelton says it is a that, why.” Apx. “Dr. Marshall psychiatrist: I understand can like flaw; remarks, him.” agree charac- I-tend to with character prosecutors 1373. testimony, referring Tennessee to Dr. by Again the Griffin’s as “indefensible” terized Court, Bates, at “You don’t prosecutor the stated believe S.W.2d that, Apx. that.” believed she and I don’t believe Shelton clearly suggested trial court had United States Even after the sustained being untruthful. See Cir.1999) injec- Francis, prosecutor’s objection regarding 170 F.3d (“[M]iseonduct opinion, prosecutor could personal when tion of occurs prosecutor along continued this line: reasonably believe opinion as to personal ... expressing me, you might disagree with Some of But, majority credibility.”). witnesses it for me to believe under but is hard assertions of prosecution’s testimony- occurred knowledge opinion ‡ $ ‡ ‡ H* directed and were during the summation else; proffered it psychiatrist everyone I like discrediting get confused but at that what Dr. Griffin by Bates. seems to me wants and what Mr. Bean and you to believe as to Bates’s had testified Dr. Griffin you like for Peters would believe Mr. childhood, history of antisocial his troubled reason Julia was killed is that Guida behavior, problems, his substance abuse disorder personality of his diagnoses and brain dysfunction. Dr. Willis Mar- [*] [*] [*] í|í [*] [*] mitigating evidence shall testified serted their counter Griffin’s summation, individual assessment on behalf of the testimony. offered repeatedly and in some During the state to as- psychiatrist To condition of [*] me, :¡{ says more about who testified Wayne Lee Bates than [*] $ here. ‡ mental ‡ any of Bates’s at- their assessment instances recall, argu- Peters said his I Mr. As Roger J. Peters and torneys, Robert S. Lee Bates was abnor- Wayne ment that instance, ar- For General Shelton Bean. Well, that. agree I mal. regarding appropriate- gued his beliefs 1511-12, 1514, re- 1516. Other Apx. evi- considering psychological ness of summation, forth put marks in the presented: dence inappro- likewise appeal, I says. what Marshall “I care don’t opin- prosecutor’s priate assertions says. I Griffin really care what don’t ion. Peters or at all what Mr. don’t care testimony]: I Dr. Griffin’s [Regarding I says because Mr. Bean really, what just not com- that. That is don’t believe true, you I this to be believe believe how give I don’t a darn mon sense. belief.” share the same Dr. reads Griffin many articles testimony of Referring to Apx. 1499. right. theory of what develop his mitigating to the existence of Dr. Griffin as circumstances, General Ramsey argued :¡í # [*] :{; [*] [*] *11 think, you win, as look over the youDo facts with a “heads I you tails lose” case, anything, proposition. there is ladies and him gentlemen, that will ever inhibit Estelle, Houston v. 569 F.2d 377-78 if killing again escapes? from he I think (5th Cir.1978). When the trial court is not, you and I believe that share that generally permissive of improper argu- feeling also. ment, here, as was the case the Hobson’s choice is even more In difficult. order to Apx. Again again, the preserve improper argument the issue on prosecutors explicitly expressed per- their appeal, fruitlessly counsel is forced to ob- opinions, denigrating mitigating sonal the ject at the risk of alienating further the presented by evidence Bates’s mother and jury. occasions, On no less than six the certain, Dr. To prosecutors Griffin. be can prosecutors responded objec- to defense record, argue highlight the the inconsisten- tions with personal either op- attacks on defense, inadequacies cies or posing suggestions counsel or with that the forcefully assert reasonable inferences objections attempts improperly di- But, they from the evidence. put can not jury’s vert the attention. forth opinions credibility their as to of a witness, First, defendant, guilt of a appropri- or General Shelton criticized Bates’s capital punishment. during ateness of counsel the State’s direct examina- “[T]he Marshall, tion of Dr. prosecutor’s opinion psychiatrist im- the carries with it the called to rebut the primatur testimony of Dr. may Government and in- Griffin. Shelton had asked Marshall jury duce the to trust about “mental the Government’s answer, disorders.” In judgment began rather than its Marshall own view of the to define the term as used “for pur- evidence.” United the Young, States 470 court,” 1, 18-19, poses of prompting U.S. the follow- S.Ct. 84 L.Ed.2d (1985). ing exchange: court, Mr. May please Bean: it I am S. Improper Criticism Ob- of Defense going object to his testifying as to jections. During hearing, what the standard with regard to the prosecutors improperly also criticized court is. I think the Court will do objections, defense counsel’s suggesting you when instruct jury. objections were meant to divert the The Court: I didn’t understand him to jury’s prosecution attention. When the be testifying along that line- objections, warns the of defense places the defense Mr. I counsel Shelton: didn’t I no-win either. think position passively of either Mr. Bean is permitting becoming paranoid. prosecutors to improper arguments make Apx. eventually 1483. While the court di- or objecting angering jury. rected Dr. rephrase Marshall to his an- granting petitioner habeas relief to a on swer, pounced Shelton objection on Bean’s grounds, misconduct as frivolous and him labeled as “paranoid” Fifth recognized Circuit the dilemma con- jury. front of the It plainly improper is fronting defense counsel when prosecutor for a a personal level attack objections: attack against opposing counsel. United States v.
Every objection, defense every 1, 9, motion Young, 470 U.S. 105 S.Ct. mistrial, (1985) was now an effort to conceal L.Ed.2d (noting attorney an “must truth, a slap jury. at the In this permitted to make unfounded and arguably circumstance im- inflammatory attacks on opposing ad- proper argument presented ”); Carter, defense vocate United States v. c. Cir.2001) (“[I]t im- 777, 785 at- make counsel proper prose Having determined advocate.”). opposing tacks must improper, we conduct was cutor’s was so whether the consider occurred troubling conduct the more But Flagran reversal. as to warrant flagrant Generals both when during summation *12 four by examination of an cy is determined the argued before Ramsey Shelton (1) that the remarks the likelihood factors: objecting lawyers were Bates’s jury that to mislead the prosecutor the tended of an improp- tactic. After diversionary aas (2) defendant; the jury prejudice or by was overruled objection argument er or ex the isolated remarks whether law- Bates’s court, addressed the Shelton (3) tensive; the remarks were whether for too close just getting directly, “It’s yer (4) made; and deliberately accidentally ar- he resumed 1496. As you.” Apx. against strength the evidence the of total just getting is repeated, “[i]t gument, he Adams, v. Millender defendant. See the closing argu- the Later in Id. too close.” (6th Cir.2004); Bowling F.3d objected to again ment, for Bates counsel (6th Parker, Cir. 512-13 344 F.3d v. Af- argument. improper prosecution’s the F.2d 2003); Overberg, 682 Angel accord v. overruled, Shelton was objection ter that banc) Cir.1982) (en (6th (citing 605, 608 see, gets when it jury: the ‘You addressed Leon, States United object. them, up and they stand next to Cir.1976)). counsel’s Following defense them.” Watch found Court of Tennessee The to jury the directed court objection, the the clearly improper “it was that spe- comment improper this disregard comments the to make counsel State’s to prosecutor not the cifically instructed name-calling did,” “the they that which objections. comments make further certainly uncalled inappropriate and was continued, improperly Yet, the prosecution “might for,” prosecutors the that objections. subsequent two responding to the rigidly more to adhere well advised use prosecutor’s objection After an by the promulgated rules disciplinary ad- Ramsey opinion, General personal of trial.” at of counsel for the conduct court directly: “I don’t counsel dressed the Yet, that the court determined Id. my opinion. take going to jury is think this of the not the fairness did taint misconduct facts, Mr. the to take going They are hearing: objection, after 1508. Also Bean.” Apx. crime of the the nature [Considering course, they are jury, the “Of Ramsey tells surrounding facts all involved and you to They want don’t object. going homicide, concluded we have Apx. because-” again it hear argu- closing conduct not lawyers did by the State’s ment question criticize remarks in All of the prejudice the verdict affect client their protecting defense counsel reversal warrant and did defendant conduct, aimed Such through objections. conviction. of the ob- right to defendant’s prejudicing at permitted, conceding If clearly improper. essentially ject, Despite Id. at 881. operate can egregious, tactic intimidation type of this preju- quality of was not the misconduct of a court found defendant’s to the detriment the fairness did not affect fairness dicial and calling the representation, agree. We cannot proceeding. question. into trial First, the remarks made Shelton and summation. Ramsey essentially acknowl- Ramsey certainly prejudiced almost edged his use of “fear” and “emotion” dur- defendant. they The was told ing would the closing. Even after the court sus- be accomplices to the crime unless objections tained on behalf of Bates and executed him. prosecutors The made admonished prosecutors to refrain theme of their summation that jury’s from criticizing opposing in- counsel and failure to sentence Bates to death would be jecting personal opinion, akin to ordering the execution of Bates’s continued their misconduct. The inten- next Voting victim. for a life sentence for tionality of prosecutor’s improper re- dog” equivalent “rabid putting marks can be inferred from strategic their gun in his hand. This type appeal to use. opinion prosecu- fear and emotion clearly poisoned the tors was primarily reserved for evaluating *13 Likewise, hearing. the prosecution at- testimony the of the defense’s one disinter- tempted place government’s witness, thumb ested Dr. Griffin. Bates’s case repeatedly scales interjecting mitigation rested on Dr. Griffin and his personal into opinion mother, the record. Attacks prosecutors repeatedly on defense counsel could have prej- further undermined Dr. Griffin’s testimony by udiced by fostering jury antagonism suggesting they did not They it. believe attorneys. towards his structured closing their argument around the idea that it was an inescapable fact Second, improper was not conduct that Bates kill again-either would a prison comment, isolated to one section one of the guard, or a prisoner, fellow or someone in argument even to or one prosecutor. society after his next escape. Their com- ease, Ramsey both Shelton and made parison of sentencing Bates to impris- life numerous improper arguments. General onment to giving him gun a was used as a Shelton attempted to discredit the defen- refrain in argument. They moreover dant’s through mother describing her tes- attempted to intimidate opposing counsel timony a “performance” as and made a into during silence this improper argument opposing attack on counsel during by using objections their against them. presentation of Bates’s mitigation evi- dence. importantly, More both Shelton Finally, we must address the to Ramsey laced closing their entire ar- tal strength of against evidence Bates. gument personal opinion, attacks on Importantly, in the death penalty context, counsel, opposing and undignified and un- we must distinguish between evidence of professional appeals to hatred and fear. guilt defendant’s of the underlying See v. Artuz 294 284, (2d Jenkins criminal charge and evidence any of at Cir.2002) alone, (“Standing prosecutor’s tendant aggravating and mitigating cir upon comments summation can ‘so infect Notably, cumstances. the Tennessee Su [a] trial with unfairness toas make the preme Court ruled that the misconduct resulting conviction of pro- denial due “did not warrant reversal of the convic ”) (internal omitted). cess.’ citations But, tion.” the defendant’s conviction for
Third and most regrettably,
the miscon-
the underlying murder
foregone
was a
duct was plainly
We
deliberate.
are not
conclusion in the sentencing hearing.
confronted with an off-hand remark in a There was no question
guilt
as to his
Instead,
heated trial.
Instead,
the crime.
the inquiry was fo
this case opted to
inappropriate
select
ar-
cused on
appropriate
punishment.
guments and use
repeatedly
them
during Overwhelming
guilt
evidence of
can often-
as
“grave
doubt”
court is
If a habeas
a conviction
to sustain
be sufficient
times
error, the habe-
of an
misconduct,
harmlessness
but
some
despite
v.
prevail. See O’Neal
must
petitioner
as
does
guilt
of
evidence
overwhelming
432, 436,
McAninch,
115 S.Ct.
513 U.S.
sentencing phase evaluation
immunize
(1995).
can
There
L.Ed.2d
factors.
mitigating
aggravating
of
argument
little doubt
be
Amend-
and Fourteenth
Eighth
“[T]he
prejudicing
clearly
operated
towards
... not
the sentencer
require
ments
to have been
be said
Bates.
It cannot
a miti-
considering, as
from
precluded
jury’s
in the
consideration
meaningless
factor,
of a defendant’s
any aspect
gating
sentencing con
capital
In this
mitigation.
any
the circum-
record
character
by the
text,
flagrant misconduct
such
that the defendant
offense
stances
harmless
cannot be considered
prosecutor
than
less
a sentence
a basis for
proffers as
unnecessary and
prosecutor’s
error. The
Ohio, 438 U.S.
Lockett
death.”
vitriol
such
injected
conduct
intolerable
(1978).
57 L.Ed.2d
S.Ct.
question
as to
proceedings,
into the
sentencing
in the
Prosecutorial
hearing.
entire
fairness
jury’s
preclude
operate to
hearing can
stand.2
cannot
penalty
death
“When
mitigation.
consideration
proper
egregious
are so
actions
prosecutor’s
Remaining Issues
III.
jury’s
effectively ‘foreclose the
*14
evidence,’
resen-
ordering that
be
mitigating
...
As
are
of
we
consideration
fair,
Amendment
individu-
Fourteenth
make a
on
to
tenced
jury
unable
the
reach the alternate
by the
do not
grounds, we
required
as
alized determination
in the
defendant
by the
grounds
DePew v.
raised
See
Amendment.”
Eighth
sentence,
Cir.2002)
including
(6th
his death
challenge to
Anderson,
742, 748
F.3d
311
first
of Bates’s
improper admission
U.S.
the
522
Angelone,
Buchanan v.
(quoting
jury
confession,
improper
instruction
the
757,
277,
139 L.Ed.2d
269,
118 S.Ct.
unanimity for the consideration
requiring
(1998)).
legally
factually and
dissimi-
were so
conduct
portions of
that
Court ruled
District
2. The
deprived of
were
state courts
lar that the
misconduct claim
prosecutorial
Bates's
prosecu-
particular
opportunity to review the
insulated
and thus
procedurally defaulted
de-
not
review,
We need
claims.
misconduct
torial
On habeas
review.
from habeas
issue, however,
particular
as the
time,
cide this
prose-
that
contends
the first
decided
explicitly raised and
was
conduct that
his failure
improperly commented
cutors
in the District
appeal and
both on direct
be-
impact evidence
put
testify and
victim
warrant
sufficiently egregious as to
raises,
Court is
the first
jury. He
also
fore the
scope to
opinion is limited
This
ad-
reversal.
time,
not
that were
comments
several
unquestionably
been
that has
the misconduct
asserting that the
appeal,
on direct
dressed
Supreme Court
Tennessee
preserved. The
when
engaged in misconduct
prosecutorial misconduct
cheaper
evaluated
penalty was
that a death
they argued
merits,
upon
relying
than
rather
sentence,
claims on the
send
jury
should
that
than a life
miscon-
prosecutorial
The
procedural bar.
a
they
not be
would
message to Bates that
underlying
claims,
arguments
fear,
duct
to exe-
by
had
imprisoned
therefore,
are,
us. See
properly before
them
him
should "execute
cute
711,
Million,
716-17
Boyle v.
Court’s
The District
Julie.”
like he executed
Court,
the Ten-
Cir.2000).
like
District
was
only
if this misconduct
ruling
stand
could
Court, substantively ad-
nessee
See
court.
"fairly presented” to the state
not
claims
275-78,
270,
Connor,
dressed the
404 U.S.
Picard v.
arguments
prosecution
of
(1971).
analy-
and the bulk
In
30 L.Ed.2d
S.Ct.
Thus, there
improper
Bates.
challenged as
sis,
required
determine
would
this court
review.
to our
procedural obstacles
are no
of mis-
newly-raised instances
these
whether
evidence,
of
weighing mitigating
facts
suppoi’t
did not
Bates’s assertion that
of non-statutory
consideration
plea
his
involuntary.
The trial court
factors,
aggravating
the failure of the trial
found that
attorneys
representing
venue,
court to grant
change
of
ineffec- Bates
extensive
had
discussions with the
counsel,
tive assistance of trial
and failure
defendant
regarding the advisability of
an impartial jury.
seat
pleading guilty and
consequences
of
such a plea.
State,
See Bates v.
Defendant also raises an issue
S.W.2d
630 (Tenn.Ct.Crim.App.1997).
that he claims
a granting
warrants
Additionally, the court found that Bates
writ and a new trial. He contends that his
“upon informed advice of trial counsel ac-
guilty plea should be set aside
as was
cepted the formulation of a trial strategy
knowingly,
intelligently,
voluntarily
of entry of a guilty plea
regard
without
Alabama,
Boykin
entered.
395 U.S.
the admissibility
previous
confession or
(1969).
89 S.Ct.
trial, BATCHELDER, and that ALICE M. he did not voluntarily agree Circuit plea Judge, concurring. as by modified his counsel. post-conviction state proceedings, the I concur in opinion. not, I do how- Tennessee courts ever, determined that concur in opinion’s holding, citing
651 Anderson, v. DePew INC., NEWSPAPERS, DAYTON d/b/a Cir.2003), Publishing Ohio, Peti Cox may trial phase penalty during the tioner/Cross-Respondent, Amendment. Eighth violate v. un- claims analyze Bates’s we Because by Congress established standards der the RELATIONS LABOR NATIONAL Death and Effective Antiterrorism in the BOARD, Respondent/Cross- (“AEDPA”), 104- No. Pub.L. Act Penalty Petitioner, (1996), may not we 132, 110 Stat. Drivers, Chauffeurs, Truck General respect corpus of habeas a writ grant Helpers Local Warehousemen adjudicated legal error any claim of 957, Intervenor. No. Union state such court unless in state the merits in a decision “resulted adjudication 03-1981, 03-2110. Nos. an unreason- to, or involved contrary Appeals, States Court United of, clearly established application able Circuit. Sixth by the Su- law, as determined Federal States[.]” of the United Court preme Sept. Argued: 2254(d)(1). my As I observed § U.S.C. 23, 2005. Filed: March Decided DePew, neither Buchanan dissent 118 S.Ct. 522 U.S. Angelone, opin- lead (1998), by cited
L.Ed.2d any other case nor proposition, for this
ion Court, holds Supreme
out require- mitigation Amendment
Eighth prosecutors. to the actions of applies
ment clearly apply are bound we
Because as determined law
established federal Court, reliance majority’s in DePew opinion the Sixth Circuit’s
upon AEDPA. under issue, my view is whether *16 amounted to prosecutor Here, clearly process. of due
a denial concur, grant and would I therefore
did. upon prosecu- corpus based
writ of habeas misconduct.
torial