*1 by allow of the death issue was never raised imposition up did not Petitioner point, that ba- until this this upon resentencing. On Court should not use penalty heavy urge its hand to the sis, granted instead an state court to the district court Indeed, consider now. writ, vacating the death it the state court unconditional However, by interpret Supplemental should not recognized as the Or- sentence. order, der as it judge suggesting court in his should or should the district not resentencing retroactivity is for the courts consider Petitioner’s matter of we resolu- claim. of Ohio address and leave question
tion the state to them. summary, Supplemental because the reasons, judg- foregoing For the issuing Order to be appears improp- an court is affirmed in ment of district procedurally substantively er basis and is vacating death part as I unnecessary, respectfully dissent. sentence, in part reversed as to the grant writ and re- unconditional to conditional-
manded instructions State
ly grant the writ unless the resentencing pro-
Ohio to initiate elects days within of the district
ceedings
court’s order. Thus, case, Id. at 754. unlike this SMITH, William H. Petitioner- retroactivity DePew issue was raised Appellant, and addressed in the first instance district court. MITCHELL, Betty Warden, Significantly, though even the issue of Respondent-Appellee. lawfully DePew whether could be resen- addressed, tenced to death raised No. 00-4030. this remand order did not so much Court’s of Appeals, United States Court imply that the state court should consid- Sixth Circuit. er the before proceeding issue with the Depew’s rather, resentencing; case was Argued 2002. Sept. “with remanded instructions conditional- Oct. Decided and Filed ly grant the writ unless State Ohio resentencing initiate proceedings elects to days
within district court’s or- Thus,
der.” Id. since this Court in DePew
did state suggest that the court could retroactivity
or should consider the issue
on remand when the issue had been raised petitioner, not do so in we should not previous- case where the issue was
ly raised. course,
Of is free raise Petitioner
retroactivity issue the state trial before
court, he is to raise free other subject why
defense as to he should not be however,
to the penalty; death where this *5 Ohio, Capital Office of Crimes Sec-
eral’s tion, OH, Columbus, Appellee. SUHRHEINRICH, Before: COLE, BATCHELDER, and Circuit Judges: SUHRHEINRICH, J., delivered court, in which opinion of the COLE, BATCHELDER, J., joined. J. 215-218), opinion (pp. separate delivered dissenting concurring part part. OPINION SUHRHEINRICH, Judge. Circuit three-judge April a unanimous Pleas, of the Court of Common panel County, H. Hamilton sentenced William “Petitioner”) (“Smith” death Mary Brad- aggravated for the murder of *6 of The Ohio state courts denied all ford. relief, as claims for did federal Smith’s ap- court on habeas. Smith now district judgment from the of district peals for denying application court writ § corpus under 28 U.S.C. habeas sen- challenging both conviction and principal appeal tence. The issue on for whether trial counsel were ineffective failing evidence present mitigating reasons, we sentencing. following For judgment district AFFIRM court. Background
I.
A. Facts following facts are taken from opinion on direct Supreme Ohio Court’s briefed), Komp (argued Laurence E. and appeal. MO, Baldwin, Sirkin, H. Louis Laura A. afternoon, Saturday September On (briefed), Abrams, Kinsley M. Jennifer Sir- Bradford, age forty- Mary Virginia Schwartz, kin, Piñales, & Mezibov Cincin- seven, Inn, neighbor- the Race visited OH, nati, Appellant. Cincinnati, in Ohio. While hood bar briefed), Inn, and Henry Appel the Race she had beers (argued and several G. met, (briefed), talked, H. Attorney danced with William Charles L. and Wille Gen- Smith, minutes, bar appellant, regular patron. incapacitation within five were eight, wound a four-inch p.m. left the Race Inn around 11:45 wound into She right lung heart, Bradford’s and on p.m., September Around 4:00 nine, a wound four-inch wound into the Rhodes, boyfriend, Marvin Bradford’s sternum and the right heart’s ventricle. her stopped by apartment because he seven, Wound puncture five-inch into Friday, Septem- had not seen her since liver, the rib and eight wounds doorbell, ber 25. No one answered the nine all bony fractured structures. but Rhodes saw blood near the front two, Wound depth, four inches door and found Bradford the bed- crossed her right. neck left face, Feeling room. her he found no life Wound ten punctured the liver and was body in her called the police. no depth. more than four inches Two Responding police found officers wounds, five, one and showed no signs lying Bradford stabbed to death on her hemorrhage and thus af- were inflicted bed, nude from the waist down. theOn ter death or when the heart bed, floor, police near found a her wom- one, pumping sufficient blood. Wounds panties, an’s pants bloodstained three, four, superficial. and six were bed, out, and, inside on the turned body Bradford’s exhibited no evi- other oxygen machine used asthmatics. injury dence of or trauma as bruis- such Forensic examination disclosed a .13 es or defense wounds that would indi- sperm blood-alcohol level and revealed cate a struggle. violent All the wounds her vagina her and on abdomen. same, could been have inflicted apartment, front Near the door edged single knife. chair, police found a with a pool blood September On de- homicide and, it, floor, on blood smears lived, tectives went to where Smith including bloody leading footprint bare Reid, mother, home Bertha apartment the bedroom. The which was four about blocks from Brad- *7 clean, exceptionally otherwise and neat arrived, police ford’s house. When disorder, signs disarray, with no or a home, Smith was not at and Reid let the struggle, police and found no murder home, in. police officers While at Reid’s weapon apartment. One color de- matching noticed television set television, one black white and televi- scription missing of one of the two sets sion, and a stack stereo with two speak- Thereafter, po- from Bradford’s home. missing ers were from Bradford’s apart- warrant, lice secured a found the miss- ment. ing home, two televisions Reid’s and Bonnell, Harry Deputy J. Chief seized them. Coroner, testified that Bradford died testified son Reid that when her came a result of wounds to her upper ten stab home around 2:00 a.m. on September body consequent and loss of blood. She unusual, ap- he did not act nor did he tall, feet, was five inches weighed drunk, three pear to be or How- high, upset. pounds, por- one hundred and a ever, sixteen carry Smith did into Reid’s home tion lungs missing, of her which in question along the two television sets explained her asthmatic condition. Bon- system with a two large stereo and nell from to speakers. got numbered the wounds one he Reid asked where (but stereo, ten descriptive purposes for not replied and and Smith televisions inflict- girlfriend Carolyn gave indicative order which that his to them ed). wounds, ex- causing accept The most lethal him. Reid did not her son’s carving got [small little him he “have to and
planation, telling [a] would blade— knife].” to me a little more about what’s explain morning, that on.” Later Smith going Smith, to Bradford was According cousin, Greg took stereo and during in the stomach the ensu- stabbed away but the televi- speakers two left He and fell onto chair. ing struggle sions. stomach, knife her removed the to she herself dragged walked police clothing also showed Reid stabbing her He recalled the bedroom. had 26 and September her son worn in the she in the neck bedroom after Subsequent police seized. fo- which motherfucker, he did called him a but analysis that Smith’s rensic revealed stab inflicting not admit other of human shoes bore traces shirt and on the lying wounds. When she was blood. bed, back got he took her clothes off and 28, 1987, police appre- September On top again. of her and had sex Police police Smith to head- hended took asked: being After quarters questioning. ** * you had sex her “Q. with [A]fter agreed Smith rights, advised of stabbed, time, the second after she was police. initially talk asserted Smith you do? then what’d had driven Bradford home he He night just dropped had her off. but gathered up things together I my “A. he later had been her admitted downstairs, taking and started her stuff boy- left her apartment but had when “Q. you What’d take out there? friend arrived. Her her stereo.” “A. two TVs and that he met Brad- police Smith told carry- trips said he made four Inn, ford the Race later drove her her to his car and that ing things down bar, girlfriend her another things took in order to them. he her sell then While at drove Bradford home. Although initially claimed that he house, that someone her Smith claimed did know whether Bradford had boyfriend thought he be Bradford’s breathing, later he stopped he admitted arrived, and Smith decided leave again have sex her be- decided to left, he quickly. After Smith realized breathing “she was still then.” cause cocaine, packet had left *8 pulled penis he his out as He said that $2,500, worth at house. Af- Bradford’s ejacu- he to climax and finished started returned, boyfriend ter he Bradford’s on He this be- lating her stomach. did and gone. the cocaine were both Smith thinking he was about out getting cause then talked with Bradford. apartment. of Smith claimed “ * * * restitution, talked [W]e about into the knife the Ohio River and threw you give know. said me some She she’d Dayton. How- sold Bradford’s stereo body. of I it’s okay, good said ever, police recovered her stereo Cin- me, know, then enough you for but after Smith, police cinnati. When interviewed got I it [had her] sex with wasn’t a of they pair seized undershorts know, good enough, you I her so asked him from stained with blood of the same stuff, got any money you like and you type Bradford’s. no mon- She said she ain’t have know. Smith, 284, State St.3d ey. arguing thing we start and next Ohio So (Ohio 1991). you know she over to the kitchen N.E.2d 512-14 slid Proceedings B. Trial with respect to his mental state at the time of the alleged Smith offense. was evaluat 21, 1987, Smith was indicted on October by experts, ed Nancy three Schmidtgoess murder, of aggravated pur- on two counts Ph.D, ling, a clinical psychologist of the 2903.01(B) § suant Ohio Rev.Code Center, Court Psychiatric Roger H. Fish (Counts II), rape I & and one count of er, Ph.D, a clinical psychologist, and Glenn (Count III), and aggravated one count of Weaver, M.D., psychiatrist. a Dr. (Count IV). robbery I II Counts and each Schmidtgoessling evaluated Smith on No penalty specifications, contained two death 27, 1987, vember and on December aggravated alleging during one murder 1987. On December Dr. rape and other alleging during murder Schmidtgoessling report a filed aggravated robbery. initially Smith en- court, in which she concluded that Smith plea a of not guilty by tered reason of currently sign major showed no of psycho result, all insanity charges.1 as to As a logical disorder and that he was sane at trial court ordered that Smith be evaluated the alleged time of offense.2 represented by mother, attorneys during 1. Dale G. early years. these ac- during Schmidt and Robert his J. Ranz trial cording to reports, records collateral proceedings. history has a of mental illness and was times, hospitalized bearing diagnosis at a Schmidtgoessling prepared Dr. "Not her "simple schizophrenia.” She was abusive Guilty by Report" Insanity Reason of and bizarre in her behavior toward the chil- ("NGRI") in December four months dren, example, hiding for food from them prior mitigation phase. to the she In it indi- beating unpredictably. them Mr. cated that family several members of Smith’s siblings; five has two these are interviewed, were she reviewed the legal known to have had contact besides the following records: summary, family defendant. of ori- history Available for review were social chaotic, gin unpredictable rather en- psychological performed evaluation vironment for the defendant. Department County the Hamilton of Hu- placed Mr. Smith was in foster homes 1965; juve- man Services in statement Longview and at Hospital State for num- provided by nile arrests the Hamilton years during developmental peri- ber of Court; County Juvenile school records od. The Juvenile Court records indicate Schools; from Cincinnati Public and one placed Longview that Mr. Smith was prior Psychiatric evaluation Court child, Hospital dependent State as a al- completed Center in 1976. Records were though there are some indications behav- requested Longview Hospital State problems preceding placement, ior in- stay during Mr. Smith’s there his childhood cluding firesetting incorrigibility. He years but we were informed that rec- those apparently February, remained there from destroyed Lastly, ords were in 1981. rec- August, diagnosis 1996 to 1971 with a received, requested, ords were but never emotionally personality unstable and bor- Authority. from the Adult Parole functioning. derline intellectual Mr. Smith records, Based her review of those particularly does unhappy not seem about Schmidtgoessling reported family many experiences Longview, de- history social as follows: *9 scribing playing watching and basketball By way background, of Mr. Smith is the Also, TV. it product seems that the adults in his unhappy, of an rather bizarre fami- ly. environment to He were nicer him there than biological had little contact with his father, any other he until Mr. Smith was twelve environment where had about old, years only becoming having prescribed lived. He describes close when Mr. been antipsychotic having Smith was about nineteen. medications and There was a been stepfather given present, hospital- Longview. had who been shock treatment while at psychiatric problems years, ized for juvenile and In Mr. had incarcer- his Smith sev- Rape. ated Usually, It is unclear eral at this time court these contacts. were impact what these property Burglaiy, men had Robbety, on Mr. crimes such as from standing characterological problems profile psychological of In his ” criminal early Regarding childhood....
status, that Smith was Dr. Fisher stated oriented, Dr. Fisher concluded responsibility, and rational alert.... “fully any of mental or emotion- any of “Smith was free no evidence whatsoever There was or I feel he suffi- Fisher al disease defect. had impairment.” form mental of to to been able differ- “[d]espite history judgment his of cient have also stated that legal right wrong be- and was I have no reason to entiate hospitalizations, enough sound to been psychologically has had an emotional have lieve this man ever if from illicit actions he had long- able to refrain I think instead he has had illness. insecurity that he was unable to relate satis- Use a Vehicle Unauthorized of Motor and factorily rela- although couple charges despite his need for human also a of he had tionships, according psychological to reflecting unruliness. strong tendency de- Academically, A towards Smith has advanced to evaluation. Mr. pression repress grade. attempts to hostile im- approximately the tenth and psy- pulses at that were noted time. The abuse, chologist thinking at that Mr. Smith's of Mr. Smith felt terms substance In reports beginning experiment wine bordered on autistic. When evaluat- with times Psychiatric only years ed the Court Center in he was about fifteen when signs impaired drinking showed no of believes he has been Mr. Smith old.... He seventeen, reality testing. an age averaging He was felt to daily around relate since per day. appropriate appropri- manner and of beer He does drink in showed a case during morning. reports of emotions He he has had some ate modulation his appears described at that time it that he an interview. He was blackouts and has suffering adjustment of from an reaction increased tolerance his extensive use. dyssocial beginning marijua- to use adolescence and behavior. Mr. Smith recalls conclusion, old, years currently Mr. Smith shows na when he was about eleven having joint by sign major psychological given a a no of disorder. been friend’s suggest marijuana ab- that he uses The available records an mother. It seems regular began using psychological of fairly a basis. He sence substantial disorder hallucinations, delusions, ago. reports gross couple years such as cocaine a of He retardation, day using every paranoia, or approximately other mental the like. However, history suggest during period.... does that this is this time testing person Psychological has substantial behavioral was administered as who had problems throughout his part of the current evaluation. On the life.... Personali- Scale-Revised, wise, suggest Intelligence ty we would Wechsler Adult Mr. IQ 78, including interper- a number of deficits Mr. Smith obtained Verbal of has IQ IQ insecurity sensitivity, impaired and a Full Scale sonal Performance inadequate develop- empathy, place 78. Smith in the conscience These scores Mr. range ability despite the social average to low of func- ment verbalize borderline rules, underlying depression tioning. sec- These scores are consistent with chronic IQ abuse, during stay Long- ondary neglect history to a established his hostility Hospital strong underlying secondary to view State between However, experiences. part he the Hamil- life It seems that in records from attempts many underlying County Department ton of Human Services to resolve IQ December, feelings by using substances. shows an established tensions that, being using Despite conveys person the Stanford Benet score still [sic]. This average at- placed range significant him the without direction social functioning.... psychological evalua- tachments. legal respect question, With it is tion conducted in 1965 the Welfare De- my opinion was un- that Mr. Smith was sane at partment showed that Mr. Smith himself, alleged organize offense. He did not able concentrate time psychological disor- suffer substantial and thus unable sustain function- *10 impaired ing grossly that his in an unstructured situation. It was felt der would have reality ability right wrong to or to that that his determine at time contact was feelings his behavior. precarious. He had such serious of restrain that, investigation. to so.” Dr. Fisher added her In that chosen do letter Core stat- by description, Smith’s his own behavior ed: of I “Because these factors do not feel purposeful goal-directed. “was He possible it is to conduct adequate inves- to of his provoked anger loss tigation your on behalf of ... client anger by trying acted on cocaine and that regret you to inform that neither Ms. Liv- him pay make victim back for what to erani or I will provide be available to had thought boyfriend he her stolen.” in this assistance matter.” performed psychiatric Dr. a Weaver 1, 1988, on responded Counsel March Dr. Weaver concluded that al- exam. copies enclosing of sent to letters which no extremely im- though Smith had limited replies yet received, had been and refer years, did pulse past controls he not encing of January Core’s letters defect, mental or possess a disease 8, February acknowledging of receipt wrongfulness know that he did his reports already Ranz sent. also stated conduct. Smith thereafter withdrew approved that the court had payment to insanity defense. Liverani. Ranz that stated Smith was quite difficult to deal with coun Trial initial with and was counsel made contact only sel’s source of Finally, Core of the Office Public Defender information. Jane (“OPD”), Ranz mitigation specialist, posi in Janu- asked Core to reconsider her 1988, 21, 11, ary January In a letter dated tion. On March 1988. Core reiterated 1988, Core informed counsel that he would her to apparently refusal assist. Core mind, however, background changed need to Smith’s rec- request her on March being ords. Core indicated that she had apprised after had arrangements investigator made OPD right for jury waived his to a trial. Nonethe assistance, Maggie provide less, Liverani to but on March counsel informed Maggie would not be until available they Core letter would be February. planned late Core stated she Liverani, needing they because had made February meet with on counsel other arrangements. February 8,
In a letter dated Core request Trial counsel elected instead to thanked “for regarding Ranz the materials the “friend of the appointment court” Smith,” especially Schmidtgoess- Mr. Dr. See Dr. Schmidtgoessling. Ohio Rev.Code ling’s report, certainly “which indicated a 2929.03(D)(1). § Counsel met Dr. possible things lot of work with.” Core 28, 1988, Schmidtgoessling on March two told Ranz he file should a motion prior sentencing hearing. weeks to the asking expenses the court to cover the of Dr. Schmidtgoessling recalled that counsel investigation, Liverani’s since OPD did not mitigation,” “could no to the offer direction (cid:127) funds, have the and that he “need would and that unfamiliar with counsel seemed approved make sure the Court has funds any of the past the records from evaluation begins she investigation before her records, competency, juvenile of mental Finally, end of this month.” asked Core Department Human records. Services Ranz to places forward list had Rather, Schmidtgoessling felt requested copies records from as well winning counsel were more focused those records he received them. agreed copy the trial level. She to make counsel, 29,1988, all February pre- On the records for Core sent a letter report detailing chastising provid- pare mitigation to counsel Ranz for not ing materials, history requested past developmental describing which she begin stated needed Liverani functioning. were current *11 to Hos- probated Longview had him State April April Trial on 1988. On began view, something “there is 6, 1988, pital. of Reid’s convicted in the Court he was William, mentally.” Ohio, wrong with County, of Hamilton Common Pleas panel of two three-judge unanimous a McDonald, Smith’s Timothy Reverend murder under Ohio aggravated counts pastor, deposition testified via former 2903.01(B) death § and two Rev.Code try to to a sought counseling find Smith Ohio specifications for each count under way drug deal with his and alcohol to 2929.04(A)(7). § He was Rev.Code cross-examination, Mc- dependency. On Ohio rape count of under convicted of one wife acknowledged Smith’s Donald 2907.02, ag § count of Rev.Code one counseling marriage for because came robbery under Ohio Rev.Code gravated marriage. was violence there hearing began § sentencing 2911.01. The brief, unsworn Counsel also read a state- April on April on and concluded prepared by Smith: ment 14, 1988. “Sirs, my very I been truthful have Schmidtgoessling officially ap- Dr. was happened. of what telling the facts pointed April the court on a friend of apartment “I togo did not her for following finding guilty by the stuff, get my to reason other than Schmidtgoessling Dr. also tes- trial court. I invited. was Ranz at home on tified she called go together. did “We bed 10, 1988, if April because did not know she knife, got the and I don’t know testify at the sentenc- “She supposed she was big to me. It is a According happened to Dr. what ing hearing. Schmidt- blur, guess I I went mad. what sort of goessling, Ranz did not seem know play Dr. Schmidtgoessling role would her, hurt “I didn’t want to but what re- mitigation She filed hearing. her something I to am do when faced with 11, 1988, port April on and testified at the like this? hearing day. mitigation the same Given very happen “I am for what did sorry time, Dr. Schmidt- period the short her, very sorry I am she primarily goessling relied records dead; my it beyond but was control. preparing received when the NGRI she before, help “I have asked for and did report. get it. it is too late now. So miti- testified at Five witnesses Smith’s I again, help “But for and the ask gation hearing. Two of Smith’s uncles tes- mercy of the court. briefly. characterized Smith tified Each you, panel.” “Thank members mother, nice Bertha person. noted, Schmidtgoessling also tes- As Reid, prepared read a statement Dean tified, mitigation was ad- report her court. In her Reid told the statement into evidence. The doctor indicated mitted grew up court that in various foster Smith that she administered the Wechsler Adult homes from the time months Test, Regard- Intelligence and the MMPI. old, years during until ten and that Dr. Schmidt- ing family background, repeatedly time he was abused. She stat- sentencing panel that: goessling told mentally ed thought that she from a This is a man who came back- reported that Smith stole disturbed. She her, once, ground, family where his members were pun- when and that she him, window, incapable caring particularly breaking him for ished mother, history who has mental set fire to the kitchen curtains. She later *12 illness, as herself of “a physically as well characterized this as drastic and signifi- abusing drop,” cant “only the children. attributable to the behav- problems ior problems or emotional father, he was biological
His as far as I can experiencing at that time.” Her testing of determine, unknown. is IQ 70s, him revealed a in verbal and a a stepfather, actually There was who IQ performance in the low 80s. She de- family, very lived who was abu- scribed him “as functioning average near sive, intimidating, very frightening a in terms of everyday activities.” She sum- man, according to the reports we “low, intelligence marized his as average to have, up grew largely that he for a range borderline of intellectual function- in years of foster number either homes ing.” Schmidtgoessling stated that she did years years, for three or four I —three any not reach on his conclusion character Longview think in the Children’s Unit. based the MMPI. essentially, background So his is one behaviorally Schmidtgoessling Dr. hyper- reported is marked activity, problems that, some substance learning some second- abuse. She stated although ary poor very she had distractability, achievement little information school, other than self-report, in lot Smith’s it appeared a of problems, behavior that he had long-standing history of stealing, fighting school. alco- use, marijuana hol and and some cocaine early on He was one described use. Dr. Schmidtgoessling indicated that disturbed; psychologist as emotionally Smith did have paranoia, very not was but after aby another evaluation differ- being exploited. sensitive She stated he ent psychologist actually placed defects,” personality “ha[d] flaws and but Longview, the Children’s Unit at where that she think he organical- “dfidn’t] [was] better, in fact much I think he did be- ly impaired way.” and defective in that of cause the structure there of the She added that he “lacks empathy,” and school. note he got shows that things “is inclined to do to other people fairly along there well. of us find very rest cold and I most important thing think the from unacceptable, personality because his point about psychological early those style....” years developmental lack struc- home, in the lack Schmidtgoessling ture of close nur- Dr. reported from turing by parent figure, summary adult one-page Longview Hospi- figures, physical hospital diagnosed [sic] affect ... tal. The Smith as normal, family. “physically essentially abuse emotional abuse black youngster, psychologically,” but character- Dr. noted that Schmidtgoessling she him having personality-trait ized a “a history found a of mental illness emotional, disturbance and an unstable Reid, family; both mother Smith’s personality.” Schmidtgoessling Dr. stated hospitalized been stepfather, had Long- own, diagnosis that this coincided with her view. Dr. Schmidtgoessling next de- and was other consistent with records testing performed scribed the on Smith. that time. She concluded that “cer- She noted that he had been tested several tainly impress mentally did us ill in times. found to have an any gross fashion.” IQ average which is in range. however, cross-examination, Longview, IQ At showed Dr. Schmidt- test On that, him be functioning goessling despite in the de- borderline stated range intelligence. background Schmidtgoessling velopmental mother’s non-eonfidential nature of illness, no aware she found
history of mental *13 signed and an information suffered the evaluation that Smith had ever evidence permitting In Dr. us to use information from mental illness. a substantial sheet view, miti- capa- was these in a Schmidtgoessling’s gathered from sessions criminality Leahy the of his appreciating report. Additionally, ble of Ms. gation that Smith never acts. She also stated prose- contact with the made collateral for the victim. Last- showed remorse attorney, Piepmeier; Mark the cuting ly, on cross-examination officer, when asked Detective Joe Hoff- investigating was a con- thought she crime whether Squad; of the Homicide Lt. Fletch- man choice, maybe psychological a scious arresting Squad, er of Homicide deficit, she stated: officer; grandmother, the defendant’s aunt, Carter; certainly his def- psychological
I think the defendant’s Elizabeth uncle, Carter; the situation. He told played icits into Pam defendant’s defending that he was himself Carter; County me Gary and the Hamilton him against at with a someone who came Psychiatric Justice Center Criminal it I knife. In that sense was choice. made to Attempts were reach Unit. me this think that he told woman mother; Smith; Mrs. Bertha defendant’s and agreed had to the sexual activities phone has no number but we Mrs. Smith once, her only that he had had sex with attempted neigh- to reach her both inBut that was a choice. terms and so mother’s, although and ... her bor’s coldness, stuff, his and is like phone our Mrs. Smith never returned part way always him. That is Additionally, Mr. following calls. is. conviction, this examiner had with the attor- collateral contact defense noted, Sehmidtgoessling’s mitiga- Dr. As Schmidt, neys, Ranz Dale Robert outset, tion At the report was admitted. prosecutors, Piepmeier Mark Schmidtgoessling Dr. that “[n]u- stated Pat were Dinkelacker. Records merous sources of information were used including also available for review social constructing report.” She detailed evaluations following: psychological histories and by County the Hamilton De- performed by the under- Mr. Smith was evaluated Services; Human rec- partment of some Ph.D., signed, Nancy Schmidtgoessling, County ords from Hamilton Juvenile Psychologist, Clinical November Court; page summary of the de- one 1987 at December Longview treatment at State fendant’s Hamilton County Criminal Justice Cen- Hospital; prior psychiatric one evalua- ter, 8,1988 and on at the Hamilton April Psychiatric performed tion the Court County Jail Annex. This included Center; Depart- records from the Ohio interview well administration Correction; ment Rehabilitation Intelligence Scale— the Wechsler Adult parole probation rec- (WAIS-R) some limited Revised and the Minnesota ords; very limited school records Multiphasic Personality Inventory Schools, (MMPI). copy Cincinnati Public Also, the defendant inter- Timothy disposition of Reverend MSW, Leahy, Shirley viewed W. McDonald; Worker, part pre- of the defendant’s ACSW, Clinical Social on No- liminary hearing; copy and a vember 9 and 1987 at the Hamilton at the Prior defendant’s statement Motion County Criminal Justice Center. interviews, Suppress. Mr. was made these report provided ticularly in the Schmidtgoessling’s developmental areas background, history3, par- stay Longview4, further details of Smith’s and his measles, tonsillitis, Schmidtgoessling 3. Dr. summarized Smith’s a skin condition and a developmental background as deficiency. follows: origin vitamin of these dis- orders is recorded in available records. developmental background Smith's Mr. confused, hospitalized, When the mother Mr. It a rather difficult one. is un- brother, Norman, father, Smith and his were exactly biological clear who is his *14 placed in the first two reportedly of foster homes. Mr. since the mother had relation- Therefore, spent years through ships Smith his one with numerous men. the seven (1958 1964) to at the home Mr. permit available does to of and Mrs. information not us Apparently, Julian Davis. appreciate biological role Mr. did what if his Smith well in may played development. years there the first few of but father have his life parents around the foster noted The defendant’s mother is known to have some psychiatric problems hospitalizations. had behavior both at home and at several diagnosed In simple a school.... while at She was schizo- enrolled South School, phrenic. Avondale both of the .. .The records established that the Smith broth- reported provide creating ers were to be appro- mother was unable to either distur- structure, classrooms, priate fighting bances in the discipline or on the nurturance playground, family. stealing per- the She and lunches for children the is de- and property sonal other neglecting as both abusive and from children. scribed to- Addi- tionally, stealing report the were the children. Even relatives brothers from the wards parents although parents Mrs. would beat foster the foster that Smith the children (in records) reported they gave go that with chains and belts and make them to ade- quate money to It that bed without dinner.... the children. seems boys buy the would money often use the The man who seemed most active in the to family food. during developmental Mr. In when the brothers were years destroying neighbor’s involved with was a Mr. Reid. some Ludie This man was alcoholism, called, property police having history and the were the described as a of parents frequent they longer foster and felt that could no numerous court contacts and cope they history inappropriate two brothers and were a sexual behavior. Apparently, severely transferred their second foster home. the children were in- However, records show that the foster timidated Mr. Reid because of his violent acting using mother described defendant as out when alcohol. For an affec- exam- person ple, having pulled relatively tionate who related he was described as better to adults than to attempting knives on the children and once children.... Mr. Smith was then to the to choke the defendant's brother. Mr. Reid transferred having home Mr. and Mrs. history was also Lewis Harrison described had Further, stayed September, where he of two known sexual offenses.... March, show, however, hospitalized 1965. Records he is known to have been at problems in Longview Hospital there were that home from the State and it seems that beginning. stealing The were that is he brothers where met Mrs. Smith.... Dur- parents, typically buy ing developmental period, from the foster the defendant’s it toys. parents reported food and The foster present that Mr. Reid was seems in the (the boys laugh would their home for short time when Mr. Smith was disciplined. parents) The approximately eight years foster faces when old and then parents reported boys again foster that the during years. Mr. Smith’s mid-teen grandmother would and family public visit maternal Smith was known (who the mother had been released from and had an assistance since 1955 active 1961) psychiatric hospital around case with Children’s Services since Octo- November, visits, ber, following boys those would In Mrs. Smith times, Longview quite upset those Hospital sent State be afterwards. At was for boys parents described that foster treatment. The defendant at that time was bed, clothes, Also, up year would wet the tear their approximately one old. some- time, life, year At this time within his first of Mr. similar behaviors. Smith hospitalized were at was at the Ward children enrolled Millvale School Convalescent Hospital complaints variety General their Cincinnati behavior continued physical symptoms including pneumonia, in school. reported Schmidtgoessling Dr. functioning.5 later functioning psychological Smith’s current mitigation report In Dr. Schmidt- average him in low to border- showed re- had also noted that Smith goessling functioning. line of intellectual range alcohol history a rather extensive ported concluded: Schmidtgoessling reported abuse. She also substance summary, product Mr. is the being in twice prison described family which of a chaotic life in rather history legal that his entire previously, but structure, discipline, needs for basic unknown, get not because she could This is and nurturance were met. family origin [sic] records. because the court warm, school tion in school that he needed Smith was referred to the Mr. history psychologist point living placement. place- A rural structured *15 “emotionally although was as he described suggested have ment so that he would was psychologist unable to disturbed” was competitive peers but if that were not no get complete rapport with him to sufficient available, hospitalization was psychiatric diagnosis. testing and to a come fuller suggested. October, 1964, sent In the defendant was put apparently and Street Clinic Twelfth stay Schmidtgoessling 4. Dr. discussed Smith’s hyperactivity. calm his on medications to Longview: at work- The defendant was described their thereafter, placed at Mr. Smith Soon was hyperactive yet er time amiable. at the as Hospital. Longview State We have children That clinic recommended that the center their rec- been informed that that placed psychiatric either a structured be at period destroyed. ords that time are Hospital facility Longview such as State or Long- page summary stay his fos- A one of at at School. When the second Glenview terminated, boys placed Hospital ter were was to our home view State forwarded performed Allen House. we our in 1976 when Center placed July, children were prior evaluation. Those records described biological mother and with Mr. with their suffering him as borderline intellectual despite earlier Reid recommendation slight functioning, having speech im- However, psychologist. the defen from the pediment, as restless and distractible began having problems soon school dant poor insight, having but no of evidence psychological testing and was referred for psychosis. hospital de- His course was evaluation, December, that he 1965.0 At although was scribed as "uneventful” he functioning average described as in the was (after August, being discharged in ad- being very dis- range intellectually but as 1966), February, status. mitted in AWOL having span. and a short attention tractible as well as Mr. self- Other records Smith’s report The noted that he was unable to sources, report report and the of collateral organize and that his reali concentrate suggest initially placed Long- he that was ty psycholo "precarious.” was contact The problems view of such as because behavior gist noted that Mr. Smith was so insecure around, things "running tearing up and set- satisfactorily that he was unable to relate ting a fire.” people attempted to re other and that he press hostility. It stated he had a his that Schmidtgoessling reported 5. Dr. there depression toward and that his emo trend documenting func- were few records his later expression inappropriate. was often tional years tioning. about He left home at fifteen thinking It felt was that his "sometimes background age. of His educational re borders on autistic.” The thrust poorly documented. She noted that his school port point out that the extent of Mr. Longview been when he records had sent deprivation instability of there, destroyed by were later transferred prevented gratifica his life had home Longview. Schools The Cincinnati Public psychological tion of his basic needs so that provided tenth records from ninth and problems really his were not sur behavior grades, showing poor numerous absences and prising. report recommended he grades. situa- would function best in one-on-one However, him of caring for because stance abuse as an adult. incapable of his inade- psychological his mental illness and capacity mother’s intimate rela- lack as well parenting skills quate tionships poor largely because he has fami- an male model. Other effective significant had relationships no intimate apparently disengaged ly members were during developmental himself the critical ori- family unable to overcome the period years the first few life.... earli- spent deficits. Mr. Smith gin’s He has never a stable achieved sense of years in homes that seemed to est foster direction, experienced never having discipline the structure and provide years. in his earlier needed, incap- but nevertheless were are no There indications this man He meeting able of his extensive needs. ever suffered substantial mental illness history early prob- shows behavior schizophrenia, depression, such as manic hy- bedwetting, (stealing, fighting), lems mental retardation or psychologi- other strong dependency peractivity grossly cal impair disorder would back got needs. As he older and moved ability to test He reality. did suffer family origin, appar- into the he was hyperactivity origin of unknown when abuse, ently subjected neglect, Now, younger[.] per- he does suffer a parent figures avail- intimidation. The sonality impairs disorder which his abili- (Mrs. Reid) Mr. were able *16 ty plan to think towards and for the him inadequate teaching appropriate in future, in judgment socially utilize a ap- skills. He moved adaptive and effective manner, propriate and effective relate origin in family place of his of some out intimately guilt to others and use and mid and appar- his to later teens became acting to inhibit out anxiety behavior. life.” ently highly by influenced “street Lastly, report this man some symp- does tendencies, This reinforced his antisocial tomatology that the effect may be of to a so- and even further failed induce use, specifically chronic cocaine some cially age and appropriate appropriate and hyperactivity. restlessness of edu- adaptive (appropriate set skills my Mr. opinion It is that Smith did attitude, interpersonal re- cational stable impairment from a gross not suffer lifestyle). lationships, a substance free testing or at the time of reality restraint in apparently He became more involved for he as been con- the offenses which initially the use of which he substances It my opinion victed. is both his feelings of seemed to use to soothe his style his personality and substance being lonely, and but which abandoned impaired ability abuse would have his to eventually became habitual to him.... appreciate the situation the victim he At the time of the offense for which apply socially in a judgment and to his convicted, Smith was reportedly was Mr. fashion at the time of the appropriate using alcohol cocaine on a frequent and for which offenses he was convicted. basis, significant was no rela- involved tionships, working part-time. and was Weighing Trial C. Court long-term psychological This man’s high functioning very is marked a Pursuant Ohio Rev.Code 2929.03(D)(3), § court dependence weighed for which was manifest the trial need only against in food factors the aggravating not his excessive interest miti- noted that youngster gating but his sub- factors.6 The court ongoing law, statutory aggravating prosecution proven cir- Under has one or more Ohio once verdict, at him three-judge unani- she came knife. panel because its mously guilty specifications found The court observed Bradford was a Smith specifications II as to One and lung I and Count woman who suffered from a slight II as Two. The court then I and to Count her keep a breath- required ailment Regard- the mitigating factors. assessed ing sentencing panel device. The and ing duress, nature circumstances no evidence of coercion found offense, the found that is “[t]here court strong provocation. The court found that no absolutely question that the defendant stolen, if even the was this was not cocaine Mary killed coldly brutally and purposely, “strong provocation.” As for the third committing the offenses of Bradford while 2929.04(B), § under mitigating factor aggravated robbery. He stabbed rape trial court held that Smith did not suffer raped ten times and her as the victim then from a mental or defect at the time disease body. life from her This not drained crime, noted specifically of the mitigating certainly does not factor insanity did claim at trial. not mercy.” As the character militate factor, nor youth was his offender, background the court significant history lack of of criminal con- stated: Further, princi- victions. since he was character, back- history, offender, partic- pal only degree ground the offender.—As discussed ipation mitigating the crime not a the defendant had a difficult earlier factors, Finally, factor. as to the catchall result, developed childhood. aAs sentencing panel although noted adversely which personality disorders high drunk and Smith claimed to be ability affected relate others. offense, night of there no evidence appreciate He is unable to the needs of presented to indicate that was not in regard others and little for human has *17 complete of his faculties at the control panel recognizes per- life. This Smith’s time. sonality disorders and difficult childhood mitigating as a factor. In weighing mitigating the factors factors, sentencing panel rejected against aggravating The the the sen- Smith’s argument provoked tencing panel the victim him concluded: doubt, defect, capaci- beyond cumstances reasonable the disease or lacked substantial panel weigh ag- ty
jury sentencing appreciate criminality or the the must the of- gravating against mitigat- circumstances the fender’s or to the conduct conform offend- ing imposing law; evidence before death sen- requirements er’s conduct to the of the 2929.04(B) offender; § (4) tence. Ohio Rev.Code Ann. youth The of the (Anderson 2002). panel may consider (5) significant If the offender's lack of a mitigating evidence: history prior criminal convictions and delinquency adjudications; the nature and circumstances of the of- (6) participant If the offender the fense, character, history, the and back- offender, principal offense but not the offender, the ground of all of the fol- degree participation offender’s lowing factors: degree offense (1) offender's Whether the victim of the offense in- it; participation acts that led or duced facilitated victim; (2) death of the unlikely Whether it is that the offense (7) committed, Any other factors are relevant would have been but for the duress, the issue of whether the defendant should fact that offender was under coer- cion, strong provocation; be sentenced to death. (Anderson (3) Whether, 2929.04(B) § committing time Ohio Rev.Code Ann. at the offense, offender, because of a mental 2002). A careful and meticulous review of the Both concluded that the aggravating fac- mitigating factors discloses that the de- tors outweighed mitigating factors. fendant had a difficult childhood. He The Ohio Court Appeals held as follows: family had no real to take care of him— We have considered Smith’s confes- history nurture him. There is a of men- sion, in which he said that Bradford result, family. tal illness in his As a him knife, threatened with a kitchen grew up personality with a disor- childhood, difficult and the personality ability der that affected his per- to form defect that ability affected his to relate relationships appreciate sonal or to to others. We cannot accept Smith’s feelings needs and of others. He be- claim that Bradford provoked induced or came cold unfeeling with a lack of response in light of the uncon- regard for human developed life. He physical tradicted evidence relative to specific anger discomfort and toward stature, slight her her severe respirato- women. ry disability, the absence of defensive It opinion is the of this three-judge wounds and marks her body as noted panel that the mitigating present factors coroner, by the wounds, the ten stab pale before fact that the defendant’s the location of Bradford’s blood and vicious, plotted, actions were persistent bloody clothing apartment. her Nor utterly Mary callous. Bradford was can we find that Smith’s childhood and not stabbed once but ten times. She defect, personality when compared to then had to suffer the final indignities of the nature and circumstances of the of- being raped by Smith while lay dy- she herein, fenses quality are of a to miti- ing having property and then her stolen. gate his sentence to the extent that the It is clear that the defendant went to aggravating rape circumstances of apartment her to obtain “restitution”. aggravated robbery do not outweigh the He obtained it in a violent and ruthless mitigating beyond factors a reasonable manner, absolutely regard no doubt. Mary the life of Bradford. We find no provocation conduct or on the part of Smith, (Ohio State v. 1990WL at *9 Mary Bradford which would warrant the 6, 1990) curiam). Ct.App. (per June response. defendant’s lethal In its independent reweighing, the Ohio *18 panel The unanimously concluded that the Supreme Court that: concluded aggravating outweighed circumstances all weighing When aggravating cir- mitigating advanced, factors Smith and factors, against cumstances mitigating imposed penalty the death on each murder we find that aggravating circum- count. panel The also sentenced Smith to outweigh stances do mitigating fac- a minimum term of years ten and a maxi- beyond tors a reasonable doubt. The mum twenty-five years, term of with ten aggravating circumstances are substan- years actual incarceration to run consecu- tial rape robbery helpless and of a tively, III (rape) as Count and Count IV woman her own home someone she (aggravated robbery). contrast, mitigation invited in. Appeals D. Direct appears inconsequential. case un- While statute, fortunate, required by As upbringing see Ohio Rev. Smith’s did not re- 2929.05, § defect, Code Ann. in a Ohio Court of sult mental disease or Appeals Supreme and Ohio Court opposed conduct- to a character defect. Smith ed an independent weighing analysis. vacillates between accepting responsibil- Dobbins, a
ity trying psycholo- for what and Dr. James clinical occurred shift gist, also Dr. Dobbins evaluated Smith. His lack blame onto others. claims that he provided stated reviewed materials authenticity, solidly and he dem- has counsel7, two inter- conducted clinical remorse, sorrow, repen- onstrated and views with Smith administered tance, or desire rehabilitation. Scale, MMPI, the Shipley Living Institute Smith, State Ohio St.3d Personality Defense Scale Re- Jackson (1991). N.E.2d Scale, and Appercep- search the Thematic tion Dr. determined that Test. Dobbins Proceedings E. State Post-Conviction many develop- “has and background Smith represented The OPD his state Smith problems mental which would contribute post-conviction proceedings. OPD in- poor adjustment a psychological adult vestigated background pro- Smith’s and Schmidtgoessling, life.” Like Dr. Dr. County duced Hamilton Social Services noted Dobbins that Smith suffered from Records. counsel con- Post-conviction also and resulting malnutrition vitamin defi- psychologists tacted several clinical neonate, a pneumo- ciencies as as well as evaluate for organic dysfunc- Smith brain nia. Dr. Dobbins stated Smith was tion, had hos- apparently because he been in severely family. raised disturbed Dr. child, Longview pitalized and was noted that placed Dobbins Smith was therapy both administered shock and anti- care, and Longview foster then State Hos- psychotic drugs. Dr. pital. Dobbins further noted that Longview, while Smith was adminis- Smith, Dr. psychologist Robert a clinical drug. tered a Dr. psychotropic Dobbins specializes who in substance abuse and experienced great confirmed that Smith treatment, administered series of tests physical deal of from parents abuse designed to detect the extent Smith’s caregivers. and other dependence. chemical Dr. Smith diag- Dr. Dobbins concluded dependence, nosed Smith with that Smith’s cocaine can- “school and social like- problems are more dependence. nabis dependence, and alcohol ly family to his due chaotic structure opined that “the court ordered of neurological impairment likelihood in adequately evaluations were as- remiss infections, perinatal postnatal vi- sessing impact the extent of [Smith’s] deficiencies, long tamin term alcohol alcohol and substance abuse.” Dr. Smith diagnosed He abuse.” Smith as DSM III— it “plausible” stated Abuse, R IAxis 305.00Alcohol Can- 304.30 alcohol, had marijuana, consumed Abuse, Dependence; nabis 304.20 Cocaine offense, evening and cocaine on the II Unspecified Axis 300.90 Mental Dis- that, “[g]iven reported, data it is (nonpsychotic) order fea- antisocial likely ability that Mr. adequate- *19 tures. ly judge consequences of behavior Burch, and to act in his own may best interest Kathleen psycholo- Dr. a clinical have impaired.” gist, been evaluated Smith determine Transcript Mitigation Hearing 7. Dr. stated Dobbins that he reviewed the of following materials: Transcript of statement to Cincinnati Police Public Cincinnati School Records Case staff the Ohio conferences with from County Psychiatric Hamilton Court Clinic Public Defender Commission Records family Affidavits of friends members William H. signs whether Smith showed of “cerebral appeared Smith’s deficits on tasks involv- dysfunction” might ing have contributed functions associated with frontal lobe “adaptive Dr. Burch activity deficits.” admin- such as difficulties in maintaining a set, battery istered a of neuropsychological cognitive and decreased flexibility in Schmidtgoessling tests.8 Like Drs. thinking. She further noted that his con- Dobbins, Dr. Burch noted that Smith was centration and attention are im- skills hospitalized pneumonia paired. as an infant with She observed that: vitamin deficiency. Dr. Burch re- pattern suggests results either ported any history that Smith denied sequelae of diffuse traumatic brain injuries or resulting seizures head in un- damage or of chronic alcohol abuse. He consciousness. She noted that Smith’s difficulty has marked with attention and frequently psychiatric mother was under may concentration be more long-stand- care, that he inwas various foster place- ing, and the result of developmental def- ments, and age eight, that at Smith was do, icit. If the deficits indeed result probated Longview and was medicated alcoholism, they expected would be during with Thorazine hospitalization. to reflect improvement some resulting “[hjistory Dr. Burch observed that of al- from extended sobriety. In other cohol and substance abuse has also been words, if he had been shortly tested inconsistent.” arrest, after his the test results would likely have most indicated more severe
Dr. Burch concluded that had a dysfunction. It unlikely “mild, contin- dysfunction.” diffuse cerebral Dr. ued abstinence would in an result fur- Burch noted that Smith “earned Hal- improvement cognitive ther of his sta- 0.7, Impairment stead-Reitan Index of Overall, .... tus suggest results mild would suggest which a moderate level of problems, attentional difficulty with con- “However, impairment.” She added: centration and mental tracking, mild performance was no mildly more than im- problems with nonverbal and verbal rea- paired of the measures —evidence soning, tendency and a low ini- show against the presence of discrete lesion. respond tiative and to the obvious. The While the results are strongly lateral- results are with a pattern consistent izing, appear there does to be more left diffuse, mild impairment. cerebral hemisphere impairment.” Dr. Burch’s tests results were similar to Dr. Burch further observed that reports. WAIS-R, those of earlier On the is, “dysfunction appears static —that non- IQ Smith scored a perform- verbal progressive. There is no of an evidence IQ IQ ance and a full scale of 85. lesion, toxic, metabolic, acute or ongoing conclusions, process.” infectious She noted her Burch reiterated that 8. Dr. Burch stated that she administered the Burch also stated that she reviewed the following tests: following provided by materials counsel: Scale-Revised; Intelligence Wechsler Adult Report Police Scale-Revised; Memory Wechsler Test; Category Reports Psychological of Previous Evalua- Test; Speech Perception Sounds Sea- tions Test; Test; Rhythm Finger shore Oscillation Treatment Summaries Test; Aphasia Screening Frontal Lobe Bat- Family Affidavits of Friends and Members Test; tery; Making Complex Figure Trail of William H. Smith *20 Test; Test; Learning California Verbal De- Case conferences with staff from the Ohio velopmental Test of Visual-Motor Inte- Public Defender Commission Test; gration; Hooper Tactual Performance Organization Visual Test.
198 F. results, Federal Habeas again, suggestive are more
[t]he
alcohol
sequelae
of chronic
abuse
of
trial coun-
The district court held that
or,
head
possibly of
trau-
repeated
miti-
investigation
preparation
and
sel’s
ma_The
deficits observed character-
The district
gation were not ineffective.
istically
poor impulse
associated with
are
particular
in
court noted
that trial counsel
deficient
and
planning
prob-
control and
as its
witness Dr. Schmidt-
expert
called
goessling, who
information that
presented
solving.
lem
mitigating
several
fac-
tended
establish
trial
post-conviction
The state
court de-
Anderson,
F.Supp.2d
v.
104
tors.
evidentiary
motion
an
nied Smith’s
without
(S.D.Ohio 2000).
The court held
809
hearing.
Appeals
of
re-
The Ohio Court
that coun-
that Smith
to establish
“fail[ed]
jected Smith’s claim of ineffective assis-
sel were ineffective and that Petitioner
mitigation
phase.
tance of counsel
defi-
prejudice
alleged
suffered
from
court
The
reasoned that:
overwhelming
ciency,
light of the
evi-
reliability
that
of both
dence
affirms
family
members and
[of
affidavits
finding
guilt
imposition
and
theme,
psychologists] share a common
Id.
sentences.”
i.e.,
years
early
that Smith’s
were
abuse,
fraught
instability,
neglect
II. Standard of Review
and a
lack of
and
parental
total
love
application
Petitioner’s habeas
support. During
mitigation hearing,
prior
filed
to the enactment of
was
mother,
uncles,
two
his minister
Smith’s
Antiterrorism
Effective Death
a psychologist
concerning
testified
(“AEDPA”);
Act
Penalty
pre-AEDPA
opinions
their
that Smith had
unsta-
applies.
standard
review therefore
childhood,
ble
difficult
he had
Mitchell,
Coleman v.
268 F.3d
427
history
problems,
of substance-abuse
(6th Cir.2001);
v.
171
Mapes
Coyle,
F.3d
follower
could be
(6th Cir.1999).
413
Under
stan
easily
per-
that he had
manipulated and
dard,
presume
we
the correctness
sonality
him
prevented
disorders which
findings,
state court factual
unless rebut
relating
to others.
evidence,
convincing
ted
clear and
court,
opinion,
The trial
in its
stated
law,
we
determinations of
review
mixed
law,
“recognize[d]
personality
that it
questions
of fact and
de novo. Cole
man,
427; Mapes,
pelling,
Thus,
Court of
at *9.
as the Ohio
that Smith
never states
sive.
review,
post-conviction
Appeals
stated
damage.
brain
organic
suffers
merely cumu-
evidence
“was
damage
presented
thing
organic
brain
closest
mitigation
presented
lative to
is that Smith
Dr. Smith’s statement
Smith,
1994 WL
alcohol,
hearing.”
co-
State
marijuana, and
dependent on
*24
273267,
Furthermore,
at *4.
as Warden
caine,
chemicals
and that each of these
out,
forcefully
that Smith
But
the fact
system.
points
affects the central nervous
times, then had sex
the victim ten
herself also docu-
stabbed
Schmidtgoessling
Dr.
time,
and made four
And Dr. with her
second
abuse.
mented Smith’s substance
her
to his
trips
property
to take
“plausi-
separate
that it was
merely opined
Smith
die,
car,
any
belies
then left her to
substances on
had abused
ble”
Smith
offense,
did,
impulse
claim of lack of
control.
plausible
and that if
night
was
“likely”
judgment
it
that Smith’s
was
of a “mild
Other than the slim evidence
impaired.
which mani
dysfunction,”
diffuse cerebral
control,
poor impulse
diagnose
primarily
not
fested
Dr.
likewise did
Dobbins
any
point
mitigating
failed to
damage, conclud- Smith has
organic
with
brain
Smith
actually presented.
not
“likelihood of
evidence that was
only that
there is a
ing
medi
Absent the existence of some actual
Nor did Dr.
neurological
impairment.”
disorder,
proof
organic
likeli-
cal
of an
brain
whether this
explain
Dobbins ever
cause in the failure to find
would there can be no
neurological
impairment
hood
it,
present
obviously
prejudice
no
criminal act. Dr.
impacted
have
Smith’s
Bell, 315 F.3d
Thompson v.
diagnosed
Burch
with “mild diffuse
either. See
Smith
(6th Cir.2003);
Coyle,
Lorraine
dysfunction.” She further stated
cerebral
(6th Cir.2002),
cert. de
no more
291 F.3d
“performance
was
Smith’s
—
nied,
-,
any of the mea-
U.S.
123 S.Ct.
mildly impaired
than
on
(2003).
short,
In
trial coun
identi- L.Ed.2d 489
telling,
More
Dr. Burch
sures[.]”
unreasonable.
performance
sel’s
was not
only one deficit
was relevant
fied
of the mur-
night
actions on the
Smith’s
alleged omissions are of
remaining
Burch
poor
control. Dr.
did
impulse
der —
objec-
magnitude, and do not reflect
minor
consti-
opine
impairment
not
that Smith’s
tively
performance, let alone
unreasonable
capacity
diminished
or insani-
tuted either
criticizes trial counsel
prejudice. Smith
ty under Ohio law.
record
failing
for
to consult with Core. The
trial
made ini-
fail-
shows that Smith’s
counsel
Although he faults trial counsel for
January
tial contact with Core
ing
neuropsychological
to obtain a
exami-
actually sent her
materi-
organ-
that counsel
some
nation that would reveal evidence
Smith,
regarding
including Schmidt-
counsel’s als
damage, post-conviction
ic brain
quite
was
goessling’s
report,
unavail-
NGRI
which
equally
on that score were
efforts
Thus,
incorrect
essence, then,
only
comprehensive.
Smith is
In
evidence
ing.
did
suggests
to the extent he
counsel
did
hear was that
sentencing panel
It
any
to Core.
provide
a lack of
con- not
materials
impulse
suffered from
evidence,
stymied in
Yet,
that trial counsel were
appears
not new
be-
trol.
this was
pro-
their efforts because Core refused
Appeals
noted
cause as
Ohio Court
funding, and trial
ceed further without
appeal, Schmidtgoessling con-
on direct
order funds until late Febru-
from a nonor-
court did not
cluded that Smith suffered
why
him
It
is not clear
counsel
ary
that made
personality defect
ganic
Thus,
performance
even if trial counsel’s
ultimately
Schmidtgoess-
to Dr.
switched
qualified
deficient,
probably
mitiga-
Core is
is no
ling.
prejudice.
there
event,
reflects that
expert,
mitigation
tion
but the record
prior to
in-
counsel
too. Dr.
Sehmidtgoessling
witnesses,
Schmidt-
terviewed several
including
has been involved
death
goessling
wife, grandmother,
Smith’s
and other rela-
cases since
modem death
penalty
Ohio’s
tives. Smith
for
faults counsel
not meet-
statute
into effect in
penalty
went
ing with his
prior
mitigation
mother
mitigation reports
her NGRI and
hearing.
if
Again, even Smith could some-
as her
testimony
well
demonstrate
front,
how demonstrate
cause
very thorough
investigation
in her
she
has shown
prejudice.
no
quest
background
Smith also
failing
faults trial counsel for
fact,
mitigating evidence. In
Dr. Schmidt-
to communicate with Dr. Sehmidtgoessling
usually
goessling testified that she
became
*25
appointed
once she was
as the friend of the
in mitigation at the instruction of
involved
expert,
just
court
after
and
pri-
conviction
or from a
defense
private
the OPD
attor-
mitigation.
or to
Dr. Schmidtgoess-
From
Furthermore,
counsel had Dr.
ney.
ling’s deposition testimony it appears that
report,
at
Schmidtgoessling’s
so
NGRI
may
up
counsel
been
to speed
have
they
her
time
decided to use
instead of
mitigation
at certain points
evidence
dur-
Liverani, they
good
had a
idea of what
ing pretrial preparation.
again,
Yet
even
A
mitigation
present.
evidence she would
if we were to
that trial
conclude
counsel’s
comparison
report
of the NGRI
and miti-
purported ill-preparedness prior
to the
Thus,
gation report
simply
confirm this.
it
mitigation hearing somehow constituted
be said that
choice of
cannot
counsel’s
Dr.
cause,
any prejudice
Smith fails
show
to
Sehmidtgoessling
mitigation
as their
ex-
Indeed,
whatsoever.
Dr. Schmidtgoess-
pert was deficient.
v. Mitch-
Wickline
Cf.
ling
presented
comprehensive
herself
(6th Cir.2003)
ell,
319 F.3d
820-22
portrait
sentencing panel,
Smith to the
(holding that trial
were not ineffec-
counsel
and did not
that she was ill-pre-
indicate
failing
separate
for
miti-
perform
tive
to
Powell,
F.3d at
pared.
328
2003
Cf.
investigation;
testified
gation
counsel
that
(noting
WL 21012621
that Dr. Schmidt-
pretrial
investigation
their
conducted
petitioner
goessling testified at
Powell’s
guilt phase
mitigation phase
both
for
and
sentencing hearing
given
“she was not
purposes and the mental health evidence
an appropriate
sufficient time to conduct
petitioner’s petition
submitted with the
investigation
into Petitioner’s mental
post-conviction
pe-
relief indicated that the
makeup,
necessary
to
family
interview
any
did
titioner
not suffer
mental
acquaintances,
members and
or to run
murders;
if
condition relevant to the
even
tests”).
diagnostic
needed
As we have
performance,
petitioner
deficient
failed
restated,
the sentencing panel
stated and
prejudice).
to show
it,
ample
had
evidence
mitigating
before
for failing
Smith criticizes counsel
and Smith has not identified
evidence
investigate on their
He also claims
own.
that counsel overlooked.
counsel failed to
records from
request
reason,
For
this
Smith’s reliance on
Hamilton
County
Juvenile Court
362, 120
Taylor,
Williams v.
U.S.
529
S.Ct.
County
Hamilton
of Human
Department
(2000),
However,
146
and Glenn v.
L.Ed.2d 389
Sehmidtgoessling
Services.
Tate,
(6th Cir.1995),
requested
F.3d 1204
is mis
testified
trial counsel
and
cases,
In
the courts
placed.
received from her
the documents that
both
those
report.
mitigation
her
identified
evidence
existed
formed
basis of
NGRI
Williams,
like a
case is also not
recent
presented.
but was not
See
Powell,
Court,
In
of this
Powell.
decision
395-98,
(finding
120 S.Ct.
U.S.
peti-
found that the
panel
of this Court
of counsel because
assistance
ineffective
deprived
right
of his
tioner had been
investigate
introduce
counsel failed
at the sen-
psychological assistance
expert
nightmarish
petitioner’s
evidence
In
tencing
reaching
trial.
phase
childhood,
repeated
including severe
conclusion,
emphasized
Powell court
father, and available evi
beatings by his
failure to make reason-
defense counsel’s
petitioner was bor
showing that the
dence
efforts, Powell, 328 F.3d
investigative
able
retarded;
finding
mentally
derline
2003 WL
research
“might well
prejudice in that the evidence
necessary information in order
and collect
of his
jury’s appraisal
influenced the
have
mitigation
pen-
at the
present
effective
Glenn, 71 F.3d at
culpability”);
moral
particular,
the Powell court
alty phase.
(finding trial
ineffective at
1207-11
counsel
were ineffective
noted
defense counsel
develop
failure to
mitigation due to their
peti-
they
investigate
because
failed to
mitigating
regarding
evidence
present
spent less than two full
background,
tioner’
including the
petitioner’s background,
days
penalty
for the
preparing
business
fact that in school he had been classified
trial,
failed to interview
phase of the
retarded,
mentally
and that he suffered
mitigating
numerous
wit-
present
*26
damage, despite its
organic brain
availabil
to
willing
who were available and
nesses
Rather,
is more
ity).
Smith’s situation
Instead,
behalf.
testify
petitioner’s
on the
Thompson,
in
315
petitioners
akin to the
at
presented only
trial
one witness
counsel
Lorraine,
416,
566,
In
and
291 F.3d
F.3d
Schmidtgoessling,
Nancy
Dr.
mitigation,
assis
both cases we found no ineffective
by
used
trial
expert
the same
witness
failure to
of counsel based on the
tance
in
counsel
this case.
of
mitigating
organic
evidence
present
Here,
contrast,
present-
trial
counsel
damage,
petitioners
because the
nev
brain
mitigation,
five
at
and its
ed
witnesses
damage
organic
that
brain
er established
witness,
Schmidtgoessling,
Dr.
principal
Thompson,
See
315 F.3d at
present.
was
picture of
presented
comprehensive
(and
therein);
cases cited
Lor
590-92
social,
back-
family,
psychological
Smith’s
(and
raine,
cited
dence could ting mitigating of the crime. To the extent factors have circumstances Frazier life.” Br. Wiggins sparing what con shifted favor at reflect to 52. failing ineffective assistance in stitutes
investigate
develop
mitigat
available
Even if improper,
prejudice
there is no
evidence, they confirm that counsel’s
ing
light
overwhelming aggravating
present
report
mitigation
decision
(as
mitigating)
presented.
well as
evidence
testimony
Schmidtgoessling
de
Furthermore,
argument
made to
history
objective
tailing Smith’s social
three-judge
any inflammatory
so
panel,
ef
Strickland,
ly reasonable. See
at
466 U.S.
Harris
v.
de
anyway.
fect was minimis
Cf.
688,
B. Cumulative Errors that right sure Smith knew of to testi his Smith also that his trial had fy, contends created the written him statement they self, attorneys were ineffective implications because had discussed the testimony to strategy failed rebut lacked this his trial It Smith with counsel. remorse. Smith contends that counsel noted on the record that Smith objected, have spe should rebutted trial counsel took a 35 recess minute report, with Dr. cifically statement Weaver’s NGRI to discuss this with Smith issue displayed prior reading which showed that Smith re the document into the Thus, during morse with competency review record. counsel are not be In they Dr. report, Glenn Weaver. deemed deficient because followed See Coleman v. broken Weaver indicated Smith had Smith’s instructions. Mitchell, (6th 533, describing down when crime. Smith 244 F.3d 545-46 Cir. 2001) (“An “because, prejudice attorney’s im- not defi- claims absent this conduct is
207 following his client’s in- simply right right cient does not include the psy- to a structions.”). 83, chiatrist of his choice. Id. at Again, danger there is no 105 S.Ct. (“This course, 1087 say, is not to prejudice given overwhelming evidence indigent defendant has a constitutional in this case. right to psychiatrist choose a per- of his liking sonal or to receive funds to hire his C. Ake Violations own.”). argues Smith that the trial court’s refus- interpreted This Court has Ake as allow provide expert
al to
him
independent
ing psychiatric assistance during the sen
during mitigation
assistance
violated Ake
1)
tencing phase if
sanity
defendant’s
Oklahoma,
1087,
v.
470
105
U.S.
S.Ct.
2)
trial,
significant
was a
factor at
(1985),
L.Ed.2d 53
and that
trial coun-
presents
state
at sentencing psychiatric
request
sel’s
that an expert
failure
be
Mason,
dangerousness.
evidence of future
provided violated Strickland.
615-16;
320 F.3d at
tied to an
expert
cause the
used was on the
appointment.
“friend of
State
than a
the court”
Mitchell,
Martin
payroll.”
280 F.3d
Ake does
psychiatrist
not entitle him
to the
denied,
(6th Cir.),
594,
cert.
537
614
U.S.
choosing, only
psychia-
competent
of his
123 S.Ct.
F.3d at 588.10
argues
also
trial
court
denying
drug
erred in
him a
and alcohol
of counsel
Smith’s ineffective assistance
argu-
at the
This
expert
culpability phase.
because,
rejected
be
he him-
claim must
rejected.
ment must
be
likewise
brief,
attorneys
admits
re-
self
Schmidtgoessling
long
testified to Smith’s
independent
an
for
quested
psychiatrist
history of substance abuse and its effects
trial
mitigation phase,
but
court
Schmidtgoessling’s testimony
on him. Dr.
trial,
prior
the motion.
to
denied
“Months
Supreme
was sufficient for the Ohio
Court
request
the trial court denied a defense
for
drug
to conclude
Smith’s
and alcohol
independent
professional
an
mental health
factor. See
constituted a mitigation
abuse
Thus,
penalty phase.”
at the
Brief at 53.
Smith, State v.
N.E.2d at 520.
trial counsel cannot be ineffective
failing
request
independent psy-
an
For all the reasons discussed in
Furthermore,
section,
have never
preceding
chiatrist.
has
“[w]e
not
act.”);
(“The
recognize
again
panel
judge
10. We
that a
of this Court
a certain
id.
trial
recently
indigent
held that “an
criminal de-
the motion
denied
and found Petitioner com
trial.”);
("Dr.
right
psychiatric
petent
fendant's constitutional
to stand
id. at 286
Tan
preparing
insanity
ley’s
post-conviction testimony
assistance in
an
defense is
after-the-fact
appointment
not satisfied
court
of a 'neu-
nothing
change
does
the harmlessness of
report
psychiatrist
i.e.,
tral'
is
one whose
the trial court's error because the fact that
—
prosecu-
available to both
and the
difficulty
defense
conforming
has
one
his conduct to
Collins,
268, 284,
tion.” Powell v.
328 F.3d
requirements
enough
the law ‘is not
However,
(6th Cir.2003).
WL
prove insanity;’ one must demonstrate the
“holding”
contrary
is
to Ake and our own
so.”).
capacity
lack of
to do
Alee,
(“That
precedent. See
event,
unfortunate upbringing. But there is no This claim is without merit. proof organic that he has brain damage or Smith absolutely demonstrated preju no any diagnosed other mental disease or de- dice from misnaming counsel’s of a plead Indeed, pretrial, fect. three mental Court, ing Supreme or its alleged health experts any failed to detect indica- failure to consult with him. As to coun possible organic tors of brain damage. At purported sel’s failure to raise meritorious post-conviction, three mental health ex- issues, agree we with the district court’s perts, hand-picked by counsel, habeas analysis and incorporate it reference up failed to come a diagnosis of or- Anderson, here. See Smith v. ganic damage. brain It is therefore not F.Supp.2d at 839-40. possible to fault trial accepting counsel for Nonstatutory E. Consideration of court-appointed conclusion of three Aggravating Circumstances experts, mental health and strategically
deciding rely argues on Dr. that the trial Schmidtgoessling court erred including nonstatutory aggrava present presentation an exhaustive ting sentencing factors their decisions. the evidence she did have after an exten- Specifically, Smith contends that the trial sive review of numerous records. court used the nature and circumstances of short, Smith has not demonstrated that nonstatutory offense as a aggravating any alleged failings by trial counsel although circumstance the Ohio statute re prejudiced right fundamentally to a fair quires the nature and circumstances be mitigation Indeed, proceeding. as every mitigating considered as factors. See Ohio court that has reviewed the issue has de- 2929.04(B). § Rev.Code As the Ohio Su termined, although certainly there was preme Court concluded: abundant mitigation evidence presented, it argument Smith’s lacks merit because outweigh could not the aggravating cir- panel’s opinion only listed the nature cumstances found in this brutal crime. and circumstances of the offense as a We now turn to the remainder of relevant, possible, but not mitigating arguments. Respondent argues opinion factor. Their did not list many of them procedurally have been nonstatutory aggravating circumstances. merit, defaulted. Because all are without Their reference to the nature and cir- briefly we will dispose of them on those cumstances of the proper, offense was grounds, assuming deciding, without solely 2929.03(F), since a trial “[u]nder R.C. purposes of expediting somewhat the court or three-judge panel may rely analysis, they procedur- have not been upon and cite the nature and circum- ally defaulted. sup- stances of the offense as reasons
210 jeopardy. double The trial aggravating that the violation of
porting
finding
its
imposes
out
entry
sufficient
of sentence
the
circumstances were
court’s
v.
State
1
weigh
mitigating
penalty
the
factors.”
death
Count
and as
(1987)
95,
2,
512
...
Ohio
further
Stumpf,
provides
“[t]he
32
St.3d
Count
598,
syll
one
the
2
paragraph
N.E.2d
run
1 and will
sentences for Counts
guarantees,
abus.
other
Among
concurrent.”
Jeopardy
pro-
the Double
Clause seeks
Smith,
v.
574 N.E.2d
State
against multiple
for the
punishments
tect
review,
agree
we
with the
Upon
single
imposed
proceed-
offense
a
same
Supreme
Court
district court
the Ohio
Pearce,
ing, see North Carolina v.
395 U.S.
“reasonably
correctly
determined
(1969);
711, 717,
v.
Even if the Ohio analysis of law was incorrect Court’s Ohio presents categories prose- four no there is constitutional violation. 1) pervading cutorial racism misconduct: held Supreme United Court has States 2) decision, mis- charging prosecutorial eligible a defendant is once found 3) during culpability phase, conduct a constitutionally death based on sufficient prosecutorial during the miti- misconduct circumstance, narrowing sentencer’s phase, gation including improper introduc- virtually discretion is See Zant unlimited. standard, remorse, insanity tion lack of 862, 878-79, 462 103 Stephens, v. U.S. 4) remarks, cumulative improper (1983). S.Ct. 77 235 Fur L.Ed.2d misconduct. of prosecutorial effect thermore, has also Supreme Court non-statutory held that consideration of a In Darden Wainwright, v. circumstance, contrary aggravating 168, 181, even if 91 L.Ed.2d U.S. S.Ct. law, does violate (1986), state not the Constitu Supreme noted that Court Florida, 939, 103 Barclay review, tion. 463 U.S. relevant is question on habeas “the (1983). 3418, 77 This S.Ct. L.Ed.2d in prosecutor’s whether comments ‘so claim without merit. fected the trial with unfairness as to make ” process.’ a denial of due conviction Imposition Multiple F. addition this Court has stated that “[w]hen Death Sentences prosecutorial petitioner makes claim of misconduct, has process
Smith contends that he ‘the touchstone of due trial, analysis two murder ... is the fairness aggravated convictions ” homicide, prosecutor.’ single culpability two death sentences for
211
(internal
Hutchison,
(9%),
tion in
quo-
rejected by
Supreme
the
Court in McCles
Pervading
key
1.
the
Racism
insufficient to ‘demonstrate a con
Charging
stitutionally
risk
significant
Decision
of racial bias
affecting
capital
the ...
sentencing pro
African-American,
Smith, who is
” Coleman,
cess.’
F.3d at 441-42 (quot
268
that
argues
policies adopted by
the ad hoc
ing
313,
McCleskey, 481 U.S.
107 S.Ct.
Hamilton County
the
Prosecutor’s Office
1756).
charging
prose
a racial bias in
reflect
cuting capital
According to
offenses.
argues prosecutorial
Smith also
Smith,
upon
based
the 1980 census data
intent.
prevail
Equal
under the
“[T]o
Pro
Census,
by the
Bureau of
prepared
U.S.
Clause,
tection
prove
[a defendant] must
County
population
of Hamilton
that
decisionmakers
in his case acted
percent
in
nineteen
African-American
with discriminatory purpose.” McCleskey,
Further, since
current death
Ohio’s
292,
inability to his at all. This remember case Inn, Race testified that she knew the intent. discriminatory is not evidence of aas customer at the bar. Smith Smith prosecutor claims the failed to that Culpability 2. Phase Echols, who eyewitness disclose Jane guilt the during Smith contends Mary with at the bar. had been Bradford phase, prosecutor the introduced victim- identify purportedly Echols could not evidence, engaged improper ar- impact the who left with the Smith as man the bar im- gument, to disclose favorable failed prosecu also asserts that the victim. Smith evidence, and peachment failed to disclose police tor failed disclose that a officer the police that a officer saw blue car with miss saw a blue car with back window missing. back window car, ing, which not Smith’s outside
victim’s residence. Victim-Impact Improper a. Materiality is an essential element of Argument Brady Brady, claim. 83 U.S. statement, the During opening agree 1194. We with the district S.Ct. prosecutor testimony regarding introduced court that: vic family. the size the victim’s deciding Without whether the State daughter tim’s also testified to the extent evidence, actually this withheld remaining of the family victim’s members. finds that the witness statements Court We refuse two com to hold these by alleged have been withheld ments, so three-judge panel, made to exculpatory are mate- State neither nor infected the as to trial render it fundamen First, .... respect rial to the identi- tally unfair. Henson, fication Petitioner Ms. objects pros further fact that identified as a
Smith
she
Petitioner
bar,
patron
possible
ecutor’s
crime as
as well as a
describing
comment
calculating,”
contradic-
perfume
“cold
statement
salesman are neither
spurt
tory
testimony,
victim
material.
Smith robbed the
while blood
her
nor
neck,
her
There
no
ed out
his statement
were
inconsistencies
got
morning
Smith
next
and cele
of Petitioner and no show-
up the
identification
ing
brated. We
has been made
Petitioner that the
believe
these statements
materiality
met.
are reasonable inferences drawn from the
standards for
have been
Second,
testimony of
Echols
presented
Byrd
evidence
at trial.
v.
See
Janice
Cir.2000).
(6th
Collins,
material,
not
neither
209 F.3d
as she could
event,
statements,
In
like the
include
Petitioner as the
these
nor exclude
ones,
victim.
preceding
egregious
person
were not so
who left
bar with the
sum,
“exculpa-
unfair.
fundamentally
allegedly
to render the trial
withheld
simply
compelling.
tory”
See id.
evidence is
Anderson,
F.Supp.2d
held,
824-
As the district
court
utterly
25. This claim is without merit.11
claim is
without merit. The dis
thoroughly
trict court
and exhaustively ad
Mitigation Phase
issue,
dressed the
incorporate by
and we
objects
prosecutor’s
to the
holding
reference its
at pages 795-96. See
during mitigation
statements
that Smith Smith,
gument lacks serious merit.
Constitutionality
I.
of Ohio’s
Penalty
Death
4. Cumulative Effect
Smith attacks the constitutionality of
Smith claims that the cumulative effect
penalty
death
grounds.
Ohio’s
on various
prosecutorial
misconduct rendered his First, he alleges that the Ohio scheme is
fundamentally
trial
unfair. Because we
legiti-
unconstitutional because “there is no
find
prosecutorial
no
misconduct as to
mate,
compelling
killing
state interest
claims,
of the individual
there can
no
be
person.”
global
This
attack on the death
prosecutorial
cumulative effect of
miscon-
penalty as a violation of
Eighth
duct.
foreclosed, by
Amendment
is
v.
Gregg
153, 168-87,
Georgia, 428 U.S.
96 S.Ct.
Jury
H.
Waiver
(1976).
with
and has been
Lowenfield
ground
post-conviction petition
in his State
in Buell.
Lowenfield,
this Court
484
See
as his thirtieth claim. The district court
246,
Buell,
546;
at
108
274
U.S.
S.Ct.
F.3d
rejected
holding
allegation,
Smith’s new
369-70.
at
court,
presented
that it was never
in state
stat
procedurally
Smith contends that the Ohio
and was
defaulted. The
provide
adequate propor
rejected
ute fails to
merits.
court
the claim on the
tionality
by
appellate
agree
review
courts.
with the
court that this
We
district
However, comparative proportionality re
procedurally
claim is
defaulted under
constitutionally required,
by
view is not
see
doctrine of
stated
judicata
Ohio’s
res
Harris,
37, 50,
849-50,
Pulley v.
104 S.Ct.
at 104
F.Supp.2d
465 U.S.
the court
at
(1984),
argu
error.
IV. Conclusion I. Having responsibility our “to completed Ake, Supreme Court held that ensure Petitioner’s conviction and “when defendant has made a preliminary comport require- death sentence with the showing that his at sanity the time of the Constitution,” Byrd, ments of our F.3d likely offense is to be a significant factor at hereby at we AFFIRM the judgment trial, the requires Constitution that a state denying petition of the district court provide access to a psychiatrist’s assis- corpus. for writ of habeas issue,
tance on this
if the defendant cannot
COLE,
Judge, concurring
part
Circuit
otherwise
one.”
afford
U.S.
dissenting
part.
S.Ct. 1087. The Court went
toon
state
that “when a defendant demonstrates to
I
only
concur
the result reached
judge
the trial
sanity
at the time
majority denying
each of the asserted
of the offense is to be a significant factor
relief,
grounds for
excep-
habeas
trial,
must,
minimum,
the State
at a
tion of
claim that
trial
court’s
assure the defendant access to a compe-
him
provide
psy-
refusal to
with a defense
*36
psychiatrist
tent
who will
ap-
conduct an
expert,
chiatric
to a
opposed
neutral
propriate examination
in
and assist
evalua-
psychiatric expert, violated Ake v. Okla-
tion, preparation, and presentation of the
homa,
68,
1087,
470
105
U.S.
S.Ct.
84
83,
defense.” Id. at
F.2d 283
that,
“when the State has made
stated
proposition
Ake
for the
stands
relevant
“if defendant’s mental condition
fundamentally unfair
criminal trials are
punish
and to the
culpability
his criminal
against
indigent
an
defen
proceeds
a state
suffer,
might
the assistance of
that he has ment
making certain
dant without
crucial to the
may well be
integral
psychiatrist
to the raw materials
access
ability marshal his defense.”
defendant’s
Terry, 985 F.2d
building a defense.”
(emphasis
1087
that the trial
470 U.S.
S.Ct.
Accordingly, we held
added). Many
recog
other courts have
denying
in
the defen
violated Ake
court
See
reading
nized this
of Ake as well.
independent patholo
an
request
dant’s
for
(9th
Arave,
949, 963
Pizzuto v.
280 F.3d
challenge
government’s
gist
order to
Cir.2002)
Ake,
Supreme
(noting
death.
to the victim’s cause of
position as
indigent
an
defendant’s
recognized
has held Court
Similarly,
Eighth
Circuit
Id.
expert
when the
right
independent
when the
applies
the rule of Ake
relevant);
makes mental condition
psychiatrist,
is not a
state
expert
question
of Okla., 167 F.3d
way
distinguish
Attorney
Walker v.
Gen.
finding
principled
“no
(10th Cir.1999)
that the
(stating
ex
psychiatric
nonpsychiatric
between
Armontrout,
inquiry
pre
Ake
is whether evidence is
Little v.
835 F.2d
perts.”
Cir.1987) (en banc).
(8th
suggesting
sented to the trial court
likely
that Ake re
the defendant’s mental condition is
Eighth
has also held
Circuit
factor); Chaney
v. Stew
psychiatrist
significant
of a
to be
quired
appointment
(9th Cir.1998) (“Ake
art,
156 F.3d
pleaded
the defendant had not
insan
when
provide indigent
that a state must
ity, but
his mental retardation was
held
where
expert
mitigation
psychiat
criminal defendants
strongest argument
Lockhart,
ric assistance if the defendant’s mental
sentencing purposes. Starr v.
*37
(8th Cir.1994).
trial.”);
1280, 1288
at
significant
condition is a
factor
23 F.3d
Roman,
136, 144
v.
121 F.3d
United States
interpreted Ake’s
Many courts have
(3d Cir.1997) (“In Ake,
Supreme
Court
expert psychiatric
provide
command—to
that,
capital
held
when a
defendant demon
sanity
a
is a
assistance when
defendant’s
sig
that his mental condition is a
strates
than
significant
factor —to mean more
sentencing phase,
nificant
at
factor
strictly whether or not the defendant has
psychia
a
is ‘entitled to the assistance of
insanity.
guilty by
not
reason of
pleaded
”).
trist.’
Rather,
interpret-
regularly
Ake has
been
Thus,
our
psychiatric
apparent,
assistance
it was
even before
require expert
ed to
Powell,
that Ake’s protection
“mental condi- decision
any time the defendant’s
beyond
psychiatric assis-
significant
expert
a
factor at
extended
tion” is shown to be
However,
words,
Supreme
insanity pleas.
if
trial.
In other
tance
Powell,
to
such confu-
“sanity”
prior
term
in Ake
doubt existed
Court’s use of the
As the
when de-
sion has now been addressed.1
was not restricted to occasions
notes,
majority
decision in Powell
plead insanity,
to
but
our
fendants have chosen
rather,
gives
petitioner’s
all
issues
no indication that
encompassed
significant
sanity
during the
actually
condition.
at issue
concerning a defendant’s mental
considering
prece-
noteworthy
court's
not have the benefit of
1.
It
is
the district
thorough
opinion
of Powell when
ruling
and articulate
in this case
value
dential
issued
deci
was issued before this Court
its
petition.
Smith's
Thus,
in Powell.
the district court did
sion
Rather,
petition-
persuaded by
argument
I am not
appears
it
that the
trial.
may ignore
that we
Powell because its
com-
concerning his
only
er
raised issues
holding
contrary
is
to Ake and Sixth Cir-
trial and his “mental con-
petence to stand
did, indeed,
precedent.
cuit
Ake
state that
Nevertheless,
we held
dition.”
indigent
possess
an
defendant does not
petitioner
provide
failure to
right
constitutional
to
a psychia-
“choose
aid in his defense was
psychiatric expert to
personal liking.”
trist of his
U.S.
Powell,
We start out mitigating....” majority
are opinion
correctly Schmidtgoessling’s notes that Dr. it,
testimony presented mitigation;
however, legal fails to take note of the consequence of Dr. Schmidtgloessing’s ap- America, UNITED STATES of pearance expert, as a neutral than rather Plaintiff-Appellee, ante, expert. defense at n. See 9 From her own admission it is clear that Dr. Schmidtgloessing saw her role as a “friend Daryl William M. PATTERSON and L. This, contend, of the court.” I fails to Smith, Defendants-Appellants. requirement meet the established in Ake. 02-3134, Nos. 02-3153.
We found in Powell that testimony of a expert may provided defense have Appeals, United States Court of facts and information consider at miti- Seventh Circuit. gation may have led to a different Argued Sept. sentence for the 2003. defendant. Id. The facts of this case lead me to the same conclu- Decided Oct. sion. Smith an exceedingly endured diffi- cult childhood. He spent living time *39 parents,
abusive diagnosed foster dysfunction,
diffuse cerebral spent juvenile
time in a psychiatric facility
where, among things, other he received
electric therapy. history, shock Given this
the lack of expert assistance to which
Smith was entitled under Ake “had such injurious
substantial and effect or influ- in determining”
ence the sentencing deci-