[Note from Blog Editor Nita Farahany — I’m pleased to welcome and introduce guest contributor and author of this post, Ken Murray, Federal Public Defender in Arizona, Capital Habeas Unit]
Offense Heinousness, Double-Edged Sword of Brain Damage
“If the evidence of an organic medical explanation for [defendant’s] behavior . . . did not persuade [the jury] to impose a lesser sentence, it was not unreasonable for the state court to decide that the additional evidence probably would not have produced a different verdict.”
Today’s case involves a capital defendant who had committed a brutal double murder and had a history of violent criminal behavior. In an attempt to establish lack of intent to kill, the defense presented evidence of defendant’s brain damage during the guilt phase of the trial. When that defense failed, defense counsel presented mitigating evidence at the penalty phase regarding the defendant’s positive prison record and his caring family. In the end, the courts concluded that if the jury did not accept the evidence of brain damage as being sufficient to find reduced culpability on the part of the defendant, any additional evidence regarding family dysfunction and abuse would not convince the jury that a sentence less than death was appropriate.
In death penalty cases, defense counsel seek to present evidence to convince the jury that the defendant either did not commit the capital offense or, if he did, that he is not sufficiently culpable to warrant a sentence of death. Effective counsel must be cognizant of the need to make the trial or guilt phase defense consistent with the penalty phase defense. Where, as in this case, the strongest mitigation evidence is “front loaded” into the trial phase, it must be presented in a manner that allows counsel to present a coherent case for life at the penalty phase. If it is not accepted by the jury, there is little chance to prevail at the penalty phase.
The critical issue in this case is how the defense used the neuroscience evidence of brain damage. In attempting to establish diminished capacity for the double murder, the defense failed to address what proved to be the overriding concern of the reviewing courts – the brutal nature of the defendant’s criminal history and the horrendous circumstances of the double homicide. Once the jury decided that the evidence of brain damage did not justify a sentence less than death, the subsequent penalty phase theory of presenting evidence of a caring family and positive prison record had little chance to succeed. If the jury was not convinced that the defendant’s “brain made him do it,” no amount of family dysfunction and environmental mitigation would likely convince the jury that the defendant was not simply a dangerous person from whom society must be protected.
The decision to present the evidence of brain damage up front, and the failure to fully investigate and present the defendant’s horrendous social history in order to provide context to the meaning and effect of the defendant’s brain damage and cognitive deficiencies, did not provide a compelling mitigation case for life to the jury. Instead, it provided the double-edged sword that the jury and the courts used to establish dangerousness as a justification for imposing death.
IAC, Brutality of Offenses, Failed Mitigation
Samayoa v. Ayers, 2011 WL 1226375 (9th Cir. 2011)
The defendant was charged and convicted of capital murder of two victims, during the course of a burglary. In his federal habeas petition, the defendant claims that the state court’s decision rejecting the ineffective assistance of counsel claim is contrary to or an unreasonable application of United States Supreme Court law. The Ninth Circuit found that, in light of the heinousness of the offense, the defendant suffered no prejudice and affirmed the decision below. Trial-phase testimony included detailed descriptions of the injuries to the victims including their smashed faces, crushed skulls, and brains penetrated by bone fragments. In addition, the jury heard testimony regarding the defendant’s past record including three separate imprisonments, the burglary and the rape of a disabled woman nine years before the current homicide, and an assault with a deadly weapon on another woman five years later. The defendant conceded guilt for the double homicide and burglary, but argued that as a result of brain damage, he lacked the intent to kill his victims. The defendant presented evidence of diminished capacity from four psychologists who described the defendant as suffering from organic brain damage. The defense experts opined that the defendant suffered from brain damage of the left hemisphere of the brain, including damage to the frontal, temporal and parietal lobes. The experts offered various descriptions of how such damage might affect an individual, including inability to control one’s conduct or actions, aggressive behavior, rage reactions in stressful situations, poor impulse control, and lack of awareness. They also testified that the behavior of the defendant at the time of the homicides was consistent with the type of brain damage suffered by the defendant. The diminished capacity defense failed. The jury found the defendant guilty of the homicides, the burglary, and the special circumstances of multiple murder and murder during the course of a burglary.
During the penalty phase that followed, the prosecution presented detailed aggravation evidence, followed by additional mitigating evidence by the defense, including testimony of corrections officers indicating that the defendant worked well in the prison setting. In denying the defendant’s motion to reduce his sentence, the trial court concluded “that the death penalty was ‘the only fitting response’ to the ‘unspeakable crimes’ and that aggravation ‘vastly outweigh [ed]’ mitigation.”
On direct appeal, the California Supreme Court upheld both the conviction and sentence. In his state post-conviction proceedings, the defendant argued that his counsel was ineffective for failing to investigate and present additional mitigating evidence. During his federal habeas proceedings, defendant presented evidence that the family situation was not as positive as had been presented at the penalty phase. The district court assumed, without ruling, that trial counsel had performed deficiently but denied relief because the defendant could not establish that such deficient performance was prejudicial. In reaching this conclusion, the district court pointed to the brutality and extreme violent nature of the double murder and the defendant’s dangerous criminal history. The court concluded that even if the additional mitigation had been presented to the jury, there was no reasonable possibility that one of the jurors would have voted for life. On appeal, a majority of the three judge panel agreed. As did the district court, the majority of the Ninth Circuit panel opined, without holding, that trial counsel performed deficiently but concluded that the defendant could not establish prejudice. It noted noted that “[t]he evidence of Samayoa’s childhood does not paint a pretty picture, but it is not so dramatic or unusual that it would likely carry the day for Samayoa given that his much more probative brain injury evidence did not.” The mitigating evidence of organic brain damage presented at trial, it held, was much more significant than the evidence of the family dysfunction that was developed and presented later.