(2) Presentation of mitigating evidence
The penalty phase transcript reveals no coherent penalty phase strategy by trial counsel.
Moreover, this court cannot presume that trial counsel's approach to the penalty phase was strategic because, as noted above in section 1, reasonable efforts were not made to locate witnesses and documents for presentation as mitigating evidence.
Trial counsel planned initially to present only two witnesses. The testimony of Hendricks's ex-girlfriend Rowena Bates was relevant but very limited considering the mitigating evidence that she might have offered based on the close relationship she and her son had with Hendricks. Ms. Bates could not testify in any detail about the incident in which her son Teal was raped because she was not a witness. Even so, her testimony about the effect of the rape on Hendricks was very brief. Moreover, the oblique reference to Hendricks's discussion with her of what happened to him did little to corroborate a significant and traumatic event in Hendricks's life that was highly relevant to establishing a factor in mitigation.
Dr. Carson's testimony was also relevant to the issue of penalty but its value was undermined almost completely by the lack of corroboration for the underlying facts about Hendricks's life and family background. The prosecutor's cross-examination of Dr. Carson was, as Hendricks's legal expert testified, both devastating and predictable. JL 88; MT 33, 45.
Aside from the absence of corroboration, Dr. Carson's testimony was not developed in light of the applicable statutory and nonstatutory mitigating factors. Trial counsel's opening and closing statements also provided little guidance to the jury about how to evaluate the evidence presented by Rowena Bates and Dr. Carson as factors in mitigation. In light of trial counsel's failure to discuss the factors that would actually govern the jury's decision between life without parole and death, trial counsel's abstract plea for mercy based in part on his own opposition to the death penalty was particularly ineffectual.
The record shows that, just as trial counsel testified, he went with what he had and begged for mercy. This approach and the lack of preparation underlying it is consistent with trial counsel's testimony that he viewed the penalty phase was a "strange blip" at the end of a regular homicide case. Trial counsel's testimony that he considered the statutory mitigating and aggravating factors to be "statutory verbiage" is also reflected in the lack of argument on these factors in trial counsel's opening and closing statements, in the overall lack of focus on developing a penalty phase case in light of those factors, and in a very limited effort to connect the evidence that counsel did present on Hendricks's behalf to the relevant statutory and nonstatutory mitigating circumstances.
The court recognizes that trial counsel may have an incentive to admit error in the hope of assisting a former client who has been sentenced to death. Cf. Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992); Harris v. Dugger, 874 F.2d 756, 761 n.4 (11th Cir. 1989). In this case, however, counsel's testimony is credible and supported by the state court record.
The penalty phase transcript, combined with the fact that trial counsel conducted no penalty phase investigation, demonstrate that trial counsel's performance was the product of inexperience rather than strategy.
By contrast, the strategies that respondent attributes to trial counsel with regard to presentation of mitigating evidence are neither evident from the record nor reasonable on the facts of this case.
Trial counsel knew many facts in Hendricks's life history that could have been presented to the jury as mitigating evidence. Trial counsel testified that he was not concerned about the possibility of uncovering damaging rebuttal evidence by investigating and presenting mitigating evidence about Hendricks's personal and family history. The record contains no evidence to indicate that investigating and presenting this evidence might do more harm than good.
Rather, there appears to have been no risk to developing and presenting the facts of Hendricks's life in detail. In light of the aggravating evidence that the prosecution would introduce to show that Hendricks had committed five murders, trial counsel had every reason to present as much mitigating evidence as possible.
Trial counsel's testimony that he viewed the contents of CALJIC § 8.84.1 as "statutory verbiage" further shows a lack of understanding of what the penalty phase was about. No doubt trial counsel's conception of the statute and corresponding instruction as mere words contributed to his failure to investigate and present witnesses and to corroborate the testimony of those witnesses who did testify.
The aggravating and mitigating factors set forth in the instruction are the criteria that the judge tells the jury to consider when deciding whether a defendant will suffer life imprisonment without possibility of parole or the death penalty.
Those factors have to be the cornerstone of preparing for the penalty phase even in a case where trial counsel's strategy is to plead for mercy. A plea for mercy in the abstract will have little effect if trial counsel fails to give an inadequate basis in law and fact upon which the jury could express compassion for a defendant by sparing him the penalty of death.
Based on a thorough review of the pleadings and exhibits, the state court record, and the evidentiary hearing testimony, the court concludes that trial counsel's performance in the penalty phase did not meet the constitutional minimum standard for investigation and presentation of mitigating evidence. Accordingly, it must be determined whether there is a reasonable probability that, but for counsel's errors, the jury would have concluded that the balance of mitigating and aggravating circumstances did not warrant the sentence of death.
Hendricks maintains that he was prejudiced by trial counsel's deficient performance in the penalty phase. Hendricks points to the existence of a substantial amount of mitigating evidence about his life and family background that was either not presented, not corroborated, or not connected to the applicable statutory and nonstatutory mitigating factors. In addition, Hendricks emphasizes that when the penalty phase was twice retried in his Los Angeles case and much of this mitigating evidence was presented, the jury failed to reach a verdict.
Respondent argues that Hendricks cannot show prejudice because the evidence in aggravation was overwhelming. In addition, respondent argues that the jury knew most of the important aspects of Hendricks's life that could be considered in mitigation. Finally, respondent disputes the relevance of the penalty phase result in the Los Angeles retrial.
a. Legal standard
The Supreme Court has noted in numerous opinions on the constitutionality of the death penalty that, "consideration of [mitigating] evidence is a 'constitutionally indispensable part of the process of inflicting the penalty of death.'" California v. Brown, 479 U.S. 538, 554, 93 L. Ed. 2d 934, 107 S. Ct. 837 (1987)
(quoting Woodson v. North Carolina, 428 U.S. 280, 304, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976) (plurality)); see also McCleskey v. Kemp, 481 U.S. 279, 304, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987); Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982); Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978) (plurality). In Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 2951, 106 L. Ed. 2d 256 (1989), the Supreme Court reiterated the rationale for this requirement as follows: "It is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant's character or record or the circumstances of the offense." Furthermore, the Court emphasized that "in order to ensure reliability in the determination that death is the appropriate punishment in a particular case, the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant's background, character, or the circumstances of the crime." Penry, 109 S. Ct. at 2951, (citing Woodson v. North Carolina, 428 U.S. 280, 305, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976)).
In light of the significance of mitigating evidence about the individual's background and character to the accuracy and reliability of the capital sentencing process, courts have granted relief on grounds of ineffective assistance of counsel in cases where trial counsel did not investigate and present this evidence to the jury and had no reasonable tactical rationale for failing to do so.
In such cases, the existence of a substantial amount of mitigating evidence that was not presented to the jury is one factor relied upon to indicate that the petitioner was prejudiced by trial counsel's deficient performance. See Armstrong, 833 F.2d at 1432; Blanco, 943 F.2d at 1501; Mak, 970 F.2d 614 at 620-22; Deutscher, 884 F.2d at 1160-61; Waters, 979 F.2d 1473 at 1497; Stephens, 846 F.2d at 653; Middleton, 849 F.2d 491 at 493-95.
Even in cases where trial counsel's failure to present mitigating evidence was not complete, prejudice has been found when trial counsel failed to connect the evidence presented to the statutory or nonstatutory mitigating factors. See Waters, 979 F.2d at 1496; Stephens, 846 F.2d at 655; cf. Card v. Dugger, 911 F.2d 1494, 1513 (11th Cir. 1990) (rejecting prejudice claim in part because trial counsel presented psychiatric testimony relevant to establishing two statutory mitigating factors); Doyle v. Dugger, 922 F.2d 646, 652 (11th Cir. 1991) (same). By contrast, no prejudice has been found where the jury has heard substantially the same the evidence that the petitioner claims should have been presented. See, e.g., Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992); Clozza v. Murray, 913 F.2d 1092 (4th Cir. 1990); Coogan v. McCaughtry, 958 F.2d 793 (7th Cir. 1992); Doyle, 922 F.2d at 652; Elledge v. Dugger, 823 F.2d 1439, 1447-48 (11th Cir. 1987). Prejudice has also been rejected in cases where the court found that the mitigating evidence that was not presented would have opened the door to damaging rebuttal, see, e.g., Burger v. Kemp, 483 U.S. 776, 791, 97 L. Ed. 2d 638, 107 S. Ct. 3114 (1987), and where the aggravating evidence was found to be overwhelming. See Celestine v. Blackburn, 750 F.2d 353 (5th Cir. 1984); Elledge v. Dugger, 823 F.2d 1439, 1448 (11th Cir. 1987); Fitzgerald v. Thompson, 943 F.2d 463, 470 (4th Cir. 1991).
Hendricks's claim of prejudice, and respondent's arguments in opposition, are considered below in light of these criteria.
The facts of Hendricks's life and family background as presented in this court are not disputed by respondent. Moreover, there is no dispute that this evidence is relevant to at least three statutory mitigating factors and to any nonstatutory mitigation.
The state court record shows that the jury was aware of some of the important events in Hendricks's life. The jury learned these facts through Hendricks's taped confession and through the testimony of Rowena Bates, Dr. Carson, and Hendricks himself. The record also shows, however, that the persuasive force of this evidence was undermined substantially by the manner in which it was presented.
First, the jury was given little guidance about how to consider the facts it had about Hendricks's life and background to make the decision between a sentence of death and life without possibility of parole. Second, most of the information that the jury had about Hendricks's life and family came from Hendricks himself either directly (in his confession and penalty phase testimony) or indirectly (through the testimony of Dr. Carson).
The jury's only source of information about Hendricks's life and background other than Hendricks himself was Rowena Bates. Ms. Bates testified briefly about her relationship with Hendricks and about his reaction to the rape of her son Teal. In addition, Ms. Bates apparently verified some of the facts told by Hendricks about himself to Dr. Carson. Even this verification may not have carried much weight given that Ms. Bates's only sources of information were Hendricks himself and phone conversations with his father.
As noted in the previous discussion, the prosecutor emphasized heavily and to great effect that Dr. Carson had no corroboration for any of the facts about Hendricks's life that she relied upon in formulating her psychological evaluation of him. Dr. Carson's opinion and conclusions about Hendricks were thus rendered suspect along with the underlying facts about Hendricks's life. See Hendricks v. Vasquez, 974 F.2d 1099, 1110 (9th Cir. 1992). Furthermore, it is doubtful that the jury would find Hendricks himself to be a reliable or credible source of information. At the time that the jury heard most of the facts about Hendricks's life and background, they had just convicted him of two counts of first-degree murder with special circumstances, one count of burglary, and one count of robbery.
In light of these facts, Hendricks's case is distinguishable from those in which no prejudice was found because the evidence that trial counsel failed to present would have been merely cumulative of facts that the jury already knew. Rather, Hendricks's case is more akin to those where trial counsel presented no mitigating evidence at all because 1) the facts that the jury heard were not made believable, 2) the expert opinion relying on those facts was thus undermined, and 3) the jury had very little guidance from trial counsel about how to connect the facts and expert opinion about Hendricks's life and background to the mitigating factors in the statute that would govern the jury's decision between a sentence of death and life without possibility of parole.
Respondent has emphasized both in pleadings and in oral argument that the aggravating evidence in Hendricks's case was overwhelming to such an extent that there is no reasonable possibility that the presentation of additional mitigating evidence would have led the jury to choose a sentence of less than death. Furthermore, respondent urges the court to disregard the fact that the jury in the Los Angles retrial failed to reach a verdict on the penalty.
Respondent's arguments are unavailing. Both in exhibits to this court and in the Los Angeles penalty retrial Hendricks has presented a substantial amount of evidence in mitigation of the death penalty. Presented effectively, that evidence more than satisfies the Strickland standard of prejudice and demonstrates a reasonable probability that the jury would conclude that the balance of aggravating and mitigating factors calls for a sentence less than death.
The Supreme Court emphasized in Strickland and more recently in Lockhart v. Fretwell, 122 L. Ed. 2d 180, 113 S. Ct. 838, 842-43 (1993), that the cornerstone of the prejudice inquiry is whether the jury's verdict may be considered fair and reliable. In Hendricks's case, this requirement has not been satisfied.
Having determined that both the performance and prejudice elements of the Strickland test have been met in this case, the court finds that Hendricks was denied his Sixth Amendment right to the effective assistance of counsel in the penalty phase of his trial. As a matter of law and justice, Hendricks is therefore entitled to habeas corpus relief on the ground that his sentence of death was obtained in violation of his federal constitutional rights.
For the reasons stated above in part III, IT IS HEREBY ORDERED:
1. Hendricks's petition for a writ of habeas corpus as to the conviction is DENIED;
2. Hendricks's petition for a writ of habeas corpus as to the penalty is GRANTED;
3. The sentence of death in this case is VACATED AND SET ASIDE, as are any state proceedings related to carrying out that sentence.
4. The state of California has 60 days to commence new sentencing proceedings in accordance with applicable state law and the federal constitution.
5. The clerk of the court will immediately notify the warden of San Quentin Prison and the California Attorney General of this court's ruling. See N.D. Cal. Local R. 296-12.
IT IS SO ORDERED.
Dated: June 2, 1994
EUGENE F. LYNCH
United States District Judge